BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> International Transport Roth GmbH & Ors v Secretary of State For the Home Department [2002] EWCA Civ 158 (22nd February, 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/158.html
Cite as: [2003] QB 728, [2002] EWCA Civ 158

[New search] [Printable RTF version] [Help]


International Transport Roth GmbH & Ors v Secretary of State For the Home Department [2002] EWCA Civ 158 (22nd February, 2002)

Neutral Citation Number: [2002] EWCA Civ 158
Case No: 2002/0014

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION - ADMINISTRATIVE COURT)
(Mr Justice Sullivan)

Royal Courts of Justice
Strand, London, WC2A 2LL
22nd February 2002

B e f o r e :

LORD JUSTICE SIMON BROWN
LORD JUSTICE LAWS
and
LORD JUSTICE JONATHAN PARKER

____________________


International Transport Roth GmbH & Others
Respondent
- and -

Secretary of State for the Home Department
Appellant

____________________

Lord Lester of Herne Hill QC, Dr Michael Peglow & Tom Weisselberg Esq
(instructed by Messrs Zimmers) for Roth & Others
Richard Gordon Esq QC, Nicholas Bowen Esq
(instructed by Messrs Davies Lavery) for Barsan & Others
Tim Nesbitt Esq (instructed by Messrs Rothera Dawson) for Luttich & Others
Ms Claire Newton (instructed by Messrs Breeze Benton) for Mr Koditz
Gerald Barling Esq, QC, Mark Shaw Esq & Ms Jane Mulcahy
(instructed by Treasury Solicitor) for the Secretary of State
Hearing dates : 15th January 2002 - 22nd January 2002

____________________

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN
(SUBJECT TO EDITORIAL CORRECTIONS)
____________________

Crown Copyright ©

    Lord Justice Simon Brown:

  1. The increasing scale of illegal entry into the UK over recent years is well known. It is acknowledged by all to represent a grave social evil. The first attempt to combat it was by penalising those operating ship and aircraft services £1,000 (raised in 1991 to £2,000) for each passenger conveyed to the UK without proper travel documents - see the Immigration (Carriers’ Liability) Act 1987, upheld by the Divisional Court in the face of a European Community Law challenge in R v. Secretary of State for the Home Department, ex parte Hoverspeed [1999] EuLR 595. The resultant difficulty in reaching the UK without legitimate travel documents drove illegal entrants instead to travel clandestinely, usually by concealment in freight vehicles. The rate of clandestine entry increased dramatically. In 1992 less than 500 clandestine entrants were discovered. By 1997 this had increased to over 4,000 and by 1999 to 16,522. No responsible government could have ignored the problem. Firm action was clearly required. Thus it was that Part II of the Immigration and Asylum Act, 1999 was passed and a new penalty regime created to deter those intentionally or negligently allowing clandestine entrants into the UK. The scheme was first introduced at Dover on 3rd April 2000, and then applied to the rest of the UK on 3rd July 2000. It has proved highly effective. The number of clandestine entrants discovered at Dover fell from 1,470 in March 2000 to 588 in April 2001 (despite the increase in detection rates). Indeed, the success of the scheme drove many clandestine entrants onto the railways so that on 1st March 2001 it was extended to cover rail freight arrivals, and on 1st October 2001 Eurotunnel’s freight shuttle.
  2. By these proceedings four groups of lorry drivers and haulage companies, some 50 in all, challenge the lawfulness of the scheme and the Home Secretary’s decisions that they are liable for penalties under it. On 5th December 2001, following an eight-day hearing of preliminary issues in October, Sullivan J upheld the challenge, declaring the legislation: a) incompatible with Article 6 of the Convention and Article 1 of the First Protocol to the Convention (pursuant to section 4 of the Human Rights Act, 1998); and b) inconsistent with Community law as comprising unjust restrictions on the free movement of goods and the right to provide haulage services contrary, respectively, to Articles 28 and 49 of the EC Treaty. Now before us is the Home Secretary’s appeal against that order, brought by permission of the judge below.
  3. Sullivan J’s reserved judgment, right or wrong, is a tour de force. It extends to 131 pages of which the first 96 contain a masterly exposition of the relevant facts, law and argument, detailed yet incisive. I cannot improve upon it, and shall instead confine myself to setting out the most essential provisions of the legislation (itself occupying eight pages of the judgment) and the barest outline of the facts before turning to the central issues and the judge’s conclusions upon them.
  4. The 1999 Act
  5. “32(1) A person is a clandestine entrant if-
    (a) he arrives in the United Kingdom concealed in a vehicle, ship or aircraft,
    (b) he passes, or attempts to pass, through immigration control concealed in a vehicle, or
    (c) he arrives in the United Kingdom on a ship or aircraft, having embarked-
    (i) concealed in a vehicle; and
    (ii) at a time when the ship or aircraft was outside the United Kingdom,
    and claims, or indicates that he intends to seek asylum in the United Kingdom or evades, or attempts to evade, immigration control.”

    Section 32(2), (3) and (4) (in combination with the relevant Regulations) provide that the person(s) responsible for a clandestine entrant is (are) liable to a penalty of £2,000 in respect of each such entrant concealed in the transporter, which must be paid to the Home Secretary within 60 days of service of the penalty notice if the liability falls to be discharged. Section 32(5) and (6) identify the person(s) responsible for a clandestine entrant. In the case of a vehicle or trailer this is the owner, hirer, driver or operator.

    “32(7) Subject to any defence provided by section 34, it is immaterial whether a responsible person knew or suspected-
    (a) that the clandestine entrant was concealed in the transporter; or
    (b) that there were one or more other persons concealed with the clandestine entrant in the same transporter.”
  6. Section 33 provides for a code of practice to be issued by the Home Secretary, after consultation, for approval by both Houses of Parliament. This code is to be followed by anyone operating a system for preventing the carriage of clandestine entrants and is to be taken into account when determining whether such a system is effective in the context of any defence under section 34. The code of practice was brought into force by Order on 3rd April 2000.
  7. “34(1) This section applies if it is alleged that a person (‘the carrier’) is liable to a penalty under section 32.
    (2) It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.
    (3) It is also a defence for the carrier to show that-
    (a) he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;
    (b) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and
    (c) that on the occasion in question the person or persons responsible for operating that system did so properly.
    (4) In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33.
    (5) If there are two or more persons responsible for a clandestine entrant, the fact that one or more of them has a defence under subsection (3) does not affect the liability of the others.
    35(1) If the Secretary of State decides that a person (‘P’) is liable to one or more penalties under section 32, he must notify P of his decision.
    (2) A notice under subsection (1) (a ‘penalty notice’) must-
    (a) state the Secretary of State’s reasons for deciding P is liable to the penalty (or penalties);
    (b) state the amount of the penalty (or penalties) to which P is liable;
    (c) specify the date before which, and the manner in which, the penalty (or penalties) must be paid; and
    (d) include an explanation of the steps-
    (i) that P must take if he objects to the penalty;
    (ii) that the Secretary of State may take under this Part to recover any unpaid penalty.
    (6) If a person on whom a penalty notice is served, or who is treated as having had a penalty notice served on him, alleges that he is not liable for one or more, or all, of the penalties specified in the penalty notice, he may give written notice of his allegation to the Secretary of State
    (7) Notice under subsection (6) (‘a notice of objection’) must-
    (a) give reasons for the allegation; and
    (b) be given before the end of such period as may be prescribed.
    (8) If a notice of objection is given before the end of the prescribed period, the Secretary of State must consider it and determine whether or not any penalty to which it relates is payable.
    (10) Any sum payable to the Secretary of State as a penalty under section 32 may be recovered by the Secretary of State as a debt due to him.
    36(1) If a penalty notice has been given under section 35, a senior officer may detain any relevant-
    (a) vehicle,
    (b) small ship, or
    (c) small aircraft,
    until all penalties to which the notice relates, and any expenses reasonably incurred by the Secretary of State in connection with the detention, have been paid.
    (2) That power;
    (a) may be exercised only if, in the opinion of the senior officer concerned, there is a significant risk that the penalty (or one or more of the penalties) will not be paid before the end of the prescribed period if the transporter is not detained; and
    (b) may not be exercised if alternative security which the Secretary of State considers is satisfactory, has been given.
    (4) The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice upon which the detention was based was ill-founded in respect of all or any of the penalties to which it related.
    (5) But subsection (4) does not apply if the Secretary of State was acting unreasonably in issuing the penalty notice.
    37(1) This section applies if a transporter is detained under section 36.
    (2) The person to whom the penalty notice was addressed, or the owner or any other person claiming an interest in the transporter, may apply to the court for the transporter to be released.
    (3) The court may release the transporter if it considers that-
    (a) satisfactory security has been tendered in respect of the transporter for the payment of the penalty alleged to be due and connected expenses;
    (b) there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid; or
    (c) there is a significant doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.
    (4) If the court has not ordered the release of the transporter, the Secretary of State may sell it if the penalty in question and connected expenses are not paid before the end of the period of 84 days beginning with the date on which the detention began.”
  8. Paragraph 1 of Schedule 1 to the Act requires the leave of the court to be obtained before a transporter is sold and forbids such leave except on proof that the penalty is due.
  9. The core features of the legislation

  10. A clandestine entrant is someone who arrives illicitly in the UK by means of concealment in a vehicle, and those responsible, generally the owner, hirer or driver, are liable for each such entrant to a fixed penalty of £2,000 unless they can establish: (i) that they were acting under duress; or (ii) (this, of course, being far more commonly the defence): a) that they had neither actual nor constructive knowledge of the clandestine entrant; and b) that there was an effective system for preventing the carriage of clandestine entrants, which c) was operated properly on the occasion in question. Once the Secretary of State has issued a penalty notice a senior immigration officer may detain the vehicle if he considers there is a serious risk that the penalty will not be paid and no satisfactory alternative security has been given. In that event the owner or driver may apply to the court which has power to release the transporter if: (a) satisfactory security has been tendered; (b) there is no real risk of the penalty not being paid; or (c) there is a real doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released. I shall refer to the person(s) responsible as “the carrier(s)” and to the provisions collectively as “the scheme”.
  11. The Convention

