Hussain, R (on the application of) v Crown Prosecution Service [2006] EWHC 2467 (Admin)

Case No CO/7130/2006[2006] EWHC 2467 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 29th August 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE RICHARDS
MR JUSTICE BEATSON
Between
THE QUEEN ON THE APPLICATION OF NABEEL HUSSAINClaimantv
Between
THE HONOURABLE MR JUSTICE COLLINSDefendantCROWN PROSECUTION SERVICEInterested Party
ComputerAided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J BENNATHAN (instructed by Imran Khan & Partners) appeared for CLAIMANTMR N SWEENEY QC (instructed by Crown Prosecution Service) appeared for INTERESTED PARTY
J U D G M E N T

LORD JUSTICE RICHARDS:

[1]This is an application for permission to apply for judicial review of a decision of Collins J, made in the exercise of powers under the Terrorism Act 2000 as amended by the Terrorism Act 2006.[2]The applicant was arrested on 9th August 2006 on suspicion of being involved in the commission, preparation or instigation of an act of terrorism. On 11th August a warrant of further detention was issued for a period of seven days from the time of arrest. On 16th August that was extended to a period of 14 days from the time of arrest. On 23rd August Collins J granted a further extension to a period of 21 days from the time of arrest. It is that decision of 23rd August which the applicant seeks to challenge in these proceedings.[3]The powers to extend the period of detention are contained in paragraph 36 of schedule 8 to the 2000 Act as amended. The relevant provisions are these:
"(1) A police officer of at least the rank of superintendent may apply for the extension or further extension of the period specified in a warrant of further detention. (1A) The person to whom an application under subparagraph (1) may be made is (a) in the case of an application falling within subparagraph (1B), a judicial authority; and (b) in any other case, a senior judge. (1B) An application for the extension or further extension of a period falls within this subparagraph if (a) the grant of the application otherwise than in accordance with subparagraph (3AA)(b) would extend that period to a time that is no more than fourteen days after the relevant time; and (b) no application has previously been made to a senior judge in respect of that period. (2) Where the period specified is extended, the warrant shall be endorsed with a note stating the new specified period ... (7) In this paragraph and paragraph 37 'senior judge' means a judge of the High Court or of the High Court of Justiciary."
I have omitted a number of subparagraphs that deal more precisely with the calculation of the time and other matters.[4]The application for a further extension with which Collins J dealt on 23rd August did not fall within subparagraph (1B). It was therefore an application that, by subparagraph (1A)(b), had to be made to a senior judge, which meant in this case, pursuant to subparagraph (7), a judge of the High Court.[5]The applicant seeks to challenge Collins J's decision on two grounds: namely,(1) that insufficient particulars were provided of the justification for continued detention; and(2) the judge failed to supply adequate reasons demonstrating that he had considered whether there was sufficient evidence to charge the applicant. Those submissions draw heavily upon the jurisprudence under Article 5(3) and (4) of the European Convention on Human Rights. There is, however, a prior issue, which is whether this court has jurisdiction to entertain an application for judicial review of Collins J's decision.[6]On behalf of the applicant, Mr Bennathan concedes that a decision of a High Court judge exercising the jurisdiction of the High Court cannot be challenged on judicial review. He refers in that connection to R v Manchester Crown Court ex parte Williams and Simpson [1990] 2 Admin LR 817, where it was held that there was no jurisdiction to consider an application for judicial review of a decision of a High Court judge to grant a voluntary bill of indictment. The decision in Williams and Simpson was itself based on observations of Lord Diplock in Re Racal Communications Ltd [1980] 2 All ER 634, reported in the Appeal Cases both under that title and under the title In Re a Company [1981] AC 374. I will come back to the Racal Communications decision.[7]Mr Bennathan points out, however, that the mere fact that a decision has been taken by a person who is a High Court judge does not in itself mean that it cannot be challenged on judicial review. For example, a decision of the Parole Board, which is chaired by a High Court judge, can be the subject of judicial review: see R v Secretary of State for the Home Department, ex parte Norney [1995] 7 Admin LR 861. In relation to the subject matter of Norney, our attention was also drawn to the relevant statutory provisions in paragraph 2 of schedule 5 to the Criminal Justice Act 1991, which provides, amongst other things, that the Parole Board should include amongst its members a person who holds or has held judicial office.[8]Mr Bennathan's submission is that the language used in the statute with which we are here concerned, namely the 2000 Act as amended by the 2006 Act, places the situation in this case squarely between the two positions considered respectively in Williams and Simpson and in Norney, but closer, it is said, to that considered in Norney; that is to say, it is closer to the situation of the Parole Board, where the decision is judicially reviewable, than to that of the grant of a voluntary bill, where the decision is not reviewable. Moreover, it is submitted that there are pressing reasons why the court should place this case in the category of reviewable decisions rather than in that of unreviewable decisions.