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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Liversidge v Anderson [1941] UKHL 1 (03 November 1941) URL: http://www.bailii.org/uk/cases/UKHL/1941/1.html Cite as: [1941] 3 All ER 338, [1941] UKHL 1, [1942] AC 206 |
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Die Lunae, 3° Novembris, 1941
Parliamentary
Archives,
HL/PO/JU4/3/968
Viscount
Maugham
Lord
Atkin
Lord
Macmillan
Lord
Wright
Lord
Romer
LIVERSIDGE
v.
SIR JOHN ANDERSON AND ANOTHER.
Viscount Maugham (READ BY LORD MACMILLAN)
MY LORDS,
2 [2]
The Regulation continues thus: —
" (lA) If the Secretary of
State has reasonable cause to believe
" any person to have
been or to be a member of, or to have been or
" to be active
in the furtherance of the objects of, any such organisa-
"
tion as is hereinafter mentioned, and that it is necessary to
exercise
" control over him, he may make an order against
that person
" directing that he be detained.
" The organisations
hereinbefore referred to are any organisation
" as respects
which the Secretary of State is satisfied that either—
" (a) the
organisation is subject to foreign influence or
" control, or
" (b) the persons in
control of the organisation have or
" have had associations
with persons concerned in the govern-
" ment of, or
sympathies with the system of government of, any
" Power
with which His Majesty is at war.
" and in either case that
there is danger of the utilisation of the
" organisation for
purposes prejudicial to the public safety, the
" defence
of the realm, the maintenance of public order, the efficient
"
prosecution of any war in which His Majesty may be engaged or
"
the maintenance of supplies or services essential to the life of
the
" community.
[3] 3
"(2) At any time after an
order has been made against any
" person under this
Regulation, the Secretary of State may direct
" that the
operation of the order be suspended subject to such
"
conditions—
" (a) prohibiting or
restricting the possession or use by
" that person of any
specified articles;
" (b) imposing upon
him such restrictions as may be
"specified in the direction
in respect of his employment or
" business, in respect of the
place of his residence, and in
" respect of his association
or communication with other
" persons;
" (c) requiring him
to notify his movements in such
"manner, at such times, and
to such authority or person as
" may be so specified;
" (d) prohibiting
him from travelling except in accordance
" with permission
given to him by such authority or person as
" may be so
specified;
" as the Secretary of State
thinks fit; and the Secretary of State
" may revoke any such
direction if he is satisfied that the person
" against whom
the order was made has failed to observe any
" condition so
imposed, or that the operation of the order can no
" longer
remain suspended without detriment to the public safety
" or
the defence of the realm.
" (3) For the purposes of
this Regulation, there shall be one or
" more advisory
committees consisting of persons appointed by the
" Secretary
of State; and any person aggrieved by the making of
" an
order against him, by a refusal of the Secretary of State to
"
suspend the operation of such an order, by any condition attached
"
to a direction given by the Secretary of State or by the revocation
"
of any such direction, under the powers conferred by this Regu-
"
lation, may make his objections to such a committee.
" (4) It shall be the duty
of the Secretary of State to secure that
" any person against
whom an order is made under this Regulation
" shall be
afforded the earliest practicable opportunity of making
" to
the Secretary of State representations in writing with respect
"
thereto and that he shall be informed of his right, whether or not
"
such representations are made, to make his objections to such an
"
advisory committee as aforesaid.
" (5) Any meeting of an
advisory committee held to consider
" such objections as
aforesaid shall be presided over by a chairman
" nominated by
the Secretary of State and it shall be the duty of
" the
chairman to inform the objector of the grounds on which the
"
order has been made against him and to furnish him with such
"
particulars as are in the opinion of the chairman sufficient to
"
enable him to present his case.
" (6) The Secretary of
State shall make a report to Parliament
" at least once in
every month as to the action taken under this
" Regulation
(including the number of persons detained under
" orders
made thereunder) and as to the number of cases, if any,
" in
which he has declined to follow the advice of any such advisory
"
committee as aforesaid.
" (7) If any person fails
to comply with a condition attached to
" a direction given by
the Secretary of State under paragraph (2)
'' of this Regulation
that person shall, whether or not the direction
" is revoked
in consequence of the failure, be guilty of an offence
"
against this Regulation.
" (8)
Any person detained in pursuance of this Regulation shall
"
be deemed to be in lawful custody and shall be detained in such
"
place as may be authorised by the Secretary of State and
in
"accordance with instructions issued by him."
4 [4]
" (a) of the grounds
upon which the first-named defen-
" dant had reasonable cause
to believe the plaintiff to be a
" person of hostile
associations; and
" (b) of the grounds
upon which the first-named defen-
" dant had reasonable cause
to believe that by reason of such
" hostile associations it
was necessary to exercise control over
" the plaintiff."
" Put in another way, if
the plaintiff admits, or it is proved, that
" the plaintiff
was detained by an Order purporting or expressed to
" be
issued under the Regulation, and duly signed as such, the
"
burden is on the plaintiff, if he is to claim damages for false im-
"
prisonment, to give evidence showing that the Order was invalid.
