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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Faulkner, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 2567 (Admin) (01 November 2005) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2005/2567.html Cite as: [2005] EWHC 2567 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF ![]() ![]() |
(CLAIMANT) | |
-v- | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | (DEFENDANT) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR J P WAITE (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
"Immigration Acts 1971 and 1988
Authority for Detention
To: IanFaulkner
, Jamaica, 18th April 1980.
Whereas the Secretary of State has decided to make a deportation order under section 5(1) of the Immigration Act 1971 against IanFaulkner
a citizen of Jamaica who is, at present, detained in pursuance of the sentence or order of a court and is due to be released otherwise than on bail on 11th March 2005.
The Secretary of State hereby, in pursuance of paragraph 2(2) of Schedule 3 to that Act, authorises any constable at any time after notice of the decision has been given to the said IanFaulkner in accordance with the Immigration Appeals (Notices) Regulations 1984 to cause him to be detained from the date of his release until the deportation order is made or an appeal against the decision under Part II of the Act is finally determined in his favour."
"To [space for name], I am ordering your detention under powers contained in the Immigration Act 1971 or the Nationality, Immigration and Asylum Act 2002.
(2) Detention is only used when there is no reasonable alternative available. It has been decided that you should remain in detention because . . . "
The form then contains six reasons why the decision is as the individual should remain in detention, one of which is:
"(a) you are likely to abscond if given temporary admission or release."
Paragraph 2 then goes on:
"This decision has been reached on the basis of the following factors."
Then 14 factors are given with boxes which can be ticked where applicable. At the bottom of page 1 it says:
"Your case will be regularly reviewed. You will be informed in writing to the outcome of the review."
"This form is in three parts and must be served on every detained person at the time of their initial detention. The IO must complete all three sections of the form. The IO must specify the power under which the person has been detained, the reasons for detention and the basis on which the decision to detain was made. The detainee must also be informed of his bail rights and the IO must sign both at the bottom of the form overleaf to confirm the notice has been explained to the detainee (using an interpreter where necessary) and that he has been informed of his bail rights. It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure they are always justified and correctly stated."
The paragraph goes on to enumerate the six possible reasons for detention and to say that the IO must tick all the reasons that apply to the particular case. It then goes on to list the 14 factors which may form the basis of the reasons for the decision to detain, and again instructs the Immigration Officer to tick all those which apply to the particular case.
"Where notice has been given to a person in accordance with regulations under section 18 of this Act of a decision to make a deportation order against him, and he is neither detained in pursuance of the sentence or order of a court nor for the time being released on bail by a court having power so to release him, he may be detained under the authority of the Secretary of State pending the making of the deportation order."
There is no dispute that that statutory power was applicable in this case, but it does not defeat the claimant's claim. As Moses J held in R (on the application of Sedrati) v Secretary of State for the Home Department [2001] EWHC Admin 418, the terms of paragraph 2(2) of Schedule 3 do not create a presumption in favour of detention upon completion of a sentence of imprisonment of someone liable to deportation; particularly not, I would add, when, as in this case, the Crown Court has made no recommendation for deportation.
"If the State is taking away your liberty, you are entitled to know why."
"(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter."
Clarke LJ, having cited this in Taylor, continued:
"(23) The relevant principles remain those set out in Christie v Leachinsky [1947] AC 573. It seems to me that the best statement of those principles as articulated in more recent times is not to be found in an English case at all but in para 40 of the decision of the European Court of Human Rights in Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157, 170. The court was there of course considering, not section 28(3) of PACE, but Article 5(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides: 'Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him'.
(24) The court said, at p170, para 40:
'Paragraph (2) of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This protection is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph (2) any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed 'promptly' (in French: 'dans le plus court delai'), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.'.
(25) The wording of Article 5(2) and of section 28(3) of PACE are not of course the same. Nor are the words used by the European Court of Human Rights the same either as those of Viscount Simon quoted at para 21 above or as those used in any of the other cases I have mentioned, but to my mind the principles expressed are essentially the same . . .
(26) In the light of all the authorities I would hold that the modern approach to the application of section 28(3) is that set out in para 40 of the judgment in Fox, Campbell and Hartley v United Kingdom 13 EHRR 157, 170. The question is thus whether, having regard to all the circumstances of the particular case, the person arrested was told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest. In the light of the case law as it has developed I doubt whether it will in the future be necessary or desirable to consider the cases in any detail, or perhaps at all. It seems to me that in the vast majority of cases it will be sufficient to ask the question posed by the European Court of Human Rights."
"I am arresting you on suspicion of violent disorder on 18th April 1998 at Hillgrove Farm."
The county court judge rather surprisingly held that this was insufficiently particularised. The Court of Appeal reversed him on this point. In Fox, Campbell and Hartley v UK, according to paragraph 41 of the judgment of the European Court of Human Rights:
"On being taken into custody Mr Fox, Miss Campbell and Mr Hartley were simply told by the arresting officer that they were being arrested under section 11(1) of the 1978 Act on suspicion of being terrorists. This bare indication of the legal basis of the arrest, taken on its own, is insufficient for the purposes of Article 5(2) as the government conceded. However, following their arrest all of the applicants were interrogated by the police about their suspected involvement in specific criminal acts and their suspected membership of proscribed organisations. There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation."
"Blind, unquestioning obedience is the law of tyrants and slaves. It does not yet flourish on English soil."
"Each case depends upon its own facts. It has never been the law that the arrested person must be given detailed particulars of the case against him. He must be told why he is being arrested. In some cases it will be necessary for the officer to give more facts than in others."
In paragraph 27 he had said:
"It is important to note that the arrested person must be told both the essential legal and the essential factual grounds for the arrest. The words spoken must therefore include some statement of the factual, as well as some statement of the legal, basis of the arrest [emphasis added]."
"The use of inappropriate forms and the giving of reasons for detention on those forms which may not have been wholly accurate do not effect the lawfulness of the detention. The real reason was the new Oakington process. If that was lawful, the disgraceful failure to prepare proper forms cannot render it unlawful. In any event, it may be that in the cases of illegal entrants the immigration officers could properly rely on at least the absence of identification and a clandestine entry as factors justifying detention even if, had Oakington not been used, temporary admission would have been granted. I do not need to go into the matter further since Mr Scannell has not sought to argue that the muddle about reasons renders the detentions unlawful."
"It is agreed that the forms served on the claimants here were inappropriate. It was, to say the least, unfortunate but without going as far as Collins J in his criticism of the Immigration Service, I agree with him that even on his approach the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention."