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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> HA & Anor v Secretary of State for the Home Department [2010] EWHC 1940 (QB) (28 July 2010) URL: https://www.bailii.org/ew/cases/EWHC/QB/2010/1940.html Cite as: [2010] EWHC 1940 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) HA and (2) N E (by his mother and litigation friend HA) |
Claimants |
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and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Mr. Jeremy JOHNSON (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 19-21 and 24-26 May 2010, Final documents and written submissions received on 20 July 2010
____________________
Crown Copyright ©
The Hon. Mr. Justice McCombe:
(A) Introduction
(B) Facts
"Removing us from the U.K. would be a breach of Section 6 of the Human Rights Act 1998 as it would be incompatible with the following Rights in the European Convention on Human Rights as incorporated in Schedule 1 Part 1 of the Human Rights Act 1998:
1. Article 2 and 3 – Right to life & Prohibition of Torture and Inhumane Treatment
The Law should protect our clients' lives. Our clients fear for their lives in Iran because of the persecution they would suffer from the authorities. Our clients would suffer if they were returned to Iran due to their relationship to [GE] (they are respectively wife and son).
They would also be questioned and might be detained because they have left Iran to join [GE] in the UK.
2. Article 8 – respect of private and family life
Returning our clients to Iran would breach his rights under Article 8.
Other articles may be relied upon at a later stage."
"PROPOSAL
As [HA]'s passport expires in 5 months we need to work reasonably quickly. I propose setting SCI RD's for all 3 family members giving them sufficient time for subject to go and apply for a passport. This will 1) focus their minds and 2) prompt any further reps.
If subject obtains a passport (highly unlikely) and the family fails to comply with SCI RD's I would like authority to arrange detention and RD's for the mother and son. I feel that we will have given the father sufficient time to obtain an ETD and any claims of breaches of article 8 can be easily rejected.
AUTHORISATIONS REQUIRED
The above course of action.
Setting of SCI RD's for all 3 members.
Detention of mother and son should SCI RD's fail. (Happy to apply for these authorities after SCI RD's are resolved).
Removal of mother and son without father."
The Assistant Director responded:
"All aspects of the above proposal are laid out authorisations required approved. Det of mother + son subject to update should SCI fail. I am satisfied all HRA aspects considered and that proposed action is entirely proportionate and lawful."
"Hopefully you will remember the saga of the Iranian family? (I attach my initial referral reference). Unsurprisingly the family did not comply with the self check in removal directions – instead we received 2 batches of representations on the day of the flight. These were both rejected in time for the flight but I believe they weren't even at the airport ready to go anyway! After the flight had departed we received notification for the reps that they wanted 5 working days to apply for a Crown Office reference. I faxed them on 02/11/05 (the day before the 5 working day deadline) asking for notification of the CO reference and a copy of the grounds. Nothing was received. I again faxed on 04/11/05 (the day after the deadline) advising that we would be re-setting the RD's. To date we have had no further communications from the reps. JRU have confirmed that no JR application has been received.
My proposal is:
- To re-set RD's for the whole family
- Get a date allocated through TCG to detain the mother and son.
- Dad will then still have the option to go SCI (we will offer the usual arrangements i.e a taxi etc).
Forward a submission via the Regional Op Deputy Directors Secretariat for ministerial authority.
Authorisations required:
- Authority to set RD's.
- Confirmation that you are happy for me to proceed with this course of action.
No doubt either notification of the new RD's or detaining the mother and son will actually prompt reps to fulfil their threat of JR but I think we should keep on top this case to move it towards a satisfactory conclusion. Any queries please let me know."
The response was:
"I agree with the proposed course, rationale and thinking over likely ramifications, entirely reasonable and proportionate.
Thank you for such a full proposal."
"Whilst we had tried to deal with the removal of the family together, [GE] had deliberately placed himself in a different situation to that of his wife and son.