"
As the case proceeds at the hearing, as often happens, the onus of
"
proof may be shifted. If the plaintiff adduces evidence which
"
goes to show the invalidity of the Order, that might happen. If,
"
upon that happening, the defendants produced evidence which
"
was embarrassing to the plaintiff, by way of surprise or novelty,
"
the Judge would no doubt protect him by way of adjournment.
"
Conceivably, in a proper case, the Judge might at that stage make
"
some Order by way of Particulars of the allegations of the
"
defendants.
" These, however, are but
hypothetical considerations as to
" possible developments at
a later stage of the litigation. At this
" stage we are quite
clear that the plaintiff is wrong in his proposi-
" tion as
to the burden of proof inherently resting upon himself
" and
upon the defendants respectively."
The Court of
Appeal in October, 1940, had had to consider the
true meaning of
Regulation 18B (1) in an analogous case entitled
Rex v.
Secretary of State for Home Affairs, ex parte Lees (1941 1
KB.
72) That was an application for a writ of Habeas Corpus
by Mr.
Lees who had been detained by an Order of the Home
Secretary, Sir
John Anderson, under the Regulation 18B. Sir John
Anderson in that
case had made an affidavit stating that he had
received and
considered reports and information from persons in
responsible
positions who were experienced in investigating matters
[5] 5
of the kind under consideration
and whose duty it was to report
to him confidentially, that he had
studied the reports and come to
the conclusion that there were
clear grounds for believing and he
did in fact believe that Mr.
Lees was a member of such an organisa-
tion (stating the effect of
the affidavit shortly) as is defined in section
18B (ia). The
Court of Appeal then decided that the Court could
not act as a
Court of Appeal from the decision of the Secretary of
State and
that his affidavit proved to the satisfaction of the Court
that he
had reasonable cause to believe and did honestly believe the
matters
in question, and, that being so, the Order was validly
issued. As
I understand the judgment in the Lees case it negatived
the idea
that the Court had any power to inquire into the grounds
for the
belief of the Secretary of State (his good faith not being
impugned)
or to consider whether there were grounds on which he
could
reasonably arrive at his belief. The Court of Appeal in the
present
case was therefore precluded by the previous decision
from
considering the main point argued before your Lordships,
namely,
the question whether there were in fact reasonable grounds
for the
beliefs (a) that the appellant was a person of
hostile associations and
(b) that by reason thereof it was
necessary to exercise control over
him. In this case however the
Secretary of State who made the
Order and his successor in office
have not made any affidavit in the
action, and the appellant
therefore is entitled to contend and does
contend that the mere
production of an Order signed by the Secre-
tary of State is not a
sufficient prima facie defence to the action of
false
imprisonment and that an onus lies on the respondents to
give
evidence at the trial to prove that Sir John Anderson had
reason-
able grounds for the belief recited in the Order. That
Order
(following the language of the Regulation) is in the
following
terms: —
"DEFENCE (GENERAL)
REGULATIONS, 1939.
" DETENTION ORDER.
" WHEREAS I have reasonable cause to believe
"JACK PERLZWEIG @ ROBERT LIVERSIDGE
" to be a person of hostile
associations and that by reason thereof
" it is necessary to
exercise control over him:
" NOW, therefore, I, in
pursuance of the power conferred on me
" by Regulation 18B of
the Defence (General) Regulations, 1939,
" hereby make the
following Order: —
" 1 Direct that the above-mentioned
" JACK PERLZWEIG @ ROBERT
LIVERSIDGE
" be detained.
" (Signed) JOHN ANDERSON,
"
One of His Majesty's Principal
" Secretaries of State."
6 [6]
circumstances sufficient prima
facie proof that the Secretary of
State has acted lawfully and
that the detention of the appellant was
and is accordingly not
illegal.
. My Lords, I am not disposed,
to deny that in the absence of a
context the prima facie
meaning of such a phrase as "if A.B. has
"
reasonable cause to believe" a certain circumstance or thing,
it
should be construed as meaning "if there is in fact
reasonable cause
" for believing" that thing and if A.B.
believes it. But I am quite
unable to take the view that the words
can only have that meaning.
It seems to me reasonably clear that
if the thing to be believed is
something which is essentially one
within the knowledge of A.B.
or one for the exercise of his
exclusive discretion, the words might
well mean: if A.B. acting on
what he thinks is reasonable cause
(and of course acting in good
faith) believes the thing in question.
In the present case there are a
number of circumstances which
tend to support the latter
conclusion.
[7] 7
the defence of the realm or (c)
in the preparation or instigation of
such acts or (d) to
have been or to be a member of, or (e) to be
active in the
furtherance of the objects of, organisations which are
carefully
denned by reference to the personal decision of the Home
Secretary.
