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Cite as: [1941] 3 All ER 338, [1941] UKHL 1, [1942] AC 206

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JISCBAILII_CASE_IMMIGRATION JISCBAILII_CASE_CONSTITUTIONAL

    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,

    By this Appeal the appellant, so far as form is concerned, is seek-
    ing merely to have certain particulars from the defendants, the
    present Secretary of State for Home Affairs and his predecessor in
    that office, of their defence in an action of false imprisonment. The
    learned Master, the Judge in Chambers (Tucker, J.), and the Court
    of Appeal (Mackinnon, L.J., Luxmoore, L.J., and du Parcq, L.J.)
    have all held that the appellant is not entitled to any of the particu-
    lars he claims. In such a case this House would not generally
    speaking entertain an Appeal, but the circumstances are excep-
    tional. The real object of the application is to raise at this early
    stage the vital question as to what onus, if any, lies on the
    respondents as defendants in the action in the circumstances of the
    case. The appellant is a person who was detained by an Order
    made by Sir John Anderson as Home Secretary on the 26th May,
    1940, under Regulation 18B of the Defence (General) Regulations,
    1939. The detention has been continued by the present Home
    Secretary. The validity of that detention has been raised in the
    action in which the appellant claims damages for false imprisonment.
    and consequential relief. Such an action used to be described as an
    action for trespass vi et armis. The general rule of law in these
    cases is well stated by Abbot, C.J., delivering the judgment of the
    Court in Doswell v. Impey (1823, 1 B. & C. 163 at p. 169). If, he
    says, persons having a limited authority "do any act beyond the
    " limit of their authority, they thereby subject themselves to an
    " action of trespass: but if the act done be within the limit of their
    " authority, although it may be done through an erroneous or mis-
    " taken judgment, they are not thereby liable to such action." The
    respondents rely on the Order for the detention of the appellant
    above referred to. If it is valid the action must clearly fail. The
    appellant accordingly seeks to throw on the respondents the burden
    of justifying the Order. It will be convenient shortly to state the
    pleadings in order to show how as a matter of pleading the question
    of particulars arises.

    The appellant (plaintiff) claimed by his writ dated the 6th March,
    1941, a declaration that his detention in Brixton Prison was and is
    unlawful, and damages for false imprisonment. Paragraph 2 of the
    Statement of Claim alleges that the first defendant was, and the
    second defendant now is, His Majesty's Home Secretary. Para-
    graphs 3, 4 and 6 of the Statement of Claim are as follows: "(3) By
    " a document dated the 26th May, 1940, and expressed to be a
    " Detention Order under Regulation 18B of the Defence (General)
    " Regulations, 1939, the first-named defendant ordered and directed
    " that the plaintiff be detained. (4) In consequence and by reason
    " of the said Order and direction the plaintiff was on or about the
    " 29th day of May, 1940, arrested, and he has since been and still is
    " detained and imprisoned at H.M. Prison at Brixton. (6) In the
    " premises the defendants have and each of them has caused and
    " procured the unlawful detention and imprisonment of the plaintiff
    " and the second-named defendant continues and intends to con-
    " tinue the same." Paragraph 3 of the Defence is: "The defendants
    " admit that the first-named defendant ordered that the plaintiff
    " should be detained under Regulation 18B of the Defence (General)
    " Regulations. 1939"; and paragraph 5 of the Defence is: "None
    " of the allegations contained in paragraph 6 of the Statement of
    " Claim is admitted. Save as above expressly admitted, none of
    " the allegations contained in the Statement of Claim is admitted."

    2 [2]

    It is desirable to state so far as relevant the Act of Parliament
    and the Regulations under which the Order for detention (or the
    document purporting to be such an Order) was made.

    By section 1 (1) of the Emergency Powers (Defence) Act, 1939,
    it was provided that His Majesty by Order in Council "may make
    " such Regulations ... as appear to him to be necessary or ex-
    " pedient for securing the public safety, the defence of the realm,
    " the maintenance of public order and the efficient prosecution of
    " any war in which His Majesty may be engaged, and for main-
    " taining supplies and services essential to the life of the com-
    " munity."

