R (Murungaru) v Secretary of State for the Home Department and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley |
| Judgment Date | 12 September 2008 |
| Neutral Citation | [2008] EWCA Civ 1015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C4/2007/2780 & C4/2007/2781 |
| Date | 12 September 2008 |
[2008] EWCA Civ 1015
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE KEITH
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sedley
Lord Justice Jacob and Mr Justice Lewison
Case Nos: C4/2007/2780 & C4/2007/2781
Mr R Singh QC and Ms T Hetherington (instructed by Messrs Leigh Day & Co) for the Appellant
Mr J Crow QC and Ms L Giovannetti (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : Monday 28 and Wednesday 30 July 2008
Dr Murungaru was, although he no longer is, a Kenyan government minister. His multiple-entry visa for the United Kingdom was revoked without notice and without giving reasons in July 2005, about 3 months after it had been granted. Wanting to return to this country for continuing medical treatment, he brought judicial review proceedings asserting an entitlement to notice of the proposed action and to reasons for the decision (the procedural challenge) and a breach of his Convention right to a fair hearing of his claim for violation of the right of peaceful enjoyment of his possessions (the Convention challenge). A further ground concerning the prevention of entry in transit failed and was not revived.
The public interest immunity (PII) certificate issued by the Home Secretary in relation to the material (“the closed material”) which had satisfied him that it was contrary to the public interest to allow the claimant to re-enter the United Kingdom has at no stage been challenged. The formal issue now before us is how the closed material is to be handled; but before it is reached a series of other issues must be addressed.
The procedural history
Following the grant of permission in September 2005 by Collins J, on 4 October 2006 Keith J, in a full and carefully reasoned judgment [2006] EWHC 2416 (Admin), following a hearing on 9 May, decided that the refusal of entry interfered with the peaceful enjoyment of the claimant's possessions, contrary to art.1 of the First Protocol (A1P1) to the European Convention on Human Rights, requiring justification in the public interest. He concluded that he could not determine either this issue or the procedural challenges without examining the closed material.
The latter part of the holding was contrary to the submission of leading counsel for the claimant: Rabinder Singh QC had argued that there was no need to examine the material in order to adjudicate on the asserted denials of due process. Nor had counsel for the Home Secretary invited this course: the submission of Jonathan Crow QC was that there had been too little time to give the claimant advance notice; though the “gist” which was subsequently provided to the claimant (“increasing concerns regarding your involvement in corrupt practice”) gives little reason to think that notice would have been of much use to him.
Keith J accordingly stood over the application for submissions on how the closed material was to be considered by the court. He reserved the case to himself, but for some reason it was restored on 30 November 2006 before Mitting J, who decided that the Attorney-General should be invited to appoint a special advocate to deal with the closed material.
Although the stated object of the Home Secretary's appeal is to overset the decision of Mitting J to invite the Attorney-General to appoint a special advocate, the means by which Mr Crow seeks to accomplish this are to attack the reasoning of Keith J upon which Mitting J's invitation was founded. In short, Mr Crow argues that there is no viable art. 6 claim, and that the procedural fairness issue does not require the court to look at the closed material.
Time
As it presently stands, this is an appeal by the Home Secretary brought by permission which I gave on sight of the papers in February 2008 against the decision of Mitting J. Mitting J, however, took the judgment of Keith J as given, and there is now an application for permission to appeal the judgment of Keith J out of time. The Home Secretary submits that this is merely precautionary, and that because Mitting J adopted and built on Keith J's decision and reasoning, the permissible and sensible course is to treat the two as one or, if need be, to grant permission out of time to appeal against the judgment of Keith J.
Although it is quite true that Mitting J builds on Keith J, their judgments represent two distinct stages of the proceedings and have resulted in two distinct orders. It is Mr Rabinder Singh's contention that unless we now grant permission to appeal out of time against Keith J's decision – which he submits we ought not to do – his findings stand, and with them the invitation to the Attorney-General, to appoint a special advocate.
It was Keith J who on 4 October 2006 decided that both the question of procedural fairness and the question of access to a court to vindicate the A1P1 right, which he held to have been interfered with, needed to be tried out with sight of the closed material. What he stood over was the machinery by which this was to be achieved. If the Home Secretary had awaited Mitting J's decision and then made a prompt application for permission to appeal Keith J, it may very well be that an enlargement of time would have been given. But it was not until 7 December 2007, over 15 months later, that the application was made.
If permission is indeed separately required to challenge Keith J's decision, no explanation or excuse is tendered by the Home Secretary for not having applied much sooner. All that Mr Crow is able to say – and he is right about this – is that there is no appreciable prejudice to the claimant in the particular circumstances of this case, since both sides are here and ready to argue the issues. But I am satisfied that the real answer is that, although split between two judges, this is a single decision. Keith J's decision was both in form and in substance to do no more than adjourn the hearing: “There will have to be another hearing at which I shall hear argument on how the material on which the Secretary of State based his decision and the contents of the confidential schedules to the PII certificate should be considered by me.” If, as he intended, the case had come back before him, nobody would have taken the point that time for challenging the substance of his eventual decision ran from the date of the adjournment. The fortuity of its having been restored before a different judge ought not to alter this.
I would hold, accordingly, that my grant of permission to appeal Mitting J's decision embraces the Home Secretary's challenges to the reasoning of Keith J which Mitting J adopted and built upon. The application for permission to appeal the order of Keith J is otiose.
The issues
I have outlined in §6 above the grounds advanced by the Home Secretary. But two further issues have been raised by the court, and we stood over the completion of the hearing from 28 to 30 July 2008 in order to give the parties time to deal with them. They are, first, whether a contractual arrangement such as that relied on by the claimant is capable of ranking as a “possession” within A1P1, and secondly what discretion the Attorney-General has in responding to the court's request to appoint a special advocate. I will take the latter first.
The role of the special advocate
It is odd that the Home Office should have any litigable interest in whether a special advocate is to be appointed to assist the judge who is to consider the closed material on which the Home Office relies. Mr Crow says that the Home Office does not want to see public money wasted; but the real reason may lie in the time problem addressed above: all that Mitting J ostensibly decided was that a special advocate was needed, and it is only by targeting this decision that the foundations laid by Keith J can be attacked. Mitting J's own ruling, however, is also the subject of this appeal.
The reason why Mr Crow could not accept instructions to speak for the Attorney-General as well as for the Home Office is that it is in her capacity as custodian of the public interest, not her capacity as a member of the government, that the Attorney-General performs this role. We are indebted to the Attorney-General for having at short notice instructed Andrew Nicol QC, himself a member of the Attorney's panel of special advocates, to assist us on the latter issue. Special advocates in England and Wales receive support from a dedicated unit, the Special Advocates Support Office (SASO), within the Treasury Solicitor's department.
The special advocate procedure has become established in this country in the wake of the decision of the European Court of Human Rights in Chahal v UK (1996) 23 EHRR 413. The Grand Chamber in Chahal held (§131–2) that in order to satisfy the art. 5(4) due process guarantee in national security cases “there are techniques which can be employed which both accommodate legitimate security concerns … and yet accord the individual a substantial measure of procedural justice”. The United Kingdom's then rudimentary procedures were held to fall short of this standard. The Court noted that Canada had already developed such a system, and it was in response to this that the Special Immigration Appeals Commission Act 1997 set up SIAC for immigration appeals involving questions of national security. More recently, in Charkaoui v Minister of Citizenship and Immigration [2007]...
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