Jersey & Guernsey Law Review – October 2009
MISCELLANY
Deportation and Human Rights Revisited
1 The judicial power to recommend the deportation of offenders who have committed serious offences continues to engage the attention of the courts, notwithstanding a fairly recent decision of a strong Court of Appeal in Camacho v Att Gen which might have been thought to settle the ECHR aspects definitively.[1] In Camacho the Court agreed with the Guernsey Court of Appeal in O’Dette v Law Officers[2] by refusing to follow the English Court of Appeal in R v Carmona.[3] Carmona had decided that it was inappropriate for a judge who had imposed a long custodial sentence to gaze into a crystal ball and to consider the effect of deportation upon an offender’s family at the putative time of his release. That Court had stated that—
“In our judgment … there is now no need for a sentencing court to consider the Convention rights of an offender whose offence justifies a recommendation for deportation. It is moreover undesirable that the sentencing court should undertake an assessment for which it is not qualified or equipped, and which will in any event be undertaken by the Home Secretary and the [Asylum and Immigration] Tribunal. His Convention rights will be considered if the Home Secretary makes a deportation order against which the offender appeals to the Tribunal. In the case of non-EU citizens, sentencing courts should consider only whether the offence committed by the offender, in the light of the information before the court, justifies the conclusion that his continued presence in this country is contrary to the public interest.”[4]
In other words, the court was only to consider the first limb of the well-established test in R v Nazari.[5]
2 Both Courts of Appeal in the Channel Islands took a different line. In Camacho the Court considered all the relevant authority and underlined the importance, from the perspective of the offender, of the forensic process, stating—
“The last reason [given by the Guernsey Court of Appeal] seems to us to be the most significant, i.e. that absent a right of appeal against the actual order (but the presence of an ability to appeal against a recommendation) it is only fair to someone whose modus vivendi is at risk to give him the fullest procedural protection (contrast the position in England, where there can be an appeal from the decision of the Home Secretary). We also accept that the Lieutenant Governor has [fewer] resources of time and staff to carry out investigations of the kind that can more easily be made by the Home Secretary. We would, however, add that in this context it is very important that a court enjoys the ability to illuminate the issue by the forensic process, with the assistance of counsel (in particular for the potential deportee) placing the fullest material before the court. The executive does not have the advantage of this forensic process.”[6]
3 It is a little surprising, therefore, that less than two years later, the Court of Appeal should have found itself called upon to consider whether Camacho was correctly decided. The occasion was the appeal of Manuel de Gouveia against a recommendation for deportation by the Royal Court following the imposition of a sentence of 7 years’ imprisonment for drug trafficking offences.[7] De Gouveia’s appeal in fact raised three questions for the court. The first, raised by the Attorney General, was whether Camacho was rightly decided. The second, raised by the appellant, was whether the recommendation should be quashed because no submissions were heard on behalf of the appellant’s family. The third, also raised by the appellant, was whether guidance should be given to the Royal Court to delay making a recommendation for deportation until shortly before the offender had completed his sentence.
4 In relation to the first point the Attorney General advanced two arguments. (i) He submitted that, notwithstanding the absence of a right of appeal, the right to judicial review of the Lieutenant Governor’s decision was an adequate safeguard of the offender’s rights. The Court[8] rejected this argument, holding that “the unfettered right of review [before the Asylum and Immigration Tribunal] of such a decision is not to be equated with the right to begin judicial review proceedings against the Lieutenant Governor which can only be invoked on grounds of irrationality, illegality, or procedural impropriety”.[9] (ii) The Attorney also contended that, in line with the decision of the English Court of Appeal in Carmona, the offender’s Convention rights were not engaged until the order for deportation was actually made. The Court rejected this argument too, holding that, as a public authority, a court could not properly recommend a course of action which might affect the Convention rights of an offender without considering whether in fact it did affect them. The Court was not attracted to the notion that it should consider some factors but not others before recommending deportation.