[9]The first point made in support is that the statute provides that an application is to be made to a "senior judge". There is a separate provision that the senior judge is a judge of the High Court or of the High Court of Justiciary. It is submitted that direct language stating expressly that the application was to be made to a judge of the High Court could have been used, and would have been used, if it had been intended to produce the same result in this case as, for example, in Williams and Simpson.[10]Secondly, Mr Bennathan points out that the jurisdiction to extend time is normally exercised by a district judge (magistrates' court) and was indeed exercised in two instances by such a judge in this case. It is only where detention is for a particularly long period, as in relation to the decision of 23rd August, that a senior judge must exercise it. It is said that it would be bizarre if the initial decisions to extend the period of detention could be challenged by way of judicial review but decisions to extend that period after a person has been held in custody for a significant period could not be so challenged.[11]Thirdly, Mr Bennathan relies on Article 5(4) of the European Convention on Human Rights. Article 5(4) provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
It is submitted that that provision guarantees the right of a detained person to have a decision extending the period of detention reviewed or made the subject of an appeal. We were taken to a passage in the judgment of the Strasbourg court in Garcia Alva v Germany, application number 23541/94, judgment of 13th February 2001. At paragraph 39 it is stated:
"The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the 'lawfulness', in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine 'not only compliance with the procedural requirements set out in domestic law but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention'."
The paragraph goes on to provide that a court examining an appeal against detention must provide guarantees of a judicial procedure and makes comments as to what those guarantees are.[12]It is said that in the present case Collins J was not himself carrying out a review of the lawfulness of the applicant's detention such as to comply with Article 5(4), but that Article 5(4) requires that his decision extending detention be amenable itself to some kind of review by the courts.[13]The fourth and final point advanced in support of Mr Bennathan's submissions is that the court should conclude that jurisdiction by way of judicial review is excluded only where clear words are used. He cites Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 for the general proposition but says that the point is particularly true in the present context of decisions that relate to serious interferences with basic rights. Where there is an ambiguity, as there is submitted to be in this case, the court should choose the construction that favours a right of review of the judicial decision.[14]In response to those submissions, we heard from Mr Sweeney on behalf of the Crown Prosecution Service, in particular in relation to the issue under Article 5(4). He drew our attention to the case of Wildman v Director of Public Prosecutions [2001] EWCA Admin 14, at paragraph 10 of which the Divisional Court, presided over by the Lord Chief Justice, made certain cautionary remarks in relation to general statements made in judgments of the Strasbourg court, and said in particular that a statement made in the case of Lamy v Belgium [1989] 11 EHRR 429, whilst wholly appropriate in the circumstances of that case, involved a context where the procedures were different from those which arose under an application for bail or an extension of custody time limits within the jurisdiction of the English courts. It described the decision as helpful in informing the courts of this jurisdiction as to the general requirement of fairness, but warned against direct application of such remarks to the different procedures that operate in this jurisdiction. Similar caution, as I understood Mr Sweeney's submissions, is said to be appropriate in relation to the use made of the passage in Garcia Alva relied on by Mr Bennathan.[15]Mr Sweeney went on to point out that the applicant, having been arrested in the second week of August, has in fact had his case considered by judges on three occasions: twice by a district judge (magistrates' court) and once by Collins J. He says that on each occasion the issue as prescribed by schedule 8 to the 2000 Act has been the appropriateness of the applicant's continued detention, and that issue has to be determined in accordance with the criteria laid down in the schedule, and in particular paragraph 32.[16]It was, submitted Mr Sweeney, open to the applicant to argue, amongst other things, that there was no material to link the applicant with the relevant investigation so that it was not necessary for him to be detained at all, or, to put it another way, that there was no lawful basis for his continued detention. The criteria in the schedule are sufficiently wide to enable arguments to be advanced as to the lawfulness of continued detention at all. A broad range of issues can be canvassed on which a judicial ruling can be obtained, and can be obtained at the intervals prescribed under the statute. This means that in circumstances where the real question is whether the applicant has been given a fair chance to challenge the lawfulness of his continued detention for the purposes of Article 5(4), the answer is a clear "yes".