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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Jalloh, R (on the application of) v Secretary of State for the Home Department [2020] UKSC 4 (12 February 2020) URL: http://www.bailii.org/uk/cases/UKSC/2020/4.html Cite as: [2020] WLR(D) 85, [2020] HRLR 8, [2020] 3 All ER 449, [2020] 1 Cr App R 31, [2020] UKSC 4, [2020] 2 WLR 418, [2021] AC 262 |
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[2020] UKSC 4
On appeal from: [2018] EWCA Civ 1260
JUDGMENT
R (on the application of Jalloh (formerly Jollah)) (Respondent) v Secretary of State for the Home Department (Appellant)
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before
Lady Hale Lord Kerr Lord Carnwath Lord Briggs Lord Sales
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JUDGMENT GIVEN ON |
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12 February 2020 |
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Heard on 12 November 2019 |
Appellant |
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Respondent |
Robin Tam QC |
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Dinah Rose QC |
Mathew Gullick Emily Wilsdon |
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Jude Bunting |
(Instructed by The Government Legal Department) |
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(Instructed by Saunders Law) |
lady hale: (with whom Lord Kerr, Lord Carnwath, Lord Briggs and Lord Sales agree)
The story so far
“A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State.”
3. There is a dispute about the claimant’s identity. He claims to be a Liberian national named Ibrahima Jalloh. The Secretary of State asserts that he is a Guinean national named Thierno Ibrahima Diallo. This dispute is irrelevant to the issues before this Court.
9. The curfew was lifted by order of Collins J in these judicial review proceedings, which were brought by the claimant following the judgment of the Court of Appeal in the case of R (Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409; [2016] 4 WLR 93. The court there held that paragraph 2(5) of Schedule 3 to the 1971 Act (see para 2 above) did not empower the Secretary of State to impose a curfew by way of a restriction under that paragraph. The Secretary of State has, understandably, not sought to challenge that holding. However, she did seek to impose the same curfew again on the claimant, but this time under paragraph 22 of Schedule 2 to the 1971 Act. On 14 July 2016, Collins J ordered that that curfew be lifted, which it was.
10. On 14 February 2017, at a preliminary hearing, Lewis J held that the curfew constituted imprisonment for the purpose of the tort of false imprisonment, following the decision of Edis J at first instance in the case of R (Gedi) v Secretary of State for the Home Department [2015] EWHC 2786 (Admin) (the Court of Appeal did not deal with this point in Gedi but left it open): [2017] EWHC 330 (Admin). After a three-day trial, on 9 November 2017, Lewis J awarded the claimant £4,000 damages for false imprisonment: [2017] EWHC 2821 (Admin). On appeal, the Court of Appeal held that the curfew did indeed amount to imprisonment and so dismissed the Secretary of State’s appeal on liability; it also dismissed the claimant’s cross appeal on the measure of damages: [2018] EWCA Civ 1260; [2019] 1 WLR 394. The Secretary of State now appeals to this Court, arguing, first, that the curfew did not amount to imprisonment at common law, and second, that if it did, it did not amount to a deprivation of liberty under article 5 of the ECHR and the common law concept of imprisonment should now be aligned with that concept.
The first issue: Imprisonment at Common Law
13. Voluntary compliance is not enough, even if the request is backed up with a warrant which could be executed by force. He cites Arrowsmith v Le Mesurier (1806) 2 Bos & P (NR) 211, 127 ER 605, where Sir James Mansfield CJ held that there was no imprisonment when a constable simply showed the claimant a magistrate’s warrant for his arrest and the claimant went voluntarily with the constable to see the magistrate: the warrant was treated as a summons rather than an arrest. Berry v Adamson (1827) 6 B & C 528, 108 ER 546, was a fortiori: the officer merely sent his man with a message to the claimant that there was a writ and that he should fix a time for giving bail. On the other side of the line was Grainger v Hill (1838) 4 Bing (NC) 212, 132 ER 769. Tindal CJ held that it was enough for the sheriff’s officer to tell the claimant, while he was lying ill in bed, that there was a writ of capias against him and unless he surrendered his ship’s register or found bail, he would be taken away or a man would be left with him: this was a sufficient restraint of his person to amount to an arrest.
