R v. Brixton Prison Governor, Ex parte Ahson and Others
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 10 April 1968 |
| Citation / Document Symbol | [1969] 2 QB 222, [1969] 2 All ER 347, [1969] 2 WLR 618, 133 JP 407 |
| Cite as | R v. Brixton Prison Governor, Ex parte Ahson and Others, [1969] 2 QB 222, [1969] 2 All ER 347, [1969] 2 WLR 618, 133 JP 407, United Kingdom: High Court (England and Wales), 10 April 1968, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b7140.html [accessed 27 May 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R. v. BRIXTON PRISON GOVERNOR, Ex parte AHSON AND OTHERS.
QUEEN'S BENCH DIVISION
[1969] 2 QB 222, [1969] 2 All ER 347, [1969] 2 WLR 618, 133 JP 407
Hearing Date: 3, 4, 10 April 1968
10 April 1968
Index Terms:
Commonwealth Immigrant -- Admission -- Examination by immigration officer -- Time for examination -- Onus of proving time of arrival in country -- Notice refusing admission -- Commonwealth Immigrants Act 1962 (10 & 11 Eliz. 2 c. 21), Sch. 1, para. 1 (2), para. 2 (3).
Held:
The applicants who were British subjects under the British Nationality Act 1948 and also Commonwealth citizens under the Commonwealth Immigrants Act 1962 were found trudging along a road near Banstead on the morning of 10th February 1968. They were taken to Banstead police station for interrogation by the police and later examination by immigration officers. As a result each was served with a notice refusing him entry into this country, and they were removed to Brixton Prison. In each case an immigration officer stated on affidavit that he was not satisfied that the applicant in question had arrived in this country more than 24 hours before he was examined. By para. 1 (2) * of Sch. 1 to the Commonwealth Immigrants Act 1962, immigration officers were not empowered to examine any person 24 hours after he had landed, and by para. 2 (3) n+ a notice refusing admission could not be given to any person more than 12 hours after the conclusion of his examination. The applicants maintained they had landed on 7th February and were taken to a house where they had lived for three days before they were examined by the immigration officers. * Schedule 1, para. 1 (2), is set out at p. 349, letter I, post. n+ Schedule 1, para. 2 (3), is set out at p. 349, letter I, to p. 350, letter A, post. Held: (ASHWORTH, J., dissenting) once the validity of the examinations by the immigration officers was challenged, the onus lay on the immigration officers to show that the examinations had taken place within 24 hours of the applicants' landing in the United Kingdom (see p. 353, letter I, and p. 366, letter G, post). Eshugbayi Eleko v. Officer administering the Government of Nigeria ([1931] All E.R. Rep. 44) applied. Greene v. Secretary of State for Home Affairs ([1941] 3 All E.R. 388) explained.Notes:
As to control of Commonwealth immigrants and in their examination by immigration officers, see SUPPLEMENT to 5 HALSBURY'S LAWS (3rd Edn.), paras. 1513, 1514. For the Commonwealth Immigrants Act 1962, Sch. 1, see 4 HALSBURY'S STATUTES (3rd Edn.) 47.Cases referred to in the Judgment:
Bushell's Case (1670), Vaugh. 135, 124 E.R. 1006; 16 Digest (Repl.) 297, 704. Eshugbayi Eleko v. Officer administering the Government of Nigeria, [1931] A.C. 662; [1931] All E.R. Rep. 44; 100 L.J.P.C. 152; 145 L.T. 297; 8 Digest (Repl.) 770, 382. Greene v. Secretary of State for Home Affairs [1941] 3 All E.R. 388; [1942] A.C. 284; 111 L.J.K.B. 24; 166 L.T. 24; affg. sub nom. R. v. Home Secretary, Ex p. Greene, [1941] 3 All E.R. 104; [1942] 1 K.B. 87; 17 Digest (Repl.) 422, 28. Liversidge v. Anderson, [1941] 3 All E.R. 338; [1942] A.C. 206; 110 L.J.K.B. 724; 116 L.T. 1; 17 Digest (Repl.) 422, 27. R. v. Board of Control, Ex p. Rutty, [1956] 1 All E.R. 769; [1956] 2 Q.B. 109; [1956] 2 W.L.R. 822; 120 J.P. 153; 16 Digest (Repl.) 301, 762. R. v. Brixton Prison (Governor) Ex p. Sarno, [1916] 2 K.B. 742; 86 L.J.K.B. 62; 115 L.T. 608; 80 J.P. 389; 16 Digest (Repl.) 282, 523. R. v. Halliday, Ex p. Zadig, [1917] A.C. 260; 86 L.J.K.B. 1119; 116 L.T. 417; 81 J.P. 237; 2 Digest (Repl.) 184, 124. R. v. Secretary of State for Home Affairs, Ex p. O'Brien, [1923] 2 K.B. 361; 129 L.T. 419; affd. H.L. sub nom., Secretary of State for Home Affairs v. O'Brien, [1923] A.C. 603; [1923] All E.R. Rep. 442; 92 L.J.K.B. 830; 129 L.T. 577; 87 J.P. 174; 16 Digest (Repl.) 308, 848.Introduction:
Motion for habeas corpus. This was a motion by the applicants, 11 Pakistanis, Mohammad Ahson, Mohammad Asghr, Mahdi Khan, Fazal Dean, Slamat Ali, Nur Elahi, Mir Zaman, Himat Khan, Ghulam Ahmad, Fazal Hussain and Abdul Rehman, for the issue of writs of habeas corpus directed to the governor of Brixton Prison. The applicants were found on the morning of 10th February 1968 on Croydon Lane, Banstead, walking in pairs some 20 to 30 yards behind each other. They looked bedraggled and tired and appeared to be lost. They were stopped by the police and taken to Banstead police station, where they were questioned and searched. The immigration officers were notified and on arrival they also questioned the applicants. The immigration officers were not satisfied with their explanations and each was served with a notice of refusal of admission under the Commonwealth Immigrants Act 1962.Counsel:
Quintin Hogg, Q.C., and I. Finestein for the applicants. Gordon Slyn for the respondent.Judgment-READ:
Cur. adv. vult. 10th April 1968. The following judgments were read. PANEL: Lord Parker, C.J., Ashworth and Blain, JJ. Judgment By-1: LORD PARKER, C.J.Judgment One:
LORD PARKER, C.J.: The proceedings disclose a deplorable state of affairs; the applicants are all British subjects under the British Nationality Act 1948, and also Commonwealth citizens for the purpose of the Commonwealth Immigrants Act 1962. They apparently left Pakistan, so it is said, some time in October 1967, and after extensive wanderings, some say via Teheran, they arrived in Europe, and eventually on the north coast of France. They were then smuggled by boat across the Channel, landing, probably wading ashore, some time in February 1968. On the way they appear to have been milked of all their money, some paying up to @ 200 for transport across the Channel, so that when they arrived here, they were for the most part penniless. They had undoubtedly made their way here to seek employment, and having no employment voucher, made a clandestine entry into the country. On the morning of Saturday, 10th February 1968, the 11 applicants and an Indian were found trudging along a road near Banstead; they were gradually rounded up, as it were, and brought into Banstead police station for interrogation by police officers, and later examination by immigration officers. As a result, each of the applicants was served with a notice under the Act of 1962 refusing him entry into this country, and they were thereupon removed by a constable to Brixton Prison. In each case an immigration officer has stated on affidavit that he was not satisfied that the applicant in question had arrived in this country more than 24 hours before he was examined. The relevance of that can be seen from an examination of the Act itself, and I refer only to the sections relevant for this purpose. Section 2 (1) of the Commonwealth Immigrants Act 1962, gives the immigration officer an absolute discretion, subject to the following subsections, as to whether he should admit a Commonwealth immigrant into this country or refuse his entry. It provides that: "Subject to the following provisions of this section, an immigration officer may, on the examination under this Part of this Act of any Commonwealth citizen to whom section one of this Act applies who enters or seeks to enter the United Kingdom, -- (a) refuse him admission into the United Kingdom; or (b) admit him into the United Kingdom subject to a condition restricting the period for which he may remain there, with or without conditions for restricting his employment or occupation there". Section 3 (1) provides that:"The provisions of Part I of the First Schedule to this Act shall have effect with respect to -- (a) the examination of persons landing or seeking to land in the United Kingdom from ships and aircraft;... (d) the detention of any such persons or citizens as aforesaid pending further examination or pending removal from the United Kingdom..."
