Human rights law

Immigration

International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA 158

At the end of February, the Court of Appeal considered the compatibility of part II of the Immigration and Asylum Act 1999 - which penalises those who bring clandestine immigrants into the UK concealed in their vehicles - with the European Convention on Human Rights.

The Act imposes a fixed penalty of 2,000 for each such immigrant, unless the carrier shows either duress or that he neither knew nor ought to have known about the clandestine entrant; there was an effective system for preventing the carriage of clandestine entrants; and the system was operated properly on the occasion in question.

The secretary of state issues a penalty notice if he considers that the responsible person is liable, and he may enforce payment in the county court, though the carrier may contest liability, and the county court must decide whether he can make out one of the statutory defences.

With regard to R (Balbao B & C Autotransporti Internazionale) v Secretary of State for the Home Department [2001] 1 WLR 1556, DC, the secretary of state may also detain 'any relevant vehicle' if there is a significant risk that the penalty will not be paid.

He can sell the vehicle if payment is not made within 84 days.

Release of the vehicle may be ordered only in limited circumstances and its detention is unlawful only if the secretary of state acted unreasonably in issuing a penalty notice.

Several haulage contractors and lorry drivers brought claims for judicial review.

At first instance, Mr Justice Sullivan held that the scheme breached their right to a fair trial under article 6 of the convention and their right to enjoyment of their possessions under article 1 of the first protocol.

He also found a breach of community law.

The Court of Appeal overturned the decision on community law but held (Lord Justice Laws dissenting) that the convention was violated.

The features complained of were: the reverse burden of proof; the fixed penalty taking no account of degrees of blameworthiness or mitigating circumstances; the power to detain vehicles, normally without compensation even if the carrier is later found not to be liable.

The Crown argued that these elements were essential to its effectiveness in combating the problem of illegal immigration.

The first issue was whether the penalties fell under criminal or civil classification, since article 6 provides additional express guarantees in criminal cases.

A domestic court is more likely to intervene in matters of criminal justice than in a civil scheme.

The classification of the scheme in domestic law is not conclusive.

The court must also consider the essential nature of the offence and the nature and severity of the penalty (Engel & ors v Netherlands 1 EHRR 647).

Most concluded that the scheme imposes criminal liability: it is aimed not merely at the negligent but also at the dishonest, the reverse burden of proof providing a much-needed alternative to a criminal charge of being knowingly concerned in facilitating illegal entry (section 25(1) of the Immigration Act 1971); the penalty is higher than is normal in a civil scheme; and the scheme applies to everyone, not just a limited class of vehicle.

The majority considered that fair trial guarantees were not met.

For Lord Justice Simon Brown, classification of the scheme as civil or criminal made little difference to his conclusions - the question in either case was whether the scheme as a whole was fair.

He accepted that there was a pressing need to stop clandestine entry and that the scheme would not work if the Crown had to prove that the carrier was negligent or dishonest.

He did not consider there to be an impermissible encroachment on the carrier's right to silence.

But the scheme was unfair because the reverse onus was combined with detention provisions and substantial fixed penalties.

For Lord Justice Jonathan Parker, the reverse burden of proof was a disproportionate and unjustifiable inroad into the right to silence and the presumption of innocence.

The secretary of state only has to prove the presence of the alleged number of clandestine entrants in the vehicle.

The other elements of the offence - a degree of co-operation, or failure to make thorough checks, on the part of the carrier - are assumed until disproved.

He also considered the fixed penalty, taking no account of individual circumstances, to be wholly unfair and, it would seem, a breach of article 6.

Finally, he too considered the detention regime to be a further element of unfairness violating article 6.

Both Lords Justices Simon Brown and Jonathan Parker held that the scheme also violated the claimants' property rights.

Lord Justice Laws, dissenting, began by considering the degree of deference which a court owes to Parliament in judging the compatibility of primary legislation which interferes with convention rights.

The court must first decide whether the scheme comes within the special responsibility of the executive or that of the judiciary.

Therefore, it was essential to classify the scheme to answer whether it should accord substantial deference to Parliament or very restricted deference.

In an important passage, he laid down four principles for determining the proper degree of deference.

First, greater deference should be paid to an Act of Parliament than to a decision of the executive or subordinate measure.

Second, there is more scope for deference where the convention requires a balance to be struck (for example, articles 8 to 11) and much less where the right is stated in unqualified terms (for example, article 3).

However, in the case of article 6, deference to the democratic powers is limited.

Thirdly, greater deference is due on matters peculiarly within the constitutional responsibility of the democratic powers (security of the state's borders, including immigration control) and less when it lies more particularly within the responsibility of the courts (for example, the implementation of criminal justice).

Fourthly, greater or lesser deference is due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts.

Therefore, for Lord Justice Laws it was essential to classify the scheme before deciding whether incursions on convention rights were justified.

Referring to Oztrk v Germany (1984) 6 EHRR 409, he emphasised that the scheme was not interested in conduct which was 'reprehensible'.

The scheme sought only to achieve the aim of securing the states' borders by effective immigration control.

Similarly, the fixed penalty had nothing to do with retribution as opposed to deterrence.

He concluded the scheme was civil.

The Court of Appeal rightly granted leave to go to the Lords: the proper characterisation of so-called 'civil' penalty schemes is an important question, which has to be determined in order to judge the legitimacy of incursions into article 6 rights.

Lord Justice Simon Brown was wrong to say that classification made no difference.

However, in concluding that the scheme was civil, Lord Justice Laws laid too much emphasis on the dictum in Oztrk that the proscribed conduct must be 'reprehensible'.

In Oztrk itself, the court found that a charge of careless driving was criminal, although it was a 'minor offence hardly likely to harm the reputation of the offender'.

Lord Justice Jonathan Parker provides sound reasons for determining the scheme to be criminal, an for condemning it as an interference with the right to silence.

However, Lord Justice Laws was right to question whether article 6 guarantees matters of substance rather than procedure.

The provisions relating to detention of vehicles, and fixed penalties with no means of mitigation, are not fair trial issues.

The proper complaint is that the scheme interferes with property rights.

And the question for the court is whether the scheme places a disproportionate burden on carriers.

Finally, Lord Justice Laws's exposition of the principle of judicial deference to democratic decisions is an important contribution to the learning on the issue.

The Lords will no doubt have something to say about it.

By Stephen Grosz, Bindman & Partners, London