LORD PORTER. (reading the lead judgment)
My Lords, the problem raised in this matter requires a determination by your Lordships’ House of the principles on which and the circumstances in which the arrest of those suspected of felony can be justified in a case where no warrant has been issued, and it affects, I think, both the obligations of the police and those of private persons. The solution must, therefore, lead to a careful inquiry which is not rendered the less anxious by the fact that the appellants alone were represented in the argument before your Lordships or the fact that the sum at stake is a small one. When the liberty of the subject is at stake questions as to the damage sustained become of little importance.
The appeal is from an order of the Court of Appeal of March 14, 1951, in so far as it affirms the judgment of Donovan J. on an issue as to false imprisonment. The circumstances under which the claim arises are undisputed.
The respondent, Mrs. Tims, and her daughter visited the calendar department of the appellants’ store in Oxford Street in the afternoon of December 16, 1948, and whilst they were there Miss Tims was seen by a Miss Wheeler, one of the appellants’ private detectives, to steal four calendars. As Mrs. and Miss Tims were leaving the premises another private detective joined Miss Wheeler and the two together followed the mother and daughter along Oxford Street to Messrs. Littlewoods’ store about three or four hundred yards distant. On the way Miss Tims transferred the four calendars to a paper bag which her mother was carrying. At Littlewoods Miss Tims stole a table cloth and this, too, she placed in her mother’s bag before leaving the store. When Mrs. and Miss Tims had come out into the street again one of the two detectives accosted them, said they had stolen the calendars, and asked them to come with her.
The evidence established that the accusation of theft was made in the presence of both the accused and, though the mother is deaf, sufficiently loudly to give her some idea of the charge which was being made. This was the conclusion reached by the Court of Appeal. The respondent, on the other hand, maintained that she had not been informed at first why she was being taken back to the appellants’ premises, and the jury accepted her evidence. Her contention accordingly was that she had been arrested without being told what her alleged crime was and that therefore, under the decision in Christie v. Leachinsky, the arrest was wrongful. It is plain, however, that she knew exactly what the charge was by the time the party had returned to the appellants’ store. Indeed, the jury have found that one of the detectives then said: “Where is the stolen stuff?” The learned judge, however, as a result of the jury’s answers to two questions put by him, held the appellants liable on the issue of false imprisonment on the ground that Mrs. Tims was not informed at the first opportunity that she was accused of stealing. On the other hand, it is clear from the daughter’s evidence that the accusation of stealing was made in her presence and that of her mother. I quote from her cross-examination:
“(Q.) Whatever was said, this is quite clear, is it not, that it was said in the presence and hearing of both you and your mother?
(A.) Yes.
(Q.) And whatever was said, it was made quite clear that you were being accused of stealing?
(A.) As I have already said.”
That testimony makes it apparent that the crime for which the arrest was made was plainly referred to. The respondent, it is true, denied all knowledge of the accusation until later, but she was deaf and there is nothing to indicate that the detectives had any reason to suspect that she could not hear what was said. They cannot, therefore, be at fault if Mrs. Tims did not hear. In my opinion the decision in Christie v. Leachinsky,has no bearing on such a case. I make these observations lest it should be thought that full consideration had not been given in your Lordships’ House to the argument which prevailed before Donovan J., but indeed this aspect of the case is only a matter for consideration inasmuch as, if the respondent had taken part in the argument before your Lordships, she might have defended Donovan J.’s decision in her favour on that ground.
After making the charge the two detectives took the respondent and her daughter back to the office of the chief store detective in the appellants’ store, and they were detained there against their will until the chief detective, a Miss Pearce, and a managing director had been summoned to the office and an account had been given to them of what the detectives had observed. Miss Tims undoubtedly protested that her mother was some 10 to 15 feet distant from her when the calendars were taken, and the jury have so found, but equally it is clear that the calendars were at a later time placed in the mother’s bag and were present in it when the arrest was made and found in it at the chief detective’s office.