  12. I next set out Article 6 of the Convention and Article 1 of the First Protocol (hereafter “Article 1”) since it is by reference to these two Articles that the scheme must stand or fall:
  13. Article 6
    1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ….
    2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
    3. Everyone charged with a criminal offence has the following minimum rights:
    (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
    (b) to have adequate time and facilities for the preparation of his defence;
    (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
    (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
    (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
    Article 1
    Protection of Property
    Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
    The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

    The facts

  14. These are before us in intimidating detail. What is presently in issue, however, is the intrinsic legality of the scheme itself rather than the liability of carriers in individual cases. The facts, therefore, at this stage are relevant only: a) to indicate the extent of the problem of illegal entry and the success of the scheme in combating it (sufficiently indicated in paragraph 1 above); and b) to illustrate how ineluctably the scheme in practice works.
  15. By June 2001, 988 penalty notices had been served in respect of 5,433 clandestine entrants. 249 vehicles had been detained, of which 190 were subsequently released on payment of the penalty or a substantial security. In some 25% of cases where clandestine entrants were discovered, either no penalty notice was served or, following the carrier’s notice of objection, the Secretary of State decided, under section 35(8), that the penalty was not payable. The average penalty payable is some £12,000 (in respect, therefore, of six clandestine entrants). The bulk of the penalties are paid by companies, but some 10% are paid by individuals including occasional car drivers. By October 2001 the value of the penalties paid or agreed to be paid was £2.432 million. In some cases instalment payments have been agreed, in the most extreme case at the rate of £40 per month for 12½ years (£6,000).
  16. The clandestine entrants were detected sometimes by immigration officers, sometimes by members of the public, and sometimes by the drivers themselves who then co-operated with the police in apprehending the culprits. In three of the cases before us, where the drivers only discovered that clandestine entrants were on board when already travelling up the motorway to London, they would never have been penalised had they not themselves alerted the police.
  17. The judge’s conclusions favourable to the appellants

  18. Before turning to the particular basis on which the judge struck down the scheme it is helpful first to note certain important conclusions which he reached in favour of the Home Office. One of these concerns what was perhaps the most fundamental of the grounds on which it was sought to impugn the scheme: the carriers’ contention that it makes the Secretary of State the sole arbiter of whether they have a good defence under section 34 and accordingly breaches Article 6(1) irrespective of whether the scheme is properly to be regarded as civil or criminal. Rejecting this contention, the judge concluded, consistently with the Divisional Court’s decision inR (Balbo B & C Autotransporti Internazionale) -v- Secretary of State for the Home Department [2001] 1 WLR 1556, that it is open to the carrier, whether upon a civil action by the Secretary of State under section 35(10) to recover the penalty as a debt, or in the carrier’s own proceedings for a declaration of non-liability, to assert his statutory defence. This, moreover, he can do whether or not he has availed himself of the “notice of objection” procedure under section 35 (so that this is to be construed as merely offering the option of an administrative review; the word “must” in section 35(2)(d)(i) being read as “may”). The Divisional Court in Balbo apparently reached this view (and therefore dismissed the judicial review challenge before them on the ground that a more suitable alternative remedy was available) without great difficulty. Sullivan J, clearly after fuller argument on the point, thought it “… strains the language of the Act …” but concluded that such a construction was possible (assuming always that the scheme involves the determination of civil obligations rather than criminal liability) in accordance with section 3 of the 1998 Act so as to avoid making a declaration of incompatibility. Although Mr Gordon QC for some of the respondents returned to the point, I for my part am satisfied that the judge’s conclusion was correct. Put at its simplest, section 35(10) only permits the “debt” to be recovered in respect of “… any sum payable to the Secretary of State as a penalty under section 32 …” and, by virtue of section 32(7), a penalty is not so payable if the carrier can establish a defence under section 34. This, moreover, is how the matter has always been understood and intended by the Home Office: as stated in the Regulatory Impact Assessment which led to the scheme’s enactment:
  19. “… where there is a dispute as to whether the penalty is owed, it is recoverable by court action, in the course of which the defendant will be able to put forward any grounds on which he alleges he is not liable.”
  20. Other important conclusions of the judge in favour of the Home Office - and these, unlike the Balbo point, are not contested on the appeal - are: a) that there was sufficient consultation and publicity prior to the implementation of the scheme - “It is difficult to see what more could have been done by way of increased publicity.”; b) that,
  21. For the most part [the code’s] requirements are not unduly demanding, and do not amount to much more than the kind of basic, common-sense measures which would be taken in any event by responsible drivers/hauliers in order to ensure the security of their vehicles and the loads they are transporting” (my emphasis);

    and c) that:

    “… within the constraints imposed by the Act [the judge’s emphasis], the penalty regime is being operated conscientiously, reasonably, and as fairly as possible.”

    The judge’s conclusions unfavourable to the appellants

  22. The judge declared the scheme incompatible with Articles 6 and 1: Article 6 because it involves the determination of a “criminal charge” and therefore fails to meet the procedural requirements of Article 6(1), (2) and (3); Article 1 because the provisions for the detention of vehicles constitute an unjustifiable infringement of the right to property. In a little more detail his conclusions were these. The scheme involved criminal rather than civil liabilities despite its classification as civil under domestic law, essentially because:
  23. “[it] was introduced, at least in part, because of the difficulties experienced in obtaining proof of facilitation to the requisite criminal standard under section 25(1) of the 1971 Act.”

    The Act removed those difficulties by requiring the carrier under section 34(3)(a) to prove that he was not complicit. The Act, in short, is intended to deter both dishonesty and carelessness.

    “[T]he penalty is substantial and its purpose is both punitive and deterrent.”

    It deters those carriers who “… do not exercise sufficient vigilance … by punishing them with the imposition of a severe penalty”. The penalty “… is greatly in excess of fixed penalties (classified as criminal) in the road traffic sphere”.

  24. The right to silence (implicit in the requirements of a fair trial) is illusory in practice since its exercise
  25. “… will materially increase the chance of a senior officer concluding that there is a significant risk that the penalty will not be paid (section 36(2)(a)), resulting in the detention of the vehicle that may well be, in addition to his means of livelihood, his ‘mobile home’ whilst he is in a foreign land.”
  26. The reverse burden of proof imposed by section 34 is impermissible and thus breaches the presumption of innocence required by Article 6(2). As operated here, it fails to strike a fair balance between the demands of the general interest of the community and the protection of the fundamental rights of the individual. “[U]ndue deference is not warranted …” to the state’s assessment of the demands of the general interest of the community because “[T]here was no evaluation of the possibility of creating a new criminal offence based on failure to take due care or failure to take best practicable means” to secure and check vehicles, “… no indication that Parliament was ever invited to consider the implications of the reverse burden of proof …”; “…[no] evidence that the necessary balancing exercise was carried out by the Executive …”, and these very cases “… do not establish the need for a reverse onus of proof … [but rather] confirm … that a new offence based on failure to take due care … would not be unduly difficult to prove to the criminal standard and that UKIS would have no real difficulty in establishing liability to a civil penalty if it had to prove negligence to the civil standard”.
  27. The judge held Article 6(3) breached because “… an allegation of liability is effectively being made from the moment of discovery …” and it is at that stage that the carrier is entitled to the additional protections conferred by Article 6(3).
  28. In these few sentences I have endeavoured to summarise what is contained in paragraphs 145-181 of the judgment below, which cover 17 pages. I do not pretend to have done them justice.
  29. The judge found Article 1 breached in respect of the vehicle detention provisions because of the constraints imposed upon the court’s powers to order release under section 37(3). It is implicit in that provision that the carrier will be unable to obtain “rapid access” to the court for a determination of the general merits of the decision to detain. In particular, section 37(3)(c) requires not merely a realistic prospect of defeating the penalty claim but a “compelling” need for the vehicle’s release and the section as a whole (enabling an interim application for release) clearly does not contemplate a final substantive determination as to whether the penalty is payable with an order for release if it is not.
  30. Turning to the Community law challenge under Articles 28 and 49, the judge held that the scheme has the effect, albeit unintended, of restricting the free movement of goods and services and that this is an impermissible restriction where, as here, it involved (as necessarily it did, given the violation of Articles 6 and 1) an unreasonable and disproportionate means of achieving its intended object.
  31. The scope of the appeal

