This article originally appeared New Law Journal vol. 170, 28 Feb 2020 and is republished with the kind permission of NLJ.

Barrister Philip Rule examines the relationship between false imprisonment & Article 5 of the European Convention on Human Rights.

On 12 February 2020 Lady Hale delivered the unanimous judgment of the Supreme Court in R (Jalloh) v Secretary of State for the Home Department [2010] UKSC 4.

The particularly interesting legal question was whether imprisonment in tort law ought to be aligned with the concept of deprivation of liberty (distinct from a, lesser, restriction of liberty) in the jurisprudence of Article 5 of the European Convention on Human Rights (“ECHR”).

The Secretary of State appealed against the claim which had succeeded below (leading to damages in the sum of £4000) and argued that the two concepts should be aligned. She did so because the claim concerned an unlawful curfew period of a nightly eight hours, and it appears to be well recognised in the Article 5 jurisprudence that a 16-hour curfew does amount to a deprivation of liberty, but an 8-hour period would not be likely to do so (Secretary of State for the Home Department v JJ [2008] AC 385, by majority).

Lady Hale’s judgment in the instant appeal confirms that the common law can and does provide protection of liberty and freedom of individuals from the restriction of their right to liberty, even in circumstances that do not engage the Convention as not amounting, in that context, to a deprivation of liberty.

The Secretary of State had argued there was a lack of total or complete restraint by the operation of a curfew whilst on bail, and sought to rely upon the decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust, Ex p L [1999] 1 AC 458. That case concerned 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.

The respondent claimant distinguished that decision, arguing that Bournewood 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 being different from being actually confined by fear of the consequences if one leaves. It was also suggested 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 (2004) 40 EHRR 32. This was the only known example of a deprivation of liberty which did not amount to imprisonment at common law. It was noted that, generally speaking, one may well be imprisoned without being deprived of one’s liberty, but the other way round is harder to envisage.

In the Court’s discussion of the issues, Lady Hale noted that physical barriers are unnecessary to a situation of imprisonment arising: noting as a good example R v Rumble [2003] EWCA Crim 770; (2003) 167 JP 205. The defendant in a magistrates’ court who had surrendered to his bail was in custody even though there was no dock, no usher, nor security staff and thus nothing to prevent his escaping. The point is that the person is obliged to stay where he is ordered to stay whether he wants to do so or not. Jollah likewise did not have freedom to come and go as he pleased, and his compliance was not voluntary but enforced [§27].

Turning to the point of general principle, the Court noted (at [§29]) that the approach to Art. 5 at Strasbourg was to distinguish between the deprivation and restriction of liberty. The European Court of Human Rights emphasises that this is a matter of degree rather than nature or substance, and adopts a “multi-factorial approach” very different from the approach of the common law to imprisonment (e.g. Guzzardi v Italy (1980) 3 EHRR 333, paras. 92 and 93). Article 5 considers a range of criteria including the type, duration, effects and manner of implementation of a measure. The Court confirms that the common law however does not: any imprisonment in the tort of false imprisonment “can take place for a very short period of time” [§31].

The judgment draws attention to Austin v Commissioner of Police of the Metropolis [2008] QB 660, where the Court of Appeal held that “kettling” the claimants for several hours at Oxford Circus was imprisonment at common law (albeit justified of necessity in the particular circumstances) but it was not a deprivation of liberty within the meaning of Article 5. That conclusion was upheld by the House of Lords and the European Court of Human Rights: [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 repeated by the Court of Appeal in Walker v Commissioner of Police of the Metropolis [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.

Lady Hale concludes with the finding of the unanimous Court on the matter:

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 [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 [the Secretary of State] 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.

34. The Court of Appeal in Austin and in Walker were right to say that there could be imprisonment at common law without there being a deprivation of liberty under article 5. Whether they were also right to add “and vice versa” may be open to doubt in the light of the Bournewood saga, but it is not necessary for us to express an opinion on the matter.

The question remains for a future decision therefore (should it ever arise) as to whether an unlawful imprisonment can properly be said not to have occurred in a situation where a deprivation of liberty has occurred within the meaning of Article 5. The important effect of the instant judgment however is that the rights that tort law recognises, including of freedom and liberty, continue to be fearlessly protected by the common law even if that is in some circumstances to a greater extent than Convention rights offer protection.