R v. Home Secretary, Ex parte Iqbal

R. v HOME SECRETARY Ex parte IQBAL

QUEEN'S BENCH DIVISION

143 JP 248

Hearing Date: 23 May 1978

23 May 1978

Index Terms:

Immigration -- Illegal immigrant -- Detention -- Material error in order -- Jurisdiction of court to determine whether good grounds for detention -- Immigration Act, 1971, sched. 2, para. 16.

Held:

The applicant was detained as an illegal immigrant under para. 16 of sched, 2 to the Immigration Act, 1971. The detention order was in a standard form which stated that the detention was "pending his further examination under the Act" or, as an alternative, "pending the completion of arrangements for dealing with him under Act", it being indicated that one of these alternatives should be deleted as was appropriate in the particular case. In the present case the second alternative was appropriate, but the immigration officer in error deleted that alternative and allowed the first alternative, which was not appropriate, to remain. The applicant contended that when the detention was made his examination was complete, it was no longer lawful to detain him "pending his further examination," and, therefore his detention was no longer lawful. On his application for a writ of habeas corpus directed to the governor of the prison where he was detained, Held; (Boreham, J., dissenting): despite the material error in the order the court was entitled to inquire further to determine whether there were in fact good grounds on which the applicant was detained; there was ample evidence on which the Home Secretary could properly reach the decision that the applicant was an illegal immigrant; and the applicant would be dismissed. Per Lord Widgery, C.J.: Even where the liberty of the subject is involved the court should strive not to be hamstrung by pointless technicalities.

Introduction:

Motion by Shahid Iqbal for a writ of habeas corpus directed to the governor of Winson Green prison, where the applicant was detained as an illegal immigrant, and to the Secretary of State for the Home Department.

Counsel:

S Kadri for the applicant. M Kennedy for the Secretary of State.

Judgment-READ:

Cur adv vult. 23rd May, 1978. The following judgments were read. PANEL: Lord Widgery, C.J., Boreham, J., and Drake, J.

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Judgment One:

DRAKE, J. This is a motion on behalf of one Shahid Iqbal for a writ of habeas corpus to release from Her Majesty's Prison at Winson Green the applicant who is at present detained there. The authority for the applicant's detention there is said to be para 16 of sched. 2 to the Immigration Act, 1971, but a complication arises, as I shall explain later, because the authority was originally stated to arise under para 16(1), whereas it should have been claimed that it arises under para 16(2) of sched. 2. Counsel, who moves on behalf of the applicant, relies on two separate grounds in support of the application. The first ground relates to the complication I have just referred to, in that there was an error in the document issued by an immeigration officer under the authority of which the applicant was detained by the governor of Her Majesty's Prison at Winson Green. The second ground alleges that the applicant was not validly detained because an examination of the facts shows that the applicant is entitled to enter and remain in the United Kingdom. I think it convenient to deal first with this second ground, which requires a review of the facts of this particular case, and which is a ground very commonly relied on by applicants in proceedings similar to these. The principles on which this court deals with applications such as this, when it is alleged that the facts do not support the conclusion reached by the Secretary of State for the Home Department, are clearly laid down in R v Secretary of State for the Home Department, ex parte Hussain n(1). In that case the Court of Appeal approved as correct the approach which had been formulated by Lord Widgery, C.J., in the same case when it was before this court, when he said: n(1) 142 J.P. 372; [1978] 2 All E.R. 423; [1978] 1 WLR 700

'Questions of fact in these matters are ultimately questions of fact for the Secretary of State. There are limits to the extent to which this court can go and, as I see it, our obligation at the moment is to be satisfied that the Home Office approach to the problem is one taken in good faith. Further, we have to decide whether there is or is not adequate evidence here to justify the sort of conclusion which the Secretary of State has reached.'