  32. In the course of six full days of argument on the appeal - not to mention copious written arguments submitted before, during and even after the hearing - a vast range of submissions have been advanced. It is impossible in the course of a judgment of manageable length to refer to more than a fraction of them. Again, I shall not do them justice. The appellants contend: first, that the scheme is properly to be characterised as civil, not criminal, so that the underlying basis for the judge’s holding that it breaches Article 6 falls away; alternatively, secondly, that even if the scheme is criminal, the reverse burden and other suggested breaches of Article 6 are nonetheless permissible; alternatively, thirdly, that any apparent incompatibility with the Convention can and should be avoided by use of the Court’s interpretative obligation under section 3 of the 1998 Act. They dispute too the judge’s conclusions both on Article 1 of the Protocol and Articles 28 and 49 of the EC Treaty.
  33. The respondents for their part seek to support the judge’s conclusions on all points, and in addition contend: first, that even if the scheme is civil, nevertheless it breaches the procedural protections in any event to be implied under Article 6; second, that the scale and inflexibility of the penalty and the restraints upon the court’s powers to order release themselves constitute breaches of Article 6; and thirdly, that Article 1 is breached not merely by the detention provisions but also by the scale and inflexibility of the penalty.
  34. In the course of all these arguments, no fewer than 227 authorities were put before us (albeit some were referred to only in the written skeletons). I shall mention very few only, and those for the most part merely to illustrate the central principles running through this area of the law. None of the cases, to my mind, comes near to reproducing the singular features of the present case.
  35. Let me at this stage seek to identify these features, since it is crucial to keep them well in mind at all times. As for the scheme itself, there are principally three which appear to bear hardest upon carriers. These are: first, that the burden of establishing blamelessness lies on them (it being necessarily implicit in this that sometimes, if only rarely, the blameless will be penalised); second, that the penalty imposed is fixed and cumulative, no flexibility whatever being allowed either for degrees of blameworthiness (or, in the case of owners or hirers, the fact that their liability may be purely vicarious) or mitigating circumstances such as a driver’s co-operative conduct or financial means; third, that even when a carrier is eventually determined not to be liable, whether by the Secretary of State under section 35(8) or by the court, his vehicle may well have been detained meanwhile and for this he will receive no compensation unless only the Secretary of State acted unreasonably in issuing the penalty notice (which, given where the burden of proof lies, will be well-nigh impossible to establish). When hereafter I speak of the harshness of the scheme I shall be referring principally to these three features in combination. It should not be thought, however, that there are not other aspects of the scheme which also give rise to concern.
  36. Other important and clearly countervailing features of the scheme seem to me: first, the obvious need for firm action of some kind to combat the acute problem of illegal immigration (which hereafter I shall call the social goal); second, that the scheme lacks any criminal sanction and is clearly designed rather to encourage vigilance than to punish the dishonest. Insofar as it achieves the latter, it does so lightly and to avoid the Gilbertian situation of penalising the careless and allowing the dishonest to escape scot-free. Third, the fact (self-evident as it appears to me, although I recognise that in this I am disagreeing with the judge below) that softening the scheme by removing or materially changing any, let alone all, of the above three features would significantly impair its effectiveness in achieving the social goal (although it by no means follows, of course, that the sort of alternative schemes suggested by Sullivan J would not have proved at least reasonably effective). All three features are inter-related. Suppose, by way of example, that vehicles could not be detained (or alternative security obtained) when, ordinarily on the same day the clandestine entrants are discovered, the penalty notice is served. Foreign hauliers especially would be likely simply to return home rather than pay the penalty.
  37. Those being the most critical features of this case, it seems to me that ultimately one single question arises for determination by the Court: is the scheme not merely harsh but plainly unfair so that, however effectively that unfairness may assist in achieving the social goal, it simply cannot be permitted? In addressing this question I for my part would recognise a wide discretion in the Secretary of State in his task of devising a suitable scheme, and a high degree of deference due by the Court to Parliament when it comes to determining its legality. Our law is now replete with dicta at the very highest level commending the courts to show such deference. I take as a single example what Lord Bingham said in Brown -v- Stott [2001] 2 WLR 817, 834-835:
  38. “Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies ….”
  39. That said, the court’s role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility. If ultimately it judges the scheme to be quite simply unfair, then the features that make it so must inevitably breach the Convention. As the ECtHR said twenty years ago in Sporrong and Lonnroth -v- Sweden (1982) 5 EHRR 35, 52:
  40. “… the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1.”
  41. There is an irreducible minimum of Convention rights. Some, of course, are absolute. One of these is “the fundamental and absolute right to a fair trial” (Lord Hope in Brown -v- Stott, (above) at 851).
  42. “The only balancing permitted is in respect of what the concept of a fair trial entails: here account must be taken of the familiar triangulation of interests of the accused, the victim and society.” (Lord Steyn in R -v- A (No 2) [2001] 2 WLR 1546, 1560)
  43. Even rights which are not absolute, moreover, can be interfered with only to an extent which is proportionate. However compelling the social goal, there are limits to how far the individual’s interest can legitimately be sacrificed to achieve it.
  44. With these thoughts in mind I come to the two Articles on which this case must turn, Articles 6 and 1, observing as I do so that in all the circumstances of the present case they seem to me to raise closely inter-locking considerations. To take an obvious example: to the extent that the carrier’s liability is sought to be justified as not punitive, and therefore civil (because involving no blameworthy conduct) under Article 6, it inevitably becomes the more difficult to justify as proportionate under Article 1.
  45. Ultimately, therefore, it seems to me altogether less important to arrive at a clear view as to whether the scheme breaches Article 6 or Article 1, or in some respects one and in some the other, than whether, taken as a whole, the scheme is not merely harsh but truly unfair. If it is, assuredly one or other if not both of these Articles are breached. To my mind, indeed, the two most telling paragraphs in the judgment below are those in which the judge expressed the view that: “… the additional protections conferred by Article 6(2) and 6(3), far from being unnecessary, are essential in the interests of elementary fairness.” (paragraph 162), and his overall conclusion that: “the regime is tough, but it is not fair.” (paragraph 212), rejecting the appellant’s contrary contention. Were we to agree with those conclusions, the appeal must necessarily fail.
  46. All that said one cannot escape the need to consider the scheme in the context of each Article.
  47. Article 6

  48. There is a wealth of Strasbourg case-law and a growing body of domestic authority concerning what, for Article 6 purposes, is criminal and what civil - or more particularly what under the autonomous Strasbourg approach must be regarded as criminal despite being categorised as civil under domestic law. Further extensive case-law then establishes that the various procedural safeguards expressly or impliedly provided by Article 6 are not ultimately dependent upon such a classification: the protections are sometimes found unnecessary even though the proceedings are criminal; sometimes essential even though the proceedings are civil. Why, therefore, attempt the classification exercise in the first place? Simpler surely to address the question as to whether the protections are indeed necessary to achieve a fair trial of whatever may be the issue. The contrast, indeed, between the two recent Court of Appeal decisions in Official Receiver -v- Stern [2000] 1 WLR 2230 and Han -v- Customs & Excise Commissioners [2001] 1 WLR 2253 is striking. In Stern, which concerned the use in directors’ disqualification proceedings of compelled evidence obtained under the Insolvency Act, the Court held, following the judgment of ECtHR in Albert & LeCompte -v- Belgium (1983) 5 EHRR 533, that the issue of fair trial should be considered in the round, having regard to all relevant factors, those factors including, but not being limited to, the facts that disqualification proceedings were not criminal and were primarily for the protection of the public, albeit they involved serious allegations and almost always carried a degree of stigma. In Albert & LeCompte the ECtHR found it unnecessary to decide whether the disciplinary action there involved a “criminal charge”. In Han, on the other hand, this Court by a majority decided as a preliminary issue (Stern not having been cited) that the imposition of civil penalties for dishonest evasion of VAT gave rise to “criminal charges”, leaving over for later decision whether in the result such proceedings would or would not involve a breach of Article 6. Given that not merely Sir Martin Nourse, who dissented, but also the other members of the Court (Potter and Mance LJJ), were clearly reluctant to categorise the proceedings as criminal, plainly not regarding them as unfair, it may be doubted whether the classification process will ultimately prove decisive. In short, the classification of proceedings between criminal and civil is secondary to the more directly relevant question of just what protections are required for a fair trial. I shall, however, address the issue, not least because it covers much of the same ground as must in any event be explored in deciding what protections are required here to achieve a fair trial.
  49. The first important question to resolve in this connection is as to the true nature of the scheme. What is its essential character? In the course of argument two rival views crystallised. One is that the scheme imposes a fixed penalty on the carrier simply for bringing in the clandestine entrant(s). That is what the scheme is designed to deter. It provides in short for an absolute or strict liability for which a substantial fixed penalty is payable, the severity of this deterrent, however, being tempered by the opportunity afforded to the carrier to escape liability by establishing a section 34 defence. This, assuming he is honest and vigilant, he should be able to do, at any rate when the matter comes before the court. On this view, there being nothing in the way of reprehensible conduct or criminality alleged against the carrier, and accordingly no slur or guilt attaching to liability, the scheme is civil and there is no breach of Article 6. The presumption of innocence simply does not arise: nothing approximating to guilt is being alleged. And the carrier enjoys a fair trial, because the central issue being tried is simply whether he was carrying a clandestine entrant (a fair trial also being accorded to any asserted section 34 defence).
  50. The alternative view, and, I have to say, to one to which I myself adhere, is that the true nature of the scheme is dictated by the conduct which the legislation is seeking to deter, and that is both dishonesty and carelessness. What the Regulatory Impact Assessment proposed was the introduction of
  51. “… a new civil penalty for allowing (either by some degree of co-operation or by failing to make thorough checks) the transportation of clandestines into the UK.”

    I do not see the section 34 defences merely as providing some lessening of an otherwise excessive deterrent for an absolute offence, but rather as part and parcel of a scheme imposing fault liability. The spate of recent decisions which consider the legality of reverse burdens of proof seem to me clearly to support such a view. As Lord Woolf observed in the Privy Council in A-G of Hong Kong -v- Lee Kwong-kut [1993] AC 951, 968:

    “… it is the substance rather than the letter of the language of the statute which is important when considering whether there is an exemption or proviso …”
  52. To similar effect, Lord Steyn in R -v- Lambert [2001] 3 WLR 206, 219:
  53. “The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance.”
  54. I recognise, of course, that these were cases in the mainstream of the criminal jurisdiction. But surely a state can no more escape criminal classification and thereby the protections of Article 6 by artificially separating out a defence from the substance of the allegation, than by classifying offences as “regulatory” instead of criminal - held ineffective by the ECtHR in Ozturk -v- Turkey (1984) EHRR 409.
  55. The three criteria long established by the case-law and applied by the judge below for determining whether the scheme is criminal or civil are: first, the domestic classification of the proceedings (effectively determinative if the classification is criminal but no more than a starting point if, as here, it is civil); second, the essential nature of the “offence” (I would prefer the more neutral term “liability”, which can be either criminal or civil); third, the nature and degree of severity of the potential penalty. Rather, however, than follow the conventional route I propose instead to consider classification from a broader standpoint, recognising that the second and third criteria, albeit in theory to be applied alternatively, can apply cumulatively and in any event raise substantially overlapping considerations. Generally under the second criterion one considers whether the liability is punitive and deterrent, whilst under the third regard is had to its nature and severity. All these considerations, however, necessarily raise the question whether liability involves blameworthiness. If it does, then by its very nature it may be thought to include a punitive (in the sense of retributive) element.
  56. The decided cases state the applicable principles. Few, however, seem to me helpful with regard to their individual facts. Han is perhaps the closest in point, and tends to support the view that the scheme is criminal. There, however, criminality was more obviously involved in that the statutory liability only arose when the “… conduct involves dishonesty …” which, as Potter LJ pointed out “… would otherwise be treated, or generally regarded, as criminal in nature”. And there, indeed, the Commissioners were required to prove the dishonesty, albeit only to a civil standard. The case is thus distinguishable.
  57. So too, however, is the decision of the Divisional Court (Lord Woolf CJ and Poole J) in Goldsmith -v- Customs & Excise Commissioners [2001] 1 WLR 1673 - not referred to either in Han or by Sullivan J below - upon which the appellants seek to rely. There it was decided that condemnation and forfeiture proceedings under section 139 of the Customs & Excise Management Act, 1979, following the applicant’s failure to prove that the 26kg of tobacco he imported were for his personal (rather than commercial) use, were civil. As Lord Woolf CJ stated:
  58. “… none of the usual consequences of a criminal conviction follow from condemnation and forfeiture proceedings. There is no conviction or finding of guilt. Under domestic law the person concerned is not treated as having a conviction. The person concerned is not subject to any other penalty, apart from the consequences of the forfeiture and loss of the goods.”

