Liversidge v Anderson

JurisdictionUK Non-devolved
JudgeViscount Maugham,Lord Atkin,Lord Macmillan,Lord Wright,Lord Romer,Mr. Valentine Holmes
Judgment Date03 November 1941
Judgment citation (vLex)[1941] UKHL J1103-2
Date03 November 1941
CourtHouse of Lords
Liversidge
and
Sir John Anderson and Another.

[1941] UKHL J1103-2

Viscount Maugham

Lord Atkin

Lord Macmillan

Lord Wright

Lord Romer

House of Lords

After hearing Counsel, as well on Thursday the 18th, as on Friday the 19th, Monday the 22d and Tuesday the 23d, days of September last, upon the Petition and Appeal of Robert William Liversidge, of 45 St. James Close, Regent's Park, N.W.8, but at present detained at His Majesty's Prison at Brixton, London, S.W., praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesy's Court of Appeal, of the 20th of June 1941, 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 the Right Honourable Sir John Anderson and the Kight Honourable Herbert Stanley Morrison, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

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 20th day of June 1941, 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.

Viscount Maugham (READ BY LORD MACMILLAN)

My Lords,

By this Appeal the appellant, so far as form is concerned, is seeking merely to have certain particulars from the defendants, the present Secretary of State for Home Affairs and his predecessor in that office, of their defence in an action of false imprisonment. The learned Master, the Judge in Chambers (Tucker, J.), and the Court of Appeal (Mackinnon, L.J., Luxmoore, L.J., and du Parcq, L.J.) have all held that the appellant is not entitled to any of the particulars he claims. In such a case this House would not generally speaking entertain an Appeal, but the circumstances are exceptional. The real object of the application is to raise at this early stage the vital question as to what onus, if any, lies on the respondents as defendants in the action in the circumstances of the case. The appellant is a person who was detained by an Order made by Sir John Anderson as Home Secretary on the 26th May,1940, under Regulation 18B of the Defence (General) Regulations, 1939. The detention has been continued by the present Home Secretary. The validity of that detention has been raised in the action in which the appellant claims damages for false imprisoment, and consequential relief. Such an action used to be described as an action for trespass vi et armis. The general rule of law in these cases is well stated by Abbot, C.J., delivering the judgment of the Court in ( Doswell v. Impey 1823, 1 B. & C. 163 at p. 169). If, he says, persons having a limited authority "do any act beyond the limit of their authority, they thereby subject themselves to an action of trespass: but if the act done be within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such action." The respondents rely on the Order for the detention of the appellant above referred to. If it is valid the action must clearly fail. The appellant accordingly seeks to throw on the respondents the burden of justifying the Order. It will be convenient shortly to state the pleadings in order to show how as a matter of pleading the question of particulars arises.

The appellant (plaintiff) claimed by his writ dated the 6th March, 1941, a declaration that his detention in Brixton Prison was and is unlawful, and damages for false imprisonment. Paragraph 2 of the Statement of Claim alleges that the first defendant was, and the second defendant now is, His Majesty's Home Secretary. Paragraphs 3, 4 and 6 of the Statement of Claim are as follows:

"(3) By a document dated the 26th May, 1940, and expressed to be a Detention Order under Regulation 18B of the Defence (General) Regulations, 1939, the first-named defendant ordered and directed that the plaintiff be detained. (4) In consequence and by reason of the said Order and direction the plaintiff was on or about the 29th day of May, 1940, arrested, and he has since been and still is detained and imprisoned at H.M. Prison at Brixton. (6) In the premises the defendants have and each of them has caused and procured the unlawful detention and imprisonment of the plaintiff and the second-named defendant continues and intends to continue the same."

Paragraph 3 of the Defence is:

"The defendants admit that the first-named defendant ordered that the plaintiff should be detained under Regulation 18B of the Defence (General) Regulations, 1939";

and paragraph 5 of the Defence is:

"None of the allegations contained in paragraph 6 of the Statement of Claim is admitted. Save as above expressly admitted, none of the allegations contained in the Statement of Claim is admitted."

It is desirable to state so far as relevant the Act of Parliament and the Regulations under which the Order for detention (or the document purporting to be such an Order) was made.

By section I (1) of the Emergency Powers (Defence) Act, 1939, it was provided that His Majesty by Order in Council "may make such Regulations… as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community."

By subsection (2) it was enacted that "without prejudice to the generality of the powers conferred by the preceding subsection, Defence Regulations may, so far as appears to His Majesty in Council to be necessary or expedient for any of the purposes mentioned in that subsection" make provision for a number of important purposes including regulations "for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of the public safety or the defence of the realm". The regulations authorised by the Act are clearly of the widest possible character and may affect not only the liberty but also the property of all subjects, with a certain limit as regards authorising conscription and as to extending the powers of courts-martial (subsection (3)). The Emergency Powers (Defence) Act, 1940, gives even greater powers to the Crown. It was under the provisions of the Act of 1939 that the Defence (General) Regulations, 1939, were made; and they have been from time to time amended.

Regulation 18B of the Defence (General) Regulations, 1939, referred to in paragraph 3 of the Statement of Claim, and in paragraph 3 of the Defence, is in the following terms:

"If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained."

That is the material subsection in the present case.

The Regulation continues thus:—

"(1A) If the Secretary of State has reasonable cause to believe any person to have been or to be a member of, or to have been or to be active in the furtherance of the objects of, any such organisation as is hereinafter mentioned, and that it is necessary to exercise control over him, he may make an order against that person directing that he be detained.

On the 29th April, 1941, the appellant applied to the Master in Chambers ( inter alia) for the following particulars, namely, "particulars in writing of the allegation in paragraph 3 of their Defence that the first-named defendant ordered that the plaintiff should be detained under Regulation 18B of the Defence (General) Regulations, 1939:—

( a) of the grounds upon which the first-named defendant had reasonable cause to believe the plaintiff to be a person of hostile associations; and

On the 8th May, 1941, Master Moseley heard the application and refused to make any order thereon. The appellant appealed from the said refusal and on the 23rd May, 1941, Mr. Justice Tucker sitting as Judge in Chambers dismissed the appeal but gave the appellant leave to appeal to the Court of Appeal. The appellant appealed to the Court of Appeal and the appeal was heard before Lords Justices Mackinnon, Luxmoore and du Parcq on the 11th and 12th June, 1941. The judgment of the Court was delivered by Lord Justice Mackinnon. It was held by the Court that on the Detention Order being proved or admitted the onus was on the plaintiff to prove that the Order was invalid. It should be mentioned that the good faith of the Secretary of State is not challenged. The judgment proceeded as follows:—

"Put in another way, if the plaintiff admits, or it is proved, that the plaintiff was detained by an Order purporting or expressed to be issued under the Regulation, and duly signed as such, the burden is on the plaintiff, if he is to claim damages for false imprisonment, to give evidence showing that the Order was invalid. As the case proceeds at the hearing, as often happens, the onus of proof may be shifted. If the plaintiff adduces evidence which goes to show the invalidity of the Order, that might happen. If, upon that happening, the defendants produced evidence which was embarrassing to the plaintiff, by way of surprise or novelty, the Judge would no doubt protect him by way of adjournment. Conceivably, in a proper case, the Judge might at that stage make some Order...

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