R (Smith) v Oxfordshire Assistant Deputy Coroner
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SULLIVAN |
| Judgment Date | 11 April 2008 |
| Neutral Citation | [2008] EWHC 694 (Admin) |
| Docket Number | CO/9518/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 April 2008 |
[2009] EWHC 694 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Lord Justice Sullivan
CO/9518/2008
Mr Graham Denholm appeared on behalf of the Claimant
Miss Holly Stout appeared on behalf of the Defendant
: This is a renewed application for permission to apply for judicial review of the defendant's decision to detain the claimant pending removal coupled with an application for interim relief in the form of a bail application.
Very briefly, the background to these proceedings is as follows. The claimant is a national of Guyana who is subject to a decision to deport him. He arrived in the United Kingdom in December 1975 with valid entry clearance for settlement to join his parents who were in the United Kingdom. He was then convicted of a number of criminal offences. The particular offence that had prompted the decision to deport was a conviction of 12 November 2003 at Bristol Crown Court for conspiracy to supply class A drugs for which he was sentenced to 4 years' imprisonment. Although the judge did not recommend deportation, he was served with a notice of intention to make a deportation order in 2005 against which he appealed.
On 18 March 2005 he was released from Dartmoor Prison on parole. While he was on parole he was convicted at Reading and Sonning Magistrates' Court of possession of class C drugs on 17 October 2005 and the magistrates fined him £50 in respect of that offence.
For whatever reason the appeal against the decision to deport in 2005 was lost in the system by the Asylum and Immigration Tribunal (AIT) so the original decision to deport was withdrawn.
On 6 April 2007 the claimant was arrested and detained by the UK Border Agency and served with a fresh notice of decision to make a deportation order. He appealed against that deportation order. On 2 May 2007 he was granted bail on condition that he reported monthly. Although it was said at one stage on behalf of the defendant that he failed to report on 16 May 2007, it is now accepted that that was not the case. On 1 June 2007 he appealed. The appeal was dismissed. Reconsideration was sought and refused by both a senior immigration judge and a High Court judge. The claimant's appeal rights were therefore exhausted on 23 October 2007.
Following that, further representations were made on his behalf on 8 November and 7 December 2007 but it seems that those representations were not received by the defendant. In any event, on 10 April 2008 a further deportation order was signed. The claimant failed to report in February and March 2008. Thereafter he reported monthly. When he reported on 18 July 2008 the deportation order was served on him and he was detained for removal on 24 July. Following that, on 21 July further submissions on human rights grounds were made on his behalf and, failing to obtain a satisfactory response to those, a judicial review application was filed on 23 July. As a result of that, the removal directions for the next day were cancelled.
Sadly, the claimant's father died on 15 August 2008. For reasons which it is unnecessary to explore in this judgment, the claimant was unwilling to go to the funeral if he was to be handcuffed to a custody officer.
The claimant was taken very ill and rushed to Hillingdon Hospital by ambulance on 6 September 2008. It is quite apparent that he was desperately ill. He was on a life support machine for a number of days. He had meningitis and indeed, according to a doctor's report, he very nearly died. Happily he recovered and was discharged from the hospital on 17 September 2008. He went back to the detention centre but to a health care facility in the detention centre.
Shortly after that, on 23 September 2008, Mr Justice Blake granted him permission to apply for judicial review in respect of the defendant's failure to accept his further submissions on human rights grounds. In his order granting permission, Mr Justice Blake indicated that if the claimant was still detained consideration should be given to his release pending the determination of his substantive judicial review claim.
Various bail applications were made and refused. A claim form in these proceedings was issued and served on 7 October 2008. It was accompanied by a medical report of Dr Shama Goldwyn. She described what had occurred to the claimant at the hospital and said that an IRC “is not a suitable place for Mr Rodney's convalescence given the gravity of the illness he is recovering from.” As I mentioned, the claimant was by that stage not in the IRC itself but in the medical wing of the IRC.
The defendant reviewed the appropriateness of the claimant's detention in a detention review dated 14 October 2008. Although this claim preceded that review, it is common ground between the parties that that is the effective decision, the lawfulness of which is being challenged. I say that because although there have been subsequent reviews it is accepted on behalf of the defendant that in terms of the reasoning adopted to justify continued detention there is no material change from that set out in the 14 October 2008 detention review. Permission to challenge the lawfulness of the claimant's detention in these proceedings was refused on the papers by Mr Ockelton, sitting as a Deputy Judge of the High Court, on 24 October 2008.
The defendant accepts for the purposes of this hearing that it is for the court to decide for itself whether the claimant's detention is lawful. On behalf of the defendant, Miss Stout has made it clear for the avoidance of any doubt that the defendant will be arguing at any substantive hearing that although it is for the defendant to show a power to detain exists, it is for the claimant to show that the exercise of power was unlawful in the particular circumstances of his case. That is a decision for the defendant. The court should not decide the matter for itself but should—given the particular issues involved—conduct a heightened Wednesbury review of the Secretary of State's decision.
It is unnecessary, in my judgment, to spend a great deal of time on that issue because the position would be the same whether I was deciding the matter for myself or whether I was conducting a heightened Wednesbury review of the decision as explained in the detention review of 14 October 2008. Putting the matter very briefly, in respect of that detention review, it is in my judgment riddled with very serious errors. The most serious errors are these: that when considering the likelihood of removal within a reasonable time scale it would appear that the decision taker decided the matter on the basis that a request had been filed at court for the claimant's judicial review in respect of which permission was granted by Mr Justice Blake to be expedited. That was a false premise.
Moving on through the detention review and dealing with two matters of particular importance—they are the likelihood of absconding and risk of re-offending—in respect of the first matter the detention review proceeds on the basis of an inaccuracy, that is there was a failure to report on 16 May 2007. I will deal in a moment with the two other failures to report in February and March 2008. It is sufficient to say in respect of those failures to report that reasons for them have been given in correspondence from the claimant's solicitor and—although the defendant maintains that those reasons are inadequate—it is to be noted that those are the only failures since the claimant was released on bail on 2 May 2007. And, perhaps of particular importance, he did report regularly as required in April, May, June and July 2008 and on the last of those occasions he was served with a further detention order.
So far as risk of re-offending is concerned, the detention review—while it notes a previous assessment by NOMS that the claimant was a low risk for re-offending—relies on the further offence on 17 October 2005 as justifying the conclusion that there is a medium risk of the claimant absconding or re-offending. It is perhaps surprising that in reaching that conclusion the decision taker did not have regard to the AIT's view of the matter which it reached in a lengthy and careful determination having heard oral evidence from the claimant and his witnesses, namely that the claimant was a low risk for re-offending. In reaching that conclusion the tribunal stated:
“We take into account particularly the independent evidence of NOMS as to his conduct both in relation to the church (?) and in connection with his previous accommodation/rehabilitation in making this particular finding.”
It is clear from the tribunal's decision that it did not decide against the appellant in his deportation appeal on the basis that there was any serious risk to the public or any risk of re-offending, rather it determined the appeal in accordance with the policy; concluding that there were no exceptional circumstances which would justify the tribunal in not making a deportation order in respect of someone who had committed an offence of the kind of which the claimant was convicted in 2003.
There are other features of the detention review that cause concern. The decision taker refers to the outstanding judicial review and rather than stating, as was the case, that permission had been given by Mr Justice Blake to apply for judicial review, it stated:
“It is noted that the grounds for judicial review are...
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