COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Immigration Appeal Tribunal
Senior Immigration Judge Eshun
Senior Immigration Judge Ward
DA/003122009 + DA/00046/2009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE RIMER
| AT (Pakistan)
|- and -
|Secretary of State for the Home Department
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Mr Robert Jay QC and Ms Marie Demetriou (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 23 March 2010
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LORD JUSTICE HOOPER:
In particular, transitional provision -
in the case of an order commencing section 32 –
(d) may provide for the section to apply to persons convicted before the passing of this Act who are in custody at the time of commencement or whose sentences are suspended at the time of commencement;
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
A person who is not a British citizen is liable to deportation from the United Kingdom if — (a) the Secretary of State deems his deportation to be conducive to the public good ...
Section 3(6) of the 1971 Act provides:
Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
Section 5(1) states:
Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (Emphasis added)
This provision, however, which essentially outlaws the retrospective application of the criminal law, is not applicable in this case (see application no. 8988, decision of 10 March 1981, Decisions and Reports no. 24, p. 198). As the Conseil d'Etat observed in its judgment of 16 October 1985, the deportation order against the applicant does not constitute an additional penalty but a security measure. A measure of this kind taken in pursuance, not of the criminal law but of the law on aliens is not in itself penal in character.
28. The wording of Article 7 para. 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a "criminal offence". Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity.
29. As regards the connection with a criminal offence, it is to be observed that before an order can be made under the 1986 Act the accused must have been convicted of one or more drug-trafficking offences (see section 1 (1) of the 1986 Act at paragraph 12 above). ...
30. In assessing the nature and purpose of the measure, the Court has had regard to the background of the 1986 Act, which was introduced to overcome the inadequacy of the existing powers of forfeiture and to confer on the courts the power to confiscate proceeds after they had been converted into other forms of assets ... . The preventive purpose of confiscating property that might be available for use in future drug-trafficking operations as well as the purpose of ensuring that crime does not pay are evident from the ministerial statements that were made to Parliament at the time of the introduction of the legislation ... . However it cannot be excluded that legislation which confers such broad powers of confiscation on the courts also pursues the aim of punishing the offender. Indeed the aims of prevention and reparation are consistent with a punitive purpose and may be seen as constituent elements of the very notion of punishment.
32. The Court agrees with the Government and the Commission that the severity of the order is not in itself decisive, since many non-penal measures of a preventive nature may have a substantial impact on the person concerned.
33. However, there are several aspects of the making of an order under the 1986 Act which are in keeping with the idea of a penalty as it is commonly understood even though they may also be considered as essential to the preventive scheme inherent in the 1986 Act. The sweeping statutory assumptions in section 2 (3) of the 1986 Act that all property passing through the offender's hands over a six-year period is the fruit of drug trafficking unless he can prove otherwise ... ; the fact that the confiscation order is directed to the proceeds involved in drug dealing and is not limited to actual enrichment or profit ... ; the discretion of the trial judge, in fixing the amount of the order, to take into consideration the degree of culpability of the accused ... ; and the possibility of imprisonment in default of payment by the offender ... - are all elements which, when considered together, provide a strong indication of inter alia a regime of punishment.
34. Finally, looking behind appearances at the realities of the situation, whatever the characterisation of the measure of confiscation, the fact remains that the applicant faced more far-reaching detriment as a result of the order than that to which he was exposed at the time of the commission of the offences for which he was convicted ... .
35. Taking into consideration the combination of punitive elements outlined above, the confiscation order amounted, in the circumstances of the present case, to a penalty. Accordingly, there has been a breach of Article 7 para. 1.
29. ... the true analysis of the relevant statutory provisions and the way in which they have been interpreted in the domestic and European courts demonstrates that an order for an extended licence is preventive not punitive.
Again, having regard to the preamble to the Act and also to the nature of the Act's requirements, the Court considers that the purpose of the measures in question is to contribute towards a lower rate of re-offending in sex offenders, since a person's knowledge that he is registered with the police may dissuade him from committing further offences and since, with the help of the register, the police may be enabled to trace suspected re-offenders faster.
Overall, the Court considers that, given in particular the way in which the measures imposed by the Act operate completely separately from the ordinary sentencing procedures, and the fact that they do not, ultimately, require more than mere registration, it cannot be said that the measures imposed on the applicant amounted to a "penalty" within the meaning of Article 7 of the Convention.
"2. ... it appears strongly arguable that the present decision is harsh and disproportionate on its particular facts ...
3. As to the decision on the Article 8 ground, ... I am concerned that what appears to me to be the very harsh conclusion reached may be one which inflicts on the Appellant and all the members of his immediate family (most especially his wife and child, both of whom have only ever lived in the UK, but also his in-laws) an infringement of their rights to family life (which was rightly and indeed inevitably held to be engaged on these facts) which is quite disproportionate to the benefit to the public in the prevention/control of crime, given the nature of the Appellant's offending and all the circumstances, and hence is a Wednesbury unreasonable conclusion. That is not a concern which I form lightly, and I have taken full account of the length of the sentence passed by HHJ Steiger and the quoted passages from his sentencing remarks.
5. Upon reconsideration it will be for the Tribunal to consider afresh the Article 8 ... issue ...".
It is submitted that the High Court's order on a Statutory Review application is deemed to have the same effect as an order on a Judicial Review application. There is no statutory or procedural distinction. The order indeed has a binding effect on the Tribunal. It was mandatory for the Tribunal (here SIJ Ward) to act in accordance with the Deputy High Court Judge's order. Once the Panel's conclusion was deemed as Wednesbury unreasonable, it was not open to SIJ Ward to preserve that conclusion. She should have considered Article 8 afresh and substituted a fresh decision to allow or dismiss the appeal. It is submitted, with all due respect, that the way in which SIJ Ward undermined the Deputy High Court Judge's order may well be categorised as contempt. The decision is therefore materially wrong in law.
LORD JUSTICE LAWS
LORD JUSTICE RIMER
I also agree.