An eight-hour nightly curfew, enforced by an electronic tag and the threat of prosecution or further immigration detention, was imprisonment at common law. The Supreme Court dismissed the Secretary of State’s appeal and refused to narrow that long-standing concept so that it matched deprivation of liberty under article 5 of the European Convention on Human Rights.
Following release from immigration detention, Mr Jalloh was required by a Home Office notice to stay at a specified address every night from 11 pm to 7 am. Electronic monitoring and the threat of prosecution or detention reinforced the requirement. The statutory power relied on did not authorise a curfew.
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The tag was fitted on 3 February 2014. The curfew lasted until 14 July 2016, 891 days in all. The claimant was away for the whole curfew period on 37 occasions and for part of it on 108 occasions, but he broadly tried to comply and limited his social life. After the Court of Appeal held in R (Gedi) v Secretary of State for the Home Department that paragraph 2(5) did not authorise a curfew, Collins J ordered this curfew to be lifted. A later attempt to impose the same restriction under a different statutory power was also stopped by the court.
Lewis J held that the curfew was imprisonment and, after a trial, awarded £4,000 damages for false imprisonment. The Court of Appeal upheld that finding of liability and rejected the claimant’s challenge to the sum awarded. The Secretary of State appealed, arguing that the curfew was not imprisonment at common law and, alternatively, that the common law should now be aligned with article 5.
What amounts to imprisonment
Lady Hale, with whom the other members of the Court agreed, treated the essence of imprisonment as being made to stay in a particular place by another person. The means of keeping someone there may be locks, guards, or threats of force or legal process. The person must be obliged to remain whether or not he wishes to do so. Voluntary compliance with a request is not enough, and a merely partial obstruction of movement is not imprisonment. A person who can leave by another available route, or who has agreed to the terms on which he entered, is not imprisoned.
Those limits did not help the Secretary of State. She had specified both the place and the hours, and there was no suggestion that the claimant could spend those hours elsewhere without permission. This was unlike a case in which the claimant could cross by another route or had accepted a condition of entry. Occasional breaches made no difference to the periods when he stayed. While he was away he was not imprisoned, just as a prisoner absent from an open prison is not imprisoned during the absence; while he was at the address during the curfew he was.
The Court of Appeal had been right to treat his compliance as enforced rather than voluntary. The tag meant that leaving would be detected, after which the monitoring company would telephone him. He had been warned in clear terms of a criminal penalty, and he knew that breach could also lead to detention again under the 1971 Act. The restriction was backed by the full claimed authority of the State. The idea that he was a free agent, able to come and go as he pleased, was completely unreal.
Why the common law was not aligned with article 5
The Secretary of State’s alternative argument, which had not been open below, was that imprisonment should now be confined to deprivation of liberty under article 5. Strasbourg decides that question by looking at the concrete situation and at factors such as type, duration, effects and manner of implementation. The line between deprivation and restriction of liberty is one of degree. Earlier domestic authority had also recognised that common law imprisonment and article 5 deprivation of liberty need not coincide: a very short confinement can be imprisonment, while article 5 looks at a wider range of factors, and some common law justifications fall outside article 5(1).
The Court refused to make the change. Developing the common law to meet changing needs is one thing; restricting a classic protection so that it matches a different and more nuanced Convention concept would be a retrograde step. The Strasbourg approach exists because article 5 requires a distinction between deprivation and restriction of liberty. The common law has no need to draw that distinction, and it has long protected people against unlawful imprisonment by the State or by private persons. The Court of Appeal had been right that there can be imprisonment at common law without a deprivation of liberty under article 5.
Verdict: The Supreme Court unanimously dismissed the Secretary of State’s appeal. Compelled compliance with the unlawful curfew was false imprisonment at common law. The £4,000 awarded at trial stood.
