Unauthorised isolation in the BMU and false imprisonment
431 False imprisonment is often described as any wrongful total restraint on the liberty of the plaintiff which is directly brought about by the defendant: see, for example, Trindade FA, 'The Modern Law of False Imprisonment', in Mullany N (ed), Torts in the Nineties (Sydney, 1997) 229. The restraint is wrongful if it is without lawful justification.
432 In State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331, the Full Court of the Supreme Court of South Australia (Doyle CJ, Duggan and White JJ) said at [282]:
[T]he factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint need bear no similarity to what one would normally describe as imprisonment. The law has moved on from any such limitation.
433 In Darcy v State of New South Wales [2011] NSWCA 413, Whealy JA, with whom Allsop P (while adding some reasons of his own) and Beazley JA agreed, said of the tort of false imprisonment:
[141] In the 10 th edition of Fleming's The Law of Torts the learned authors say (at p 36 [2.80]):
The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is.
[142] It is further observed, in the same paragraph, that the action was probably at first designed to furnish redress against wrongful incarceration in the colloquial sense, but that it has long outgrown these simple beginnings.
[143] The elements of the modern tort of false imprisonment require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. In Troubridge v Hardy (1955) 94 CLR 147 at 152 these principles were explained by Fullagar J in the following terms:
The [appellant] did not sue, as he might also have done, for malicious prosecution, but for trespass to the person and false imprisonment. It was unnecessary for him to allege in his statement of claim, as in fact he did, that the [respondent] was "acting in his office as a member of the police force". The mere interference with the [appellant's] person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the [respondent] to justify, if he could, by reference to his office or otherwise.
[144] The restraint imposed must be a complete deprivation of, or a restraint upon the plaintiff's liberty and it must be actual rather than potential … The restraint must be upon a person's liberty to come and go and must be against his or her will ...
[145] Modern authority confirms that the factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint, however, need bear no similarity to what one would normally describe as imprisonment. It has been said that the law has moved on from any such limitation …
(Citations omitted)
434 The tort is a species of the tort of trespass to the person and is accordingly concerned with direct and intentional forms of harm: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 per Kirby J (in dissent) at [137]. Later, at [141], Kirby J said:
[T]he principal function of the tort is to provide a remedy for "injury to liberty". It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se.
(Citations omitted)
435 Once the imprisonment is established, it is for the respondent to prove that it was lawfully justified: Watson v Marshall and Cade [1971] HCA 33, (1971) 124 CLR 621 at 626; Ruddock v Taylor at [64], [140]; Darcy at [143]. In Darcy, Allsop P described the lawful justification for the detention as being of "the utmost importance", having regard to the importance of the liberty of the subject, at [2].
436 The question of whether persons lawfully imprisoned may sue for false imprisonment by reason of their unlawful placement in a particular prison or in part of a prison has produced different judicial responses. In some cases, the circumstance that such a prisoner is already subject to total restraint has been thought to mean that any further restraint cannot constitute the form of restriction on movement required for the tort of unlawful imprisonment. However, there has been some recognition that the further imprisonment of a lawfully detained prisoner may constitute unlawful imprisonment.
437 Before referring to the Australian authorities, it is convenient to refer briefly to authorities in other jurisdictions.
438 In Cobbett v Grey (1850) 4 Exch 729; (1850) 154 ER 1409, which is cited in some of the modern authorities, it was held that a prisoner who had been compelled to go to a less salubrious part of the prison in which prisoners in a different category were required by law to be confined had been unlawfully imprisoned.