Some difference appears to exist as to the length of time during which the two women were detained at the chief detective’s office. Miss Tims said it was not less than an hour, and the jury, in answer to a question put to them in the form: “Was the plaintiff detained against her will in John Lewis’s for an hour or so before the police were summoned?” replied “Yes.” The exact length of the detention is, in my view, immaterial in the circumstances of this case, but the estimate of an hour or so is, in my view, not established by the evidence. No doubt it seemed a long time to Miss Tims, but her own evidence is that she and her mother were arrested sometime between 3.30 p.m. and 4 p.m., the police evidence called for the respondent is that they were summoned at 4.10 p.m. and, after going to the office and hearing the story and accompanying the accused to the station, they reached the station at 4.30 p.m.
The length of detention would only be material if it had been alleged that the two women were detained beyond such time as was reasonable to acquaint a director or manager of the circumstances and obtain his instructions whether to prosecute or not. No such suggestion was made, no evidence was called to deal with the point, and the respondent is, therefore, precluded from relying on it now. I only mention it because there may be cases in which it could be contended that, though a reasonable amount of detention would be justified, the actual detention was unduly long. In such a case it would be the duty of the judge to determine whether there was or was not evidence from which it could be deduced that the detention was unduly long, and, if he held that there was, to leave the question to the jury whether in fact it was longer than was justified. As I have said, however, no such inquiry is called for in the present case.
The evidence establishes that Miss Tims protested that her mother was in no way concerned with the theft, but Mrs. Tims herself seems to have offered no explanation of the presence of the stolen articles in her bag either to the detectives or at the office or before the court, though it is in evidence that she did say in the presence of a police constable: “I did not have anything to do with it.” Her failure to do so is, of course, not material as in any way establishing her participation in the crime, but it is a reason for accepting the view that the representatives of John Lewis genuinely thought her guilty.
The sequence of events after the return to the chief detective’s office is that first she and afterwards a managing director were sent for and informed of what had occurred, and that the police were then sent for and arrived shortly after 4.10 p.m. though they were not immediately available on the first summons. The two accused were then taken to the police station, charged and released on bail.
Next morning they were brought before the magistrate. At that hearing the appellants were represented by a solicitor, and the respondent was unrepresented. Inasmuch as Mrs. Tims was not beside her daughter at the moment when the calendars were taken, the solicitor appears to have thought that a jury might acquit the mother and therefore the charge against her should not be persisted in. He accordingly asked for a remand. It was suggested that as he thought a jury might not convict and then asked for a remand instead of withdrawing the charge at once, his action supported an allegation of malice with which the appellants would be infected and would therefore be liable as having instituted, or at any rate persisted in, a malicious prosecution. I see no reason for supposing that the solicitor thought that the respondent was not guilty though he may have thought that a jury might not convict. But in any case John Lewis and Co. Ld. are the persons sued, not their solicitor, and, as the Lord Chief Justice has pointed out, they never instigated him to continue the prosecution after he thought it might not succeed. His caution is no evidence of malice and no allegation of malice is made against the two detectives or any of the other representatives of the appellants.
The allegation of defamation is quite untenable, as both courts below have held, and against this part of the decision there is no appeal.
There remains only the question, therefore, whether the appellants were rightly mulcted in damages for false imprisonment because their servants did not take the respondent immediately before a magistrate, but brought her back to a part of the premises of John Lewis and Co. Ld.
It was maintained on her behalf that though an arrest might originally be justified, yet it became wrongful if the person accused was not taken forthwith before a justice of the peace. The appellants admitted that they could not detain her for an unreasonable time before handing her over to a constable or a gaoler, or bringing her before a justice, but contended that their obligation was only to act within a reasonable time and that an immediate and direct journey to the magistrate’s court was not required. Of the three courses which the respondent asserted were open to them, commitment to prison may today be neglected: the accused would not be received nor the prison available. The choice lies between an immediate bringing before a magistrate or possibly handing over to a police officer and the like course taken within a reasonable time.
