R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR,LORD JUSTICE NICHOLLS,LORD JUSTICE TAYLOR |
| Judgment Date | 20 October 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1020-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0834 |
| Date | 20 October 1988 |
In the Matter of an Application for Judicial Review
and
In the Matter of
[1988] EWCA Civ J1020-1
Lord Justice O'Connor
Lord Justice Nicholls
and
Lord Justice Taylor
88/0834
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Mann)
Royal Courts of Justice
MR. ROGER TER HAAR (instructed by the Treasury Solicitor) appeared on behalf of the Appellant/Respondent.
MRS. LAUREEN FLEISCHMANN (instructed by Messrs. Hughmans) appeared on behalf of the Respondent/Applicant.
On 2nd December 1987 Mann J. (as he then was) quashed a decision of the Secretary of State for Foreign Affairs given in a letter of 24th July 1986 refusing a passport to the applicant. The Secretary of State appeals against that decision.
The facts giving rise to this case can be simply stated. The applicant has been living in Marbella in the south of Spain since June 1984. He was the holder of a British passport which was due to expire on 20th May 1986. In April of that year he filled in the necessary form to apply for a new passport with the supporting documents. That can be issued by a consul in Malaga via the Consular Department of the British Embassy in Madrid. The matter went to Madrid, but no passport was forthcoming. On 12th May the applicant sent a lawyer to the British Embassy to find out why he had not received a new passport and according to the affidavit of the notary he was told that a passport was not going to be issued but that a travel document, which was effectively a one-way ticket to England, could be issued. The report of this interview does not record whether the Spanish lawyer asked why his client was not getting a passport, nor does it record being told why he was not given one. In the result solicitors in London on behalf of the applicant wrote to the Passport Office. It turns out that when passports are issued abroad, it is handled by the Foreign Office, as one might expect, from the Embassy or Consulate as the case may be. Thus it was that a reply came back on 24th July as to why no passport had been issued. That letter reads:
"I refer to your letter of 2 June addressed to the Passport Office. This has been sent to us for reply as the Foreign and Commonwealth Office are responsible for the issue of passports overseas.
We have noted your comments and the substance of the notarised declaration made by Mr. Luis Bertelli Galvex. However, British passports are issued overseas at the discretion of the Secretary of State for Foreign and Commonwealth Affairs and it is a fundamental principle that they should not be issued to persons for whose arrest a warrant has been issued in the United Kingdom.
Such a warrant has been issued in respect of Mr. Everett and it would clearly not be in the interests of justice if, in these circumstances, a passport were to be issued to him. We therefore consider that the British Embassy in Madrid were justified in refusing to issue a standard passport to Mr. Everett, who has however been offered an emergency passport to enable him to travel to the United Kingdom only.
I regret that we are not in a position to give you arrest and can only advise police authorities if you details of the warrant for that you contact the UK police authorities if you wish to have these."
As a result of that letter these proceedings were launched in October 1986. The relief sought by way of judicial review was certiorari to quash both the oral decision on 12th May in Madrid and that contained in the letter on 24th July, together with an order for mandamus requiring the passport application to be considered in a proper and lawful manner.
The grounds which were given for the relief were that no particulars of the warrant had been made available to the applicant; he was afforded no opportunity for a hearing before the decision was made in Spain and therefore the decision was made in a manner which failed to comply with natural justice. So, too, was the attack on the letter of 24th July. In addition there was an allegation that the refusal at least had the effect of circumventing the extradition rules for Spain, as far as this man is concerned.
An affidavit was sworn by Mr. Le Breton, for the Secretary of State, in July 1987, which was before the learned judge. By that time leave had been given by Russell J. (as he then was). He had ordered that enquiries should be made as to the nature of the warrant. The applicant had information, which we see from correspondence exhibited to an affidavit, including a letter of 20th February which is not exhibited but referred to, which carried the information from Scotland Yard that a warrant had been issued in the Thames Magistrates' Court in January 1985 for the arrest of this man on a charge of obtaining property by deception, namely a false passport. There was a further warrant, which had nothing to do with this refusal because it did not come until December 1986, issued out of the Bow Street Magistrates' Court on a charge of robbery. The affidavit which was sworn by Mr. Le Breton explained what had happened. He said:
"In April 1986 the Applicant…applied through the British Consulate at Malaga, Spain for a new passport to replace a passport which was to expire on the 20th May 1986. That application was passed to the Consular Section, British Embassy, Madrid for processing. It came to the attention of the officers in the Consular Section that the Applicant was named on a list which the Director of Public Prosecutions had supplied (through the Embassy) to the Spanish Authorities of persons whom the British police wished to question in connection with a robbery.
The Consular Section therefore raised inquiries with my Department and it was established that there was an outstanding Warrant for the arrest of the Applicant issued in January 1985 on charges of obtaining property by deception. Those charges concern the Applicant having obtained a passport in the false name of Ronald Page in 1983.
On the basis of long standing practice, which has been brought to Parliament's attention on various occasions the issue of a passport is refused to persons for whose arrest a Warrant has been issued in the United Kingdom or persons who are wanted by the United Kingdom police on suspicion of a serious crime. My Department therefore informed the Consular Section in Madrid that a replacement standard passport should not be issued to the Applicant but that he might be offered an emergency passport for a single journey to the United Kingdom."
He then refers to the correspondence.
When the matter came before the learned judge three matters were taken before him. First, the Secretary of State objected that judicial review did not lie against the refusal of a passport. That forms the first ground of appeal, because the learned judge rejected the submission. Once again it can be simply stated. Until the decision of the House of Lords in the G.C.H.Q. case [1985] A.C.374, it was generally assumed that the law was that decisions of the administration taken under the prerogative were not amenable to judicial review, and so one finds a whole series of matters which were not amenable to review. In that case it will be remembered that the order that employees of G.C.H.Q. were not to be union members was taken under an Order in Council issued under the prerogative by the Minister for the Civil Service. The first question which had to...
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