R v Secretary of State for the Home Department, ex parte Dannenberg
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DUNN |
| Judgment Date | 06 March 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0306-1 |
| Docket Number | 84/0098 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 1984 |
[1984] EWCA Civ J0306-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
Lord Justice Dunn
Lord Justice O'connor
Lord Justice Parker
84/0098
MR A.R.H. NEWMAN, instructed by Messrs Winstanley-Burgess, appeared for the Appellant (Applicant).
MR D.N.R. LATHAM, instructed by The Treasury Solicitor, appeared for the Respondent (Respondent).
This is the judgment of the court. This is an appeal from a judgment of the Divisional Court given on 29th September 1983 whereby the court dismissed applications for judicial review, made with leave, for orders of certiorari to remove into the High Court and quash a deportation order made by the Home Secretary on 30th June 1983, and a recommendation for deportation made by the Mix-Sussex magistrates on 19th May 1983. The principal ground of the application to the Divisional Court was that the magistrates, in making the recommendation, did not give any reasons, contrary to the provisions of E.E.C. Council Directive of 25th February 1964(64/221/EEC) as interpreted by the Court of Justice of the European Community in R. v. Secretary of State for Home Affiars, Ex parte Mario Santillo. 1980, 2 C.M.L.R., 308.
We take the facts from the judgment of the Divisional Court which was in the following terms: "The applicant is a citizen of the Federal Republic of Germany. He came to this country in July, 1981 and was given temporary permission to enter and stay. On a date in 1982, he was given a resident's permit for a period of five years.
"On 29th April, 1983, the applicant appeared before the Mid-Sussex Magistrates' Court, sitting at Haywards Heath, charged with seven offences. Four of those offences required his consent to summary trial. He gave that consent, and to those four offences and the three other offences he entered pleas of guilty. The justices then adjourned the matter.
"The matter next came before the justices on 19th May, 1983. By that time, in addition to considering sentence, the justices had before them a notice which had been given to the applicant not less than seven days previously, pursuant to section 6(2) of the Immigration Act, 1971, to the effect that they would be invited to consider whether or not they should make a recommendation for the deportation of the applicant. The justices sentenced the applicant in respect of the seven offences and made a recommendation pursuant to section 6(1) of the Act. The applicant himself was present at both hearings; he was represented by a solicitor.
"The material before the justices, having regard to the fact that pleas of guilty had been entered, was as follows: an outline of the relevant facts in relation to each charge by the prosecuting solicitor; the applicant's antecedent history, including a list of his previous convictions both in this country and in Germany; a social inquiry report upon the applicant; and the evidence of the immigration officer. The justices were addressed by the applicant's solicitor, as he thought fit, in respect of those various matters which the justices had to consider. The justices passed the sentence and made the recommendation to which I have referred.
"Pursuant to that recommendation, the applicant was ordered to be detained until the Secretary of State considered the recommendation. In due course the Secretary of State did consider it and, on 30th June, 1983, he made a deportation order under section 5(1) of the Act, the applicant having become liable for that course by virtue of section 3(6). Thereafter, in pursuance of the contents of that order, he was detained until removal."
Neither the justices nor the Home Secretary gave any reasons for the recommendation or the deportation order.
In this court Mr Latham for the Home Secretary submitted that the court had no jurisdiction to consider an appeal from the refusal of the Divisional Court to quash the recommendation, because such refusal constituted a judgment of the High Court in a "criminal cause or matter", so that no appeal lay to this court by reason of section 18(1) (a) of the Supreme Court Act 1981.
Section 6(5) of the Immigration Act 1971 provides that, where a court recommends a person for deportation, the recommendation shall not be called in question except on an appeal against the recommendation or against the conviction for which it is made, but the recommendation shall be treated as a sentence for the purpose of any enactment providing an appeal against sentence. Section 50(1) of the Criminal Appeal Act 1968 provides that the word "sentence" in relation to an offence includes a recommendation for deportation. (See also section 47(7) of the Supreme Court Act 1981.) Schedule 3 of the Immigration Act 1971, as amended by section 64 and schedule 10 of the Criminal Justice Act 1982, gives power to detain a person recommended for deportation pending the making of a deportation order.
For many years the test to be applied in deciding whether or not a judgment was given in a criminal cause or matter was thought to have been settled in the House of Lords in Amand v. The Home Secretary and Another, 1943, A.C., 147. Lord Wright said at page 162: "The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter.' The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal." This test involves looking at the order under review, and if it was made in the course of criminal proceedings then it is a "criminal cause or matter."
If that test is applied in this case, it is clear that the refusal to quash the recommendation was made in a criminal cause or matter. The recommendation was made in criminal proceedings following a conviction and, for the purpose of appeal, was to be treated as part of the sentence.
However, since Amand'scase (supra), there have been a number of decisions of this court which it is said suggest that the test is a different one. In E. v. Southampton Justices, Ex Parte Green, 1976, 1 Q.B., 11, this court held that an appeal from a decision of justices to estreat a recognizance was not a criminal cause or matter. In that case, although Lord Denning M.R. looked at the application to estreat and not at the order of the High Court, he applied the test suggested by Viscount Simon in Amand's case (supra) at page 156: "If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal." Lord Denning held that the outcome of the application to estreat was not a trial of the surety; there was no possible punishment, and he treated the application as being a civil proceeding separate from the criminal proceedings in which the recognizance had been given.
In R. v. Sheffield Crown Court, ex parte Brownlow, 1980, 1 Q.B., 530, this court held by a majority (Lord Denning M.R. dissenting) that the Divisional Court had no jurisdiction to consider an application to quash a judge's order in the crown court, that the Chief Constable be supplied with a copy of the panel of jurors and that he should supply to the solicitors for the defence and prosecution full particulars of any criminal convictions recorded against any member of the panel. The decision turned on sections 10(1) and (5) of the Courts Act 1971, and the majority held that the judge's order was a matter in relation to a trial on indictment. Lord Denning M.R. at page 537 held that this court had jurisdiction to entertain an appeal, since the judge's order was not made in a criminal cause or matter. He once again went hack to the order itself and, applying the same test as he had applied in ex parte Green (supra), treated the order as being a separate matter from the trial of the accused and was not a trial of the Chief Constable leading to punishment. Lord Justice Shaw at page 543 expressed the view that, while the order was ancillary and collateral to a criminal cause or matter, it might not fall within the scope of such matters. Lord Justice Brandon at page 546 expressed no concluded view.
In R. v. Lambeth Metropolitan Stipendiary Magistrate, ex parte McComb, 1983, Q.B., 551, the Divisional Court refused an application for a declaration against the Director of Public Prosecutions with regard to the release of certain exhibits in committal proceedings pending against the applicant. Sir John Donaldson M.R. at page 563 followed ex parte Green (supra) and described the test as being "whether the order sought to be reviewed was itself criminal in the sense that it was one which could lead to a trial or punishment." Applying that test, he held that this court had jurisdiction to entertain an appeal. Lord Justice May at page 567 also felt bound to apply the test in ex parte Green (supra), although doubting whether it was correct and preferring the approach of Lord Wright in Amand's case (supra).
Mr Newman submitted in this court that a recommendation for deportation could not lead to a trial or punishment and so was not a criminal cause or matter. Its only...
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