One turns then to Sch. 1 to the Act of 1962. Paragraph 1 provides that: "(1) Subject to the provisions of this paragraph, an immigration officer may examine any person who lands or seeks to land in the United Kingdom for the purpose of ascertaining whether that person is or is not a Commonwealth citizen subject to control under Part I of this Act, and if so for the purpose of determining what action, if any, should be taken in his case under the said Part I..."(2) A person shall not be required to submit to examination under this paragraph after the expiration of the period of twenty-four hours from the time when he lands in the United Kingdom unless, upon being examined within that period, he is required in writing by an immigration officer to submit to further examination."
Paragraph 2 of Sch. 1 to the Act of 1962 deals with the machinery: "(1) The power of an immigration officer under section two of this Act to refuse admission into the United Kingdom or to admit into the United Kingdom subject to conditions shall be exercised by notice in writing..."(3) Subject to the following provisions of this Schedule, a notice under this paragraph shall not be given to any person unless he has been examined in pursuance of paragraph 1 of this Schedule, and shall not be given to any person later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph."
Paragraph 3 (3) of Sch. 1 to the Act of 1962 provides that:"No directions shall be given under this paragraph in respect of an immigrant after the expiration of two months beginning with the date on which he was refused admission into the United Kingdom."
Pausing there, it will be seen that a refusal must be given by a notice in writing, that the notice must be given not later than 12 hours after the conclusion of the examination, and the examination must take place within 24 hours of the immigrant landing. That much I think is conceded. Paragraph 4 (1) goes on to provide that:"An immigrant who is... refused admission into the United Kingdom under section two of this Act, may be detained under the authority of an immigration officer or constable pending that further examination, or pending the giving of directions under paragraph 3 of this Schedule and pending removal in pursuance of such directions..."
Finally, going back to the Act itself, s. 13 provides that: "(1) Any persons required or authorised to be detained under this Act may be detained in such places as the Secretary of State may direct... "(4) Any person required or authorised by this Act to be detained may be arrested without warrant by a constable or an immigration officer; and any person who is detained by virtue of this Act, or is being removed in pursuance of this section, shall be deemed to be in legal custody". The issue, accordingly, in the present case concerns the exact time at which the applicants landed in this country. They have, from the outset, maintained that they landed in the early hours of the morning of 7th February, in which case, when they were taken to Banstead police station, they had been in this country more than 24 hours. They told stories which, in broad outline, were that on landing they had been taken to a house where they had lived for three days, except that on the first day they had gone to a cafe or restaurant in Brighton for a midday meal, and a man at that cafe has sworn an affidavit confirming that they were there at the restaurant on 7th February. Further one of the applicants maintains that he put a telephone call through to Altrincham and this is confirmed by a lady who says that she answered a call on 7th February. The story then went on that on 10th February they were taken away by a van which developed a puncture, as the result of which they got out and walked along a road until they were picked up by the police. As a result, however, of their examination, the immigration officers concerned were not, as I have said, satisfied that the applicants had been in this country for more than 24 hours. The applicants undoubtedly told lies; some of them gave false names and addresses; their accounts differed in detail, some saying the house they had gone to was a white house; others a blue house; others that they had been wandering all the time, and so on. Apart from these lies and discrepancies, the immigration officers stated that on most of the applicants the clothes and shoes were wet or sodden, and if the immigration officers are to be believed, three of them or at any rate two of them eventually made confessions that they only landed that morning, 10th February. Whilst those confessions of course, can only be direct evidence against the three persons concerned, it was indirectly evidence against all the applicants, because it was conceded that they had all arrived together. Further, according to the police, the Indian to whom I referred, admitted that he had been with the other 11 Pakistanis, and that they all landed that morning, 10th February. However, it is only right to say that the evidence in regard to that is pure hearsay, because the Indian concerned has not sworn an affidavit and has not given evidence before this court, and accordingly I disregard anything which it is said that he, the Indian, said. So much for the facts in broad outline. The real question, as I see it, is as to the proper approach of this court. Do I ask myself the question: have the applicants satisfied me that they had, on 10th February been here for more than 24 hours? If that is the proper question, my answer is: "No". Their evidence is so unsatisfactory that I could not find affirmatively that they had been here for more than 24 hours. In other words I, like the immigration officers, am not satisfied that they had been here more than 24 hours. Or is the proper question: has the respondent, through the immigration officers and the police, satisfied me that the applicants had not been here for more than 24 hours? If so, I for my part could not find beyond doubt, because this would, I think, be the standard of proof, that they had been here for less than 24 hours. True they had told somewhat differing stories, and two are said to have confessed, but with the language difficulties involved and the known natural propensity of men such as these to say whatever they think will suit their case, I could not be sure that they had been here for less than 24 hours. Lies do not prove the converse, and the only positive evidence in this case was as to the state of their clothing. There was, however, no forensic evidence as to the nature of the wet, whether it was sea-water or what it was, and some were said to have been smartly dressed. Prior to the Habeas Corpus Act 1816, if the gaoler made a return valid on its face, and its validity were challenged, there was nothing that the court could do. If it arose in a criminal matter, the gaoler produced the warrant from the competent court, and that was an end of the matter. If, on the other hand, it arose in a civil matter, again the applicant would be left to bring a civil suit for false return, so that the matter in issue might be determined by a jury. By the Act of 1816, however, this court was given specific power in a civil matter to enquire into the facts. The Act itself is dealing only with writs of habeas corpus in cases other than a criminal matter or for debt or civil process, and s. 3 provides, in effect, that in all cases provided for by the Act of 1816, although the return to any writ of habeas corpus shall be good and sufficient in law, it shall be lawful for the justices or police before whom such writ may be returnable to proceed to examination into the truth of the facts set forth in such return by affidavit or by affirmation. Section 4 provides: "... the like proceeding may be had in the court for controverting the truth of the return to any such writ of habeas corpus awarded as aforesaid, although such writ shall be awarded by the said court itself, or be returnable therein." The question then arises what should be the proper approach by the court in determining any such enquiry which it may make. Of course, if the authority on which the gaoler holds the applicant is the authority of a court, the enquiry can only be to see whether the court had facts before them entitling them to issue the authority, the warrant. It could not substitute its own view for that of the court, because habeas corpus is not a remedy by way of appeal. That was made clear by LORD GODDARD, C.J., in R. v. Board of Control, Ex p. Rutty n(1). In that case a magistrate had found that the applicant was a defective within the meaning of the Mental Deficiency Acts 1913 to 1927, being a feeble-minded person, and that she was subject to be dealt with under those Acts by reason of her being found neglected, and he made a detention order. In due course, leave was granted and the applicant moved for a writ of habeas corpus. LORD GODDARD, C.J., having referred to the position prior to the Habeas Corpus Act 1816, and to the position thereafter, went on to say n(2): n(1) [1956] 1 All E.R. 769; [1956] 2 Q.B. 109. n(2) [1956] 1 All E.R. at p. 775; [1956] 2 Q.B. at p. 124."If on inquiry the court finds there was no evidence by which the order or conviction can be sustained, they can release on habeas corpus or quash on certiorari. This is clear from the cases cited by HILBERY, J. n(3). But if there is evidence, whatever this court may think of it and no matter what conclusion the members of the court might have come to if they had been deciding the case which led to the conviction or order, they cannot disturb the finding, for so to do would be to act as a court of appeal in a matter in which no appeal is given."
n(3) [1956] 1 All E.R. at pp. 772, 773; [1956] 2 Q.B. at pp. 119, 120. I mention that case only to emphasise that the present case does not concern in any way the order of a court. We are here dealing with a claim by the executive to detain in custody a British subject, and apart from authority I should myself have thought that in the end the burden in such a case must be on the executive to justify that detention. I say "at the end" because, of course, nothing need be done in the first instance other than to make a good return valid on its face; but if the applicant for the writ challenges that return, as for example claiming that there was no jurisdiction in the executive officer to make the order which resulted in the detention, it would, I think, be for the executive to negative that challenge by proving that jurisdiction in fact existed. I am supported in this view by what was said by ATKIN, L.J., in R. v. Secretary of State for Home Affairs, Ex p. O'Brien n(4). The facts do not matter, but ATKIN, L.J., said n(5): n(4) [1923] 2 K.B. 361. n(5) [1923] 2 K.B. at p. 393."The case involves questions of grave constitutional importance, upon which I feel bound to express my own opinion, even though I repeat to some extent the views already expressed by the other members of the Court. That a British subject resident in England should be exposed to summary arrest, transport to Ireland and imprisonment there without any conviction or order of a Court of Justice, is an occurrence which has to be justified by the Minister responsible."
