Trespass in English law

In English law, an assault means to act in such a way that the claimant or victim apprehends the application of immediate unlawful force upon themselves. The key elements of the tort are therefore that the defendant acts, and does so in such a way that the claimant is put in fear of "immediate physical violence". There is no requirement that actual damage be caused. In R v Costanza, the courts held that threats made by a stalker could be assault, while in R v Ireland,[10] the House of Lords said that in the right situation (specifically, harassing phone calls) silence could be enough.[1] In some situations an act which would otherwise be assault can be mitigated by the language used. In Tuberville v Savage,[11] the defendant reached for his sword and told the claimant that "if it were not [court] time, I would not take such language from you"; it was held that despite the threatening gesture, this meant the claimant was not in immediate danger. The actions must give the claimant reasonable expectation that the defendant is going to use violence; if a fist was raised in front of the claimant, it could be enough. If the fist was raised from inside a police van following arrest, it would not.[12]

Battery is defined as "the intentional and direct application of force to another person", and has three elements; force, direct application and intent. The courts have also added a requirement of "hostility" or lack of consent in many cases. As with assault, there is no need to show that damage was caused.[2] Any application of physical contact, regardless of harm caused, can constitute force. In Collins v Wilcock,[13] a female police officer took hold of a woman's arm, intending to talk to her on suspicion of soliciting contrary to the Street Offences Act 1959. The woman scratched the female police officer's arm. As the female police officer had gone beyond her duties in grabbing the woman (since she did not intend to charge her with an offence, but was still using force) it was held that this constituted "force". Goff LJ wrote that the fundamental principle is that any person's body is inviolate, except in situations where the bodily contact "[falls] within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life".[4]

The defendant must intend to carry out the act which constitutes trespass for it to be valid. This does not require the defendant to intend harm; in Nash v Sheen,[14] a hairdresser who put a tone rinse on the claimant (when the claimant had given permission for a perm) was found liable in battery after it caused a rash. In Livingstone v Ministry of Defence,[15] the defendant, a soldier, had intended to shoot someone with a baton round, which went wide and hit the claimant. Even though he had not intended to hit the claimant, it was held that because he had intended to fire the baton round in the first place, he was liable.[lower-alpha 1] The final element occasionally added to the tort is the hostility of the action; in Wilson v Pringle,[17] it was decided that the onus is on the claimant to show that the force was hostile, except in such situations where it is self-evident. This was undermined by R v F, in which Goff wrote that he "respectfully doubts whether [the requirement to show hostility] is correct", in line with his comment in Collins.[18]

An extension to battery was given in Wilkinson v Downton,[19] where emotional distress was considered a possible battery despite no physical force being used. The defendant told the claimant (as a practical joke) that her husband had been seriously injured. As a result, the claimant suffered a nervous disorder and was thought to be suicidal for a time. It was held that such an action will be valid under battery where it is calculated to cause physical damage and does so. The principle was extended by Khorasandjian v Bush,[20] in 1993, where there was a risk that the defendant's actions would cause physical or psychiatric damage. The tort set down in Wilkinson is normally considered a separate tort of intentional infliction of emotional distress.[21]

False imprisonment is defined as "depriving the claimant of freedom of movement, without a lawful justification for doing so". Unlike assault and battery, false imprisonment is a tort of strict liability: no intention on the behalf of the defendant is needed, but the imprisonment must be caused by a deliberate act (as decided in Sayers v Harlow Urban District Council, where a faulty lock, not a deliberate act from another party, caused a woman to become trapped in a public toilet)[22] and must be unlawful. The imprisonment of a lawfully convicted criminal is not false, nor is the arrest of a suspect if done in line with the Serious Organised Crime and Police Act 2005 and Police and Criminal Evidence Act 1984.[3]

Imprisonment is considered any restraint on the freedom of movement, for however short a time. In Austin and another v Metropolitan Police Commissioner,[23] seven hours was considered a sufficient period of time to constitute false imprisonment (although the claim was ultimately rejected due to the circumstances of a potentially hostile crowd of demonstrators).[24] The requirement is complete restraint; in Bird v Jones,[25] the defendant fenced off part of a footpath for use as a viewing point for a boat race. The claimant, accustomed to walking across it, climbed into the enclosure; the defendants refused to let him pass. They were found not liable for false imprisonment, as another way across existed. There is on the other hand no requirement that the claimant actually attempt to leave, as in Grainger v Hill,[26] or even that he knows he is being prevented from leaving, as in Meering v Graham-White Aviation Co Ltd.[27][28]