In the present case I am quite satisfied that there was ample evidence on which the Secretary of State could properly reach the decision he came to, and no suggestion has been made that he acted other than in good faith. The applicant contends that he is the son of one Ghulam Sarwar Khan ('Mr Khan') and that he is entitled to enter and remain in the United Kingdom as a member of Mr Khan's family. The Secretary of State has refused the applicant permission to stay here and has denied his right to stay here on the ground that he had been guilty of deception and is not in fact the son of Mr Khan. The applicant relies on a number of affidavits filed on his behalf and sworn by various people who in one way or another support his case. But enquires carried out on behalf of the Home Office, including oral examination of the applicant half of the Home Office, including oral examination of the applicant and of Mr Khan and others by immigration officers, have revealed important flaws in the applicant's case. He says he was born in Pakistan and first came to this country, accompanying his father, Mr Khan, in October, 1964. He says that he lived and had casual employment in this country from 1964 until 1973 when he returned to Pakistan on holiday and became engaged to be married. He says he returned to England in November, 1973, and remained here until November, 1974,

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when he went back to Pakistan and was married, and that he finally came back here on 1st May, 1975, and thereafter lived and worked in the Birmingham area until January, 1978, when he was detained by immigration officers. When he was first interviewed by an immigration officer he failed to mention the existence of one Arshad Mahmood, a son of Mr Khan, and therefore, if his own story is correct, one of his brothers. Forthermore when the immigration officer asked him if he knew Arshad Mahmood the applicant denied all knowledge of his existence. The applicant told the immigration officer that he had no children, whereas Mr Khan had told the officer that the applicant did have one child. The applicant was unable to produce any documentary evidence whatsoever to support his claim that he had been in England prior to 1970, and he had no knowledge at all of the pre-decimal, pre-1971 English currency. When an immigration officer interviewed the man and wife with whom the applicant said he had lived for a period of about four years from 1966 until 1970, both of these people emphatically denied any knowledge of the applicant. They later explained that this denial was due to a misunderstanding, but this explanation did not convince the immigration officer. For these and for other subsidiary reasons set out in an affidavit filed on behalf of the Secretary of State, I think there was ample evidence on which the Secretary of State could properly reach the decision he came to, namely that the application is not in truth the son of Mr Khan. Accordingly, in so far as the application is based on this ground, in my judgment it fails. The remaining ground relied on by the applicant raises an interesting point of law and one which, so far as I am aware, is not directly covered by any decision of the court. We were not referred to any authorities by counsel on either side. As I have said, it relates to an error in the document under which the applicant has been detained in prison. The document in question is a standard Home Office form used by immigration officers to authorise the detention of persons under the 1971 Act. It is headed 'H.O. Form IS 91', 'Immigration Act 1971' and is stamped 'Detention Order'. There is a space for the insertion of the name of the person to be detained in which, in this case, has been written the name of the applicant, and then follows the printed part of the form which reads: 'The above-maned is a person whose detention I have authorised under para 16 of schedule 2 to the Immigration Act, 1971.' Then follow the words: 'I accordingly request you to receive the said person', and underneath are set out on separate lines what are clearly alternatives, first, 'pending his further examination under the Act', and, secondly, 'pending the completion of arrangements for dealing with him under the Act'. There is a further reference to the possible charging for the cost of detention and any escort, which is irrelevant to the present case, and then a space for a signature by and above the printed words 'Immigration Officer'. The form ends with the wording: 'To the Chief Constable of', and a blank to be filled in, if appropriate, and the alternative 'To the Governor HM Prison', and a space, filled in, in this case 'Winson Green'. The alternative wording requesting the person to whom the form is sent to receive the detainee, either 'pending his further examination under the Act' (which would be a detention under sub-para (1) of para 16 of sched. 2 to the Act) or 'pending the completion of arrangements for dealing with him under the Act' (which would be a detention under sub-para (2) of para. 16) are each accompanied by a request that thay be deleted as appropriate.

