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R (Jollah) v Secretary of State for the Home Department: The Parameters of False Imprisonment
Ruaraidh Fitzpatrick considers the judgments upholding the decision that a person who was unlawfully subject to curfew conditions requiring him, on threat of criminal sanction, to be at his home address between the hours of 23:00 and 07:00 every day had been entitled to damages for false imprisonment.
Following his release from prison, Mr Jollah, a foreign national, was detained in an immigration detention centre pending deportation. He was granted bail by the First-Tier Tribunal and the bail conditions included a requirement that he reside at a specific address. When bail came to an end, the Secretary of State (“SSHD”) imposed a curfew requiring Mr Jollah to be at home between 23:00 and 07:00 every day, and caused him to be fitted with an electronic tag, from 3 February 2014 and 14 July 2016 – a period of 891 days.
The curfew was purportedly imposed pursuant to the provisions of paragraph 2(5) of Schedule 3 of the Immigration Act 1971 (as it then stood). Mr Jollah brought judicial review proceedings against the SSHD in respect of this curfew, seeking damages for false imprisonment. Following a High Court hearing before Lewis J, the SSHD conceded that it had exercised its power under the 1971 Act unlawfully and had had no power to impose a curfew under that Act. Lewis J determined that Mr Jollah was entitled to damages for the tort of false imprisonment in respect of the 891-day period, and assessed those damages at £4,000. The SSHD appealed against the decision that Mr Jollah was entitled to damages for false imprisonment, and Mr Jollah cross-appealed against the amount of damages awarded.
On the SSHD’s appeal, the Court of appeal was required to determine the parameters of the tort of false imprisonment. It was common ground that if, by the curfew restriction, there was "imprisonment" then it was "false" (because it was unlawful). The question was whether the curfew restriction here constituted "imprisonment."
Both parties accepted that there had been occasions during the 891-day period when Mr Jollah had failed to adhere to his curfew requirements and done so without the consent of the Home Office. Lewis J had found 37 occasions when Mr Jollah was absent from his home for the entirety of the curfew period, most of those relating to his attending family court proceedings concerning the custody of his daughter. Lewis J also found that on 108 occasions Mr Jollah was absent for part of the time when the curfew was in place (sometimes for only a few minutes). Many of those related to a delay in his return from family court or from religious attendances.
The SSHD sought to extract five propositions from a wide range of authorities, some of them dating back many hundreds of years, in support of its conclusion that Mr Jollah had never been imprisoned in the relevant sense. These were that:
- Voluntary compliance with an instruction or request to remain in a particular physical place does not amount to imprisonment in the relevant sense;
- A total or complete restraint is required, and the ability to leave the place by some route means that there is no imprisonment in the relevant sense, as the restraint is neither total nor complete;
- If imprisonment is secured by restraint by means such as the placing of a guard at a door which is in fact unlocked, to prevent the individual from leaving the premises through the door, the restraint must be of a nature that is intended to keep the individual in the same place;
- A likelihood that the individual would be immediately detained if he seeks to leave the place does not mean that he is already imprisoned there in the relevant sense;
- An ability to leave the place by some route means that there is no imprisonment, even if use of the route involves unlawfulness.
The SSHD conceded that there had been some constraint on Mr Jollah’s liberty. Nonetheless, it argued that this constraint fell short of imprisonment. The relevant facts, submitted the SSHD, were that Mr Jollah had never been subjected to any physical restraint. There had never been a guard at his door. He had at all times during the curfew hours been physically able to leave his house: and not infrequently he chose to do so. In short, the SSHD submitted that the curfew requirement was ‘satisfied by voluntary compliance, not by any form of constraint’: at . The fact that leaving one’s home during curfew hours might thereafter have given rise to criminal prosecution did not convert the character of the curfew requirement into imprisonment.
The Court found that the relevant authorities did not provide unqualified support to all of the SSHD’s five propositions, cited above. More generally, the Court found that it was clear ‘which side of the line this case falls’: at .
Despite Mr Jollah not being locked in his home, and there being no guard at his door, the Court of Appeal emphasised that Lewis J had found that Mr Jollah was operating under constraint when he remained in his house during curfew hours. He would not have so acted ‘were it not for the Notice of Restriction, backed as it was by the threat of criminal sanction and by electronic tagging. In the language of Bird v Jones, there was "restraint within some limits defined by a will or power exterior to his own"’: at .
The fact that Mr Jollah was able to breach his curfew, and that he in fact did this on a number of occasions, bore only on the issue of damages, and not on the issue of whether he was in fact imprisoned for the purposes of the tort of false imprisonment. This is because, on the facts of this case, it was clear that there was no ‘voluntary compliance’ with the curfew conditions as the SSHD had submitted. Instead, Mr Jollah was operating under compulsion, backed by criminal sanction and tagging. The Court accepted that the possibility of a person’s future arrest does not necessarily change the character of an instruction. However, in the present case, it could not be said that Mr Jollah was totally heedless of or indifferent to the curfew restrictions and the threat of criminal sanction.
The Court also found that Mr Jollah’s restraint was “complete” for the purposes of false imprisonment. ‘Under force of compulsion of the Notice of Restriction (coupled with the threat of criminal sanction and with tagging), Mr Jollah was, and felt himself to be, obliged to be confined within the parameters of his home during the specified hours. That, moreover, cannot possibly be equated with a "mere restriction on movement", as was suggested’: at .
Viewing the matters overall, it was ‘inapposite to say that Mr Jollah had the ability to leave his house – in that he could not physically be prevented from doing so, even if doing so involved unlawfulness…The key here is reasonableness ... In the present case… it cannot be adjudged to be reasonable that [Mr Jollah] could circumvent the curfew instruction by acting in a way which necessarily would attract a potential criminal sanction of a fine and/or imprisonment’: at .
There are several noteworthy aspects of this decision. First, the Court of Appeal re-emphasised the important distinction between the concept of ‘deprivation of liberty’ under Art 5.1 of the European Convention on Human Rights, and the concept of ‘imprisonment’ in the context of the common law tort of false imprisonment. The former, ‘tend[s] to look at the restraint in question in the context of the whole picture: and a distinction between deprivation of liberty on the one hand and restriction on movement on the other hand is maintained, involving an assessment of the whole range of factors present, including nature, duration and effects of the restraint, the manner of implementation and execution and so on. Thus even very extensive curfew requirements – far more extensive than occurred in the present case – may not necessarily involve an infringement of Article 5: see, for example, Guzzardi v Italy (1981) 38 EHRR 17’: at . The Court went on to explain that, ‘depending on the facts, a case may give rise to a valid claim for damages for false imprisonment at common law but not for breach of Article 5. On the other hand, there can even be cases where a remedy under Article 5 is available where no remedy in false imprisonment is available’ at .
Secondly, the Court of Appeal emphasised the pitfalls of seeking out general principles as to what constitutes imprisonment for the purposes of false imprisonment from previous authorities. On the issue of when a person can be said to have been constructively imprisoned (i.e. where no physical restraint or force is applied), the Court acknowledged that some of the decided cases involve ‘quite fine distinctions’ and are ‘sometimes not always altogether easy to reconcile’ at , and instead reiterated that the assessment which courts must make will be fact specific.
Finally, the Court of Appeal gave short shrift to the SSHD’s speculation as to the outcome of other, hypothetical, cases if false imprisonment were to be the outcome in this case. For example, the Court of Appeal considered that the SSHD had in one of its hypothetical examples, equated its Notice of Restriction containing curfew restrictions on Mr Jollah backed by the threat of criminal sanction with a “mere instruction” by a department store employee to a shopper to stay where he was whilst a police officer was summonsed. The Court commented that it was ‘not…in the slightest bit moved by the examples’ (at ) given, preferring instead to focus on the actual effect these particular curfew restrictions had on the life and freedom of Mr Jollah in reaching its decision.
- R (Jollah) v Secretary of State for the Home Department  EWCA Civ 1260
- R (Jollah) v Secretary of State for the Home Department  EWHC 2821