Jalloh, R (on the application of) v Secretary of State for the Home Department [2020] UKSC 4

The claimant was subject to an unlawful eight-hour daily curfew with electronic tagging for 891 days. The Supreme Court held this constituted false imprisonment at common law, as enforced compliance through threats of prosecution and detention amounted to confinement, regardless of whether it met the ECHR's deprivation of liberty test.

Facts

The claimant, subject to a deportation order, was released from immigration detention on 30 October 2013 and placed under restrictions purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971. These restrictions included an eight-hour daily curfew (11pm to 7am) enforced by electronic tagging. The curfew lasted 891 days until 14 July 2016. Following the Court of Appeal’s decision in R (Gedi) v Secretary of State for the Home Department, which held that the 1971 Act did not empower the Secretary of State to impose such curfews, the claimant brought judicial review proceedings claiming damages for false imprisonment.

The Curfew Regime

The claimant was fitted with an electronic tag and required to remain at his address during curfew hours. He was warned that breach could result in a fine up to £5,000 or imprisonment for up to six months. Though he breached the curfew on various occasions, he broadly sought to comply with it.

Issues

The Supreme Court addressed two main issues:

1. Whether the curfew constituted imprisonment at common law for the purpose of the tort of false imprisonment
2. Whether the common law concept of imprisonment should be aligned with the concept of deprivation of liberty under Article 5 of the European Convention on Human Rights

Judgment

Imprisonment at Common Law

Lady Hale, delivering the unanimous judgment, held that the curfew did constitute imprisonment at common law. She explained:

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 Court rejected the Secretary of State’s argument that the claimant’s compliance was voluntary:

There can 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… 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… The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.

Alignment with Article 5 ECHR

The Court declined to align the common law concept of imprisonment with the ECHR concept of deprivation of liberty. Lady Hale stated:

what Mr Tam is asking this Court to do is not to develop the law but to make it take a retrograde step: to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR.

She emphasised:

There is no need for the common law to draw such a distinction and every reason for the common law to continue to protect those whom is has protected for centuries against unlawful imprisonment, whether by the State or private persons.

Implications

This decision affirms that the common law tort of false imprisonment provides broader protection than Article 5 ECHR. It confirms that enforced compliance with restrictions through threats of legal consequences can constitute imprisonment, even without physical barriers. The judgment is significant for immigration law, establishing that unlawful curfews imposed on individuals subject to immigration control can give rise to claims for false imprisonment. It also preserves the distinct and protective role of the common law in safeguarding physical liberty.

Verdict: Appeal dismissed. The curfew constituted false imprisonment at common law and the common law concept of imprisonment should not be aligned with the ECHR concept of deprivation of liberty.

Source: Jalloh, R (on the application of) v Secretary of State for the Home Department [2020] UKSC 4