As the Claimants had a passport (and no further documents were required for their removal as they were appeal rights exhausted ('ARE'), to effect removal, a decision was made to detain them. [GE] could not be detained as we had not found a passport during the search of his home address, should he have one elsewhere, say hidden with a friend, then he would need the opportunity to retrieve it. Should he not have one, then he needed an opportunity to be able to go to the Iranian Embassy to request a travel document from them. The paperwork for his asylum claim had shown that it was not believed that he had a genuine reason to fear returning to Iran or to the Iranian Embassy in the UK. Despite having the opportunity to answer the points in the refusal letter and provide more evidence at his appeal, the adjudicator had not found his account believable and had dismissed the appeal. Therefore it was reasonable to think that should he not have a genuine reason for fearing return to Iran, he may decide that to return with his family was better than risk having them sent back without him and he live here without them. In my opinion this should have been sufficient motivation for him to take whatever steps necessary to travel with his family.
CIO Merrell and I considered whether to detain [HA] alone, or with [NE]. Detaining [HA] alone was considered. Whilst this would mean that [NE] would not be detained and could attend the airport with his father for the removal it did not provide the same amount of pressure on [GE] to comply with the removal. Additionally, if [HA] alone was removed, given that she had [NE]'s travel document (her passport), it may actually be harder to obtain travel documents for [NE] as well, so he would potentially remain in the UK without his mother. We knew [GE] could obtain copies of his birth certificate as he had demonstrated, but we did not know with as much certainty that he could do so for [NE]. Clearly detention of children should always be kept to a minimum and effectively be used as a last resort. It was important to always consider [NE]'s welfare as a high priority. The First Claimant and [GE] had failed to co-operate with self check-in (which would have ensured the family were removed together). However, we were also aware that [NE] had been separated from his father for over eighteen months when his father came to the UK ahead of the Claimants. I was unaware to what degree [NE] had bonded again with his father but I had formed the impression that [HA] was the primary care giver, and it may cause more problems temporarily separating [NE] from [HA] than from [GE]. I knew from experience that the main impact factor for how children cope with any detention is how their parents cope and react. If the parents act reasonably and cope, then the children find it a fairly stress free experience. Therefore, being detained with [HA] was less likely to be a stressful experience. We also decided that to minimise the period of detention we would arrange flights for the day after detention. We also considered that should we detain [HA] without [NE], [GE] may still decide not to co-operate. In those circumstances [HA] may end up being removed along with [NE]'s travel document. We also considered that should [HA] and [NE] be detained and subsequently be removed without [GE], following their departure he would then have greater reason to arrange a travel document and follow his family back to Iran, than if [HA] alone was removed."
"I am planning to detain [HA] and [NE] (mother and son) tomorrow morning for removal the following day. [GE] is booked on the same flight and will be offered SCI RD's.
As you are aware you have the valid passport for [HA] which includes her son. We believe [GE] is either in possession of or can easily obtain ETD to return to his family. SCI RD's were originally set for the whole family on 26/10/05 so they are aware that removal is imminent. Should [GE] not attend for RD's A/AD David Holgate has authorised the splitting if [sic] the family.
The solicitors previously threatened JR but no grounds have ever been lodged."
"We write further to our recent telephone conversation with your office regarding the above named client.
We enclose herewith a report from Anna Enayat dated today and prepared in light of the decision of [sic] to remove this lady and her son to Iran tomorrow morning. The information that Ms Enayat has included in this report post dates the current CG case FS and others (Iran-Christian Converts) Iran CG [2004].
Although we appreciate that you have access to a wide range of reports, we do not believe this means that a report of this nature should not be considered.
However, as you do not wish to fax us any reports in this matter to which you would have access, we would refer you to the Human Rights Watch report of 15 December 2005 which confirms the points raised by Ms. Enayat at pages 10 and 11 of her report.
We would also refer you to the most recent country guidance case relating to the return of one women to Iran ZH (Women as Particular Social Group) Iran CG [2003] UKIAT00207 as this is, de facto what will happen tomorrow. As a result, this, in effect raises a fresh claim for asylum for [HA] and we would ask you to treat this as such.
Our client's application for asylum was made against a very different political backdrop. The situation in Iran continues to deteriorate and therefore, the situation of the client or his wife being returned to Iran should be reviewed accordingly.