Any one of these various circumstances is sufficient to
satisfy
the first fact which the Secretary of State must believe, and
do
not doubt that a Court could investigate the question whether
there
were grounds tor a reasonable man to believe some at least of
those
facts if they could be put before the Court. But then he must
at
the same time also believe something very different in its
nature,
namely, that by reason of the first fact, "it is
necessary to exercise
"control over" the person in
question. To my mind this is so
clearly a matter for executive
discretion and nothing else that I
cannot myself believe that
those responsible for the Order in
Council could have
contemplated for a moment the possibility of
the action of the
Secretary of State being subject to the discussion,
criticism and
control of a Judge in a Court of Law. If then in the
present
case the second requisite, as to the grounds on which the
Secretary
of State can make his order for detention, is left to his
sole
discretion without appeal to a Court, it necessarily follows that
the
same is true as to all the facts which he must have reasonable
cause
to believe.
A 4
8 [8]
is at all in the same position
as for example a Police Constable. It
is not wholly immaterial to
note that the Secretary of State is pro-
vided with one or more
advisory committees (subsection (3)) and
that he has to report to
Parliament at least once in every month as
to the action taken by
him and the Orders he has made, and as to
the number of cases in
which he has declined to follow the advice
of the advisory
committee (subsection (6)). These provisions seem
to point to the
fact that the Secretary of Slate may be answerable
to Parliament
in carrying out duties of a very important and con-
fidential
nature. I have heard no explanation of the circumstance
that no
express provisions are made in the Regulation as to an
appeal from
the Secretary of State's decision unless it is the fact
that no
such appeal was intended. It seems to me that, if any such
appeal
had been thought proper, it would have been to a special
tribunal
with power to inquire privately into all the reasons for
the
Secretary's action, but without any obligation to
communicate
them to the person detained. The objections to an
appeal in a case
of mere suspicion and in time of war are not far
to seek; but how-
ever that may be, an application to the High
Court, with power to
the Judge to review the action of the
Secretary of State, seems to
be completely inadmissible, and I am
unable to see that the words
of the Regulation in any way justify
the conclusion that such a
procedure was contemplated.
[9] 9
his liberty for an uncertain
period, he must himself have considered
whether there was
reasonable cause for forming the belief which
would justify his
action. On the other hand, I suppose he might be
"satisfied"
of some fact by the report of one of his subordinates in
whom he
placed complete confidence.
I can deal much more shortly
with the question whether an onus
is thrown on the first
respondent, the Secretary of State who made
the Order for
detention, to give evidence to show that he had reason-
able cause
to believe the appellant to be a person of hostile associa-
tions
and that by reason thereof it was necessary to exercise control
over
him. The Order on its face purports to be made under the
Regulation
and it states that the Secretary of State had reasonable
cause to
believe the facts in question. In my opinion the well-
known
presumption omnia esse rite acta applies to this Order,
and
accordingly, assuming the Order to be proved or admitted, it
must
be taken prima facie, that is until the contrary is
proved, to have
been properly made and that the requisite as to
the belief of the
Secretary of State was complied with. It will be
noted that on the
view I have expressed as to the construction of
the Regulation, it is
the personal belief of the Secretary of
State that is in question, and
that if the appellant's contention
on this point were correct the
same question would arise in the
numerous cases where an execu-
tive order depends on the Secretary
of State or some other public
officer being "satisfied"
of some fact or circumstance. It has
never, I think, been
suggested in such cases that the Secretary of
State or public
officer must prove that he was so "satisfied" when
he
made the order. Just as the fact that the act of the Secretary
of
State acting in a public office is prima facie evidence that
he has
been duly appointed to his office, so his compliance with
the provi-
sion of the Statute or the Order in Council under which
he pur-
ported to act must be presumed unless the contrary is
proved.
There are scores of instances of such presumptions to he
found in
the books, none I think precisely in point, but many in
which the
principle was less necessary on the score of public
convenience than
the present. If an instance is required it may be
found in the rule
that where local authorities have made a rate
under an Act, com-
pliance with the formalities required by that
Act will be presumed
until the contrary is shown (The Queen v.
Reynolds, 1803. 2 Q B
75).
I shall not take up your
Lordships' time by dealing with the vari-
ous recent cases
relating to these Detention Orders which were quite
properly cited
to your Lordships, for the reason that they have all
been
considered and examined at length by Lord Justice Scott and
Lord
Justice Goddard in the recent case of Rex v. Secretary
of
State for Home Affairs, ex parte Greene (1941 3 KB. 104),
and I
could not usefully add anything to what they have said.
A5
Viscount
Maugham
Lord Atkin
Macmillan
Romer
[10]
LIVERSIDGE
v.
SIR JOHN
ANDERSON AND ANOTHER
GREENE
v.
SECRETARY OF STATE
FOR HOME AFFAIRS
Lord Atkin
MY LORDS,
I have prepared an
Opinion which is applicable both to the case
of Liversidge v.
Sir John Anderson and to the case of Greene v.
Secretary
of State for Home Affairs, and I will proceed to read it.
These cases
raise the issue as to the nature and limits of the
authority of
the Secretary of State to make orders that persons be
detained
under Regulation 18B of the Defence (General) Regula-
tions, 1939.
