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Thornton v. The Police

Publisher United Kingdom: Privy Council (Judicial Committee)
Author Judicial Committee of the Privy Council
Publication Date 26 March 1962
Citation / Document Symbol [1962] AC 339, [1962] 3 All ER 88, [1962] 2 WLR 1141
Cite as Thornton v. The Police, [1962] AC 339, [1962] 3 All ER 88, [1962] 2 WLR 1141, United Kingdom: Privy Council (Judicial Committee), 26 March 1962, available at: http://www.refworld.org/docid/3ae6b6b924.html [accessed 26 October 2014]
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THORNTON v. THE POLICE. [Note]

PRIVY COUNCIL

[1962] AC 339, [1962] 3 All ER 88, [1962] 2 WLR 1141

Hearing Date: 26 March 1962

26 March 1962

Index Terms:

Privy Council -- Fiji -- Deportation order under Immigration Ordinance (No. 33 of 1947 ch. 67) -- Repugnancy -- Deportation of citizen of United Kingdom and Colonies -- Whether ordinance repugnan to British Nationality Act, 1948 (11 & 12 Geo. 6 c. 56), s. 1 (1) -- Colonial Laws Validity Act, 1865 (28 & 29 Vict. c. 63), s. 2.

Privy Council -- Appeal -- Leave to appeal -- Insufficient doubt to justify leave to appeal.

Notes:

As to limitation of colonial legislation by repugnancy, see 5 HALSBURY'S LAWS (3rd Edn.) 583, para. 1249; and for cases on repugnancy of colonial law to English law, see 8 DIGEST (Repl.) 699, 79-84.

As to citizens of the United Kingdom and colonies, see 1 HALSBURY'S LAWS (3rd Edn.) 532, 533, para. 1027.

As to special leave to appeal to the Privy Council in criminal cases, see 5 HALSBURY'S LAWS (3rd Edn.) 683, 684, para. 1459, 9 HALSBURY'S LAWS (3rd Edn.) 395, 396, para. 927; and for cases on he subject, see 8 DIGEST (Repl.) 821-826, 722-795.

For the Colonial Laws Validity Act, 1865, s. 2, see 6 HALSBURY'S STATUTES (2nd Edn.) 523.

For the British Nationality Act, 1948, s. 1 (1), see 28 HALSBURY'S STATUTES (2nd Edn.) 140.

Cases referred to in the Judgment:

Montreal Cite v. St. Supice de Montreal (Ecclesiastiques du Seminaire), (1889), 14 App. Cas. 660; 59 L.J.P.C. 20; 61 L.T. 653; 8 Digest (Repl.) 813, 656. Queensland A.-G. v. Commonwealth A.-G., (1915), 20 C.L.R. 148; 8 Digest (Repl.) 699, 102.

R. v. Marais, Ex p. Marais, [1902] A.C. 51; 71 L.J.P.C. 32; 85 L.T. 363; 8 Digest (Repl.) 699, 80.

Weber, Ex p., [1916] 1 A.C. 421; 85 L.J.K.B. 944; 114 L.T. 214; 80 J.P. 249; 2 Digest (Repl.) 214, 279.

Introduction:

Petition. Jack Eric Thornton petitioned for special leave to appeal from a judgment of the Supreme Court of Fiji, Appellate Jurisdiction (HAMMETT, J.), dated Oct. 18, 1957, dismissing the petitioner's appeal from a decision of the Magistrate's Court of the First Class, sitting at Suva in the Colony of Fiji, dated Mar. 11, 1957, whereby the petitioner was convicted of the offence of failing to leave the colony when ordered by the principal immigration officer, contrary to s. 8 (5) * and s. 9 (2) * of the Immigration Ordinance No. 33 of 1947 (hereafter referred to as "the ordinance"), was sentenced to a fine of @ 30 or in defaut two months' imprisonment, and a recommendation was made that he should be deported from the colony. The petitioner paid the fine. On Nov. 15, 1957, the governor of the colony, pursuant to the recommendation and in purported exercise of his powers under s. 10 of the ordinance, made a deportation order requiring the petitioner to leave the colony and thereafter to remain out of the colony. On the same date the police, acting under a warrant of detention signed by the governor pursuant to s. 10, arrested the petitioner pending his deportation, and on Nov. 17, 1957, he was put aboard an aircraft and deported to the United Kingdom.

