The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.
The case concerned a claim made by Mr Jalloh – his name apparently misspelled in the court below as Jollah – that, as a result of a nightly curfew between 11pm and 7am imposed under immigration powers for over two years, he had been falsely imprisoned, and was entitled to damages as a result.
As summarised by Lady Hale:
This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR.
The Secretary of State had argued in the Court of Appeal that a curfew amounted to voluntary compliance with a request to remain in a particular physical place.
This argument was about as successful as the last charge of the Dothraki in the final season of Game of Thrones, and it was perhaps surprising to see the Secretary of State giving it another go. [The rest of this article is free from Game of Thrones spoilers — Ed.]
In response to these rehashed arguments, the Supreme Court held that
24. 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…
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.
Lady Hale betrayed some of the irritation on display in the courts below with the position taken by the Secretary of State:
The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.
An interesting feature of the judgment is the court’s treatment of the argument that the concept of imprisonment in the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of Article 5 ECHR.
In response, the Supreme Court hold that the protections under the common law in cases such as this are greater than those afforded by human rights legislation.
Lady Hale characterised the state’s case on this point as:
asking this Court… not to develop the law but to make it take 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.
The current incumbents of Downing Street have made clear their intention – via the Conservative manifesto – to “update” the Human Rights Act. The Attorney General, Geoffrey Cox, was heard this morning at the Institute for Government putting some flesh on this idea:
We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security, and effective government.
What this decision indicates is that judges believe themselves able to protect the rights of individuals even without the aid of the Human Rights Act. Striding out purposefully from the pavilion to bat for the common law, the court holds that there is
every reason for the common law to continue to protect those whom is [sic] has protected for centuries against unlawful imprisonment.
In what is likely to be one of her final Supreme Court judgments before retirement, it feels somehow right that Lady Hale is still sending shots across the bows of those who wrongly believe that human rights in this country began with the European Convention.