B e f o r e :
LORD JUSTICE O'CONNOR
LORD JUSTICE NICHOLLS
and
LORD JUSTICE TAYLOR
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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW AND IN THE MATTER OF
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THE QUEEN
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-v-
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SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
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Appellant
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EX PARTE RONALD JAMES EVERETT
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Respondent
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London WC2).
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MR. ROGER TER HAAR (instructed by the Treasury Solicitor) appeared on behalf of the Appellant/Respondent.
MRS. LAUREEN FLEISCHMANN (instructed by Messrs. Hughmans) appeared on behalf of the Respondent/Applicant.
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HTML VERSION OF JUDGMENT
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LORD JUSTICE O'CONNOR: On 2nd December 1987 Mann J. (as he then was) quashed a decision of the Secretary of State for Foreign Affairs given in a letter of 24th July 1986 refusing a passport to the applicant. The Secretary of State appeals against that decision.
The facts giving rise to this case can be simply stated. The applicant has been living in Marbella in the south of Spain since June 1984. He was the holder of a British passport which was due to expire on 20th May 1986. In April of that year he filled in the necessary form to apply for a new passport with the supporting documents. That can be issued by a consul in Malaga via the Consular Department of the British Embassy in Madrid. The matter went to Madrid, but no passport was forthcoming. On 12th May the applicant sent a lawyer to the British Embassy to find out why he had not received a new passport and according to the affidavit of the notary he was told that a passport was not going to be issued but that a travel document, which was effectively a one-way ticket to England, could be issued. The report of this interview does not record whether the Spanish lawyer asked why his client was not getting a passport, nor does it record being told why he was not given one. In the result solicitors in London on behalf of the applicant wrote to the Passport Office. It turns out that when passports are issued abroad, it is handled by the Foreign Office, as one might expect, from the Embassy or Consulate as the case may be. Thus it was that a reply came back on 24th July as to why no passport had been issued. That letter reads:
"I refer to your letter of 2 June addressed to the Passport Office. This has been sent to us for reply as the Foreign and Commonwealth Office are responsible for the issue of passports overseas.
We have noted your comments and the substance of the notarised declaration made by Mr. Luis Bertelli Galvex. However, British passports are issued overseas at the discretion of the Secretary of State for Foreign and Commonwealth Affairs and it is a fundamental principle that they should not be issued to persons for whose arrest a warrant has been issued in the United Kingdom.
Such a warrant has been issued in respect of Mr. Everett and it would clearly not be in the interests of justice if, in these circumstances, a passport were to be issued to him. We therefore consider that the British Embassy in Madrid were justified in refusing to issue a standard passport to Mr. Everett, who has however been offered an emergency passport to enable him to travel to the United Kingdom only.
I regret that we are not in a position to give you details of the warrant for arrest and can only advise that you contact the UK police authorities if you wish to have these."
As a result of that letter these proceedings were launched in October 1986. The relief sought by way of judicial review was certiorari to quash both the oral decision on 12th May in Madrid and that contained in the letter on 24th July, together with an order for mandamus requiring the passport application to be considered in a proper and lawful manner.
The grounds which were given for the relief were that no particulars of the warrant had been made available to the applicant; he was afforded no opportunity for a hearing before the decision was made in Spain and therefore the decision was made in a manner which failed to comply with natural justice. So, too, was the attack on the letter of 24th July. In addition there was an allegation that the refusal at least had the effect of circumventing the extradition rules for Spain, as far as this man is concerned.
An affidavit was sworn by Mr. Le Breton, for the Secretary of State, in July 1987, which was before the learned judge. By that time leave had been given by Russell J. (as he then was). He had ordered that enquiries should be made as to the nature of the warrant. The applicant had information, which we see from correspondence exhibited to an affidavit, including a letter of 20th February which is not exhibited but referred to, which carried the information from Scotland Yard that a warrant had been issued in the Thames Magistrates' Court in January 1985 for the arrest of this man on a charge of obtaining property by deception, namely a false passport. There was a further warrant, which had nothing to do with this refusal because it did not come until December 1986, issued out of the Bow Street Magistrates' Court on a charge of robbery. The affidavit which was sworn by Mr. Le Breton explained what had happened. He said:
"In April 1986 the Applicant ... applied through the British Consulate at Malaga, Spain for a new passport to replace a passport which was to expire on the 20th May 1986. That application was passed to the Consular Section, British Embassy, Madrid for processing. It came to the attention of the officers in the Consular Section that the Applicant was named on a list which the Director of Public Prosecutions had supplied (through the Embassy) to the Spanish Authorities of persons whom the British police wished to question in connection with a robbery.
The Consular Section therefore raised inquiries with my Department and it was established that there was an outstanding Warrant for the arrestof the Applicant issued in January 1985 cm charges of obtaining property by deception. Those charges concern the Applicant having obtained a passport in the false name of Ronald Page in 1983.