[17]That then is the essential ambit of the dispute before us.[18]For my part, I am satisfied that Collins J, in taking the decision under challenge, was acting in his capacity as a judge of the High Court and exercising a jurisdiction conferred on him as a judge of the High Court, and in my judgment it follows that his decision is not amenable to judicial review. The situation is very different from that which exists where a High Court judge sits as a member of an inferior tribunal or as a member of some other body, such as the Parole Board or a boundary commission, and acts in his capacity as a member of that tribunal or body exercising the powers conferred on the tribunal or body.[19]The locus classicus on the nonreviewability of decisions of High Court judges acting in their judicial capacity is a passage in the speech of Lord Diplock in Racal Communications. That case concerned section 441 of the Companies Act 1968, which empowered a judge of the High Court, on application by the Director of Public Prosecutions or other specified persons, to authorise the compulsory inspection of a company's books and other records. Subsection (3) provided that a decision of a judge of the High Court on an application under the section "shall not be appealable". It was held by the House of Lords that those words meant what they said and that the Court of Appeal had no jurisdiction to entertain an appeal from such a decision. In the course of his reasoning, Lord Diplock made clear that the decision of the High Court judge was likewise not amenable to judicial review. At page 384 DG of the Appeal Cases report, he said this:
"There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge's decision shall not be appealable, they cannot be corrected at all."
Similarly, Lord Scarman stated at page 392 GH:
"In the present case the Court of Appeal has sought to construe s.441(3) of the Companies Act 1948, which declares a decision of the High Court to be not appealable, in the same way as a provision excluding appeal from a statutory tribunal. But the High Court is not an inferior tribunal. It is one of Her Majesty's courts of law. It is a superior court of record. It was not, in the past, subject to control by prerogative writ or order, nor today is it subject to the judicial review which has taken their place. It has inherited the jurisdiction of the superior common law courts of first instance."
The same point underlies what was said by Lord Salmon at page 386 AB.[20]Although the observations in Racal Communications have been the subject of further consideration in a number of cases (see, for example, the question left open in G v Secretary of State for the Home Department [2004] 1 WLR 1349 at paragraphs 19 to 21 as to the amenability of decisions of the Special Immigrations Appeal Commission to judicial review), I am not aware of any doubt having been expressed about what was said in Racal Communications about the position of the High Court. Indeed, the correctness of what was there said seems to have accepted implicitly by the Divisional Court in R (on the application of Bulger) v Secretary of State for the Home Department [2001] EWHC Admin 119 at paragraphs 13 to 17, although no relevant decision was required in that case.[21]What was said in Racal Communications accords, moreover, with basic principle. Judicial review is a procedure by which the High Court supervises the legality of decisions taken by inferior courts and tribunals and by persons exercising administrative or legislative powers in the public sphere; it is not a procedure whereby the High Court reviews its own decisions or decisions of judges of the High Court acting in their capacity as judges of the High Court.[22]To my mind, it is plain that in the present case Collins J was acting as a judge of the High Court. He was not sitting as a judge of the magistrates' court or in any other capacity than that of a High Court judge. The hearing took place at Horseferry Road Magistrates' Court, but that fact is irrelevant. It was done solely for logistical reasons to enable the judge to use the video link at that court building because, unfortunately, the requisite secure video link facility has not yet been installed at the Royal Courts of Justice.[23]The statute provides in terms for the application to be made to a judge of the High Court. Nothing turns on the use of the expression "senior judge" rather than "judge of the High Court" in paragraph 36(1A)(b). That language is adopted because the statute is having to cover the position in three jurisdictions, not just England and Wales but also Northern Ireland and Scotland. It also has to deal in relation to those three jurisdictions both with senior judges and with other judges falling within the definition of "judicial authority", with which I have not needed to concern myself. The combined effect of the wording of subparagraph (1A)(b) and subparagraph (7) containing the relevant definition is that in England and Wales the statute provides that the application must be made to a judge of the High Court. The evident legislative intention is that in England and Wales the application is to be made to a judge of the High Court acting in his capacity as a High Court judge. It may be noted incidentally that in Racal Communications the relevant application had likewise to be made to a "judge of the High Court". The point made by Mr Bennathan in relation to the language of the statute seems to me, to put it politely, to be excessively technical and to lack any substantive merit.