England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		7th June 2001

1. LORD JUSTICE PILL: This is an application for a writ of habeas corpus, made by Mr Johnathan Brady, who is detained in custody by virtue of a purported use of powers under section 152 of the Criminal Justice Act 1988.
2. He was arrested on 22nd May 2001 on a suspicion of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely cocaine, subject to section 170(2) of the Customs and Excise Management Act 1979. He was charged with that offence on 25th May. He was taken before magistrates, who remanded him, upon prosecution application under the provisions of section 152 into customs detention for a period of five days. It is not in dispute but that the magistrates could have exercised powers to remand in custody under section 128 of the Magistrates' Court Act 1980.
3. The applicant appeared again before the magistrates on 30th May. Upon information supplied to them, they remanded Mr Brady for a further five days to customs detention under section 152. He appeared before the court again on 4th June and was remanded for a further five days under section 152. It is that remand which is challenged on this application as being unlawful.
4. Section 152(1) of the Criminal Justice Act 1988 provides:

"Subject-

(a) to subsection (2) below; and

(b) to section 4 of the Bail Act 1976, where-

(i) a person is brought before a magistrates' court on a charge of an offence under section 5(2) of the Misuse of Drugs Act 1971 or a drug trafficking offence; and

(ii) the court has power to remand him, it shall have power, if it considers it appropriate to do so, to remand him to customs detention, that is to say, commit him to the custody of a customs officer for a period not exceeding 192 hours."

5. Miss Sikand's submission, on behalf of the applicant, can be put succinctly. She does not contend that the other criteria required for a section 152 remand are not met. Her submission is that the period of 192 hours mentioned in the section is a "once for all" period. There is no power by way of a second, or third, or renewed application to the magistrates to make an order under section 152(1) if the total period of the detention is thereby going to exceed the maximum specified in the section of 192 hours. It is submitted, first, that the section should be read in that way and, second, that Article 5 of the European Convention should be kept in mind in construing the section.
6. The court has a statement from Mr Paul Ian Barber, an officer of HM Customs and Excise, and appended to that is the custody record. The contents of that record are not in dispute. We have received it this morning and have not had the opportunity to go through it in detail, but it is no part of Miss Sikand's case to dispute the allegation of Custom and Excise that the applicant has been refusing food and, moreover, as the magistrates were told, he has not defecated during the period of custody.
7. It is also common ground that the purpose of the section is to deal with a problem which arises as to suspects, who in the submissions of both counsel, are referred to as "swallowers", that is people who attempt to bring drugs into the country by means of swallowing containers within which drugs are contained, thereby escaping detection at the point of entry. It is clear from the custody record that the applicant has been refusing food. He has declined to undergo an X-ray examination. He has had drink on occasions, but he has not defecated. The point is made that customs detention provides facilities in which any stools which are kept can readily be examined, and any attempt to pass stools without appropriate observation and examination is greatly minimised.
8. Miss Sikand submits that it is a straightforward question of statutory construction. Had Parliament intended that a total period of detention under section 152(1) could exceed 192 hours, express provision would have been made for that. She refers to the precision with which the length is stated, by way of hours and not even days. She submits that a period not exceeding 192 hours in section 152(1) must be read as a total period. It is common ground that by virtue of the third order of the magistrates the period does now exceed 192 hours.
9. Mr Barnard, for the Commissioner of Customs and Excise, submits that the statute does not prevent a renewed application and should be read, literally and in accordance with its purpose, as permitting repeated applications provided the magistrates are satisfied as to the requirements of the section. Those, Mr Barnard submits, provide suitable protection for a defendant. The Magistrates' Court must ask itself:

(1) is the defendant charged with a drug trafficking offence;

(2) is he over 17 years of age;

(3) does the court have a power to remand him;

(4) is it appropriate to remand him in custody at all?

10. There is an express reference to the section being subject to section 4 of the Bail Act 1976, the requirements of which have to be satisfied. The fifth question is then whether it is appropriate to remand him to Customs detention. That raises questions as to the type of detention which is permissible when the allegation is that the defendant is a swallower.
11. As I have said, Miss Sikand does not dispute that the proper questions have been asked by the magistrates in reaching the decision they did. Her submission is that having regard to, what she describes as a draconian power, the statute does not permit by way of renewed applications the period of customs detention to exceed a total of 192 hours. It is draconian because of the additional indignity to which a person in customs detention, sought to be justified on the present grounds, is subjected, namely having to wear a paper suit, being under 24-hour video observation, and being permitted to have visits only from a solicitor. A person under section 152 detention is kept in more severe conditions, she submits, and has fewer rights than one on remand in prison. The section should be construed with that in mind.
12. Miss Sikand refers to section 128(7) and (8) of the Magistrates' Court Act 1980 which provides:

(7) A magistrates' court having power to remand a person in custody may, if the remand is for a period not exceeding 3 clear days, commit him to detention at a police station.

