When you think of false imprisonment you imagine being wrongly held in a prison, but the recent Supreme Court case of R (on the application of Jalloh) v. Secretary of State for the Home Department [2020] UKSC 4 demonstrates that the concept is far more nuanced.

The appeal was concerned about the law of damages for false imprisonment.  It required the Supreme Court to consider the meaning of imprisonment at common law and whether this should be aligned with the concept of deprivation of liberty under the European Covention on Human Rights (“ECHR”).

The Claimant who was apparently a Liberian national had been released from immigration detention on bail. He was subsequently served a notice of restriction with conditions  which contained restrictions that included a curfew. Further he was warned that if he failed to observe the curfew he was liable to a fine or imprisonment.

It later transpired that the Home Secretary did not have the power to impose the curfew this way. The High Court ordered the curfew to be lifted and the Home Secretary accepted it was unlawful.

The claimant sought damages for unlawful imprisonment. In the High Court he was awarded £4000 (he had been subject to the curfew for 891 days). The Home Office argued that compensation was not payable because the curfew albeit unlawful did not amount to unlawful imprisonment, and that if it did it should be modified as a common law Concept so as to be aligned with the more demanding concept of deprivation of liberty under article 5 ECHR.

The Supreme Court did not accept the Home Secretary’s arguments.

The essence of unlawful imprisonment is being made to stay in a particular place by another person. The methodology can be varied and include physical barriers, the placement of guards, the threats of force or legal action. The claimant was subject to a curfew. He had to stay indoors and was warned what would happen if he did not obey. This was simply detention or confinement.

As for Article 5 it was possible for there to be imprisonment at common law without a deprivation of liberty.  The latter depends on a number of factors: type, duration and effects of confinement. To align would be a retrograde step because it would restrict the classic understanding of imprisonment at common law to something far more nuanced, and inhibit the citizen’s right not be unlawfully imprisoned by the State.