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In the present case the immigration officer deleted the second of these alternatives and left in the first one, 'pending his further examination under the Act'. We do not know why he did this, but it was conceded at the outset of this hearing that the deletion was in error. The examination of the applicant had in fact been completed, and the immigration officer intended to request his detention 'pending the completion of arrangements for dealing with him under the Act', that is to say under the provisions of para. 16(2). It is certainly arguable that the alternative wording on the Home Office form is surplusage, in that it would suffice for the immigration officer to authorise detention simply 'under paragraph 16 of schedule 2' to the 1971 Act, without condescending to the particulars of whether such detention is authorised under para 16(1) or para 16(2). I am not wholly convinced that this is correct having regard to the requirement under RSC Ord 54, r 7, that the return to a writ of habeas corpus ad subjiciendum, 'must state all the causes of the detainer of the person restrained'. If in fact the return would be valid if it merely stated that the detention was authorised under para 16 of sched. 2, it would lend some weight to the further argument that an error in the further particulars, unnecessarily given, cannot be regarded as being as serious as a failure to state the main provision under which the applicant was detained. Be that as it may, the document with which we are concerned did state the particular sub-paragraph under which the applicant was detained and it has been argued on his behalf that that error in the document vitiates it to the extent that the detention, while it could have been justified 'pending the completion of arrangements for dealing with' the applicant, is unlawful and that habeas corpus should therefore be granted to the applicant as of right. For the Secretary of State it is said, as I understand the argument of counsel, that the document does properly state the reason for the applicant's detention, as being under para 16 of sched. 2 to the 1971 Act, that the error of the immigration officer in deleting the wrong wording, which in effect gives further particulars of the reason for detention, does not render the whole document a nullity, and that, provided the court is satisfied that the applicant was in fact detained on good grounds, the detailed wording of the document is not material. If I have properly understood the argument of counsel on behalf of the Secretary of State, then I am far from happy with such an approach. The document, which is relied on as the return to this application, is the authority under which a man has been deprived of his liberty, and it ought to be regarded as of very great importance and should be completed with care. If, as may be inevitable, some mistake is at some time made in the completion of such a document, then when the error is discovered it should be rectified immediately, or a fresh document, properly complied, issued in its stead. This has not has not been done in this case and I think the omission unfortunate and wrong. But it does not in my view conclude the matter against the Secretary of State and leaves open the question which may be stated thus: 'When the person having custody of an applicant produces, as the justification for his detention, a document which, though valid on its face, is subsequently found to contain some material error, is the court entitled to enquire further to determine whether there were in fact good grounds on which the applicant was detained, or is the applicant fresh document, properly compiled, issued in its stead. This entitled as of right to be released on the ground of the defect in the document which authorised his detention?' Long ago the return to the writ of habeas corpus was all important. It was the beginning and the ending of the matter, and the court acted solely on the

143 JP 248

reasons for detention stated on the face of the return. If the reason shown was bad the person detained was entitled to be released; if the reason was good he was not entitled to habeas corpus, although it may have been open to him to pursue some other remedy, such as certiorari, under which the court would go behind the return and enquire into the evidence on which the detention was said to be justified. But since the Habeas Corpus Act, 1816, the court is empowered to enquire into the truth of the facts stated in the return. Indeed that is precisely the procedure relied on by applicants in the majority of applications which come before this court, and it is under that procedure that the applicant in the present case has sought to persuade this court to hold that, irrespective of what is stated on the return, there was in fact no sufficient evidence on which the Secretary of State should have reached his conclusion as to the true identity of the applicant. Since the court is empowered to go behind the mere wording on the face of the return and enquire into the true facts, why should it not do so if and when, as in the present case, it is discovered that some mistake has been made in the wording of the document? In my judgment, the overriding function of the court is to see that no injustice is done to the person detained; and in order to see that justice is done the court should enquire into the true facts and not be hampered by the wording of the return. I think it can be said that this is a situation in which the court should look to the substance rather than to the form, subject always to the overriding consideration that justice should be done. I am strengthened in this view by the provisions of RSC Ord 54, r 7, which expressly provides as follows:

'(1) The return to a writ of habeas corpus ad subjiciendum must be endorsed on or annexed to the writ and must state all the causes of the detainer of the person restrained. (2) The return may be amended, or another return substituted therefor, by leave of the court or judge before whom the writ is returnable.'

