R (on the application of Jollah) v Secretary of State for the Home Department [2018] EWCA Civ 1260: The Court of Appeal has upheld an award of damages for false imprisonment in the context of immigration detention. The Court found that an unlawful curfew which required residence at a specific address between specific hours each day and which was backed by the threat of criminal sanctions and electronic tagging gave rise to the tort of false imprisonment.
Background law and facts
The claimant was released from prison in 2013 and then detained in an immigration centre. He was then released on bail which came with restrictions on where he could live. When the bail period ended, the secretary of state tried to maintain these residence restrictions. She purported to use her powers under the Immigration Act 1971 Schedule 3 Paragraph 2(5) to impose a curfew on the claimant which required him to stay at his home address between 11pm and 7am every day. The claimant was fitted with an electronic tag and told that he would face a fine or imprisonment if a court found that he did not comply with the terms of the curfew. This curfew was in place for two and a half years, from February 2014 until July 2016.
Issues before the Court
It was accepted by both sides that the secretary of state had acted unlawfully in imposing this curfew, since she did not have the powers claimed under the Immigration Act 1971 in light of the decision in R (on the application of Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409. The questions before the Court were whether the claimant's unlawful curfew arrangements amounted to false imprisonment and, if so, what amount of damages he should receive.
Ruling
The Court decided that the curfew amounted to "imprisonment" in the sense meant by the tort of false imprisonment. The main issue was whether the claimant had voluntarily complied with the curfew notice. Although there was no guard and the claimant was not locked inside his house, he would not always have stayed in his house if there had not been a curfew that was supported by the threat of criminal sanction and electronic tagging. The fact that there was no entire restraint on the claimant's behaviour was only relevant to the issue of damages, not whether he was falsely imprisoned. It was wrong to say that the claimant was freely following the curfew restrictions given that he had no reasonable or lawful means to escape his imprisonment. These restrictions were not a "mere instruction". The only way that the claimant could avoid the curfew would have been by acting in a way that would trigger a possible criminal sanction, which was hardly a reasonable option. The Court concluded that it was more accurate to describe the claimant's behaviour as compelled through "submission to a legal process". As a result, the claimant was adjudged to have been falsely imprisoned in his own home "under a sort of house arrest" [82]. The Court stated that
it cannot be adjudged to be reasonable that IJ [the Claimant] could circumvent the curfew instruction by acting in a way which necessarily would attract a potential criminal sanction of a fine and or imprisonment [82].
The Court also upheld the Divisional Court's assessment of damages at £4,000. The Court of Appeal emphasised the need to avoid a general tariff, and instead to look at the facts of each case. In the present case, the restrictions on the Claimant's liberty were deemed "not to be complete or total for the entirety of each day" [93]. The curfew restrictions were not found to interfere with the Claimant's chosen lifestyle in a fundamental way and the loss of his liberty was less serious than someone wrongly detained in custody.
The judge was therefore entitled to find that the actual adverse effects were relatively limited over the period. He did not make a mistake in principle by failing to start with a figure for a "full" wrongful detention before discounting that to take into account the more limited restraints involved in the present case, since there was a pronounced "qualitative difference" between the two situations [97].
Comment
This judgment has clarified the boundaries of the tort of false imprisonment in a few important ways.
First, it emphasises the difficulty in extracting general principles from the case law given the fact-specific nature of the cases in this area: see [85] in particular. The Court was candid in its assessment of the case law, noting that some of the decided cases involve "quite fine distinctions" and are "sometimes not always altogether easy to reconcile" [58].
Second, it explains the "significant" differences between the approach to a claim under Article 5 of the European Convention of Human Rights (ECHR) for an unlawful deprivation of liberty and a false imprisonment claim under domestic law [29]. In Article 5 ECHR cases, the courts have tended to take a broad view of the restraint whilst maintaining the distinction between deprivation of liberty on the one hand and restriction on movement on the other. This divergent approach is illustrated by the fact that extensive curfew requirements might not necessarily cause an infringement on the one hand (Guzzardi v Italy(1981) 38 EHRR 17), and that there could be deprivation of liberty without false imprisonment on the other hand (Walker v Commissioner of Police of the Metropolis [2014] EWCA Civ 897).
Third, it illustrates that the courts are not afraid to apply a robust standard of scrutiny to the government's description of its own detention restrictions. The court was unimpressed by the secretary of state's contention that the curfew restrictions in the present case amounted to a "mere instruction" that was divorced from any coercive implication [83]. Instead, the court looked carefully at the substance of the restriction, its overall effect on the life of the claimant, and the reasonableness of the options available to the claimant to avoid the restrictions.