The Gazette 1973

ENGLISH CURRENT LAW DIGEST In reading these cases note should be taken of the differences in English and Irish Statute Law. All dates relate to dates reported in the "Times" newspaper.

[1973] 2 WLR 949) upholding the refusal of the Queen's Bench Divisional Court to grant them orders of habeas corpus on the ground that their detention on orders made by the immigration authorities was lawful under the 1971 Act. Azam v. Secretary of State for the Home Department and Another; Khera v. Same; Sidhu v. Same; 12/6/1973. Cost; A successful defendant is normally to be awarded costs out of central funds when the court has power to make such an award, the Lord Chief Justice stated when giving a practice direction in the Queen's Bench Divisional Court. His Lordship, stating that the direction was given after consultation with the judges of the Queen's Bench and Family Divisions, said: Although the award of costs must always remain a matter for the court's discretion, in the light of the circumstances of the particular case, it should be accepted as normal practice that when the court has power to award costs out of central funds it should do so in favour of a successful defendant, unless there are positive reasons for making a different order. Examples of such reasons are : (a) Where the prosecution has acted spitefully or without reasonable cause. Here the defendant's costs should be paid by the prosecutor. (b) Where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it really is. In such circumstances the defendant can properly be left to pay his own costs. (c) Where there is ample evidence to support a verdict of guilty but the defendant is entitled to an acquittal on account of some procedural irregularity. Here again the defendant can properly be left to pay his own costs. (d) Where the defendant is acquitted on one charge but convicted on another. Here the court should make whatever order seems just having regard to the relative importance of the two charges, and to the defendant's conduct generally. 6/6/1973. Crime "Road Traffic Acts" Before Lord Widgery, the Lord Chief Justice, Mr. Justice Cusack and Mr. Justice Mars-Jones. The court dismissed an appeal by Godfrey Frederick Jacobs, a surveyor, of Loughton, Essex, against mandatory disqualifica- tion from driving after he had pleaded guilty to offences against section 1(1) of the Road Safety Act, 1967, and section 4 of the Road Traffic Act, 1960, as amended. Their Lord- ships said that an objective test was to be applied when con- sidering whether the defence of "special reason" within section 93(1) of the Road Traffic Act, 1972, for not disqualifying applied to a domestic emergency. Jacobs v. Reed; Queen's Bench Division; 7/6/1973. Road Traffic Acts Before Lord Widgery, the Lord Chief Justice, Lord Justice James, Mr. Justice Ashworth, Mr. Justice Willis and Mr. Justice Griffiths. A five-judge court of the Queen's Bench Division, in a reserved judgment, summarized the collective effect of irre- concilable decisions on "driving" for the purposes of the Road Safety Act, 1967, when dismissing a police prosecutor's appeal from justices who had dismissed an information against a motorist for driving with excess blood-alcohol. The information, under section 1(1) of the Act, had been preferred against Kenneth James Knowles, a van driver, who had 174 milligrammes of alcohol in 100 millilitres of urine after driving on a road in Weymouth. It was dismissed by Weymouth and Melcombe Regis Justices. Edkins v. Knowles; Queen's Bench Division; 5/5/1973. Before Lord Justice Cairns, Mr. Justice Browne and Mr. Justice Shaw. "Is malice a forethought in the crime of murder esta- blished by proof beyond reasonable doubt that when doing the act which led to the death of another the accused knew that it 166

Aliens Before Lord Denning, the Master of the Rolls, Lord Justice Buckley and Lord Justice Stephenson. The Immigration Act, 1971, operates retrospectively to enable the Secretary of State for the Home Department in the exercise of his unfettered discretion to detain and remove from the United Kingdom persons who entered in breach of the immigration laws in force before or after the passing of the Act, even where such persons have been here for so long that they could not longer have been prosecuted for illegal entry under the pre-1971 legislation. But persons claiming that they are not "illegal entrants" are entitled to apply for a writ of habeas corpus in preference to the appeal procedure under the new Act which is available only after they have been removed from the United Kingdom. The court (Lord Justice Buckley dissenting in the first two cases) dismissed an appeal by Mr. Mohammed Azam, aged 28, of Port Talbot, from the refusal of the Queen's Bench Divis- ional Court (the Lord Chief Justice, Mr. Justice Cusack and Mr. Justice Croom-Johnson) ( The Times) February 24; [1973 [ 1 WLR 528) to grant him a writ of habeas corpus; and appeals by Mr. Gurbax Singh Khera, aged 33, of Wolver- hampton, and by Mr. Malkit Singh Sidhu, aged 43, of Solihull, from the Divisional Court (the Lord Chief Justice, Lord Justice James and Mr. Justice Nield) on March 21, also refusing them writs of habeas corpus on the ground that the detention in prison was lawful because they were "illegal entrants" under the 1971 Act. Regina v. Secretary of State for the Home Department and Another. Ex parte Azam, Ex Parte Khera, Ex Parte Sidhu; Court of Appeal; 4/5/1973. Before Lord Widgery, the Lord Chief Justice, Mr. Justice Cusack and Mr. Justice Mars-Jones. When an immigration officer is not satisfied by the claim of a Commonwealth immigrant returning to the United King- dom that he was resident here before March, 1968, the immigrant has the onus of proving his right to be here. The authorities do not have to prove that the immigrant was not then resident in this country. Their Lordships dismissed an application by Mohammed Ashraf Mugal for a writ of habeas corpus ad subjiciendum to secure his release from detention after being refused leave to enter the United Kingdom in March at Manchester airport under section 3(l)(a) of the Immigration Act, 1971, direc- tions having been given for his removal to Pakistan. He had been released on bail pending the hearing. Their Lordships refused an application for bail pending appeal. Regina v. Secretary of State for the Home Department; Ex Parte Mugal; 15/6/1973. Before Lord Wilberforce, Lord Hodson, Lord Pearson, Lord Kilbrandon and Lord Salmon. The Immigration Act, 1971, is effective to operate retro- actively and treat as "illegal entrants" liable to detention and removal all Commonwealth citizens who entered the United Kingdom and are here in breach of the immigration laws in force both before and after the new Act, even where such persons could no longer have been prosecuted for illegal entry under the pre-1971 legislation and have established themselves in the community. But Lord Wilberforce said that though the Act had to be construed as having retroactive effect, it also made provision for the Secretary of State for the Home Department to consider each case and give full weight to human factors in deciding whether or not an individual illegal entrant should remain here. The House of Lords, Lord Salmon dissenting on the question whether two of the appellants were "settled" here when the Act came into force, dismissed appeals by Mr. Mohammed Azam, aged 28, of Port Talbot; Mr. Gurbax Singh Bhera, aged 33, of Wolverhampton; and Mr. Maliit Singh Sidhu, aged 43, of Solihull, from the Court of Appeal (the Master of the Rolls and Lord Justice Stephenson, Lord Justice Buckley dissenting in the first two cases) (The Times, May 4;