439 However, the modern view in the United Kingdom has been that the unlawful placement of a prisoner within a prison does not provide the basis for a claim of unlawful imprisonment. In R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58, the issue was whether a prisoner who had been segregated from other prisoners otherwise than pursuant to r 43 of the Prisons Rules (referred to earlier in these reasons) and therefore unlawfully could bring an action for false imprisonment. In a second appeal (Weldon v Home Office) heard at the same time as Ex parte Hague, Ralph Gibson LJ had held in the Court of Appeal [1992] 1 AC 58 at 139:
There is no reason apparent to me why the nature of the tort [of false imprisonment], evolved by the common law for the protection of personal liberty, should be held to be such as to deny its availability to a convicted prisoner, whose residual liberty should, in my judgment, be protected so far as the law can properly achieve unless statute requires otherwise.
440 However, in the House of Lords, a different view was taken. Lord Bridge (with whom Lords Ackner, Goff and Lowry agreed) noted that s 12(1) of the Prison Act (UK) provided that a person sentenced to imprisonment "may be lawfully confined in any prison". His Lordship said that s 12(1) provided lawful authority for the restraint of the prisoner within the defined bounds of the prison by the governor of the prison and by any prison officer acting with the governor's authority, at 162. Lord Bridge used the term "restraint within … defined bounds" with a reference to the description of false imprisonment by Aitkin LJ in Meering v Graham-White Aviation Co Ltd (1919) 122 LT 44 at 54. Lord Bridge then continued at 162-3:
Can the prisoner then complain that his legal rights are infringed by a restraint which confines him at any particular time within a particular part of the prison? It seems to me that the reality of prison life demands a negative answer to this question. Certainly in the ordinary closed prison the ordinary prisoner will at any time of day or night be in a particular part of the prison, not because that is where he chooses to be, but because that is where the prison regime requires him to be. He will be in his cell, in the part of the prison where he is required to work, in the exercise yard, eating meals, attending education classes or enjoying whatever recreation is permitted, or in the appointed place and at the appointed time and all in accordance with a more or less rigid regime to which he must conform. Thus the concept of the prisoner's "residual liberty" is a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to be quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another.
441 In his separate but concurring speech (with which Lords Ackner, Goff and Lowry also agreed), Lord Jauncey said that prisoners do not have a "residual liberty" vis a vis the Governor of the prison, which amounts to a right protectable in law, at 176. His Lordship held that the segregation of the prisoner altered the conditions under which he was detained but had not deprived him of any liberty which he had not already lost when confined, at 176. His Lordship distinguished Cobbett v Grey on the basis that it turned on provisions providing for the strict classification of prisoners and statutory requirements as to the places in which they could be confined.
442 However, all the speeches emphasised the importance of the lawful justification for the further "imprisonment" within the prison. It was accepted that there may be circumstances in which a prisoner subjected to a form of unauthorised confinement within a prison may be able to sue for false imprisonment. The prisoner locked in a shed by a fellow prisoner, and a prisoner subjected to restraint by prison officers who know they have no lawful authority for the restraint were given as examples: by Lord Bridge at 164; Lord Ackner at 166-7; and Lord Jauncey at 178.
443 Lord Jauncey also noted, at 178, that while the tort of false imprisonment requires total deprivation of liberty, the liberty in question is "such liberty as the individual presently enjoys and not deprivation of total liberty, namely, liberty which is otherwise totally restricted".
444 In R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148, the question was whether a long term psychiatric patient was lawfully held in segregation in a high security hospital, having regard to the terms of a non-binding Code of Practice. That question was answered in the affirmative by the majority with the result turning on a close analysis of the legislative regime, the status of the Code of Practice, and European Conventions. However, Lord Steyn, who with Lord Brown was in dissent, was critical of the decision in Ex parte Hague, saying that, even in respect of convicted prisoners, it should no longer be regarded as authoritative, at [42].
445 Ex parte Hague was followed in Prison Officers Association v Iqbal [2009] EWCA Civ 1312; [2010] 2 All ER 663.
446 In New Zealand, the Court of Appeal held in Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; (2002) 1 NZLR 616 that habeas corpus was not available to prisoners seeking release from maximum security or segregation in isolation. The Court said, at 633, that "a change to the conditions on which an inmate is being detained either by segregation, reclassification or transfer to another institution does not create a new detention" for the purposes of the writ of habeas corpus.
