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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rape Crises Centre v Brindley For Judicial Review [2000] ScotCS 183 (4 July 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/183.html
Cite as: [2000] ScotCS 183
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD CLARKE in Petition of THE RAPE CRISIS CENTRE First Petitioners; and SANDY BRINDLEY Second Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department to grant Mr Mike Tyson leave to enter the United Kingdom ________________ |
First and Second Petitioners: O'Brien, Q.C.; Clark Ferguson, S.S.C.
First Respondent: Tyre, Q.C., Anderson; H MacDiarmid, Solicitor to the Advocate General for Scotland
Second Respondent: Cullen, Q.C.; Brodies, W.S.
2 June 2000
INTRODUCTION
In this petition for judicial review I heard submissions on behalf of parties at a first hearing on 2 June 2000. With the agreement of the parties, and having regard to the urgency of the matter, I gave my decision, which was to dismiss the petition, at the end of the hearing, and indicated that I would provide written reasons in due course.
The first respondent is The Secretary of State for the Home Department. The petition was served on a number of other parties, including Mr Frank Warren, who is a boxing match promoter. He was represented by senior counsel at the First Hearing. A first order had been pronounced on 29 May 2000, with a reduced period of notice of two days, and a reduction of the 48 hour period in Rule of Court 58.8(1)(a)(ii) to one hour. The Lord Ordinary in granting that motion, had advised counsel for the petitioners that his decision would not preclude arguments as to the competency of reducing the seven days period provided for in Rule of Court 58.7(iii). In the event, no argument regarding competency was raised with me.
The first petitioners are a company limited by guarantee. They provide advice and assistance for women who are victims of rape, and support for them. They are funded by local authorities in the Strathclyde area, and by charitable donations. They work together with other similar organisations in other areas of Scotland, which together form what is described in the petition as the "Scottish Rape Crisis Network".
The second petitioner is one of two full-time workers employed by the first petitioners. She has worked for six years, offering support for rape victims and assisting them in their dealings with the police and criminal justice system. Her activities were said to include campaigning on behalf of rape victims in respect of matters which concern them, training counsellors and fund-raising. She is a member of a body known as the Scottish Partnership on Domestic Abuse, whose remit is said to be to devise strategy and to promote measures which assist the victims of domestic abuse. The aim of this body, which is funded by the Scottish Executive, is to reduce the number of offences of rape and violence against women in Scotland.
THE RELEVANT DECISION
The petitioners sought reduction of a decision of the Secretary of State for the Home Department, Mr Jack Straw M.P., whereby he granted a US citizen, and well-known boxer, Mr Mike Tyson, leave to enter the United Kingdom for a visit of three weeks' duration for the purpose of participating in a boxing match, planned to take place in Glasgow on 24 June 2000. The decision, in question, was announced by the Secretary of State, in the House of Commons, in reply to a Parliamentary Question and was in the following terms:
"I have today informed Mr Tyson that he will be granted entry clearance for a single visit of three weeks' duration strictly for the purpose of a boxing match in Scotland on 24 June 2000. The decision to grant entry clearance has been taken in accordance with Rule 320(18) of the UK Immigration Rules which requires that admission will not normally be given to those with criminal convictions for relatively serious offences unless it can be justified for strong compassionate reasons, but also bearing in mind the residual discretion which I have under the Rule.
In reaching my decision I took note of the fact that Mr Tyson has relevant convictions for the purpose of the application of this Rule. I also noted that there are recent allegations of an assault on an employee of a night-club in Las Vegas, but we understand this is still under investigation. And I took into account the views expressed by the public, about Mr Tyson visiting the UK.