Further support is also, I think, to be obtained from the Privy Council case of Eshugbayi Eleko v. Officer administering the Government of Nigeria n(6). Again it was LORD ATKIN who gave the advice of the Board. What was challenged in that case was an order made by the Governor of Nigeria providing that the appellant, who was the applicant for the writ, should leave a specified area, and on his failing to comply, ordered his deportation to another place in the colony. The Governor could only make that order validly if the applicant was a native chief; if he had been deposed; and there was a native law or custom which required him to leave the area. These were, the conditions precedent to a valid order for deportation being made by the Governor. The Crown, the respondent, argued in that case that the matter could not be reviewed at all by the courts or by the Privy Council, and it is on that point that LORD ATKIN was giving the advice of the Board. He began by setting out what was the contention of the applicant. He said n(7): n(6) [1931] A.C. 662; [1931] All E.R. Rep. 44. n(7) [1931] A.C. at pp. 668, 669; [1931] All E.R. Rep. at p. 48."The applicant contests the validity of both orders, though the main attack is necessarily directed to the first. He says: (i) He was not a native chief, and did not hold an office. (ii) He was not deposed or removed from this office, and the Governor's sanction was therefore irrelevant. (iii) There was no native law or custom, which required him, or any chief or native whether deposed in the manner alleged against him or in any other way, to leave the area in question."
LORD ATKIN subsequently said n(8): n(8) [1931] A.C. at p. 670; [1931] All E.R. Rep. at p. 49. "Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is erroneous. The Governor acting under the Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive." Having decided that it was a matter into which the courts could enquire, the Judicial Committee ordered n(9) that the rule nisi should take the form ordering the respondent -- n(9) [1931] A.C. at p. 675; [1931] All E.R. Rep. at p. 51."to show cause why a writ of habeas corpus should not issue directed to them to have the body of Eshugbayi, Eleko, immediately before this Court at Lagos to undergo and receive all and singular such matters and things as the Court shall then and there consider of concerning him in this behalf. Upon the grounds [The grounds were then set out in the form of the contentions raised by the applicant] that: -- 1. The said Eshugbayi, Eleko, was not on August 6, 1925, or thereafter a native chief and did not hold any office. 2. That the said Eshugbayi, Eleko, had not on August 6, 1925, or thereafter been deposed or removed from any office..."
I confess that it seems to me clear from that, that LORD ATKIN was stating, first, the cardinal principle of English law that no member of the executive can interfere with the liberty of a British subject except on the condition that he can support the legality of his action before a court of justice; and secondly that the clear inference here is that LORD ATKIN felt that at the end of the day it was for the members of the executive to satisfy the court as to the validity of the order. I should mention in regard to that case that in a later case to which I must refer in more detail hereafter, SCOTT, L.J., read LORD ATKIN'S advice in that sense. The case is R. v. Home Secretary, Ex p. Greene n(10), and SCOTT, L.J., in referring to the case of Eleko n(11), said n(12): n(10) [1941] 3 All E.R. 104; [1942] 1 K.B. 87. n(11) [1931] A.C. 662; [1931] All E.R. Rep. 44. n(12) [1941] 3 All E.R. at p. 112; [1942] 1 K.B. at p. 102. "It was held that the ordinance in question made each fact a condition precedent to any exercise by the governor of the power to deport, and that each condition had to be established either by admission or proof before a court. On none of the three was the governor given by the ordinance any power of discretionary decision, nor did any question of confidential information arise." Accordingly I should have thought that here, as in the Nigerian case, once the applicants allege that a state of affairs on which the jurisdiction of the immigration officers depended did not exist, it was for the respondent to show that it did. This was, of course, unnecessary in the first instance because, as I see it, the respondent made a return valid on its face. This he did, not through swearing an affidavit himself, but through the affidavits of the immigration officers, who said that in each case a notice of refusal was served, that the applicant was handed over to a constable to take him to Brixton, coupled with a reference to s. 13 of the Act of 1962. Once, however, the applicants alleged that a condition precedent to the validity of the notice of refusal was not performed, i.e., examination before 24 hours had elapsed, it would be for the respondent to negative that challenge and prove that the condition precedent, namely examination within 24 hours, had been performed. It is said, however, that there is direct authority to the contrary, and authority binding on this court. Reference is made to the case of Greene n(13), which I have just mentioned, both in the Court of Appeal and in the House of Lords. SCOTT, MACKINNON and GODDARD, L.JJ., expressed the view that it was always for the applicant to prove the facts on which he challenged the validity of the return. I do not propose to read more than three passages from GODDARD, L.J.'s judgment in that case. He said n(14): n(13) [1941] 3 All E.R. 104; [1942] 1 K.B. 87; on appeal, [1941] 3 All E.R. 388; [1942] A.C. 284. n(14) [1941] 3 All E.R. at p. 119; [1942] 1 K.B. at p. 113."In my opinion, once it is shown that he is detained under a warrant or order which the executive has power to make, it is for the applicant for the writ to show that the necessary conditions for the making of the warrant... do not exist."
Later, having referred to a passage in the speech of LORD WRENBURY in R. v. Halliday, Ex p. Zadig n(15) GODDARD, L.J., said n(16): n(15) [1917] A.C. 260 at p. 308. n(16) [1941] 3 All E.R. at pp. 120, 121; [1942] 1 K.B. at p. 115."That in terms puts the onus on the applicant, and I think the conclusion is that the applicant can controvert the return, and, if he proves his case -- and it is for him to prove it -- he will be discharged."
Finally GODDARD, L.J., said n(17): n(17) [1941] 3 All E.R. at p. 121; [1942] 1 K.B. at p. 116. "I am of opinion that, where, on the return, an order or warrant which is valid on the face is produced, it is for the prisoner to prove the facts necessary to controvert it, and, in the present case, this has not been done." MACKINNON, L.J., who gave a short judgment, stated that he had had the opportunity of reading the judgment which GODDARD, L.J., was about to deliver, and said n(18): n(18) [1941] 3 All E.R. at p. 116; [1942] 1 K.B. at p. 108."Finding that he had expressed more clearly what I had been writing, I thought it was undesirable for me to complete my disquisition, and that it would suffice for me to say that I agreed with all that he had said." MACKINNON, L.J., did, however, feel that he ought to add a few words, and he there said n(18): "The onuw of showing that the order is invalid rests upon the applicant."
