CO/6870/2005 
Neutral Citation Number: [2006] EWHC 3726 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 30 November 2006
 
B E F O R E:

MR JUSTICE MITTING 

- - - - - - -
THE QUEEN ON THE APPLICATION OF MURUNGARU
(CLAIMANT)

-v- 

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT) 
 - - - - - - -

Computer-Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 
MR B SINGH QC AND MS TESSA HETHERINGTON (instructed by Messrs Leigh Day & Co) appeared on behalf of the CLAIMANT
MR JONATHAN CROW AND MS LISA GIOVANETTI (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT

 - - - - - - -
J U D G M E N T 
1.	MR JUSTICE MITTING:  The claimant was a minister in the Kenyan Government.  In 2005 he visited the United Kingdom for surgery.  He did so with the benefit of multiple entry visas stamped on his passport.  It was thought that in late July or early August 2005 he was about to return to the United Kingdom for some purpose in connection with his medical treatment.  However, by letter dated 25th July 2005, an official of the Immigration and National Directorate wrote to him in these terms: 
"The purpose of this letter is to notify you that on the 21 July, after most careful consideration, the Home Secretary personally directed that you should be excluded from the United Kingdom on the grounds that your presence would not be conducive to the public good in the light of your character, conduct and associations.  You have no right of appeal against this decision."  
On 26th July a follow-up letter was written to him asking him to arrange for his passport to be sent to the British High Commission in Nairobi in order that his current visa may be cancelled.
2.	He has challenged that decision on essentially two grounds.  First, that it was procedurally unfair; and secondly, that it was a disproportionate interference in his right to have the contract by which medical procedures would be performed upon him fulfilled in the United Kingdom.  That contract Keith J has held amounted to a possession for the purposes of the First Protocol Article 1 of the European Convention on Human Rights, thereby engaging the question of proportionality and the right to have that issue determined at a hearing to which his rights under Article 6 of the main Convention apply.
3.	The Secretary of State has certified that material of which he was aware when he took the decision should not be disclosed for reasons of national security.  In a letter dated 8th May 2006, written by the Treasury Solicitor to the claimant's solicitors, the point was put in this way:  
"So far as that is concerned the entry clearance officer in Nairobi was aware when permission to enter was granted in April 2005 that serious allegations of corruption had been made against the claimant.  What changed between then and the decision in July was that the Secretary of State became aware that when the claimant was in the United Kingdom he had been involved in activities connected with these allegations."
4.	In a preliminary ruling made after a hearing on 4th October 2006 Keith J made a number of decisions in relation to the judicial review proceedings.  He disposed of one of the grounds of complaint that the claimant had been prohibited transit facilities in the United Kingdom on the basis that the Secretary of State's decision was clearly rational.  He adjourned consideration of the remaining issues.
5.	In the course of his judgment he determined that the claimant's rights under the contract to have medical procedures afforded to him in the United Kingdom was a possession and so as, I have indicated, engaged Article 1 First Protocol and Article 6 of the Convention.
6.	He was made aware of course of the existence of the material which was the subject of the Secretary of State's certificate.  He decided in relation both to the procedural question and the proportionality issue that it would be necessary for him, or for the trial judge if not him, to view the material which the Secretary of State had seen.  He observed in several passages in his judgment that the court could not decide either issue without looking at the material for itself.  If Keith J had not so decided, I would have acknowledged the force of Mr Crow's submission for the defendant that, when considering procedural fairness, the substance of the material considered by the Secretary of State was not in point.  But I am satisfied, not merely for reasons of judicial comity, but also because Keith J has actually decided that issue, that that is not an issue which it is open to me to revisit.  In any event, I agree without hesitation with his conclusion on the proportionality issue.  Keith J expressed himself in paragraph 39 in these terms: 
"Whether Dr Murungaru's exclusion from the United Kingdom was in the public interest depends on (a) whether the public interest required his exclusion immediately rather than, say, waiting for the completion of his treatment or the expiration of his visa, and (b) whether his immediate exclusion with the consequence that he would not be able to have his medical treatment continued in the United Kingdom was a proportionate response to the interest which his immediate exclusion was seeking to protect.  These issues cannot be answered definitively until the court has seen the material on which the decision to exclude Dr Murungaru was based..." 
I have seen it and I do not dissent from the view expressed by Keith J.  
7.	Mr Rabinder Singh QC, for the claimant, does not seek an order that the Secretary of State should disclose the material the subject of his certificate.  No application has been made to me by either side that I should conduct a PII review.  Mr Rabinder Singh's proposition is simpler than that.  It is that I should now appoint special counsel to act in the interests of the claimant but in the usual way, having taken his instructions, without communication thereafter with either him or those who represent him.