On the basis of long standing practice, which has been brought to Parliament's attention on various occasions the issue of a passport is refused to persons for whose arrest a Warrant has been issued in the United Kingdom or persons who are wanted by the United Kingdom police on suspicion of a serious crime. My Department therefore informed the Consular Section in Madrid that a replacement standard passport should not be issued to the Applicant but that he might be offered an emergency passport for a single journey to the United Kingdom."
He then refers to the correspondence.
When the matter came before the learned judge three matters were taken before him. First, the Secretary of State objected that judicial review did not lie against the refusal of a passport. That forms the first ground of appeal, because the learned judge rejected the submission. Once again it can be simply stated. Until the decision of the House of Lords in the G.C.H.Q. case [1985] A.C.374, it was generally assumed that the law was that decisions of the administration taken under the prerogative were not amenable to judicial review, and so one finds a whole series of matters which were not amenable to review. In that case it will be remembered that the order that employees of G.C.H.Q. were not to be union members was taken under an Order in Council issued under the prerogative by the Minister for the Civil Service. The first question which had to be decided was whether judicial review of the decision lay at all.
Three of their Lordships, Lord Diplock, Lord Scarman and Lord Roskill unequivocally held that judicial review did lie of decisions taken under the prerogative. Lord Scarman in his speech stated that it was not the origin of the administrative power, but it was the actual factual application which had to be considered. It is quite clear since that decision that there are areas of the exercise of the prerogative which the courts can and will review.
There are other areas, some of which were identified in that case, which they will not. Obvious examples are the making of treaties which the court would not entertain by way of judicial review. So, too, policy decisions of foreign affairs and other matters to be found in Lord Roskill's speech. I need not refer to them in this judgment.
The learned judge held that the issue of a passport fell into an entirely different category. That seems common sense. It is a familiar document to all citizens who travel in the world and it would seem obvious to me that the exercise of the prerogative - because there is no doubt that passports are issued under the Royal prerogative in the discretion of the Secretary of State - is in an area where commonsense tells one that, if for some reason a passport is wrongly refused for a bad reason, the court should be able to enquire into it. I would reject the submission made on behalf of the Secretary of State that the judge was wrong to review the case.
I then pass to consider the next ground of appeal, but before I do that I state clearly what the learned judge decided. He said at page 9 of his judgment:
"That of course does not conclude the matter. Assuming, as I have held, that the discretion is reviewable, is it here to be flawed? It is apparent that the Secretary of State has a general policy, that is to say that the discretion will not be exercised in favour of a person, at least one who is outside the United Kingdom, who is the subject of a warrant of arrest. The Secretary of State is entitled to have such a general policy, but it must not preclude the exercise of the discretion vested in him. If it does, then as Banks L.J. said, it amounts to a refusal to exercise any discretion (R. v. Port of London Authority, Ex parte Kinnock Ltd. [1919] 1 K.B., 176 at 184.
What concerns me in this case is that there was not any inquiry of the applicant as to whether or not the policy should here be applied. Indeed, the state of knowledge at the time of refusal was as scant as that contained in the letter of 24th July 1986 and has not subsequently been increased, save by knowledge of the warrant of arrest for robbery issued after any event with which I am concerned."
I pause there. It seems to me that the learned judge had fallen into error . By the time the matter came before him there was an advance on the matters contained in the letter of 24th July because by that time it was known when and where and for what the warrant had been issued. The details I have already read in the affidavit of Mr. Le Breton. He continued:
"I do wish to make it clear that the Secretary of State is entitled to have a policy and that he is entitled to have regard to the fact that warrants of arrest are issued as part of the judicial process. But I do not regard it as satisfactory that he should not enquire as to whether there is any reason why this policy should not be applied in an instant case. What I propose to do is to issue certiorari to quash. The matter will have to be reconsidered. Whether that reconsideration achieves any practically useful consequence, so far as the applicant is concerned, is not for me to say."
He then went on to deal with the 'veiled extradition' issue, to which I will return in a moment.
It will be seen that the learned judge was stating that the policy of not issuing passports to persons against whom there was a warrant of arrest outstanding was an intelligible and valid policy, and no appeal is made against that because it is obvious good sense. But the learned judge came to the conclusion that the fair application of the policy required that if a passport was refused because a warrant was outstanding against the applicant, inquiry had to be made of the applicant before refusing a passport, as to whether he had anything to say.
In my judgment the learned judge fell into error in concluding that that was required for the fair exercise of his discretion. It seems to me that the Secretary of State, in the fair exercise of discretion, was entitled to refuse the passport but to give his reason for so doing, and the fair giving of the reason, if the reason be that there is a warrant for the applicant's arrest outstanding, was to tell him when the warrant was issued and what offence was charged. Once he has done that he has all but discharged his duty, but he should, when notifying the applicant that that was the reason for refusing the passport, tell him that if there were any exceptional grounds which might call for the issue of a passport, he would consider them. We have been told very properly by Mr. Ter Haar that it is possible that exceptions may arise on compassionate grounds, for example, if such a person were desperately ill in hospital in a foreign country it might be that a passport would be issued or an exception made. Had that been done, no-one could challenge the proper exercise of the discretion.