The matter is one of great importance both because
the power to
make orders is necessary for the defence of the realm;
and because
the liberty of the subject is seriously infringed: for the
order
does not purport to be made for the commission of an offence
against
the Criminal Law: it is made by an executive Minister and
not by
any kind of judicial officer: it is not made after any inquiry
as
to facts to which the subject is party: it cannot be reversed
on
any appeal: and there is no limit to the period for which
the
detention may last. The material words of the regulation are
as
follows: "If the Secretary of State has reasonable cause
to believe
" any person to be of hostile origin or
associations and that by
" reason thereof it is necessary to
exercise control over him he may
" make an order against that
person directing that he be detained."
They are simple words,
and as it appears to me obviously give only
a conditional
authority to the Minister to detain any person without
trial: the
condition being that he has reasonable cause for the
belief which
leads to the detention order. The meaning, however,
which for the
first time was adopted by the Court of Appeal in the
Greene case
and appears to have found favour with some of your
Lordships, is
that there is no condition: for the words "if the Secre-
tary
of State has reasonable cause" merely mean: if the Secretary
of
State thinks that he has reasonable cause. The result is that
the
only implied condition is that the Secretary of State acts in
good
faith. If he does that, and who could dispute it or
disputing it
prove the opposite, the Minister has been given
complete discretion
whether he should detain a subject or not.
It is an absolute
power which so far as I know has never been
given before to the
executive: and I shall not apologise for
taking some time to demon-
strate that no such power is in fact
given to the Minister by the
words in question. It is a curious
fact that in both cases in the first
emergence of the issues
raised no trace of this contention appeared.
In the Liversidge
case the only question raised is in an action for
false
imprisonment brought by the Plaintiff. Following on a defence
setting
up detention under an order of the Secretary of State the
Plaintiff
asked for particulars of the reasonable cause. The only
question
raised on the summons before the Judge in Chambers was
on the onus
of proof: and as both Courts held that the onus was
upon the
Plaintiff to show that there was no reasonable cause the
order for
particulars was refused. It is apparent that if at that time
the
Courts had accepted the present construction no question of
onus
would have arisen: for no issue as to the actual existence
of
reasonable cause could arise. In the Greene case the
application
[11] 2
was by summons for a writ of
Habeas Corpus. The Divisional
Court took the same view of the onus
as was adopted in the Liver-
sidge case: and held that in
view of the Secretary of State's affi-
davit in answer to the
Plaintiff's evidence the Court was not
satisfied that there had
been no reasonable cause. These matters
became irrelevant on the
construction adopted by the Court of
Appeal on appeal in Greene's
case. The view there taken was that
the words "reasonable
cause" cannot "properly be construed as
" imposing
an objective condition precedent of fact on which a per-
"
son detained would be entitled to challenge the grounds for the
"
Secretary of State's honest belief: ... in short, that the
condition
" is subjective not objective." This view of
the case at once disposed
of any objection to the different
grounds adopted by the Divisional
Court: and is of such
overwhelming importance compared with
the issues raised in both
cases up to that point that I proceed at once
to deal with it,
reserving till later what has to be said on the original
onus.
based on unlawful arrest is
entitled to succeed if he pleads and
proves that the imprisonment
was legally justifiable, Allen v.
3 [12]
Wright (1838) 8 C. &
P. 522; that he must show the cause of sus-
picion so that the
Court may judge of the reasonableness, Mure v.
Kaye
(1811) 4 Taunt. 34, Stammers v. Yearsley (1833) 10
Bing.
35, Haynes v. Mewis (1826) 5 LJ. (O.S.) K.B.
47; that a man direct-
ing a constable to act on a suggestion of
felony is bound to show
probable cause of suspicion, McCloughan
v. Clayton (1816) Holt
N.P. 478; that the plea must
show reasonable and probable ground
of suspicion, i.e. facts which
raise a reasonable suspicion, not all the
evidence (per Lord
Campbell, CJ.) and it is for the Court to say
whether the facts
pleaded show reasonable cause (per Wightman,
J.) Broughton v.
Jackson (1852) 18 Q.B. 378; that it is a good plea
that the
man was arrested on a reasonable suspicion of felony but
not
enough that the suspicion was bona fide, Sayer v.
Lichfold
(1854) 23 L.T. (O.S.) 324; that the civilian
Defendant must make out
a reasonable ground of suspicion and that
a felony has actually
been committed (per Lord Tenterden) Beckwith
v. Philby (1827)
6 B. & C. 635; and a more recent
affirmation of the same principles
in Wallace v. W. H.
Smith and Son (1914) I K.B. 595. In all these
cases it is
obvious that the Courts were dealing with an objective
fact to be
proved before them by the Defendant: and that their
pronouncements
would be nonsense if the inquiry had only been
whether the
Defendant believed that he had reasonable ground.
