Jollah, R (on the application of) v Secretary of State for the Home Department

The statutory framework is complex and is fully set out in the judgment of Sir Brian Leveson P. and Gross L.J. in Gedi at paragraphs 17 to 23. In essence, there is in place a regime for the detention, and grant of bail, for, amongst others, a foreign national criminal convicted of certain offences. Section 32 of the UK Borders Act 2007 (“the 2007 Act”) defines foreign national criminals. Section 36 of that Act provides, so far as material that:

“Detention

“(1)

A person who has served a period of imprisonment may be detained under the authority of the Secretary of State— (a) while the Secretary of State considers whether section 32(5) applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.

“(2)

Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the immigration Act 1971 (c 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.

…..

“(4)

Provisions of the Immigration Act 1971 which apply to detention under paragraph 2(3) of Schedule 3 to that Act shall apply to detention under subsection (1) (including provisions about bail).

“(5)

Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting restrictions) applies to a person who is liable to be detained under subsection (1).”

Detention and bail are dealt with in paragraph 3 of Schedule 3, and paragraph 22 of Schedule 2 to the Act which provide, so far as material to this case, that:

“(3)

Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).

…..

“(4A). Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), (2) or (3) of paragraph 2 of Schedule 3 to the 1971 Act] as they apply in relation to a person detained under paragraph 16 of that Schedule.”

Paragraph 22 of Schedule 2 provides, so far as material, that:

“(1A) An immigration officer not below the rank of chief immigration officer or the First-tier Tribunal may release a person so detained on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before an immigration officer at a time and place named in the recognizance or bail bond or at such other time and place as may in the meantime be notified to him in writing by an immigration officer

…..

“(2)

The conditions of a recognizance or bail bond taken under this paragraph may include conditions appearing to the [ immigration officer or the First-tier Tribunal to be likely to result in the appearance of the person bailed at the required time and place; and any recognizance shall be with or without sureties as the officer or the First-tier Tribunal may determine.

…..”

Finally there is provision for the imposition of restrictions on, amongst others, persons liable to be detained. Paragraph 2(5) and (6) of Schedule 2 to the Act provides that:

“(5)

A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration office , as may from time to time be notified to him in writing by the Secretary of State.

“(6)

The persons to whom sub-paragraph (5) above applies are –

…..

(b)

a person liable to be detained under sub-paragraph (2) or (3) above, while he is not so detained”.

Section 24 of the Act provides for criminal penalties in the event of a failure to comply with such a restriction. That section provides, so far as material, that:

“ 24.— Illegal entry and similar offences.

“(1)

A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases:—

.....

(e)

if, without reasonable excuse, he fails to observe any restriction imposed on him under Schedule 2 or 3 to this Act as to residence, as to his employment or occupation or as to reporting to the police, to an immigration officer or to the Secretary of State”.

As indicated, the facts in the present case have not been determinatively established. The hearing proceeded on the basis that the bail granted by the First-tier Tribunal came to an end on or about 30 October 2013 when the Claimant reported to the relevant immigration officer. Thereafter, the assumption was that the Claimant was a person in respect of whom a deportation order had been made and so was liable to be, but was not in fact, detained (as a person falling within paragraphs 2(3) and (6)(b) of Schedule 3 to the Act). The Defendant had not granted him bail but had purported to impose restrictions under paragraph 2(5) of Schedule 3 to the Act. In reply, Mr Hickman for the Claimant, indicated for the first time that he may in fact seek permission at some future date to amend the grounds of claim to allege that the Claimant was not a person subject to a deportation and that certain legal consequences might flow from that.

Against that background I consider the two issues that were directed to be considered at this hearing.

The Claimant contends that he is seeking a declaration of his rights. He invited the court to make a declaration that “the curfew imposed on Mr Jollah on 30 October 2013 and maintained until it was lifted by the order of Mr Justice Collins on 14 July 2016 was unlawful”.

