Many Jamaicans over the years have expressed great concerns about the manner in which their liberty has been unjustly taken from them, coupled with the indignity of having to attend court on multiple occasions over a long period of time and the hardship they are left to bear with little or no redress. Some have lost jobs because of same, many suffered from mental anguish and others have been ostracised by society.

A possible avenue for redress is to bring a claim against the perpetrator for false imprisonment and/or malicious prosecution.

False imprisonment and malicious prosecution are both common law torts by which an aggrieved party can seek redress for the trampling of the said personal rights. A claim for damages (usually in the form of monetary compensation) from false imprisonment and malice prosecution may be brought against the State, a police officer, a company, or any other individual. The quantum for the damages varies significantly. There are cases with awards of two, five, or even 10 million dollars. Some of the factors considered are how long the claimant (the person bringing the claim) was unlawfully held, the conditions under which the claimant was held, and the duration of the prosecution. The aggrieved party has six years from the date at which the tort had arisen to initiate proceedings.

False imprisonment

This occurs when an individual who doesn’t have legal authority or justification or said person’s consent intentionally restrains the person’s ability to move freely; that is, where there is the complete restraint and deprivation of one’s liberty resulting in the individual losing control, however short, without lawful justification.

Unlawful restraint doesn’t require physical force. To lock someone in a room, to demand that someone sits and doesn’t move, and to bar the only exit from a room may all amount to false imprisonment. Importantly, false imprisonment is also a criminal offence. In Jamaican most of the claims brought for false imprisonment are against police officers who are acting on behalf of the State.

For a claim of false imprisonment to be successful against an arresting officer, the claimant must be able to prove that it is more likely than not that the officer acted maliciously or without reasonable or probable cause. In determining whether the claimant has proven his claim for damages for false imprisonment, the court normally considers what amounts to reasonable or probable cause for arrest by the arresting officer.

In short, if the police officer is arresting someone without a warrant, he must honestly believe the claimant is guilty of what he is accused of — said belief must be based on reasonable grounds. To sustain a lawful arrest, the arresting officer also has a duty to investigate thoroughly.

It must also be noted that an arrest that was initially lawful can become unlawful if the accused is held for an unduly long time. What amounts to an unduly long time is dependent on the specific circumstances.

When does false imprisonment come to an end?

The specific time at which false imprisonment comes to an end is of great significant because it is at this moment that the six years statute of limitation starts ticking. Generally, false imprisonment ends when the restrained person is allowed to go freely without restrictions. However, in the case of someone who is incarcerated by a police officer, things are a bit different. False imprisonment may either end when the detainee is released or when the detainee is brought before the court. What this means is that in the event the detainee is remanded upon appearing in court, thereafter, the detainee has to seek redress through malicious prosecution. Either way, time still begins to tick after the detainee is released from lock-up.

Malicious prosecution

Malicious prosecution occurs when an individual knowingly and with malicious intent initiates baseless litigation against another individual. For there to be a successful claim for malicious prosecution the following four elements must be proven by the claimant:

(i) that a criminal charge was brought against the claimant; and

(ii) that the claimant was acquitted of that criminal charge, or that the charge was determined in his favour; and

(iii) that the charge was brought, either without reasonable and/or probable cause, or, that the prosecutor was actuated by malice; and

(iv) that the claimant suffered damage as a result.

There is relatively recent case law which established the fact that malicious prosecution may also arise from civil litigation.

Point (iii) above is the most difficult to prove and often represents the stage at which the claimant’s case falls apart. Even if the court was to accept that a claimant is entirely innocent of the charges brought against him, that does not mean there was malice in having prosecuted him, or that there was a lack of reasonable and probable cause for having prosecuted him. Mere proof of acquittal, or insufficient evidence having been led by the prosecution against the accused at trial, is not enough. A great significance, in considering malice on the part of the prosecution, is often given to what was the material that was before the prosecutor when the accused was acquitted or when the criminal charge ended in the claimant’s favour.

The claimant is expected to give some evidence to establish an absence of reasonable and probable cause operating on the mind of the prosecution. To do this the claimant must show the circumstances in which the prosecution was instituted and how this could have led a reasonable man to believe the prosecution acted with malice or without probable cause.

The statute of limitation in this regard starts ticking the day that the claimant was acquitted of the criminal charge, or that the same was otherwise determined in his favour. As such, the claimant has six years from said date to bring a claim.

There is no guaranteed outcome in law; therefore, it is important that you seek legal advice from an attorney-at-law to assess the strength of your case.

Clayton H Lawrence is an attorney-at-law. This article does not constitute legal advice. Send comments to the Jamaica Observer or clawrence_legal@yahoo.com.