We would ask that removal directions in this matter be suspended to ensure that the points raised in this report and the current human rights reports can be properly considered and a further decision be taken."
(It seems that the reference in the fifth paragraph to "one women" should have been to "lone women".)
"You also rely on the case of ZH Iran [CG] UKIAT00207 but it is unclear as to how or in what way you rely on this case to support your client's claim. Your client and his dependants are due to be removed together to Iran. Your client has exhausted his appeal rights and has no lawful basis to remain in the United Kingdom."
The letter proceeded to invoke rule 353 of the Rules and stated that the representations did not amount to a fresh claim under that rule; they were rejected accordingly. The claimants submit that this course was not open to the defendant as she had not previously made a claim. The defendants argue that she had made a claim, being that comprised in GE's claim which was rejected in 2003.
"We understand that our client was due to be removed today but the removal directions were not carried out. However, in the process of an apparent attempted removal, our client was physically and verbally assaulted and separated from her young son who has been traumatised as a result of witnessing the ill treatment of his mother and the fact that he was separated from her during this time. We write to formally lodge a complaint about this treatment and ask this to be investigated as a matter of urgency.
We also write to formally lodge a fresh application for asylum on behalf of [HA]. As she is now being removed in the absence of her husband, this material has not been considered before and, as the specific circumstances of her being removed with only her young child."
The letter proceeded to refer to a further academic report relating to custody and guardianship rights under Iranian law and pointed to dangers of the second claimant being removed from the first claimant's care on her return to Iran. The final two paragraphs of the letter stated this:
"We would also contend that our client's individual circumstances should be seen in the light of the information described in the FS determination. She will not receive any protection from her family or her husband's family because of her belief and her conversion; she is likely to lose custody of her son as a result of her conversion; her political activities in this country and her removal without her husband, should all be seen as "additional risk factors" as defined in paragraph 190 of FS.
We urge you to consider this application fully. These matters have not been considered before and are issues that must be considered before a further decision is taken with regards to her removal from the country. This is a very different application to the matters that have been raised in her husband's claim, particularly the issues relating to the risk of her separation from her son."
The reference to "FS" is a reference to FS and others (Christian Converts)Iran CG [2004] UKIAT 00303 and paragraph 190 of the judgment of the Tribunal (presided over by Ouseley J, the President (as he then was)) which stated as follows:
"A woman faces additional serious discrimination in Iran, though it falls short of being persecutory merely on the grounds of gender. But for a single woman, lacking such economic or social protection which a husband or other immediate family or friends might provide, the difficulties she faces as a convert are significantly compounded. Her legal status in any prosecution is much weaker; the risk of ill-treatment in any questioning is increased. This factor tips the overall nature of the treatment and risk into a real risk of persecution. We would regard NS as falling into that category; she is at a real risk of persecution for her religion, of treatment which breaches Article 3. The role of family as a source of protection should be examined carefully in individual cases. Similar support might also be provided by close friends or colleagues in employment."
"You state that your client left Iran illegally and therefore on her return she will be identified by the authorities as such and subjected to questioning with a view to prosecution. You have accepted that this in itself does not breach the threshold of persecution or ill treatment either within the UN Refugee Convention or under ECHR, but state that your client's child will be taken into the custody of her parental grandfather who is in opposition to your client and her family's alleged claimed conversion to Christianity."
The letter went on to say this:
"According to the Foreign and Commonwealth Office, in the case of returned asylum seekers it has been reported by observers that they had seen no evidence that failed claimants, persons who had illegally exited Iran, or deportees faced any significant problem upon return to Iran. You have not submitted any evidence to show that your client would face questioning, prosecution or imprisonment on her return. In addition it is noticed that your client has failed to raise the issue previously even though she has known for some time of the likelihood of her and her child being removed to Iran without her husband. It is noted that your client's husband is not being removed with her and their child at this stage simply because he is not co-operating with authorities over the issue of his documentation. It is considered that if your client had genuine fears about returning to Iran with her child, her husband would have made some attempts to travel with her.
