R (on the application of Jalloh (formerly Jollah)) v Secretary of State for the Home Department

False imprisonment occurs where a defendant directly and intentionally causes a person to remain within a defined area. Restraint must be complete, but locks, guards and physical impossibility of escape are unnecessary. Compliance is enforced where the person stays because of threats of force or legal process backed by apparent authority.

A curfew may therefore constitute imprisonment while it is obeyed, even though the person sometimes leaves or could physically do so. The common law concept remains distinct from deprivation of liberty under article 5 of the European Convention on Human Rights. It protects against confinements which may be too brief or insufficiently severe to engage article 5.

The Secretary of State imposed an electronically monitored eight-hour nightly curfew on the claimant under Paragraph 2(5) of Schedule 3 to the Immigration Act 1971. The curfew remained in force for 891 days. It was unlawful because that provision did not authorise curfews.

Lewis J held that the curfew constituted imprisonment and later awarded £4,000 in damages: [2017] EWHC 330 (Admin); [2017] EWHC 2821 (Admin). The Court of Appeal dismissed the Secretary of State's appeal on liability and the claimant's cross-appeal on damages: [2018] EWCA Civ 1260; [2019] 1 WLR 394.

The Supreme Court considered whether the curfew amounted to imprisonment at common law and, if so, whether that concept should be aligned with deprivation of liberty under article 5 of the European Convention on Human Rights.

1. Appeal dismissed unanimously. Lady Hale, with whom Lord Kerr, Lord Carnwath, Lord Briggs and Lord Sales agreed, held that the electronically monitored curfew amounted to imprisonment at common law.

2. The essence of imprisonment is being made by another person to stay in a particular place. False imprisonment involves an act which directly and intentionally, or possibly negligently, causes confinement within an area delimited by the defendant. The means of confinement may include locks, guards, threats of force or threats of legal process. What matters is that the person is obliged to remain where ordered, whether or not physical escape is possible.

3. The restraint was complete because the Secretary of State defined the place where the claimant had to remain between 11 pm and 7 am. He could not choose another place during those hours without permission. This differed from cases involving only obstruction in one direction or an agreed condition governing departure from premises.

4. Occasional breaches did not prevent the curfew from constituting imprisonment while it was obeyed. A person capable of escaping from a prison or camp remains imprisoned while confined there. The relevant distinction was between voluntary and enforced compliance.

5. The claimant's compliance was enforced. His electronic tag detected departure, monitoring personnel would investigate any breach, and the notice threatened a fine, imprisonment and possible renewed immigration detention. These measures were backed by asserted state authority. He was therefore not realistically free to come and go.

6. The common law concept of imprisonment should not be aligned with deprivation of liberty under article 5 of the European Convention on Human Rights. Article 5 employs a contextual, multifactorial assessment because it distinguishes restrictions from deprivations of liberty. The common law has no need to make that distinction and may recognise imprisonment of very short duration. Alignment would narrow a long-established protection against unlawful confinement by both public and private actors.

7. There can be imprisonment at common law without deprivation of liberty under article 5. Whether the converse is also possible was left open.

1. United Kingdom Supreme Court: Dismissed the Secretary of State's appeal and affirmed the finding of liability for false imprisonment: [2020] UKSC 4.
2. Court of Appeal: Dismissed the Secretary of State's appeal on liability and the claimant's cross-appeal concerning damages: [2018] EWCA Civ 1260; [2019] 1 WLR 394.
3. High Court: Lewis J held at a preliminary hearing that the curfew constituted imprisonment: [2017] EWHC 330 (Admin). Following trial, he awarded £4,000 damages: [2017] EWHC 2821 (Admin).