    But it is surely one thing to be unable to justify importing goods which are then confiscated; quite another to be penalised £2,000 for each clandestine entrant dishonestly or negligently brought in.

  59. The only other authority I should mention in this connection is Air Canada -v- United Kingdom (1995) EHRR 150, again not referred to in Han and again relied upon by the appellants, in which the ECtHR declined to classify, as criminal, proceedings (again under the Customs & Excise Management Act, 1979) by which Air Canada were required to pay a £50,000 penalty to redeem their forfeited aircraft. A number of features of this case, however, distinguish it from the present, essentially: a) the Court’s acceptance that the process was in rem; b) the discretion there as to the amount of the penalty payable in lieu of forfeiture; c) liability was not dependent on culpability although in fact the penalty was imposed for the latest in a long series of security lapses by the airline; and d) the amount was not large in relation to the value of the aircraft or the drugs which had been smuggled in. These considerations apart, the decision was by a majority of 5:4, the dissenting judgments being perhaps the more powerfully reasoned, and the Strasbourg jurisprudence having since then moved yet further towards the respondents’ position - see particularly AP, MP and TP -v- Switzerland (1997) 26 EHRR 541 and Lauko -v- Slovakia (2001) 33 EHRR 40 (both considered in Han).
  60. Having, as stated, formed the view that liability under this scheme is indeed targeted at those truly regarded as in some degree culpable, it follows that I incline to the judge’s view that, for Article 6 purposes, the scheme is properly to be regarded as criminal. However, on the first of the more directly relevant questions which then follow, questions arising, as I have already explained, irrespective of classification, namely whether the scheme breaches Article 6(2) on the ground that the reverse onus under section 34 violates the presumption of innocence, I take a different view from that reached below.
  61. This is not an issue I propose to consider at great length. We were shown all the more important recent decisions on reversing the burden of proof - AG of Hong Kong -v- Lee Kwong-kut, Brown -v- Stott (concerning the related question of the privilege against self-incrimination), R -v- DPP ex parte Kebilene [2000] 2 AC 326, R -v- A(No 2) [2001] 2 WLR 1546, R -v- Lambert [2001] 3 WLR 206 (all but the first in the House of Lords) and, most recently, Lynch -v- DPP [2001] EWHC Admin 882, in which the Divisional Court (Pill LJ & Poole J) on 8th November 2001 held that the requirement under section 139 of the Criminal Justice Act 1988 for someone found with a lock-knife in his possession in a public place to establish good reason or lawful authority for that, does not offend Article 6. Pill LJ, having taken as his starting point the ECtHR’s decision in Salabiaku (1988) 13 EHRR 379, which permits a reverse onus provided the relevant presumptions are defined within reasonable limits, said this:
  62. “There is a strong public interest in bladed articles not being carried in public without good reason. I do not find it obviously offensive to the rights of the individual that it is for him to prove a good reason on a balance of probabilities. Respect should be given to the way in which a democratically elected legislature has sought to strike the right balance, as in my view it has. Parliament is entitled, without infringing the ECHR, to deter the carrying of bladed … articles in public to the extent of placing the burden of proving a good reason on the carrier. The defendant is proving something within his own knowledge … In distinguishing Lambert I would give some, although limited, weight in striking the balance to the much more restricted power of sentence for this offence than for an offence under section 8. A section 139 offence is undoubtedly ‘truly criminal’ but at least the aggravating feature of a potential life sentence, to which Lord Steyn attached weight in Lambert, is not present.”

    In Lambert, of course, the House of Lords applied section 3 of the 1998 Act to construe section 28 of the Misuse of Drugs Act, 1971 as if it imposed an evidential rather than a persuasive burden on the accused.

  63. True it is that the carrier of clandestine entrants, unlike the carrier of flick-knives in a public place, does not know of their existence. There are, however, countervailing features of the scheme which make it even less “obviously offensive to the rights of the individual” that he should be required to prove his defence, not least that the financial penalty here is still further from the life sentence available in Lambert than the lesser prison sentence noted by Pill LJ in Lynch. In both cases, moreover, the “defendant” is proving something within his own knowledge. The Crown’s case here that they would be in an impossible position if they had to prove both dishonesty and carelessness seems to me unanswerable. Only the carrier knows whether he knew or suspected that clandestine entrants were concealed in his lorry and similarly he is far better placed than UKIS to know (or certainly to discover) whether there was in place an effective system for securing the vehicle, and whether that system was operated properly.
  64. Still less persuaded am I that the scheme involves any impermissible invasion of the carrier’s right to silence. The suggestion appears to be that because, if a carrier remains silent, his vehicle is more likely to be detained, he is therefore under pressure to reveal his defence and in doing so may compromise such better defence as he might later choose to advance. I find it an unattractive argument.
  65. The mere fact, therefore, that the burden of disproving dishonesty and negligence is placed by the scheme upon the carrier does not of itself seem to me to violate of Article 6. The reverse onus, however, cannot be ignored. Rather, in combination with the vehicle detention provisions and the inflexibility of the substantial financial penalties, it places an immense burden on carriers. It is, for example, one thing to put the burden of disproving culpability upon the carrier; quite another to allow his vehicle to be detained until he has discharged that burden. I know of no other such provision in our law. Take an owner/driver of limited means whose lorry has been penetrated by six clandestine entrants (and, as Sullivan J noted, their persistence, skill and ruthlessness in achieving entry can hardly be exaggerated) and who himself discovers and reports that fact on arrival. Assume that despite exercising all proper care in checking his vehicle’s security he has breached the code, perhaps by failing to keep a written record of such checks (it being immaterial under the scheme whether the breach is actually causative of the clandestine entrants’ presence in the vehicle). Or assume merely that the immigration officer refuses to accept that the owner/driver knew nothing of the entry. He may well be unable to put up the required security. If a foreigner, his problems will be compounded. His vehicle is likely to be detained and it may eventually have to be sold to pay the fixed £12,000 penalty. There are many tales of genuine hardship amongst the court’s papers.
  66. It is when one considers that sort of (all too possible) scenario that the scheme taken as a whole comes to appear, as it seems to me, quite frankly unfair. Insofar as the liability is suggested to be civil and not to involve moral culpability on the driver’s part, the penalty far exceeds what any individual ought reasonably to be required to sacrifice in the interests of achieving improved immigration control (I say “improved” because, of course, the social goal here is relative rather than absolute; it is not as if vigilance were being required of carriers to avoid, say, terrorists bringing in a nuclear weapon). But even assuming, as I do, that the scheme is directed towards punishing carriers for some fault, it cannot to my mind be right to impose so high a fixed penalty without possibility of mitigation. The hallowed principle that the punishment must fit the crime is irreconcilable with the notion of a substantial fixed penalty. It is essentially, therefore, on this account rather than because of the reversed burden of proof that I would regard the scheme as incompatible with Article 6. What in particular it offends is the carrier’s right to have his penalty determined by an independent tribunal. To my mind there surely is such a right. I recognise that at the opposite end of the criminal spectrum Strasbourg case-law presently allows the Secretary of State to fix the tariff part of a mandatory life sentence - on the basis that murder is a uniquely wicked crime for which life imprisonment can be justified as proportionate in all cases - see Wynne -v- United Kingdom [1994] 19 EHRR 333. I cannot think, however, that other substantial fixed penalties can properly be put beyond the Court’s purview. Sentencing is, like all aspects of the criminal trial, a function that must be conducted by an independent tribunal. If, as I would hold, the determination of liability under the scheme is properly to be characterised as criminal, then this fixed penalty cannot stand unless it can be adjudged proportionate in all cases having regard to culpability involved. In this regard the appellants rely heavily on Hoverspeed. In my judgment, however, for reasons I shall come to later, it cannot sustain the weight of reliance placed upon it.
  67. I had wondered in the course of argument whether the penalty could be justified as properly exigible for the carriage of clandestine entrants as an absolute offence - in which case the scheme plainly ought not to be condemned because its effect is tempered by the availability of certain defences. As Lord Woolf pointed out in AG of Hong Kong:
  68. “It would not assist the individuals who are charged with offences if, because of the approach adopted to ‘statutory defences’ by the courts, the legislature, in order to avoid the risk of legislation being successfully challenged, did not include in the legislation a statutory defence to a charge.”
  69. The only relevant examples of absolute offences shown to us, however, were: a) road haulage offences such as the use of vehicles in a dangerous condition, for which the level of penalty is not merely lower than that prescribed by the scheme, but, no less importantly, is subject to a maximum rather than fixed; and b) the ECJ case of Hansen (1990) ECR I 2911 in which the court upheld the strict criminal liability of an employer under Danish law for tachograph offences committed by his employees on the express basis that the fine imposed (not large and at large) “… is not disproportionate to the objective pursued …”. Mr Barling QC was unable to show us any examples of penalties, let alone fixed penalties, for strict liability offences on the scale here in question. That seems to me hardly surprising.
  70. Article 1

  71. I shall not attempt any elaborate analysis of the rival arguments as to the scheme’s compliance with Article 1. Once again, the Strasbourg case-law is extensive. Let me merely quote Lester and Pannick’s well-known publication Human Rights Law and Practice (1999) which states, under the heading Proportionality:
  72. “Whichever of the three rules of Article 1 of the First Protocol applies, an interference with property must not only be in the public or general interest, but must also satisfy the requirement of proportionality, that is, that there is a reasonable relationship of proportionality between the means employed and the aims sought to be realised.” (Sporrong & Lonnroth -v- Sweden is cited)
  73. As to what proportionality involves, I turn to Lord Steyn’s speech in R (Daly) -v- Secretary of State for the Home Department [2001] 2 WLR 1622, 1634:
  74. “The contours of the principle of proportionality are familiar. In DeFreitas -v- Permanent Secretary of Ministry of Agriculture, Fisheries, Lands & Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the Court should ask itself:
    ‘Whether: i) the legislative objective is sufficiently important to justify limiting a fundamental right; ii) the measures designed to meet the legislative objective are rationally connected to it; and iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’”
  75. It is further implicit in the concept of proportionality, however, that not merely must the impairment of the individual’s rights be no more than necessary for the attainment of the public policy objective sought, but also that it must not impose an excessive burden on the individual concerned. As the ECtHR stated in James -v- United Kingdom (1986) 8 EHRR 123, 144-145:
  76. “Not only must a measure depriving a person of his property pursue, on the facts as well as in principle, a legitimate aim ‘in the public interest’, but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. This latter requirement was expressed in other terms in the Sporrong & Lonnroth judgment by the notion of the ‘fair balance’ that must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The requisite balance will not be found if the person concerned has had to bear ‘an individual and excessive burden’.”