I did not consider that there were strong compassionate reasons which would justify admission in Mr Tyson's case for the purposes of the Rules. However, I concluded that there were other exceptional circumstances which justified his entry to the country for the purpose of participating in the boxing match. My decision took account of the following factors:
- that Mr Tyson's behaviour on his previous visit to the UK was satisfactory;
- that any risk to the public to which his criminal convictions and the other allegations referred to above might be relevant, would be minimised by the circumstances of his proposed visit, i.e. his high media profile, the presence of his trainers and other supporting entourage and the limited duration of his visit;
- and that a refusal to permit entry would result in loss of economic benefit to the UK and in particular to the areas in which engagements took place and would not enhance the UK's standing as a venue for major sporting events,
I also took account of the fact that Rule 320(18) currently operates in an inconsistent manner in that those in the public eye whose convictions known are more likely to be caught by its provisions".
A news release issued by the Home Office on the same date stated,
"Mr Straw said: I am fully aware of the strong opinions which have been expressed on Mr Tyson's application, especially in Scotland - as I was when this matter last came before me in January. It is however my responsibility to make decisions of this kind as fairly and impartially as I can, and that is what I have sought to do. The reasons for my decision are explained in the Parliamentary Question".
THE IMMIGRATION RULES - THEIR LEGAL STATUS AND FUNCTION
It was explained to me, on behalf of the Secretary of State, that on or about 3 May 2000, the Secretary of State had a meeting with certain individuals who were acting on behalf of Mr Tyson. This meeting had been arranged at the request of those individuals. At the meeting the Secretary of State was advised that there was a proposal to stage a boxing match involving Mr Tyson in Glasgow. The Home Secretary advised that an application for entry clearance should be made, to permit
Mr Tyson to enter the United Kingdom for that purpose, and that any such application would be considered on its merits. Such an application is made in terms of rule 24 of the Immigration Rules HC395. Persons seeking entry for certain purposes require prior entry clearance. The rule provides, in addition, that:
"Any other person who wishes to ascertain in advance whether he is eligible for admission to the United Kingdom may apply for the issue of an entry clearance".
This allows persons who wish to enter the United Kingdom to be informed in advance whether they are to be allowed to enter, or not, rather than simply to take the chance that they will be allowed to enter on their actual arrival in the United Kingdom. Rule 25 provides that:
"Entry clearance takes the form of a Visa (for Visa nationals) or an entry certificate (for non Visa nationals).
These documents are to be taken as evidence of the holder's eligibility for entry into the United Kingdom, and accordingly accepted as 'entry clearances' within the meaning of the Immigration Act 1971".
The rules provide the criteria to be applied by Immigration Officers when they are called upon to decide whether a person who arrives in the United Kingdom should be granted admission. Rule 26 provides:
"An application for entry clearance will be considered in accordance with the provisions of these rules governing the grant or refusal of leave to enter. Where appropriate, the term 'Entry Clearance Officer' should be substituted for 'Immigration Officer'".
It is appropriate, at this stage, to have regard to the status of these rules.
The primary legislation in respect of which the rules operate, is the Immigration Act 1971 which provides for the rights of entry into the United Kingdom and stay in the United Kingdom. Section 3(1) of the Act provides that:
"Except as otherwise provided by or under this Act, where a person is not (a British citizen) -
- he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;
- he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
- if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employment or occupation in the United Kingdom, or requiring him to register with the police, or both".
Section 3(2) goes on to provide that:
"The Secretary of State shall from time to time... lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;...".
Schedule 2, para 1(3) of the Act provides:
"In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given by the Secretary of State...".
The status of the immigration rules has been the subject of previous judicial consideration. In R v the Secretary of State for Home Office ex parte Hosenball [1977] 1 W.L.R. 766 Lord Denning MR at pages 780-781 described them in the following terms:
"They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act. They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the Courts must have regard to them because there are provisions in the Act itself, particularly in Section 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition, the Courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether the officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law".
