Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 150
P1370/10	OPINION OF LORD KINCLAVEN in the Petition of C L [Assisted Person] Petitioner; for Judicial Review of decisions of the Secretary of State for the Home and Health Department to detain the Petitioner ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller LLP (for Alex Mitchell and Sons, Musselburgh)

Respondent: Webster; C Mullin, Solicitor, Advocate General's Office

9 September 2011

[1] This is a petition for judicial review of decisions of the Secretary of State for the Home and Health Department to detain the petitioner pending deportation. The First Hearing has been fixed for 7 December 2011.

[2] On 31 August 2011 the case came before me, in the Vacation Court, on the opposed motion of the petitioner seeking to amend the petition and for interim liberation. The petitioner's motion was dated 29 August 2011.

[3] The petitioner's Minute of Amendment is No.11 of Process. Helpfully, the petitioner also lodged a print of the petition incorporating the proposed amendment for the convenience of the court. The amendments are shown in bold in Statements of Fact 6, 20 and 21.

[4] Mr Caskie appeared for the petitioner to move the motion.

[5] Mr Webster appeared for the respondent to oppose the motion particularly in relation to interim liberation.

[6] Having heard counsel, and in the whole circumstances, I allowed the petitioner's Minute of Amendment to be received, I appointed the respondent to lodge Answers by 28 September (within 4 weeks), and I refused the petitioner's motion for interim liberation in hoc statu. I made no order in relation to expenses.

The Background

[7] Much of the factual background to this present petition has already been summarised by Lord Stewart in his opinion in this case dated 10 February 2011 - CL Petitioner [2011] CSOH 31. I gratefully adopt that summary. It relates to an earlier motion for interim liberation which was heard by Lord Stewart on 19 January 2011. The operative part of Lord Stewart's decision can be found in paragraphs [37] to [48].

[8] As appears from the interlocutors, the petition and proceedings were then sisted (from 3 March 2011) to enable the petitioner's application for Legal Aid to be determined. The petitioner subsequently satisfied the Scottish Legal Aid Board that he met their tests of probabilis causa and reasonableness. On 19 July 2011 Lord Emslie recalled the sist and fixed a First Hearing in this case for 7 December 2011.

[9] The petition and the proposed amendment can be referred to for their terms.

[10] The relevant law has been summarised very recently by the Lord President who delivered the Opinion of the Court in AAM v The Advocate General for Scotland [2011] CSIH 53 on 16 August 2011. I also gratefully adopt that authoritative summary.

[11] Mr Caskie and Mr Webster were both involved in AAM and were able to remind me of the salient features of that case and the approach adopted by the court. The Hardial Singh principles are helpfully summarised in paragraph [7] of AAM. The discussion of the issues in AAM can be found in paragraphs [29] to [33]. As appears from paragraph [32] the AAM case is to be heard By Order on 20 September 2011.

[12] Both counsel also referred me to "Detention Reviews" relating to the petitioner which were produced at the bar. Those Reviews were dated 15 June 2011 (No.7/21 of Process), 14 July 2011 (No.7/22 of Process) and 12 August 2011 (No.7/23 of Process).

[13] Reference was also made to an affidavit of the petitioner's father (No.6/4 of Process).

[14] The decision to maintain the petitioner's detention on 12 August 2011 was accompanied by the following comments (on page 5 of No 7/23 of Process), namely:

"His (the petitioner's) non-compliance and previous history of absconding suggests an ongoing risk of absconding and this outweighs the presumption to liberty."

[15] I do not propose to rehearse the contents of any of the documents mentioned above. They have all been lodged in process and are readily referred to for their whole terms brevitatis causa.

The Submissions of Parties

[16] Mr Caskie's primary submission was that the petitioner's continued detention was unlawful for the reasons set out in the petition and in the proposed amendment. There was a "bright line" (which Mr Caskie submits should be drawn at 18 months' detention) and that has been exceeded in breach of Article 5 ECHR. In any event, the petitioner's detention was unlawful having regard to Hardial Singh principles paragraphs (ii), (iii) and/or (iv).

[17] Mr Caskie's "bright line" argument and the Hardial Singh principles are set out in full in the Opinion of the Court in AAM. I need not repeat the competing arguments again here. I simply incorporate them by reference brevitatis causa.

[18] In Mr Webster's submission the petitioner's detention was not unlawful. There was no "bright line" as such. Each case depends on the particular facts and circumstances. It was the whole circumstances that were important. Hardial Singh principles had been complied with. Even if the petitioner had a prima facie case, the balance of convenience favours the continuation of detention. In any event, bearing in mind that the amendment and the motion had only been intimated towards the end of last week, the respondent should be afforded an opportunity to lodge Answers.

[19] Mr Webster submitted that there were factual issues which ought to be explored. They included (a) checking the petitioner's father's position and obtaining bio data; (b) checking the potential for prosecution (under section 35); and perhaps (c) further approaches to Democratic Republic of Congo (DRC). Bearing in mind vacation, a period of 6 or 8 weeks for Answers might be appropriate.

Discussion

[20] I took into account everything that had been said by counsel.

[21] I also had regard to the approach taken by the Inner House in AAM [2011] CSIH 53.

[22] Mr Caskie did not wish me to simply continue the motion. He asked me to form a view on the question of interim liberation on the information available - and I did so.

[23] Having taken time to consider the position, I reached the view that in the whole circumstances the petitioner's motion for interim liberation should be refused in hoc statu.

[24] I reached that conclusion essentially for the reasons outlined by Mr Webster on behalf of the respondent.

[25] In the whole circumstances, and having regard to the risk of absconding, I was not prepared to grant interim liberation on the information which had been provided to me.

[26] In any event, I agreed with Mr Webster that it was important to have a clear up-to-date statement of the respective position of both parties.

[27] I appointed the respondent to lodge Answers by 28 September 2011.

[28] Further, and in any event, had I been minded to grant interim liberation, I would have continued the case for 48 hours or thereby to enable parties to consider (and if possible agree) what might be an appropriate bail address and appropriate bail conditions.

[29] I made it plain that the motion for interim liberation was being refused in hoc statu.

[30] It is open to the petitioner to re-enrol for interim liberation in due course, if so advised.

Decision

[31] In the whole circumstances, I allowed the petitioner's Minute of Amendment to be received, I appointed the respondent to lodge Answers by 28 September (within 4 weeks), and I refused the petitioner's motion for interim liberation in hoc statu. I made no order in relation to expenses.

[32] I believe my decision was appropriate in the circumstances.

[33] In any event, it was within the reasonable exercise of my discretion.

[34] There is nothing I can add.