    By subsection (2) it was enacted that "without prejudice to the
    " generality of the powers conferred by the preceding subsection,
    " Defence Regulations may, so far as appears to His Majesty in
    " Council to be necessary or expedient tor any of the purposes
    " mentioned in that subsection" make provision for a number of
    important purposes including regulations "for the detention of
    " persons whose detention appears to the Secretary of State to be
    " expedient in the interests of the public safety or the defence of
    " the realm". The regulations authorised by the Act are clearly
    of the widest possible character and may affect not only the liberty
    but also the property of all subjects, with a certain limit as regards
    authorising conscription and as to extending the powers of courts-
    martial (subsection (3)). The Emergency Powers (Defence) Act,
    1940, gives even greater powers to the Crown. It was under the
    provisions of the Act of 1939 that the Defence (General) Regula-
    tions, 1939, were made; and they have been from time to time
    amended.

    Regulation 18B of the Defence (General) Regulations, 1939,
    referred to in paragraph 3 of the Statement of Claim, and in para-
    graph 3 of the Defence, is in the following terms: "If the Secretary
    " of State has reasonable cause to believe any person to be of hostile
    " origin or associations or to have been recently concerned in acts
    " prejudicial to the public safety or the defence of the realm or
    " in the preparation or instigation of such acts 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." That
    is the material subsection in the present case.

    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]

    On the 29th April, 1941, the appellant applied to the Master in
    Chambers (inter alia) for the following particulars, namely, par-
    " ticulars in writing of the allegation in paragraph 3 of their
    " Defence that the first-named defendant ordered that the plaintiff
    " should be detained under Regulation 18B of the Defence
    " (General) Regulations, 1939: —

    " (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."

    On the 8th May, 1941, Master Moseley heard the application and
    refused to make any order thereon. The appellant appealed from
    the said refusal and on the 23rd May, 1941, Mr. Justice Tucker sit-
    ting as Judge in Chambers dismissed the appeal but gave the
    appellant leave to appeal to the Court of Appeal. The appellant
    appealed to the Court of Appeal and the appeal was heard before
    Lords Justices Mackinnon, Luxmoore and du Parcq on the nth
    and 12th June, 1941. The judgment of the Court was delivered by
    Lord Justice Mackinnon. It was held by the Court that on the
    Detention Order being proved or admitted the onus was on the
    plaintiff to prove that the Order was invalid. It should be men-
    tioned that the good faith of the Secretary of State is not challenged.
    The judgment proceeded as follows: —

    " 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."

    On this view it naturally followed that the appellant at the present
    stage was not entitled to any of the particulars he is claiming, and
    the appeal was dismissed.

    Having regard to the great importance of the questions arising
    out of Orders for detention under Regulation 18B of the Defence
    (General) Regulations, the appellant was given leave to appeal to
    your Lordships' House on the 21st July, 1941.

    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."

    This point as to the evidence is perhaps not directly relevant on the
    question of particulars, but it was raised and dealt with in the Court
    of Appeal, and both sides have desired your Lordships to express
    your opinion on it. I propose first to deal with the important ques-
    tion of the construction of the words in the Regulation, "If the
    " Secretary of State has reasonable cause to believe", etc. that is,
    the question whether, as the appellant contends, the words require
    that there must be an external fact as to reasonable cause for the
    belief, and one therefore capable of being challenged in a Court of
    law, or whether, as the respondents contend, the words, in the con-
    text in which they are found, point simply to the belief of the
    Secretary of State founded on his view of there being reasonable
    cause for the belief which he entertains. Secondly, I shall express
    my opinion on the question (which strictly speaking would not arise
    till the trial) whether the Order of the Secretary of State is in the

    16083 A 2

    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.