n(18) [1941] 3 All E.R. at p. 116; [1942] 1 K.B. at p. 108. That case went to the House of Lords n(19), and there is no doubt that VISCOUNT MAUGHAM, L.C., specifically approved the last passage which I read from the judgment of GODDARD, L.J. n(17). LORD MAUGHAM said n(20): "I agree with what GODDARD, L.J., in his careful judgment said on this point", and he proceeded to quote the passage n(17) that I have read. LORD WRIGHT, in speaking of a return, said n(21): "It is good on its face unless and until it is falsified." n(17) [1941] 3 All E.R. at p. 121; [1942] 1 K.B. at p. 116. n(19) [1941] 3 All E.R. 388; [1942] A.C. 284. n(20) [1941] 3 All E.R. at p. 394; [1942] A.C. at p. 295. n(21) [1941] 3 All E.R. at p. 402; [1942] A.C. at p. 306. I appreciate, of course, that those are passages from very eminent judges which, on their face, negative the view which I have formed; but I think it is necessary to consider the context in which those passages occur. The case concerned an application for a writ of habeas corpus in which the return exhibited an order made under reg. 18B of the Defence (General) Regulations 1939 of the Secretary of State saying that he had reasonable cause to believe that the applicant was of hostile origin or association, and ordering his detention. It was, of course, held that the belief could not be enquired into at all. The Secretary of State's order was a valid return, and all in fact that the applicant said by way of answer was "I do not know why I was detained". That clearly was not a sufficient challenge to the order to call for anything more from the Secretary of State. It was not a case in which any challenge was made in regard to conditions precedent on which jurisdiction depended. The Secretary of State was not bound to give the grounds of his belief, any more than the immigration officers in the present case could be obliged to say why they exercised their discretion under s. 2 of the Act of 1962 in the way they did. Indeed, in Greene's case n(22) the only possible challenge could have been an allegation of bad faith on the part of the Secretary of State, and this was disclaimed. n(22) [1941] 3 All E.R. 388; [1942] A.C. 284. All that I think was intended in that case was to say that the order stood as an order valid on its face, that is the Secretary of State's order, and it was for the applicant to make a proper challenge to its validity if he could. The court was not dealing with the question that arises here as to the position at the end of the day when the applicant has challenged the validity of the authority to detain based on a lack of jurisdiction in the executive who made it. Indeed, I think this is clear from what MACKINNON, L.J., himself said in the short judgment, because having said in the passage I have previously read n(23) that the onus of proof that the order is invalid rests on the applicant, he then went on n(23): n(23) [1941] 3 All E.R. at p. 116; [1942] 1 K.B. at p. 108."No evidence on the part of the gaoler or of the Home Secretary to establish the validity of the order (except proof of its signature, if that is disputed) is necessary, unless the applicant has adduced evidence of its invalidity sufficient to discharge and shift the onus of proof which rests primarily upon him."
That as it seems to me is the passage coming nearest to this case in which MACKINNON, L.J., is contemplating the possibility that after a challenge to the validity of the order, it will be for the executive, at the end of the day to negative that challenge. I would only say this finally. This is a thoroughly unmeritorious application. If ever men should be sent back to the country from which they came, it is the applicants. But to enable this to be done would, in my judgment, mean making bad law. The fact is that nobody contemplated this situation arising when the Commonwealth Immigrants Act 1962, was passed, and it is only right to say that under the recent Act, the Commonwealth Immigrants Act 1968, the loophole here disclosed has at any rate been partially closed, in that the 24 hours allowed for examination has been extended to 28 days. In the result, however, I have come to the conclusion that this application succeeds, and that the applicants should be discharged. Judgment By-2: BLAIN, J.Judgment Two:
BLAIN, J.: In this matter counsel for the applicants moves on behalf of one Mohammad Ahson and ten other men, all of whom are Pakistani nationals and Commonwealth citizens, for an order that writs of habeas corpus be issued directing the governor of Brixton Prison to have their bodies brought before the court. At present each of the applicants is detained in Her Majesty's prison at Brixton as being an immigrant refused admission to the United Kingdom under the provisions of the Commonwealth Immigrants Act 1962. It is unnecessary to recite again the facts already detailed by LORD PARKER, C.J. For the purposes of this judgment, suffice it to say three things: first that admittedly all 11 applicants arrived in this country by clandestine means in February 1968; that does not constitute any offence. All were and are British citizens. Secondly that all 11 claim and deposed that they had been in this country for some days before the immigration authorities found opportunity to examine them; and thirdly that the immigration authorities took the view that none of the applicants had in truth been in this country for as much as 24 hours before examination, or alternatively they, the immigration authorities, were not satisfied, and they say this court on the evidence cannot be satisfied, that the applicants had been in the United Kingdom for 24 hours before examination. In this connection there is circumstantial evidence, and in either two or three cases, some evidence of admissions to support the view of the immigration authorities, and certainly the applicants' evidence to the contrary is full of inconsistencies, though these may be explained in part, at least, by language and other difficulties and instincts. The relevance of the issue of fact thus thrown up is this. By virtue of the provisions of s. 1 (3) of the British Nationality Act 1948, each of these applicants is a British subject, and prima facie has the same rights to be in this country as has any native Englishman. At the relevant time the only curtailment of the right was to be found in the Commonwealth Immigrants Act 1962, an Act passed in order to make temporary provision for controlling the immigration into the United Kingdom of Commonwealth citizens who came within the provisions of s. 1 of the Act. It is not disputed that the applicants fall within the terms of that section, and so the relevant provisions of the Act apply to them. In passing, the Commonwealth Immigrants Act 1968, which passed into law last month, amends certain provisions of the Act of 1962, but the Act of 1962 still remains the principal Act. Section 16 of the Act of 1962 empowers the Secretary of State to appoint immigration officers, and s. 2 (1) (a) enacts that, subject to certain irrelevant provisions, an immigration officer: "... may, on the examination under this Part of this Act of any Commonwealth citizen to whom section one of this Act applies who enters or seeks to enter the United Kingom, -- (a) refuse him admission into the United Kingdom..." There is no other power of refusal, at least none relevant to these proceedings, and this power is exercisable only after examination of the Commonwealth citizen concerned. By virtue of s. 3 (1), the provisions of Sch. 9 to the Act have effect with respect to four matters: first, the examination of those landing or seeking to land in this country; secondly, the exercise by immigration officers of the power of refusal of admission; thirdly, the removal from the United Kingdom of Commonwealth citizens refused admission under s. 2 of the Act; and fourthly, the detention of such persons or citizens pending further examination or pending removal. Section 13 (1) provides that a person whose detention is authorised under this Act may be so detained in such place as the Secretary of State may direct, and s. 13 (4) authorises his arrest without warrant by a constable or immigration officer, and provides that a person so detained shall be deemed to be in legal custody. I now turn to the relevant provisions of Sch. 1. By virtue of para. 1 (1), subject to certain provisions:"... an immigration officer may examine any person who lands or seeks to land in the United Kingdom for the purpose of ascertaining whether that person is or is not a Commonwealth citizen subject to control under Part I of this Act, and if so for the purpose of determining what action, if any, should be taken in his case under the said Part I; and it shall be the duty of every such person to furnish to an immigration officer such information in his possession as that officer may reasonably require for the purpose of his functions under this paragraph."
