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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for Home Department, R (on the application of) v Special Adjudicator [1997] EWHC Admin 759 (31 July 1997)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/759.html
Cite as: [1997] EWHC Admin 759
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SPECIAL ADJUDICATOR (Ex parte SSHD), R v. [1997] EWHC Admin 759 (31st July, 1997)
1. The
Secretary of State seeks to challenge a decision made by a Special Adjudicator
on 10th July 1997 to grant bail to Mr Mohammed Kerrouche.
3. A
point came when the Secretary of State held in considering his asylum claim
that the facts were such that France was a safe third country to which he could
be returned. He appealed that decision to the Special Adjudicator who upheld
the Home Secretary's certificate concerning France. A judicial review of the
Special Adjudicator's decision was dismissed on 20th December 1996.
4. Mr
Kerrouche has, at all times material to this present application, been in
administrative detention under schedule 2 of the Immigration Act 1971 which, as
is well-known, empowers the Secretary of State to detain a person pending his
removal. The provisions I apprehend differ somewhat according to whether the
person's position as an illegal entrant or a potential deportee. It matters
not for present purposes.
5. He
has made three applications for bail to a Special Adjudicator. Special
Adjudicators are given jurisdiction under Schedule 2 to entertain applications
for bail by persons who are in administrative detention. On the first two
occasions bail was refused. On the third it was granted and that is a decision
now sought to be reviewed by the Secretary of State.
6. In
order to expose the arguments that have been canvassed in front of me, it is
appropriate first to look at a letter written by the prison officer to Mr
Kerrouche's solicitor dated 13th June 1996. It was a letter which was before
the Special Adjudicator on each of the three occasions when a bail application
was made. Mr Kerrouche is detained at Bellmarsh Prison. The letter reads in
part as follows:
7. On
8th January 1997 the Treasury Solicitor wrote to Jane Coker and Partners, who I
think by then had become solicitors to Mr Kerrouche. I should indicate that
this letter was written, as I am told by Mr Nicol (the correspondence is before
me) in answer to a specific request from the solicitors made to the Treasury
Solicitor to explain what was the Home Office case relating to national
security. The letter contains these passages:
8. It
is useful to point out at this stage that it was in due course to be submitted
by Miss Coker to the Special Adjudicator on the third bail application, and has
been submitted by Mr Nicol QC to me today, that there is an inconsistency
between what is said by the Treasury Solicitor and what had been said by the
Prison Service. That arises primarily because, whereas the Treasury Solicitor
refers to membership of the FIS, the letter from the Prison Service (read by an
informed person so far as matters of terrorism in relation to Algeria are
concerned) would indicate that he belonged to a different organisation,
although it is not named in the Prison Service letter.
9. In
the same month - January 1997 - as the Treasury Solicitor's letter was written,
the Special Adjudicator, Mr Disley, determined the first bail application. I
should cite a short passage from what I understand was counsel's note of what
he said:
10. He
proceeded to hold that there was a real risk that Mr Kerrouche would go to
ground; and the offered surety was insufficient, as he put it:
12. The
second application for bail was made on 11th June 1997 and was heard by Ms
Jarvis, who was the same Special Adjudicator who heard the final application at
which, of course, the grant of bail now under review was made. On 11th June she
refused bail and there is before me a written statement of her reasons, part of
which read as follows:
13. In
fact, as has been made clear to me by Mr Nicol, the letter of 13th June as well
as the letter of 8th January with its reference to a French newspaper was
before the Adjudicator on each of the three occasions when bail was applied for.
14. The
Special Adjudicator on 11th June proceeded, however, to refuse bail, again,
because she was not satisfied that the sureties offered were adequate.
15. I
come to the decision under challenge. It is clear from evidence put in by Mr
Martin of the Treasury Solicitor's department, and also from written
contemporaneous notes of the hearing which are before me, that Ms Coker was
submitting that the Home Office case was inconsistent because of the actual or
apparent disparity between the two letters to which I have referred. Mr
Garnham for the Secretary of State, who also has appeared on his behalf before
me, was submitting fair and square that the national security case depended on
the letter of 13th June.
17. In
the result Ms Jarvis decided to grant bail subject to a nominal recognisance to
be entered by Mr Kerrouche and seven sureties. She also imposed a condition
that he attend twice daily at a police station.