    Before dealing with the construction of the Regulation, it is
    desirable to consider how the matter should be approached. The
    appellant's counsel truly say that the liberty of the subject is in-
    volved. They refer in emphatic terms to Magna Carta and the
    Bill of Rights, and they contend that legislation dealing with the
    liberty of the subject must be construed, if possible, in favour of the
    subject and against the Crown. Adopting the language of Lord
    Finlay, L.C., in this House in the case of Rex v. Halliday (1917
    A.C. 260 at p. 271) I hold that the suggested rule has no relevance
    in dealing with an executive measure by way of preventing a public
    danger when the safety of the State is involved. The language
    of the Act of 1939 (above cited) shows beyond a doubt that
    Defence Regulations may be made which must deprive the
    subject "whose detention appears to the Secretary of State to
    " be expedient in the interests of the public safety" of all his
    liberty of movement while the regulations remain in force.
    There can plainly be no presumption applicable to a regulation
    made under this extraordinary power that the liberty of the person
    in question will not be interfered with, and equally no presumption
    that the detention must not be made to depend (as the terms of the
    Act indeed suggest) on the unchallengable opinion of the Secretary
    of State. The Legislature obviously proceeds on the footing that
    there may be certain persons against whom no offence is proved
    nor any charge formulated, but as regards whom it may be ex-
    pedient to authorise the Secretary of State to make an order for
    detention. The only safeguards, if they be safeguards, is that
    detention "appears to the Secretary of State to be expedient in the
    " interests of the public safety or the defence of the realm," and
    that he himself is subject to the control of Parliament. It should be
    added, that as in Halliday's case, the power we are here concerned
    with is to take preventive measures in the nature of internment
    which will last only for a limited time. (See section 11 of the Act.)
    There is no charge against the appellant.

    My Lords, I think we should approach the construction of Regu-
    lation 18B of the General Regulations without any general pre-
    sumption as to its meaning except the universal presumption,
    applicable to Orders in Council and other like instruments, that, if
    there is a reasonable doubt as to the meaning of the words used,
    we should prefer a construction which will carry into effect the
    plain intention of those responsible for the Order in Council rather
    than one which will defeat that intention.

    . 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.

    First, section 18B (1) and section 18B (1a) alike require the
    Secretary of State to have reasonable cause to believe two different
    things. Taking the first subsection, he must in the first place believe
    the person (a) to be of hostile origin or associations, or (b) to have
    been, recently concerned in acts prejudicial to the public safety or

    [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.

    Secondly, it is admitted that the Home Secretary can act on hear-
    say and is not required to obtain any legal evidence in such a case,
    and clearly is not required to summon the person whom he pro-
    poses to detain and to hear his objections to the proposed Order.
    Since the Home Secretary is not acting judicially in such a case, it
    would be strange if his decision could be questioned in a Court of
    Law.

    Thirdly, and this is of even greater importance, it is obvious that
    in many cases he will be acting on information of the most con-
    fidential character, which could not be communicated to the person
    detained or disclosed in Court without the greatest risk of prejudic-
    ing the future efforts of the Secretary of State in this and like
    matters for the defence of the realm. A very little consideration
    will show that the power of the Court (under section 6 of the Act)
    to give directions tor the hearing of proceedings in camera would
    not prevent confidential matters from leaking out, since such
    matters would become known to the person detained and to a
    number of other persons. It seems to me impossible for the Court
    to come to a conclusion adverse to the opinion of the Secretary of
    State in such a matter. It is beyond dispute that he can decline to
    disclose the information on which he has acted on the ground that
    to do so would be contrary to the public interest, and that this
    privilege of the Crown cannot be disputed. It is not ad rem on
    the question of construction to say in reply to this argument that
    there are cases in which the Secretary of State could answer the
    attack on the validity of the order for detention without raising the
    point of privilege. It is sufficient to say that there must be a large
    number of cases in which the information on which the Secretary
    of State is likely to act will be of a very confidential nature. That
    must have been plain to those responsible in advising His Majesty
    in regard to the Order in Council ; and it constitutes in my opinion
    a very cogent reason for thinking that the words under discussion
    cannot be read as meaning that the existence of "reasonable
    " cause " is one which may be discussed in a Court which has not
    the power of eliciting the facts which in the opinion of the Secretary
    of State amount to "reasonable cause."

    Fourthly, it is to be noted that the person who is primarily en-
    trusted with these most important duties is one of the Principal
    Secretaries of State, and a member of the Government answerable
    to Parliament for a proper discharge of his duties. I do not think he

    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.

