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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.
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;
[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
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