    That principle seems to me of the first importance here.

  77. If, therefore, contrary to my belief, the scale and inflexibility of the penalty, taken in conjunction with the other features of this scheme, are not such as to deprive the carriers of a fair trial under Article 6, then I would hold them instead to impose an excessive burden on the carriers such as to violate Article 1. Even acknowledging, as I do, the great importance of the social goal which the scheme seeks to promote, there are nevertheless limits to how far the state is entitled to go in imposing obligations of vigilance on drivers (and vicarious liability on employers and hirers) to achieve it and in penalising any breach. Obviously, were the penalty heavier still and the discouragement of carelessness correspondingly greater, the scheme would be yet more effective and the policy objective fulfilled to an even higher degree. There comes a point, however, when what is achieved is achieved only at the cost of basic fairness. The price in Convention terms becomes just too high. That in my judgment is the position here.
  78. Conclusion on the Convention

  79. It is suggested that this is a case of high constitutional importance. Perhaps it is. Certainly it raises questions as to the degree of deference owed by the courts to the legislature and executive in the means used to achieve social goals. But judges nowadays have no alternative but to apply the Human Rights Act. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts. Difficult and worrying though I have found this case to be, in the last analysis, affording all such deference as I believe I properly can to those responsible for immigration control and for devising and enacting the legislation necessary to achieve it, I have come to regard this scheme as, quite simply, unfair to carriers. Nothing in the Convention itself, nor in the extensive jurisprudence upon it, dictates, or ever could dictate, precisely when a measure such as this is unfair - when, that is, the limits of permissible individual sacrifice have been exceeded. All that the Convention really provides are the central principles and touchstones by which such a judgment can be made. Although, as I recognise, I have travelled through the Convention issues by a rather different route from the judge below, I have felt impelled to the same final conclusion that the scheme is not after all Convention compliant.
  80. Hoverspeed

  81. The final important authority I must deal with is Hoverspeed on which the appellants sought to rely on both aspects of this case, ie in resisting the Convention challenge as well as the EC Treaty challenge - although I should make plain that human rights issues as such were not explored in that case.
  82. So far as the Convention challenge is concerned, the appellants contend that the carriers’ liability scheme found lawful in Hoverspeed is closely analogous to that in issue here. If, submits Mr Barling, it is legitimate to require carriers to check to ensure that correct documentation is produced prior to embarkation, it must be equally legitimate to introduce a penalty regime designed to prevent passengers from circumventing these provisions by travelling clandestinely. As to the level of penalty imposed (and, indeed, its inflexibility) the appellants point to Council Directive 2001/51/EC of 28 June 2001, supplementing the Schengen Agreement which stipulates that the maximum amount of the penalty must be not less than (the equivalent of) £3,100 for each person carried, or the minimum not less than £1,860 per person, or there may be a maximum penalty of £310,000 for each infringement, irrespective of the number of persons.
  83. Mr Barling points to what I myself said in Hoverspeed (at 614):
  84. “If ever there was scope for a significant margin of appreciation in operating what for present purposes we are assuming to be a restriction, surely it is here.”

    And he relies too upon my acceptance of his submission there that none of the provisions of the 1987 Act are “so manifestly unreasonable or disproportionate as intrinsically could constitute it a restrictive measure within [Article 49]” (p611). Dyson J (as he then was) reached the same conclusion:

    “The Act is neither unreasonable nor a disproportionate response to the need for effective immigration control.” (p620)
  85. Persuasive though these arguments at first appear, I cannot regard them as determinative of the legality of the present scheme. It is a striking fact that whereas, consistently with Schengen and the Directive, all other Member States have introduced a carriers’ liability scheme to compel the checking of travel documents, none but the United Kingdom has introduced anything approximating to the scheme for hauliers’ liability for clandestine entrants here under consideration. It is noteworthy too that Article 6 of the Directive provides with regard to carriers’ liability generally:
  86. “Member States shall ensure that their laws, regulations and administrative provisions stipulate that carriers against which proceedings are brought with a view to imposing penalties have effective rights of defence and appeal.”

    Whatever view may be taken of the compliance of the 1987 legislation with that provision, it may be doubted whether it is satisfied by this scheme.

  87. With regard to the general fairness of the two regimes, there are other important contrasts, too, to be made between them: first, under the 1987 legislation there is no provision for detaining the relevant means of transportation before liability is established and if necessary until payment - no doubt those operating ship and aircraft services are thought well able to discharge any ultimate liability and are not, therefore, required to give security. But it is, of course, the very fact that those least able to provide security are the most liable to have their vehicles detained, which makes the new scheme so conspicuously unfair. Secondly, and it is of course a related point, many hauliers are likely to be altogether less well able to bear the penalty than substantial air and sea carriers. Thirdly, the nature of the obligations imposed by the respective schemes upon those affected is very different: whereas the 1987 Act requires only the checking of travel documents on embarkation (difficult though on occasions this may be), the 1999 Act requires owners, hirers and drivers variously to institute and perform extensive checks on vehicles and cargoes throughout the entire journey to the UK.
  88. The EC Treaty challenge

  89. Hoverspeed is yet more central to the determination of the EU law challenge, and it is convenient to take as one’s starting point, as did Sullivan J below, the Court’s approach in that case. Substantially that approach was to recognise that even where a measure is not intended to restrict Article 49 rights, it may be “… so manifestly unreasonable or disproportionate as intrinsically would constitute it” - see my judgment at 611. As Dyson J put it:
  90. “Even if the object of the measure is not to regulate trade, it may be held to be a restriction if it is an unreasonable and disproportionate means of achieving its intended object.” (620).
  91. We concluded, however, that the 1987 Act was not such a restriction:
  92. “It is manifestly not a measure aimed at regulating trade between Member States. It does not in any event deny access to the UK market. The Act is neither an unreasonable nor a disproportionate response to the need for effective immigration control. The fact that almost all other Member States have some form of legislation similar to the Act, and that Article 26 of the Schengen Convention is in terms that require parties to it to adopt such legislation, amply supports the conclusion that such legislation is not inherently an unreasonable response to the need for immigration control.” (per Dyson J at 620)
  93. In reaching a different view with regard to the 1999 Act and holding that this scheme does constitute a restriction under Article 28 and 49, Sullivan J distinguished Hoverspeed on two essential grounds. First, he found on the evidence that the scheme has a restrictive effect in practice:
  94. “Although the additional burden placed upon hauliers, to use security devices, to make checks, to keep records, is not very great … the penalties for failing to discharge that relatively modest burden, even as a result of an isolated act of carelessness, are very severe, and are backed by powers of detention. The evidence shows that some haulage firms have either ceased to carry goods to the United Kingdom, reduced their services to the United Kingdom, or altered their patterns of service by using different ports of embarkation or changing to different ferry lines. A substantial number of vehicles have been detained, delaying and disrupting the delivery of imports to the UK.”
  95. Secondly, he concluded that, however broad the margin of discretion allowed to the state in the field of immigration control,
  96. “It is difficult to see how a penalty regime which fails to comply with Article 6 and/or Article 1 of the Convention could be described as reasonable or proportionate.”
  97. The appellants contend that neither of those grounds provides a sufficient basis for holding that this scheme comprises an unjust restriction upon Treaty rights. The scheme’s effect upon the commercial decisions of hauliers to reduce their services to the UK, or to use different ports, or ferry-lines or whatever are, Mr Barling submits, simply too indirect, remote and uncertain to constitute restrictions on the free movement of services within the meaning of Article 49, or measures of equivalent effect to quantitative restrictions on imports within the meaning of Article 28. They are essentially incidental effects of the scheme and not of such a scale or nature as to as transform it into a measure which, given that it is not aimed at the regulation of trade in goods or services and is not discriminatory with regard to such goods or services, is nevertheless so oppressive and onerous that is to be treated as a restriction needing to be justified. In this regard Mr Barling relies upon paragraph 78 of the judgment of ECJ in Germany -v- Council [1994] ECR 1-4973:
  98. “Both the right to property and the freedom to pursue a trade or business form part of the general principles of Community law. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, the exercise of the right to property and the freedom to pursue a trade or profession may be restricted, particularly in the context of a common organisation of a market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.”
  99. On this part of the appeal, I have come to accept Mr Barling’s arguments. Having considered afresh the many authorities we examined in Hoverspeed in determining whether the 1987 Act constituted an Article 49 (then Article 59) restraint - most notably perhaps Alpine Investments BV -v- Minister van Financien [1995] ECR 1-1141 and Peralta [1994] ECR 1-3453 - I simply cannot recognise in the present scheme, inconsistent with the Convention though I regard it to be, a restriction under Community law such as to require justification under the public policy derogation. To characterise the scheme as unjust and unfair is not to say that it therefore “… impair[s] the very substance of the rights guaranteed”, as the court put it in Germany -v- Council. Not every breach of the Convention affecting cross-border trade and services involves an impermissible restriction on Treaty rights. I think the judge below read too much into our statements in Hoverspeed that the use of unreasonable and disproportionate means to achieve an object unrelated to regulating trade between Member states: “…could constitute a restrictive measure within Article [49] …” (as I put it), or “… may be held to be a restriction …” (as Dyson J put it). Sometimes, in cases which involve an “intolerable interference” with Treaty rights, that will be so. In my judgment, however, not in the present case where the effects upon guaranteed Treaty rights are decidedly tenuous, and where their substance is left unimpaired.
  100. The Court’s interpretative obligation under Section 3 of the Act