There are many defences to trespasses against the person; the stranger are the right of parents to commit assault and battery against their children for "chastisement" under the Children and Young Persons Act 1933, and the right of the captain of a ship to discipline his crew, as in Hook v Cunard Steamship Co Ltd.[29] There is also a right to eject a trespasser to land using reasonable force, and a defendant is also not liable for "inevitable accidents", as in Stanley v Powell, where a ricocheting pellet was ruled to be accidental.[30][31] Individuals and bodies will not be liable for imprisonment, battery or assault if doing so in line with statutory authorities, such as the Criminal Law Act 1967.[32]

A commonly used defence for the torts of trespass against the person is that of volenti non fit injuria, or consent. If a claimant participates in a sporting activity in which physical contact is ordinary conduct, such as rugby, they are considered to have consented. This is not the case if the physical contact went beyond what could be expected, as in R v Billinghurst,[33] or where the injuries were suffered not from the claimant's participation in the sport but inadequate safety measures taken, as in Watson v British Boxing Board of Control.[34] The same general rule applies to people who voluntarily take part in fights, although only if the injuries caused are proportionate, as in Lane v Holloway.[35] If the claimant is informed by a doctor of the broad risks of a medical procedure, there will be no claim under trespass against the person for resulting harm caused; the claimant's agreement constitutes "real consent", as in Chatterton v Gerson.[36][37] Consent for medical procedures is different in cases where the claimant does not have the mental capacity to consent. In F v West Berkshire Health Authority,[38] it was held that in such situations the requirements are that there "must be a necessity to act when it is not practical to communicate with the assisted person ... [and] the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person".[39]

Self-defence is also a valid defence to trespasses against the person, assuming that it constituted the use of "reasonable force which they honestly and reasonably believe is necessary to protect themselves or someone else, or property".[40] The force used must be proportionate to the threat, as ruled in Cockroft v Smith.[41] If the action is undertaken to prevent a crime, Section 3 of the Criminal Law Act 1967 permits it assuming that it is "reasonable under the circumstances".[42]

The main element of the tort is "interference". This must be both direct and physical, with indirect interference instead being covered by negligence or nuisance.[59] "Interference" covers any physical entry to land, as well as the abuse of a right of entry. If the person has the right to enter the land but remains after this right expires, this is also trespass. It is also a trespass to throw anything on the land.[60] For the purposes of trespass, the person who owns the land on which a road rests is treated as the owner; it is not, however, a trespass to use that road if public. In Hickman v Maisey,[61] it was established that any use of a road that went beyond using it for its normal purpose could constitute a trespass, but this was altered by DPP v Jones.[62] Lord Irvine, giving the leading judgment, said that "the public highway is a public place which the public may enjoy for any reasonable purpose, providing that the activity in question does not amount to a public or private nuisance and does not obstruct the highway by reasonably impeding the primary right of the public to pass and repass; within these qualifications there is a public right of peaceful assembly on the highway".[63]

There are several defences to trespass to land; licence, justification by law, necessity and jus tertii. Licence is express or implied permission, given by the possessor of land, to be on that land. If a licence is lawfully revoked,[64] a licence-holder becomes a trespasser if they remain on the land. Justification by law refers to those situations in which there is statutory authority permitting a person to go onto land, such as the Police and Criminal Evidence Act 1984, which allows the police to enter land for the purposes of carrying out an arrest. Jus tertii is where the defendant can prove that the land is not possessed by the claimant, but by a third party, as in Doe d Carter v Barnard.[65] The exception to this defence is if the claimant is a tenant and the defendant a landlord who had no right to give the claimant his lease.[66] Necessity is the situation in which it is vital to commit the trespass; in Esso Petroleum Co v Southport Corporation,[67] the captain of a ship committed trespass by allowing oil to flood a shoreline. This was necessary to protect his ship and crew, however, and the defence of necessity was accepted.[68]