You have stated that your client's father-in-law is opposed to her and her husband's conversion to Christianity. Neither your client or her husband has mentioned this previously either in the asylum application or at appeal. In fact at your client's husband's appeal hearing he stated that he had received money from his father in order to pay for his journey. It is considered that these actions are not consistent with someone who would be genuinely opposed to his son's beliefs.
Account has also been taken of the Adjudicator's determination of 30 December 2003 where he made clear finding of adverse credibility against your client's husband. At paragraph 17 he stated,
"I therefore believe that the Appellant has fabricated a story of wishing to turn to Christianity, and has kept up a small pretence in this country…"
In view of these findings it is not accepted that your client would face mistreatment on the grounds of her religious beliefs. The letter you have submitted from the Iranian Christian Fellowship dated 11 January have been taken into account but in view of the Adjudicator's findings it is not accepted that this substantially adds to your client's case. It is considered that your client's claimed fear of return is based upon issues that have already been considered and rejected within her husband's claim.
Furthermore it is considered that someone in genuine need of international protection would co-operate with the appropriate authorities of the country in which they are seeking refuge and it is clear that your client has not done so in this case. She was required to raise any grounds that she may have wished to rely upon at the earliest opportunity, instead she waited until the day before her removal before lodging an asylum claim. These are not considered to be the action of someone who is genuinely in need of protection."
The defendant then proceeded to certify the claim under section 96(2) of NIAA 2002, with the result that the claimants had no right of appeal against the decision.
"An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-
(a) That the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement in response to that notice,
and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."
The claimants argue that that certification was unlawful as the first claimant had not previously made any asylum claim at all and the grounds now raised had not in any event arisen until 5 January and, if for no other reason this meant that it could not be said that the matter should have been raised in response to the Section 120 notice.
"Are the police investigating the alleged assault by an escort on Mrs. A? If so, removal should be deferred until a decision has been made by the police. Once this is known then RDs can be re-set (if that is the appropriate course of action). Removing someone from the UK i.e. the jurisdiction of the alleged assault, may look like we are trying to deny Mrs. A the opportunity to pursue her civil/criminal case, especially as the subject of the alleged assault was acting on behalf of the IS. If the police have concluded their investigation (or decided not to investigate) then their results can be reflected in the Article 6 letter (again see the attachments for further detail). "
"We have had sight of a medical report from a doctor who visited our client and her son following her return to Yarlswood Detention centre after the attempted removal. Our client required medical treatment for cuts and bruises and anti inflammatory tablets for pain in her upper back muscles.
The report also refers to the client's five year old son who was to be removed at the same time as the client and witnessed the treatment of his mother. As a result, he has become withdrawn and speaks very rarely and only with encouragement of his mother. The doctor refers to the concern of the medical staff at the detention centre for the well being of the child to the point that he was referred to a counsellor. He misses his family and the continuing separation can only be causing more grief and trauma for a young boy of 5 years old. The doctor refers to the child, Nima, as being "traumatised". Clearly, you can refer to the medical department at the Detention centre for verification of these details.
We do not believe that it is in the best interests of the child to be detained in this manner at this time. Whilst the complaint is investigated, the client and her son should be given further temporary admission with appropriate conditions if required."
"I feel uncomfortable about several aspects of this if we try and proceed with removal at present.
1. Mrs. A has only seen yesterday for provision of a statement in regard to her allegation of criminal assault. This means we are some way off being able to state that her allegation has been fully investigated.
2. Whilst being able to say that they had had 4 weeks to consult and decide re the civil action if we set RDs for 2 weeks time, I cannot justify the extra detention time given that a child of 5 years is involved.
In the circumstances I have decided to release with weekly reporting. We can then send off the 100 or so pages of extra reps received today to RCT to deal with. In 2 – 3 months time we can then look at re-detaining the family for removal. By that time we will know the outcome of the police investigation and will be able to comment on that in any robust letter to the reps. More than ample time would have passed in relation to consulting and commencing a civil claim, and they would have a much weaker case of arguing they needed more time. It would also allow us sufficient time to plan the detention and removal in light of what we now know Mrs A's behaviour can be. Hopefully this would mean that we could put in place various things to ensure this does not happen."