But para. 1 (2) provides that a person is not required to submit to such examination more than 24 hours after he has landed in the United Kingdom. Of course in most cases where an immigrant arrives openly by ship or aeroplane at a recognised seaport or airport, there will be no dispute of fact about his time of arrival. But in the case of clandestine landing in a remote place at dead of night, only the immigrant himself and those who participate in or happen to witness the arrival will know precisely when it occurred. Once, in fact, he has been in the country for 24 hours, no immigration officer can compel him under the Act of 1962 to submit to examination. In passing, although it is not relevant to the determination of the present applications, it is to be observed by s. 4 of the Act of 1968 the period is now 28 days instead of the old 24 hours. Paragraph 2 (1) of Sch. 1 provides that the immigration officer's power to refuse admission is to be exercised by notice in writing to be given to the person to whom it relates, and by virtue of para. 2 (3), so far as relevant, such a notice can only be given to a person who has been examined in pursuance of para. 1, that is to say within 24 hours of landing, and only be given within 12 hours of such examination. Paragraph 3 provides for removal of immigrants on refusal of admission; only sub-paras. (2) and (3) are relevant. Under sub-para. (2) the Secretary of State may direct removal by ship or aircraft, and by virtue of sub-para. (3) no such direction may be made after the expiration of two months from the date of refusal of admission. Finally, para. 4 (1) provides for detention pending removal. An immigrant who is refused admission under s. 2 of the Act may be detained under the authority of an immigration officer or a constable pending the giving of directions under para. 3, and pending removal in pursuance of such directions. Those, I think, are the relevant provisions of Sch. 1. It is admitted here that notices of refusal were given to each applicant by an immigration officer, and that it is under the authority or purported authority of such notices that these applicants are detained. Counsel for the applicants' contention is that the notices were invalid and of no effect because, he said, the examinations which necessarily preceded them did not take place within 24 hours of the landing of the immigrants, and he asks the court to determine as a fact that the landings were earlier than that. This latter request I find myself quite unable to accede to on the evidence, but in any event counsel for the applicants submitted that there is an onus on the Crown to prove that the examination takes place within 24 hours of the landing, and he says there is an onus akin to that on the prosecution in a criminal case to prove beyond reasonable doubt so that the court or the jury can be sure. Counsel for the respondent says, no: under para. 1 (1) of Sch. 1, he submits that the immigration officer has a right to examine, and therefore the immigrant has a duty to submit to examination, and he goes on to say that under para. 1 (2) the immigrant can claim exemption from the duty to submit if he has been in the United Kingdom for over 24 hours. But, so runs the argument, that must be construed to mean that his claim to such exemption is dependent on proof by him that he has been in the United Kingdom for 24 hours or more. As a matter of expediency that might seem an attractive argument, attractive because one can see that in circumstances where there could be doubt, only the immigrant himself and his associates could have really known when he landed, so it might be logical to put on him the burden of proving the fact which he alone knows. In cases of clandestine landings, a burden of proof on the immigration authorities or the Crown could be an embarrassment in the efficient exercise of their functions; moreover it could be said that those who choose to enter the country in such ways rather than openly can hardly feel aggrieved if the burden is cast on them to prove they have not obtained liability to those statutory controls to which they would be subject had they arrived in more conventional circumstances. Unless statutory or other authority comples acceptance of such an approach, I would reject it. It seems to me basically to ignore certain fundamental principles. In the first place there is no law to prevent a British subject arriving by private yacht or some less glamorous vessel at any time of the day or night on any part of the coast, and no offence is committed if he sails across from Le Touquet or swims from Cap Gris Nez. Secondly, the provisions of the Commonwealth Immigrants Act 1962 which impose various controls and restrictions on the otherwise unlimited rights of a British subject to enter the United Kingdom, constitute a statutory fetter on the freedom of the subject, a fetter necessary for reasons which concern Parliament but which do not concern this court. The consequences may go to the very liberty of the subject, as they have done in this case. In my view Parliament must not be supposed to have put on the subject the burden of proving freedom from liability to detention in prison of a citizen who has done nothing unlawful, unless that burden is expressed in the clearest and most unequivocal terms. That will be so if we are dealing with a statutory defence to a criminal charge; it should be so where no question of a criminal offence arises. In fact this Act does create penal offences; under the provisions of s. 4, to the language of which it is not necessary to refer, an offence is committed by a Commonwealth citizen to whom s. 1 applies if he enters or remains in the United Kingdom in defiance of an immigration officer's refusal of admission. If charged with such an offence, must he, in order to defend himself, prove that the refusal was invalid? I would hope not. I would expect the Crown to have to prove his guilt, and if Parliament intended otherwise it should so say in clear terms, as indeed it has later said in the case of a new statutory offence introduced by the Act of 1968. That does not, of course, affect the present case. It exemplifies the way in which it should be done, in my view, if it is to lead to that conclusion. I say at once that if the burden of proof is on the respondent, it is not discharged to my satisfaction so that, as a notional juryman, I could feel sure that at the time of examination these applicants had not spent more than 24 hours ashore. Affidavit evidence that clothing was damp or wet, shoes in particular wet and in some cases sandy, may go a long way to establish that they have not arrived by conventional means, and that is not in dispute, but it does not satisfy me that they had been here for less than 24 hours. Evidence that immigration officers were not satisfied that the immigrants had been here for 24 hours does not of itself satisfy me that they had in fact been here for a shorter time, and in particular the evidence of what the Indian, Ravi Kumar said, either as a go-between or as interpreter or otherwise I find no more convincing than that of the immigration officers, particularly as there is no affidavit from that person before the court, and for that matter it is by no means clear how much of what he said would be understood by the applicants in the examples in which they were present to hear it. So in my judgment the decision must turn on the question of onus of proof. Here it is submitted by counsel for the respondent that on a true interpretation of the Act, the onus is on the applicants, a submission which he claims is supported by authority, and in particular by the decision in R. v. Home Secretary Ex p. Greene n(33), to which my Lords have referred and to which I will return shortly. From the time of Magna Carta a citizen detained without lawful authority has had access to the courts to secure his release. But it is unnecessary today to consider the procedure prior to the passing of the Habeas Corpus Act 1816, or to consider the procedure in the somewhat different considerations which arise in cases of detention for some criminal matter. By s. 1 of the Act of 1816 on civil process on complaint made by a detained person supported by affidavit showing probable and reasonable ground for the complaint, the courts are empowered by writ of habeas corpus ad subjiciendum to call on the person detaining the complainant to produce the body before the court. By s. 3 the return to the writ is good and sufficient in law in itself, but the court may enquire into the truth of the facts set out in it, and by s. 4 the court may enquire into the facts even though the writ is awarded by the court itself. This is the statutory authority challenging the validity of detention of the subject. On an application for a writ of habeas corpus the gaoler or other person detaining the applicant is called on to justify the detention. This he does by producing a legal order, an order legal on the face of it directing or authorising the detention. n(33) [1941] 3 All E.R. 104; [1942] 1 K.B. 87. In the case with which the court is concerned today, the return comprises the notice of refusal of admission combined with the statutory right to detain a person to whom such a notice has been given. The applicants do not dispute the giving of the notices, but they say they were of no effect because when given there was no power to give them, they followed within 12 hours of examination but that examination, it is said, was not conducted within 24 hours of the arrival in the United Kingdom, and so was itself of no effect for the purposes with which we are concerned. That is a controversial fact, and in my view it is of great importance to bear in mind that there is in this case a complete controversy of relevant fact, whereas in certain cases cited there was none. Bearing that in mind, I turn to what has been called the Nigerian case, Eshugbayi Eleko v. Officer administering the Government of Nigeria n(34), a Privy Council case where the headnote reads n(35): n(34) [1931] A.C. 662; [1931] All E.R. Rep. 44. n(35) [1931] A.C. at p. 662."The Governor of Nigeria, purporting to act under the Deposed Chiefs Removal Ordinance, ordered the appellant to leave a specified area, and upon his failing to comply ordered his deportation to another place in the Colony. The appellant applied to the Supreme Court of Nigeria for a writ of habeas corpus, contending (i) that he was not a native chief, (ii) that he had not been deposed, (iii) that there was no native law or custom which required him to leave the area, and that consequently the conditions did not exist entitling the Governor to make the orders. Held, that the powers of the Governor under the Ordinance were purely executive, and that it was the duty of the Court to investigate the questions raised by the appellant's contentions and to come to a judicial decision thereon..."
