Deprivation of Liberty

February 12th, 2020 by James Goudie KC

In R (Jallow) v SSHD (2020) UKSC 4 the Supreme Court considers, in the context of an immigration curfew, whether the meaning of “imprisonment”, at common law, should be aligned with the concept of deprivation of liberty (“DoL”) under Article 5 of the ECHR.  Lady Hale explains that the ECHR distinguishes between DoL and restriction of physical liberty.   Whether there has been a DoL depends on a number of factors.  The Supreme Court unanimously declines to accept the argument by the SoS that the time has come to align the domestic law of false imprisonment with the concept of DoL.  This would be a retrograde step. It would restrict the classic understanding of imprisonment at common law with the “much more nuanced” concept of DoL. There is no need for the common law to draw a distinction between deprivation and restriction of liberty, and good reason not to do so. It is possible for there to be imprisonment at common law without a deprivation of liberty under ECHR Article 5.  It was not necessary to decide whether the concept is true.

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