R v Governor of Brixton Prison, ex parte Ahsan
| Jurisdiction | England & Wales |
| Date | 1969 |
| Court | Divisional Court |
Commonwealth Immigrant - Admission - Refusal of - Notice - Conditions precedent to validity of issue - Examination within 24 hours of landing - Onus of proof on application for writ of habeas corpus to secure release from detention - Whether on executive -
British subjects, being Commonwealth citizens, landed clandestinely in England and were examined by immigration officers who, in each case, issued a notice of refusal of admission under Part 1 of Schedule 1 to the Commonwealth Immigrants Act, 1962, F1 and they were detained in prison. They applied for writs of habeas corpus to secure their release, and it was conceded that, in accordance with paragraph 2 (3) of the Schedule, one of the conditions precedent to the validity of the issue of a notice on which the jurisdiction to detain in custody depended was that the examination had to take place within 24 hours of landing.
On findings that the applicants had not proved that they had landed more than 24 hours before their examination, and (Ashworth J. dissenting) that the respondent had not proved beyond reasonable doubt that they had landed within 24 hours before being examined:
Held, granting the applications (Ashworth J. dissenting), that, since the court was inquiring into a claim by the executive to detain in custody a British subject (post, pp. 623H, 639B, C), and the applicants had alleged that a condition precedent to the validity of the notice of refusal had not been performed (post, pp. 625F, 638H–639A), the onus was on the executive to negative the challenge and prove beyond reasonable doubt (post, pp. 622G, 633A, B), that the condition precedent had been performed (post, pp. 625F, G, 639C, D). Accordingly, since the executive had not discharged the onus, the applicants should be released.
Per Blain J. No statutory onus is imposed on the applicants by paragraph 1 (2) of Schedule 1 to the Act of 1962 (post, p. 639C). Parliament must not be supposed to have put on a subject who has done nothing unlawful the burden of proving freedom from liability to detention in prison unless that burden is expressed in the clearest and most unequivocal terms (post, pp. 633A, B).
The following cases are referred to in the judgments:
Bushell's case (
Eleko v. Government of Nigeria [
Liversidge v. Anderson [
Reg v. Board of Control Ex parte Rutty [
Rex v. Governor of Brixton Prison, Ex parte Sarno [
Rex v. Halliday [
Rex v. Secretary of State for Home Affairs, Ex parte Greene [
Rex v. Secretary of State for Home Affairs, Ex parte O'Brien [
The following additional authorities were cited in argument:
Darnel's case (
Opinion on the Writ of Habeas Corpus (
APPLICATIONS for writs of habeas corpus.
The applicants, 11 Pakistanis, namely, Mohammad Ahsan, Mohammad Asghr (otherwise known as Shah, also Gulam), Mahdi Khan, Fazal Dean, Slamat Ali, Nur Elahi, Mir Zaman, Himat Khae, Ghulam Ahmed, Fazal Hussain and Abdul Rehman, landed clandestinely in England and were detained in Brixton Prison. The facts relating to their landing and detention are set out in the judgments.
On March 19, 1968, the court granted leave to the applicant Mohammad Ahsan ex parte to move for a writ of habeas corpus directed to the prison governor. On March 29, 1968, the court granted leave to amend the notice of motion by adding the names of the 10 other applicants.
On April 3, 1968, the application for leave to issue the writs of habeas corpus came before the court when affidavit evidence of the applicants and other witnesses on their behalf, and of immigration officers and other witnesses on behalf of the respondent was read and argument was addressed to the court on the facts and the terms of statutory provisions. No cases were cited in argument, and the submissions were concluded.
April 4. LORD PARKER C.J. The court is very concerned in this case about the matter of the burden of proof — where the burden is at any one moment. Ashworth J., who has been researching into the matter, has found quite a number of cases which I think ought to be looked at by counsel. In effect the cases state that once the governor makes a return to the writ it is for the detained person to prove, supposing it is a warrant, that it is invalid. The line of cases will be found by reference to Rex v. Secretary of State for Home Affairs, Ex parte Greene [
April 9. Quintin Hogg Q.C. and Israel Finestein for the applicants.
Gordon Slynn for the respondent.
LORD PARKER C.J. In these proceedings, Mr. Hogg moves on behalf of the applicants, 11 Pakistanis, for writs of habeas corpus directed to the Governor of Brixton Prison, where the applicants are all detained pending the giving of directions for their removal from this country under the Commonwealth Immigrants Act, 1962.
The proceedings disclose a deplorable state of affairs. The applicants are all British subjects under the
On the morning of Saturday, February 10, the 11 applicants and an Indian were found trudging along a road near Banstead; they were gradually rounded up, as it were, and brought into Banstead police station for interrogation by police officers, and later examination by immigration officers. As a result, each of the applicants was served with a notice under the Act of 1962 refusing him entry into this country, and they were thereupon removed by a constable to Brixton Prison. In each case an immigration officer has stated on affidavit that he was not satisfied that the applicant in question had arrived in this country more than 24 hours before he was examined. The relevance of that can be seen from an examination of the Act itself, and I only refer to the sections relevant for this purpose.
Section 2 (1) gives the immigration officer an absolute discretion, subject to the following subsections, as to whether he should admit a Commonwealth immigrant into this country or refuse his entry. It provides that:
“Subject to the following provisions of this section, an immigration officer may, on the examination under this Part of this Act of any Commonwealth citizen to whom section 1 of this Act applies who enters or seeks to enter the United Kingdom, — (a) refuse him admission into the United Kingdom; or (b) admit him into the United Kingdom subject to a condition restricting the period for which he may remain there, with or without conditions for restricting his employment or occupation there.”
Section 3 (1) provides that:
“The provisions of Part I of Schedule 1 to this Act shall have effect with respect to — (a) the examination of persons landing or seeking to land in the United Kingdom from ships and aircraft …” and “(d) the detention of any such persons or citizens as aforesaid pending further examination or pending removal from the United Kingdom.”
One turns then to Schedule 1 to the Act. Paragraph 1 provides that:
“(1) Subject to the provisions of this paragraph, an immigration officer may examine any person who lands or seeks to land in the United Kingdom for the purpose of ascertaining whether that person is or is not a Commonwealth citizen subject to control under Part I of this Act, and if so for the purpose of determining what action, if any, should be taken in his case under the said Part I …
“(2) A person shall not be required to submit to examination under this paragraph after the expiration of the period of 24 hours from the time when he lands in the United Kingdom unless, upon being examined within that period, he is required in...
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