Detention of Private Persons by Private Persons as a Delictual Wrong: Liability for Deprivation of Liberty in Scots Private Law

Jonathan Brown is a lecturer in Scots Private Law at the University of Strathclyde in Glasgow. Previously he was a lecturer in law at Aberdeen’s Robert Gordon University. Jonathan considers himself to be a private law generalist and dabbling legal historian. His recent publications include work on medical jurisprudence, the law of defamation and the relation between the Roman law of slavery and modern Scottish human trafficking legislation. The present essay is intended to provide a modern account which places acts amounting to wrongful detention effected by private persons within the taxonomy of iniuria.


Introduction
'False imprisonment' is, in English law, a strict liability tort. 108 It is thus actionable regardless of the mind-state of the perpetrator, 109 regardless of whether or not the victim suffers any demonstrable 'loss' or 'damage' 110 and indeed regardless of whether or not the 'victim' knew that they had in fact been falsely imprisoned. 111 To adopt the English lawyer's term of art, the tort is actionable 'per se '. 112 In general terms, conduct amounts to 'false imprisonment' if the perpetrator has imposed some constraint on the freedom of movement from a particular place ordinarily enjoyed by another individual. 113 Conceptually, 'false imprisonment' falls, as a 'cause of action', under the umbrella of the 'form of action' known as 'trespass to the person ', 114 albeit unhappily so in the view of some learned authority. 115 While it has been said that the 'categorisation of trespasses to the person is an ongoing source of In Scotland, 'since the earliest accounts of the law of reparation, infringement of liberty has been regarded as a "delinquence" which requires to

Deprivation of Liberty as Iniuria
As an action based on iniuria, in any claim for redress following deprivation of liberty, the pursuer must be able to prove that they have It is for this reason that in Stevens v Yorkhill NHS Trust, 198 the pursuer's case was permitted to proceed to probation notwithstanding the absence of any claim of malice, intention or 'animus iniuriandi' on the part of the defenders. This ostensible oddity can be rationalised on the grounds that the core of the actio iniuriarum is the contumelia displayed by the wrongdoer.
Contumelia -hubristic disregard of a recognised personality interest -cannot be effected through simple negligence, but it is quite apparent that one might recklessly disregard another's rights. 199 Hence, conduct might be actionable as iniuria where it is unthinking (as where one acts without thinking about the interests of others), 200 but not where the alleged perpetrator is incapable of thinking.
An actio iniuriarum thus occurs where a delinquent, who is compos mentis, hubristically acts to the subjective and objective affront of another person's recognised personality interest(s). Liberty, as an interest which falls under the 'higher-level' category of corpus, is manifestly a recognised and protected personality interest. Consequently, affronts to liberty are, in Scots law as in South Africa, 'injurious' in the technical sense of that term. As such, in Scots law the act of hubristically depriving another of their liberty is actionable sine damno -that is, without proof of loss. Solatium, rather than 'damages', 201 is payable as recognition that a wrong has been committed by the delinquent. 202 That solatium is payable sine damno ostensibly marks a point of similarity with 'false imprisonment', but this point of analogy should not be stretched too far. An actio iniuriarum does not give rise to liability 'per se' in the Anglo-American sense. Rather, that solatium is payable sine damno is a 197 The paradigm exemplar of such would be where a physician provides medical treatment without the consent of, or against the wishes of, their patient. Here, the benevolent intention of the doctor is irrelevant; in disregarding the patient's personality interests, even in the perceived best interests of the patient, the physician commits iniuria in the form of assault: with the spirit of Scots law.

Conclusion
The above discussion, as indicated in the introduction, is not mooted as a matter of idleness. It is of considerable practical importance given the reports of the alleged 'detention' of students in their halls of residence in universities throughout the United Kingdom. While there exists the possibility that actions based on 'false imprisonment' might succeed throughout in the UK's Common law jurisdictions, the legal position is conceptually different in Scotland.
Indeed, as discussed in this essay, that position is so different due to fundamental dissimilarities between Common law jurisprudence and the Mixed jurisprudence of Scotland that Scots lawyers must be wary of taking any 'lessons' from court judgments concerning the tort of false imprisonment.
Liability for deprivation of liberty in Scotland is not 'strict' and so facts which give rise to a right of reparation in the Common law may not necessarily do so in Scots law. they did was not contra bonos mores, i.e., contrary to public policy -then they might escape liability for their actions. In practice, this would be a very difficult thing for the detainer to prove, since, any argument to the effect that the ends justify the means will not defeat a claim of iniuria. One who hubristically infringes the personality interest(s) of another commits a wrong, regardless of their subjective benevolent intent. At best, it may be argued that the de facto confinement of students who are expected to self-isolate due to their exhibiting Covid-19 symptoms is not contra bonos mores, since it is in keeping with public policy to prevent the spread of infectious disease.
The key practical difference between the law of Scotland and that of the rest of the UK lies thus in the fact that for an instance of wrongful detention to be actionable in Scotland the pursuer must logically have suffered a demonstrable subjective affront. Consequently, evidence that the pursuer was not aware of or bothered by the detention, or that they passively and pleasantly acquiesced in it, will not give rise to a right of reparation. This is in contrast with the position under the nominate tort of false imprisonment, where a right of reparation does arise even if the purported 'victim' was unaware of their predicament. 212 The implications of this distinction in cases of mass detention are manifest. While in the Common law, proof that one student has been in fact 'falsely imprisoned' in their halls of residence would logically mean that every other student confined to those same halls would have a right of action, in Scotland the onus is on each individual pursuer to demonstrate that they knew of and were affronted by the fact of detention. may rule against recoverability on grounds of public policy, notwithstanding the internal logic of the rules pertaining to strict liability. The position in Scotland has the potential to be more principled: While the courts may act so as to achieve the same practical outcome, by predicating the law pertaining to deprivation of liberty upon iniuria as opposed to some strict liability nominate action, particular claims may be allowed or denied depending on their own merits, without abandoning the internal logic of the law. Here, one is reminded of the title of the festschrift for Professor George Gretton: There is Nothing so Practical as a Good Theory.