(8) Where a person is committed to detention at a police station under subsection (7) above-

(a) he shall not be kept in such detention unless there is a need for him to be so detained for the purposes of inquiries into other offences..."

13. It is not necessary to set out the remaining paragraphs for present purposes.
14. Miss Sikand submits that it is the generally accepted practice that the 3-day period in section 128(7) is a once and for all period and that section 152(1) should be construed in the same way. Mr Barnard does not accept the 3-day period in section 128(7) is a once for all period, but makes the further submission that, even if it is, it is provided for a specific purpose, that spelt out in subsection (8)(a) to which I have referred. The detention is lawful only if that purpose is being met. That purpose is very unlikely to be a real one for a period exceeding three days. Reference is also made to the general scheme of section 128, which expressly provides for renewed applications. Miss Sikand submits that, in the absence of such express provision, the period in section 152(1) must be treated as a once for all period.
15. Counsel refers to Article 5 of the Convention in support of her submission. She relies upon the principle of proportionality; having regard to the nature of the custody, the length of custody must be proportionate to the aim pursued. Miss Sikand submits that custody for a greater period than 192 hours, having regard to ordinary biological functions, exceeds that purpose, and that assists her in construing section 128(8)(a) as she does.
16. Mr Barber in his statement deals with the circumstances of the detention. Paragraph 4:

"Where a defendant is detained at Gatwick he is kept in a suite with facilities for examination of his stools if he passes any. He is under constant observation while in custody and has no opportunity to conceal anything which he might pass. There is an obvious risk to his health if he has swallowed packages containing drugs such as cocaine. If the container bursts there is nothing that anyone can do. If the container leaks and this is detected he will be taken to hospital at Redhill."

17. As to prison custody he adds:

"The detained person had to be taken to prison and portable facilities provided for the collection and analysis of his stools. There was the risk that the arrested person would pass a package which he would conceal prior to the prison officer realising that he had passed anything. Quite apart from the circumstances being degrading and unhygienic, it was obviously not desirable that a prisoner might pass and then conceal an enormous quantity of drugs within a prison."

18. Mr Barnard has referred to the history of sections 150 to 152 of the 1988 Act, which make specific provision for arrest and custody by HM Customs and Excise. Parliament has acknowledged the special needs which arise when drugs offences are being investigated. No parliamentary intention to prevent such further applications as would permit the justices to order customs detention for a further period, so that the total exceeds 192 hours, can be read into the statute.
19. I accept the submission of Mr Barnard. The court clearly must scrutinise carefully a statutory provision under which a person is detained. It must scrutinise the wording of the section and the purpose for which it was enacted. I cannot read section 152(1) as preventing a further order, provided the conditions specified in the section are satisfied, and I would not read in the limitation for which Miss Sikand contends. If one looks to the purpose of the statute a legitimate purpose is established and Miss Sikand, subject to time limit, does not dispute.
20. The court has no medical evidence before it which assists in matters of construction, nor would I expect there to be any.
21. I see no reason why a second or third application cannot be made, or why upon further application the Magistrates' Court cannot exercise afresh, up to the time limit, the powers which, in my judgment, section 152 confers upon it. Neither can I accept the submission that section 152 is contrary to the European Convention. It appears to me that there is no inconsistency between the two provisions. While the section should be the read in the light of Article 5, I can see no consideration emerging from such a reading which prevents the construction, or which renders less attractive, the construction which I have found to be the correct one.
22. For those reasons I would refuse this application
23. MR JUSTICE SILBER: There is nothing in section 152(1) of the Criminal Justice Act 1988 which precludes further applications being made provided that the requirements of that section are met on each occasion. The wording and purpose of this subsection are in fact consistent with further applications being permissible, subject to those requirements being satisfied.
24. I agree with the judgment of my Lord and would dismiss this application.
25. MISS SIKAND: My Lord, I understand, not being familiar with procedural decisions of this court, that there is a right of appeal, if your Lordship gives leave, to the House of Lords, but I understand there is a period of 14 days allowed to make such an application.
26. LORD JUSTICE PILL: Mr Barnard, can you help on that. My recollection is that permission is not required for habeas corpus, it is one of the very few exceptions.
27. MR BARNARD: My Lord, I am sorry, I have to confess I should have researched that and I have not. But I am sure your Lordship is right.
28. LORD JUSTICE PILL: Is it the Court of Appeal or the House of Lords?
29. MISS SIKAND: My Lord, do you have the section of the White Book?
30. MR BARNARD: I think, with respect, it would be the Court of Appeal in this matter.
31. MISS SIKAND: My Lord, I am reading from the White Book:

"The proper decision ... (Read to the Word) ... The House of Lords not applicable to appeals in habeas corpus proceedings."