In the present case it has been submitted that the letter of 24th July gives all the information, coupled with the visit of a lawyer on behalf of the applicant in Madrid, and one could assume that the lawyer must have asked why the passport was refused.
Unfortunately I do not think one can assume if he did ask such a question that he necessarily got the answer which would be required and it seems to me that the decision letter of 24th July was not sufficient to give the information which ought to have been given.
That is not an end of the matter, because judicial review is a discretionary remedy and one must look at the position at the time when the application came before the learned judge. At that stage the applicant knew everything. He was fully armed with lawyers in this country, solicitors and counsel, and there is not a word from him of any sort. There is no suggestion that there are any exceptional circumstances in this case. There is no suggestion from him that there is anything wrong with the warrant, or that he was not wanted on a warrant for an offence of obtaining a false passport or obtaining a passport in the name of Page by deception; he knew everything which he ought to have been told. He certainly knew when he made representations in the launching of the proceedings.
In those circumstances I cannot see that there are any grounds for thinking that, had the decision letter contained the information which he got later and contained the offer to consider any representations as to exceptional circumstances, any different result would have come about. Where the court finds itself in that position, namely that the applicant has suffered no injustice and that to grant the remedy would produce a barren result there are no grounds for granting relief.
Finally, I would like to say a few words about extradition. Mrs. Fleischman applied for leave to re-open part of the second ground of the application, namely the suggestion that what was happening here was an attempted "veiled extradition" of this applicant.
In my judgment there is no evidence whatever which could bring that charge home against the Secretary of State and as it would be quite pointless to raise the matter here, I would refuse leave to cross-appeal in this case.
In those circumstances I would allow this appeal and refuse the order for judicial review.
LORD JUSTICE NICHOLLS: I agree and I add a few words only on one aspect of this case.
The Secretary of State has for some years adopted and followed a policy of refusing to issue a passport to certain classes of persons. One of these classes comprises persons for whose arrest a warrant has been issued in the United Kingdom. That the Secretary of State was entitled to adopt and follow this policy has not been challenged in this case. In my view the fair implementation of that policy requires that when a passport application is refused on the ground I have mentioned, in general the applicant should be told of when and where the warrant in question was issued and in respect of what offence or offences. If he is not given that information the applicant could not, for example, begin to show that the warrant which has been issued could not in fact relate to him. Of course, each case must depend on its own particular circumstances and there may be cases where even those details need not formally be communicated, for example, where the applicant already has the substance of the necessary information. Furthermore, in so far as exceptions may be made to the policy in particular cases on some special grounds, such as compassionate grounds, fair implementation of the policy requires that the notification of refusal of a passport should not be in terms which would lead a reasonable applicant to believe that no exceptions were ever made and that his application has inevitably reached the end of the road.. Here also each case must depend on its own facts, but it seems to me that in general the fair implementation of the policy also requires the applicant to be told, when the renewal of the passport is refused, something to the effect that if the applicant wishes to submit that there are compassionate or other special reasons why, despite the policy, a new passport should be issued to him, then he may communicate with the passport issuing authority accordingly, when anything he puts forward will be considered.
Nevertheless I agree, for the reasons given by my Lord, that the failure by the Secretary of State to follow that approach in this case has not resulted in any prejudice to the appellant. I, too, would allow the appeal.
LORD JUSTICE TAYLOR: I agree and add only a few words on Mr. Ter Haar's first ground of appeal concerning the jurisdiction of this court.
I am in no doubt that the court has power to review the withdrawal or refusal to grant or renew a passport. The House of Lords in the G.C.H.Q. case made it clear that the powers of the court cannot be ousted merely by invoking the word "prerogative". The majority of their Lordships indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making law, dissolving parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable. But the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision, affecting the rights of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases. Mr. Ter Haar sought to put the grant of passports under the umbrella of foreign affairs and thereby elevate it to that level of high policy which would preclude the intervention of the courts. He says that the grant of a passport involves a request in the name of the Queen to a foreign power to afford the holder free passage and protection. It also extends the protection and assistance of the Crown to the holder whilst he is abroad.
However, those considerations do not, to my mind, render issues arising on the refusal of a passport nonjusticiable. The ready issue of a passport is a normal expectation of every citizen, unless there is good reason for making him an exception. The issues arising are no more likely to have foreign policy repercussions than those arising, to take the same analogy as before, in immigration cases. Accordingly I consider that the learned judge was right to entertain the application. However, for the reasons given by my Lords I agree that his decision on the facts of this case cannot be supported.
Appeal allowed with costs
