R v Governor of Brixton Prison, ex parte Soblen

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date31 August 1962
Judgment citation (vLex)[1962] EWCA Civ J0831-1
Date31 August 1962

[1962] EWCA Civ J0831-1

In The Supreme Court of Judicature

Court of Appeal


The Master of The Rolls (Lord Denning),

Lord Justice Donovan and

Lord Justice Pearson

Re a Writ of Habeas Corpus ad Subjiciendum

The Queen
The Governor of Brixton Prison Ex Parte Robert Soblen

MR. F. ELWYN JONES. Q. C., MR. P. SOLOMON and MR. L. J. BLOM-COOPER(instructed by Messrs. Kaufman & Seigal) appeared as Counsel for the Appellant.

THE ATTORNEY-GENERAL (Sir John Hobson. Q. C.) and MR R. A BARR(instructed by The Treasury Solicitor) appeared as Counsel for the Respondent.


In this case Dr. Soblen applies for a Writ of habeas corpus. He is an alien, but the Writ of habeas corpus is available to anyone within this country "ho is being detained. By means of it he can call upon those who are detaining him to show that his detention is justified by law.


In this case a Deportation Order of the Home Secretary. Mr. Henry Brooke, dated 11th August, 1962 is produced by way of justification. It reads: "Whereas I deem it to be conducive to the public good to make a Deportation Order against Robert Soblen an alien: now, therefore, in pursuance of the power conferred upon me by paragraph (2)(b) of Article 20 of the Aliens Order, 1953. I hereby order that the said Robert Soblen shall leave and thereafter remain out of the United Kingdom: and in pursuance of the powers conferred on me by paragraphs (1) and (4) of Article 21 of the said Aliens Order 1953, I hereby authorise any Immigration Officer at any time after this Order is served on the said Robert Soblen to place him on board a ship or aircraft which is about to leave the United Kingdom and I hereby authorise the Governor of Her Majesty's Prison at Brixton to detain him until arrangements are completed for so placing him on board".


That Detention Order is good on the face of it, and affords prima facie a justification for the detention of Robert Soblen. It has been challenged before us on four grounds. The first ground of challenge was that the Aliens Order, 1953 was invalid because there was no war or emergency at the time it was made. It was said that on the true construction of the Aliens Act, 1914 the authority to impose restrictions on aliens only applied on an occasion of imminent national danger or great emergency. The plain answer to That contention is given by Section 1 of the Aliens Act, 1919. The authority to impose restrictions is not so confined.


It can be exercised "at any time". And the Section has been continued every year since that time. It is too plain for argument.


The second ground of challenge was that the Home Secretary had already put into force the provisions of Article 8 of the Order whereby Dr. Soblen was refused leave to land and the carrier was ordered to remove him. It was said that so long as those directions remained unwithdrawn, there was no power in. the Home Secretary to make a Deportation Order under Article 20. That challenge was rejected by the Judge and not pursued before us. The fact that the carrier disobeys the directions which are given to him cannot prevent the Home Secretary from acting on the deportation provisions if he so thinks fit. I agree with the learned Judge's judgment on this point save that it must not be taken that a person could not be detained at one and the same time under the provisions of Articles 8(4) and 21(4) of the Order.


The third ground of challenge was that it was said that the Home Secretary could not make a Deportation Order unless he had first given the person affected the opportunity to be heard, and in this case the Home Secretary had made this Deportation Order against Dr. Soblen without any such opportunity being given. I quite agree that when a public officer is given the power to deprive a person of his liberty or his property, the general principle of our law is that that is not to be done without his first being given an opportunity of being heard and of making representations on his own behalf. That has been the tenor of the decisions of these Courts for nearly 100 years. But there are exceptions. A Statute may expressly or by necessary implication provide that the person affected is not to be given a right to be heard. Such an exception has been held to exist in the case of Deportation Orders. In 1920 it was held by aDivisional Court In re ( Venicoff 1920 (3) Queen's Bench, page 72) that an alien has no right to be heard before a Deportation Order is made against him. That case has been questioned before us and it has been suggested that it was wrongly decided.


All I need say about it is that in 1953, without any dissent in Parliament, an Order was made in the very selfsame words as the Order considered in icoff's case. It is a reasonable assumption that Parliament proceeded on the assumption that Venicoff's case was good law. And when I look to the objects of this legislation, It seems to me that much of the purpose of it would be defeated if it were necessary for the Home Secretary always to give every alien the right of being heard before a Deportation Order is made. Reasons of security themselves might be such as to make it unwise and undesirable to give him advance notice of the intention to make a Deportation Order. He might well take advantage of it so as to absent himself and to avoid apprehension. I think therefore that there is no right to be heard before a Deportation Order is made: I reserve my opinion, however, on the following point: It may be a question whether, after a Deportation Order is made and before it comes to be executed (by his being expelled from the Realm), an alien may not in some circumstances have a right to be heard. It does not arise here because, as in Venicoff's case, so in this case the Home Secretary has stated his willingness to hear and consider any representations which the person affected desires to be made.


This brings me to the principal ground of challenge. It is said that the Home Secretary in making this Deportation Order is using it as a means of achieving an ulterior object; his real object, it is said, is to surrender a fugitive criminal to the United States of America; and it is being done, it is said, at the request of the United States of America; and thatby our law no fugitive criminal is to be surrendered to another country except in accordance with legislation in that behalf, in particula in accordance with extradition provisions duly complied with.


On this point I desire to say that the law of extradition is one thing; the law of deportation is another. For myself I go a great way with Mr. Elwyn Jones's argument on the law of extradition. As I understand it, by the Common the Law of England, (affirmed by implication in/Extradition Acts) every person coming from abroad, as soon as he sets foot lawfully in this country, is free; and so long as he commits no offence here he is not to be arrested or detained for any offence that he may have committed in some other country. If any attempt were made to arrest him in order to surrender him to that other country, he would at once be entitled to be set free. The Writ of habeas corpus is available to him for the purpose In the absence of an extradition treaty, it is no answer for the Crown, or any officer of the Crown, to say that he wishes to send him off to another country to meet a charge there. That this is the law is clearly stated in Sir Edward Clarke's book upon Extradition at page 26: "If any Magistrate were now to arrest a person on this ground" that is on the ground that he desires to surrender him to a foreign country for trial "the validity of the commitment would certainly be tested, and, in the absence of special legislative provisions, the prisoner as certainly discharged upon application to one of the Superior Courts". Lord McNair in his volume of International Law Opinions at page 41 says the same: "For some time the law was doubtful, but later it became recognized that the Crown could not surrender an alleged criminal even if it wished to do so, unless the surrender was authorised by legislation". It is unlawful therefore for the Crown to surrender a fugitive Criminal to a foreign country unless it is warranted by anextradition treaty with that country. If there is an extradition treaty, the Crown can surrender him for an extraditable offence if the requisite steps are taken; but it cannot surrender him for a nonextraditable offence. Now the offence for which Dr. Soblen was convicted in the United States is not an extraditable offence. If therefore this case were one of extradition, that is, if the purpose of the Home Secretary was simply to surrender him as a fugitive criminal in response to a request of the United States, that purpose would be unlawful. That is the force of Mr. Elwyn Jones's argument.


But although such is the law of extradition there is another side to the picture, that is, the law of deportation. Here we come upon another principle of our law. Although every alien, as soon as he lawfully sets foot in this country, is free, nevertheless the Crown is entitled at any time to send him home to his own country, if in its opinion his presence! here is not conducive to the public good; and it may for this purpose arrest him and put him on board a ship or aircraft bound for his home country. That was clearly the law under the Aliens Order, 1916 as interpreted by this Court in the Chateau Thierry case in 1917 (1917, 1 K. B. page 922) and the Sacksteder case in 1918 (1918, 1 K. B. page 578) and it is clear now under the Aliens Order, 1953. It is unnecessary to go into the state of the law before the Aliens Orders. I always understood that the Crown had a Royal Prerogative to expel an alien and send him home whenever it considered that his presence here was not conducive to the public good. Sir William Blackstone certainly said in the first volume of his Commentaries (pages 259 260):...

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