AC-2023-LON-001921 - [2025] EWHC 1416 (Admin)

In order to discharge the Article 26/624 duty of deduction, it is necessary to ask whether there has been “detention”. That means a “deprivation of liberty”. A period in a prison remanded in custody is a deprivation of liberty. But some circumstances of house arrest can be sufficiently intrusive also to constitute a deprivation of liberty. In the leading relevant case of JZ v Prokuratura Rejonowa Lodz (Case C-294/16 PPU), the Court of Justice of the European Union (CJEU) explained that “detention” in Article 26 of the Framework Decision has an “autonomous” meaning (JZ at §37). The Article 26 deduction for time in “detention” was a minimum level of protection (JZ at §55). It applies where the measure – viewed by reference to its type, duration, effect and manner of implementation – has constituted (JZ at §§46-47) a “deprivation of liberty” rather than a “restriction of liberty”, which was “for the referring court to ascertain”. Deciding whether house arrest does constitute a deprivation of liberty requires an evaluative judgment, in the application of the “autonomous” meaning of “detention”. That evaluative judgment is one of the themes recorded in the 28 March 2023 Further Information (Doga §16), by reference to a discussion in the French Supreme Court’s judgment of 17 March 2021.