* Section 8 of the Immigration Ordinance provides that unless exempted under the provisions of the ordinance no person shal enter the Colony of Fiji without a permit issued by the principal immigration officer or a person acting under his authority; and by sub-s. (5) of s. 8, if a person who has entered the colony pursuant to sub-s. (4) (c) , viz., for an intended stay of not more than four months, fails to leave the colony within four months of his arrival, the principal immigration officer may order him forwith to leave the colony, and if such person fails to carry out the order he is guilty of an offence. By s. 9 (2) of the ordinance, any person convicted of an offence against provisions of the ordinance shall be liable to a fine of @ 200.

The grounds of the petition were that the petitioner, being a citizen of the United Kingdom and colonies by virtue of the British Nationality Act, 1948 n+, was a citizen of the Colony of Fiji and therefore was entitled, freely and without restriction, at all times and whenever he chose to enter, remain, leave and re-enter the colony; and that the provisions of the ordinance under which he was deported were, under the Colonial Laws Validity Act, 1865 n++, void and inoperative as they were repugnant to the Act of 1948 which was an Act of Parliament extending to the Colony of Fiji.

n+ The British Nationality Act, 1948, s. 12 (1) (a), provides that a person who was a British subject immediately before the date of the commencement of the Act shall on that date become "a citizen of the United Ingdom and colonies" if, he was born within the territories comprised at that date in the United Kingdom and colonies and would have been such a citizen if s. 4 of the Act had been in force at the time of his birth. Sectin 4 provides that every person born within the United Kingdom and colonies after the commencement of the Act shall be a citizen of the United Kingdom and colonies by birth.

Section 1 of the Act of 1948 provides: "(1) Every person who under this Act is a citizen of the United Kingdom and colonies... shall by virtue of that citizenship have the status of a British subject.

"(2) Any person having the status aforesaid may be known either as a British subject or as a Commonwealth citizen; and accordingly in this Act and in any other enactment... whatever... the expression 'British subject' and the expression 'Commonwealth citizen' shall have the same meaning."

n++ The Colonial Laws Validity Act, 1865, s. 2, provides: "Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate... shall be read subject to such Act... and shall, to the extent of such repugnancy, but not otherwise, be nd remain absolutely void and inoperative."

Section 3 provides: "No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament... as aforesaid."

By s. 1 of the Act of 1865: "... An Act of Parliament, or any provision thereof, shall, in construing this Act, be said to extend to any colony whenit is made applicable to such colony by the express words or necessary intendment of any Act of Parliament..."

The petitiner was born at Christchurch in the county of Hants, in the United Ingdom before the date of the commencement of the Act of 1948. He first went to Fiji in 1952 and returned there on other occasions. He had resided in Fiji from Aug. 4, 1955, until he was deported. In December, 1956, he was issued in Fiji with a passport stating his place of birth, that he was a citizen of the United Kingdom and colonies and that his residence was at Suva in Fiji. HAMMETT, J., in dismissing the petitiner's appeal from the magistrate's court, said that the British Nationality Act, 1948, merely governed the status of persons and did not lay down what rights of movement or residence were granted by or attached to that status; and that the Act of 1948 did not preclude a colony from enacting legislation to regulate and contro entry into its territory or residence therein. For these reasons he could not accept the petitioner's contention that the ordinance was repugnant to the Act of 1948.

In his petition the petitioner submitted as follows. The British Nationality Act, 1948, was the sole source of the law relating to British nationality as it affected the United Kingdom and colonies. The Act of 1948 departed from the prior common law principles, and in particular from the principle of the common law embodied in s. 1 (1) * of the British Nationality and Status of Aliens Act, 1914, by which birth within the dominions and allegiance of the Crown was the test of British nationality, and substituted a new conception of British nationality based on citizenship. By the express provisions of the Act of 1948, citizenship of the United Kingdom and colonies was made inseparable and indivisible, so that a citizen of the United Kingdom and colonies was a citizen of both and each at the same time. The Act conferred on those qualified the status of citizen of the United Kingdom and of each the of the colonies. It was the essence of citizenship that a citizen should have the right to enter and reside in, as and when he chose, the territory of the country of which he was a citizen, and this right was established by international law. Accordingly, legislation of any colony which purported to abolish or restrict that right was invalid under the Colonial Laws Validity Act, 1865, as being repugnant to the Act of 1948.

* The British Nationality and Status of Aliens Acts, 1914 to 1943, with certain exceptions irrelevant to the present case, were repealed by the British Nationality Act, 1948.