447 In Canada, in Miller v The Queen (1985) 24 DLR (4th) 9, the Supreme Court of Canada considered whether a writ of habeas corpus could be issued to review the validity of the form of detention in which a prisoner was held. After an extensive review of the authorities, Le Dain J (in the judgment of the Court) held at 30-1:
Confinement in a special handling unit, or in administrative segregation … is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought. For the reasons indicated above, I can see no sound reason in principle, having to do with the nature and role of habeas corpus, why habeas corpus should not be available for that purpose. I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.
448 The reasoning in Miller v The Queen was followed in May v Ferndale Institution (2005) 261 DLR (4th) 541 in relation to the availability of habeas corpus to prisoners who complained of the lawfulness of their transfer from a minimum security institution to a medium security gaol.
449 In Australia, issues relating to the availability of habeas corpus and false imprisonment in relation to the unlawful placement of a prisoner within a prison have arisen in a number of contexts. It is not necessary to refer to them all.
450 In Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, 50 inmates of New South Wales prisons brought proceedings for relief designed to ensure that they would have access to condoms while in prison. Sheller JA, in the judgment of the Court of Appeal in NSW, referred to Ex parte Hague, to Miller v The Queen and to other authorities but concluded that it was unnecessary for the resolution of the prisoners' claim to consider whether a prisoner enjoys a right of "residual liberty" vis a vis the State and whether the writ of habeas corpus runs when a person is held illegally in a prison within a prison, at 633.
451 In Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, Hutley JA (with whom Moffitt P and Glass JA agreed) said at 328 in his discussion of the rights provided to prisoners under the Prisons Act 1952 (NSW) (Prisons Act (NSW)) that:
Section 22, which authorises the segregation of prisoners under the conditions there specified, implies that prisoners will not be segregated, unless those conditions are fulfilled. Whether any segregation of a prisoner not authorised by section 22 implies rights to a civil remedy sounding in damages does not arise in this case, because we are of the opinion there was in fact no segregation.
452 In Sleiman v Commissioner of Corrective Services [2009] NSWSC 304, Adams J considered whether a grant of leave under to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to amend proceedings in which the plaintiff impugned the validity of his placement in the high risk management unit (HRMU) at the Goulbourn Prison. His Honour reviewed several of the authorities referred to above, and others. These included the unreported judgment of Collins v Downs (NSWSC 14 December 1982) in which Roden J considered an application brought by the Commissioner for Corrective Services and others to strike out a statement of claim made by a prisoner who claimed to have been unlawfully detained in segregation in Goulbourn gaol in April and June 1979. The prisoner had alleged that that form of detention was not authorised by s 22 of the Prisons Act (NSW), which authorised the segregation of prisoners when certain conditions were filled. Adams J noted that Roden J had rejected the contention that, once a person is lawfully imprisoned, nothing his gaoler does with him during the authorised term of that imprisonment can constitute a trespass or false imprisonment. Roden J had concluded that "there is a right of action for false imprisonment available to a convicted prisoner if, during the term of the sentence imposed upon him when his imprisonment would otherwise be lawful, he is wrongly subjected to imprisonment of a nature or in a place not authorised".
453 In Sleiman, in granting the plaintiff leave, Adams J concluded:
[60] So far as prisons are concerned, the Parliament has instituted a structure of laws to govern the responsibilities of those to whom is delegated the custodianship of prisoners of the State. They are given great power and considerable freedom of action. But it is not untrammelled. It is self evident that the isolation of a person from communication with others is a severe and possibly dangerous step. It must be done with considerable care and only when it is truly necessary. It cannot be doubted that for these reasons the Parliament has made specific provision in the Act dealing with the exercise of this power. This demonstrates, amongst other things, that segregated custody is regarded by the Parliament as an exceptional form of custody and requires a unique system of implementation and control, in particular by necessitating a report to the Minister, regular reviews and giving the prisoner the right to apply to the Review Council for a review. In virtually every other aspect of managing a prisoner's custody the Commissioner has almost unfettered control and authority (albeit subject to various forms of supervision) except where the prisoner is to be segregated.
