False imprisonment not synonymous with breach of right to liberty
10 March 2020
In a pithy parting shot to the Home Secretary, Lady Hale has given the unanimous judgment of the Supreme Court on the question of whether a person subject to a home curfew under immigration powers had been falsely imprisoned at common law and whether that concept should now be aligned with the concept of deprivation of liberty in article 5 of the ECHR. The Court decided the case against the defendant, as did every court below (the Blog covered the Court of Appeal’s decision here). The defendant had been required to pay the claimant £4,000.
False imprisonment at common law
The opening sentence sets the scene:
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.
The claimant had been subject to an overnight curfew, enforced by way of monitoring equipment and an electronic tag, under paragraph 2(5) of Schedule 3 of the Immigration Act 1971.
In R (Gedi) v Secretary of State for the Home Department  EWCA Civ 409 it was held a curfew could not be imposed under paragraph 2(5) of Schedule 3 of the Immigration Act 1971. Following this, the claimant successfully applied for his curfew to be lifted but the defendant sought to re-impose the same curfew under paragraph 22 of Schedule 2 of the Act instead. At first instance, Lewis J held that this constituted false imprisonment and awarded the claimant £4,000.
The Secretary of State argued that the curfew did not amount to imprisonment at common law on a number of grounds:
- There were no physical restraints on the claimant, eg locked doors or guards. Voluntary compliance with a request was insufficient, even when the request could be executed by force if not complied with.
- To be falsely imprisoned, there must be an intention to keep a person in the same place and the means to do so.
- Constraint must be total or complete in restricting a person to a particular place.
- A person was not imprisoned if able to leave the place by another route, even if that involves trespassing.
- Finally, it was not enough that the act of leaving would trigger an adverse response such as a prosecution or an arrest. Reliance was placed in this respect upon the case of R v Bournewood Community and Mental Health NHS Trust ex p L  1 AC 458. There a decision was made to admit a psychiatric patient informally rather than compulsorily because he was sedated and compliant and showing no desire to leave. The House of Lords held by a majority that this did not amount to false imprisonment, even though had he attempted to leave he would have been placed under section and the idea that he was free to leave was described by Lord Steyn as “a fairy tale”.
The defendant argued that the claimant had not been physically prevented from leaving his home and had indeed broken the curfew on numerous occasions. There was physically no way of keeping him in the place where he was instructed to remain if he decided to leave and he could not be returned by force.
The Court rejected these arguments essentially accepting the case made by the Claimant, holding at paragraph 25-7 that:
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 […]
The fact that the claimant did from time to time ignore his curfew for reasons that seemed good to him makes no difference to his situation while he was obeying it. Like the prisoner who goes absent from his open prison, or the tunneller who gets out of the prison camp, he is not imprisoned while he is away. But he is imprisoned while he is where the defendant wants him to be.
The Court accepted that there was a difference between voluntary compliance and enforced compliance. However it agreed with the Court of Appeal that this was a clearly a case of enforced compliance:
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. He was well aware that it could also lead to his being detained again under the 1971 Act. All of this was backed up by the full authority of the State, which was claiming to have the power to do this. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal. 
Deprivation of Liberty under the Convention
The Court went on to consider the defendant’s alternative argument, which had not been pursued below, that the concept of imprisonment at common law should now be aligned with the concept of deprivation of liberty under the convention. That the defendant sought to invoke the Convention is at first blush surprising. However, the advantage to the defendant in doing so was that the approach under the Convention in this area is multi-factorial, as stated in Guzzardi v Italy (1980) 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.
Further, reliance was placed upon the case of JJ  UKHL 45 where it was held that a 16 hour curfew was a deprivation of liberty but an 8 hour curfew would not have been.
In considering this issue, the court noted that it had been accepted in previous cases that there could be imprisonment at common law without there being a deprivation of liberty under the Convention and vice versa. For example in the case of “kettling” by the police in Austin v Comr of Police of the Metropolis  EWCA Civ 989, there was imprisonment at common law, albeit with justification by way of the common law doctrine of necessity, but there had not any deprivation of liberty under Article 5. This underlines the fact that although the tort of false imprisonment can be made out even if it takes place for a very short period of time, the defence of justification may be available in circumstances that are not covered by the list of permissible deprivations in article 5(1).
Moreover, one case went the other way. When the circumstances in Bournewood were considered by the European Court of Human Rights, it held that there was deprivation of liberty even though there had not been false imprisonment at common law: HL v UK (2004) 40 EHRR 32.
The Court noted that if Bournewood was decided today it might be decided differently. This is an important observation given that in Bournewood the claimant was obliged to rely upon the Convention when the common law argument failed. It lays the ground for the court to revisit the position in the event the UK seeks to repeal the Human Rights Act.
In any event, the court did not accept that the time had come to align the two concepts as argued by the defendant for its own particular purposes in this case. It held as follows:
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  UKSC 20;  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..
Shaheen Rahman QC is a barrister at 1 Crown Office Row.