False imprisonment in Court of Protection cases?

R(on the application of Jalloh (formerly Jollah)) v Secretary of State for the Home Department [2020] UKSC 4

This appeal by the SSHD was dismissed by a unanimous Supreme Court with a single judgment delivered by Lady Hale on 12 February 2020. 

The issue in the appeal was whether the concepts of imprisonment at common law and  deprivation of liberty in article 5 (A5) of the Convention, should  now be aligned.  

This is an immigration detention case in which the claimant was initially detained under paragraph 2(5) of Schedule 3 to 1971 Act. Restrictions imposed included a requirement to report every Monday, Wednesday and Friday, to live at a specified address, wear an electronic tag, and crucially to submit to curfew between 23.00 to 7.00. every day.  The curfew lasted for 891 days.  The claimant was broadly though not wholly compliant with the curfew.  

First instance and the Court of Appeal: Lewis J held that the curfew constituted imprisonment for the purposes of the tort of false imprisonment, following R(Gedi) v SSHD at first instance [2015] EWHC 2786.  The claimant was awarded £4,000.  The CA agreed (the cross appeal on quantum was dismissed).  The Secretary of State (SoS) appealed arguing that the curfew did not amount to common law imprisonment, and that if it did, it did not amount to a deprivation of liberty under A5, and the common law concept of imprisonment should be aligned with A5.  

In summary, the Supreme Court decided that there could be an imprisonment at common law without there being a deprivation of liberty under A5.  But the court questioned, without deciding the point, whether the opposite was also correct, namely, whether, it was right to say that there could also be a deprivation of liberty without it being a common law imprisonment. In other words that it would be difficult to find a situation where an A5 deprivation of liberty would not also constitute a common law imprisonment.

R v Bournewood, ex p L [1999] 1 AC 458, is cited as the only example of a deprivation of liberty (HL v UK (2004) 40 EHRR 32) which did not amount to an imprisonment at common law (by a narrow 3:2 majority), a decision which might be decided differently today?  The claimant (Jalloh) argued that one may well be imprisoned without being deprived of liberty (e.g. Austin v Comr of Police of the Metropolis [2009] AC 564, [2008] QB 660, CA, and Walker v Comr of Police of the Metropolis [2015] 1 WLR 312, CA ), but the other way round is harder to envisage [23].  

On the facts of this case the court held that the claimant was imprisoned during the 8 hours of curfew.  It was ‘completely unreal’ to claim that he was free to come and go as he pleased at those times.  

The court held 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 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…..the person is obliged to stay where he is ordered to stay whether he wants to do so or not.” [24].  

The SoS sought to align the two concepts in order to avoid the conclusion that the claimant was imprisoned, because while a 16 hour curfew is an A5 deprivation of liberty an 8 hour curfew is not (Secretary of State for the Home Department v JJ [2008] AC 385).   Lady Hale described the SoS’s submission as a retrograde step to “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” [33]. Strasbourg draws a distinction between deprivation and restriction of liberty which the common law does not need to and there is “every reason for the common law to continue to protect those whom it has protected for centuries against unlawful imprisonment, whether by the State or private persons.” [33]

Commentary: 

The clarification of the line between a common law imprisonment and an A5 deprivation of liberty will be welcome in claims for damages arising from decisions, such as those commonly made by the Court of Protection, that a person (P) has been subject to an A5 deprivation of liberty without lawful justification.   It means that such claims may, and indeed should, be pursued under the common law in order to maximise damages which are significantly higher than under the Human Rights Act 1998, and can additionally include aggravated and exemplary damages in the right case.  This is because there is a good argument that facts establishing an A5 deprivation of liberty, will most probably also constitute a common law imprisonment.   The difference in damages is likely to be significant especially where had a defendant acted lawfully there would have been no deprivation of liberty or imprisonment, and there is no other power by which the person could have been lawfully be detained.  There is also a six year limitation period under section 2 of the Limitation Act 1980 as opposed to one year under section 7(5) of the Human Rights Act 1998.

The obstacle of Bournewood (above) remains, however, and on the test of imprisonment set out in this case it is highly likely, and as strongly hinted by Lady Hale, that if decided today L would be found to have been imprisoned under the common law.  While the court has confirmed that an imprisonment is not inevitably a deprivation of liberty, it would be surprising if an A5 deprivation of liberty is not also an imprisonment.  The elements of an A5 deprivation of liberty are more extensive than but also include those that constitute an imprisonment. In domestic law an A5 deprivation of liberty in a hospital or care home is established if a person is ‘under continuous supervision and control and not free to leave’ (Surrey County Council v P [2014] 2 WLR 642).   This test was formulated by reference to Strasbourg jurisprudence by which there is a more nuanced and extensive range of factors to take into account which draw a distinction between a restriction and deprivation of liberty. The classic statement is in  Guzzardi v Italy (1980) 3 EHRR 333 at [92]:

“In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.”

So whereas a 16 hour curfew has been held to be a deprivation of liberty, an 8 hour curfew is not (JJ  above), but they both will constitute an imprisonment.  However, for a person living  in a care home this may feel like a 24 hour curfew, where they are continually monitored and unable to or prevented from leaving by a locked door, or simply by care staff telling them they cannot leave, or bringing them back if they should leave, and this must satisfy tests for both imprisonment and deprivation of liberty.