QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HBH||Claimant|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Miss J Richards (instructed by the Secretary of State) appeared on behalf of the Defendant
Mr C Shroff (instructed by the CPS) appeared as an Interested Party
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"During the interview, it became evident that HBH is an adult ... this person was not taken by this team as an unaccompanied asylum seeking child."
"In respect of any claimant who has not issued a claim, but has notified the defendant in accordance with paragraph 5, the limitation period for any claim under the Human Rights Act 1998 shall be extended until three months after judgment is given."
That was a reference to judgment on certain generic matters which was ultimately given by Munby J, by his declaration and reasons in a further order made in the disputed children litigation on 26th January 2007, now at the HA bundle, page A58.
"The policy and/or any reliance on the summary age assessment for the purpose of investigation or prosecution of a criminal offence under section 2 of the 2004 Act was unlawful."
"Where a person is convicted by a Magistrates' Court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may ... so direct."
"to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1)."
Further elaboration of that defence is contained in particular in the provisions also of section 2(7). The submission is that in deciding whether or not he had a reasonable excuse for not being in possession of an immigration document, it would have been highly relevant to take account of his age and of the pressures that he says he was under from the agent or agents who arranged his travel here.
"It is important in cases involving children who say they have destroyed or disposed of their passport at the behest of another person [which, at any rate now, is exactly the case of this applicant] to take account of subsection 7(b)(iii) [of the Act], where in the circumstances of the case, it may be unreasonable to expect non-compliance with the instructions or advice of that person. It would be unreasonable to expect the same level of understanding from minors as we do from adults. Not only could some children not be expected to challenge the advice ... but they may not understand that they need a passport or the consequences of destroying or disposing of it en route to the United Kingdom."
So the guidance continues:
"Children have different levels of maturity, which might relate to age or other factors, and this needs to be taken into account in assessing the merits of a child's defence."
There then follows the following vital sentence:
"Unaccompanied minors who have committed the offence would need to be considered on a case by case basis, which should be referred to a chief immigration office and the local prosecution unit as necessary."
"Given that liability was denied by the defendant in the case of HBH, there has now been more detailed consideration of his case by this firm. This has disclosed that the generic issue before the court on the general legality of the age dispute policy has a context and consequences which gives rise to a matter of very significant public importance. These issues are not presently directed before the court in the case of HA, nor have they been before the court in any of the other lead cases. The issues raised in the case of HBH concern the extent to which the age dispute policy can lawfully be used to make a conclusive determination of age for the purposes of referral for a criminal prosecution and the extent then to which the criminal prosecution can be used as "evidence" of age for fast tracking and detention."