Detention of Private Persons by Private Persons as a Delictual Wrong: Liability for Deprivation of Liberty in Scots Law

Abstract

The Covid-19 pandemic which so drastically altered everyday life in 2020 has also given rise to a number of interesting jurisprudential issues. In September 2020, a large number of students at Manchester Metropolitan University were ostensibly forced into a localised quarantine and lock-down by their institution. Approximately fifteen-hundred students were sent an email by the University asking them to self-isolate for fourteen days to inhibit the spread of the Covid-19 virus. Many students later reported that they only became aware of the situation after security guards actively prevented them from leaving their halls of residence. In the immediate aftermath of this event, it has been reported that some students are considering legal action and seeking to raise claims of ‘false imprisonment’ against the institution. Universities across Scotland have faced similar issues to those in the rest of the United Kingdom, with ‘second waves’ of the virus having been reported in Aberdeen, Dundee, Edinburgh, Glasgow and St. Andrews. Unlike in England and Wales, however, ‘false imprisonment’ is not a nomen iuris known to Scotland. This does not mean that Scots law does not regard deprivation of liberty as actionable: merely that, rather than recognising a ‘strict liability’ torticle by that name, Scots law treats acts or omissions which lead to the deprivation of a person’s liberty as giving rise to delictual liability on a distinct legal basis. Affronts to one’s liberty are, according to Stair, ‘the most bitter and atrocious forms of injury’. The word ‘injury’ here is used by Stair as a term of art, denoting – as it did in MacKenzie’s Matters Criminal – ‘contumely or reproach’. In other words, ‘interference with the personal liberty of an individual which is not warranted by law will justify an actio iniuriarum for solatium’. Since cases concerning the wrongfully detention of one private person by another now occur only rarely in Scotland, there has been limited analysis of the juridical basis of any such claim. This essay is intended to rectify this lack of literature, by providing a modern account which places acts amounting to ‘wrongous detention’ within the taxonomy of iniuria within Scotland.