Detention

Abstract

Public authorities are responsible for detaining individuals in a variety of situations. The police, prison authorities, and health authorities treating the mentally ill, are all empowered to confine people against their will. Given the almost complete control such authorities have over the detainees’ environment, and the dependence of the detainees on the authority to provide for their daily needs, it is foreseeable that in various circumstances the carelessness of the authority will harm those detained. This chapter considers the potential liability in negligence of detaining authorities. Negligence is not, however, the only, or even the most important, tort available to detainees. They may also be able to hold detaining authorities liable for the torts of assault and battery, misfeasance in public office, and false imprisonment, as well as various claims for breach of the European Convention on Human Rights. As this chapter explains, the tort of negligence often operates as a residual remedy where one of these other remedies is not available to a detainee. Another kind of negligence liability this chapter considers arises where harm is caused by the detainees themselves. Given that some of those detained may be dangerous, it is foreseeable that if they are incorrectly released or allowed to escape they will cause harm. This chapter examines whether those injured by detainees in such circumstances can hold the detaining authority liable in negligence. The possibility of the victims succeeding in claims for breach of the European Convention on Human Rights is such cases is considered in Chapter 7.