5 The second point concerned the correctness of a decision of the Royal Courtin Att Gen v Benyoucef[10] that a child and other members of an offender’s family had the right to intervene and to be heard before a recommendation for deportation was made. Birt, Deputy Bailiff, had made the decision “with some reluctance” on the basis that he was not convinced that an intervention by members of the offender’s family would make any practical difference in most cases. The Court of Appeal rejected the notion that the children or other members of an offender’s family had any locus in relation to an argument as to whether deportation should or should not be recommended. If article 8 rights in relation to deportation could only be vindicated by separate representation, why should the same principle not apply to the imprisonment of the offender? The Court cited with approval a dictum of Rose LJ in R (Bulger) v Secretary of State for the Home Department—
“… in criminal cases there is no need for a third party to seek to intervene to uphold the rule of law, nor, in my judgment, would such intervention generally be desirable. If the family of a victim can challenge the sentencing process, why not the family of the defendant? Should the Official Solicitor be permitted to represent the interests of children adversely affected by the imprisonment of their mother? Should organisations representing victims or offenders be permitted to intervene? In my judgment, the answer in all these cases is that the Crown and the defendant are the only proper parties in criminal proceedings.”[11]
6 It is true that the Court of Appeal did not have the benefit of argument from counsel specifically instructed for the children, and that Benyoucef has effectively been distinguished by a side-wind. It is also true that the Court did not exclude the possibility that, in a particular case where the family had an interest truly distinct from that of the offender, leave might appropriately be given for the family to intervene. Nonetheless, the decision of the Court of Appeal on this point is surely right. The argument that a child whose interests might be adversely affected by a decision to recommend the deportation of his father should always have a right to be heard, is seductive, but wrong. Apart from the practical reasons to which Lord Justice Rose made reference, the argument confuses the civil and the criminal process. In criminal proceedings the Attorney General, as Partie Publique, has a broad duty to represent all appropriate interests before offering his conclusions to the Court. Those interests include the interests of the offender’s children, and of other members of his family.[12]
7 The third point as to whether the court should defer consideration of whether or not to recommend deportation until near the end of the offender’s sentence was advanced by counsel for the appellant on the ground that family circumstances, central to the balancing exercise to be performed by the court, might have changes by that time. The Court of Appeal rejected that submission, noting a comment in this Review that “the Lieutenant Governor retained an absolute discretion”, and that it was therefore open to the Governor, indeed it was his duty, to take account of any change in family circumstances.[13] The primary objection to the submission was, however, statutory. The statutory provision as to liability for deportation provided that “on his conviction is recommended for deportation by a court empowered to do so”.[14] The purpose of the provision was to ensure that the court which had convicted the offender was the court conducting the balancing exercise as to whether or not deportation should be recommended.
8 The judgments of the Court of Appeal in De Gouveia and Camacho must, surely, be the final word on deportation and human rights.
9 The Institute of Law has recently circulated some guidance to students on the importance of case references, emphasising how a poor understanding of how the system works leads to sloppy practice, and even misunderstandings later. It is thought that the guidance may be of some interest to the profession, and it is set out below
10 In the English system, there is a fundamental difference between square and round brackets used in connection with dates. A date in square brackets is an integral part of the reference: you will not be able to find the case without it. It does not matter whether this is merely the official neutral citation (e.g. [2007] EWCA Civ 553) or a published set of law reports (e.g. [2007] Ch 974). In each case the date in square brackets is essential. But a date in round brackets denotes information which is entirely unnecessary in order to enable the case to be found. You could omit it and the reference would still be meaningful. This is because there is the name of a series of law reports preceded by a volume number and followed by a page number, thus: (1894) 22 TLR 426, or (1956) 127 JP 67. A date in round brackets is always the actual date of the case; a date in square brackets is the date of publication, and may or may not be the date of the case.
11 In Jersey the matter is a little more complex. The system uses not only square and round brackets, but also no brackets. Square brackets are used in Jersey in the same way as in England, i.e. as an integral part of the reference. Without the date, you could not locate the case. However, the only use of square brackets in Jersey is in the system of official neutral citations, e.g. [2007] JRC 063; [2007] JCA 21 (on which, see below). The semi-official Jersey Law Reports use the same idea of the date forming an essential part of the reference. But instead of using square brackets, they have no brackets at all. Thus: 1985–85 JLR 151; 2007 JLR 45. Round brackets are used in Jersey, as in England, to denote cases where the date is an unnecessary part of the reference, whether it is the old system of references to the court records, such as (1906) 224 Ex 185 and (1947) 50 H 305, or to the Jersey Law Review (now the Jersey and Guernsey Law Review), such as (2003) 7 JLRev 94.
12 However, in Jersey there is a twist. Between 1950 and 1984 there was a series of official law reports known as Jersey Judgments. When these began, all the cases between 1950 and 1973 were published in volume 1 (which ran to 2532 pages, in four parts). Thus, consistently with the round brackets convention, references to these cases are e.g. (1970) 1 JJ 1539. Cases between 1974 and 1976 were published in a rather shorter volume 2, running to a mere 449 pages in a single part. They were cited as e.g. (1975) 2 JJ 263. From 1977 to 1984, however, the publishing practice changed, and each volume published covered one year. Thus there was no continuation of the numbering sequence for volume numbers above 2. Nonetheless the lawyers citing the Jersey Judgments did not change their habits to accommodate this and continued to use round brackets for the date. So we find references such as (1979) JJ 125 and (1982) JJ 117. Strictly speaking, this violates the convention for round brackets, because if you take away the date from the citation, you cannot find the case from what is left. The date is thus integral and should not be in round brackets. Consistently with usage in other Jersey citations, one might have thought that it should either be in square brackets, or it should stand with no brackets at all. But this is Jersey, after all. Everyone is entitled to a little idiosyncrasy.
Institute of Law
13 Space must be found to note that the Institute of Law, which was founded in November 2008, has opened its doors to the first batch of students studying the Jersey Law course. The Institute operates from Law House, 1 Seale Street, St Helier, and its website can be found at www.lawinstitute.ac.je . The law library has also been retrieved from storage and has been re-established for the benefit of students and of the profession.
14 The Institute received grants from the Jersey Legal Information Board and from the Economic Development Department but is expected to be financially independent within three years. It has ambitious plans to expand, and this Review wishes the Institute well for the future.