The Court upheld what other courts had previously decided: that it is possible for there to be imprisonment at common law without a deprivation of liberty under Article 5 of the ECHR.
On 12 February 2020, the Supreme Court of the United Kingdom delivered its judgement in R (on the application of Jalloh [formerly Jollah]) v Secretary of State for the Home Department, a case that could have become a landmark, but did not. The Justices dealt with the definition of imprisonment at common law. Deciding the case, the Supreme Court considered two issues: the meaning of imprisonment at common law and whether that should be aligned with the concept of deprivation of liberty under the European Convention on Human Rights.
The Claimant was an immigrant to the UK, who, after being convicted of several offences, had curfew imposed on him by the Secretary of State under paragraph 2(5) of Schedule 3 to the Immigration Act 1971. He had to stay at home from 11PM to 7AM every day, which was to be enforced by means of electronic tracking. The Claimant argued that, as he was forced by the Secretary of State to remain within a defined area and this obligation was enforced by his fear of consequences, he was a victim of false imprisonment. The Appellant argued that for a person to be imprisoned there must be a physical or a human barrier making it impossible for the person to flee the area, and that it is not enough for the act of leaving to trigger an adverse response for imprisonment to exist.
The first issue had before been ruled on by the High Court and the Court of Appeal; they had both found that by imposing a curfew on the Claimant, the Secretary of State committed the offence of false imprisonment. The Supreme Court unanimously dismissed the Secretary of State’s appeal on the first issue. Lady Hale, delivering judgment, held that the central point of imprisonment is being made to stay in a particular place by another person, and therefore that the Claimant’s case was a classic example of imprisonment, since his compliance with the curfew was enforced by fear of prosecution by the institution making him stay at home.
In the Supreme Court, the Secretary of State raised an issue not previously raised – that the definition of imprisonment at common law should be aligned with that of deprivation of liberty in the European Convention of Human Rights, and that the action of the Appellant did not constitute a deprivation of liberty in the meaning given to this phrase by Article 5 of the Convention. Therefore, after deciding on the first issue, the question that remained was whether the definition of imprisonment in common law should be aligned with that of deprivation of liberty as outlined by Article 5 of the ECHR. The Convention distinguishes between deprivation of liberty and restriction of it, but this distinction is not present in common law.
Article 5 sets out that it is a breach of a person’s human rights to deprive them of liberty except in accordance with a procedure prescribed by law, which the Appellant fulfilled, as they were acting within the powers granted to them by the 1971 Immigration Act. The Appellant argued that sufficient time has passed for the concept of imprisonment at common law and that of deprivation of liberty in the meaning of the ECHR to be aligned (the Human Rights Act, which incorporated the rights contained in the ECHR into UK law was passed in 1998) and that, as their actions did not constitute a breach of the Claimant’s right to liberty in the meaning of the ECHR, the appeal should be granted. Deciding this question, the Court quoted Lord Toulson saying that “it was not the purpose of the Human Rights Act that the common law should become an ossuary.” The judgement said that common law should keep protecting people from false imprisonment, and that purpose can be best fulfilled if the original definition of imprisonment is retained.
As such, the Court upheld what other courts had previously decided: that it is possible for there to be imprisonment at common law without a deprivation of liberty under Article 5 of the ECHR. It was decided that the curfew that was imposed by the Appellant on the Claimant did amount to imprisonment and thus the appeal was dismissed.