In the same case Geoffrey Lane LJ, at pages at 785-786 said:
"These rules are very difficult to categorise or classify. They are in a class of their own. They are certainly a practical guide for the immigration officers at the various ports and airports of the country, who have the everyday task of trying to administer the Immigration Act 1971. Indeed they are, as to large parts, if one reads them, little more than explanatory notes of the Act itself... One thing can be said with certainty with regard to the rules, and that is that they certainly can be used as a touchstone in order to aid the discovery as to whether the Secretary of State has in all the circumstances acted fairly".
In the later case of Pearson v Immigration Appeal Tribunal (1978) Imm. A.R. 212, the Court of Appeal returned to the theme and Stephenson L.J, under reference to the Hosenball case stated, at page 224 as follows:
"They are stated by Section 3(2) of the 1971 Act to be rules laid down by the Secretary of State as to the practice to be followed in the administration of the Act. They are not delegated legislation or rules of law, but rules of practice laid down for the guidance of those entrusted with the administration of the Act, including immigration officers, responsible officials authorised to act on behalf of the Secretary of State, adjudicators and appeal tribunals. For adjudicators they have the force of law. Immigrants can rely on them as an aid to discovering whether the Secretary of State has acted fairly and can ask him to depart from him if they stand in their way. Parliament must look at them and not disapprove them before they can have any effect".
Returning to the provisions of the rules themselves, Part 9 thereof provides for general grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom. Rule 320 provides for two classes of such grounds, the first being "grounds on which entry clearance or leave to enter the United Kingdom is to be refused," the second being "grounds on which entry clearance or leave to enter the United Kingdom should normally be refused", (my emphasis). Among the second class of grounds is to be found, Ground 18, which is in the following terms:
"Save where the Immigration Officer is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom".
THE FACTUAL BACKGROUND TO THE DECISION
Mr Tyson has been convicted of rape in the United States and was sentenced to a period of imprisonment of 6 years. Rape is an offence which is punishable in the United Kingdom, with imprisonment for a period more than 12 months.
Following on the meeting held between Mr Tyson's representative and the Secretary of State, on 3 May, an application was made, on behalf of Mr Tyson, for entry clearance. It was received by the United Kingdom consulate in New York. The application was transmitted to the Secretary of State to be dealt with by him, rather than by the appropriate official and entry clearance officers. There is no express statutory authority for the Secretary of State "calling in" as it was described, for his own consideration, such applications. Counsel for the Minister submitted that this was done in an exercise of the prerogative. While counsel for the petitioners questioned the proposition that in dealing with such applications the Minister is acting under the prerogative, she did accept that the Minister had the power to determine the application himself.
This was not the first occasion on which the Secretary of State had had to consider an application by Mr Tyson for clearance to enter the United Kingdom to participate in a boxing match. On 13 January 2000 the Secretary of State had granted such leave clearance to Mr Tyson to box in Manchester on 30 January. There had been very considerable publicity at that time relating to Mr Tyson's admission to the United Kingdom, having regard to the fact that he was a convicted rapist. An application was made by an organisation known as Justice For Women for leave to apply for judicial review of the Secretary of State's decision of 13 January to allow Mr Tyson entry, which application was heard in the High Court, and refused by Sullivan J, on 17 January 2000. In his decision Sullivan J held that the Secretary of State had a discretion under rule 320(18) to allow a person to be admitted to the United Kingdom, even where the terms of rule 320(18) would indicate that that admission should be refused.