    The main argument for the appellant, apart from the contention
    as to the principle of construction applicable to a case where the
    liberty of the subject is concerned which I have already dealt with,
    is based upon the difference of language used as regards the belief
    of the Secretary of State in different sections of the Regulations, and
    indeed in different parts of Regulation 18B. Thus it is pointed out
    that in several places and in particular in section 18B (IA), the
    Secretary of State is only required to be "satisfied" of something.
    (See for example Regulations 2D and 18A (1)). In these cases it is
    conceded that there is no recourse to the Court provided of course
    that the Secretary of State acts in good faith. The different phrase
    "has reasonable cause to believe" points, it is said, to a different
    standard and a different meaning. (For examples see Regulations
    lA, 2C (2), and 18B.) It is added that the present Regulation 18A
    is not the original regulation, but a new regulation (see S. R. and O.
    1939 (No. 1681), bearing date the 23rd November) replacing the
    words in the original clause, which ran thus: "The Secretary of
    " State if satisfied with respect to a particular person that with a
    " view to preventing him acting in any manner prejudicial to the
    " public safety or the defence of the realm it is necessary to do so
    " may "inter alia" make an order directing that he be detained."
    It is apparent that this is an earlier and not very perfect attempt at
    the present regulation, which entirely supersedes it.

    These considerations are not without weight, though three
    observations fall to be made. The first is that Orders in Council
    making regulations pursuant to an Act of Parliament do not in
    general receive the same attention and scrutiny as Statutes, and it
    is important to remember that though they may be annulled, they
    cannot be amended in either House (see section 8 of the Act), so that
    errors in language if detected cannot be corrected. There are of
    course no three Readings and no Committee Stage in either House
    In my opinion it would be a mistake to attribute the same force to
    an alteration of language in an amending Order in Council as in an
    amending Statute. The second observation is that even in Statutes
    changes of words often occur without a change of meaning
    The third observation is that the words "has, reasonable cause
    to believe" are not without a probable meaning. It may well have
    been thought desirable to draw the attention of the Secretary of
    State to the fact that in certain cases, and in particular in cases in
    which he was considering the serious step of depriving a person of

    [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.

    Apart however from these considerations, I am of opinion that
    the arguments above enumerated in favour of the construction for
    which the Attorney-General contends must greatly outweigh any
    arguments which your Lordships have heard on the other side and
    that his construction must prevail. The result is that there is no
    preliminary question of fact which can be submitted to the Courts
    and that in effect there is no appeal from the decision of the Secre-
    tary of State in these matters provided only that he acts in good
    faith. It follows, and it is not disputed by the appellant's counsel,
    that on this view the application for particulars must fail.

    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.

    In my opinion the present Appeal should be dismissed with costs
    and I move your Lordships accordingly.

    A5

    Viscount
    Maugham


    Lord Atkin

    Lord

    Macmillan

    Lord
    Wright

    Lord

    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.

    It is surely incapable of dispute that the words "If A has X"
    constitute a condition the essence of which is the existence of X
    and the having of it by A. If it is a condition to a right (including
    a power) granted to A, whenever the right comes into dispute the
    tribunal, whatever it may be, that is charged with determining the
    dispute must ascertain whether the. condition is fulfilled. In some
    cases the issue is one of fact: in others of both fact and law. But in
    all cases the words indicate an existing something the having of
    which can be ascertained. And the words do not mean and cannot
    mean "if A thinks that he has." "If A has a broken ankle" does
    not mean and cannot mean " if A thinks that he has a broken
    "ankle": "if A has a right of way" does not mean and cannot
    mean "if A thinks that he has a right of way." "Reasonable cause"
    for an action or a belief is just as much a positive fact capable of
    determination by a third party as is a broken ankle or a legal right.
    If its meaning is the subject of dispute as to legal rights then ordi-
    narily the reasonableness of the cause, and even the existence of
    any cause, is in our law to be determined by the Judge and not by
    the tribunal of fact if the functions deciding law and fact are
    divided. Thus having established as I hope that the plain and
    natural meaning of the words "having reasonable cause" imports
    the existence of a fact or state of facts and not the mere belief by
    the person challenged that the fact or state of facts existed, I
    proceed to show that this meaning of the words has been accepted
    in innumerable legal decisions for many generations: that "reason-
    "able cause" for a belief, when the subject of legal dispute, has
    been always treated as an objective fact to be proved by one or
    other party and to be determined by the appropriate tribunal. I
    will go further and show that until June or July of this year in
    connection with this Regulation 18B, there never has been any
    other construction even submitted to the Courts in whatever context
    the words are found.