Since the return may be amended, or another return substituted by leave of the court, it does not seem to me to be right to hold that the court is bound to regard a return as bad when, as in the present case, the enquiry into the facts has shown, as in my judgment is the case, that the immigration officer did have valid grounds on which to authorise the detention of the applicant. Had the error been in some way prejudicial to the applicant, for example, by misleading him and causing him to take some step or omit to take some step by which his position or the presentation of his case to remain in this country had been harmed, then I think different considerations would arise. In the present case no such prejudice to the applicant has been suggested, and in my judgment no injustice is done to him by this court declining to grant his application on the ground of the error made when the immigration officer signed the authorisation for his detention. I would therefore dismiss this application.

Judgment Two:

LORD WIDGERY, C.J.: I also would dismiss this application for the reasons just given by Drake, J. The court has been required to examine the facts behind the return and this discloses a lawful power of detention under para 16 of sched. 2 to the Immigration Act, 1971. I cannot see any difference in the nature and effect of the detention, according to whether it occurs after the completion of immigration enquiries or before such enquiries are concluded. Even where the liberty of the subject is involved, the court should strive not

143 JP 248

to be hamstrung by pointless technicalities.

DISSENT By-1: BOREHAM J

DISSENT-JDGMT-1:

BOREHAM, J.: Counsel moves on behalf of the applicant for a writ of habeas corpus directed to the governor of HM Prison, Winson Green, to secure the applicant's release. The matter arises in this way. On 28th January, 1978, the applicant was taken into custody as an illegal immigrant pursuant to the written authority of one of Her Majesty's immigration officers. The applicant's case is that he was born in Pakistan on 20th September, 1950, the son of Ghulam Sarwar Khan; that he arrived with his father at Heathrow on 1st October, 1964, having travelled from Pakistan on his father's passport; that he and his father were then granted unconditional leave to enter the United Kingdom; and that, save for two visits to Pakistan, when he travelled on his own passport and on his return from which he was given leave to enter for an indefinite period, he had lived and worked in this country ever since. Entries in the passports confirm the granting of leave in three occasions. He contends that he is a lawful entrant. For the Secretary of State it is contended that the applicant is not the person he pretends to be, that he is not the son of Ghulam Khan, that he did not enter the United Kingdom before 1969 or 1970, and that the documents produced by Ghulam Khan on 1st October, 1964, do not relate to the applicant. He is therefore an illegal immigrant. The central issue, therefore, is one of identity and, accordingly, one of fact. Counsel has taken two points on the applicant's behalf: (i) that, although the written authority for the applicant's detention is valid in law on its face, it is invalid in fact; (ii) that the applicant is the son of Ghulam Khan, that he entered the county lawfully in 1964 and was given unconditional leave to stay, and is therefore entitled to remain. In either event it is said that the applicant's detention is unlawful. It is convenient to deal with the second point first. The applicant's evidence of his own identity and of the circumstances of his arrival in this country in 1964 is supported by the affidavits of Ghulam Khan (his alleged father) and of Arshad Mahmood and Shahid Mahmood Aktar, two of Ghulam Khan's sons. There is evidence by three other deponents, each of whom say that they recognise the photograph of the applicant as that of a youth who was resident in Birmingham prior to 1970. Prima a facie this appears to constitute a powerful body of evidence. The immigration authorities have made enquiries. They have interviewed, among others, the applicant and the deponents referred to above and the persons in whose house the applicant alleges that he lived for most of the period from December, 1964, until 1969. These interviews have revealed discrepancies and lacunae which together suggest that the applicant is not the person he says he is and that he was not where he says he was prior to 1970. For instance, when first interviewed in November, 1977, the applicant failed to include Arshad Mahmood as a member of Ghulam Khan's family; when this omission was pointed out to him he said that he had never heard of Arshad Mahmood. The applicant has been unable to produce any documentary evidence of his presence in the United Kingdom prior to 1970 and he lacked knowledge of the pre-decimal currency. When the persons with whom the applicant says he lived between 1964 and 1969 were