I need not read the rest of the headnote. The Deposed Chiefs Removal Ordinance is quoted in LORD ATKIN'S judgment so far as relevant, omitting irrelevant words, it reads thus n(36): n(36) [1931] A.C. at pp. 664, 665; [1931] All E.R. Rep. at p. 46. "2. (1). When a native chief... [point 1] has been deposed... [point 2] by or with the sanction of the Governor... (a) If native law and custom shall require [point 3] that such deposed chief shall leave the area over which he exercised jurisdiction or influence by virtue of his chieftaincy or office; or (b) If the Governor shall be satisfied that it is necessary for the re-establishment or maintenance of peace, order and good government in such area that the deposed chief or native shall leave such area..." What happened in that case was that the Governor in purported exercise of that power ordered the appellant to leave the specified area, and on his failure to comply ordered his deportation. There was power in the ordinance so to do. The appellant applied to the Supreme Court of Nigeria for a writ of habeas corpus; the Supreme Court refused the application and the appellant appealed to the Privy Council, where LORD ATKIN delivered the judgment of the Board. After referring to the Nigerian government order impugned, LORD ATKIN stated the appellant's contentions thus n(37): n(37) [1931] A.C. at pp. 668, 669; [1931] All E.R. Rep. at p. 48. "The applicant contests the validity of both orders, though the main attack is necessarily directed to the first. He says: (i) He was not a native chief, and did not hold an office. (ii) He was not deposed or removed from this office, and the Governor's sanction was therefore irrelevant. (iii) There was no native law and custom which required him, or any chief or native, whether deposed in the manner alleged against him or in any other way, to leave the area in question. He says that these are three conditions precedent to any authority to make an order of withdrawal, and their existence can and must be investigated by the Court whenever the validity of the order or a deportation order founded on it is the subject of contest in judicial proceedings." After reciting the decision of the Nigerian Supreme Court appealed against, LORD ATKIN stated n(38): n(38) [1931] A.C. at p. 670; [1931] All E.R. Rep. at p. 49. "Their Lordships are satisfied that the opinion which has prevailed that the Court cannot investigate the whole of the necessary conditions is erroneous. The Governor acting under the Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive." I need not read further, but one reads n(39): n(39) [1931] A.C. at p. 671; [1931] All E.R. Rep. at p. 49."The Court expressly held they had power to consider this question and resolved it against the applicant. The question whether the applicant was an alien or not did not arise. He admittedly was; but their Lordships agree with the opinion of Low J. [in R. v. Governor of Brixton Prison, Ex p. Sarno n(40).]"
n(40) [1916] 2 K.B. 742. The order made is not without interest, and I think relevance. It reads thus n(41): n(41) [1931] A.C. at p. 675; [1931] All E.R. Rep. at p. 51."It is ordered that this day, the 15th day of January, 1929, be given to the Officer administering the Government of Nigeria and the District Officer of Oyo to show cause why a writ of habeas corpus should not issue directed to them to have the body of Eshugbayi, Eleko, immediately before this Court at Lagos to undergo and receive all and singular such matters and things as the Court shall then and there consider of concerning him in this behalf. Upon the ground that: -- 1. The said Eshugbayi, Eleko, was not on August 6, 1925, or thereafter a native chief and did not hold any office. 2. That the said Eshugbayi, Eleko, had not on August 6, 1925, or thereafter been deposed or removed from any office. 3. That native law and custom did not require that the said Eshugbayi, Eleko, should leave any area over which he exercised influence by virtue of any office or at all. 4. That by reason of the premises the order under hand of the Officer Administering the Government, dated the 6th day of August, 1925, and the order under the hand of the said officer and seal of the Colony and Protectorate of Nigeria dated the 8th day of August, 1925, concerning the said Eshugbayi, Eleko, are invalid..."
LORD ATKIN said n(42): n(42) [1931] A.C. at p. 676; [1931] All E.R. Rep. at p. 52."On the argument of the rule counsel for the respondents to the motion [that is the Government of Nigeria] should show cause, and counsel for the applicant should then, if required, reply in support of the rule."
In Greene's case n(43) the effect of LORD ATKIN'S judgment was differently interpretated by SCOTT and by GODDARD, L.JJ. In Greene's case n(43) SCOTT, L.J., referred in these terms to that case n(44): n(43) [1941] 3 All E.R. 104; [1942] 1 K.B. 87. n(44) [1941] 3 All E.R. at p. 112; [1942] 1 K.B. at p. 102."In Eshugbayi Eleko v. Officer administering the Government of Nigeria n(45), the relevant ordinance conferred on the governor jurisdiction to deport if, and only if, certain antecedent propositions were established or admitted as extrinsic facts. First, the person to be deported must have been a native chief. Secondly, he must have been deposed, and even then he could not be deported unless, thirdly, there was a native custom requiring him to leave the area where he had been chief. It was held that the ordinance in question made each fact a condition precedent to any exercise by the governor of the power to deport, and that each condition had to be established either by admission or proof before a court. On none of the three was the governor given by the ordinance any power of discretionary decision, nor did any question of confidential information arise."
n(45) [1931] A.C. 662; [1931] All E.R. Rep. 44. GODDARD, L.J., having referred to orders which were before the court, said n46): n(46) [1941] 3 All E.R. at p. 119; [1942] 1 K.B. at pp. 112, 113."... the Secretary of State... acts wholly in an executive, and not in a judicial capacity. Counsel for the appellant accordingly relies on the advice of the Judicial Committee, delivered by LORD ATKIN in Eshugbayi Eleko v. Officer Administering the Government of Nigeria n(47). In my opinion, however, that passage does not mean that, where the executive has detained a person under statutory authority (and the regulations have the force of statute), he can, merely by saying 'I don't know why I have been detained', oblige the executive to prove that every condition necessary to the making of the order has been fulfilled. In my opinion, once it is shown that he is detained under a warrant or order which the executive has power to make, it is for the applicant for the writ to show that the necessary conditions for the making of the warrant or order do not exist."
n(47) [1931] A.C. at p. 670; [1931] All E.R. Rep. at p. 49. With the greatest diffidence I confess that for my part I prefer SCOTT, L.J.'s interpretation n(48) of LORD ATKIN'S words n(49). The argument in the Nigerian case n(50) does not seem to me to be based on the proposition that the applicant need only say: I do not know why I have been detained. It seems to me, and I think it seemed to SCOTT, L.J. n(48), that the argument depended on a positive challenge to each of three positive conditions precedent. n(48) [1941] 3 All E.R. at p. 112; [1942] 1 K.B. at p. 102. n(49) [1931] A.C. atp. 670; [1931] All E.R. Rep. at p. 49. n(50) [1931] A.C. 662; [1931] All E.R. 44. That brings one to a consideration, which need not be a lengthy consideration, of Greene's case n(51) itself, or rather to a consideration of its relevance, because I do not myself feel any doubt, nor do I gather does anyone in this court, as to its validity. In the Nigerian case n(50) there had been facts in dispute the existence of which were conditions precedent to the making of the order which had to be shown: was the applicant a native chief, had he been deposed, was there a native law and custom that required his removal from the former area of his jurisdiction? As I understand Greene's case n(51) there is not a single disputed fact. There is no dispute about the state of the Home Secretary's mind about his genuine belief, and I interpolate here the foundation, as I see it, for any thought that there was such a dispute is to be found in a recital in the course of VISCOUNT MAUGHAM'S judgment n(52) in the House of Lords that the applicant in his affidavit had challenged and said that he did not believe that Sir John Anderson, the Home Secretary, did in fact believe him, the applicant, to be a person of hostile association. That may have been challenged in the affidavit, but the state of the Home Secretary's mind was not challenged, his bona fides were accepted in argument throughout. n(50) [1931] A.C. 662; [1931] All E.R. 44. n(51) [1941] 3 All E.R. 104; [1942] 1 K.B. 87. n(52) [1941] 3 All E.R. 388 at pp. 389, 390; [1942] A.C. 284 at p. 289. That appears to me to make a very great difference. The Court of Appeal report is the important one in Greene's case n(51) for present purposes, because the decision of the Court of Appeal was affirmed in the House of Lords n(53), and words of GODDARD, L.J. n(54), much relied on by the Crown in this case were specifically approved by LORD MAUGHAM n(55). As is well known, Greene's case n(51) was one which came under reg. 18B of the Defence (General) Regulations 1939 made under the provisions of the Emergency Powers Act 1939 for the purposes of dealing with the war-time emergencies. The first two paragraphs of the headnote in Greene's case n(56) read thus: n(51) [1941] 3 All E.R. 104; [1942] 1 K.B. 87. n(53) [1941] 3 All E.R. 388; [1942] A.C. 284. n(54) [1941] 3 All E.R. at p. 121; [1942] 1 K.B. at p. 116. n(55) [1941] 3 All E.R. at p. 394; [1942] A.C. at p. 295. n(56) [1942] 1 K.B. at p. 87. "By the Defence (General) Regulations, 1939, reg. 18B, para. (1): 'If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations, or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm, or in the preparation or instigation of such acts, and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained'. By para. (8): 'Any person detained in pursuance of this regulation shall be deemed to be in lawful custody and shall be detained in such place as may be authorised by the Secretary of State and in accordance with instructions issued by him.'"The Home Secretary, whose functions under para. (1) of the regulation are executive and not quasi-judicial, is vested by para. (1) with discretionary power, and the court will not inquire into the grounds on which he has formed his belief, nor require him to produce the information on which he has done so. If the information is of a confidential character, he has a right to refuse to produce it in the public interest."