    The power of arrest is confided by the common law both to con-
    stables and to private individuals. The constable has power within
    his district to arrest a person on reasonable suspicion of his having
    committed a felony. The private individual has power on two
    conditions (1) That a felony has actually been committed; (2)
    That there is reasonable and probable cause of suspecting the per-
    son arrested. In these cases the grounds for suspicion must be
    brought before the Court: the onus is on the person who arrested to
    prove the reasonable grounds: and the issue of whether the cause
    is reasonable or not is to be determined by the Judge. These pro-
    positions will be found in any elementary text book. I will refer
    to authority that the Defendant in an action for false imprisonment

    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.

    Aliens Restriction Acts, 1914 and 1919, Aliens Order, 1920,
    Article 19: Any person who acts in contravention of this order or
    is reasonably suspected of having so acted may be arrested without
    warrant by any constable.

    Diseases of Animals Act, 1894, s. 43: A constable may stop and
    detain any person reasonably suspected of having engaged in
    committing an offence against the Act.

    Army Act, 1881, s. 154: On reasonable suspicion a deserter or
    absentee without leave may be arrested without warrant.

    Children and Young Persons Act, 1933, s. 13: A constable may
    arrest without warrant any person whom he has reason to believe
    has committed an offence if he believes such person will abscond.
    Note the two beliefs, one qualified, the other not.

    Criminal Law Amendment Act, 1912, s. 1: A constable may
    arrest without warrant any person whom he shall have good cause
    to suspect of having committed any offence.

    Dangerous Drugs Act, 1920, s. 14: Any constable may arrest
    without warrant any person who is reasonably suspected by the
    constable of haying committed an offence if he has reasonable
    ground for believing that that person will abscond. Note by
    contrast Firearms Act, 1937, s. 6: If any person refuses to give
    his name or address or is suspected of giving a false name or address
    or of intending to abscond the constable may arrest him without
    warrant.

    Municipal Corporations Act, 1882, s. 193: A borough constable
    may while on duty arrest any idle or disorderly person whom he
    has just cause to suspect of intention to commit a felony.

    Official Secrets Act, 1911, s. 6: Any person who is reasonably
    suspected of having committed an offence may be arrested without
    warrant.

    Pawnbrokers Act, 1872, s. 34: A pawnbroker may detain any
    person offering in pawn any article which he reasonably suspects
    to have been stolen.

    Penal Servitude Act, 1891, s. 2 (1): Any constable may arrest
    without warrant any holder of a convict's licence whom he
    reasonably suspects of having committed any offence.

    [13] 4

    Offences against the Person Act 1861, s. 66, and Malicious
    Damage Act, 1861, s. 57: Any constable may arrest without warrant
    any person whom he shall find loitering in any highway whom he
    shall have good cause to suspect of having committed or being
    about to commit any felony mentioned in the Acts.

    Road Traffic Act, 1930, s. 28: A constable may arrest without
    warrant any person reasonably suspected of taking a motor vehicle
    without the owner's consent.

    Can any person doubt that in respect of these powers given by
    statute to arrest for suspicion or belief of offences or intentions to
    commit offences other than felonies, the constable is in exactly the
    same position as in respect of his common law power to arrest on
    reasonable suspicion of felony, and that there is an "objective"
    issue in case of dispute to be determined by the Court ? No other
    meaning has ever been suggested. The words moreover do not
    relate merely to powers of arrest. In any context in which they are
    used they give rise to a similar issue of law or fact cognisable by the
    Court. By the Criminal Law Amendment Act, 1922, s. 2,
    " Reasonable cause to believe that a girl was of or above the age
    " of sixteen years shall not be a defence to a charge under
    " sections 5 or 6 of the Criminal Law Amendment Act, 1885.
    " Provided that in the case of a man of twenty-three years of age
    " or under the presence of reasonable cause to believe that the girl
    " was over the age of sixteen years shall be a valid defence on the
    " first occasion on which he is charged with an offence under this
    " section." It is well settled that the onus of proving reasonable
    cause for belief is on the accused: and that the section means that
    the accused had reasonable cause to believe and did believe. It
    is so much an "objective" fact that in this case reasonable belief
    is left to the jury. The subjective test would startle any Judge
    versed in trying crimes. Similarly by the Age of Marriage Act,
    1929, s. 6, which avoids marriage where either party is under
    sixteen it is a defence in proceedings under the Criminal Law
    Amendment Act for the accused to prove that he had reasonable
    cause to believe that the girl was his wife.

