R v. Secretary of State for the Home Department, Ex parte Chahal

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

The Strand

Friday, 6th November 1998

Before: MR JUSTICE TUCKER

REGINA-v-SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE CHAHAL

MR N BLAKE QC and MR R HUSAIN (Instructed by Winstanley Burgess, London) appeared on behalf of the Applicant.

MR M BISHOP (Instructed by The Treasury Solicitors) appeared on behalf of the Respondent.

JUDGMENT

MR JUSTICE TUCKER:

This is an Application for Judicial Review made on behalf of Karamjit Singh CHAHAL relating to the question of compensation for detention. The applicant is the longest serving civil detainee in this century, having been detained from 16 August 1990 until 15 November 1996, period of 6 years and 3 months.  The applicant is a prominent Sikh separatist, now aged 50. He was detained pursuant to a notice of intention to deport "for reasons of national security and other reasons of a political nature namely the international fight against terrorism". He was released following a Judgement of The European Court of Human Rights who concluded that there had been violations of Articles 3, 5(4) and 13 of the European Convention on Human Rights.

Meanwhile, the applicant had applied for asylum, which the Secretary of State had refused. On 25 July 91 Secretary of State signed a deportation order, and set directions for the applicant's removal to India.

The applicant, not unnaturally, made strenuous efforts to avoid deportation, to obtain asylum, and to secure his release from detention. On 2 December 1991, on an application for judicial Review, Popplewell J. quashed the decision of the Secretary of State to refuse asylum on the grounds that the decision was flawed because of the Secretary of State's failure to give adequate reasons. In July 1992 Rose J. (as he then was) refused the applicant's application for bail. After a second refusal by the Secretary of State to grant asylum, the applicant again applied for Judicial Review. On this occasion the application was refused by Potts J., who in his turn also refused to grant bail, though like Popplewell J. he expressed anxiety about the case. An appeal from this decision to the Court of Appeal was dismissed, and a Petition to the House of Lords was refused.

Meanwhile, those advising the applicant had made an application to the European Commission of Human Rights, alleging breaches of the Convention.

On 14 September 1995, over 5 years after the applicant had first been detained, the Commission released a report unanimously concluding that there had been violations of Articles 3, 5(1), 8 and 13 of the Convention. The matter was then referred by the Commission and UK Government to the European Court of Human Rights. The applicant submits that at that point, if not before, he should have been released from detention, but he was not. There was a third Application for Judicial Review, and for a Writ of habeas corpus, both of which were refused on 10 November 1995 by MacPherson J.

As I have said, the decision of the European Court of Human Rights which led to the applicant's release was that the United Kingdom Government had acted in breach of certain Articles of the Convention.

The Court made no award of non-pecuniary damages in respect of the period of time which the applicant had spent in detention. The applicant's Solicitors subsequently applied to the Home Office to compensate Mr Chahal for the loss occasioned by the United Kingdom's breaches of the Convention, and in particular the prolongation of his detention caused by the absence of effective judicial remedies in the United Kingdom to vindicate the rights guaranteed by the Convention (See their letter of 19 November 1996). The claim was made under the provisions of Article 5(5) which it was said "requires that there be an enforceable right to compensation in any case of detention which violates Article 5(4)".

This application was refused by letter dated 5 February 1997.

The reasons given for the refusal were these:

"With regard to your request that Mr Chahal should be compensated for breaches of the convention, it has been decided that as the Court ordered no compensation other than the payment of Mr Chahal's costs, the Home Office regards itself as being under no obligation to compensate Mr Chahal further".

Mr Nicholas Blake QC, who has appeared for the applicant throughout, says that this explanation will not do, given the purposes of Article 5(5). He submits that the right to compensation given by that paragraph may follow a decision by the Court that there has been a breach of another limb of Article 5.

It is material to examine the basis of the Court's decision.

First. By 12 votes to 7 that there would be a violation of Article 3 of the Convention, in the event of the Secretary of State's decision to deport the applicant to India being implemented.