18. The
Secretary of State sought very speedily to move for judicial review, and it is
necessary only to say that, because of a stay granted on the Adjudicator's
decision, Mr Kerrouche has remained in custody since 10th July.
19. The
first point taken by Mr Garnham in support of his challenge to this decision is
that the Special Adjudicator did not take the issue of national security into
account at all when deciding whether or not to grant bail as a matter of
principle. If one looked merely at the decision of June 23rd, it is not by any
means readily apparent whether such a submission is supported by its terms or
not.
20. Mr
Garnham says that what this Adjudicator has in fact done is to replicate the
reasoning process of Mr Disley at the time of the first decision. She has
simply disregarded national security as an issue of principle, although she
differs from Mr Disley in the result, because on the occasion of 10th July she
was satisfied as to the sureties.
21. There
is set out in the grounds material which shows certain exchanges between Mr
Garnham and the Special Adjudicator herself immediately after or, at any rate,
on the same day as the Adjudicator had given her decision orally. It is not
entirely clear to me what is the evidential basis upon which I should receive
these exchanges but I infer from the lack of any objection from Mr Nicol that
they are by some proper means agreed.
24. And
then, after the Special Adjudicator's written reasons had been given, Mr
Garnham asked her for clarification of an expression in her note. What is said
is this:
25. Mr
Nicol makes the entirely simple point that, since Mr Garnham accepts that
happened, there is no basis for the suggestion that she literally disregarded
the issue of national security when considering the question of bail in
principle, since to do so accuses the Special Adjudicator of a falsehood in
asserting, as she plainly did, that she had taken it into account. It seems to
me that Mr Nicol is right; there being no question of bad faith on the Special
Adjudicator's part, the material before me would not justify a finding that the
issue of national security was, if I may use the expression again, literally
disregarded by the Special Adjudicator when considering whether to grant bail.
However, quite a different question is what she made of it.
26. The
second basis upon which Mr Garnham impugns or seeks to impugn the decision is,
he says, that the reasons given by the Special Adjudicator are inadequate.
27. I
say at once it is wholly plain to me that those reasons do not explain or begin
to explain what the Special Adjudicator made of the evidence that was before
her about national security. There is no reference to the letter of 13th June
1996; there is no reference to the letter of 8th January 1997, nor to a
statement made by Mr Kerrouche (who was also before her) and which amongst
other things asserts he had never been involved in any political activity. All
one has is the reference to national security in the sentence I have quoted.
29. The
rest of the letter deals with the sureties. So were this a case in which the
Special Adjudicator were obliged by statute to give reasons, I would hold
without the least hesitation that these reasons are very gravely inadequate. It
is plain that the national security case being made by Mr Garnham was at the
forefront of the Home Office concerns. Whatever points might have been made as
to inconsistency between the two letters, or between them or either of them and
the Applicant's statement, a decision made as to whose duty it was to arrive at
a decision upon the strength or weakness of the national security case and to
explain what that decision was, must surely at the very least have referred to
the material which was before her relative to that issue, and indicated what
she made of it. None of that has been done here. But Mr Nicol submits that this
was a case where there was no duty to give reasons. Certainly none is imposed
by the Immigration Act 1971, and it remains at present unhappily the position
under the common law that there is no general duty upon public administrators
or other public authorities to give reasons. Mr Garnham, I think, does not even
contest the proposition that in general Special Adjudicators are not obliged to
give reasons, although he would say that this was a special case given the
critical importance of the issue. I am not sure that a duty to give reasons
could be generated out of the content and context of a particular case in
circumstances where otherwise the decision maker has no legal duty to give
reasons.
30. Mr
Garnham's more substantial submission is that where a decision-maker chooses
voluntarily to give reasons, why then he or she attracts a duty to see to it
that the reasons given are adequate; that is to say that they explain
essentially why the decision was taken. A decision-maker therefore may put him
or herself into the same position as would be occupied by one who owes a duty
to give reasons.
31. Mr
Garnham cited certain planning cases as supporting this proposition. However, I
think they are, with respect, of limited assistance. They are all concerned
with decisions by planning inspectors on the basis of written representations;
true it is that in such a case the planning inspector has no duty ab initio to
give reasons but such a duty is imposed where reasons are requested. So it is
unsurprising that the cases show that where such an inspector gives reasons in
advance of a request being made, then they are to be judged as if given in
response to a request and therefore pursuant to a duty.