As I have said, if the latter is the true obligation and if the appellants’ representative was justified in bringing back the respondent to John Lewis and Co. Ld.’s premises in order to get the advice of a manager and to obtain, if he thought fit, his authority to prosecute, there is no ground for saying that the time taken was unreasonable. But it is said on behalf of the respondent that it is not enough for the arrester to bring the person whom he has arrested before a justice or the police within a reasonable time: such a person must be brought before them “immediately” or “forthwith.” If not, the arrest is wrongful.
The Court of Appeal has found the appellants liable on this short ground, and on this short ground only. Their view has been expressed by the Lord Chief Justice in a passage of his judgment, which I venture to quote: “The law, as I understand it, is this, that if a person, be he a constable or a private person, arrests without warrant – and I emphasize those words because if there is a warrant it makes all the difference – although the arrest may be perfectly justified on the ground that a felony has been committed and that there is reasonable and probable cause for believing that the person arrested has committed the offence, it is the duty of the constable or the private person forthwith to take the arrested person before a justice – that was the original law – but now, I think, to a police station, before a police officer. I say that because since the Summary Jurisdiction Act, 1879 (see section 38), as amended and extended by other Acts, a superintendent or inspector of police, or other officer of equal or superior rank, has power, where a person is brought to the police station having been arrested without a warrant, to grant bail. Obviously, the reason why the common law required that a person should be forthwith taken before a justice was because he was being imprisoned, in the sense that his liberty was being curtailed; he had been taken into custody, and it was therefore for a justice at once to consider whether or not the case should be investigated there and then, as might have been done in the old days when he sat in his own justice room, and was constantly done, or whether he should grant bail. And now that a police officer has statutory powers to grant bail, he will do so, except in cases of gravity or where for good reason he may think it would be unsafe to grant bail. In an ordinary case of a crime of this sort a police officer is as efficacious, for the protection of the subject, as a justice, and for that reason the arrested person should be taken forthwith before a police officer.” The learned Chief Justice supported this view by the citation of three cases and added10: “I am of the opinion that the taking of these two women to the stores of John Lewis and Co. Ld. instead of taking them direct to a metropolitan police station or to a metropolitan police court could not be justified and that therefore, technically, there was a false imprisonment of the plaintiff.”
Before I analyse the cases and consider the history and principles which lie behind the problem presented to your Lordships, it is, I think, expedient to set out the grounds on which the appellants justify their action. It is undesirable, they say, that their detectives, who must of necessity be subordinate officials, should be entrusted with the final decision whether a prosecution should take place or not. Such a decision should only rest with a senior and responsible officer and after he has heard any explanation which the accused person has to offer. Indeed, it is in the interest of the person arrested that, however conclusive the evidence should appear against him, he should have the opportunity of stating what he has to say and that in a proper case he should avoid the publicity of a public trial. The complaint here is not that the appellants acted unreasonably or harshly or detained the respondent for an unnecessarily long time, but only that it is the law and expedient in the interests of the public generally that the supposed criminal should be brought before the court as speedily as possible and afforded the opportunity of applying for and being granted bail. Bearing these considerations in mind, I deal first with the three cases on which the Court of Appeal primarily relied.
The first is Wright v. Court, decided in the year 1825, where it was held that a constable arresting a man must take him before a justice to be examined as soon as he reasonably can and that detention for three days in order to enable a person whose goods had been stolen to collect and bring his witnesses was not justified. The judgment says: “It is the duty of a person arresting anyone on suspicion of felony to take him before a justice as soon as he reasonably can, and the law gives no authority even to a justice to detain a person suspected, but for a reasonable time till he may be examined.” A report of the same case in the Law Journal Reports says13 the arrested man must be brought before the justice “within a reasonable times.”
