R v Secretary of State for Home Affairs, ex parte Hosenball

JurisdictionEngland & Wales
JudgeLORD JUSTICE GEOFFREY LANE,LORD JUSTICE CUMMING-BRUCE
Judgment Date29 March 1977
Judgment citation (vLex)[1977] EWCA Civ J0329-1
Date29 March 1977
CourtCourt of Appeal (Civil Division)
In the Matter of An Application By Mark Jeffrey Hosenball For Leave To Apply For An Order Certiorari
and
In the Matter of An Order Of Deportation Made On 16Th February, 1977 By The Secretary Of State For Home Affairs Pursuant To Section 5(1) Immigration Act, 1971

[1977] EWCA Civ J0329-1

Before:

The Master Of The Roils (Lord Denning)

Lord Justice Geoffrey Lane And

Lord Justice Cumming-Bruce

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court Of Justice

Queen's Bench Division

(Divisional Court)

MR. L. J. BLOM-COOPER, Q.C., and MR. J. M. CAPLAN (instructed by Messrs. Simons, Muirhead & Allan, London) appeared on behalf of the Applicant.

MR. H. K. WOOLF (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

1

THE MASTER CO THE ROLLS: Mark Hosenball is now only 25. He came here from the United States when he was not quite 18. He came on a scholarship awarded to him by the English Sneaking Union. He went for a year to the Leighton Park School at Reading. Then for three years to Trinity College, Dublin. Whilst there, he came to England for his vacations, getting work here. On finishing in Dublin, he came over to England and worked here as a journalist. At first he worked for the weekly journal, "Time Out". We have been told very little about that journal. Only that it makes a feature of investigative journalism; that it is not a party to the D Notice system; and that the Special Branch has visited "Time Out" on one or two occasions. Mr. Hosenball tells us that, whilst he was with "Time Out", he did take part in an article called "The Eavesdroppers", which was about communication monitoring by the Government. It was published on the 21st May, 1976, and has been published elsewhere since. Mr. Hosenball tells us that the "Eavesdroppers" was the last article with which he had been concerned involving any matter which could be said to touch on national security. He left "Time Out" in July, 1976, and was employed by the Evening Standard as a general news reporter, having nothing to do with security matters at all.

2

During all that time, he had permission from the Home Office to be here. His latest permit was due to expire on the 11th December, 1976. Then four weeks ahead of it, on the 15th November, 1976, he received a letter from the Home Office. It told him that he could no longer stay because the Secretary of State had decided to deport him. The reason was because it was in the interests of national security. I will read the statement which was enclosed with the letter. It said: "The Secretary of State has considered information that Mr. Hosenball has, while resident in the United Kingdom, in consort with others, sought to obtain and has obtainedfor publication, information harmful to the security of the United Kingdom and that this information has included information prejudicial to the safety of the servants of the Crown. In the light of the foregoing, the Secretary of State has decided that Mr, Hosenball's departure from the United Kingdom would be conducive to the public good as being in the interests of national security and he has accordingly decided to make a deportation order against him".

3

That statement is couched in official language: but translated into plain English it means that the Secretary of State believes that Mr. Hosenball is a danger to this country. So much so that his presence here is unwelcome and he can no longer be permitted to stay. This belief is founded on confidential information which has been placed before the Home Secretary. It is to the effect that Mr. Hosenball is one of a group of people who are trying to obtain information of a very sensitive character about our security arrangements. Their intention is to publish it, or some of it, in a way which will imperil the lives of the men in our Secret Service. The crucial charge against him is he has "information prejudicial to the safety of the servants of the Crown" and is proposing to publish it. If that charge be true, he should certainly be deported. We cannot allow our men's lives to be endangered by foreigners.