The Claimant contends that the court has power to make the declaration sought. He submitted that it was appropriate to do so as it was important to vindicate the Claimants rights. Further, he submitted that there was a need, as Mr Hickman expressed it in his skeleton argument, “for 100% clarity as to the legal position”. By letter dated 10 February 2017, the Defendant indicated that she did not consider the declaration sought was necessary but:

“to save the Court’s time and to any distraction that may result from the Claimant’s continued pursuit of this issue at the hearing on 14 February, the Defendant confirms that she is content for the Court to include a declaration in the order following the conclusion of the hearing on 14 February 2017 to the effect that: “The curfew imposed on 30 October 2013 and maintained until it was lifted by Order of Mr Justice Collins on 14 July 2016 was not lawfully imposed”.

The court may make binding declarations (see CPR 40.20). The grant of declaratory relief is discretionary. In the context of public law litigation, a declaration may be granted to determine an individual’s rights or to determine whether or not an exercise of statutory power was lawful. In private law proceedings, the court may grant a declaration as to rights or the existence of facts or a principle of law if those rights, facts or principles have been established to the court’s satisfaction. The court should not, however, simply grant a declaration merely because the relevant facts or principles are established and a party asks for a declaration. Rather the court needs to consider justice to the parties, whether the declaration would serve a useful purpose and whether there are any special reasons why or why not the court should grant an injunction (see Financial Services Authority v Rourke [2002] C.P. Rep. 14).

I am satisfied that the court has the power to make a declaration of the type sought in this case. On the facts of this particular case, however, I am satisfied that it would not be appropriate to exercise such a power. First and foremost, the relevant facts are not established. Indeed, the declaration as sought is based on facts which counsel accept are almost certainly - and demonstrably - incorrect. The restriction or curfew imposed was not, as said in the proposed declaration, imposed on 30 October 2013. On even a cursory reading of the notice of 30 October 2013 imposing the restriction, the claimant was required to be at a specified address on 2 November 2013 for the monitoring equipment to be installed and, following induction, the restriction would apply. Furthermore, on the Claimant’s own evidence, the monitoring equipment was not installed until 3 February 2014 and, it seems, the restriction did not apply until that date at the earliest. The claim form actually refers to the Claimant being subject to a curfew from 8 March 2014 (although Mr Hickman, for the Claimant, indicated in argument that he considered that date to be wrong). Furthermore, both parties accept that there were, or were probably, days when the restriction was modified so that no restriction applied. The parties have not, for whatever reason, identified the days when that was the case.

It would not be appropriate, indeed in my judgment it would be wrong, to make a binding declaration that a curfew was unlawfully imposed on, and maintained between, certain dates when, in fact, that was not true. Further, the purpose underlying the declaration is to argue, it seems, that the maintenance of an unlawful curfew on the dates specified in the proposed declaration was sufficient to constitute the element of detention necessary for the tort of false imprisonment. Given that the Claimant was not subject to a curfew on a number of months and days included within the declaration, it would, in my judgment, be misleading to make the declaration sought with the impression that a curfew on those dates was in place and the relevant issue was whether restrictions during those periods amounted to detention for the purposes of a damages claim for false imprisonment. Refusal of the declaration sought would not cause any injustice to the Claimant. The restriction or curfew was in any event lifted on 14 July 2016. He is not presently subject to any such restriction and no remedy is necessary to remove the effects of an unlawfully imposed restriction. Further, if, as appears to be the case, the purpose of the litigation now is to claim damages for false imprisonment, that can be (and in my judgment is more appropriately) done by a trial at which the periods of any alleged false imprisonment can be correctly and accurately determined. For all those reasons I refuse the declaration sought. I would add that it is, in my judgment, unfortunate, and surprising, that the Claimant seeks a declaration which is clearly factually wrong and equally regrettable, and surprising, that the Secretary of State consents to the grant of such a declaration.

