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Jalloh (formerly Jollah)) (Respondent) v. Secretary of State for the Home Department (Appellant) - (12 Feb 2020)

A curfew enforced by electronic tagging, clocking in and clocking out, and arrest or imprisonment for breach was a “classic detention or confinement”

Human Rights

Present 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. Present is a claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under Paragraph 2(5) of Schedule 3 to the Immigration Act

The claimant sought damages for false imprisonment, arguing he had been confined to his house without any legal basis for long periods of time. Mr. Justice Lewis accepted that argument and awarded him £4,000 in damages. The Court of Appeal upheld his decision. On appeal to the Supreme Court, the Home Secretary argues that (1) the curfew (although unlawful) did not qualify as imprisonment at common law; and (2) if it did, the common law concept of imprisonment should be modified and aligned with the more demanding concept of deprivation of liberty under Article 5 of the ECHR.

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 includes physical barriers, guards or threats of force or of legal process. In this case, there is no doubt that the Secretary of State defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that, he could go somewhere else during those hours without the Secretary of State’s permission.

Although the claimant broke his curfew from time to time, this made no difference to his situation while he was obeying it. Like a prisoner who goes absent from an open prison, or a tunneller who successfully escapes from a prison camp, the claimant was not imprisoned while he was away, but he was imprisoned as long as he stayed at home

There is, of course, a crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction. The Court of Appeal held that this was a case of enforced not voluntary compliance. It is not to be compared with those cases in which the claimant went voluntarily with the sheriff’s officer. 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. 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. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.

In the case of Secretary of State for the Home Department v JJ , it was observed that, a curfew enforced by electronic tagging, clocking in and clocking out, and arrest or imprisonment for breach was a “classic detention or confinement”

Although the common law may develop to meet the changing needs of society, this proposal would not develop the law but make it take a retrograde step. It would 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. This approach derives from the need to distinguish under the ECHR between the deprivation and the restriction of physical liberty. 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. The Court of Appeal in Austin v Comr of Police of the Metropolis and in Walker v Comr of Police of the Metropolis were right to say that, there could be imprisonment at common law without there being a deprivation of liberty under Article 5. Appeal dismissed.

Tags : FALSE IMPRISONMENT   COMPENSATION   LEGALITY  

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