For these propositions Comyns’ Digest (1822), 5th ed., vol. IV, pp. 471-2 (H.4) and (H.5), is referred to. The first passage says: “A man may be imprisoned by warrant of law, for that is a lawful process: as, by a constable ex officio, who upon complaint of a felony may commit the offender to an house, gaol, or stocks, till he can be brought before a justice of the peace,” and adds: “So, if a felony be committed, the offender may be apprehended by any private person.” The later passage says: “The law gives no authority to a justice of the peace to detain a person suspected, but for a reasonable time till he may be examined.” It will be observed that none of these passages use the words “immediately” or “forthwith,” though they leave open the question what is a reasonable time. Moreover, the three days’ delay in that case was not for the purpose of bringing the man arrested before the justices, but of collecting evidence.
The second case was Hall v. Booth,decided in 1834. “A private person,” the side-note says, “cannot apprehend another, upon a suspicion of felony, for the purpose of taking him to the place where the theft was committed, in order to ascertain whether he was the thief.” But, in those circumstances, the plaintiff was not arrested as a felon, but was taken to the place where the felony was committed to find out whether he had committed the crime or not. Accordingly, Lord Denman C.J. very naturally said15: “You may go to inquire, but you cannot take him.” In fact, however, the complaint appears to have been that no adequate grounds for suspicion had been set out in the plea, and leave to amend was given, a circumstance which seems only to be consistent with a complaint that the pleadings were not in order. No question as to the time allowable for taking an arrested man before a justice was raised: he was taken to a shop for the purpose of ascertaining if he was the thief and was not arrested as a felon.
The third case is Morris v. Wise,decided in 1860. The action was for false imprisonment and the plea not guilty by statute. The statute in question was (after amendment) the Larceny Act, 1827 (7 and 8 Geo. 4, c. 29), and the charge was of stealing grass, a crime dealt with by section 43 but not made a felony in case of the first offence. Apart from the Act, therefore, there would be no power of arrest. By section 63, however, of the same Act a special power of arrest was given to any peace officer or to the owner of the property in question in respect of any person found committing any offence punishable either on indictment or on summary conviction “by virtue of this Act.” This right, however, was subject in express words to the obligation that the offender should be immediately apprehended and forthwith taken before some neighbouring justice of the peace, and it will be observed that the power of arrest is only given to a limited type of individual and even then only if the offender is taken in the act. Byles J., who tried the case, pointed out that the plaintiff had not been taken straight to the magistrate but to the defendant’s house, and left the question to the jury to say what damages should be given for the taking of the plaintiff by an indirect route. Under this direction the jury awarded forty shillings.
The decision, therefore, has no direct bearing on the obligations imposed by the common law and clearly does not limit the general power of arrest. It would be an odd result of the Act if in all cases of felony no one but a constable or the owner of stolen property could arrest, and only then if the person arrested were taken “flagrante delicto.” The fact is that the Act does not lessen the common-law power of arrest, but on the one hand widens it so as to include non-felonious offences, and on the other limits the persons who are entitled to arrest and subjects them to the obligation to arrest immediately and bring the person concerned before a magistrate forthwith. In my view, therefore, the cases do not of themselves bear out the proposition that an arrested man must be taken before a justice of the peace immediately.
My Lords, similar additional powers of arrest are given by the Larceny Act, 1861, s. 103, and the Larceny Act, 1916, s. 41, and by many other Acts, and are subject to similar restrictions. I do not need to discuss them further, since the same considerations apply to them as to the Larceny Act, 1827.
If, then, the three cases which have been cited are not authorities that an arrested person must be taken immediately before a magistrate, it is necessary to examine the practice which has obtained in this country both before and after the Acts and cases cited.
Where the right of arrest is given to a private person, it is obviously desirable that the arrested man should be entrusted to some official care as soon as possible, and statements to that effect are to be found in, I think, all the textbooks, old or new. But it does not appear that in earlier days it was essential that the accused man should be brought before a magistrate in order that he might be bailed.