In his reply, Mr Hickman suggested that it may be possible to redraft a declaration so that it provided that the imposition of a requirement by the Secretary of State along the lines of that included in paragraph 6 of the notice of restriction issued in this case pursuant to paragraph 2(5) of Schedule 3 to the Act would be unlawful. First, it is not necessary to grant any remedy to establish that general legal position. It is established by the decision of the Court of Appeal in Gedi. Secondly, a declaration of that generality would serve no purpose, certainly no useful purpose, for the Claimant. As indicated, he is not presently being subject to any restriction in the form of a curfew and no declaration or quashing order is necessary in his case. A declaration of that generality would not assist his case in relation to his claim for false imprisonment. If he establishes that the restrictions amount to detention for the purpose of the tort of false imprisonment, the question of whether such a restriction is authorised under paragraph 2(5) of Schedule 3 to the Act has already been resolved by the Court of Appeal in Gedi. In the circumstances, it would not, in my judgment, be appropriate or necessary to consider granting some alternatively worded declaration.

The second issue directed to be determined at this hearing concerns one element of the tort of false imprisonment. That tort “has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it” (per Lord Bridge of Harwich in R v Deputy Governor of Parkhurst Prison ex p. Hague [1992] A.C. 58 at 162C-D and see R (Lumba) v Secretary of State for the Home Department [2012] 1 A.C. 245 at paragraph 65).

The question directed to be determined at this hearing is whether the imposition of a restriction of the sort contained in the notice purportedly given under paragraph 2(5) of Schedule 3 to the Act (which the Claimant refers to as the unlawful curfew) constitutes the element of detention necessary for the tort of false imprisonment. The restriction is one whereby the Claimant is to be present at a specified address between specified hours, i.e. 23.00 to 0700 each day.

The situation, therefore, is one where the Defendant purported to use powers to restrict the movements of the Claimant so that the Claimant was required to stay for 8 hours a day at a particular address. Failure to comply with that restriction was a criminal offence unless the Claimant had a reasonable excuse for non-compliance. The Claimant was subject to a system of electronic monitoring which enabled the Defendant to know whether or not he had been absent from the specified address during the specified period. There was no physical barrier preventing the Claimant leaving the property during the specified hours and, in fact, there were days when days when the Claimant was not at the property for the period for the period from 23.00 to 07.00 a.m. He was absent, it seems, on some days for a few minutes or hours, and on some days for the entire period. There were also days when the restriction was varied or removed.

The Claimant’s case is that the imposition of the restriction to remain at the property during specified periods, it being a criminal offence to be absent without reasonable excuse, particularly given that the restriction was reinforced by electronic monitoring, does amount to detention or imprisonment for the purposes of the common law tort of false imprisonment. The Claimant accepts that he was not detained in the sense required by the tort of false imprisonment on the days or times when the restriction was suspended or varied and did not apply. He further accepts that he was not detained during the times when he in fact absented himself from the premises.

Firstly, the Claimant contends that the restriction falls within the definition of imprisonment expounded in cases such as Bird v Jones (1865) 7 Q.B. 741. There, part of a public highway had been enclosed and used for spectators for a boat race. The plaintiff wished to enter that part of the highway but was prevented from doing so. The plaintiff was able to stand unrestrained where he was and was told he could go in the direction that he had come. The majority found that he had not been falsely imprisoned: he had been subjected to a partial obstruction but that restriction on his freedom did not amount to imprisonment. Coleridge J. expressed the concept of imprisonment in the following way:

“I am of opinion that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and detention. A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be moveable or fixed: but a boundary it must have; and that boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would confine him, except by prison-breach. Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go whithersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.”

Further, the Claimant contends that the situation is analogous to that identified in cases such as Grainger v Hill 4 Bing. N.C. 212 where the court held that the submission to legal process amounted to false imprisonment. There, the defendants attended at the property of the plaintiff with a writ of arrest and told the plaintiff that unless he delivered up a register of a ship, or provided bail, he would be either be taken or a man left with him. That was held to amount to false imprisonment. The Claimant submitted that the situation was analogous to that in the present case, where a restriction was imposed and he had to comply to avoid committing a criminal offence.

