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False Imprisonment & Refusing to Assist a Police

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False Imprisonment & Refusing to Assist a Police Journal of Politics and Law; Vol. 8, No. 3; 2015 ISSN 1913-9047 E-ISSN 1913-9055 Published by Canadian Center of Science and Education False Imprisonment & Refusing to Assist a Police Officer – The Need for Statutory Offences Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: June 11, 2015 Accepted: June 27, 2015 Online Published: July 24, 2015 doi:10.5539/jpl.v8n3p51 URL: http://dx.doi.org/10.5539/jpl.v8n3p51 1. Introduction There are a number of areas of English criminal law which require modernisation. A previous article has reviewed the law in relation to escape, prison breach and rescue 1 which, it argues, should now be made statutory offences. This article considers the law in relation to false imprisonment. The two are connected. The former involves a person escaping from lawful custody. The latter involves a person being detained other than in lawful custody. Both these criminal offences have had a long history and both, originally, were especially connected with ‘imprisonment’.2 That is, detention in a jail or being detained by a police constable, headborough (borsholder) or other police official;3 As with the common law offence of escape etc. false imprisonment is a common law offence. It is punishable with imprisonment or a fine (or both).4 Kidnapping is a sub-category of false imprisonment. It may be noted, from the outset, that the words ‘false imprisonment’ can be confusing in a modern context. ‘False’ being derived from the Anglo-Norman (Law French) is, perhaps, better translated as ‘unlawful.’5 And ‘imprisonment’ summons up the image of a prison, whereas the offence covers any form of detention - whether in a building or not. Further, it can be committed by any person. Thus, as will be seen, it would seem better if a modern statutory offence were to be termed ‘Unlawful Detention’. 6 The purpose of this article is to review the common law on false imprisonment and to propose that it become a statutory offence. It is useful to consider the history of false imprisonment in some detail since it was especially connected, in early times, with unlawful custody in prisons and by police constables. In this article, reference is made to my previous article on escape, by way of background.7 This article also considers the common law offence of refusing to assist a police officer. Like false imprisonment it derives from early English law. This article argues that it also should become a statutory offence. As to legal texts dealing with these offences, those of importance include the following: H Bracton, On the Law and Customs of England (c. 1240); 8 Britton (c. 1290); 9 1 GSMcBain, Modernising the Law on Escape, Prison Breach and Rescue (2014) Review of European Studies, vol 6, no 4, pp 147-73. 2 From early times, ‘imprisonment’ was conceived as a double legal act. It involved: (a) arrest; and (b) detention. See Bracton, text to n 54. 3 Headboroughs (also called borseholders) as well as other local police constables are now obsolete. 4 W Archbold, Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 2014), para 19-337. ‘Both kidnapping and false imprisonment are common law offences, punishable by a fine or imprisonment, or both. Both are specified violent offences within Schedule 15 to the CJA [Criminal Justice Act] 2003.’ 5 See eg. Anglo-Norman dictionary (online, anglo-norman.net), definition of ‘faux’ (in law) ‘unrightful, not reflecting the truth’. See also definition of ‘emprisonement’ (imprisonment) and references to ‘bref de (faux) emprisonement’ (a writ charging illegal imprisonment). 6 This will also enable it to dovetail better with escape etc, since the courts have analysed ‘custody’ and ‘lawful custody’ in detail. See n 1. 7 See n 1. 8 H Bracton (trans Thorne), On the Law and Customs of England c.1240 (Cambridge UP, 1968-76). Bracton is now online, see bracton.law.harvard.edu 51 www.ccsenet.org/jpl Journal of Politics and Law Vol. 8, No. 3; 2015 Fleta (c. 1290);10 The Mirror of Justices (c. 1290);11 W Staunford, Les Plees del Coron (1st ed, 1557);12 W Lambard, Eirenarcha or of the Office of the Justices of Peace (1581);13 A Fitzherbert, The Newe Boke of Justices of the Peas (1538); 14 F Pulton, De Pace Regis et Regni (1st ed, 1609);15 M Dalton, The Countrey Justice (1618-1746);16 E Coke, Institutes of the Laws of England (1628-41);17 W Hawkins, A Treatise of the Pleas of the Crown (1716-1824);18 M Hale, The History of the Pleas of the Crown (published 1736, written 1640’s);19 W Blackstone, Commentaries on the Laws of England (1765-9);20 W Archbold, Criminal Pleading, Evidence and Practice (1822-2014);21 Halsbury, Laws of England. 