20th February 2020
Robin Tam QC, Mathew Gullick (of 3PB) and Emily Wilsdon represented the Secretary of State for the Home Department before the Supreme Court in Jalloh, R (on the application of) v Secretary of State for the Home Department  UKSC 4.
The Supreme Court considered whether an unlawful immigration curfew constituted the tort of false imprisonment, and whether the common law tort should be aligned with caselaw on article 5 of the ECHR.
In its judgment, given by Lady Hale, the Court decided that 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 include physical barriers, guards or threats of force or of legal process. In this case, the Secretary of State defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. Although it was physically possible for the claimant to leave, his compliance was enforced and not voluntary. He was wearing an electronic tag, and if he left during the curfew 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 Court also decided that it was possible for there to be imprisonment at common law without a deprivation of liberty under article 5, and the Court declined to align or 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.