As a result the claimants were released from detention.
(C) The Law
"The provisions of Schedule 2 to this Act shall have effect with respect to -…
… (d) the detention of persons…pending removal from the United Kingdom; …"
"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A…, that person may be detained under the authority of an immigration officer pending –
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
"(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. (ii) The deportee may only be detained for a period that is reasonable in all the circumstances. (iii) If, before the expiry of a reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that period, he should not seek to exercise the power of detention. (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal." (see per Dyson LJ loc. cit.)
"The Government has decided that, while there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances: where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release; initially to clarify a person's identity and the basis of their claims; or where removal is imminent …
In paragraph 12.10 it was stated:-
In addition to any consideration of bail through thejudicial
process, the Immigration Service will continue its periodic administrative
review
of detention in each case. Individuals should only be detained where necessary.
Paragraph 12.11 stated:-
Detention should always be for the shortest possible time, but the Government is satisfied that there should be no legal maximum period of detention … ."
Paragraph 4.76 of the latter paper said this:
"Although the main focus of detention will be on removals there will continue to be a need to detain some people at other stages of the process. Our 1998 White Paper set out the criteria by which immigration Act powers of detention were exercised and confirmed that the starting point in all cases was a presumption in favour of granting temporary admission or release. The criteria were modified in March 2000 to include detention at Oakington reception centre if it appeared that a claimant's asylum application could be decided quickly. The modified criteria and the general presumption remain in place … ."
"Where the removal of an incomplete family (one where removal would result in the family unit being split) is contemplated and where that split has been caused by the behaviour of members of the family (eg absconding or not turning up to self check-in) authority at AD level must be obtained on every occasion.
Ministerial consent must be sought where:
a) We are seeking to separate a family by removing part of the family from one country and the other part of the family to a different country; or
b) we are seeking to remove part of the family while not actively seeking to remove the other part (ie where a travel document is not available).
Ministerial consent does not need to be sought where:
a) The family unit did not exist prior to arrival in the UK:
b) We detain the head of the household and issue self check-in removal directions to the rest of the family to the same country;
one part of the family absconds or seoerates him/herself through their own actions (ie one parent places the children with friends in an attempt to thwart removal)."
"Those acting for N could reasonably expect, having regard to those aspects of the Secretary of State's policy that had been made public, that N would not be detained on the ground that his removal was imminent. The only basis upon which the Immigration service could treat his removal as imminent was by applying that aspect of the Secretary of State's policy which had not been made public, namely that no regard would be paid to an intimation thatjudicial review
proceedings would be instituted. The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public."
In relation to A, N's co-appellant, the Master of the Rolls said,
"It is clear, on the evidence, that the reason why A was detained was in the hope that, by ensuring that he had an interview with the Sri Lanka High Commission, the documentation would enable his prompt removal to Sri Lanka if and when his appeal failed. This did not fall within the Secretary of State's policy, as made known to A and his solicitors.
Had the Secretary of State included in his policy, as a reason for detention, 'to facilitate documentation needed for removal' we do not believe that any objection could have been made under Article 5. Equally, had he published his policy to disregard an intimation that proceedings would be initiated, for the purposes of deciding when removal is imminent, he would have been in a position lawfully to detain A for that reason and the additional reason that detention was necessary for documentation purposes. In the event, however, the detention was unlawful. It was at odds with the Secretary of State's policy, as made public."
"…(3) from April 2006 until September 2008, there was in operation a secret policy or practice, which was unlawful because it conflicted with, and was less favourable to the Appellants than the published policy.
(4) This did not make the detention unlawful unless the unlawful practice or policy was a material cause of the detention. It is necessary, therefore, in every case in which it is relevant to do so, to ascertain whether detention was authorised by reference to the blanket practice or policy or by consideration of a presumption or, indeed, without reference to any administrative practice or presumption…"
"…for the purposes of the common law tort of false imprisonment the decision to detain may be rendered invalid not only by a lack of specific statutory authority for the detention, but also by breach of Wednesbury principles…. ".