I will not read more of the headnote. SCOTT, L.J., after tracing what I may call the pedigree of the particular defence regulation, referring in particular to its ancestor in the Defence of the Realm (Consolidation) Act 1914 in the previous European war, said n(57): n(57) [1941] 3 All E.R. at pp. 108, 109; [1942] 1 K.B. at pp. 97, 98."Although it is not now pressed strongly upon us, so much which has been urged verges on that argument that I think it useful to quote LORD WRENBURY'S words n(58): 'The application before your Lordships is for a writ of habeas corpus, and the ground advanced is that reg. 14B is ultra vires. If that were established he (the applicant) would be discharged. The Habeas Corpus Act is in full force; but this statute and the regulations made under it have provided machinery for achieving in a way other than that of suspending the Habeas Corpus Act the preventive detention of persons who are not alleged to have committed any offence, but whom it is desired to prevent from committing one. The regulation is, in my judgment, one within the authority given by the Act'. With that preface for the purpose of clearing the air round the problem of interpretation, I come to the crucial point. What is the meaning fairly attributable to the opening language of cl. (1)? Who is to decide the issue of reasonable cause, the Secretary of State or a court? If a court... how could the question itself be brought before the court? By certiorari to quash his order [i.e., the Secretary of State], or mandamus to hear and determine according to law? Obviously neither. It cannot be by habeas corpus, because the High Court does not sit as a court of appeal in such proceedings."
n(58) In R. v. Halliday, Ex p. Zading, [1917] A.C. 260 at p. 308. There in my view SCOTT, L.J., is emphasising the difference to which LORD PARKER, C.J., referred earlier, between a review of an executive act and a would-be appeal against a judicial decision. In that case it was held -- there is no need to look at the passages -- that the question of whether the Home Secretary in fact had reasonable cause for his belief was not a question of fact for the court to enquire into. His state of mind, the belief that he had, as I have indicated, although impugned on affidavit, was not in dispute on the hearing and was accepted. I have already referred to the reference to the Nigerian case n(59), but there is one further passage in Greene's case n(60) which I feel I should not overlook; it would be quite wrong so to do. That is the passage, strenuously relied on by the respondent, in GODDARD, L.J.'s judgment, to which reference was made in the House of Lords n(61) and which reads n(62): n(59) [1931] A.C. 662; [1931] All E.R. Rep. 44. n(60) [1941] 3 All E.R. 104; [1942] 1 K.B. 87. n(61) [1941] 3 All E.R. at p. 394; [1942] A.C. at p. 295. n(62) [1941] 3 All E.R. at p. 121; [1942] 1 K.B. at p. 116. "I am of opinion that, where, on the return, an order or warrant which is valid on the face is produced, it is for the prisoner to prove the facts necessary to controvert it, and, in the present case, this has not been done. I do not say that in no case is it necessary for the Secretary of State to file an affidavit. It must depend on the ground on which the return is challenged, but, where all that the prisoner says in effect is, 'I do not know why I am interned, and I deny that I have done anything wrong', that does not require an answer, because it in no way shows that the Secretary of State had not reasonable cause to believe, or did not believe, otherwise." That is a passage to which LORD MAUGHAM referred n(63). n(63) [1941] 3 All E.R. at p. 394; [1942] A.C. at p. 295. Of course, I can only pay a proper respectful obeisance to that statement including that conclusion, but I do not find it relevant. As LORD MAUGHAM said n(64), these conclusions were intended to apply to an order made by an officer responsible for the making of such an order; there were no factual conditions precedent to the making of such an order; it was an order that recited only the undisputed state of mind of the Home Secretary. n(64) [1941] 3 All E.R. at pp. 394, 395; [1942] A.C. at pp. 295, 296. In this case the notice of refusal of admission given by the immigration officer or officers to the applicants in the circumstances is not comparable to the order of the Secretary of State in Greene's case n(65). It is far more like the order in the Nigerian case n(66). The validity depends on two conditions precedent, the one, fulfilled, that he has been given a notice within 12 hours of the examination; the other, challenged, that the examination took place no more than 24 hours after the immigrant's landing. There has emerged here a dispute of fact into which the court must enquire and the notice of refusal of admission does not assert the ground's requirement of fact, that is to say does not assert that examination was within 24 hours of landing; indeed it is not in dispute that the notice was given within 12 hours of examination. In Greene's case n(65) the sole issue of fact was as to the state of mind of the Home Secretary and the notice did assert that. n(65) [1941] 3 All E.R. 104; [1942] 2 K.B. 87. n(66) [1931] A.C. 662; [1931] All E.R. Rep. 44. In my judgment, therefore, Greene's case n(65) is not apt to govern the decision here. Insofar as the general statement in that case which I quoted might be taken to refer to cases where there are conditions precedent to the exercise of the power of detention, which itself depends on disputed questions of fact, I think with respect that those remarks would be obiter and not decisive here. This is a case of disputed fact, as well as fact; as LORD PARKER, C.J., and it is a case where the order impugned is not an order of any court but an official of the executive, as indeed was the Governor in the Nigerian case n(66). I come back finally, therefore, to the wording of Sch. 1 to the Act of 1962 as a matter of plain interpretation. n(65) [1941] 3 All R. 104; [1942] 1 K.B. 87. n(66) [1931] A.C. 6629, [1931] All E.R. Rep. 44. I am unable to accept that the construction of para. 1 (2) of that schedule imposes any statutory onus on the applicants. If that be right, then in my view ordinary principles apply, and it is for the respondent to bear the onus of proving that the conditions precedent to the validity of the giving of the notice were satisfied, just as it would be for the respondent to prove the charge if the applicants were charged under s. 4 of the Act of 1962 with an offence of remaining in this country in defiance of an immigration officer's refusal of permission. I would accede to the motion and order that the writs be issued. I say only that in being compelled to this conclusion I am comforted by the change made by the Act of 1968 to which I have referred in the substitution of 28 days for 24 hours as the period within which the immigration officer may examine. DISSENT By-1: ASHWORTH, J.DISSENT-JDGMT-1:
ASHWORTH, J.: This case raises an important question of principle relating to applications for writs of habeas corpus and in addition a question of fact, no less important to the applicants, who are 11 Pakistanis at present detained in Her Majesty's prison at Brixton. It is with regret that I say that my conclusion on the question of principle differs from that reached by LORD PARKER, C.J., and that on one approach to the question of fact my conclusion also differs from his. The question of principle may be stated thus: when a return is made by a custodian of a subject and the subject seeks to controvert the fact or facts relied on by the custodian as justifying his detention of the subject, where does the onus of proof lie? Is it incumbent on the custodian to prove the truth of the facts on which he relies? Or is it for the applicant subject to prove their falsity? Another way of posing the questions, which is perhaps more appropriate to the present case, is to ask: if a custodian is given statutory authority to detain the subject on certain conditions of fact being satisfied, is it incumbent on him to prove that the conditions have been fulfilled or is it for the applicant to prove that they have not? The authority to detain the present applicants is derived from the Commonwealth Immigrants Act 1962 which provides by s. 2 (1) (a) that an immigration officer may on the examination of any Commonwealth citizen to whom s. 1 of the Act applies who enters the United Kingdom refuse him admission. There can in my judgment be no doubt that each of the 11 Pakistani applicants was refused admission by an immigration officer. But s. 3 (1) of the Act contains supplementary provisions and enacts that the provisions of Pt. 1 of Sch. 1 to the Act are to have effect with respect to (para. (a)) the examination of persons landing in the United Kingdom from ships and (para. (d)) the detention of any such persons pending removal from the United Kingdom. Section 13 contains provisions regarding detention of which the most relevant is in sub-s. (4): any person who is detained by virtue of this Act shall be deemed to be in legal custody. Part 1 of Sch. 1 is clearly of great importance and para. 1 (2) is in these terms:"A person shall not be required to submit to examination under this paragraph after the expiration of the period of twenty-four hours from the time when he lands in the United Kingdom..."
