R v. Governor of Holloway Prison, Ex parte Giambi

R v Governor of Holloway Prison, ex parte Giambi

QUEEN'S BENCH DIVISION

[1982] 1 All ER 434, [1982] 1 WLR 535, 3 Cr App R (S) 260

Hearing Date: 8 OCTOBER 1981

8 OCTOBER 1981

Index Terms:

Sentence - Deportation - Detention pending making of deportation order - Detention of person released on bail - Release on bail by any court having power to release person bailed - Applicant admitted to bail pending trial on one offence - Applicant later convicted of second offence by another court and recommended for deportation - On completion of imprisonment for second offence applicant detained in prison pending making of deportation order - Whether applicant 'for the time being released on bail by any court having power so to release [her]' - Whether applicant entitled to invoke grant of bail in respect of first offence as rendering invalid her detention pending deportation for second offence - Immigration Act 1981, Sch 3, para 2(1).

Held:

Separate charges of handling stolen property and threatening behaviour laid against the applicant on the same day were dealt with on different days by different magistrates' courts. On 4 September 1981 the applicant was committed by a magistrates' court to the Crown Court for trial on the handling charge and was granted bail pending trial. On 8 September the applicant was convicted by a magistrates' court on the threatening behaviour charge and sentenced to 28 days' imprisonment. On 17 September another magistrates' court made a recommendation for deportation in regard to that offence. The applicant appealed to the Crown Court against the recommendation for deportation and applied to that court for bail pending the hearing of the appeal. The Crown Court refused the application for bail. After completing the sentence of 28 days' imprisonment for the threatening behaviour offence, the applicant was, pursuant to para 2(1) a of Sch 3 to the Immigration Act 1971, detained in prison in consequence of the recommendation for deportation for that offence, pending the making of a deportation order. She applied for a writ of habeas corpus, submitting that by reason of her being granted bail on 4 September pending the trial of the handling charge in the Crown Court she was a person who was 'for the time being released on bail by any court having power so to release [her]' within para 2(1) of Sch 3, and therefore her detention under the recommendation for deportation was illegal under para 2(1). a Paragraph 2(1) is set out at p 435 j to p 436 a, post Held - On the true construction of para 2(1) of Sch 3 to the 1971 Act, a person otherwise lawfully detained under a recommendation for deportation could only invoke the grant of bail as rendering his detention illegal under para 2(1) if the bail was granted by a court seised of the question of his deportation. Since the grant of bail relied on by the applicant had been made prior to the recommendation for deportation and by a court which was dealing with another offence and which was therefore not seised of the question of her deportation, she could not invoke that grant of bail as rendering her detention in prison illegal. Accordingly the application would be refused (see p 436 d to g and j to p 437 b, post). Quaere whether 'any court' having power to release a person on bail, within para 2(1) of Sch 3 to the 1971 Act, includes a judge of the Queen's Bench Division exercising the inherent jurisdiction of that division (see p 436 j, post); R v Zaman (Mohammed) (1975) 61 Cr App R 227 considered.

Notes:

For the Immigration Act 1971, Sch 3, para 2, see 41 Halsbury's Statutes (3rd edn) 77.

Cases referred to in the Judgment:

R v Zaman (Mohammed) (1975) 61 Cr App R 227, CA.

Introduction:

Application. The applicant, Patricia Giambi, applied for a writ of habeas corpus ad subjiciendum directed to the governor of Holloway Prison, the respondent, where she was being detained pursuant to para 2(1) of Sch 3 to the Immigration Act 1971 under a recommendation for deportation made on 17 September 1981 in the Old Street Magistrates' Court pending the making of a deportation order. The effective ground of the application was that on a proper construction of para 2(1) of Sch 3 to the 1971 Act the applicant should not be detained pending the making of a deportation order. The facts are set out in the judgment of McNeill J.

Counsel:

Ian A MacDonald for the applicant. Simon D Brown for the respondent.

PANEL: COMYN AND MCNEILL JJ

Judgment By-1: McNEILL J

Judgment One:

McNEILL J delivered the first judgment at the invitation of Comyn J. This is an application by Patricia Giambi for a writ of habeas corpus ad subjiciendum. The applicant is a lady in the middle twenties and an Italian national. As a results of events on the weekend of 11 April 1981, she was charged with two offences: one of handling stolen property and the other of threatening behaviour. In circumstances which do not concern this court, the two charges were dealt with by different magistrates' courts. On 4 September 1981, on the charge of handling, the applicant was committed to the Crown Court for trial and was admitted to bial. Four days later, on 8 September, at the Old Street Magistrates' Court, she was convicted of the offence of threatening behaviour and was sentenced to 28 days' imprisonment and, on 17 September recommended for deportation. To serve the custodial sentence she was admitted to Holloway. She appealed against her conviction and sentence to the Crown Court. In due course she withdrew her appeal against conviction. In the events which have happened she has served the sentence of 28 days' imprisonment and she has abandoned her appeal against sentence save in so far as she pursues the appeal against the recommendation for deportation. In respect of that recommendation and in the context of her appeal against sentence, she applied to the Crown Court for bail pending the hearing of her appeal. The Crown Court refused that application. Her appeal against that recommendation is to be heard on 15 October. She now applies to the court for habeas corpus on the ground that her present detention in Holloway after the completion of her sentence of 28 days' imprisonment is illegal. There are two grounds of application in the formal document. The second, which relates to a contention that she is entitled to relief under the law of the European Economic Community, is not now pursued; nor indeed is there any factual information, save for the fact that the applicant is an Italian national, in the affidavit before this court which would support any such argument. Counsel for the applicant, who has presented the case persuasively and with great care, proceeds only on the first ground of application of which reads that on a proper construction of para 2(1) of Sch 3 to the Immigration Act 1971 the applicant should not be detained. The present detention, according to the certificate by the governor, is as a consequence of the recommendation for deportation made by the Old Street magistrates to which I have referred. The justification said to exist for that continued detention is that in the schedule to which the application refers. Paragraph 2(1) of Sch 3, according to the sidenote, relates to the arrangements for detention or control pending deportation, and reads as follows:

'Where a recommendation for deportation made by a court is in force in respect of any person [and that is the position here], and that person is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him, he shall, unless the court by which the recommendation is made otherwise directs, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case.'

There has been no such direction by the Secretary of State. The applicant is not now detained in pursuance of the sentence of any court. Counsel contends that the applicant can rely on those words in the paragraph, 'nor for the time being released on bail by any court having power so to release him', and he contends, on a proper construction of that paragraph, that the admission of the applicant to bail on 4 September by the Clerkenwell Green magistrates on the charge of handling is a release on bail by a court having power to release the applicant. Therefore the detention, by reason of that admission to bail, is illegal. In support of that contention, counsel draws attention to the fact that the preceding words of the paragraph, 'that person is neither detained in pursuance of the sentence or order of any court', clearly provide that any lawful detention under sentence or order by any court is sufficient, under the paragraph, to justify continuing detention and that, of course, is so. Counsel goes on to say that if the paragraph is construed in that way in relation to a sentence or order, then it should be so construed when looking at the words 'any court having power so to release him'. I do not accept that interpretation of the paragraph. It is obviously good sense to include the words relating to sentence or order of any court justifying detention. As has been pointed out, if a person recommended for deportation is sentenced to a long term of imprisonment, whether for the offence on which the recommendation was made or some other quite different offence, the detention is, by reason of that sentence, a lawful detention and the paragraph does not have to be invoked to justify the continuing detention. But as I see it, it would be putting an absurd construction on the words of the paragraph to go from there to a construction which enabled any court, wherever situate and however ill-informed on whatever irrelevant charge, granting bail to enable an applicant detained otherwise lawfully under a recommendation to invoke that admission to bail as a basis for saying that the detention was illegal. On that broad question of construction I would refuse this application. On the narrower facts of this case, in my view the matter is even plainer because the admission to bail relied on was, as I have said, on 4 September. The recommendation was not made until 17 September and it would, to my mind, be a situation Parliament cannot have envisaged that an admission to bail prior to a recommendation could, as it were, have effect after a lawful sentence of imprisonment had been completed and thereafter there was a continuing recommendation for deportation. The remaining question on the construction of the paragraph is this. Counsel for the applicant invites the court, when looking at the words, 'any court having power so to release him', to consider to what court that could apply. This court is not, on this application, required to consider what may be the powers of the Crown Court when there is an appeal to the Crown Court from a recommendation for deportation made by the magistrates' court. The only relevant consideration is that on the facts of this case an application was made to the Crown Court for bail and was refused pending appeal. Counsel for the applicant has properly drawn the attention of the court to the decision of the Court of Appeal, Criminal Division, in R v Zaman (Mohammed) (1975) 61 Cr App R 227, where some observations of Lawton LJ suggest that the only court which may deal with release is the recommending court. In that case the question arose only after that court had dismissed an appeal against a decision of the Crown Court making the recommendation for deportation and it may be that that court considered it was functus so far as these questions were concerned. For my part, I would reserve the question whether 'any court' in this context includes a judge of this Division exercising the inherent jurisdiction of the Queen's Bench Division. At the end of the day it seems to me the words, 'release on bail by any court having power so to release him', must relate, by the inclusion of the words 'having power', to a court which is seised of the question of deportation, whether it be the recommending court, a Crown Court on appeal or, it may be, a judge of this court exercising its inherent jurisdiction. I would refuse this application.

Judgment Two:

COMYN J. I entirely agree with the judgment that has been given. The application will accordingly be refused.

DISPOSITION:

Application refused.

SOLICITORS:

Birnberg & Co (for the applicant); Treasury Solicitor.