Secondly, and significantly, the Claimant submitted that the High Court had already held that a restriction of this sort, imposed pursuant to paragraph 2(5) of Schedule 3 to the Act, and requiring an individual to remain at a particular property for specified periods, did amount to imprisonment for the purposes of the tort: see R (Gedi) v Secretary of State [2015] EWHC 2786 (Admin.) Edis J. said the following at paragraphs 65 to 67 of his judgment:

“65 During period 3, for nearly four months, the claimant was subject to a curfew and tagging when he should not have been. Letters to enforce the curfew were sent, but he was not arrested and not otherwise punished.

“66 I have been addressed as to the law by reference to Clerk & Lindsell 21st Edition 15-23/15-28. This is because both sides accept that it accurately states the law. The SSHD submits that she had no intention to detain the claimant in his home between the hours of 00:00 and 06:00 (or during the earlier time regime) and therefore that this element of the tort is not made out. In the light of the warning letters I reject that submission. They were calculated to ensure that he stayed at home during that time in fear of imprisonment if he did not. The tag on his ankle and the equipment in his home demonstrated to him that the SSHD meant business when issuing those threats.

“67 False imprisonment is the unlawful imposition of constraint on another's freedom of movement from a particular place, see paragraph 15-23 of Clerk & Lindsell. I have used the expression “house arrest” above. It appears to me that for the State to threaten a person with imprisonment if he leaves his home is plainly a sufficient constraint to constitute this tort and it is now conceded that those threats during this period were without lawful justification. It appears to me that the elements of this tort are made out during this period.

In the Court of Appeal, the Secretary of State did not appeal the finding in relation to false imprisonment although sought to challenge the finding in argument. The Court declined to deal with the issue. Sir Brian Leveson P and Gross L.J. said this at paragraphs 39 to 40 of their judgment:

“39 With regard to whether consequently the appellant has an action for false imprisonment, Edis J decided (at paras 65–67) that the appellant did have such an action in relation to period 3 where the SSHD conceded there was no lawful justification for the curfew in that period. Although there was neither a cross appeal in relation to period 3 in respect of this finding nor a respondent's notice in relation to the other three periods, Mr Tam sought to challenge the finding on the basis that it was raised in the skeleton argument and did not, therefore, take the appellant's counsel by surprise. The failure to comply with the CPR cannot, however, be sidestepped by reference to a skeleton argument and we are not prepared to deal with the argument in the context of this case although we note Mr Tam's proposition that compliance with a requirement is not the same as being physically confined and that a person is not to be regarded as “detained” whenever they are complying with such a condition (which will not necessarily amount to a deprivation of liberty for the purposes of article 5 of the ECHR : see Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] AC 385).

“40 For the purposes of this judgment, it is sufficient to say that we do not go behind the conclusion reached by Edis J in relation to period 3 or the inevitable impact of that conclusion in relation to the other periods. This flows from the absence of an effective respondent's notice. Having said that, we would not want it to be thought that this decision is any authority for the proposition that a finding of false imprisonment will (or should) follow in circumstances such as these.”

Consequently, the Claimant submitted that the decision of Edis J. remained authority for the proposition that the restriction of the sought imposed in the present case did amount to detention for the purposes of the tort of false imprisonment and that this Court should follow, although not strictly bound by, the decision of Edis J.