  101. The appellants submit that if and insofar as the scheme would otherwise be found incompatible with Convention rights, we should construe the legislation so as to eliminate any injustice or unfairness. We heard a great deal of argument and were shown a large number of authorities as to the proper application of the section, prominent among them R -v- DPP ex parte Kebilene (above), R -v- A(No 2) (above), R -v- Lambert (above) and Poplar Housing and Regeneration Community Association -v- Donoghue [2001] 3 WLR 183. Suffice it to say that, the Balbo point aside, it appears to me quite impossible to recreate this scheme by any interpretative process as one compatible with Convention rights. As I have more than once endeavoured to explain, the troubling features of the scheme are all inter-linked: to achieve fairness would require a radically different approach. Mr Barling, of course, invokes section 3 only as his final fall-back position. But in asking us to apply it he is, in my judgment, necessarily inviting us to turn the scheme inside out, something we cannot do. As the authorities clearly dictate, the Court’s task is to distinguish between legislation and interpretation, and confine itself to the latter. We cannot create a wholly different scheme (perhaps of the sort envisaged by Sullivan J below) so as to provide an acceptable alternative means of immigration control. That must be for Parliament itself. As Lord Lester pointed out, were we ourselves to create a fresh scheme purportedly under section 3, then indeed we should be failing to show the judicial deference owed to Parliament as legislators.
  102. Footnote

  103. I have attempted in this judgment to strip down the case to its barest essentials. That has seemed to me important both from the point of view of manageability and so as not to lose sight of the central issues. I am, however, all too aware that in doing so I have left great tracts of submission and citation on the cutting-room floor. In particular I have made no mention of a number of sustained further criticisms of the scheme advanced by the respondents, criticisms based principally on the principles of legal certainty, the rule of law and equality of arms. It should not be thought that I regard these as entirely without merit. On the contrary, a number of the identified uncertainties as to the precise scope and operation of the scheme inevitably add to one’s overall sense of concern about the legality of this legislation. There is, for example, considerable difficulty in understanding just what a driver must prove to establish his section 34(3) defence: Sullivan J may well have been correct to conclude that it makes an employee personally liable for the omissions of his employer. Further criticisms of this sort, however, I would regard as essentially peripheral; the critical flaws in the scheme are, I believe, those earlier identified.
  104. Conclusion

  105. It follows from all this that I for my part would uphold the judgment below with regard to the Convention challenge, but not in declaring the legislation inconsistent with Community law. To that limited but important extent only would I allow this appeal.
  106. Lord Justice Laws:

    Introductory

  107. In Vriend [1998] 1 SCR 493, in the Supreme Court of Canada, Iacobucci J stated at 563:
  108. “When the Charter [sc. the Canadian Charter of Rights and Freedoms] was introduced, Canada went, in the words of former Chief Justice Brian Dickson, from a system of parliamentary supremacy to constitutional supremacy… Simply put, each Canadian was given individual rights and freedoms which no government or legislature could take away.”
  109. Not very long ago, the British system was one of Parliamentary supremacy pure and simple. Then, the very assertion of constitutional rights as such would have been something of a misnomer, for there was in general no hierarchy of rights, no distinction between “constitutional” and other rights. Every Act of Parliament had the same standing in law as every other, and so far as rights were given by judge-made law, they could offer no competition to the status of statutes. The courts evolved rules of interpretation which favoured the protection of certain basic freedoms, but in essence Parliament legislated uninhibited by claims of fundamental rights.
  110. In its present state of evolution, the British system may be said to stand at an intermediate stage between parliamentary supremacy and constitutional supremacy, to use the language of the Canadian case. Parliament remains the sovereign legislature; there is no superior text to which it must defer (I leave aside the refinements flowing from our membership of the European Union); there is no statute which by law it cannot make. But at the same time, the common law has come to recognise and endorse the notion of constitutional, or fundamental rights. These are broadly the rights given expression in the European Convention on Human Rights and Fundamental Freedoms (“ECHR”), but their recognition in the common law is autonomous: see for example Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, Leech [1994] QB 198, Witham [1998] QB 575, Pierson v Secretary of State [1998] AC 539, Reynolds [1999] 3 WLR 1010, and with respect perhaps especially Simms [2000] 2 AC 115 per Lord Hoffmann at 131. The Human Rights Act 1998 (“HRA”) now provides a democratic underpinning to the common law’s acceptance of constitutional rights, and important new procedural measures for their protection. Its structure, as has more than once been observed, reveals an elegant balance between respect for Parliament’s legislative supremacy and the legal security of the Convention rights.
  111. This being our constitution’s present nature, there exists a tension between the maintenance of legislative sovereignty and the vindication of fundamental, constitutional rights. How are their respective claims to be reconciled? Where is the point of escape if the legislature tramples on the territory of rights? This tension is hardly to be found in a system of pure parliamentary supremacy, and is less acute in a system of constitutional supremacy. In the former, fundamental rights are not recognised as such. The majoritarian principle, expressed and made good by a sovereign Parliament, comes first. In the latter, the majoritarian principle gives way to fundamental rights. In practice, the constitutions and jurisprudence of sovereign States in the civilised world show that this distinction is by no means always clear-cut; and to the extent in any concrete instance that it is not clear-cut, the tension to which I refer will arise. Moreover, although it may create difficulties, and its resolution case by case requires firmness of purpose and good judgment, this tension is a welcome inhabitant of a democratic State. Here again is Iacobucci J in Vriend, at 566:
  112. “To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s.33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.”
  113. In the British State, there are at least two means by which the courts seek to resolve this tension. The first, not directly relevant in the present case, arises where it is suggested that a statute has effected or authorised what would undoubtedly amount to a violation of a fundamental or constitutional right. Here the courts protect the right in question, while acknowledging the legislative supremacy of Parliament, by means of a rule of construction. The rule is that while the legislature possesses the power to override fundamental rights, general words will not suffice. It can only be done by express, or at any rate specific, provision: see for example Witham, Pierson, and Simms to which I have already referred.
  114. The second means by which constitutional rights are recognised consistently with the sovereignty of Parliament is engaged where a statute admittedly travels in the field of a constitutional right, and the issue is whether the right is violated, or if it is whether the extent of the statute’s intrusion is acceptable or justified. Such questions characteristically arise where the right is one guaranteed by the ECHR, and the court acts pursuant to its duty under the HRA. Where one of the political rights is under consideration (that is, any of those guaranteed by ECHR Articles 9 – 11), the issue most often falling for decision is whether there is shown sufficient justification, under paragraph 2 of the Article in question, for the right’s infringement. But the question may be, whether there has been a violation at all; and that question may of course arise in the context of Convention rights as regards which the ECHR provides no express exceptions or qualifications – no paragraph 2.
  115. In this second area the court’s task is quite unlike its duty in deciding whether on its true construction a statute allows or perpetrates an undoubted violation of a constitutional right. The rule of construction, that only express or at least specific words will suffice to effect such a result, is a brightline rule whose edge is sharp. In this present context, there is no brightline rule. It is because here, the court has to strike a balance between the claims of the democratic legislature and the claims of the constitutional right. Sometimes, of course, it will be plain and obvious which way the scales fall. In the field of ECHR Article 10, the justification of certain specified restrictions upon the right of free expression may be clear beyond argument in time of war or other national emergency. On the other hand, an attempt to curtail free speech merely to avoid embarrassment to the government would, no less obviously, lack any colour of justification. In the far more frequent case where the answer is by no means so plain, and a balance has to be struck between contradictory interests each possessing some substance of legitimacy, a critical factor in the court’s appreciation of the balance will be the degree or margin of deference it pays to the democratic decision-maker. This deference – and its limits – have to be fashioned in a principled but flexible manner, sensitive to the particular case and its context. In some contexts the deference is nearly absolute. In others it barely exists at all. The development of principle in this field is one of the most important challenges which the common law must meet, in face of the provisions of the HRA and our own domestic acceptance of the idea of constitutional rights. The reach of the deference which the judges will pay to the democratic decision-maker, the giving and withholding of it, is the second means by which the courts resolve the tension between Parliamentary sovereignty and fundamental rights in our intermediate constitution.
  116. And it is at the very core of the debate in this case. It is said by the respondents that the material provisions of the Immigration and Asylum Act 1999 (“the 1999 Act”), which are set out or summarised in the judgment of my Lord Simon Brown LJ, systematically violate the rights under ECHR Article 6 and Article 1 of the First Protocol enjoyed by drivers, owners, hirers or operators (those defined in s.32(5) and (6) as “responsible persons”) of vehicles found carrying illegal clandestine entrants (I will set out Article 6 at paragraph 88 below). We have to determine what is the quality of any deference owed by the courts to the legislature in deciding whether that is right. The appellant Secretary of State says that the degree of latitude – deference – which the court should pay to the will of Parliament is such that we should hold the scheme of civil penalties in the 1999 Act to lie within the legislature’s power to make law in the public interest unconstrained by the ECHR. It is therefore necessary to appreciate what are the true principles according to which a proper degree of deference to the legislature falls to be measured.
  117. As I have already indicated, the assessment of due deference to the democratic decision-maker is not to be made in a vacuum. In Daly [2001] 2 WLR 1622 Lord Steyn stated at 1636 that “[i]n law context is everything”. So here, the extent of any deference to be paid to the legislature depends in part on the nature and quality of the measure in question: more concretely, whether its content falls within the special responsibility of the executive, which sought and obtained the 1999 Act in Parliament, or the special responsibility of the judiciary. A paradigm of the executive’s special responsibility is the security of the State’s borders. A paradigm of the judiciary’s special responsibility is the doing of criminal justice. There are of course other paradigms of each of these responsibilities. And between the special territory of each there lies, not a no-man’s-land, but a spectrum. The degree of deference owed to the democratic decision-maker must depend upon where the impugned measure lies within this scheme of things. I shall return to these aspects when I come to discuss in fuller detail (paragraphs 80 ff) the principles applicable to the giving and withholding of deference to the democratic powers.
  118. I therefore find myself in respectful disagreement with my Lord’s view expressed at paragraph 33 of his judgment, that the classification of proceedings between criminal and civil is secondary to the question, what protections are necessary for a fair trial. On the contrary, in my judgment the issue whether this scheme is to be regarded as effectively imposing criminal liability, and so exacting criminal sanctions, is critical to the extent to which the court will defer to the legislative scheme and decline to confine or reduce it on human rights grounds. I shall have more to say about this in paragraphs 85 and 86. Now, it is accepted on all hands that the question whether the scheme is to be treated as criminal in nature does not depend on its classification in domestic law. It depends upon whether it should be so regarded autonomously, applying the three criteria laid out by the Strasbourg court in Engel & Ors v. Netherlands (1976) 1 EHRR 647, paragraphs 82 – 83, applied by the Court of Appeal in Han & Ors v. Commissioners of Customs and Excise [2001] 1 WLR 2253.
  119. This preamble reveals what I regard as the key questions in the case. There are three. (1) What are the principles upon which, in the field of fundamental rights, the courts should decide what deference to pay to the democratic powers of the State? (2) How is the scheme of the 1999 Act to be classified according to the criteria set out in Engel? (3) In light of the answers to (1) and (2), is the scheme repugnant to Convention rights?
  120. (1) Deference to the democratic decision-maker