22 Apart from Archbold, Halsbury and Blackstone’s Criminal Practice,23 modern criminal texts contain some analysis of this common law crime.24 Finally, of use are various Abridgments, major and minor, viz. N Statham, Abridgment of the Law (c. 1490); 25 A Fitzherbert, La Graunde Abridgment (3rd ed, 1577); 26 R Brooke, La Graunde Abridgment (1586); 27 9 FM Nichols (ed), Britton (John Byrne & Co, 1901). 10 Fleta, see Selden Society (‘SS’), vols 72, 89 & 99. 11 The Mirror of Justices, SS, vol 7, p 52, ch 9 (of Gaol and Gaolers). 12 W Staunford, Les Plees del Coron (Richard Tottell, 1557, 2nd ed 1607). 13 W Lambard, Eirenarcha, or of the Office of the Justices of Peace (1581, rep Law Book Exchange). 14 See also A Fitzherbert, The Newe Boke of Justices of the Peas (London, 1538). His text was later enlarged by R Crompton, see A Fitzherbert & R Crompton, L’Office et Auchtoritie de Justices de Peace (1584, rep Professional Books Ltd, 1972).See also R Burn, Justice of the Peace and Parish Officer (1st ed, 1755, 23rd ed, 1820, 30th ed (last), 1869). 15 F Pulton, De Pace Regis et Regni (1st ed, 1609, rep Professional Books Ltd). 16 M Dalton, The Countrey Justice (London, printed for the Society of Stationers, corrected ed, 1619). 17 E Coke, Institutes of the Laws of England (W Clarke & Sons, London, last ed, 1824). 18 W Hawkins, A Treatise on Pleas of the Crown (E & R Nutt & R Gosling, Savoy (3rd ed, 1739)). The 1st edition of Hawkins was in 1716-21, the last (the 8th ed) in 1824. 19 M Hale, The History of the Pleas of the Crown (printed for E & R Nutt & R Gosling, 1736). 20 W Blackstone, Commentaries on the Laws of England (Oxford, Clarendon Press, 1st ed, 1765-9, University of Chicago Press rep 1979) . 21 See Archbold, n 4. See also, JF Archbold, A Summary of the law relative to Pleading and Evidence in Criminal Cases (London, 1822, being the 1st ed). 22 Halsbury, Laws of England (5th ed, with updates). 23 Blackstone’s Criminal Practice 2013 (eds A Hooper & D Ormerod)(‘Blackstone CP’). See also Archbold, Magistrates Courts Criminal Procedure (‘Archbold Procedure’). 24 See, for example: (a) C McAlhone & R Huxley-Binns, Criminal Law. The Fundamentals (3rd ed, 2013); (b) MJ Allen, Textbook on Criminal Law (12th ed, 2013); (c) A Ashworth & J Horder, Principles of Criminal Law (7th ed, 2013); (d) R Card et al, Criminal Law (20th ed, 2012); (e) CMV Clarkson & HM Keating, Criminal Law, Text and Materials (7th ed, 2010); (f) C Elliott & F Quinn, Criminal Law (8th ed, 2010); (g) R Heaton, Criminal Law (2nd ed, 2006); (h) J Herring, Criminal Law (8th ed, 2013); (i) M Jefferson, Criminal Law (9th ed, 2009); (j) Lacey, Wells & Quick, Reconstructing Criminal Law. Text and Materials (4th ed, 2010); (k) J Loveless, Complete Criminal Law. Text. Cases and Materials (3rd ed, 2012); (l) N Padfield, Criminal Law (7th ed, 2010); (m) A Reed & B Fitzpatrick, Criminal Law (4th ed, 2009); (n) AP Simester, Simester & Sullivan’s Criminal Law: Theory and Doctrine (5th ed, 2013); (o) D Ormerod, Smith & Hogan’s Criminal Law (13th ed, 2011); (p) DJ Baker, Glanville Williams Textbook of Criminal Law (3rd ed, 2012); (q) MJ Allen & S Cooper, Elliott & Woods’ Cases and Materials on Criminal Law (11th ed, 2013); (r) M Molan, Cases and Materials on Criminal Law (4th ed, 2008); (s) J Martin & T Storey, Unlocking Criminal Law (3rd ed, 2010); (t) P Hungerford-Welch & A Taylor, Sourcebook on Criminal Law (1997); (u) M Molan et al, Bloy & Parry’s Principles of Criminal Law (4th ed, 2000); (v) W Wilson, Criminal Law (4th ed, 2011). For older 20th century texts, see JW Cecil Turner, Kenny’s Outlines of Criminal Law (19th ed, 1966) and R Cross & PA Jones, An Introduction to Criminal Law (2nd ed, 1949). 25 N Statham, Abridgment of the Law (Pynson, c. 1490). This has been reprinted by the Law Book Exchange. For a translation, see MC Klingelsmith, Statham’s Abridgment of the Law (Boston Book Company, 1915). 26 A Fitzherbert, La Graunde Abridgment (Tottell, 3rd ed, 1577). This has been reprinted by the Law Book Exchange. 52 www.ccsenet.org/jpl Journal of Politics and Law Vol. 8, No. 3; 2015 H Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley (1668);28 W Hughes, Grand Abridgment of the Law (1660-3);29 W Sheppard, Grand Abridgment of the Common and Statute Law of England (1675);30 W Nelson, Abridgment of the Common Law (1725-6);31 M Bacon, New Abridgment of the Law (5th ed, 1798); 32 E Viner, A General Abridgment of the Law and Equity (1st ed, 1741-57); 33 J Comyns, Digest of the Laws of England (last ed, 1822).34 2.
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