Human Rights and Immigration

No Need to Align Common Law Concept of False Imprisonment with Deprivation of Liberty Under Article 5 of ECHR, UK Supreme Court Held

15 February 2020

The case of Jalloh, R (on the application of) v Secretary of State for the Home Department [2020] UKSC 4 (12 February 2020) concerns a claim for damages for false imprisonment brought by the Claimant challenging the legality of a curfew imposed upon him by the Secretary of State for the Home Department (the “SSHD”). On 14 February 2017, the Administrative Court Judge Mr Justice Lewis held that the curfew constituted imprisonment for the purpose of the tort of false imprisonment. On appeal, the Court of Appeal upheld the decision of Lewis J and dismissed the SSHD’s appeal on liability. The SSHD then challenged the Court of Appeal’s decision in the Supreme Court and argued, first, that the curfew did not amount to the common law tort of false imprisonment, and second, that even if it did, it did not amount to a deprivation of liberty under article 5 of the European Convention on Human Rights (“ECHR”) and the common law concept of false imprisonment should be aligned with that concept.

In its short and crisp judgment, the Supreme Court unanimously dismissed the SSHD’s appeal on both Grounds.

On the first issue of imprisonment at common law, the Supreme Court held that the curfew did amount to false imprisonment:

  • “The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights”. [1]
  • “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.” [24]
  • “In this case there is no doubt that the defendant 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 defendant’s permission”. [25]
  • “The Court of Appeal held that this was a case of enforced not voluntary compliance and I agree. […..] The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.” [27]

On the second issue, the Supreme Court declined to align the common law concept of imprisonment with that of deprivation of liberty under Article 5 of ECHR:

“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.” [33]

The Supreme Court held that it is possible for there to be imprisonment at common law without a deprivation of liberty under article 5 of ECHR.


Zafar Abbas
Averroes solicitors