So much for the
constable's power of arrest at common law. He
and other persons
have also been armed with powers of arrest by
Statute and in all
cases the condition of reasonable cause for sus-
picion has been
enacted. I take the list of thirteen Statutes from
the valuable
work on Police Law by Dr. Moriarty, the late Chief
Constable of
Birmingham, 4th Ed., pp. 16, seq.
[13] 4
A very familiar use of the words
is in actions for malicious prose-
cution where the Plaintiff has
to establish the absence of reason-
able or probable cause in the
prosecutor for instituting the prosecu-
tion. The relevant facts
known to the prosecutor are if necessary
determined by the jury:
the Judge determines whether they con-
stitute reasonable cause.
The inquiry is "objective": and the
cause of action, if
established with the essential element of malice,
exists against
any person, rich or poor, powerful or weak, including
any member
of the executive whether Secretary of State or not. A
further use
of the words is to be found in the Directors Liability
Act, 1891,
s. 3, by which it is provided that a Director of a Company
is
liable for untrue statements unless he proves that he had
reason-
able cause to believe they were true.
I will now proceed to show that
in the Defence of the Realm
Regulations themselves the persons
responsible for the framing of
them, may I call them for this
purpose the legislators, have shown
themselves to be fully aware
of the true meaning of the words, have
clearly appreciated the
difference between having reasonable cause
to believe, and
believing without any condition as to reasonable
5 [14]
cause, and have obviously used
the words "reasonable cause" in
order to indicate that
mere honest belief is not enough. The object
is plainly that of
the common law and previous Statutes, to secure
some measure of
protection for the public by providing a condition
which if
necessary can be examined by the Courts. In the first
place, when
the decision is left to the Minister or other executive
authority
without qualification, the words omit the reference to
reasonable
cause. " If it appears to the Secretary of State that any
"
person is concerned" etc. (order as to publication, 2 C.),
"Secre-
" tary of State may if it appears to him
necessary " (order as to
giving information, 6 (3) ); "
If it appears to a Secretary of State to
" be necessary "
(order as to protected places, 12 (1)); so in 14B,
16A,18A, 21,
40B, 43B. The wording is sometimes varied with the
same result:
"If the Secretary of State is satisfied" (publication
in
newspaper, 2D), (articles likely to assist enemy, 4C.);
"Satisfied
" that it is necessary or expedient"
(prohibition of balloons 7 (2)),
(restricting movements of
persons, 18A), (organisation subject to
foreign influence, 18AA);
similar words, 35 (1), 396, 396.
1 (1) (d): "No
person shall make any signal having reasonable
" cause to
believe that it is likely to result," etc.
1 (1) (e): "No
person shall do any act having reasonable cause
" to believe
that it is likely to mislead," etc.
A: "No person shall do
any act having reasonable cause to
" believe that it will be
likely to interfere," etc.
C (2): It shall be a defence to
prove that the alleged offender
" had no intent to foment
opposition and had no reasonable cause
" to believe that the
matter published was calculated to foment,"
etc.
4: "No person shall
associate with any other person having
" reasonable cause to
believe that that other person is engaged in
" assisting the
enemy." I only pause here to inquire why this belief
as to
association is objective, as it clearly is, and precisely
similar
words in 18B used of the Secretary of State are
subjective.
7 (3): "If any
person authorised in writing by a Secretary of
" State to act
under this paragraph has reasonable grounds to
" believe that
there is in any premises apparatus," etc., he may
authorise a
search.
9 (4): "Whenever any person
finds dead a homing pigeon to
" which there is attached any
article which he has reasonable cause
" to believe to be a
means," etc.
11 (3): "The appropriate
officer may search any article which
" the traveller has with
him, and if the appropriate officer has
" reasonable ground
for suspecting that the traveller has about his
" person any
such article," etc., may search him. Could anything
be
clearer than the distinction between the unlimited power to
search
an article, and the limited power to search the person ?
[15] 6
18 (3): "The Secretary of
State may make provision by order
" for securing that any
person entering the United Kingdom—
" (a) if there is
reasonable cause to believe that he has
" come from any
territory to which this paragraph applies,
"or"
(b) if he fails to
satisfy the Secretary of State or
authorised person as to his
identity, may be detained.
I omit for the moment Regulation
18B itself, though as I shall
point out there is a direct
indication in the very words of this
particular Regulation that
the well-established meaning is being
applied.
18BB (1): "A Secretary of
State may by order provide for
" empowering any
Regional Commissioner who has reasonable
" cause to believe
any person to be" a person specified in Regula-
tion 18B "
to direct the detention of that person pending considera-
"
tion by the Secretary of State."
18BB (lA): A Secretary of State
may similarly empower any
Regional Commissioner "who has
reasonable cause to believe that
" the recent conduct of any
person" within a specified area "indi-
" cates that
that person is likely to assist the enemy, to direct the
"
detention of that person."
18D: "If any person upon
being questioned by a constable or a
" member of H.M. Forces
fails to satisfy him as to his identity or
" purposes the
constable or member of H.M. Forces may, if he has
"
reasonable ground to suspect" that he is about to act
preju-
dicially, arrest him without warrant.