"Secondly, to state the obvious, policy is not the same as law. The Home Secretary is not a legislator, except to the extent (not relevant here) that he has been given specific powers to make delegated legislation. This is as true under the Convention as it is in domestic law. Indeed, it is clear that, where the Convention requires something to be done in a manner "prescribed by law", that means what it says; mere administrative policies are not good enough: see R (Gillan) v Commissioner of Police of Metropolis [2006] UKHL 12; [2006] 2 AC 307 at paragraphs 31 to 34 per Lord Bingham.
However, although policy is not to be equated with law, it may give rise to obligations or restrictions in public law. Depending on the context, that may be explained in different ways. For example, a failure by the Secretary of State to apply his own published policy without good reason may be reviewable as a breach of legitimate expectation (see e.g. R (Abbasi) v Foreign Secretary [2003] UKHRR 76; [2002] EWCA Civ 1598, paragraph 82). A different analysis is needed where the decision is by a different body. Thus, a failure by a local planning authority to have regard to planning policy guidance, issued by the Secretary of State is not a breach of any expectation created by the authority, but may be categorised as a failure "to have regard to material considerations", under familiar Wednesbury principles. More broadly, such cases may sometimes be analysed as examples of inconsistency or unfairness amounting to abuse of power. Indeed, we may have arrived at the point where it is possible to extract from the case a substantive legal rule that a body must adhere to its published policy unless there is some good reason not to do so. The treatment of such concepts may vary in the cases and textbooks, but the differences are usually immaterial. The principles are well summarised in the discussion in Wade & Forsyth Administrative Law 10th Ed p 315: "Inconsistency and unfairness, legitimate expectation"; see also De Smith'sJudicial Review
6th Ed p 618 "To whom directed – personal or general?") "
"Our domestic law comprehends both the provisions of Sch 2 to the Immigration Act and the Secretary of State's published policy, which under principles of public law, he is obliged to follow".
"We consider, first, that it is necessary to distinguish between the detention of FNPs under sub-paragraph (1) of paragraph 2 of Schedule 3 to the 1971 Act and detention under sub-paragraphs (2) or (3). Sub-paragraph (1) is itself legislative authority for the detention of a FNP who has been sentenced to imprisonment and who has been the subject of a recommendation for deportation. If an unlawful decision is made by the Secretary of State not to direct his release, the Court may quash the decision and require it to be retaken, but the legislative authority for his detention is unaffected. It follows that the FNP will have no claim for damages for false imprisonment in such circumstances. Furthermore, SK is authority, binding on us, that a failure in breach of procedural rules toreview
his detention does not necessarily render the detention unlawful.
The position is different when the decision to detain is made under sub-paragraph (2) or (3). In these cases, there is no lawful authority to detain unless a lawful decision is made by the Secretary of State. The mere existence of an internal, unpublished policy or practice at variance with, and more disadvantageous to the FNP than, the published policy will not render a decision to detain unlawful. It must be shown that the unpublished policy was applied to him. Even then, it must be shown that the application of the policy was material to the decision. If the decision to detain him was inevitable, the application of the policy is immaterial, and the decision is not liable to be set aside as unlawful. Once again, however, once a decision to detain has lawfully been made, areview
of detention that is unlawful on Wednesbury principles will not necessarily lead to his continued detention being unlawful.
For completeness, we would add that the test of materiality may not be precisely the same as in the context of an application for a quashing order injudicial review
. In that context, a court, faced with a
judicial review
claim made promptly following the original decision, would be likely to quash a decision, and require it to be retaken, even if the evidence showed only a risk that it might have been affected by the illegality. However, in the context of a common law claim in tort, which is concerned not with prospective risk, but actual consequences, we think it would be entitled, if necessary, to look at the question of causation more broadly, and ask whether the illegality was the effective cause of the detention (see e.g. Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360, 1374; and the discussion of "Causation Law" in Clerk & Lindsell Torts 19th Ed, paras 2-69-71). "
(C) The facts re-visited in their legal context
(D) Conclusion