Counsel:

S. N. Bernstein for the petitioner. H.A.P. Fisher, Q.C., and D. A. Grant for the respondents.

S. N. Bernstein: The Immigration Ordinance purported to deprive the petitioner of his right as a citizen of the United Kingdom and colonies under the British Nationality Act, 1948, freely to enter and reside in the Colony of Fiji. Citizenship and nationality were interchangeable terms: OPPENHEIM'S INTERNATIONAL LAW (8th Edn.), p. 642, para. 293, p. 645, para. 294. A citzen of the United Kingdom and colonies had a single nationality, of the United Kingdom and colonies. In consequence of that nationality he was entitled to enter the territory of which he was a national without restriction. Repugnancy within the meaning of the Colonial Laws Validity Act, 1865 n(1), meant inconsistency, contrariety or repugnancy in the broad sense, between the colonial law and the Act of Parliament; Queensland A.-G. v. Commonwealth A.-G. n(2). The Immigration Ordinance was not contrary to any express provision of the Act of 1948 but it was inconsistent, in a broad sense, with the rights which flowed from the status of citizen of the United Kingdom and colonies conferred by that Act.

n(1) See footnote ++ at p. 89, ante.

n(2) (1915), 20 C.L.R. at p. 168.

H.A.P. Fisher, Q.C.: The Immigration Ordinance could only be repugnant to the British Nationality Act, 1948, within the meaning of s. 2 of the Colonial Laws Validity Act, 1865 (1), if the ordinance was inconsistent with some express provision of the Act: see s. 2 and R. v. Marais, Ex p. Marais n(3), per LORD HALSBURY, L.C. The Act of 1948, however, governed status only and there was not a single provision in it determining what rights attached to the status of a citizen of the United Kingdom and colonies. The rights regarding immigration of a British subject, in the United Kingdom, depended on the common law and the exclusion of British subjects from the statutes relating to aliens. In the colonies the rights of a British subject regarding immigration depended on colonial legislation and where there was none, on the common law. In so far as any colonial law was inconsistent with the common law, s. 3 of the Act of 1865 n(4) provided that that repugnancy did not render the colonial law void; a fortiori, repugnancy to international law would not render a colonial law void. A provision that a British subject should not be permitted to enter a particular territory of the Commonwealth was not inconsistent with his status; for example, Australia had legislation excluding persons from Hong Kong. The advantage of possessing the status of citizen of the United Kingdom and colonies, viz., the status of a British subject, under the Act of 1948, was that, in municipal law, such a citizen was not an alien, and for the purposes of international law, he possessed a nationality.

n(4) See footnote n++ at p. 89, ante.

On the point that the petition raised a matter of general public importance which might arise again, the present case came within the words of LORD WATSON in La Cite de Montreal v. Les Ecclesiastiques du Seminaire de St. Sulpice de Montreal n(5). On that authority leave to appeal should not be granted.

n(5) (1889), 14 App. Cas, at p. 662 and quoted below at latter G.

S. N. Bernstein: In order to see what rights are conferred by having nationality as a citizen of the United Kingdom and colonies it is necessary to look at the British Nationality Act, 1948, and to infer the rights from the status which is thereby conferred; see Ex p. Weber n(6). One of the rights of citizenship, which flow from nationality, is the right of entry into the country of which the individual is a citizen. A citizen of the United Kingdom and colonies has all the rights which flow from nationality.

n(6) [1916] 1 A.C. 421.

PANEL: Viscount Simonds, Lord Morton of Henryton and Mr. L. M. D. de Silva

Judgment One:

VISCOUNT SIMONDS: Their Lordships, having listened to a full argument on behalf of the petitioner, are satisfied that there is no valid ground for saying that there is within the meaning of the Colonial Laws Validity Act, 1865, any repugunacy between the Immigration Ordinance of Fiji, which was enacted in 1947, and the British Nationality Act, 1948. It is a case to which, in their Lordships' opinion, the words used by LORD WATSON in delivering the opinion of the Board in La Cite de Montreal v. Les Ecclesiastiques du Seminaire de St. Sulpice de Montreal n(7), are exactly applicable. He said:

n(7) (1889), 14 App. Cas. at p. 662.

"A case may be of a substantial character, may involve matter of great public interest, and may raise an important question of law, and yet the judgment from which leave to appeal is sought may appear to be plainly right, or at least to be unattended with sufficient doubt to justify their Lordships in advising Her Majesty to grant leave to appeal."

Their Lordships will accordingly humbly advise Her Majesty that this petition must be refused.

DISPOSITION:

Petition refused.

SOLICITORS:

Ernest Randall & Rose (for the petitioner); Charles Russell & Co. (for the respondents).

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