25 (1): "Where, as respects
any premises, it appears to any
" officer of police" not
lower than inspector "that by reason of the
" fact (d)
that there is reasonable ground for believing that a source
"
of danger exists on the premises by reason of the presence thereon
"
of unexploded ammunition" the inspector may take steps, etc.
25 (2): "Any person
authorised by a Secretary of State, if satis-
" fied that the
chattel is contaminated by any lethal gas," etc., may
take
steps, including destruction.
Now I come to a regulation which
uses the words "reasonable
cause," and is clearly
subjective.
42 C (1): "A chief officer
of police if authorised by the Secretary
" of State may if he
is satisfied in the case of any premises in his
" district
that there is reasonable cause to believe" that the premises
are
unlawfully used, close them.
42 C (2): Any person aggrieved
may appeal to a Court of Sum-
mary Jurisdiction "and the
Court shall, if it is satisfied by the
" Appellant that there
is no reasonable cause to believe" that the
beforementioned
conditions were fulfilled, revoke the order.
42 C (3): Any constable
authorised by the chief officer of police
may search any premises
"which the chief officer of police has
"reasonable
grounds for suspecting to be premises" subject to
the
Regulation.
The difference between (1) and (3) is obvious.
56 A, as to control of building
operations: (4) It shall be a defence
for a person to prove that "
he had reasonable ground for believing
"that the cost"
would not exceed £500.
79: "If any person finds
any article which he has reasonable
"cause to believe to have
dropped from any aircraft" he shall
deliver it to a member of
H.M. Forces.
7 [16]
88 A (1): "If a Justice of
the Peace is satisfied by information
" on oath
that there is reasonable ground for suspecting" an offence
he may grant a search warrant.
88 A (2): A person authorised
may search any person "whom
" he has reasonable ground
to believe to have recently left" the
premises.
88 A (3): "If an officer of
police" not lower than Superintendent
" has reasonable
ground for suspecting" an offence and it is
impracticable to
get a warrant, he may confer a power of search.
88 B: If any constable "has
reasonable ground for suspecting
" that there is to be found
in any vehicle evidence of the commis-
" sion" of an
offence he may search the vehicle and "seize any
"
article which he has reasonable ground for believing to be evi-
"
dence," etc.
88 C: Any constable "may
arrest without warrant any person
" whom he has reasonable
ground for suspecting to have com-
" mitted" any of the
scheduled offences which include any offence
against any of the
Regulations.
90 (2): "Any person who
knowing or having reasonable cause
" to believe that another
person is guilty of an offence" assist that
person "
shall be guilty of an offence," etc.
94 (1): "Any article coming
into the possession of an executive
" authority which the
authority has reasonable ground for believing
" to be
evidence of the commission of" an offence may be retained.
I would also draw attention to
the power to "use reasonable
force" to enter premises
conferred by Reg. 89, and also by Reg.
23 AB (e), and 23
BA, compared with the power to use such force
as shall appear to
the person to be reasonably necessary in 45 (3),
45C (3), 45D (3)
and 46 (5).
I have pointed out that the
words in question have a plain and
natural meaning, that that
meaning has been invariably given to
them in statements of the
Common Law and in Statutes, that there
has been one invariable
construction of them in the Courts, and that
the Defence of the
Realm Regulations themselves clearly recog-
nise that meaning,
using different words where it is intended that
the executive
officer should have unqualified discretion. I have
not so far
called attention to the wording of 18B itself, which as I
venture
to think establishes within nine lines the distinction which
the
appellants rely on. "(lA): If the Secretary of State has
"
reasonable cause to believe any person to have been or to be a
"
member of" a certain organisation "and that it is necessary
to
" exercise control over him he may make" a detention
order. The
organisations in question are denned as follows: "Any
organisa-
" tion as respects which the Secretary of State is
satisfied that either
" (a) the organisation is subject
to foreign influence or control or
" (b) the persons in
control of the organisation have or have had
" associations
with persons concerned in the government of or
" sympathies
with the system of government of, any Power with
" which His
Majesty is at war."
The
organisations therefore are impugned if the Secretary of
State is
satisfied as to their nature: but the person is not to be
detained
unless the Secretary of State has reasonable cause to
believe that
he is a member. The contrast is all the more marked
when the words
of 18B (1) "If the Secretary of State has reason-
" able
cause to believe any person to be of hostile associations"
are
compared with the words of 18B (lA) which I have just quoted,
which
in substance say, as to (b), if the Secretary of State is
satisfied
that the persons in control of the organisation have
hostile associa-
tions. Why the two different expressions should
be used if they
have the same "subjective" meaning no
one was able to explain.
I suggest that the obvious intention was
to give a safeguard to the
[17] 8
individual against arbitrary
imprisonment Finally, if all these
considerations failed, if there
were a certain ambiguity in the words
"has reasonable cause
to believe," the question would be conclu-
sively settled by
the fact that the original form of the regulation
issued in
September, 1939, gave the Secretary of State the complete
discretion
now contended for: "The Secretary of State if satisfied,"
etc.
