Thursday, August 13, 2015

The Tort of False Imprisonment

Tánaiste Joan Burton changes cars before being evacuated
from the protests in Dublin.
Several activists are reportedly about to be charged with false imprisonment for the protest in which Tánaiste Joan Burton was trapped in her car for over two hours, including TD Paul Murphy. Mr Murphy's objections are substantially that there was an element of 'political policing' in the process - particularly in the arrests, and 'dawn raids' on the activists who had been involved. He claims that charges would have not be brought were it not for a sense that they had offended the establishment, and in the exercise of discretion, it had been decided that the application of the law would come down firmly on the accused.

False imprisonment is pretty clear, defined in Dullaghan v Hillen (1957, Ir Jur Rep 10) by Judge Fawsitt as "...the unlawful and total restraint of the personal liberty of another whether by constraining him or compelling him to go to a particular place or confining him in a prison or police station or private place or by detaining him against his will in a public place."  It is generally further defined as being both physical (trapped in a room) or psychological (told at gunpoint not to move).  It is not time dependent. It is punishable by up to life in prison.
Most false imprisonment case law seems to either involve Government (police) or official (store detectives) representatives inappropriately detaining people, or else in combination with other crimes such as kidnapping or sexual assault. There is very little it seems (I've not done a full Lexus or similar legal search) in the way of case law on 'activist' type cases, except for the Fathers4Justice case about ten years ago in the UK where activists shackled the then Children's Minister Margaret Hodge for fifteen minutes.  Arguing a defence of legitimate political action, the jury agreed that their actions had not exceeded those bounds, and the men were duly acquitted.  Being jury based, it is of limited influence in Ireland, though there is certain vagueness in the unusual power balance of the case.
False imprisonment is generally about power. It concerns a situation where one person, or group of people, has power over the other, and uses that power to deprive them of their liberty. There is a corresponding sense of powerlessness that falls on the victim. In the current case - and I am clearly not in posession of all of the facts - it appears that the demonstrators were aggressive, to the point that the Tánaiste's assistant was apparently assaulted. There were a number of arrests on the day for criminal damage.
Three things occur to me. First, almost all politicians (in particular Alex White) who commented on the case immediately condemned the actions specifically of Paul Murphy. If Charlie Haughey can get off when Mary Harney makes a slight comment, it would be astonishing if Paul Murphy was not similarly to benefit. Irrespective of the fact that Joan Burton was the victim, she was also the Tánaiste, and her criticism of Paul Murphy specifically can only be seen as influential and prejudicial.
Second, the intent of the individuals charged with false imprisonment will need to be proven to be just that: to detain the Tánaiste, her assistant and their driver against their will.  It seems that it could reasonably be argued that their intention was not to detain, but to protest, and that the environment (narrow road, limited access) was coincidental to the protest, and resulted in the detention. Alternately put, the protest was intended to involve loudhalers, placards and chanting in a group, not to imprison or detain, though that indeed was the effect of the protest.
Third, there were many Gardaí in attendance at the beginning of the protest, and more arrived later. There does not appear to have been a 'power imbalance', and while there may have been some intimidation, the primary reason for the detention of the Tánaiste was the physical location and the sheer number of protesters (for which no one protestor could be singled out).

Given these points, one has to ask the question: how has the DPP seen fit to bring the charges? I don't agree with Paul Murphy, with his politics, or with the way in which that protest was conducted. But it certainly appears to me that this group is being targeted because the establishment got a bloody nose. One wonders should the judiciary decided to throw out the cases, could we see another Minister for Justice forced to resign even before the Fennelly Commission report is published?!

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