Amand v Secretary of State for Home Affairs and Another

JurisdictionUK Non-devolved
JudgeThe Lord Chancellor,Lord Thankerton,Lord Wright,Lord Porter
Judgment Date21 July 1942
Judgment citation (vLex)[1942] UKHL J0721-1
Date21 July 1942
CourtHouse of Lords
Secretary of State for Home Affairs and Another

[1942] UKHL J0721-1

Lord Chancellor

Lord Atkin

Lord Thankerton

Lord Wright

Lord Porter

House of Lords

After hearing Counsel for the Appellant, as well on Monday the 13th, as on Tuesday the 14th, Thursday the 16th and Friday the 17th, days of this instant July, upon the Petition and Appeal of Jean Jacques Amand, of Glenavon, Ousley Road, Wraysbury, in the County of Buckingham, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 19th of March 1942, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of His Majesty's Secretary of State for Home Affairs and the Minister of Defence of the Royal Netherlands Government, lodged in answer to the said Appeal; and Counsel appearing for the Respondents, but not being called upon; and due consideration being had this day of what was offered for the said Appellant:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 19th day of March 1942, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

The Lord Chancellor

My Lords,


The House has already announced and put into effect its unanimous decision that this Appeal should be dismissed, for there were good public reasons why this conclusion should be promptly known. The Appeal has been put in the list for to-day in order that the reasons for that conclusion should be stated. The following is my opinion, in which my noble and learned friend Lord Atkin desires me to say that he concurs.


Notwithstanding the able argument addressed to us by the two Counsel for the Appellant, I entertain no doubt that this Appeal should be dismissed. The whole question is whether the Appeal from the Divisional Court to the Court of Appeal was an Appeal from a "judgment of the High Court in any criminal cause or matter" within the meaning of Section 31 of the Supreme Court of Judicature (Consolidation) Act, 1925. By Section 225 of that Act "matter" includes every proceeding in court not in a cause. The Court of Appeal thought that the decision of the Divisional Court was "in a criminal cause or matter" and consequently held that the Appeal was incompetent. I agree with that view, and, as your Lordships are of the same opinion, it follows that the Appeal to this House must fail.


The Appellant is a Netherlands subject and has lived in England for the last 14 years. By a Royal Decree dated 8th August, 1940, the Queen of the Netherlands purported to impose on all Netherlanders, born between certain dates and resident in Great Britain, an obligation to register for military service with the Netherlands Forces. Article 3 of the Decree defines "ordinary conscripts," and Article 6 provides that, upon being called up for military service, an "ordinary conscript" shall be deemed to have been enlisted with the Netherlands Navy or Army. This definition of an "ordinary conscript" applies to the Appellant.


On 9th August, 1940, and again about 16th August, 1940, the Appellant received calling-up notice under this Decree ordering him to report to a Netherlands armed camp as a conscript. The Appellant complied with the notice under protest and served with the Netherlands Army in England until 30th January, 1941, when he was given one week's leave. He did not return to service upon the expiration of his leave, and on 17th February, or thereabouts, British police officers called upon him and requested him to return to camp. He did not do so, and on 4th March, a detective sergeant of the Metropolitan Police informed the Appellant at Bow Street Police Station that if he did not return he would be arrested and that he would then be handed over to the Netherlands military police. The Appellant, taking the view that he was not amenable to the military law of the Netherlands, still did not return to camp, and on 14th March, 1941, he was arrested and detained at Bow Street Police Station. Next day he was brought before the Chief Metropolitan Magistrate, who released him on bail on being informed that an application had been made on the previous day for a writ of habeas corpus. This application was dealt with by a Divisional Court on 23rd May, when the writ was refused. The Appellant attempted to appeal to the Court of Appeal from this decision, but he later abandoned this, surrendered to his bail, and made a new application for a writ of habeas corpus to Mr. Justice Uthwatt as Vacation Judge on 27th August, 1941. That learned Judge directed that notice of the application should be served upon the Home Secretary and the Dutch Minister of Defence, and the Appellant was again released on bail.


In January, a Divisional Court, consisting of Mr. Justice Wrottesley, Mr. Justice Croom-Johnson, and Mr. Justice Cassels, dealt with this application. The fact that the Appellant had been released on bail was, by agreement, disregarded and the case was argued on the assumption that he was still in the custody of the police. The argument before the Divisional Court turned on the question whether or not the Appellant was a member of the Netherlands Forces and, as such, came within the purview of the provisions of the Allied Forces Act, 1940, and the Order in Council made thereunder. The Divisional Court reserved its decision and on 30th January, 1942, delivered judgment unanimously dismissing the Appellant's application, [1942] 1 K.B. 445. It is from this judgment that the Appellant sought to appeal to the Court of Appeal and, as I have already said, that Court (consisting of the Master of the Rolls, MacKinnon L.J. and Goddard L.J.) unanimously held that the preliminary objection that no appeal lay was well founded.


The House, therefore, has to decide the question whether the judgment of the Divisional Court, refusing a writ of habeas corpus, was a judgment in a "criminal cause or matter." If we were to take the view that it was not, then, and then only, would it become necessary for either the Court of Appeal or this House to consider the correctness of the decision of the Divisional Court that the Appellant was a member of the Netherlands Forces. If no appeal lies, that question cannot be canvassed on this appeal.


My Lords, section 1 (3) of the Allied Forces Act, 1940, empowers His Majesty to provide by Orders in Council for the application of certain sections of the Visiting Forces (British Commonwealth) Act, 1933, with or without adaptations and modifications, to the military forces of any Power allied with His Majesty who are for the time being present in the United Kingdom. The Dutch Forces now in this country come within this description. In the exercise of this power, His Majesty by Order in Council dated 11th October, 1940 ( No. 1818 of Statutory Rules and Orders, 1940), ordered that such of the provisions of the 1933 Statute as are contained in the Schedule to the Order in Council should have effect, as therein set out with adaptations and modifications in relation to the naval, military, and air forces of (amongst other allied Powers) the Netherlands. The relevant provision of the 1933 Statute as applied with adaptations and modifications is set out in section 3 of the Schedule.


Section 3 runs as follows:—

"3—(1) This section applies to the naval, military and air forces of allied Powers, whether or not they are allied forces as defined in paragraph 2 of this Order.

(2) Subject to the provisions of this section, paragraphs (1) to (4) and paragraph (9) of section one hundred and (fifty-four of the Army Act (which relates to the apprehension of deserters and absentees without leave from a home military force) shall within the United Kingdom apply in relation to a deserter, or absentee without leave, from any force to which this section applies, as they apply in relation to a deserter, or absentee without leave, from a home military force, but as if any reference in the said paragraphs to military custody included a reference to naval or air force custody;

Provided that the said paragraph (9) shall not apply by virtue of this subsection except in relation to a deserter or absentee without leave from an allied force.

(3) No person who is alleged to be a deserter from any such force as aforesaid shall be apprehended or dealt with under this section except in compliance with a specific request from the Government of the allied Power to which the force belongs, and a person so dealt with shall be handed over to the authorities of that Power at such place in the United Kingdom as may be agreed:

Provided that a person who is alleged to be a deserter or absentee without leave from an allied force may also be apprehended and dealt with under this section in compliance with a request, whether specific or general, from the officer commanding that force.

(4) For the purposes of any proceedings under this section—

(i) a document purporting to be a certificate under the hand of the Secretary of the Admiralty, the Secretary of the Army Council or the Secretary of the Air Council, that a request has been made under sub-section (3) of this section shall be admissible without proof as evidence of the making of such a request;

(ii) a document purporting to be a certificate...

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