But it was withdrawn and published in November, 1939, in
its
present form. It is not competent to us to investigate what
political
reasons necessitated this change; but it is at least probable
that
it was made because objection had been taken to the arbitrary
power:
and it was seen that Parliament might intervene. What is
certain
is that the legislators intentionally introduced the well-
known
safeguard by the changed form of words.
9 [18]
"subjective"
construction? It is said that it could never have been
intended to
substitute the decision of judges for the decision of the
Minister:
or, as has been said, to give an appeal from the Minister to
the
Courts. But no one proposes either a substitution or an appeal.
A
judge's decision is not substituted for the constable's on the
question
of unlawful arrest: nor does he sit on appeal from the
constable.
He has to bear in mind that the constable's authority
is limited, that
he can only arrest on reasonable suspicion: and
the judge has the
duty to say whether the conditions of the power
are fulfilled. If.
there are reasonable grounds the judge has no
further duty of
deciding whether he would have formed the same
belief: any more
than if there is reasonable evidence to go to a
jury the judge is con-
cerned with whether he would have come to
the same verdict. For
instance, the Minister may have reasonable
grounds on the informa-
tion before him to believe that a person
is of "hostile origin." If so
any remedy by the Courts
either in an action for false imprisonment
or by way of Habeas
Corpus is impossible though it should sub-
sequently be proved
beyond doubt that the Minister's information
was wrong and that
the person was of purely British origin. The
only remedy for such
a mistake is to bring objections before the
advisory committee,
whose advice is not binding, and to make
representations to the
Minister himself.
But it is
said the grounds of belief will or may be confidential
matters of
public importance and that it is impossible to suppose
that the
Secretary of State was intended to disclose either his
grounds or
his information to the Court. My Lords, the objection
is answered
by the very terms of the regulation itself. By sub-
sections (4)
and (5) the detained person has the right to make
objections to an
advisory committee, and it is the duty of the chair-
man "to
inform the objector of the grounds on which the order has
"
been made against him and to furnish him with such particulars
"
as are in the opinion of the chairman sufficient to enable him to
"
present his case." These grounds and particulars must of
course
be furnished to the chairman by the Secretary of State, for
other-
wise the chairman has no means of knowledge. What are
these
grounds and these particulars but the very facts
constituting the
"reasonable cause" which on the true
construction might have to
be investigated by the Court? I find
myself unable to comprehend
how it can be compulsory, as it is, to
furnish the objector before the
committee with the grounds and
particulars, and yet impossible in
the public interest to furnish
the objector with them in Court. The
supposed difficulty is
grossly exaggerated, even if it is not a fantasy.
The present case
of Greene illustrates this. On May 22, 1940, he
was
detained under an order which recited that the Home Secretary
had
reasonable cause to believe him to be a person of hostile
asso-
ciation and that by reason thereof it was necessary to
exercise con-
trol over him. On July 15. 1940, he was served with
a document
headed " Home Office, Advisory Committee, 6
Burlington Gardens,
' W.1. Reasons for order under Defence
Regulation 18B in the case
' of Benjamin Greene. The order under
Defence Regulation 18B
' was made against you for the following
reasons. The Secretary of
' State has reasonable cause to believe
that you have been recently
' concerned in acts prejudicial to the
public safety and the defence
' of the realm and in the
preparation and instigation of such acts
' and that it is
necessary to exercise control over you. Particulars."
Then
follow six paragraphs of particulars referring to his being
concerned
in the management and control of two named organisa-
tions and of
the nature of speeches and writings of his, that he was
privy to
the activities of a named person in the publication of pro-
German
propaganda in a named periodical, that he was subsequent
to the
outbreak of the war communicating with persons in Germany
concerned
in the government of Germany, that he was desirous of
establishing
a National Socialist regime in Great Britain with the
assistance,
if received, of German armed forces, that he freely
[19] 10
associated with persons of
German nationality who he had reason
to believe were agents of the
German Government, and that there
was reasonable cause to believe
that he desired and intended to con-
tinue the actions aforesaid.
It is true that the "reason" given was
not that stated
in the order, but it is explained that this was a mis-
take, and
the "particulars" are vouched in an affidavit of the
Home
Secretary as particulars of the original reason of "hostile
"
association." It is obvious that no important reasons of
State
prevented the Home Secretary from disclosing the causes of
his
belief. But it is said that the sources of his information
may be
confidential. I think this in some cases is likely to be
so: but I can-
not think that this creates any difficulty. The
Home Secretary has
the right to withhold evidence that he can
assure the Court is con-
fidential and cannot in the public
interest be disclosed. He has in
this case and in others sworn
affidavits to the effect that the infor-
mation he acted on was
the result of reports and information from
persons in responsible
positions experienced in investigating matters
of this kind: and
that he accepted their information. Before the
era of
"subjective" cause, and indeed afterwards, the
Divisional
Court and the Court of Appeal have accepted these
affidavits as
satisfactory proof of the existence of reasonable
cause. This was
not a view favoured by the Attorney General in
the present case, for
it weakens his case as to public mischief.