The practice is set out in Hawkins’s Pleas of the Crown (1824), 8th ed., vol. II, p. 174: “It seems to be agreed by all the old books, that wheresoever a constable, or private person, may justify the arresting another for a felony or treason, he may also justify the sending or bringing him to the common gaol; and that every private person has as much authority in cases of this kind as the sheriff or any other officer, and may justify such imprisonment by his own authority, but not by the command of another. But inasmuch as it is certain, that a person lawfully making such an arrest may justify bringing the party to the constable, in order to be carried by him before a justice of peace, inasmuch as the statutes of 1 and 2 Ph. and Mary, c. 13, and 2 and 3 Ph. and Mary, c. 10, which direct in what manner persons brought before a justice of peace for felony shall be examined by him in order to their being committed or bailed, seem clearly to suppose, that all such persons are to be brought before such justice for such purpose; and inasmuch as the statute of 31 Car. 2, commonly called the Habeas Corpus Act, seems to suppose, that all persons who are committed to prison are there detained by virtue of some warrant in writing, which seems to be intended of a commitment by some magistrate, and the constant tenor of the late books, practice, and opinions, are agreeable hereto: it is certainly most advisable at this day, for any private person who arrests another for felony, to cause him to be brought, as soon as conveniently he may, before some justice of peace, that he may be committed or bailed by him.”
To the like effect is Hale’s Pleas of the Crown, 1800 ed., vol. II, p. 80, in which it is said of private persons using their powers of arrest: “Now what is to be done by a private person, that thus arrests a party upon suspicion of felony; if after such an arrest the party arresting discharge him without bringing him to a justice or constable, he shall be punished for the escape at the king’s suit, but it makes not the imprisonment unlawful as to the party. 10 E. 4. 17, b. Or he may carry him to the gaol, and if the gaoler receive him, he that made the arrest is discharged, 10 E. 4. 18, a, but he must not carry him to a gaol of any other county than where he is taken, unless either there be no gaol in the county, or that he cannot for the danger of rebels bring him to that gaol. 11 E. 4. 4. Or he may deliver him to the constable of the vill, and that is a sufficient discharge. 10 E. 4. 17, b. But the proper way is to bring him to a justice of peace, who may commit, or discharge, or bail him, as the case requires.”
Hawkins in his turn quotes from Dalton’s Country Justice (1727), p. 583, where it is said: “But in all these cases before, where a private man shall arrest another, he ought thereupon to commit the prisoner to the gaol, or to carry and deliver him to the constable, or to some other officer, etc.” Dalton himself refers to Finch’s Common Laws of England. I have the first English edition printed in 1759, and must therefore refer to that, but it was already printed in French. The English edition says, at p. 368: “Everyone who suspects another of a felony ... may arrest him; so that thereupon he commit him to gaol.” To the same effect is Sheppard’s Grand Abridgment (1675), vol. II, p. 302, where, dealing with the right of a private person to arrest, he ends: “... he may of his own head, without any warrant from a justice of the peace, or officer, apprehend the felon, and carry him to a justice of the peace, or other officer, or to prison.” Finally, in Burn’s Justice of the Peace (1869), 30th ed., vol. I, pp. 305-6, the authority of which has been recognized in your Lordships’ House in Christie v. Leachinsky, it is stated: “When a private person has apprehended another for treason or felony, he should deliver him over to a constable, or carry him before a magistrate or to any gaol in the county. ... It is rarely the case that a private person carries the party to gaol. He cannot apprehend and discharge the party at his own pleasure. ... Neither can he, it seems, apprehend and deliver the party over to a constable only, but he must follow up the charge by attending before the magistrate, and then only he ceases to be an actor.” One may perhaps add the authority of Cokayne v. Manyngham,18 in which the court held that: “If a man arrest another for felony and deliver him to the constable, that then he is loyally discharged even if the constable has let the prisoner go at large and has not led him to the gaol.”