32. Mr
Garnham relies also on a passage in De Smith, Judicial Review Administrative
Action at paragraph 9-053.
34. The
decision of Sedley J., in R v Criminal Injuries Compensation Board ex parte
Gambles [1994] PIQR P314 is cited. That case concerned the Criminal Injuries
Compensation Board. It is enough to say that Sedley J's reasoning in Gambles
was disapproved by the Court of Appeal in R v CICB ex parte Cook [1996] 1 WLR
1037. It is perhaps with respect unnecessary to read from the text of Sedley J.
38. Then
after setting out a passage from Sedley J's judgment the learned Lord Justice
continues at 1051 A:
39. So
it seems to me that the Court of Appeal have disapproved reasoning in the case
of Ex parte Gambles in considerable measure on the footing that that reasoning
drove judicial review towards a merits appeal.
40. Mr
Nicol refers to the Cook case for the principal purpose of seeking to refute
the statement in the De Smith:
41. It
does not seem to me that Ex parte Cook refutes what the authors of De Smith
said. Certainly Ex parte Gambles had it stood would have required a
complicated process of reasoning to be undertaken and expressed by a board such
as the Criminal Injuries Compensation Board, but Ex parte Cook says nothing to
the proposition whether if a decision-maker chooses to give reasons he may give
what, had he a duty, would be legally bad reasons. I consider that a reasonable
decision-maker, if he chooses to give reasons, must have concluded that proper
reasons should be communicated to the interested parties. And undoubtedly in a
case such as the present, without for a moment derogating from the proposition
that the Adjudicator generally owed no duty to give reasons, nothing could be
easier than to perceive why a reasonable Special Adjudicator would choose to
give the reasons for the decision she has made. But in that case the decision
to give reasons is a decision to give proper reasons.
42. If
in the result the reasons given simply do not explain why the decision was
taken, then the decision-maker's own choice that reasons should be given has
not been carried through. The reasons do not achieve the result intended and in
my judgment in such a case the court will scrutinise the reasons given on much
the same footing as where the decision-maker owes a duty to give reasons.
43. If
that is right, this decision falls to be quashed. As I have already explained
the reasons here are, I fear, very seriously inadequate. If it is wrong,
however, I should canvass Mr Garnham's third argument and that is that this was
an irrational decision.
44. I
do not hold that a reasonable Adjudicator on the material before Mrs Jarvis on
10th July was bound to refuse bail, Though, as it seems to me, the difficulty
being a decision to grant bail is a very difficult one to justify.
45. The
right approach to the rationality challenge, it seems to me, is connected with
that part of the case which concerns reasons. It is well-known, it is well
established that if a decision-maker chooses not to give reasons or not to give
full or proper reasons the court may infer that the decision-maker has not
dealt properly and lawfully with the material before him. There is reference to
a such a position in the leading authority in the House of Lords in Padfield
[1968] AC 997.
46. In
the present case one simply does not know what the Special Adjudicator made of
the arguments concerning national security. The inference is that in truth
while I have accepted that she in a literal sense took account of it, she has
not grappled with the problem to which the very grave case, made on national
security grounds, gave rise. She has not considered whether the contents of the
letter of 13th June 1996 might reasonably be true and what should follow from
that. She has not, I think, measured it against the letter of January 1997 nor
the Applicant's statement. In short, although the material was before her and I
have indicated that I cannot hold that she simply disregarded it, she has not
reached an adjudication on the merits of the national security issue that she
was obliged to do.
48. I
wish to add this out of deference to an important submission made by Mr Nicol.
This of course is an application for a judicial review of a grant of bail. Such
an application I apprehend will be very rare indeed, Mr Nicol certainly has not
contested the court's jurisdiction to entertain it. The court will look with
very great care on any such application, not only because of the very bringing
of judicial review proceedings if a stay is granted it will mean that a person
is detained beyond the time when, according to the order of a properly
constituted judicial authority he ought to be released, but also because of the
obvious importance always recognised by the common law of a person's liberty.
