Common law versus Convention
R (Jalloh) v Secretary of State for the Home Department, the Supreme Court was required to consider the meaning of imprisonment at common law.
Late last year we analysed the Supreme Court’s decision in R (Hemmati & Ors) v Secretary of State for the Home Department  UKSC 56 which considered the issues of false imprisonment, Article 5 (right to liberty) and damages. This week has seen further important judgments on these matters with decisions from both the Supreme Court and the Court of Appeal.
In the case of R (Jalloh (Liberia)) v Secretary of State for the Home Department  UKSC 4, the Supreme Court was required to consider the meaning of imprisonment at common law (the tort of false imprisonment) and whether this should be aligned with the concept of deprivation of liberty under Article 5 of the European Convention on Human Rights (the Convention).
The claimant was released from immigration detention. He was subsequently subject to curfew restrictions that included a requirement to report to an immigration officer three days each week, to live at a specified address, to submit to electronic tagging and to stay at home each night between the hours of 11.00 pm and 7.00 am. It transpired that the Secretary of State had no legal power to impose restrictions by way of curfew in this way. The curfew (869 days) was therefore unlawful and the claimant was awarded £4,000 in damages. The Court of Appeal upheld this decision.
On appeal to the Supreme Court, the Home Secretary argued that (1) the curfew (although unlawful) did not qualify as imprisonment at common law; and (2) if it did, the common law concept of imprisonment should be modified and aligned with the more demanding concept of deprivation of liberty under Article 5 of the Convention.
The appeal was unanimously dismissed. The essence of imprisonment is being made to stay in a particular place by another person. The claimant’s case was a classic detention or confinement and amounted to false imprisonment. The Convention distinguishes between deprivation and mere restriction of physical liberty and it was argued that the common law should be aligned with the Convention. The court held that this would be “a retrograde step”. Per Lady Hale, “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 it has protected for centuries against unlawful imprisonment, whether by the State or private persons” (paragraph 33).
In R(ZA(Pakistan)) v Secretary of State for the Home Department  EWCA Civ 146, the claimant appealed against a finding that he was only entitled to nominal damages of £1 for his unlawful detention.
The Home Secretary breached the Detention Centre Rules 2001 by failing to make arrangements for the claimant to undergo a physical and mental health examination by a medical practitioner within 24 hours of his arrival at an immigration removal centre. This automatically rendered his continued detention unlawful. However, the judge had been right to only award nominal damages. If a medical examination had been carried out, as required by Rule 34, there was nothing that would have led to a report under Rule 35 or would have led to the conclusion that the continued detention should be reconsidered. The judge was right to hold that the claimant was not entitled to compensatory damages.