Article 3 provides as follows:

"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment".

Second. By 13 votes to 6 that there had been no violation of Article 5(1) of the Convention. The material part of this Article provides as follows:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(f) The lawful arrest or detention of a person ...against whom action is being taken with a view to deportation...".

Third. Unanimously that there had been a violation of Article 5(4) which provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court, and his release ordered if the detention is not lawful".

Fourth. Unanimously that there had been a violation of Article 13, which provides:

"Everyone whose rights of freedom as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".

As I have indicated, the present application focuses on the finding by the Court of a violation of Article 5(4). There is no doubt that the applicant was deprived of his liberty by arrest or detention. The question before the Court was whether he was entitled to take proceedings by which the lawfulness of that detention, should be decided by a Court. The European Court decided that question in the negative, i.e. against the United Kingdom Government.

In other words, the Court found that no procedure existed in the United Kingdom at the material time to challenge in a Court the lawfulness of the Secretary of State's decision that the applicant should be detained.

The applicants (i.e. the present applicant and his wife and children) asked the Court to grant them just satisfaction under Article 50, which provides as follows:

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party".

The applicants claimed compensation for non-pecuniary damages for the period of detention suffered by Mr Chahal at a rate of £30,000 - £50,000 per annum, i.e. a total of sum of over £300,000. The Government submitted that a finding of violation would be sufficient just satisfaction in respect of the claim for non-pecuniary damages. In view of its decision that there had been no violation of Article 5(1), the Court made no award of non-pecuniary damages in respect of the period of time Mr Chahal had spent in detention. As to the other complaints, the Court considered that the finding

 that his deportation, if carried out, would constitute a violation of Article 3, and that there had been breaches of Articles 5(4) and 13 constituted sufficient just satisfaction.

Therefore the Court did not award the applicant any compensation, though it did award him costs.

The applicant recognises that if he were to be awarded compensation by the Secretary of State, it would be by way of an ex gratia payment - i.e. that the decision whether or not to make an award is a matter of discretion. The applicant has no legal entitlement to compensation. There is no cause of action in private law. It is submitted that the exercise of the discretion to refuse any compensation is however susceptible to challenge in administrative law, having regard to the obligations and standards set by the convention.

There are, it is submitted, two important and undisputed facts underlying this application.

First, at no time during his detention could the applicant have been deported to India without substantial risk of torture, death, or some other form of inhuman or degrading treatment at the hands of the Indian security forces. The Government argued before the European Court that the position was far improved since the nadir in 1992. Nevertheless, the Commission and the Court found that such a risk existed in 1995 and 1996.

Second, at no time during that detention was there in existence a UK Court which was able to investigate and evaluate the allegation of a threat to national security that had caused the applicant to be detained during his challenge to the decision to deport him. True, there was an advisory panel procedure, which as the Court accepted, provided an important safeguard against arbitrariness, and an adequate guarantee that there were at least prima facie grounds for believing that if the applicant were at liberty, national security would be at risk. However, as the Court observed the applicant was not entitled to legal representation before the panel, he was only given an outline of the grounds for the notice of intention to deport, the panel had no power of decision, and its advice to the Home Secretary was not binding and was not disclosed. The Court held that the panel could not be considered as a "Court" within the meaning of Article 5(4).

This defect has now been remedied by the introduction, in September 1998, of the Special Immigration Appeals Commission, presided over by a High Court Judge.

The Secretary of State submits that even if the obligations under Article 5(4) had been complied with, it is "highly likely" that the applicant would still have been detained for the same period of time. The applicant's challenge to these reasons is on the basis that:

1.   A conclusion that the applicant would inevitably have remained in detention is flawed, irrational and inadequately reasoned.

2.   The Secretary of State does not recognise that the failure of the Government to provide an effective remedy that might have resulted in the applicant's release was fault for which the Secretary of State was responsible within the meaning of his policy.