THE PETITIONERS' CASE
Before me, counsel for the petitioners accepted that that was the position in law and that the Secretary of State had such a discretion. Furthermore, it was accepted, on behalf of the petitioners, that normally the exercise of considering and deciding whether to grant an application for leave to enter the United Kingdom or not would be conducted in private and that not even the applicant would have any right to make representations, in relation thereto, once the application had been made. It was stressed that the petitioners were not seeking to attack the merits of the Minister's decision to grant leave to Mr Tyson. The basis of the petition, it was said, was that the terms of the announcement of the Secretary of State's decision, and what had been done prior to it, had disclosed that a procedural impropriety had taken place. While in the ordinary case, the Home Secretary had no duty to invite representations in respect of such applications, in the present case the Secretary of State had, in effect, imposed such a duty on himself because of the fact that he had met with what were described as "supporters" of
Mr Tyson on 3 May and that he had said in his announcement of his decision that
"I took into account the views expressed by the public about Mr Tyson's visiting the United Kingdom"
It was contended on behalf of the petitioners that the fact that the Secretary of State had recognised that there was a legitimate public interest in the matter, required him to invite "interested" members of the public, including the petitioners, to make representations in relation to Mr Tyson's application before he reached his concluded decision in respect of it. The averments in the petition in support of this line are to the following effect:
"The Secretary of State for the Home Department knew or ought to have known that Scottish Women's Groups et separatim interested members of the public would wish to make representations to him standing the furore which greeted his decision in January aforesaid. In the said circumstances having heard representations in private from supporters of Mr Tyson, he had a duty to make public the fact that said match was proposed. In the proper exercise of his discretion, he had a duty to call for representations from interested members of the public, within such convenient and practicable timescale as he saw fit"- Article 14.
Later in the petition it is averred, at Article 17, that:
"The first et separatim second petitioners have a legitimate expectation that the Secretary of State for Home Department will act in accordance with natural justice and refrain from unreasonably fettering his discretion. He has denied them the right to make representations which might have had a bearing on the said decision. They derived the said right from his discretionary decision to take into account views expressed by the public, and further from the fact that he has been willing to listen to opposing views. They have a reasonable concern that granting a convicted rapist leave to enter the UK may diminish the gravity of the crime of rape in the eyes of the Scottish public, and particularly in the eyes of young male boxing fans".
On being pressed, in the course of her submissions, to explain what the mechanics of seeking such representations should have been, counsel for the petitioners submitted that, once Mr Tyson's application had been received, there should have been a public notice issued by the Secretary of State, inviting written representations from interested members of the public to be submitted within a short period of time. Some such procedure was necessary, it was said, if the Secretary of State was to be seen to be acting fairly. Having heard Mr Tyson's representatives at the meeting on 3 May 2000 it was incumbent on the Secretary of State, having regard to the requirements of natural justice and, in particular, the principle of audi alterem partem, to hear, as it was put, "the other side", the quoted expression apparently being meant to embrace all those "interested" members of the public who did not wish to see Mr Tyson being permitted to enter the country.
I have sought to set out the essence of the basis of the attack made on the Minister's decision as I understood it, as gleaned from the petitioners averments and as elaborated upon in submission.
TITLE AND INTEREST
Although I have endeavoured to set out the petitioners' position, in the first place, to set the scene, it was agreed at the hearing that I should hear submissions from the respondents before being addressed by counsel for the petitioners since the Secretary of State, who had lodged answers prior to the first hearing, had a preliminary plea of no title and interest to sue. In addressing me counsel for the Secretary of State, contended that the position in relation to title and interest, in Scotland, might remain different from what obtained in England in relation to locus standi. He submitted that under Scots Law, two things remained clear. In the first place, title and interest should be considered as a preliminary issue and should not be left to be considered with the merits of the matter. Secondly it remains the position that in Scotland both title and interest have to be demonstrated by persons seeking judicial review. Reference was made to the familiar dictum of Lord Dunedin in D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 at page 12 where his Lordship said:
"By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase 'title to sue' has been a heading under which cases have been collected from at least the time of Morison's Dictionary and Brown's Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies".
