False Imprisonment – Unlawful Arrest

False imprisonment is the unlawful restraint of a person's freedom of movement without their consent and without lawful justification. It is both a tort (civil wrong) and, in some circumstances, a criminal offence.

What Constitutes False Imprisonment?

False imprisonment occurs when:

• A person is intentionally restrained or confined
• The restraint is total — the person has no reasonable means of escape
• The restraint is without lawful justification
• The person does not consent to the restraint

The restraint does not need to involve physical force — it can be effected by threats, intimidation, or the assertion of authority.

Unlawful Arrest

An arrest is unlawful if the arresting person does not have lawful authority to make the arrest. Police have specific powers of arrest under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). A citizen's arrest is only lawful in limited circumstances.

Remedies for False Imprisonment

• Damages — compensation for the loss of liberty, distress, and any consequential losses
• Habeas corpus — a court order requiring the person to be brought before the court and released if the detention is unlawful
• Criminal complaint — in appropriate cases, a complaint may be made to police

Relevance for Process Servers

Process servers must be careful not to restrain or detain a person in the course of effecting service. Blocking a person's exit or physically preventing them from leaving could constitute false imprisonment. If a person refuses to accept documents, the server should leave the documents in their presence and depart.