32. LORD JUSTICE PILL: What are you reading from, if I may ask?
33. MISS SIKAND: My Lord, I apologise, it is a photocopy from the relevant section of the White Book.
34. LORD JUSTICE PILL: Yes, this court is not equipped with White Books. Mr Bernard, Miss Sikand, what I would propose to do, we would be grateful for your help on this so that there is no misunderstanding, if we were to hear you again at, say, before the short adjournment, would that pose difficulties for either of you? Rather than interrupt the following case midstream, if it were ten minutes to one, would that be convenient?
35. MR BARNARD: My Lord, certainly.
36. LORD JUSTICE PILL: Thank you very much. Are there any other applications that we ought to deal with now?
37. MISS SIKAND: No, my Lord.
(Short Adjournment)
38. LORD JUSTICE PILL: Yes, Miss Sikand?
39. MISS SIKAND: My Lord, we are most grateful for the time. If I can direct your Lordships' attention to Volume 1 of White Book at page 1232 the paragraph entitled 54.17 where it says "Appeals". It states there, as your Lordships will see, that the applicant may go to the Court of Appeal by way of appeal unless it is a criminal cause or matter.
40. My Lord, there is no dispute in the authority that a criminal cause or matter cannot be heard by the Court of Appeal, the Court of Appeal having no jurisdiction. Having looked at the authority referred to there, which is Arman v Home Secretary, that confirms the position to be that the Court of Appeal has no jurisdiction in a criminal cause or matter, and lays down a test.
41. LORD JUSTICE PILL: Yes. I think the position is clear now that this does go, if at all, to the House of Lords, and that you do need permission.
42. MISS SIKAND: My Lord, yes. I also understand that the applicant has 14 days, but given the-----
43. LORD JUSTICE PILL: Certification does not arise, does it?
44. MISS SIKAND: My Lord, no.
45. LORD JUSTICE PILL: I also sit in the other jurisdictions where you do not need permission to go to the Court of Appeal, that is what I had in mind. Both the civil and criminal divisions of the Court of Appeal, even with the new permission requirements, you still go on habeas corpus without leave, but you need it here.
46. MISS SIKAND: My Lord, yes.
47. LORD JUSTICE PILL: What do you say in support of that submission?
48. MISS SIKAND: My Lord, I simply say that this is a point of public importance insofar as it deals with the liberty of a subject. Given that the statute itself----
49. LORD JUSTICE PILL: That applies to all habeas corpus, does it not, liberty of the subject?
50. MISS SIKAND: My Lord, yes. My Lord, it is of course right to say that all habeas corpus applications do relate to the liberty of the subject, but in these circumstances this is about the liberty of the subject in pretrial detention. This is not a question of somebody who has been sentenced and has spent more time in prison than is necessary, or somebody who has been tried and convicted. This is somebody who has been held prior to trial and, in those circumstances, it is my submission that the public importance is even greater. I also ask your Lordship to bear in mind the conditions under which an applicant in these circumstances is held, and if it is right that Customs and Excise can have a power to entirely renew and keep somebody in those conditions. That, in my submission, of course as I have already said, is a draconian power. In those circumstances, I would ask this court to give permission for a higher court than this to rule on the statutory construction.
51. LORD JUSTICE PILL: Yes, thank you. Mr Barnard?
52. MR BARNARD: My Lord, I would respectfully oppose the application. I would say this is not a case where the ordinary meaning of the section is obscure or difficult. I would respectfully submit that it is not a case which raises a substantial or difficult point of law.
53. LORD JUSTICE PILL: Yes. Whatever we decide now, and this is why you raised the 7-day point, it does appear that if we refuse leave, as I think it is still called in this jurisdiction, then it must be listed for pronouncement by the list office. So that procedure must be gone through. I bear in mind we have heard oral submissions. Did you have anything to say in reply, Miss Sikand?
54. MISS SIKAND: My Lord, the point remains the same. It is not a question of complexity in terms of interpretation but, as I contended earlier, it is a straightforward question of statutory construction which, because of its implications, in the circumstances your Lordship should grant leave.
55. LORD JUSTICE PILL: Yes, thank you very much. Leave to appeal is refused.