Two things require, in my judgement, to be noted about that dictum. In the first place his Lordship was recognising the difficulty and, indeed, inappropriateness of seeking to provide any fixed definition of the concept of title to sue. Secondly the dictum, though it has stood the test of time, was uttered in times well before the huge development of administrative law and judicial review that has occurred in recent decades. The key elements, therefore, of the dictum namely "some legal relation which gives him some right which the person against whom he raises the action either infringes or denies" must be given a content and a meaning which keep them abreast with those developments. Where questions of title to sue arise in a situation where a Minister is exercising a function, the search is, in my opinion, to be focused on the scope and the purpose of the statute or other measure under which he is purporting to act to discover who, in law, has the right to challenge an act or decision taken by the Minister in the exercise of that function if that act or decision is not to his liking. The fact that the act or decision is not to his liking does not per se qualify a person with title to challenge. Some legislation and its related measures, having regard to their purpose and function, will, no doubt, confer a right of challenge on individual members of the public as a whole, but it is a fallacy to suppose that because of the public interest in ministers acting lawfully and fairly that public interest by itself confers on every member of the public a right to challenge a minister's act or decision. Matters must go further, in my judgement, and the individual or body seeking to challenge the minister's act or decision must show that, having regard to the scope and purpose of the legislation, or measures, under which the act is performed, or the decision is made, he or they have had such a right conferred upon them by law, either expressly or impliedly. In the case of Wilson v IBA 1979 S.C. 351
Lord Ross at page 363 said:
"In Scotland I see no reason in principle why an individual should not sue in order to prevent a breach by a public body of a duty owed by that public body to the public".
That approach to questions of title to sue was applied by Lord Clyde in the case of Scottish Old Peoples Welfare Council 1987 S.L.T. 179 where his Lordship, under reference to the supplementary benefits legislation, with which he was concerned in that case, said at page 185
"The purpose of the legislation is to make state benefit available to any member of the public who may qualify for it and it is not unreasonable to see the duty of the proper administration of the legislation as a duty owed to the public. On that basis it can be concluded that any member of the public has at least a title to sue and the only question remaining would be whether he has an interest to do so".
For the reasons that follow I do not regard the decisions in these cases as contradicting the test for title to sue that I have endeavoured to formulate. Counsel for the Secretary of State relied on the last mentioned case also for support for his proposition that questions of title and interest fall to be determined prior to going on to considering the merits of the case and in that respect he suggested the Scottish position may be different form that pertaining in England see Lord Clyde page 183-184. It should, however, be noted that his Lordship did acknowledge that there may well be cases where questions of title and interest and the merits of the case would be inextricably linked.
In the present case the complaint by the petitioners relates to the manner in which the Secretary of State had exercised a discretion in his application of the Immigration Rules. It was conceded, on behalf of the petitioners, that these rules did not have the force of law. They are addressed to those officials who require, in the exercise of their statutory functions, to reach decisions under the primary legislation, the Immigration Act 1971, and to those persons who seek admission to the United Kingdom and for leave to enter the United Kingdom. I agree with counsel for the Secretary of State when he contended that they conferred no express or implied rights on any other parties. The legislation under which the rules are made, and the rules themselves, fall to be contrasted with the legislation being considered in the Wilson and Scottish Peoples Welfare Council cases in that they did not confer general duties owed to members of the public as a whole, creating between the Secretary of State and a member of the public, who is not an applicant for admission to the United Kingdom or for leave to be admitted, a "legal relationship". In my judgement the petitioners were in no different a position from any other member of the public in that respect. The scope and function of the legislation, and the rules, did not provide a legal nexus between the petitioners and the Secretary of State when he was exercising his discretion under them.
For the forgoing reasons I am satisfied that the petitioners have no title to bring this petition and it falls to be dismissed for that reason alone.
Though I was addressed separately by counsel for the Secretary of State on the question of interest, it seems to me that, in the circumstances of this case, had there been title, the petitioners would have been able to claim an interest to seek reduction of the Secretary of State's decision. The two concepts, of course, frequently run into each other or overlap. Had I considered that the statutory regime and the rules, having regard to their scope and function, had conferred on the petitioners a title to challenge decisions made by the Secretary of State thereunder, then it seems to me that they could well have been said to have an interest to ensure that the decision taken by the Secretary of State, in the instant case, was arrived at in accordance with the law. In the field of administrative law and judicial review it appears to me that there must be few cases where there is title but no interest, though such cases may arise, for example, where the issue is academic, (compare the Scottish Old Peoples Welfare Association case).
