Jasper Gold (instructed by the Government Legal Department) represented the Ministry of Justice, who were sued by Mr Chasey McIver for false imprisonment in a case which raised a novel issue at the intersection of tort and public law.
Mr McIver was recalled to custody when his licence was terminated following two positive roadside saliva swipes for cocaine when he was stopped by the police while driving. Mr McIver maintained he had not taken cocaine, and relied on negative blood tests which became available later, as well as alleging that the recall process was flawed and did not take his explanation for the positive tests into account.
The legally novel point, on which the high court had recently observed there was no authority, was: if the recall was unlawful (as a matter of public law, judged on the Wednesbury standard), did this mean that the resultant imprisonment was unlawful?
HHJ Saunders, sitting in Central London County Court, held that the recall decision had been lawful, but went on to consider the legal position if the recall had been unlawful. He held that the ingredients of the tort of false imprisonment were not met as the imprisonment did not lack lawful authority, instead being authorised pursuant to the original sentence. This means that even when a recall decision is unlawful in the sense that it would fall to be quashed if brought before the Administrative Court, the resultant imprisonment will not be false imprisonment, and will not sound in damages in tort.