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interviewed, they were sure that no one by the name of Shahid Iqbal had lived at the address during that period. At a later inverview one of them said that he had seen the applicant on two or three occasions between 1964 and 1969 and blamed his prior failure to recall the applicant on a faulty memory and the fact that he had been sleepy when interviewed. The evidence of the three witnesses who purported to recognise the applicant's photo as that of a youth resident in Birmingham prior to 1970 was considered by the Secretary of State, who concluded that they were mistaken. Counsel concedes that we cannot re-try the questions of fact. He accepts that we must be guided by the principles laid down by the Court of Appeal in R v Secretary of State for the Home Department, ex parte Hussain (1). Those principles are to be found in a short extract from the judgment of Geoffrey Lane, L.J., quoting with approval the approach laid down by Lord Widgery, C.J., in the Divisional Court:Immigration Appeal Tribunal n(1) 142 J.P. 372; [1978] 2 All E.R. 423; [1978] 1 WLR 700

'Questions of fact in these matters are ultimately questions of fact for the Secretary of State. There are limits to the extent to which this court can go and, as I see it, our obligation at the moment is to be satisfied that the Home Office approach to the problem is one taken in good faith. Further, we have to decide whether there is or is not adequate evidence here to justify the sort of conclusion which the Secretary of State has reached.'

In the present case there is nothing to impugh the good faith of the Secretary of State. As to the merits, there was evidence both for and against the applicant. It was for the Secretary of State to weigh that evidence. He has done so. He has concluded that the applicant is not the son of Ghulam Khan and that he entered the country illegally. I think there was ample evidence to justify those conclusions. Counsel for the applicant's second point fails. His first point has more substance; it is that the written authority by virtue of which the applicant is detained is invalid. The document in question is in standard form. It is headed 'Immigration Act 1971' and stamped thereunder 'Detention Order'. It purports to have been issued, as doubtless it was, at HM Immigration Office, Birmingham Airport. Below this, in the space provided for the purpose, is entered the applicant's name. It continues:

'The above-named is a person whose detention I have authorised under para. 16 of schedule 2 to the Immigration Act, 1971. I accordingly request you to receive the said person.'

Then follow two alternatives. The first is: 'pending his further examination under the Act'; both counsel accept that this would be appropriate for detention ordered under para 16(1). The second is: 'pending the completion of arrangements for dealing with him under the Act'; it is agreed that this would be appropriate for detention under para 16(2). Each alternative is marked with an asterisk denoting that it should be deleted as is appropriate. On the order in question the immigration officer has deleted the second alternative. There are other matters in the order which are irrelevant for present purposes. After signature by the immigration officer the order is addressed to the governor of Her Majesty's Prison at Winson Green.

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Counsel for the applicant conceded that the order is apparently complete and valid in law on its face. At one time this would have been conclusive against him. By the Habeas Corpus Act, 1816, the court was given specific power in a civil matter to enquire into the facts. The material part of s 3 provides:

'In all cases provided for by this Act, although the return to any writ of habeas corpus shall be good and sufficient in law, it shall be lawful for the justice or baron, before whom such writ may be returnable, to proceed to examine into the truth of the facts set forth in such a return by affidavit or by affirmation...' (Emphasis mine.

Section 4 further provides:

'The like proceedings may be had in the court for controverting the truth of the return to any such writ of habeas corpus awarded as aforesaid, although such writ shall be awarded by the said court itself, or be returnable therein.' Our duty, therefore, is to enquire into the truth of the facts set out in the return of which the important part is the detention order.