RELEVANCY OF THE PETITIONERS' CASE
Counsel for the Secretary of State contended that, even if I were to hold that there was title and interest in the present case, there were no relevant averments to support the duty upon the Secretary of State, which the petitioners claimed arose, namely a duty to call for representations from them before he reached his decision on Mr Tyson's application. As expressed in the petition, and in submission by counsel for the petitioners, that duty was owed not only to the petitioners, but to all of those who might fall under the description "any interested parties". As counsel for the Secretary of State pointed out that raised the difficult question as to who precisely was to be included among such interested parties. Looking to other cases that might arise, the question arose as to who were to be regarded as interested parties, for example, where the applicant was not, as in the present case, a convicted rapist, but a convicted murderer. And, in any event, the fallacy in the petitioners' position was to say that because the Secretary of State, in the announcement of his decision, had indicated that he had had regard to unsolicited views from the public this imposed a duty upon him to obtain more views. I consider that these submissions were well founded. Once it was accepted that there was no duty on the Secretary of State, arising from the legislation and the rules, to seek representations from anyone, the fact that there was a public outcry expressed in the media, and elsewhere, about the proposed visit by Mr Tyson, to which the Secretary of State stated he had had regard, when reaching his decision, did not impose upon him a legal duty to seek further representations from "interested parties", however they may be defined.
In seeking to pray in aid the rules of natural justice and, in particular, the principle of audi alterem partem the petitioners were, in my judgement, also labouring under a misconception. In particular by referring to the Secretary of State having a duty to hear "the other side", once he had had a meeting with the representatives of Mr Tyson on the 3 May, the petitioners were, in my opinion, using inappropriate terminology. In granting an entry clearance application the Secretary of State was not making an order against the petitioners or anyone else. The fact that members of the public may have, as it was put, a wish to be heard and that the Secretary of State may know of this, does not create a legal right in members of the public to be heard. It appears to me that the petitioners were labouring under a fundamental misconception as to the situations where the principle audi alterem partem falls to operate. In Cheall v Association of Professional Executive Clerical and Computer Staff (1983) 2 A.C.180, 190 Lord Diplock said:
"Decisions that resolve disputes between the parties to them, whether by litigation or some other adversarial dispute - resolving process, often have consequences which affect persons who are not parties to the dispute; but the legal concept of natural justice has never been extended to give such persons, as well as the parties themselves, rights to be heard by the decision-making tribunal before the decision is reached".
While I have already held that the principles of natural justice do not, in any event, assist the petitioners in this case, because the Secretary of State was not resolving a dispute, involving the petitioners, nor settling a question directly affecting their interests, in reaching the decision he did, that dictum can, in my view, be applied to the circumstances of this case, in the sense that the parties to the decision were the Secretary of State and Mr Tyson, and the petitioners, had no right to be heard simply because the decision might have, as they perceive matters, consequences which would affect other persons. As it was put in Regina v Lautro ex parte Ross (1993) Q.B.17 by Glidewell LJ at page 50:
"I accept that very frequently a decision made which directly affects one person or body will also affect, indirectly, a number of other persons or bodies, and that the law does not require the decision - making body to give an opportunity to every person who may be affected, however remotely, by its decision, to make representations before the decision is reached. Such a principle would be unworkable in practice".
For my part I would simply add that to argue for such a principle to apply in a situation like the one I am concerned with, simply because the Secretary of State had had a meeting with representatives of the applicant, and because he said that he had taken account of unsolicited public opinion in reaching his decision, is to live in a world quite unreal and remote from the requirements of law.