It may be noted in passing that this sub-paragraph does not in terms provide that no examination may be made after the period of 24 hours; it provides that a person shall not be required to submit to an examination after that period. For my part I do not think that the respondent can derive any great support from this language, as it is clear that each of the applicants was in fact required to submit to an examination, and the crucial question is whether by the time of that requirement he had been in the United Kingdom for more than 24 hours. Paragraph 2 deals with notice and it may be noted that, in contrast to the language used in para. 1 (2), para. 2 (3) provides in terms that a notice shall not be given to any person unless he has been examined and shall not be given to any person later than 12 hours after the conclusion of his examination. Nothing turns on this sub-paragraph in this case since, if the examinations were made within the statutory period of 24 hours, it is clear that the requisite notices were given within 12 hours of their conclusion. Paragraph 4 contains provisions regarding detention pending removal but it is unnecessary to refer to them in detail. The respondent contends that the return is on the face of it good: each of the applicants has been examined, each of them has been refused admission, each of them has been given the requisite notice and it follows that detention pending removal is lawful. It is however rightly conceded that if the examinations were not made within the statutory period of 24 hours, there was no power in the immigration officer to refuse admission and the detention cannot be justified. Counsel for the respondent contended that quite apart from any decided cases in which courts have considered the right of a detained subject to controvert the facts relied on as justifying the detention, the structure and language of the Act of 1962 are such as to lead to the conclusion that a person who asserts that its provisions have not been complied with has the burden of proving the facts on which the assertion is based. For my part I take the view that the Act itself provides no clue as to the burden of proof, either in favour of the applicants or the respondent. Still less do I accept a contention put forward by counsel for the applicants that, because the very recent Commonwealth Immigrants Act 1968 in regard to a particular matter places a burden of proof on a would-be immigrant, one ought to conclude that there could be no burden of proof on him in regard to other matters dealt with by the Act of 1962. In considering the matter as a question of principle, it is I think helpful to mark how a court comes to be involved. The process starts with a person being detained, and the courts, in their jealous concern for the liberty of the subject, have always so to speak held the door open for such a person to question the legality of his detention. Accordingly the custodian is required to make a return, in other words, to justify the detention: he may do so in various ways which it is unnecessary to refer to in detail. It is, in my view, to this stage of the proceedings that the observations of ATKIN, L.J., in R. v. Secretary of State for Home Affairs, Ex p. O'Brien n(24) and of LORD ATKIN in Eshugbayi Eleko v. Officer administering the Government of Nigeria n(25) to which LORD PARKER, C.J., has referred, were directed. I accept entirely the principle that the custodian is called on to justify the detention, but he does so by making a return which is valid on the face of it. If such return discloses on its face that the detention is unjustified, there is no more to be said: see Bushell's case n(26). But the return may be valid on its face and it is then for the person detained to place evidence before the court showing that what appears to be a valid return is in fact invalid. He is at this stage raising an issue: he is doing more than traversing the return, because a mere traverse will not displace what is on its face a valid return. He is asserting facts which render the return invalid and in my judgment his position is to be compared with that of a plaintiff alleging false imprisonment: on this point see Liversidge v. Anderson n(27) and in particular the speech of VISCOUNT MAUGHAM n(28), in which case it was held that the onus of proof was on the plaintiff. In my judgment, as a matter of principle, it is for an applicant in habeas corpus proceedings, who alleges that there are facts which vitiate a return prima facie valid, to prove them. n(24) [1923] 2 K.B. 361 at p. 393. n(25) [1931] A.C. 662 at pp. 668, 670; [1931] All E.R. Rep. 44 at pp. 48, 49. n(26) [1670], Vaugh. 135. n(27) [1941] 3 All E.R. 338; [1942] A.C. 206. n(28) [1941] 3 All E.R. at p. 348; [1942] A.C. at p. 224. Needless to say, I am greatly relieved to find that this conclusion is in harmony with the decision of no less than three Courts before which Greene v. Secretary of State for Home Affairs n(29) was argued in 1942. I do not intend to lengthen this judgment by citing passages from the judgment of GODDARD, L.J. n(30), in which the principle which I believe to be right was expressed in the clearest possible terms. Counsel for the applicants was constrained to submit that GODDARD, L.J., was in error; if that is right, I am in good company. n(29) [1941] 3 All E.R. 104; [1942] 1 K.B. 87; on appeal, [1941] 3 All E.R. 388; [1942] A.C. 284. n(30) [1941] 3 All E.R. at p. 116; [1942] 1 K.B. at p. 109. It is true that in the other judgments n(31) and speeches n(32) there are to be found phrases which can be and were prayed in aid by the present applicants but for my part I do not think that any of the authors of those phrases intended to qualify or dissent from the judgment of GODDARD, L.J. The decision in Greene's case n(29) has stood for 25 years, and, so far as counsel were aware, it has never been doubted or explained or distinguished in any reported case. Following at a respectful distance behind those great leaders, I am content to apply the principles they laid down. n(29) [1941] 3 All E.R. 104; [1942] 1 K.B. 87; on appeal, [1941] 3 All E.R. 388; [1942] A.C. 284. n(31) [1941] 3 All E.R. 104; [1942] 1 K.B. 87. n(32) [1941] 3 All E.R. 388; [1942] A.C. 284. Counsel for the respondent supported his argument by referring to what he said was a principle of evidence, that where the relevant information is within the knowledge of one party only the burden of establishing the relevant facts is on him. I cannot accept that contention, but there is no doubt in this case that the placing of the burden of proof on the applicants reflects no hardship on them. They best of all know when they entered the United Kingdom and their difficulty lies not in the providing of evidence but in the telling of the truth. Accordingly, I would hold that in the present case it is for the applicants to prove the facts necessary to vitiate the return, namely, that they had been in the United Kingdom more than 24 hours before they were examined. If in law the onus of proof is indeed on the applicants, their efforts to discharge it are in my view entirely unconvincing. Counsel for the applicants accepted the comment that their evidence was riddled with discrepancies and indeed he had no option but to do so. When the whole of the evidence is considered, the comment may well be considered charitable. If on the other hand the onus of proving the challenged facts is on the respondent, I should be prepared to hold that he had discharged it. If I may say so, I was greatly impressed by the cogent submissions made by counsel for the respondent on this part of the case. There is no need for me to repeat them in this judgment but I single out one feature as particularly convincing. On what was described as a bright and sunny morning this group of 11 Pakistanis was discovered, most of them (if not all) with wet clothing consistent with their having recently wadded ashore, but wholly inconsistent, in my view, with their having been living in a house in this country for three or four days. Assuming in favour of the applicants that the standard of proof is the same as in a criminal case, I have asked myself whether I can be sure that they had been in this country for less than 24 hours, and my answer is, yes. In giving this answer I have disregarded entirely the statements attributed to one Kumar, an Indian, which were placed before the court de bene esse but which in my judgment are inadmissible. For these reasons, if the matter rested with me, I should be in favour of dismissing these motions.DISPOSITION:
Applications allowed. Writs to issue.SOLICITORS:
Kleinman, Klarfeld & Co., (for the applicants); Treasury solicitor.Copyright notice: Crown Copyright