8.	The classical position is that stated by Upjohn LJ in In Re K (Infant) [1963] Ch 381: 
"It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong.  It cannot be withheld from him in whole or in part.  If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, were the proceedings cannot be described as judicial." 
Or more pithily by Lord Devlin in the same case at [1965] AC 201 at 237: 
"... the fundamental principle of justice that the judge should not look at material that the parties before him have not seen." 
9.	Those statements of principle were enunciated at a time when decisions such as the proportionality of a minister's decision to exclude from this country a foreign national who sought to gain entry would not have been thought to be justiciable, save perhaps in the aspect of procedural fairness.  Things have changed since then, as Lord Woolf observed in paragraph 43 R (Roberts) v Parole Board [2005] 2 AC 738 at 43:  
"Based on Lord Bingham's approach it can therefore be accepted when determining the outcome of the issue that fairness is a 'constantly evolving concept'.  Provision has to be made when it is necessary for derogation from the golden rule of full disclosure but the derogation must be the minimum necessary to protect the public interest." 
10.	In similar instances that are now familiar, beginning with the statutory procedure by which the Special Immigration Appeal Commission conducts its business, the appointment of a special advocate is one means of ensuring a minimum level of fairness where the golden rule cannot be complied with.
11.	There are observations in R v H [2004] 2 AC 134 which are of course binding in the context of criminal cases which suggest that the appointment of a special advocate is an exceptional procedure that should not be deployed, save in a truly exceptional case.  Lord Bingham observed at page 150H to 151B: 
"None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it.  But the need must be shown.  Such an appointment will always be exceptional, never automatic; a course of last and never first resort.  It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant."  
12.	The context in which those observations were made was criminal procedure.  A judge in a criminal case is not the fact-finder, save in relation to issues bearing on the admissibility of evidence: the jury is.  But the judge acts as a filter or safeguard when considering material which the Crown has but which it does not wish to disclose to the defence.  In such circumstances where there is doubt, the Crown invites the judge to review such material and to rule whether or not public interest immunity is properly claimed and, if so, whether, notwithstanding that, the material should be disclosed to the defence in the interest of a fair trial.
13.	That is not the case in the Special Immigration Appeal Commission, nor on the facts of this case.  On the facts of this case, as Keith J has observed, he could not decide proportionality and, in his view, procedural fairness, without considering the material that the Secretary of State had.  Mr Crow submits that all it would be necessary for the court to consider would be the fact that the Secretary of State had information which is, he says, sufficiently described in the letter of 8th May 2006.  The terms of the letter indicate that that submission is not well-founded:   
"What changed between then and the decision in July was that the Secretary of State became aware that when the claimant was in the UK he had been involved in activities connected with these allegations."  
It is not the fact that the Secretary of State had that information that is relied upon only, but the fact that the claimant had been involved in activities connected with allegations of corruption.  
14.	In determining the issue of proportionality, at the very least it seems to me a judge would have to decide whether or not the Secretary of State's belief that he had been involved in those activities was a reasonable belief.  In theory, at least, the judge might have to decide whether the belief was mistaken or not.  There are other issues in relation to the material that might be the subject of effective submission by an advocate on the part of the claimant.  I say no more about the detail of it because the material remains secret from the claimant.  But it is not for a judge alone and unaided to determine whether or not such submissions can properly be made.  
15.	Once proportionality is engaged, and once that issue depends to any significant extent upon material which the claimant cannot see, then in my judgment fairness requires where his Convention rights are engaged that his interests are represented by an advocate who can make submissions to the court.  Accordingly, in my view, the application for the appointment of special counsel is well-founded.  I do so order.  I observe that if this claim is unsuccessful, the court has, as Mr Rabinder Singh conceded in principle, a discretion to order the claimant to bear the costs of the special advocate.  He concedes also, correctly in my view, that in principle security can be required of him against that cost.  Those are matters of detail which should not be explored now.  
16.	I now invite submission on what directions should be made for the appointment of special counsel and what information he should be given by the defendant about the matters that he would have to consider before he consults with the claimant or those who represent him so as the better to fulfil his task.