14. His second proposition is that, if the constraint is not by physical barriers, it has to be of a nature that is intended to keep the person in the same place and there have to be the means of doing so. He cites Grainger v Hill as an illustration of this form of imprisonment; also Warner v Riddiford (1858) 4 CB (NS) 180, 140 ER 1052, where it was held that the claimant was imprisoned when he was refused permission by police officers, acting on behalf of his employers, to leave the room and go upstairs in his own house; and Meering v Graham-White Aviation Co Ltd (1920) 122 LTR 44, where the claimant was suspected of being involved in thefts of material from the company. A warrant was obtained to search the place where the claimant was staying. The claimant was not there when the search took place, but the company’s own security officers waited until he returned and took him to the company’s offices where they waited for the police officers who eventually arrested him. It was held that he was imprisoned by the company’s officers while they were waiting. From the moment that the claimant had “come under the influence” of the company’s officers, there was evidence to support the jury’s conclusion that he was no longer a free man. Atkin LJ emphasised, at p 53, that “it is perfectly possible for a person to be imprisoned in law without his knowing the fact and appreciating that he is imprisoned”: if a man could be imprisoned in a locked room without knowing that the door was locked, he could also be imprisoned by being in a room with guards who would prevent his leaving, even if he did not know this.
15. His third proposition is that the constraint must be “total” or “complete”, restricting the person to a particular place. The leading case is Bird v Jones (1845) 7 QB 742. Part of Hammersmith Bridge, which was usually used as a footpath, was enclosed and seats were erected for people to watch a boat race on the Thames, for which they were charged a fee. The claimant wanted to walk along the footpath in the usual way but was forcibly prevented by policemen from doing so. He could always have left the enclosure, and crossed the bridge along the roadway, but he could not leave in the way that he wanted to do. The majority held that this was not imprisonment because it was only a partial obstruction.
16. Bird v Jones was approved by the Judicial Committee of the Privy Council in Syed Mahamad Yusuf-Ud-Din v Secretary of State for India (1903) 30 Ind App 154, where it was held that a prisoner who was out on bail was not imprisoned while on bail: nothing short of actual detention and complete loss of freedom would do. Robinson v Balmain New Ferry Co Ltd [1910] AC 295 was another Privy Council case. There were entry and exit turnstiles to the ferry wharf on each side of the water to be crossed. The claimant paid his penny to enter the wharf on one side, intending to take the ferry to the other side, but then changed his mind and was not allowed to leave without paying the exit penny. This was not imprisonment as there was an exit route and he had agreed to the terms.
17. His fourth proposition is that a person is not imprisoned if he is able to leave that place by another route, even if that is not the way he wants to go and even if it involves trespassing. The earliest case cited was Wright v Wilson (1699) 1 Ld Raym 739, 91 ER 1394, where Holt CJ ruled that it was not false imprisonment to lock one of two doors out of a room, when the claimant could have got out through the other door, although this would involve trespassing through another person’s room.
18. His fifth proposition is that it is not enough that the act of leaving would trigger an adverse response, such as prosecution or arrest. This is illustrated by cases such as Arrowsmith v Le Mesurier and Phillips v Great Northern Railway Co, but also by the decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust, Ex p L [1999] 1 AC 458. L was a severely mentally disabled man who became agitated at his day centre and an emergency psychiatric team was called. He was sedated and taken to hospital. The psychiatrist decided to admit him as an informal patient, rather than compulsorily, because by that time he was compliant and showing no desire to leave. He was placed in an unlocked ward, but his foster parents were not allowed to visit in case he showed signs of wanting to leave with them. If he had wanted to leave, he would have been compulsorily detained under the Mental Health Act 1983. The House of Lords held, by a majority, that he had not been detained while an informal patient. Lord Steyn and Lord Nolan disagreed. Lord Steyn, at p 495, described the suggestion that he was free to leave as “a fairy tale”. The fact that he did not know that he was imprisoned was irrelevant, as Meering showed.