The Claimant also contended that Collins J. in MS v Secretary of State for the Home Department [2016] EWHC 3162 (Admin.). That case concerned a condition whereby a person could not spend more than 3 consecutive nights away from a specified address, or 10 nights in any 6 month period, without the written consent of the Secretary of State. Collins J. did not consider that that amounted to a detention for the purposes of the tort of false imprisonment. Collins J. made observations on the decision of Edis J. in Gedi, noting that he could understand why a curfew, breach of which amounted to a criminal offence, amounted to detention. In the event, however, Collins J. was dealing with a different restriction from that imposed in Gedi. I do not regard Collins J.’s observations in relation to Gedi as amounting to part of the ratio of MS. In any event, it would not add to the legal analysis. The question would remain as to whether a first instance judge should follow the decision of Edis J. in Gedi.

Mr Tam Q.C., on behalf of the Defendant, contends that the decision of Edis J. in Gedi is wrong and this court should not follow that decision but should decide that the restriction imposed by the Secretary of State did not amount to detention for the purposes of the tort of false imprisonment.

Mr Tam characterises the situation here as one where the restriction amounted to an instruction to an individual, living at home, to remain in that home which was backed by a warning of possible prosecution if he did not do so. He submitted that the context was one where the Claimant would be living at that address anyway. There was no physical impediment to the Claimant leaving the property during the specified times (and, in fact, he appears to have been absent from the property during the specified time on a number of occasions). The fact that such absences may have involved unlawful acts on the part of the Claimant did not mean that the restriction amounted to detention.

Mr Tam then sought to derive a number of propositions from the existing case law which, he submitted, indicated that a restriction described in the sense set out in the previous paragraph, would not amount to detention for the purposes of the tort of false imprisonment. The principles were:

The principles were said to be derived from Arrowsmith v Le Mesurier (1806) 2 Bos & Pul NR 211; Berry v Adamson (1827) 6 B & C 528; Grainger v Hill (1838) 4 Bing NC 212; O’Brien v Jenson (1920) 53 DLR 616; Meering v Graham-White Aviation Co. Ltd. (1920) 122 T.L.R.44; Collins v Wilcock [1984] 1 W.L.R. 1172; R v Bournewood Mental Health Trust ex parte L. [1999] 1 A.C. 458; R (Gillan) v Metropolitan Police Commissioner [2006] 2 A.C. 307; Bird v Jones (1845) 7 Q.B. 642; Syed Mahamad Yufus-Ud-Din v Secretary of State for India (1903) 30 LR Ind. App. 154; Robinson v Balmain New Ferry [1910] A.C. 295; Warner v Riddiford (1840) 4 CB NS 180 and Wright v Wilson (1699) 1 Ld. Raym. 739. For the reasons set out below, it is not necessary for this court to consider in detail the facts, and the ratio, of each of these cases.

The starting point is that Edis J., sitting as a judge of the High Court, has held that a restriction comprising a requirement that a person stay at a specified address for a specified number of hours a day, where failure to comply without reasonable excuse amounted to a criminal offence, did constitute the element of detention for the purpose of the tort of false imprisonment. That judgment has not been the subject of detailed consideration by the Court of Appeal.

A judgment of a judge of the High Court is not binding on another judge of the High Court but that judge will follow the earlier decision unless he or she is convinced that it is wrong: see R v Manchester Coroner ex p. Tal [1985] 1 Q.B. 67 at 81A-C and Police Authority for Huddersfield v Watson [1947] 1 K.B. 842 at 848. The Privy Council has observed that High Court judges are not technically bound by decisions of other High Court judges “but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so” (see paragraph 9 of the judgment of the Privy Council in Willers v Joyce (No. 2) [2016] 3 W.L.R. 534). Such principles contribute to coherence and certainty within the legal system. They are likely to contribute to efficient and more cost-effective use of resources as the same point will not normally be re-argued at length and cost before different High Court judges.

Applying those principles here, I am not convinced that the judgment of Edis J. was wrong, nor has any powerful reason been advanced to justify this court not following that judgment. First, as a matter of principle, the decision of Edis J. is consistent with the existing case law on the meaning of detention for the purposes of the tort of false imprisonment. The finding that the imposition of a requirement that a person stay in a particular place for a specified number of hours a day, that requirement being backed by criminal sanctions and reinforced by electronic monitoring and reminders of the relevant provisions of the criminal law and the need to comply, constitutes detention is one that is readily understandable.

