From: Neil Foster <neil.foster@newcastle.edu.au>
To: obligations@uwo.ca
Date: 13/02/2020 00:42:19 UTC
Subject: ODG: UKSC on false imprisonment

Dear Colleagues;

Just a brief note to say that the UK Supreme Court has handed down a very helpful judgment on the tort of false imprisonment in its decision in Jalloh, R (on the application of) v Secretary of State for the Home Department [2020] UKSC 4 (12 February 2020) http://www.bailii.org/uk/cases/UKSC/2020/4.html . In brief, Mr Jalloh was subjected to a “curfew” regime due to breaches of immigration laws where he was supposed to stay at home from 11 pm – 7 am every night. This regime was later ruled to have been unlawfully imposed. He was awarded GBP4K for false imprisonment by a trial judge which was upheld by the EWCA. In the Supreme Court LADY HALE (with whom Lord Kerr, Lord Carnwath, Lord Briggs and Lord Sales agreed) upheld the award. The other issue in the case was whether the common law of false imprisonment should be adjusted to reflect ECHR jurisprudence on “deprivation of liberty” but her Ladyship said no, the two were different issues and the common law should not be “watered down” by the ECHR issues.

Paras [24]-[28] are a nice summary of the common law:

 

24. As it is put in Street on Torts, 15th ed (2018), by Christian Witting, p 259, “False imprisonment involves an act of the defendant which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the defendant.” 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 are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process. A good example is R v Rumble [2003] EWCA Crim 770; (2003) 167 JP 205. The defendant in a magistrates’ court who had surrendered to his bail was in custody even though there was no dock, no usher, nor security staff and thus nothing to prevent his escaping (as indeed he did). The point is that the person is obliged to stay where he is ordered to stay whether he wants to do so or not. 

25. In this case there is no doubt that the defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the defendant’s permission. This is not a case like Bird v Jones where the claimant could cross the bridge by another route or Robinson v Balmain New Ferry Co Ltd where he had agreed to go onto the wharf on terms that he could only get out if he paid a penny. 

26. The fact that the claimant did from time to time ignore his curfew for reasons that seemed good to him makes no difference to his situation while he was obeying it. Like the prisoner who goes absent from his open prison, or the tunneller who gets out of the prison camp, he is not imprisoned while he is away. But he is imprisoned while he is where the defendant wants him to be. 

27. There is, of course, a crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction. The Court of Appeal held that this was a case of enforced not voluntary compliance and I agree. It is not to be compared with those cases in which the claimant went voluntarily with the sheriff’s officer. There can be no doubt that the claimant’s compliance was enforced. He was wearing an electronic tag which meant that leaving his address would be detected. 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 idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.

Page 9 

28. For what it is worth, in the case of Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] AC 385, it was taken for granted that a curfew enforced by electronic tagging, clocking in and clocking out, and arrest or imprisonment for breach was a “classic detention or confinement” (para 59). The only question was whether it was also a deprivation of liberty within the meaning of article 5 of the ECHR, which leads on to the second issue. 

 

The big issue of course is that he was physically able to leave his house, and did so occasionally, but he was still “falsely imprisoned” because he was confined under authority. The excellent Victorian decision in McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; [2007] 20 VR 250 was cited at para [22]. Also nice to see (in my view) that the controversial Bournewood decision was not treated with great enthusiasm, especially in para [34] at the end.

 

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

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T: +61 2 49217430

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