My Lords, I quote these authorities not for the purpose of suggesting that the obligation to bring an arrested person before a magistrate within a reasonable time has been lessened or abolished or of putting forward a contention that the duty may be laxly discharged, but in order to establish that the obligation is not in terms to proceed before the magistrate forthwith or immediately as certain special Acts require. The object of bringing a man arrested before a magistrate is not, as I view it, to ensure that the accused man may be bailed at once. The right in the case of anyone other than a justice of the peace to give bail did not exist before the Summary Jurisdiction Act, 1879, and even then the provisions of section 38 only gave the right to grant bail to police officers if it was not practicable to bring the alleged offender before a court of summary jurisdiction as soon as practicable after he is taken into custody. Nor has the enlargement of those powers by later Acts effected any alteration in the length of the time given to bring the arrested man before a magistrate. Indeed, under the earlier procedure the individual who arrested was given the choice of three alternatives: gaol, the constable, or the justice. Today the gaol would not receive the prisoner, and I think that Burn’s requirement is right:- a handing over to a constable is not enough – the arrester is not free of his obligation until he has proceeded before a magistrate. Nevertheless, the mere fact that the handing over to a constable is one of the methods prescribed for ridding oneself of the prisoner indicates a less stringent obligation than to proceed before the justice forthwith.
The two methods of approach are perhaps best seen by comparing the statement contained in the article on Criminal Law in Halsbury’s Laws of England, 2nd ed., vol. IX, pp. 96-7, para. 122, a subject which was entrusted to the late Avory J. It is said: “A private person who arrests another under a common-law power can only detain him for a reasonable time, and must then either set him free or hand him over to a constable or take him before a justice of the peace.” The statement proceeds: “If the suspected offender is not liberated and is not taken before a justice with reasonable expedition and by a direct road, the person who arrests is liable to an action of trespass.” For the latter statement Wright v. Court is referred to, but that case merely speaks of a reasonable time. Whether the time taken falls within that requirement is a matter of fact. No doubt the route taken is one matter for consideration, but in the present case the learned judge who tried the case did not consider the time too long or the route adopted and the delay in proceeding to John Lewis and Co.’s office unreasonable.
As against this statement of the law may be contrasted that contained in Clerk and Lindsell on Torts, 10th ed., p. 308, where it is said: “The statutes authorizing arrests without warrant generally provide that the arrested party shall be taken immediately or forthwith before a justice of the peace, but these provisions are only declaratory of the common law. So jealous is the law on this point that if the prisoner be conducted by a circuitous instead of the ordinary direct road he may recover for a false imprisonment.” For this statement Morris v. Wise is quoted. That case, however, as is pointed out above, was not one of arrest under the common law, and I see no reason for assuming that statutes which enlarge the power of arrest so as to include misdemeanors, but limit the persons to whom the power of arrest is granted, are merely declaratory of the common law right, or that the same principles apply to both classes. What the common law requires is that, if a man be arrested on suspicion of felony, he should be taken before a tribunal which can deal with his case expeditiously.
The question throughout should be: Has the arrester brought the arrested person to a place where his alleged offence can be dealt with as speedily as is reasonably possible? But all the circumstances in the case must be taken into consideration in deciding whether this requirement is complied with. A direct route and a rapid progress are no doubt matters for consideration, but they are not the only matters.
Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence. But there are advantages in refusing to give private detectives a free hand and leaving the determination of whether to prosecute or not to a superior official. Whether there is evidence that the steps taken were unreasonable or the delay too great is a matter for the judge. Whether, if there be such evidence, the delay was in fact too great is for the jury: see Cave v. Mountain.
In the present case the complaint was, as I have said, not that the detention was too long but that a direct route from the place of arrest to the magistrate’s court had not been taken. In my opinion, that is not the vital question. Rather it is whether, in all the circumstances, the accused person has been brought before a justice of the peace within a reasonable time, it being always remembered that that time should be as short as is reasonably practicable.
I would allow the appeal.
My Lords, my noble and learned friend, LORD COHEN, asks me to say that he has had an opportunity of reading my opinion and he agrees with it.
