R v Secretary of State for Home Affairs, ex parte Greene
| Jurisdiction | England & Wales |
| Judge | Viscount Maugham,Lord Atkin,Lord Macmillan,Lord Wright,Lord Romer |
| Judgment Date | 03 November 1941 |
| Judgment citation (vLex) | [1941] UKHL J1103-1 |
| Date | 03 November 1941 |
| Court | House of Lords |
[1941] UKHL J1103-1
Viscount Maugham
Lord Atkin
Lord Macmillan
Lord Wright
Lord Romer
House of Lords
After hearing Counsel, as well on Tuesday the 23d, as on Wednesday the 24th and Thursday the 25th, days of September last, upon the Petition and Appeal of Benjamin Greene, at present detained in His Majesty's Prison at Brixton, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 30th of July 1941, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises, as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Secretary of State for Home Affairs, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 30th day of July 1941, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
Viscount Maugham (READ BY LORD MACMILLAN)
My Lords,
This is an appeal from an Order of the Court of Appeal dated the 30th July 1941, confirming an Order of the King's Bench Division dated 2nd day of May 1941 refusing the application of Benjamin Greene (the appellant) for a Writ of Habeas Corpus to issue. The appellant is at present detained in His Majesty's Prison, Brixton, under an Order purporting to be made under Regulation 18B of the Defence (General) Regulations (being Regulations made under the Emergency Powers (Defence) Act 1939).
The question for decision on the Appeal to your Lordships is whether the appellant is entitled to have a Writ of Habeas Corpus issued directed to the respondents. The Divisional Court (Humphreys, Singleton and Tucker, JJ.) decided in the negative, and their judgment was affirmed by the Court of Appeal (Scott, Mackinnon and Goddard L.JJ.).
The Order for detention was made by the respondent, the then Secretary of State for Home Affairs, and was in the following terms:—
"DEFENCE (GENERAL) REGULATIONS, 1939 DETENTION ORDER
WHEREAS I have reasonable cause to believe BEN GREENE of The Hall Cottage, Berkhamsted to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him.
NOW, therefore, I in pursuance of the power conferred on me by Regulation 18B of the Defence (General) Regulations, 1939, hereby make the following Order:—
I direct that the above mentioned BEN GREENE be detained.
(Signed) JOHN ANDERSON,
One of His Majesty's Principal
Secretaries of State.
Home Office,
Whitehall.
22nd May, 1940."
The appellant according to modern practice ( R.S.C. Order 59) applied ex parte to the Divisional Court for the issue of the Writ and his application was adjourned to be heard after notice to the respondent. The appellant filed affidavits in support of his application, making (so far as now material) two submissions.
The first was that the Order was and is bad because Sir John Anderson never had reasonable or any cause for believing that the appellant had been recently concerned in acts prejudicial to the public safety and the defence of the realm and in the preparation and instigation of such acts and that it was necessary to exercise control over him.
The second was based on a very regrettable error made by the Chairman of the Advisory Committee appointed under Regulation 18B paragraph (3) or his officer in informing the appellant of the grounds on which the order had been made against him (Regulation 18B (5)). He submitted that he had been prejudiced in his hearing before the Advisory Committee by reason of this circumstance.
The respondent filed an affidavit in which ( inter alia) he said:—
"Before I made the said Order I received reports and information from persons in responsible positions who are experienced in investigating matters of this kind and whose duty it is to make such investigations and to report the same to me confidentially. I carefully studied the reports and considered the information and I came to the conclusion that there was clear cause to believe and I did in fact believe that Benjamin Greene was a person of hostile associations and that by reason thereof it was necessary to exercise control over him.
A copy of the Detention Order was sent by me to the Advisory Committee appointed under Regulation 18B of the Defence (General) Regulations 1939 on 31st May 1940. I am unable to say how the error occurred in the document which is exhibit 'BG.2' to Mr. Greene's affidavit. The error is an error in the statement of my reasons for making the Order and there is no error in the Particulars. I submit that the error cannot have prejudiced Mr. Greene as he had had a copy of the Detention Order, as he admits in his affidavit, and I have caused inquiries to be made and have ascertained that he took no exception before the Advisory Committee to the terms of the document B.G.2. The Advisory Committee duly reported to me. After again considering all the information about the case, including the Committee's report, I was confirmed in my belief that Mr. Greene was a person of hostile associations and that by reason thereof it was necessary to exercise control over him. Accordingly I decided to maintain the existing Detention Order."
The respondent's affidavit moreover stated that he had satisfied himself that the appellant was and is a person of hostile associations and that by reason thereof it was necessary to exercise control over him.
The remainder of the evidence in the affidavits related almost entirely to the complaint as to the statement of grounds for his detention sent to him by the Chairman of the Advisory Committee, and certain other matters which are not now relied upon by the appellant. The Judges in the Divisional Court and the Lords Justices in the Court of Appeal have found that the appellant was not in fact prejudiced by the error in the document sent to him by the Advisory Committee. He was aware of the error and did not suggest to the Advisory Committee that it prejudiced him in any way and the particulars given in the document covered the actual ground on which he had been detained.
I shall deal first with the question whether a Writ of Habeas Corpus ought to be issued.
My Lords, a somewhat similar Appeal to this House in the case of Liversidge v. Sir John Anderson has just been decided. It was based on an Order of detention made by the Secretary of State under Regulation 18B of the Defence (General) Regulations and it raised the same question as to the true construction of the words "If the Secretary of State has reasonable cause to believe" etc. The Act of Parliament under which the Regulations were made and the Regulations themselves so far as relevant are sufficiently stated in that case and need not be repeated here. Your Lordships there decided that the words, in the context in which they are found, referred simply to the belief of the Secretary of State, based on his view as to there being reasonable cause for the personal belief which justifies the Detention Order. That opinion is of course binding on your Lordships, and none the less that in the earlier Appeal the question arose in an action of false imprisonment and here arises on an application for a Writ of Habeas Corpus. Your Lordships also expressed the opinion that the Secretary of State could not be called upon to disclose his information or grounds of belief if he took the view that it would be contrary to the public interest to do so. These two propositions must be borne in mind in considering the propriety of acceding to the application for the issue of a Writ of Habeas Corpus.
My Lords, I am certain that this House would be very unwilling to curtail or diminish the rights of an applicant for a Writ of Habeas Corpus ad subjiciendum; but we are of course sitting in a judicial capacity and are bound by the law as it exists. It is inaccurate to say, as some have said, that the Writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty. What the Judges of the High Court can do at the instance of the imprisoned person is to command the production of the person and to inquire into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released; but there are many cases, and in particular those of a criminal, or supposed criminal, character, in which a return to the Writ (to use the old-fashioned phrase) cannot be traversed or impeached by affidavit ( Carus Wilson's Case (1845) 7 Q.B. 984; Ex. p. Lees (1858) E.B. and E. 828; re Newton (1855) 16 C.B. 97). On the other hand in cases other than for some criminal or supposed criminal matter and except cases of imprisonment for debt or by process in any civil suit, the Judge is empowered by the Habeas Corpus Act, 1816 (56 Geo. III c. 100 s. 3), although the return to the Writ be sufficient in law, to examine into the truth of the facts therein set forth by affidavit or by affirmation; and if the truth of the facts returned appear to him doubtful, he may bail the party and transmit the Writ, return, etc. to the Court of which he is a Judge, whereupon "it shall be lawful for the said Court to proceed to examine into the truth of the facts set forth in the return in a summary way by affidavit" etc. "and to order and determine touching the discharging" etc. In my opinion the present case is within sections 3 and 4 of that Act, since no charge of a...
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