  121. I turn then to Question 1. A good deal of recent authority was cited on this subject of deference. I propose to start with what was said by Lord Hope of Craighead in Kebilene [2000] 2 AC 326. At 380E-G he refers to the well-known doctrine of the “margin of appreciation” as it has been developed in the European Court of Human Rights. He continues (380G-381D):
  122. “This doctrine is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.
    In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognize that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para. 3.21 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill and Mr. Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the ‘discretionary area of judgment’. It will be easier for such an area of judgment to be recognized where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognized where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”

    My Lord Simon Brown LJ has already cited the observation of Lord Bingham of Cornhill in Brown v Stott [2001] 2 WLR 817, 834-835:

    “Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies…”

    In the same case Lord Steyn said this at 842:

    “Under the Convention system the primary duty is placed on domestic courts to secure and protect Convention rights. The function of the European Court of Human Rights is essential but supervisory. In that capacity it accords to domestic courts a margin of appreciation, which recognises that national institutions are in principle better placed than an international court to evaluate local needs and conditions. That principle is logically not applicable to domestic courts. On the other hand, national courts may accord to the decisions of national legislatures some deference where the context justifies it: see R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 380-381 per Lord Hope of Craighead; see also: Singh, Hunt and Demetriou, "Is there a Role for the 'Margin of Appreciation' in National Law after the Human Rights Act?" [1999] EHRLR 15. This point is well explained in Lester & Pannick, Human Rights Law and Practice (1999), p 74:
    ‘Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better placed to perform those functions.’”

    Lambert [2001] 3 WLR 206 was a case in which their Lordships’ House had to consider the imposition of a reverse burden of proof in a criminal statute, the Misuse of Drugs Act 1971. It was much cited to us in the context of the respondents’ complaints concerning the reverse burden in the 1999 Act relating to the “defences” (I use quotation marks only so as to beg no questions upon issues (2) and (3) which I have identified above) created by s.34. For present purposes, however, I draw attention to this passage in the judgment of Lord Woolf CJ in the Court of Appeal Criminal Division ([2001] 2 WLR 211, 219 at paragraph 16):

    “If the defendant is being required to prove an essential element of the offence this will be more difficult to justify. If, however, what the defendant is required to do is establish a special defence or exception this will be less objectionable. The extent of the inroad on the general principle is also important. Here it is important to have in mind that article 6(2) is specifically directed to the application of the presumption of innocence of the "criminal offence" charged. It is also important to have in mind that legislation is passed by a democratically elected Parliament and therefore the courts under the Convention are entitled to and should, as a matter of constitutional principle, pay a degree of deference to the view of Parliament as to what is in the interest of the public generally when upholding the rights of the individual under the Convention. The courts are required to balance the competing interests involved.”

    In Poplar v Donoghue [2001] 3 WLR 183 the Court of Appeal had to consider whether in seeking an order for possession of a dwelling-house under section 21(4) of the Housing Act 1988 Act the claimant housing association was contravening the defendant’s right to respect for her private and family life and her home under ECHR Article 8(1). S.21(4) provided:

    “Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied…” (and then certain procedural requirements are set out).

    At paragraph 69 (p. 202) Lord Woolf CJ said this:

    “However, in considering whether Poplar can rely on article 8(2), the court has to pay considerable attention to the fact that Parliament intended when enacting section 21(4) of the 1988 Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention.”

    Lastly I would with great respect wish to underline the observation of the European Court of Human Rights, cited by my Lord Simon Brown LJ at paragraph 27 of his judgment, in Sporrong (1982) 5 EHRR 35, 52:

    “… the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The search for this balance is inherent in the whole of the Convention…”
  123. That is a sufficient citation of authority from which to draw together the principles now being developed by the courts for the ascertainment of the degree of deference which the judges will pay, or the scope of the discretionary area of judgment which they will cede, to the democratic powers of government in fulfilment of the courts’ duty to decide in any given case whether there has been a violation of a Convention right (or, in the case of any of the political rights, whether the interference with the right is justified under paragraph 2 of the relevant Article). First, however, there is a backdrop to what follows. We do not apply the Strasbourg margin of appreciation, because we are a domestic, not an international tribunal: see per Lord Hope in Kebilene and Lord Steyn in Brown v Stott cited above. Being a domestic tribunal, our judgment as to the deference owed to the democratic powers will reflect the culture and conditions of the British State. Such a judgment will itself enjoy (in any future debate at Strasbourg) a margin of appreciation, according to the Strasbourg court’s own case law. The importance of this is to emphasise the fact that our courts’ task is to develop an autonomous, and not merely an adjectival, human rights jurisprudence. In that context I wholly agree with my Lord Simon Brown LJ’s observation, in paragraph 27 of his judgment, that “the court’s role under the [HRA] is as the guardian of human rights. It cannot abdicate this responsibility.”
  124. In describing the tension created by the co-existence in our intermediate constitution of Parliamentary sovereignty and fundamental or constitutional rights, the antithesis to which I drew particular attention was that between the vindication of such rights and the claims of primary legislation, where the two were in actual or apparent conflict. This present appeal is such a case; for the whole debate is about the effects of the relevant provisions of the 1999 Act properly construed. But there is a commoner antithesis, arising where the seeming conflict is between the protection of a fundamental right and the force of a decision made by the executive (or, it may be, contained in subordinate legislation) rather than by the primary legislature. I have used expressions such as “the democratic powers” to embrace both the legislature and the executive, as being the arms of government whose power depends, the former directly and the latter indirectly, on election by the people.
  125. Against this background, the first principle which I think emerges from the authorities is that greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure: see in particular the two citations of Lord Woolf set out above, from Lambert and Poplar. Where the decision-maker is not Parliament, but a minister or other public or governmental authority exercising power conferred by Parliament, a degree of deference will be due on democratic grounds – the decision-maker is Parliament’s delegate - within the principles accorded by the cases. But where the decision-maker is Parliament itself, speaking through main legislation, the tension of which I have spoken is at its most acute. In our intermediate constitution the legislature is not subordinate to a sovereign text, as are the legislatures in “constitutional” systems. Parliament remains the sovereign legislator. It, and not a written constitution, bears the ultimate mantle of democracy in the State.
  126. The second principle is that there is more scope for deference “where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified” (per Lord Hope in Kebilene, cited above). In the present case we are principally concerned with Article 6, which does not on its face require any balance to be struck: it contains no analogue of paragraph 2 in Articles 9 – 11, dealing with political rights. It is thus a context which militates against deference. But even here, there is no sharp edge. The right to a fair trial under ECHR Article 6(1) is certainly unqualified and cannot be abrogated. So also is the presumption of innocence (in a criminal case) arising under Article 6(2). But what is required for fairness, what is required to satisfy the presumption of innocence, may vary according to context. In relation to Article 6(2), see in particular Salabiaku 13 EHRR 379, in which the European Court of Human Rights held (paragraph 28) that presumptions of fact or law against the defence should be confined “within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.” Hence I think it misleading to describe Article 6 rights as “absolute”, an adjective which tends to suggest that the nature of such rights is uniform, the same for every class of case (bar the distinction between civil and criminal). That is not right. The requirements of independence and impartiality are perhaps as close as one can get to uniform requirements. But even there, there may be scope for reasonable differences of view as to the conditions which have to be met. What is the degree of security of tenure that a judge must enjoy if he is to constitute a tribunal compliant with Article 6(1)? At all events, however, Article 6 is an area where the deference due to the democratic powers is limited, since the rights it guarantees are unqualified.
  127. The third principle is that greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts. The first duty of government is the defence of the realm. It is well settled that executive decisions dealing directly with matters of defence, while not immune from judicial review (that would be repugnant to the rule of law), cannot sensibly be scrutinised by the courts on grounds relating to their factual merits: see Chandler v DPP [1964] AC 763 at 790 per Lord Reid and 798 per Lord Radcliffe, and the recent case of Marchiori [2002] EWCA Civ 03 at paragraphs 33 – 38 of the judgment given by myself. The first duty of the courts is the maintenance of the rule of law. That is exemplified in many ways, not least by the extremely restrictive construction always placed on no-certiorari clauses.
  128. Now this is not a case, of course, in which the courts are intruding in defence policy, or the democratic powers in the rule of law. There are no tanks on the wrong lawns. But as I have said (paragraph 77) the constitutional responsibility of the democratic powers particularly includes the security of the State’s borders, thus including immigration control, and that of the courts particularly includes the doing of criminal justice. If the scheme of the 1999 Act is essentially to be treated as an administrative scheme for the betterment of immigration control in a context – clandestine entrants in vehicles – acknowledged to be especially acute, the courts will accord a much greater deference to Parliament in deciding whether there is any violation of Convention rights than if it is to be regarded as a criminal statute. In the latter case, the courts are of course obliged to apply Article 6(2) and (3) as well as (1). They would do so rigorously, with much less deference to the legislature, not only in fulfilment of their duty under the HRA but also because their own constitutional responsibility makes the task a necessarily congenial one. This is why Question (2) of the three I have set out is so important.
  129. The fourth and last principle is very closely allied to the third, and indeed may be regarded as little more than an emanation of it; but I think it makes for clarity if it is separately articulated. It is that greater or lesser deference will be due according to whether the subject-matter lies more readily within the actual or potential expertise of the democratic powers or the courts. Thus, quite aside from defence, government decisions in the area of macro-economic policy will be relatively remote from judicial control: see for example Ex p. Nottinghamshire CC [1986] AC 240 and Ex p. Hammersmith and Fulham LBC [1991] 1 AC 521. Though these were not, of course, human rights cases, like problems as to the deference due to the democratic decision-maker arise in relation to the proper intensity of judicial review in other contexts, such as were there in play. In the present case, I have no doubt that the social consequences which flow from the entry into the United Kingdom of clandestine illegal immigrants in significant numbers are far-reaching and in some respects complex. While the evidence before us gives more than a flavour of the problems, the assessment of these matters (and therefore of the pressing nature of the need for effective controls) is in my judgment obviously far more within the competence of government than the courts.
  130. (2) The Proper Classification of the 1999 Act Scheme

