R (Jalloh) v Secretary of State for the Home Department

In R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4, the main issue was whether the meaning of 'imprisonment' at common law should be aligned with the concept of 'deprivation of liberty' in article 5 ECHR. In short, the answer was 'no'. Jalloh was subject to immigration restrictions, requiring him to report to an officer three times a week, to reside at a specified address, to wear an electronic tag, and to be subject to a curfew for 8 hours every day.

Lady Hale, giving the judgment of the Supreme Court, noted that the essence of the tort of false imprisonment is being made to stay in a particular place by another person whereas the Article 5 ECHR concept of deprivation of liberty is multi-factorial in its approach:

24… [The] essence of imprisonment is being made to stay in a particular place by another person.  The methods which might be used to keep a person there are 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 person is obliged to stay where he is ordered to stay whether he wants to do so or not.

Thus, the classic understanding of imprisonment is very different to the more nuanced ECHR concept and at common law there was no need to distinguish between restricting and depriving liberty. Moreover, common law imprisonment can be justified in circumstances not covered by the permissible grounds of Article 5. It follows that one could be imprisoned at common law without being deprived of liberty under Article 5. The opposite seemed most unlikely.[1] And the court held that Jalloh was imprisoned.

The opening of paragraph 24 might raise a wry smile amongst some, given what Lady Hale had said previously in Secretary of State for the Home Department v JJ & Ors [2007] UKHL 45:

What does it mean to be deprived of one's liberty? Not, we are all agreed, to be deprived of the freedom to live one's life as one pleases. It means to be deprived of one's physical liberty: Engel v The Netherlands (No 1)(1976) 1 EHRR 647, para 58. And what does this mean? It must mean being forced or obliged to be at a particular place where one does not choose to be: eg X v Austria (1979) 18 DR 154. But even that is not always enough, because merely being required to live at a particular address or to keep within a particular geographical area does not, without more, amount to a deprivation of liberty. There must be a greater degree of control over one's physical liberty than that. But how much? As the Judge said, the Strasbourg jurisprudence does not enable us to narrow the gap between "24-hour house arrest seven days per week (equals deprivation of liberty) and a curfew/house arrest of up to 12 hours per day on weekdays and for the whole of the weekend (equals restriction on movement)": [2006] EWHC 1623 (Admin), para 33, referring to the cases cited by my noble and learned friend Lord Bingham of Cornhill, at paras 14 and 18 above. (emphasis added)

However, it needs to be understood in this case that the Secretary of State was seeking to align the concepts of (objective) confinement for purposes of Article 5 ECHR and imprisonment for purposes of the tort of false imprisonment so that, in lay terms, he could get an easier ride from the courts than he thought he would get under Article 5 ECHR.

Whether that is necessarily correct is perhaps debatable, given that the courts have found that a deprivation of liberty can arise in a very short time indeed (see ZH in which the deprivation of liberty arose within 40 minutes).

However, on its face, the decision suggests that the intensity of the care arrangements need not be as severe for a false imprisonment claim as it is for an Article 5 ECHR claim, with the focus then being on whether the imprisonment was justified. Importantly, it also means that a deprivation of liberty is most likely to amount to imprisonment at common law with its more generous 6-year limitation period (by contrast to the position under the Human Rights Act: see this costly lesson learned), and the possibility of aggravated and exemplary damages depending on the facts.

[1] Lady Hale suggesting (at paragraph 34) that the question of whether the Court of Appeal in Austin and in Walker were right to say that there could be a deprivation of liberty without there being imprisonment at common law "in the light of the Bournewood saga, but it is not necessary for us to express an opinion on the matter."