As to the first of these challenges, it seems to me that any Court or body considering whether or not to exercise its discretion to award compensation would necessarily have to evaluate the chance or prospect that the applicant would have been released, had what is referred to as an Article 5(4) Court been in existence. Such a Court would have had to perform a balancing exercise, based on the information placed before it. Let it be assumed that the Court would have concluded, as did the European Court, that the applicant would have been at risk had he been returned to India. The Court would then have had to balance against that risk, the threat which it was alleged the applicant posed to national security. In Chahal v SSHD (1994) Imm AR 1079 the Court of Appeal considered the judgment of Potts J. in the instant case. In his judgment Staughton LJ. referred to the difficulties which confronted the Court of Appeal. At page 115 he said:

"I conclude that the Secretary of State has carried out a balancing exercise; or at least it is not shown that he failed to do so. It is hardly possible for this Court to consider whether, after that exercise, the Secretary of State's decision was irrational or perverse. Whilst we have massive evidence as to whether Mr Chahal's life or freedom would be threatened if he were returned to India, we do not have the evidence on which the Secretary of State considered him a risk to national security. So we cannot balance the threat on the one hand against the risk of the other."

The same problem confronts any Court or body which has to consider the question of compensation, and it also to some extent confronts the Court in the present application. Although I have been shown certain information about the applicant, and allegations made against him, which were referred to the European Commission, which information is said to be erroneous, I do not know, and cannot be told, the full extent of the material placed before the advisory panel, or which would have been placed before an Article 5(4) Court, and I am unaware of the reasons which led the advisory panel to the conclusion which it reached. Their conclusion was that the applicant posed a threat to national security which justified his continued detention. Can it be said that an Article 5(4) Court would have possibly reached a different conclusion, and that the applicant would have been released from detention at some stage during the 6 year period, and if so at what stage?

The advisory panel, which I must assume had been given full information about the threat to national security, agreed with the Secretary of State about the action which was intended to be taken in relation to the applicant. Can it be said that an Article 5(4) Court would probably or possibly have taken any different view? I do not have the material before me to entitle me to say that they would, or even that they might have done.

I have considered the possibilities that an article 5(4) Court might have released the applicant temporarily or on bail, that they might have considered that the Secretary of State's argument on the core issue would fail, and have decided that issue in favour of the applicant; or that they might have decided on the evidence that Article 3 would be breached if the applicant were deported to India. Again, there is no material before me to enable me to say that any of these eventualities might have occurred.

Leave in this case was originally refused on the papers. On a renewed application leave was granted by McCullough J. on 22 October 1997. Following the grant of leave, I accept that the Secretary of State carefully reconsidered the question of the payment of compensation, as appears from the Affidavit of Jeffrey Richard Harmer. It is clear that the Secretary of State recognised that he has a discretion to make such a payment, but that he did not think that it would be appropriate to make a payment unless he was persuaded that there was a compelling case in favour of doing so. Furthermore it is clear that the Secretary of State does not regard the European Court's decision as determinative, though he thinks it is a weighty factor to be taken into account.

The nub of the Secretary of State's decision is contained in paragraph 17 of the Affidavit, where it is said that Secretary of State thinks that the discretionary payment of compensation in the absence of any legal liability or Court Order will not normally be appropriate unless there has been some fault or maladministation on the part of the Home Office, and that the lawful detention of the applicant pending the resolution of the Article 3 point does not amount to any such fault. It is submitted on behalf of the applicant that this misses the point. Here the applicant refers to the second of his challenges, which is that there has been a violation of the Secretary of State's obligation to provide effective machinery to review the applicant's continued detention.

It is at this point that the argument seems to me to have come round a full circle. Its begs the question as before - would the outcome have been any different? I agree with Mr Blake's submission that in private law, where damage is contingent upon the hypothetical actions of a third party, the Court will award a measure of damages commensurate with the chance that the third party would have acted in the Plaintiff's favour - see Allied Maples Group Ltd. v Simmons and Simmons (1995) 1 WLR 1602. Stuart-Smith LJ. held at page 1611 that the Plaintiff can succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages.