In this case the enquiry has been brief, for counsel for the Secretary of State condeces that at the time the detention order was made the examination of the applicant was complete and it was no longer lawful to detain him 'pending his further examination under the Act'. It would however have been lawful to detain him 'pending the completion of arrangements to deal with him under the Act'. In other words the immigration officer had deleted what were the appropriate words and had allowed the inappropriate to remain. Counsel for the applicant contends that that concludes the matter in the applicant's favour. He says, look at it how you will, there are two alternatives. Either: (a) the immigration officer had no power to make the order he did and therefore the order was invalid and the detention unlawful; or (b) in any event, the examination having been completed, there cannot be any right now to detain 'pending further examination under the Act'. The reply of counsel for the Secretary of State is that: (i) the detention order was and is valid. It is expressed to be made under the provisions of para 16 of sched. 2 to the 1971 Act. So it is. The contention is that this is sufficient to validate the order, that no complint could have been made if the order had stopped with the words 'I accordingly request you to receive the said person', and that what follows in the order is unnecessary and should be disregarded; (ii) if the first argument is unacceptable, nevertheless the detention is lawful, notwithstanding the defective order, because the true and valid reason for the detention is to be found in the affidavit showing cause. Neither counsel has referred the court to any authority on what is an interesting, but not easy, problem. Nor am I aware of any authority. I doubt whether there is any real basis for the Secretary of State's arguments as to the validity of the detention order. RSC Ord 54, r 7, requires the return to state all the causes of the detention of the person restrained. The detention order is the essential part of the return and I doubt if an order, which simply states that detention was authorised under para 16 of sched. 2 to the 1971 Act, without giving further particulars justifying such detention, could be said to comply with the rule. But, even assuming that a detention order in such general terms would suffice, the question remains whether, if particulars are given which fail to justify the detention, they can now be disregarded as unnecessary. I think not, and for a number of reasons. First, in accordance with the provisions of s 3

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of the Habeas Corpus Act, 1816, the court may, and I think should, examine the facts set out in the return. Secondly, and apart from the statute, there is authority for the proposition that in habeas corpus proceedings the court may examine any grounds given for the detention, notwithstanding that it was unnecessary to give them. In the middlesex Sheriff's Case n(2) the important question was whether in habeas corpus proceedings a warrant directed by the speaker of the House of Commons to the serjeant-at-arms committing the sheriff for contempt of the House was bad because it omitted to state the grounds on which contempt had been found. In his judgment Littledale, J., in a passage quoted with approval by Lord Maugham in Greene v Secretary of State for Home Affairs n(3), said this: n(2) (1840), 11 Ad & El. 273; 3 St. Tr. NS 1239 n(3) [1941] 3 All ER 388; [1942] A.C. 284

'If the warrant declares the grounds of adjudication, this court, in many cases, will examine into their validity; but, if it does not, we cannot go into such an inquiry.'

Finally, I find helpful, and adopt, the approach stated by Professor de Smith in The Judicial Review of Administrative Action (3rd edn.), p. 525:

'A... distinction is drawn between superior and inferior courts. A superior court and a body such as the House of Commons which is analogous to a superior court, can validly commit under a warrant which does not set out the facts giving it jurisdiction; though if it does set out the facts and they disclose lack of any legal justification for commitment habeas corpus may properly issue. Inferior courts ought to recite the facts giving them jurisdiction to commit.' I would add that what applies to inferior courts should apply a fortiori to executive officers.

Professor de Smith compares the approach in habeas corpus proceedings with the approach of this court in proceedings for certiorari to quash a speaking order. If the order states no ground or justification and is complete and valid on its face it may not be impugned. If however a ground or justification is given, albeit unnecessarily, which fails to justify the order, then the order may be quashed. I find this an acceptable and helpful analogy. Applying these principles to the present case it seems to me clear that the words in the detention order 'pending his further examination under the Act' were intended to justify the applicant's detention under para 16 of sched. 2. Even if the argument that they were unnecessary is correct, their validity should be and has been examined. It is admitted that they did not justify the detention. They purported to be the sole justification. Thus it follows that the applicant's detention was not justified by the terms of the order which purported to authorise it. This is no mere technicality. The order is one which has deprived the applicant of his liberty. It is the authority under which he has been detained. It is the prison governor's sole authority for detaining him. It appears to be valid on its face, but when the facts are examined it is shown that what purports to be the sole justification for the detention cannot be sustained. I think this is a fundamental error which invalidates the detention order. It remains to consider counsel's second point for the Secretary of State -- nemely, that, notwithstanding the defective or invalid detention order, the

