n South African Journal on Human Rights - The right to the residual liberty of a person in incarceration : constitutional and common law perspectives

Volume 28, Issue 3
  • ISSN : 0258-7203



To what extent does the law protect the liberty of a person in lawful incarceration? This question arises at the backdrop of the importance the common law and modern constitutions attach to the right to personal liberty. Simply put, does a prisoner enjoy the right to residual liberty under the constitutional and common law systems where the prison authorities have imposed restraints not permitted by the law authorising incarceration in the first instance? The answers to these questions elicit a sharp division. Canadian and South African courts operating a and a Bill of Rights respectively have held that the right to residual liberty exists. Yet, in spite of the emphasis English courts place on the right to personal liberties, they deny the existence of the right to residual liberty of a prisoner. Recent cases from the now defunct House of Lords and the Court of Appeal show that actions for damages based on the violation of that right fail in English courts unless the plaintiff can link the alleged wrongful act to an existing tort. That notwithstanding, a plaintiff who bases his claim on the tort of false imprisonment is bound to fail but if he alleges misfeasance in public office and goes further to prove the high threshold of that tort, his action might succeed.

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