    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.

    So far I have sought to establish that the words in question are
    not ambiguous, that they have only one plain and natural meaning,
    that with that meaning the words have been used at common law
    and in numerous Statutes, and that whenever they are used the
    Courts have given them the meaning I suggest, have considered
    that they give rise to a justiciable issue, and that as to the "sub-
    '' jective" meaning now contended for by the Secretary of State
    t has never at any time occurred to the minds of counselor judges
    that the words are even capable of meaning anything so fantastic.

    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.

    In all these cases it is plain that unlimited discretion is given to the
    Secretary of State, assuming as everyone does that he acts in good
    faith. Now let us examine the regulations which import the words
    "reasonable cause," some in reference to the commission of an
    offence, some to a defence to a charge, and some to the powers given
    to executive officers to do acts for the protection of the State. There
    are as many as 23, and I take them in numerical order, but it will
    be obvious to which class they belong.

    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.

    1. A: "No person shall do any act having reasonable cause to
      " believe that it will be likely to interfere," etc.

    2. 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 ?

    This is made plainer by the express and unconditional power
    given by 12 (3): .Any constable may search any person entering a
    protected place.

    [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.

    Note that the detention may be by an authorised person: the
    distinction between the conditions in (a) and (b) is obvious.

    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.

    Note that the limitation as to reasonable cause in respect of
    premises is not imposed in the case of chattels.

    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.

    If then the natural construction of the words indicates an objec-
    tive condition to the power of the Minister to detain, whose exist-
    ence must therefore in case of dispute be cognisable by a Court of
    Law, what room is there for any other construction? I will deal
    with the suggested inconvenience to the Minister or possible preju-
    dice to the interests of the State later on. I venture to quote the
    words of the present Lord Chancellor in Barnard v. Gorman (1941)
    3 A.E.R. 45, a case turning on the meaning of the word "offender"
    in a section of the Customs Consolidation Act, 1876. "Our duty in
    ' the matter is plain. We must not give the statutory words a wider
    ' meaning merely because on a narrower construction the words
    ' might leave a loophole for frauds against the Revenue. If on the
    ' proper construction of the section that is the result it is not for
    ' judges to attempt to cure it. That is the business of Parliament."
    In that case the words were that "the offender may be either
    " detained or proceeded against by summons"; and the question
    was whether the word "offender" necessarily connoted that the
    person detained had in fact committed an offence, or included a
    person who was reasonably suspected of having committed an
    offence. Inasmuch as the very words referred to proceeding by
    summons which necessarily involved an investigation into the guilt
    or not of the person in question, it was considered by all the mem-
    bers of this House quite clear that the word was capable of both
    meanings, and could not have been used in the same sentence in
    the narrower meaning for detention and the broader for summons.

    The Respondents sought to find support in the decision in
    R. y. Halliday (1917, A.C. 260), in which this House affirmed a
    decision of the Court of Appeal and of a Divisional Court of which
    I happened to be a member. In that case the regulation undis-
    putedly gave to a Secretary of State unrestricted power to detain
    a suspected person, though only on the recommendation of an
    advisory committee presided over by a judge. The argument for
    the Appellant was that the regulation was ultra vires because,
    though the words of the Defence of the Realm Act under which that
    regulation was made were plainly wide enough to enable a regula-
    tion to be made giving unrestricted powers, yet they ought to be
    read with a limitation in favour of liberty. Every judge who dealt
    with the case, including the noble Lords, refused to limit the natural
    meaning of the words, pointing out that a state of war would itself
    tend to confine the construction to the plain meaning of the words,
    and would discourage any attempt to make the words lean in
    favour of liberty. What that case has to do with the present I cannot
    see. No one doubts that the Emergency Powers (Defence) Act,
    1939, empowers His Majesty in Council to vest any Minister with
    unlimited power over the person and property of the subjects.
    The only question is whether in this regulation they have done so.

    In the present case there is in the first place no ambiguity at
    all. And in the second place, even if it were open to a judge to
    consider the question of expediency, what are the suggested
    grounds which compel him to adopt the hitherto unheard of

    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.

    It was further said that the provision of safeguards in the regula-
    tion itself, the resort to the advisory committee, the providing of
    "reasons and particulars", the right to make representations to the
    Secretary of State, indicate that the original power to detain was

    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.