22. An obvious illustration of the reasonableness principle is the true story told by Eric Williams in his 1949 novel, The Wooden Horse. Prisoners of war escaped from their prison camp by concealing their tunnelling under a wooden vaulting horse: their will was never overborne because they always intended to escape and it did prove physically possible for them to do so but they clearly were imprisoned while they were in the camp. Another illustration is the decision of the Court of Appeal of Victoria in McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; [2007] 20 VR 250. The Union set a picket round a camp set up by anti-logging protesters to prevent the protesters getting out. The protesters could have asked the police to escort them out, but that did not mean that they were not imprisoned until they did so. But the protesters could also have escaped at any time along a track through the bush: this was a reasonable means of egress and so they had not been imprisoned.
23. The most problematic case from the claimant’s point of view is the Bournewood decision in the House of Lords. But, argues Ms Rose, it has no bearing because if a person is not actually confined at the moment, the fact that he might be confined if he tries to leave does not make it imprisonment. This is different from being actually confined by fear of the consequences if one leaves. In any event, she points out that the case might well be decided differently today. The Court of Appeal were unanimous in holding that the patient was imprisoned. The House of Lords decided otherwise by a narrow majority and it is not easy to grasp their rationale. And the European Court of Human Rights held that he had been deprived of his liberty: HL v United Kingdom (2005) 40 EHRR 32. So far as is known, this is the only example of a deprivation of liberty which did not amount to imprisonment at common law: generally speaking, one may well be imprisoned without being deprived of one’s liberty, but the other way round is harder to envisage.
Discussion on the first issue
28. For what it is worth, in the case of Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] AC 385, it was taken for granted that a curfew enforced by electronic tagging, clocking in and clocking out, and arrest or imprisonment for breach was a “classic detention or confinement” (para 59). The only question was whether it was also a deprivation of liberty within the meaning of article 5 of the ECHR, which leads on to the second issue.
The second issue: Deprivation of Liberty
29. Mr Tam makes an alternative argument in this Court which was not open to him in the courts below. This is that the concept of imprisonment for the purpose of the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of article 5 of the ECHR. The classic definition of this concept is taken from Guzzardi v Italy (1981) 3 EHRR 333, para 92:
“In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.”
The ECHR distinguishes between the deprivation and restriction of liberty and the court emphasised that this was a matter of degree rather than nature or substance (para 93). This multi-factorial approach is very different from the approach of the common law to imprisonment.
30. In Austin v Comr of Police of the Metropolis [2007] EWCA Civ 989; [2008] QB 660, the Court of Appeal held that “kettling” the claimants for several hours at Oxford Circus was indeed imprisonment at common law, but that it was justified by the common law principle of necessity; however, it was not a deprivation of liberty within the meaning of article 5, a conclusion with which both the House of Lords and the European Court of Human Rights agreed: [2009] UKHL 5; [2009] 1 AC 564, and Austin v United Kingdom (2012) 55 EHRR 14. The trial judge’s observation that there could be imprisonment at common law without there being a deprivation of liberty under article 5 and vice versa was cited by the Court of Appeal with apparent approval (para 87). That observation was repeated by the Court of Appeal in Walker v Comr of Police of the Metropolis [2014] EWCA Civ 897; [2015] 1 WLR 312, where it was held to be false imprisonment for a police officer to stand in the front doorway of a house so as to prevent the claimant from leaving, even for a very short time, but it was not a deprivation of liberty within the meaning of article 5.
32. Mr Tam argues that the time has now come to align the two concepts: specifically to align the concept of imprisonment with the concept of deprivation of liberty. He says this because, in Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] AC 385, while the House of Lords held, by a majority, that a 16-hour curfew was a deprivation of liberty, Lord Brown of Eaton-under-Heywood expressed the view that an eight-hour curfew, such as this, would not be such a deprivation.
33. It is, of course, the case that the common law is capable of being developed to meet the changing needs of society. In Lord Toulson’s famous words in Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 435, para 133, “it was not the purpose of the Human Rights Act that the common law should become an ossuary”. Sometimes those developments will bring it closer to the ECHR and sometimes they will not. But 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. The Strasbourg court has adopted this approach because of the need to draw a distinction 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.
Conclusion