[61] Having regard to the exceptional character of segregated custody so far as the well being of the prisoner is concerned and the unique regime instituted by the Parliament as a safeguard, it is obvious that compliance with its requirements is no mere matter of legal technicality but of fundamental importance. To place a prisoner in segregation without such compliance and set at nought the safeguards of the Act is a serious departure from the law.
[62] This case is about what the law will do to require obedience to and redress departures from the obligations it imposes. It has nothing to do with the personal merits, or lack of them for that matter, of the prisoner. The law is blind to such considerations. The law will be enforced, not because of what is owed to the prisoner, but because of what it owes itself and the community it serves.
454 In State of New South Wales v TD [2013] NSWCA 32; (2013) 83 NSWLR 566, the Court of Appeal in NSW (sitting as a Court of five) considered an appeal against an award of damages for false imprisonment to an offender who, by reason of chronic mental illness, had been made subject to a limiting term pursuant to the Mental Health (Criminal Procedure) Act 1990 (NSW). Part of limiting term included an order that the plaintiff be detained at a hospital. Instead, she was held for a time in a prison hospital which had not been gazetted as a hospital. The State argued that the plaintiff, having lost her entitlement to liberty at the relevant time, could complain only about the place in which she was detained. It submitted that that was a question as to the conditions of detention, a matter not going to the lawfulness or unlawfulness of the detention itself, for the purpose of the tort of false imprisonment.
455 All members of the Court held that the tort of false imprisonment was established, essentially for the reason that an order of a court entitling the State to deprive a person of his or her liberty does not justify detention in any place the State, or its relevant officers, deems appropriate, desirable or convenient, and that the lawfulness of the detention depends upon compliance with the terms of the order bringing it about - see Basten JA at [54].
456 Bathurst CJ regarded Ex Parte Hague as consistent with the Court's conclusion as the effect of s 12(1) of the Prison Act (UK) under consideration in that case was, like s 27 of the Mental Health (Criminal Procedure) Act, a statutory requirement as to where prisoners should be confined, at [5].
457 Basten JA referred to Ex Parte Hague, Cobbett v Grey and to the judgment of Roden J in Collins v Downs and said at [61]:
… To be imprisoned in the wrong part of a prison, where there is strict classification, according to law, is a false imprisonment for which damages may be awarded. There is nothing in Hague which throws doubt upon that distinction: on the contrary, it was upheld.
458 In SU v The Commonwealth [2016] NSWSC 8, the question was whether Indonesian nationals who had been arrested unlawfully and held in detention were entitled to damages for unlawful imprisonment for the period continuing from their arrest until the time that the detention became lawful (pursuant to a court order). By reason of s 189 of the Migration Act 1958 (Cth), the plaintiffs could have been held lawfully in immigration detention during the same period. Hamill J concluded:
[47] What is clear is that the incarceration of the plaintiffs in the cells at the Sydney Police Centre was a direct result of the decision to (unlawfully) arrest them. It is not to the point that a police station is one of the places where a person might lawfully be held in immigration detention pursuant to s 5 of the Migration Act. The plaintiffs were not detained in the cells at the Sydney Police Centre as a result of being in immigration detention. They were there to be arrested, charged and dealt with as remand prisoners. In this respect, the legal nature of their detention was different. One of the residual liberties that the plaintiffs enjoyed was the right to be dealt with according to the law. This included the right not to be arrested contrary to the provisions in s 3W. Nothing in the Migration Act alters the requirements for a lawful arrest.
[48] Accordingly, they were wrongly imprisoned and there will be a judgment for each of the plaintiffs.
459 These authorities indicate the need for close attention to the statutory regime and to the term of the order for detention.