Bail Application in UK Law

I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made.

It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper.

In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is.

The seriousness of the offence and the severity of the penalty likely to be imposed on conviction may well, as pointed out at the beginning of this paragraph, provide grounds for refusing bail, but they do not do so of themselves, without more: they are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty.

The reasoning of the Supreme Court in Noordally, Maloupe (save for the penultimate sentence), Labonne and Deelchand, all cited above, is consistent with the jurisprudence on the European Convention, which recognises that the right to personal liberty, although not absolute ( X v United Kingdom (Application No 8097/77, unreported, E Comm HR)), is nonetheless a right that is at the heart of all political systems that purport to abide by the rule of law and protects the individual against arbitrary detention ( Winterwerp v Netherlands (1979) 2 EHRR 387, para 37; Engel v Netherlands(No 1) (1976) 1 EHRR 647, para 58; Bozano v France (1986) 9 EHRR 297, para 54).

But it is sufficient to show that Mr Mighty's case was reviewed on an individuated basis. It also shows that contact was maintained by the defendant with the Jamaican authorities with a view to securing removal. Ultimately, after an application on 18 September 2007, an interview was arranged with the Jamaican Embassy on 27 November 2007 to secure the necessary travel documentation.