But in fact if the affidavits
are supported by statements by or on
behalf of the Secretary of
State vouching the necessity of
withholding the names of the wit-
nesses in the public interest, I
personally agree with the former
decisions and cannot see why if
the Courts believe the Home Secre-
tary and accept the substance
of the information as constituting
reasonable cause they should
not be satisfied that reasonable cause
has been shown. The source
of the information is merely a question
going to the credibility
of the person informed, and no doubt to the
issue of
reasonableness. But in police matters it is often withheld:
and
if for instance a constable defending an action for
false
imprisonment or wrongful arrest were to give in evidence
that an
informant whom he believed and had proved to be
trustworthy
had told him that the Plaintiff was present at the
scene of the felony
in incriminating circumstances and the
constable was corroborated
by his inspector and sergeant but he
declined to give the name of
the informant, I think it clear that
the Court might accept the
evidence as proving reasonable cause
for suspicion. I agree with
the Divisional Court in the case of
Greene, accepting what appears
at that time to be the
contention of the Home Secretary, that the
Home Secretary's
affidavit establishes the particulars as consti-
tuting reasonable
cause; I think that the members of the Court of
Appeal, though
infected with the "subjective" virus, took the
same
view. In addition to this it must be remembered that by
section
6 of the Emergency Powers (Defence) Act, 1939, there is
complete
power in the Court to order proceedings to be heard in
camera,
and to prohibit the disclosure of any information con-
cerning
them. I cannot believe that proceedings for false imprison-
ment
or for a writ of Habeas Corpus present more difficulties of
this
kind than does the trial of a spy. Lastly, on this question
of
expediency I would recall that for months after the
regulation
came into force this suggested difficulty never
presented itself to
the minds of the Home Secretary and his
advisers: but on the
contrary in ex parte Lees (1941), 1
K.B. 72, the Home Secretary
when represented by the present
Solicitor-General and the same
junior counsel as in this case
frankly accepted the burden of
proving reasonable cause.
11 [20]
unconditional. But how
unconvincing this appears. These safe-
guards are nothing compared
with those given to a man arrested by
a constable, who must at
once be brought before a judicial tribunal
who investigates the
case in public. And yet the constable or any-
one else empowered
to arrest on reasonable cause is liable to an
action if he has
exceeded his authority.
I view with apprehension the
attitude of judges who on a mere
question of construction, when
face to face with claims involving
the liberty of the subject,
show themselves more executive-minded
than the executive. Their
function is to give words their natural
meaning, not perhaps in
war time leaning towards liberty, but
following the dictum of
Pollock C.B. in Bowditch v. Balchin (1850,
5 Ex.
378), cited with approval by my noble and learned friend
Lord
Wright in Barnard v. Gorman (1941, 3 All E.R., at p. 55),
"
in a case in which the liberty of the subject is concerned, we
"
cannot go beyond the natural construction of the Statute."
In
this country amidst the clash of arms the laws are not silent.
They
may be changed, but they speak the same language in war as
in
peace. It has always been one of the pillars of freedom, one of
the
principles of liberty for which on recent authority we are
now
fighting, that the judges are no respecters of persons and
stand
between the subject and any attempted encroachments on
his
liberty by the executive, alert to see that any coercive
action is
justified in law. In this case I have listened to
arguments which
might have been addressed acceptably to the Court
of Kings Bench
in the time of Charles I.
I protest,
even if I do it alone, against a strained construction
put upon
words with the effect of giving an uncontrolled power
of
imprisonment to the Minister. To recapitulate. The words
have only
one meaning: they are used with that meaning in state-
ments of
the common law and in statutes; they have never been
used in the
sense now imputed to them: they are used in the
[21] 12
defence regulations in the
natural meaning: arid when it is in-
tended to express the meaning
now imputed to them, different arid
apt words are used in the
defence regulations generally and in this
regulation in
particular. Even if it were relevant, which it is not,
there is no
absurdity or no such degree of public mischief as would
lead to a
non-natural construction.
I know of only one authority
which might justify the suggested
method of construction. "When
I use a word," Humpty Dumpty
said in rather a scornful tone,
" it means just what I choose it to
" mean, neither more
nor less." "The question is," said Alice,
"
whether you can make words mean different things." "The
"
question is," said Humpty Dumpty, "which is to be master—
"
that's all." (Looking Glass, c. vi.) After all this long
discussion
the question is whether the words "If a man has"
can mean "If
" a man thinks he has." I am of
opinion that they cannot, and
that the case should be decided
accordingly.
[22]
13
of State appears to have been
ready to meet the allegation of
absence of reasonable cause. He
referred to his order, to the par-
ticulars given by the
advisory committee, which he insists were
correct, and he made the
affidavit already referred to that he acted
on the information of
reliable informants. His affidavit does not
claim privilege in the
correct form; but he instructed the Attorney-
General on his
behalf to claim privilege which in this case, in the
absence of
any objection to this