Secondly, the arguments advanced by Mr Tam do not, of themselves, establish that the decision of Edis J. is wrong. The characterisation of the requirement as an instruction backed by a warning of possible prosecution does not appear to me to be apt to describe the situation here. This is a case where the Defendant purported to use powers to ensure that a person (who was liable to detention) remained in a particular place for 8 hours a day and where to comply without reasonable excuse was a criminal offence (whether or not it would, ultimately, lead to a prosecution and the imposition of sanctions. Viewed in that light, none of the cases relied upon by Mr Tam do, in fact, approximate to the situation that applies in this case. Mr Tam relies upon cases which indicate that a decision voluntarily to attend a court where an arrest warrant had been issued but did not need to be acted upon as the person concerned voluntarily attended court in any event (as in Arrowsmith, and Berry cited above). There are, however, other cases where the court has found that circumstances indicative of restraint albeit falling short of physical restraint do constitute detention (see, e.g., Grainger cited above). It is not immediately apparent that the decision of Edis J., on the very different facts of this case (involving the use of statutory powers to effect a restriction reinforced by reliance on criminal sanctions) falls within the former rather than the latter group of cases. Further, it appears that the arrest cases may involve situations where the warrant authorised arrest, but until the warrant was executed and the person was arrested, there would be no detention. They may not have involved situations where non-compliance (by failing to reside in a particular place) of itself amounted to a criminal offence.

Furthermore, it is not clear from the case law that a physical ability to leave a place means that there is no imprisonment even if use of the route involves unlawfulness. Mr Tam derived that proposition from the decision in Wright v Wilson (1697) 1 Ld. Raymond 740. The short report of that case indicates that it involved a situation where A had a room adjoining a room of B and B’s room had a door which opened into a passage, allowing a person to leave. The court held that locking the door of A’s room did not involve the tort of false imprisonment as A could leave through B’s room, albeit he would be a trespasser. I am not convinced that that case, dealing with possible unlawfulness in civil or private law, is applicable to a situation that a person who may only leave a particular place in circumstances amounting to a breach of the criminal law.

For completeness, I note that there was some discussion in argument as to whether other forms of legal, rather than physical, restraint could amount to detention for the purposes of the tort of false imprisonment and whether those situations were analogous to, and cast light upon the question of what was the nature of, a requirement which amounted to a detention for these purposes. Consideration was given in particular to the grant of bail with a curfew requirement attached. It is not immediately apparent that a curfew attached to a decision to release a person from prison or immigration detention itself amounts to detention. Mr Hickman submitted that it may (presumably on the basis that it is still a form of restriction or constraint, albeit a less onerous one than complete restraint) but he submitted that there were arguments that it was not detention as the person could choose either detention or release on curfew. If bail with a curfew requirement did not amount to the factual element of detention for the tort, it is not immediately apparent that a restriction similar in kind imposed pursuant to a restriction was detention. (This argument is only concerned with the question of whether a restriction in the nature of a curfew satisfies the factual element of the tort was established, not the separate question of whether any particular curfew requirement was authorised as a matter of law so that any detention that had occurred was lawful). Other possible analogies in the criminal justice context, such as remand on bail but subject to a curfew, or the imposition of a suspended sentence with requirements to attend particular courses at particular places were raised in argument. None of these issues were conclusively resolved in the course of argument.

For those reasons, Mr Tam may well have arguments as to whether a restriction of the sought imposed here may not amount to detention. It is possible that if such arguments, or other arguments, were advanced to the Court of Appeal that Court might overturn the decision of Edis J. in Gedi. At present, however, I cannot be convinced that the judgment of Edis J. is wrong, nor have any powerful arguments yet been advanced to justify a departure from the decision of Edis J. For those reasons, this court should follow the decision of Edis J. and proceed on the basis that the restriction imposed in the present case, requiring the Claimant to spend eight hours a day in a particular place, that restriction being reinforced by criminal sanctions and electronic monitoring does amount to a detention for the purposes of the tort of false imprisonment.