[24]In my view, no question arises of ambiguity in the statutory language or of a need to choose between one construction and another such as to leave scope for the argument that the court should adopt a construction that provides for an opportunity for judicial review in a case involving decisions affecting basic rights.[25]The fact that decisions taken under paragraph 36 by a district judge (magistrates' court) are, on the face of it, amenable to judicial review does not cause me to doubt the unreviewability of decisions taken under that paragraph by a High Court judge. Where decisions are of sufficient importance that they are required to be taken by a senior judge, a judge at a level where he would otherwise have jurisdiction to review a decision of a district judge, it is perfectly intelligible and reasonable that the assessment should be entrusted to that senior judge and that his decision should be final, without the possibility of further recourse to the courts to challenge that decision.[26]I would reject the contention that Article 5(4) operates to confer, or to require the court to find, a right of appeal or of review of a decision authorising an extension of the period of detention. It seems to me that the hearing before Collins J itself gave a fair chance to canvas issues concerning the lawfulness of continued detention and to obtain a judicial ruling on those issues. I note indeed that the arguments addressed to Collins J in opposition to the application for an extension were founded to a considerable extent on Article 5(4). The requirements of Article 5(4) were satisfied in that way by the procedure before Collins J. Compliance with the Convention does not make it necessary to find some further right to challenge the lawfulness of Collins J's decision itself, whether by way of appeal or by way of review.[27]For all those reasons, I conclude that the present application for permission must fail at the first hurdle, that of jurisdiction, and I would refuse the application before us on that basis. In the circumstances, it would be inappropriate to say much about the substantive grounds of challenge to the judge's decision, on which we have not heard any oral argument. I should, however, make clear that my provisional conclusion, reached after consideration of the papers in the case, was that neither of the substantive grounds advanced was properly arguable. If there had been jurisdiction, counsel would still have had a lot to do to persuade me that the case was one in which permission ought to be granted.[28]MR JUSTICE BEATSON: I agree. The decision in ex parte Norney, which was said to fall clearly on one side of the line, was a case in which the statute required that the member of what is an administrative tribunal making recommendations shall "include a person who holds or has held judicial office". That description encompassing retired judges is a long way from the description in the Terrorism Act. In both ex parte Williams and Re Racal Communications the court concluded that a power was expressly conferred upon a judge in his capacity as a judge of the High Court from the use of the words "a judge of the High Court". Those are the words used in schedule 8 paragraph 36(7) to the Terrorism Act 2000. The fact that one gets to subparagraph (7) via subparagraph (1A)(b) does not, in my judgment, affect this matter. The provisions in the schedule must be read together.[29]For this reason, I conclude that it is unarguable that, in considering the application in this case, Collins J was acting otherwise than as a judge of the High Court.[30]MR BENNATHAN: I am grateful. Can I touch upon two further matters. Firstly, may I ask, and forgive me if I get the language wrong, for an assessment of costs for the purposes of the Legal Services Commission.

LORD JUSTICE RICHARDS: You may certainly have that.

[32]MR BENNATHAN: Secondly, notwithstanding the firm views expressed by my Lords, can I ask the court to consider whether this is a case where a certificate of general public importance could be granted, if, for nothing else, on the Article 5(4) points about the right of appeal against a decision about detention.

LORD JUSTICE RICHARDS: We refuse a certificate.

[34]I am told by the associate that she and the usher at some stage heard what sounded like a mobile phone camera being used by a member of the public. That was not observed by them, or it is fair to say by me, since we were all concentrating on the substantive issues before us. Can I make clear to members of the public, which they already ought to know from the notices around the court building, that the use of any form of photography in the court building is prohibited. Its use is a contempt of court and will be treated as a serious contempt of court. No action can be taken in the current situation because we do not have the relevant information, but if there was somebody here who was using a mobile phone camera, they ought to realise that it is not permitted, they must not do so again, and if they are caught doing so they could well find themselves in prison.