R (Jalloh) v SSHD  UKSC 4
DOL and common law "The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights. A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus. He could, and can, also secure damages for the tort of false imprisonment. This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Regina (Jalloh (formerly Jollah)) v Secretary of State for the Home Department
2019 Nov 12; 2020 Feb 12
Lord Kerr of Tonaghmore, Lord Carnwath, Lord Briggs, Lord Sales JJSC, Baroness Hale of Richmond
Tort— Cause of action— False imprisonment— Secretary of State unlawfully imposing curfew restriction on foreign national— Curfew backed by electronic tagging and warning of criminal sanctions— Whether curfew constituting imprisonment for purposes of tort— Whether concept of imprisonment at common law to be aligned with Convention rights concept of deprivation of liberty— Human Rights Act 1998 (c 42), s 1, Sch 1, Pt I, art 5
The Secretary of State served the claimant with a notice of restriction under which a curfew was imposed on him pending his deportation, purportedly pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971. The notice, which contained an express warning of criminal liability in the event of breach, provided that the claimant was required to be present at a particular address between the hours of 11.00 pm and 7.00 am every day and was to be monitored by electronic tagging. Subsequently, in a different case, the Court of Appeal ruled that paragraph 2(5) did not empower the Secretary of State to impose a curfew. As a result the claimant sought damages for false imprisonment in respect of the 2½ years during which he had been subject to the unlawful curfew. The judge determined that the curfew had amounted to imprisonment for the purposes of the tort of false imprisonment and assessed damages at £4,000. The Court of Appeal upheld his decision on both issues. The Secretary of State appealed to the Supreme Count against the finding that the curfew amounted to false imprisonment and raised the further argument that the concept of imprisonment at common law should be aligned with the concept of deprivation of liberty for the purpose of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
On hearing the appeal—
Held, appeal dismissed. (1) The essence of imprisonment was being made to stay in a particular place by another person. The methods which might be used to keep a person there were many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process. The point was that the person was obliged to stay where he was ordered to stay whether he wanted to do so or not. In the present case the Secretary of State defined the place where the claimant had to stay between the hours of 11.00 pm and 7.00 am. The claimant could go not somewhere else during those hours without the Secretary of State’s permission. There was a crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction. There could be no doubt that the claimant’s compliance was enforced. He was wearing an electronic tag which meant that leaving his address would be detected. The monitoring company would then telephone him to find out where he was. He was warned in the clearest possible terms that breaking the curfew could lead to a £5,000 fine or imprisonment for up to six months or both. He was well aware that it could also lead to his being detained again under the Immigration Act 1971. All of that was backed up by the full authority of the state. The claimant was not a free agent, able to come and go as he pleased. Consequently, the curfew amounted to imprisonment at common law (paras 24–27, 35).
(2) The concept of deprivation of liberty under article 5 of the Convention was multi-factorial and more nuanced than the concept of imprisonment under the common law. That was because the Convention jurisprudence drew a distinction between the deprivation and the restriction of physical liberty. For the common law to adopt the Convention approach would restrict the classic understanding of imprisonment which would be a retrograde step. There was no need for the common law to distinguish between deprivation and restriction of liberty and every reason for the common law to continue to protect those whom it had protected for centuries from unlawful imprisonment, whether by the state of private persons. It followed that there could be false imprisonment at common law without there being a deprivation of liberty within the meaning of article 5 of the Convention (paras 29, 33–35).
Decision of the Court of AppealM; B affirmed.
Robin Tam QC, Matthew Gullick and Emily Wilsdon (instructed by Treasury Solicitor) for the Secretary of State.
Dinah Rose QC and Jude Bunting (instructed by Saunders Law) for the claimant.
Reported by: Ms B L Scully, Barrister
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