49. I
have held in the present case that the grant of bail falls to be quashed. I
desire to emphasis that I regard this case and the granting of such relief in a
context such as this as wholly exceptional.
50. MR
GARNHAM: My Lord, those behind me are anxious to reassure your Lordship that
the making of this application is exceptional, just as the grant of relief is.
51. MR
JUSTICE LAWS: I imagine they have no previous
experience
of making such an application any more than I have.
53. I
was also anxious on one point arising out of the judgment. Your Lordship was
uncertain as to the evidential basis for the material and the ground relating
to the exchange.
54. MR
JUSTICE LAWS: I did not mean to criticise, it is just that I was only shown
the grounds. I imagine this is somewhere.
55. MR
GARNHAM: In the affidavit, page 17, my Lord. In those circumstances I seek an
order quashing the grant of bail. My Lord, I think I need nothing else.
56.
It
would be possible to admit the matter to the same or another Special
Adjudicator but I do not seek that. I seek simply to quash it and I imagine my
friend -- I will leave to it him to make his own submission -- but it might be
that it is good for him to make another application --
57. MR
JUSTICE LAWS: We had better not leave the matter in a state of uncertainty.
Leaving aside any question of whether Mr Nicol would want to test the case in
the Court of Appeal, I would have thought that the consequence of my quashing
the decision is that notionally it remains undetermined and the Adjudicator or
an Adjudicator will have to redetermine it. That would be the conventional
decision.
60. MR
JUSTICE LAWS: If Mr Nicol agrees that is our common understanding. You make no
other application, Mr Garnham? Costs?
61. MR
GARNHAM: Only if it is to be remitted, I would invite your Lordship to remit it
to a different Special Adjudicator.
65. MR
NICOL: I was about to mislead the court. The arrangement that had provisionally
been made for another bail hearing was only in the event that this application
by the Secretary of State was unsuccessful.
67. MR
GARNHAM: Could I help, because I think I know the background of the story.
When the Special Adjudicator granted bail on this occasion she imposed a surety
regime. She said that that should run until the date of the hearing of the
judicial review into the safe third country case.
70. My
Lord, can I complete the story? My friend will stop me if I do anything wrong.
Judgment in the third challenge is to be given at three o'clock this afternoon.
As it happens those instructing me, in case it became relevant, sought the
leave of the Master of the Rolls who was one of the three Court of Appeal
judges who heard the case, to refer your Lordship to it. It has not been
necessary thus far, but I know my friend knows the answers, as does his client,
I imagine, as does everybody else, and the challenge failed in the Court of
Appeal.
71. What
subsists by way of hearing tomorrow is that the Special Adjudicator indicated
that if it became necessary to continue the bail regime that she imposed, she
would want to see the parties again to arrange times and dates for securities.
73. MR
GARNHAM: That would have been done tomorrow, yes. As your Lordship has quashed
bail on which that hearing was premised --
74. MR
JUSTICE LAWS: We are back to where we started. It has to be determined. That
is right, is it not, Mr Nicol?
76. MR
JUSTICE LAWS: You agree it would be appropriate to be done by a different
Adjudicator? I would have thought, given that there has been some perfectly
proper argument about what she said and what she did not say, it might be a
little embarrassing for her to have to deal with it a second time round or a
third time round.
77. MR
NICOL: I leave it in your Lordship's hands. These are people who are used to
exercising effectively judicial functions; they have broad shoulders and they
are also used to setting out of their mind considerations that should not be
there.
81. I
think all things considered -- and I emphasise I mean no criticism of the
Adjudicator in this, any criticism I have made is wholly limited to my judgment
-- it would be more appropriate for a different Adjudicator to re-hear this
application for bail.
87. MR
JUSTICE LAWS: I suppose you want to say that it may be appropriate for the
Court of Appeal just to see whether any special limitation of principles apply
when you have judicial review of the grant of bail.
89. MR
JUSTICE LAWS: Mr Garnham, exceptionally I think this may be a case where at
first instance the court should give leave. What would you like to say?
90. MR
GARNHAM: I hesitate to say anything. It is
ultimately
a matter for your Lordship. I register my opposition to the application but do
no more, I think.
91. LORD
JUSTICE LAWS: Thank you, Mr Garnham, that is entirely proper. I will give
leave to appeal in this case.
© 1997 Crown Copyright