4

On receiving the letter and its enclosure, Mr. Hosenball at once consulted his lawyers. They asked for further particulars of what was alleged against him. But they did not get any. The Secretary of State himself personally considered the request for further information, but he was of the view that it was not in the interests of national security to add anything to what he had already said. In order to see that he was fairly treated, Mr. Hosenball was given a hearing before a special panel of "threeadvisers" at which he was allowed to make representations. His solicitor did so on various matters which seemed to require explanation. The chairman told the solicitor: "I think you should concentrate on those areas. It would help us a lot as if we think there is anything else we can tell you." They told him of nothing else. He called several witnesses of high standing in journalism, who spoke of his good character. After the hearing the panel made a report to the Home Secretary, hut it was not made available to Mr. Hosenball. The Home Secretary gave it all his personal consideration. Then on the 16th February, 1977, he made a deportation order against Mr. Hosenball in these words: "whereas I deem it to be conducive to the public good to deport from the United Kingdom Mark Jeffrey Hosenball, now therefore I, by this order, require the said Mark Jeffrey Hosenball to leave and prohibit him from entering the United Kingdom so long as this order is in force", signed "Merlyn Rees, Secretary of State".

5

A few days later, on the 23rd February, 1977, Mr. Hosenball by his solicitors applied to the High Court for an order of certiorari to quash the deportation order on the ground that it was wrong in law; and that there was a failure to comply with the principles of natural justice in that he was not informed of the matters on which he was to be heard; and that the Home Secretary had misdirected himself. On the 17th March, 1977, the Lord Chief Justice and his colleagues in the Divisional Court dismissed his application. He now appeals to this court.

6

Now I would like to say at once that if this were a case in which the ordinary rules of natural justice were to be observed, some criticism could be directed upon it. For one thing, the Home Secretary himself, and I expect the advisory panel also, had a good deal of confidential information before them of which Mr. Hosenball knew nothing and was told nothing: and which he had noopportunity of correcting or contradicting; or of testing by cross-examination. In addition, he was not given sufficient information of the charges against him so as to be able effectively to deal with them or answer them. All this could be urged as a ground for upsetting any ordinary decision of a court of law or of any tribunal, statutory or domestic: see the case of B. Surinder Singh Kanda v. Government of the Federation of Malaya (1962) Appeal Cases 322 at page 337.

7

But this is no ordinary case. It is a case in which national security is involved: and our history shows that, when the State itself is endangered, our cherished freedoms may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed. In the first world war in Rex v. Halliday (1917) Appeal Cases 260 at page 270 Lord Finlay said: "The ganger of espionage and of damage by secret agents … had to be guarded against". In the second world war in Liversidge v. Sir John Anderson (1942) Appeal Cases 206 Lord Maugham said at page 219: "… there may be certain persons against whom no offence is proved nor any charge formulated, but as regards whom it may be expedient to authorize the Secretary of State to make an order for detention". That was said in time of war. But times of peace hold their dangers too. Spies, subverters and saboteurs may be mingling amonst us, putting on a most innocent exterior. They may be endangering the lives of the men in our secret service, as Mr. Hosenball is said to do.

8

If they arc British subjects, we must deal with them here. If they are foreigners, they can be deported. The rules of natural justice have to be modified in regard to foreigners here who prove themselves unwelcome and ought to be deported.

9

If confirmation is needed, it is to be found in the veryrecent ruling of the European Commission of Human Rights made in the case of Mr. Agee, who is running parallel with Mr. Hosenball in these matters. Mr. Agee invoked Article 6 (1) which provides that "in the determination of his civil rights and obligations - everyone is entitled to a fair and public hearing - by an independent and impartial tribunal". The European Commission held that "where public authorities decide to deport an alien on grounds of security, this constitutes an act of State falling within the public sphere and it does not constitute a determination of civil rights or obligations within the meaning of the article - the State is not required in such cases to grant a hearing".

10

So it seems to me that when the national security is at stake even the rules of natural justice may have to be modified to meet the position. I would refer in this regard to the speech of Lord Reid in Rex v. Lewis Justices, Ex parte Home Secretary (1973) Appeal Oases at page 402.

11

THE GROUND FOR DEPORTATION HERE.

12

The most important words used by the Home Secretary were that he was deporting Mr. Hosenball "in the interests of national security". Deportation on this ground has always been treated separately from other grounds of deportation. At one time there was a statutory right of appeal when a decision to deport was taken on security grounds. It was so recommended in 1967 by Sir Roy Wilson's committee, Command Paper 3387, page 144; and it was...

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