In our latest podcast we discuss the Coronavirus Bill, which no doubt will be on the statute book very soon, and the concept of false imprisonment.

False imprisonment and Coronavirus at first blush may seem to have little in common other than we all wish no doubt that we had not heard of either, but with the prospect of a “lockdown” bear with us.

There is a demand, if not a requirement, for our civil liberties to be curtailed so as to control the spread of the virus. We are being told to stay indoors and to keep our distance from our neighbours. So far these instructions have been polite requests to do as we are being asked. The implicit underlying message being that if we do not do as we are asked then the State will have to get tougher.

Government has to tread wearily because it can tell us what to do but does it have the legal ability to insist we do so?

The Coronavirus Bill contains provisions under clause 50 and schedule 21 to prohibit and restrict meetings and gatherings, and to close premises or restrict access, but that is as far as it goes.

Clause 49 and schedule 20 however, gives the power to remove and detain a person who is believed to be infected.

These provisions have to reflect the law which was recently analysed by the Supreme Court in R (on the application of Jalloh) v. Secretary of State for the Home Department [2020] UKSC 4.

The case is highly relevant because it can be argued that Parliament cannot simply tell people to lock themselves up. Government has to have very specific powers granted to it by Parliament to curtain a person’s liberty.

The case 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 Convention on Human Rights (“ECHR”).

The Claimant in Jalloh, 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 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 ECHR 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 to not be unlawfully imprisoned by the State.

Getting back to the unique circumstances of Coronavirus, the Bill attempts to recognise that there may be particular circumstances where a citizen has not committed a crime but is potentially infected, and as such presents risk to others, and has to be detained. That is very different to telling the general public to stay indoors.

Voluntary compliance on the part of the public is one thing, but being ordered to stay indoors and failing to do so would lead to a sanction is another. Parliament has to be very clear in what powers it gives Government and it in turn has to be very clear in how they are exercised because the Jalloh case reminds us that prison bars are not necessary for there to be false imprisonment.