For completeness, I note that none of the parties suggested that the fact that the Claimant could, if prosecuted, have raised the invalidity of the restriction as a defence to the charge (relying on Boddington v British Transport Police [1999] 2 A.C. 143) affects matters. Furthermore, the parties accept that the question of what constitutes deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights has been held by the Court of Appeal to differ from what constitutes detention for the purposes of the common law tort of false imprisonment and that it is not open to me, even if it were possible or appropriate to do so, to seek to align the two concepts (see Austin v. Commissioner of Police of the Metropolis [2008] Q.B. 660, approved [2009] 1 A.C. 564). Therefore, for present purpose, the question of whether the restriction would be a restriction rather than a deprivation of liberty, if challenged on the grounds that it was incompatible with Article 5 ECHR, does not assist this court in determining whether the restriction constitutes detention for the purposes of false imprisonment at common law.

The claim in the present case involves a claim for damages for false imprisonment and for misfeasance in a public office. The Claimant also seeks aggravated and exemplary damages. The Defendant resists those claims. In addition, it seems that the Defendant intends to contend that the Claimant would have been detained and granted bail subject to a restriction of the sort imposed in this case if it had been realised that there was no power to impose that restriction pursuant to paragraph 2(5) of Schedule 3 of the Act and that would have been lawful. Hence, the Defendant submits that the Claimant would only receive nominal damages (applying the decision of R(Lumba)) v Secretary of State for the Home Department [2012] A.C. 245). In this case, there is no separate public law issue as to whether restrictions could have been imposed under paragraph 2(5) of Schedule 3 to the Act as that has been resolved by the Court of Appeal in Gedi.

In those circumstances, the appropriate method of litigating the claim would be to have a trial of those claims, where all the facts and relevant issues law could be determined at one hearing. The approach adopted in this case of seeking to separate out one element of the tort of false imprisonment (whether the restriction amounted to the factual element of detention) and seeking to obtain a declaration which, in part, would have identified the factual periods when the restriction was imposed was not helpful. First, the issue of the periods when the restriction was imposed could not be determined without consideration of the facts and the parties were not in a position to address those facts. Secondly, the approach is likely to have resulted in increased cost and delayed the final resolution of the claim. Furthermore, the order provided that the issues of the declaration for detention was to be determined on the basis of the facts as pleaded in the grounds of claim. With respect to the deputy High Court judge, it is not appropriate to make an order which seeks to limit the court dealing with the case in that way, particularly since the issue concerned factual questions relating to the period when the restriction was imposed. Further, it was not, in any event, possible to limit the matters as proposed as the fact in the claim form were consistent with the Claimant’s own witness statement and documents attached to it (and the subsequent disclosure of the Defendant) and, in fact, counsel for the Claimant submitted at the hearing that the facts in the grounds of claim identifying the date on which the restriction was imposed (which the claim form says was the 8 March 2014) were probably wrong.

In the circumstances, the sensible course of action is to fix a hearing date which will enable the claim to be dealt with and, with all the facts and matters relevant to the claim being established. The parties were invited to submit draft directions aimed at achieving that result.

It is not appropriate to grant a declaration identifying the periods when the Claimant was subject to a restriction to stay for particular periods of time at particular places. The facts have not yet been established and the court is not in a position to make a binding declaration that a restriction was imposed on a particular date or maintained for a particular period. In the circumstances of this case, the court should follow the decision of Edis J. in R (Gedi) v Secretary of State for the Home Department [2015] EWHC 2786 (Admin.) that a restriction requiring a person to reside for eight hours a day at a particular place, non-compliance with which without reasonable excuse was a criminal offence, amounted to detention for the purposes of the tort of false imprisonment.