I should add that though the expression "legitimate expectation" is used in the body of the petition, counsel for the petitioners, in the event, did not produce any substantive submissions in relation thereto and indeed, at one stage, indicated that no specific case was being made under reference to that expression. I am, in any event, satisfied that the circumstances of the case did not reveal any proper basis for its application.
For all the foregoing reasons I am of the view that the Secretary of State was correct in arguing that the petitioners' averments were irrelevant and that the petition should be dismissed for that reason, quite apart form questions of title and interest.
For completeness I should add this. Prior to reaching his decision the Secretary of State, as well as being aware from media coverage that there had been protests about the prospect of a convicted rapist, with a public profile, being allowed into this country when Mr Tyson had applied for admission in January 2000, clearly was also aware of such concern being repeated, once Mr Tyson's second application for admission in May 2000 became public knowledge. In addition there was lodged, on behalf of the petitioners, an affidavit From Catherine Maria Fyfe, a member of the Westminister Parliament. In that affidavit Ms Fyfe said at para. 4,
"On or about 12 May 2000 I became aware of press comment which stated that Mr Frank Warren was confident that the Home Secretary would grant an entry visa to Mr Mike Tyson. I was so concerned that I tried to arrange a meeting with Mr Straw, but I was only granted a meeting with a Home Office Minister, Barbara Roche, MP on 17 May 2000. I was accompanied by Jenny Jones, MP for Wolverhampton. I told Barbara Roche that there was growing public concern within Scotland, not only among women's organisations but also within the Scottish Parliament. I also drew attention to my early day motion opposing Tyson being granted a visa, which having being tabled on 16 May 2000 had by 17 May 2000 attracted over 50 signatures. The decision was communicated to the House of Commons on 18 May 2000 in answer to a written question. The written question was tabled on 17 May 2000 for answer the following day".
The early day motion referred to in that paragraph was in the following terms:
"That this House, supporting Her Majesty's Governments message that it will not tolerate violence against women, opposes Mike Tyson being granted a visa to enter the UK for a second boxing match; recalls that the Home Secretary permitted his previous visit because fans had already bought tickets and businesses in Manchester stood to loose if the boxing match were cancelled, circumstances which do not apply now; notes that many Honourable Members and Right Honourable Members have constituents whose relatives, having committed no crime of any kind, have been refused entry to the UK even to attend family funerals or to visit the seriously ill; and insist that Mike Tyson should not be granted a visa to enter the UK as the only reason for seeking to do so is that he and others can make some easy money".
I am satisfied that the Secretary of State, prior to reaching his decision, must have been well aware that persons, such as the petitioners, held strong views that Mr Tyson should not be allowed into this country because he was a convicted rapist and, as it was put in submission to me, because it would be "sending out the wrong message to young males" that violence against women was to be tolerated. While counsel for the petitioners endeavoured to persuade me that the petitioners had particular additional material to bring to the attention of the Secretary of State which arose from their activities in Scotland, I was not satisfied that counsel was in a position to specify anything which raised matters of substance, which differed from, or would have added maternally to, the views of which the Secretary of State must have already been fully aware.
Lastly, counsel for Mr Warren, who adopted in their entirety the submissions made on behalf of the Secretary of State, urged me, in the exercise of my discretionary powers in judicial review, to refuse the motion for reduction of the decision, even if I were to consider that the petitioners had title and interest and had pled a relevant case. In support of this submission, he referred to a number of arrangements that have already been put in place in relation to the proposed boxing match, and the consequent financial losses which would ensue to certain individuals and bodies, if the match were not to proceed. Having regard to the fact that I have reached the decision that the petition should be dismissed for the reasons already discussed, I do not intend to set out the various factors relied upon by Mr Warren's counsel, in any further detail, nor to say anything about whether, had I been against the respondents, I would have considered it appropriate, because of such factors, to refuse to exercise my discretion in granting reduction.
For the reasons I have given I sustained the first respondent's first and second pleas-in-law and dismissed the petition.