17.	MR CROW:  My Lord, could I just start with one preliminary point? Your Lordship indicated you were ordering appointment of a special advocate.  I have to say it is not something I have had a chance to talk to my learned friend about.  Absent a statutory regime, I had thought that the position was that the court invited the Attorney-General to appoint a special advocate rather than you of your own motion actually ordering one. 
18.	MR JUSTICE MITTING:  You are quite right.  I invite the Attorney-General to appoint special advocate, but with the observation that if he does not do so in the light of the judgment of Keith J and my own judgment just given, it is difficult to see how this claimant can proceed unless he complies with the request.
19.	MR CROW:  I am sure he would be mindful of that.  The second thing before I forget is this.  I lack (inaudible) client to take full instructions on one point and it may well that we would wish to take this case further.  But I do not want to take up time now in making an application for permission.  Would you be prepared to receive submissions on permission to appeal in writing within 14 days if so advised?
20.	MR JUSTICE MITTING:  Yes.
21.	MR CROW:  I am obliged.   
22.	MR JUSTICE MITTING:  Provided that you concede that the decision can be made in writing in return.
23.	MR CROW:  Touché.  My Lord, the question of the detailed directions is something that might benefit -- rather than trying to deal with it on our feet -- from my learned friend and I or our solicitors discussing matters and putting an agreed minute in front of you, which might also, if we can reach an agreement, deal with the question of security, rather than trying to haggle it all now.  I do not know if my learned friend would be agreeable to that. 
24.	MR SINGH:  I think that would be sensible. 
25.	MR JUSTICE MITTING:  I am sure it would be.  I am content to let you do that.
26.	MR SINGH:  I am grateful. 
27.	MR JUSTICE MITTING:  Are there any other applications? 
28.	MR SINGH:  My Lord, I have an application for the costs of today's hearing in any event.  My Lord, can I just in order to support that remind the court of our skeleton argument at paragraphs 10 and 11.  My Lord, the position is that on the day before the formal handing down of Keith J's judgment, obviously we in the usual way had seen a draft judgment, and on 3rd October in order to try to pre-empt the need for at this stage of the proceedings, as it were, to try and move forward as quickly as possible to the next hearing with a special advocate taking part, we invited agreement on that without the need for further hearing.  On 4th October the court informed the claimant's solicitors the Treasury Solicitor had been unable to obtain instruction on this proposal; and so on 5th October the claimant's solicitors wrote to the Treasury Solicitor asking for confirmation as to whether they agreed to the proposed course of action or whether a hearing should be arranged to determine the issue which your Lordship has now resolved.  My Lord, having received no response to that letter, on 23rd October they then proceeded to ask the court to list today's hearing.  My Lord, as at the time when our skeleton argument was served on 23rd November, a week ago, I am afraid that we still had not had any substantive response making it clear what the Government's position was on the question of appointment of a special advocate; and without any disrespect to my learned friend, in fact it was not until I received his skeleton argument about two days ago that I finally appreciated that it was resisted and why it was resisted.  My Lord, I can hand up to your Lordship the three letters which are referred to in paragraph 10 of our skeleton argument. 
29.	MR JUSTICE MITTING:  Unless Mr Crow submits it is necessary, I ---  
30.	MR SINGH:  Very well.
31.	MR JUSTICE MITTING:  Your point is that you made the suggestion at the earliest opportunity.   
32.	MR SINGH:  It did not go back. 
33.	MR JUSTICE MITTING:  You pursued it and you won.
34.	MR SINGH:  That is right.
35.	MR CROW:  My Lord, there are two points.  The first that there was correspondence beforehand does not alter the position.  It is regrettable the Treasury Solicitor did not answer sooner.  The answer is that we were going to resist, so this hearing was necessary in any event.  So the correspondence does not add anything.  The question then is that in a situation where, as your Lordship has already indicated, the appointment of a special advocate may be the generation of the costs of the claimant will ultimately fail and this is part of the process under which the question of the appointment of special advocate has been tested.  In our submission the right result must be that the Secretary of State should not be exposed to necessarily paying the costs at this stage and it should simply be treated as costs in the cause.
36.	MR SINGH:  My Lord, I will not repeat my earlier submissions as to why the right order is costs in any event.  But if your Lordship were against me on that, then at least I would urge upon the court that costs should be reserved for further argument. 
37.	MR JUSTICE MITTING:  If this claim is in the event wholly unmeritorious, then I do not see why the public purse should have to pay your side's costs of doing it.  I will therefore order that the claimant is to have the costs of this application in the case.
38.	MR SINGH:  I am grateful, my Lord. 
39.	MR JUSTICE MITTING:  So when you win you get it; lose you do not.
40.	MR CROW:  I am obliged. 
41.	MR JUSTICE MITTING:  Thank you both very much.  Interesting debate.