LORD OAKSEY.
My Lords, I have had the advantage of reading the opinion of the noble and learned Lord on the woolsack, and I agree with it.
LORD MORTON OF HENRYTON.
My Lords, the question of law which arises on this appeal may be stated as follows: When one person arrests another without a warrant in exercise of the common-law power of arrest, is it the duty of the person making the arrest to take the arrested person before a justice or to a police station “forthwith,” or is it the duty of the person making the arrest to take the arrested person before a justice or to a police station “as soon as he reasonably can”? The latter phrase is quoted from the judgment of the court in Wright v. Court.
The authorities on this subject have been fully discussed by my noble and learned friend on the woolsack. I agree with his reasoning and with his conclusion, and I desire only to add a few words on the further question, whether the two detectives took the respondent to the Marylebone Lane Police Station as soon as they reasonably could. In my opinion, they did. It was a regulation of the appellants that only a managing director or a general manager of the appellants was authorized to institute any prosecution against any person. This being so, it was, I think, reasonable for the detectives to take the respondent to the office at the appellants’ premises for the purpose of getting authority for a prosecution. I cannot find any evidence that they went there for any other purpose. The case would have been a different one if they had gone there for the purpose of filling in gaps in the evidence: see Hall v. Booth and Morris v. Wise. On reaching the office, the detectives explained what they had seen to the appellants’ chief store detective and subsequently to Commander Newdegate, the managing director of the appellants’ store in Oxford Street. As soon as Commander Newdegate had authorized the prosecution of the respondent and her daughter on a charge of theft, the police were sent for and they arrived a few minutes later from the Marylebone Lane Police Station. The substance of the facts was told to the police officers, and the respondent and her daughter were taken to the said police station.
My Lords, it does not appear that any point was taken either before Donovan J. or in the Court of Appeal as to the length of time for which the respondent was detained at the office. The complaint was that she was taken there at all, instead of being taken direct to the police station. It is, I think, clear that Donovan J. attached no importance to the length of the detention, for the first question which he put to the jury in regard to the alleged false imprisonment was: “Was the plaintiff detained against her will in John Lewis’s for an hour or so before the police were summoned?” If the learned judge had attached any importance to the length of the detention, he would surely have divided this question into two parts: (1) Was the plaintiff detained against her will in John Lewis’s? (2) If so, for how long was she detained? Further, I think, it appears from the judgment of the Lord Chief Justice that he regarded the respondent’s case as being based on the fact that she was taken to the office, and not on the length of time during which she was detained there.
If the detectives acted reasonably, having regard to the regulation to which I have already referred, the further question must be considered whether the regulation was a reasonable one to impose on detectives whose duty it might be to arrest a suspected person. For if the regulation was such as to result in an unlawful infringement of the liberty of the subject, such infringement could not be excused on the ground that the detectives were merely carrying out the regulation.
In my opinion the regulation was a reasonable one. On this point I agree with the submissions of counsel for the appellants, which they summarized at p. 6 of their printed case as follows: “(A) It is undesirable that the power or duty to institute proceedings on behalf of corporations or other persons should be delegated to subordinate employees thereof or should be exercised by any but senior and responsible officers or representatives thereof. In the case of suspected shop-lifting, it is not or representative to decide whether a charge should be made, unless subordinate employees such as store detectives are entitled to take an arrested person back to the premises before he is handed over to the police. (B) It is in the interests of an arrested person himself that he should not be charged without being given an opportunity of offering any explanation or making any representation to a responsible officer or representative of the prospective prosecutors. It is to his own advantage that this opportunity should be given in the privacy of an office with the minimum possible number of persons present. This safeguard is especially important when the arrested person is very young or old or appears to be mentally unstable: in such cases it is in the public interest that a lenient and responsible discretion should be exercised before any charge is made.”
I would allow the appeal.
LORD REID.
My Lords, I concur.
Appeal allowed.