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applicant's detention is lawful because there was in fact a valid justification for it as is shown by the affidavit showing cause. That there was in fact a valid justification is not disputed. Nevertheless, I find the argument unattractive. If it is correct it reduces the detention order to the level of a 'mere scrap of paper'. That however does not necessarily dispose of the argument. The question is this: Can an admittedly valid justification now be relied on in substitution for the invalid justification in the detention order? In the absence of direct authority there comes to mind the analogous situation of the constable exercising his powers of arrest without warrant. It is now well settled that a constable must not only act within his legal powers, he must also make known to the person detained the reason or justification for the arrest. If he gives a reason which is invalid he cannot justify the arrest by the fact that he had a valid reason which he kept to himself (Christie v Leachinsky n(4)). I find this sort of approach acceptable in the case of an executive officer ordering the detention of an individual; perhaps even more acceptable because he, unlike the constable, may order detention for a substantial period without the intervention of any judicial authority. n(4) 111 J.P. 224; [1947] 1 All ER 567; [1947] A.C. 573 Moreover, I can think of no good reason for allowing an executive officer to order the detention of an individual unless the true and lawful justification for the detention is stated in the detention order. It seems no more reasonable to allow one, who has given an invalid justification in the detention order, to justify the detention by asserting, albeit that he asserts truly, that he had a valid justification which was not disclosed. So far as I am aware, there is no authority which impels or even encourages such an approach. Indeed such authority as I have discovered tends to the contrary. In Christie v Leachinsky n(4), Lord Simonds expressed himself thus: n(4) 111 J.P. 224; [1947] 1 All ER 567; [1947] A.C. 573

'the liberty of the subject and the convenience of the police or any other executive authority are not to be weighed in the scales against each other. This case will have served a useful purpose if it enables your Lordships once more to proclaim that a man is not to be deprived of his liberty except in due course and process of law'.

Bearing in mind the facts and issues in that case, I take those final words to mean that not only must the detention de justified in law but the proper procedures must be followed. One of the proper procedures in that case was for the constable to inform the detainee of the true and valid reason for his arrest. It had not been done. In my view one of the proper procedures in the present case was the making of a true and valid detention order. This has not been done. I have come to the conclusion that the Secretary of State should not now be allowed to rely on a justification for the applicant's detention which is different from that which was relied on in the detention order and in the return. It is said that the true justification for the applicant's detention now appears from the affidavit showing cause and so it does. No doubt the affidavit proves the foundation or basis on which the detention order rests. It certainly explains the circumstances in which the detention order came to be

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made. But to allow it to be used as counsel for the Secretary of State now suggests is to substitute it for the detention order. This, in my judgment, goes too far. It is the detention order which is the prison governor's authority to detain the applicant and which is his sole justification for that detention in his return in these proceedings. It seems to me that a true and valid detention order is essential if the detention is to be justified. I am encouraged in this strict approach by the provisions made by the Rules of the Supreme Court for the amendment and substitution of the return. RSC Ord 54, r 7(2), provides:

'The return may be amended, or another return substituted therefor, by leave of the court or judge before whom the writ is returnable'. I see no reason why a fresh and valid detention order should not have been served on the prison governor and application then made to substitute a fresh return. In fact no fresh order has been served and no application has been made to amend the return or substitute another. The proper procedures have not been followed and no attempt has been made to put right that which it is admitted is wrong.

In these circumstances it ought not to avail the Secretary of State to say that a valid detention order could have been drawn up, that there is a valid justification for such an order, and thus no injustice has been done. If the detention order could have been put right it should have been put right. The application should not remain in custody unless it be under the authority of a valid detention order. In my judgment, for the reasons I have attempted to give, the detention order is not valid. Accordingly I would grant the relief which the applicant now seeks.

DISPOSITION:

Application dismissed.

SOLICITORS:

Sharpe, Pritchard & Co, for Taylor Hall-Wright & Co, Birmingham; Treasury Solicitor.