    What appears to me to be the only argument as to expediency
    put forward by the Respondent which has any weight was that
    derived from the second point of the powers given: "reasonable
    " cause to believe . . . that by reason thereof it is necessary to
    " exercise control over him." Adroitly the Attorney General dealt
    with this first. Can it be supposed, he said, that it was intended that
    the accumulated experience, instinct, knowledge of the Minister in
    coming to a decision on this matter could be replaced by a judg-
    ment of a Court of Law ? But first things first. Before this decision
    is made there has to be a valid belief that the subject was of hostile
    origin, association, etc. Once this is established it is very unlikely
    that a Court would not in most cases accept as reasonable the Home
    Secretary's decision to detain. But even on this part of the
    machinery for detention there is ample scope for an independent
    inquiry. Let us take the case of "hostile origin." If a man or a
    woman of hostile origin made the case that he or she had been loyal
    subjects for 30 or 40 years, were supporters of this country's war
    effort and had never taken any part in any hostile activity, would
    it not be open to the Courts to consider whether by reason of the
    hostile origin it was necessary to control them? Could the Home
    Secretary support a mere order to detain all persons of hostile
    origin regardless of age, sex or antecedents? Or could he support
    an order against a subject who had been a member of an organisa-
    tion which the Home Secretary was satisfied was now within lA
    (a) or (b) but had ceased to be for years and had genuinely dis-
    claimed any sympathy with its present objects? It must be remem-
    bered that at the time of the issue of the regulation organisations of
    both left and right were under suspicion, and there may well have
    been good reasons for granting protection to persons who had
    merely at some time or other been members of them without more.

    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.

    If it be true, as for the foregoing reasons I am profoundly con-
    vinced it is, that the Home Secretary has not been given an un-
    conditional authority to detain, the true decision in the two cases
    before us ought not to be difficult to make. In the Liversidge case
    the Plaintiff has delivered a statement of claim averring that he
    was wrongly imprisoned by the Defendant the Secretary of State.
    The Defendant traverses the wrongful imprisonment and contents
    himself with the admission that he ordered the Plaintiff to be
    detained under the regulation. The Plaintiff asked for particulars
    of his reasonable cause to believe (a) as to hostile associations,
    (b) as to necessity to control him. In my opinion the Plaintiff is
    not bound to rely on the traverse, though as a matter of pleading
    that, in my opinion, amounts to a positive allegation of authority
    to detain for which particulars may be asked. The Plaintiff's right
    to particulars however is based upon a much broader ground, a
    principle which again is one of the pillars of liberty in that in
    English law every imprisonment is prima facie unlawful, and that
    it is for a person directing imprisonment to justify his act. The only
    exception is in respect of imprisonment ordered by a judge, who
    from the nature of his office cannot be sued, and the validity of
    whose judicial decisions cannot in such proceedings as the present
    be questioned. My noble and learned friend Lord Macmillan sug-
    gests that under a more exacting system of pleading the Plaintiff:
    would have to aver the absence of reasonable grounds on the part of
    the Secretary of State. The English system of pleading was exacting
    enough a hundred years ago: but then and ever since, by reason
    of the presumption I have stated, the averment in an action
    against a constable for false imprisonment was in the form
    adopted in the present case, and the Defendant had to plead his
    justification with particulars. (Holroyd v. Doncaster (1826, 3
    Bing, 492), and the cases cited earlier in this judgment.) There
    is no distinction of persons. The Defendant has to justify with
    particulars, and in my opinion the Plaintiff was clearly right in
    asking for particulars. If the Defendant was able to satisfy the
    Court that he could not give particulars in the public interest, the
    Court would either not order particulars or, if the objection came
    after the order, would not enforce it. There was no evidence of
    this kind at the hearing of this summons, and in my opinion the
    Appeal ought to be allowed and an order made in the terms of
    the summons.

    In the Greene case the circumstances are not the same. It
    may be that in an application for a writ of habeas corpus the
    applicant could rely on the presumption against imprisonment
    and seek to throw the onus without more on the Defendant.
    But in practice he does not do so. He puts material before the
    Court to lead to the conclusion that the imprisonment was un-
    lawful, and that is what the applicant did here. The Secretary

    [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