  131. I turn next to Question 2: how is the scheme of the 1999 Act to be classified – civil or criminal - according to the criteria set out in the decision of the European Court of Human Rights in Engels? I should at this stage acknowledge, as does my Lord Simon Brown LJ, the clear and comprehensive treatment of all the material background facts set out in the judgment of Sullivan J below. I also adopt with gratitude my Lord’s own summary at paragraphs 10 – 11 of his judgment. By way of further preliminary, it will make for clarity if I here set out the text of Article 6:
  132. “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
    2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
    3. Everyone charged with a criminal offence has the following minimum rights:
    (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
    (b) to have adequate time and facilities for the preparation of his defence;
    (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
    (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
  133. I hope I may be forgiven for not citing the text of Engels itself. The criteria there established are summarised by Potter LJ in Han [2001] 1 WLR 2253, 2260 at paragraph 26:
  134. “It is not in dispute between the parties that the Strasbourg case law makes clear that the concept of a ‘criminal charge’ under article 6 has an ‘autonomous’ Convention meaning: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678, para 81. There are effectively three criteria applied by the Strasbourg court in order to determine whether a criminal charge has been imposed: see Engel's case and, more recently, AP, MP and TP v Switzerland (1997) 26 EHRR 541, 558, para 39. They are: the classification of the proceedings in domestic law; the nature of the offence; and the nature and degree of severity of the penalty that the person concerned risked incurring. The Strasbourg court does not in practice treat these three requirements as analytically distinct or as a ‘three-stage test’, but as factors together to be weighed in seeking to decide whether, taken cumulatively, the relevant measure should be treated as ‘criminal’. When coming to such decision in the course of the court's ‘autonomous’ approach, factors (b) and (c) carry substantially greater weight than factor (a).”
  135. It is plain that the scheme of the 1999 Act is not classified as “criminal” as a matter of domestic law – factor (a). But this is of course by no means determinative. It is described in the Strasbourg jurisprudence as “no more than a starting point”: Engels, paragraph 82. The State cannot escape the disciplines of Article 6 applicable to criminal cases merely by adopting a non-criminal definition of the relevant subject-matter: Ozturk v Turkey (1984) 6 EHRR 409. That would undermine the Convention’s force.
  136. I turn then to the second criterion, “the nature of the offence”. On its own, that expression tells one nothing, save that the use of the term “offence” tends to beg the question in favour of a conclusion that the case is within criminal territory. However it is clear that “the nature of the offence” is to be taken as a shorthand, and also that the second and third criteria are best understood if they are read together. (I have not forgotten the observation made in Lauko (2001) 33 EHRR 40, paragraph 57, that these two criteria are alternative and not cumulative. However, examined as alternatives, they may of course both pull in the same direction.) The Strasbourg court’s judgment in Ozturk, at paragraph 53 cited at paragraph 58 in Han at pp. 704-705, suggests that these following three elements are powerful pointers in the classification of the measure under scrutiny as criminal or civil. (a) Is the conduct against which the measure is directed regarded generally as reprehensible, and thus to be condemned as unlawful? (b) Is the measure directed against conduct of a kind which any member of society might commit, or is it by definition limited to a defined and specific group? (c) Are the sanctions for which the measure provides imposed not only to deter like conduct in the future, but also to punish: that is, to exact retribution for evildoing?
  137. Of these three elements, (a) and (c) require some further exposition. As for (a), “reprehensible” is the word used by the Strasbourg court. With respect I think that our domestic application of this test should invoke the use of stronger language. I would say that the paradigm of a criminal law is one whose purpose is to condemn conduct perceived by the community at large as inherently wrongful. Crimes of violence or dishonesty are core instances, and fill much of the criminal calendar. They are crimes which potentially may be committed by anyone, so that (b), the second factor, marches with (a). And both march with (c). That is because the significance of this third factor rests in its emphasis on retributive justice. Retribution and deterrence are separated out in the jurisprudence, which plainly intends some distinction between them, though the language used more often has the adjective “punitive” alongside “deterrent”; but “punitive” here means “retributive”, otherwise the contrast makes no sense. See for example Ozturk at paragraph 53, Benendoun (1994) 18 EHRR 54 at paragraph 47, and AP v Switzerland (1997) 26 EHRR 541 at paragraphs 41 – 42. The conception of a retributive sanction, in a rational system, sits with the conception of inherent wrongdoing – conduct judged immoral by society.
  138. Plainly, however, the State sometimes chooses to apply the rigour of the criminal law to conduct not necessarily perceived as inherently wrongful or immoral. It does so when it creates relatively trivial regulatory offences, sometimes of strict liability. In such cases the courts – including the Strasbourg court – are likely to take a relatively relaxed view of provisions which impose a reverse onus of proof, or which exact fixed penalties. Conversely, there are legal regimes which, though not criminal (by the law of the State or by the autonomous Strasbourg standard), nevertheless penalise perceived wickedness. The principal instance of this is to be found in professional disciplinary codes of conduct. It is no exaggeration to say that such codes, or at least some of their content, may be likened to a private or internal criminal law. It is a grave thing for a man to be condemned for misconduct at the bar of his professional peers; graver, often, than a criminal conviction. In these cases, something not far distant from the full rigour of Article 6(2) and (3) will be applied. A powerful example of this process at work in a discipline case is to be found in the decision of the European Court of Human Rights in Albert & Le Compte v Belgium (1983) 5 EHRR 533. One may compare the decision of this court in Official Receiver v Stern [2000] 1 WLR 2230, which was concerned with directors’ disqualification proceedings.
  139. But these two classes of case, regulatory criminal offences and non-criminal professional disciplinary codes, are in their different ways atypical as instances of the usual incidents of the civil/criminal classification for the purposes of Article 6; and of course in this appeal we are neither dealing with a mere regulatory offence nor with a code of professional discipline. We must start, as my Lord Simon Brown LJ states (paragraph 34), by ascertaining the true nature of the scheme. In particular, we have to consider the vice the scheme is aimed at, or, in the language of the second Engels criterion, what is the essence of the putative “offence”. In doing so, we shall ascertain how far or close it lies to the paradigms of criminal offences.
  140. Upon that issue I think it is entirely obvious that the Crown’s concern in seeking this legislation from Parliament, and Parliament’s concern in passing it, was to prevent clandestine illegal migrants from entering this country, pure and simple. The purpose of the legislation is to achieve this end so far as possible. Whether such a migrant is let in by the negligence or connivance of a lorry-driver or owner is neither here nor there in terms of the vice the scheme is aimed at. The problems his entry creates are not bigger or smaller according to who let him in, or how, or whether he could have been stopped. The fact that honesty and due care on the part of those who own or drive the transporters will not stop the most determined entrants is neither here nor there to the purpose of the scheme. The deterrence of dishonesty and carelessness is not at the heart of it at all. Statements in Parliament about such matters, inevitably possessing the rancour and asperity of political utterance in a vigorous democracy, do not shift the reality of the Act’s purpose.
  141. The nature of the scheme as I have described it stands, in my judgment, in stark contrast to the archetypal criminal case, where what is sought to be prohibited is the doing of an act which is made inherently wrongful by its being done with a guilty mind. Take the crimes of theft and robbery. Society has no general interest in prohibiting the taking of one man’s property into the hands of another, for that may be done by a gift, by a contract, by a will. But when it is done dishonestly - theft, or by violence - robbery, society intervenes with all the force of the criminal law. The vice is the dishonesty, the violence. Take next the calendar of sexual crimes. Leaving aside the rights and interests of children it is not society’s business to interfere by the bludgeon of the criminal law with consensual sexual relations. But when one person’s sexual attentions are forced on another, who is to the perpetrator’s knowledge unwilling to receive them, the criminal law is at once and rightly engaged, from the case of a minor indecent assault to the offence of rape. Even the taking of life is not condemned simpliciter by the criminal law. Murder requires an intention to kill or do grievous bodily harm. Manslaughter requires proof of fault, of which various different kinds may qualify.
  142. All these offences are archetypes of crime – the very idea of crime - in our law. They attract the condemnation of society because they are inherently wrongful. They are therefore rightly dealt with by the imposition of retributive punishment. But ideas of that kind simply have nothing to do with the reasons for putting in place the scheme of the 1999 Act. The statute is not interested in obloquy, shame or guilt. It is not interested in retributive justice. The scheme is put in place, and put in place only, as a means towards the fulfilment of the executive’s particular responsibility to secure the State’s borders by effective immigration control. All this seems to me to be wholly consonant with, and supported by, the learning in such cases as Lee Kwong-kut [1993] AC 951, 938, and Lambert [2001] 3 WLR 206, 219, cited by my Lord Simon Brown LJ at paragraphs 35 and 36. And it marches in particular with what was said by Lord Woolf CJ in Goldsmith [2001] 1 WLR 1673 in relation to condemnation and forfeiture proceedings under s.139 of the Customs and Excise Management Act 1979 (also cited by my Lord, at paragraph 40):
  143. “… none of the usual consequences of a criminal conviction follow from condemnation and forfeiture proceedings. There is no conviction or finding of guilt. Under domestic law the person concerned is not treated as having a conviction. The person concerned is not