Mr Blake submits that to dismiss the prospects of an Article 5(4) Court admitting the applicant to bail as negligible would be irrational, and to dismiss as of no value independent judicial scrutiny.

I disagree with this submission. First, because private law analogies are not entirely appropriate in the present case. What matters here is whether it can be demonstrated that the Secretary of State behaved irrationally, and in a way in which no reasonable Secretary of State would act, when he examined his decision to refuse compensation. Second, even if the private law test was appropriate, it seems to me that the chances of the applicant being released could not realistically be assessed as anything more than speculative. True, the advisory panel did not have the characteristics of a Court, as the European Court found, but it performed an important and useful function in the respects described by that Court. Can it be said that an Article

 5(4) Court would, or might, have reached a different decision? In my opinion there is nothing to justify such a conclusion. Accordingly, in my judgment it has not been established that the Secretary of State's discretionary refusal to award compensation was irrational, or that it was in contravention of Article 5(5), or that the Secretary of State fettered his decision in the way complained of.

Therefore I refuse to order a Review of the decision, and this application is dismissed.

MR JUSTICE TUCKER: Have you all received a copy of my judgment?

MR HUSAIN: Unfortunately, I have not. I do apologise, my clerk----

MR JUSTICE TUCKER: Mr Bishop have you had a copy?

MR BISHOP: I have, my Lord.

MR JUSTICE TUCKER: I am not going to read it out, Mr Husain, you should have read it by now. I refused the application, that is what it comes to.

MR HUSAIN: Your Lordship, I am sorry, I did not hear you.

MR JUSTICE TUCKER: You should have had a copy of my judgment by now, I thought it had been sent to all counsel in the case and it has been handed down.

MR HUSAIN: My clerks were informed it was not available, a written copy, I do apologise.

MR JUSTICE TUCKER: I do not know where they heard that information. The object of handing down these judgments is to save court time in having to read them out. I am afraid I have bad news for you, I refused to order a review of the decision and the application is dismissed. If you read my judgment you will see my detailed reasons for it and perhaps you will be able to find yourself able to agree with them, I do not know. Do you have any application, Mr Bishop?

MR BISHOP: No, my Lord.

MR JUSTICE TUCKER: Do you have any application, Mr Husain?

MR HUSAIN: At the risk of being perhaps dismissive of your Lordship's judgment----

MR JUSTICE TUCKER: You can come back if you have any further application.

MR HUSAIN: I am grateful.

MR HUSAIN: My Lord, I am most grateful. I have had time to read your Lordship's judgment. My Lord, my submission is this is a complex if not a unique case involving very difficult issues of law, issues which may well have great purchase as it were, following the coming into force of the Human Rights Act which has specific provision for the entitlement to damages for breaches of 5(5) of the Convention.

My Lord, with due respect to your Lordship's judgment, I would ask for leave to appeal.

MR JUSTICE TUCKER: You need not say with due respect, I am not offended, but I hope I have it right. There may be another view, Mr Husain, so I am not offended in the slightest. Let me see what Mr Bishop has to say.

MR BISHOP: My Lord, we oppose that application. The test is whether or not there is a realistic prospect. My Lord, I would submit that if my learned friend wishes to argue that there should be leave to appeal, the appropriate place to ask for that is in the Court of Appeal but, my Lord, we would oppose the application before your Lordship on the basis that there is no realistic prospect.

MR JUSTICE TUCKER: I think it is an important case and I think there may be issues for the Court of Appeal to consider, so without conceding in any way that I may be wrong and I hope that I have it right, I think it is a fit case for leave to be granted, Mr Husain.

MR HUSAIN: My Lord, I am most grateful. May I take the precaution of asking for legal aid taxation at present.

MR JUSTICE TUCKER: Legal aid taxation of the Applicant's costs.

MR HUSAIN: I am grateful.

MR JUSTICE TUCKER: Do you have any application, Mr Bishop?

MR BISHOP: No, my Lord.