Case No: C2/2004/0169 PTA
Neutral Citation Number: [2004] EWCA Civ 265 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION 
APPEALS COMMISSION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 9 March 2004

Before :

LORD PHILLIPS OF WORTH MATRAVERS, MR
LORD JUSTICE PILL
and
      LORD JUSTICE LAWS

Between :

	G	Applicant/ Proposed Respondent	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent/Proposed Appellant	

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Ben Emmerson QC, Raza Husain & Danny Friedman (instructed by Birnberg Pierce and Partners) for the Applicant/ Proposed Respondent
Wyn Williams QC, Ian Burnett QC & Tim Eicke (instructed by The Treasury Solicitor) for the Respondent/Proposed Appellant

Hearing dates : 12 February 2004
INTERIM DECISION
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Judgment

Lord Phillips, MR: 

These are the reasons for the Interim Decision of the Master of the Rolls and Laws LJ.

Introduction
1.	There is before the Court an application for permission to appeal from a decision of the Special Immigration Appeals Commission (‘SIAC’) made on 20 January 2004 whereby SIAC determined, in principle that the respondent, ‘G’ should be released from detention on ‘bail’ subject to strict conditions, the details of which called for further consideration but which would amount to house arrest. The application raises important issues as to the jurisdiction both of SIAC and of this court. 
2.	G is an Algerian. He is a ‘suspected international terrorist’, having been certified as such by the Secretary of State under section 21(1) of the Anti-terrorism, Crime and Security Act 2001 (‘ATCSA’). A decision to make a deportation order was made in respect of him on 18 December 2001. He has been detained since 19 December 2001 pursuant to paragraph 2 of Schedule 3 to the Immigration Act 1971 and section 23 of ATCSA.
3.	Pursuant to section 25 of ATCSA he appealed against his certification under section 21. On 29 October 2003 SIAC dismissed his appeal, stating that they did so ‘with no hesitation’. SIAC had also been considering the appeals of 9 other detainees, all of which were dismissed, and, on the same day, handed down a ‘generic judgment’ dealing with issues common to all the appeals. All ten detainees have appealed to this court pursuant to section 7 of the Special Immigration Appeals Commission Act 1997 (‘SIACA’). 
4.	On 16 December 2003 G applied to SIAC for the grant of bail pursuant to section 24 of ATCSA. He contended that his mental and physical health had severely deteriorated as a consequence of his detention. The hearing was adjourned for the filing of additional medical evidence. SIAC then decided in principle that G should be granted bail
Issues in relation to SIAC’s decision
5.	At the hearing of the bail application the Secretary of State did not challenge SIAC’s jurisdiction to grant bail. The Secretary of State had, indeed, asserted in other proceedings that section 24 conferred jurisdiction on SIAC to grant bail to detainees, whether or not they are awaiting the hearing of an appeal to SIAC. These proceedings were (i) the appeals leading to the generic judgment and (ii) a challenge to the legitimacy of the United Kingdom’s derogation from Article 5(1) of the European Convention on Human Rights that underpins the legality of ATCSA. The latter proceedings are currently awaiting a hearing in the House of Lords.
6.	The arguments advanced before SIAC in favour of the grant of bail were humanitarian. In opposing bail the Secretary of State argued that G’s medical condition was not sufficiently grave to justify the risk that a man whom the SIAC had confirmed was dangerous might abscond and resume terrorist activities. In giving the decision of SIAC, its Chairman, Collins J., said that they had found their task difficult. He held that there was no doubt that G’s detention had created a mental illness and that the open-ended nature of the detention was such as to ensure that the condition did not improve. He held that the power to modify the bail provisions in Schedule 2 to the Immigration Act 1971 that was conferred by section 24 of ATCSA was wide enough to enable stringent conditions to be imposed. The conditions proposed included electronic tagging and house arrest without outside communication. He stated that SIAC did not consider that there was any real risk of G absconding. In these circumstances SIAC ruled that, as a matter of principle G should be given bail once satisfactory conditions had been determined.
7.	Before us Mr Wyn Williams QC, on behalf of the Secretary of State, advanced a new point of great significance. He submitted that it was wrong in law for SIAC to grant bail when SIAC was not currently seized of G’s case. SIAC could not grant bail that was not conditional upon G’s appearance at a specific hearing. It seemed to us that this was a forceful submission. Bail is normally granted by way of a grant of temporary release from custody under an obligation to surrender to bail at a specific place and time in the future. More fundamentally, a right on the part of SIAC to grant indefinite release from custody in the form of bail is manifestly at odds with the provision in section 21(9) of ATCSA restricting the manner in which action taken by the Secretary of State under a certificate may be questioned.
8.	Mr Williams also submitted that the bail conditions proposed went beyond any legitimate modifications permitted by section 24(2) of ATCSA.
9.	By way of alternative submission, Mr Williams attacked the merits of SIAC’s decision, contending that it did not pay the requisite deference to the views of the Secretary of State on the requirements of national security – see Secretary of State for the Home Department v Rehman [2003] 1 AC 153.
10.	On behalf of G, Mr Emmerson QC responded to Mr Williams’ new point with a powerful salvo of his own. The only derogation from the Convention to which the United Kingdom is entitled (always assuming the challenge to derogation before the House of Lords does not succeed) is in respect of Article 5(1). The provision for the grant of bail made by section 24 is the only provision that is capable of enabling a detainee to assert before a court that his other Convention rights are being infringed. If a detainee has no right to make a claim for bail on the ground that his rights under Article 3 or Article 8 are being infringed, there is a breach of Article 6 and ATCSA is incompatible with the Convention. Mr Emmerson asked us, if we accepted Mr Williams’ new point, to make a declaration of incompatibility. He suggested that we should curtail to vanishing point the notice to which the Crown is entitled. Mr Williams objected to this course and we indicated that we would not adopt it.
11.	Mr Williams acknowledged the force of the submissions made by Mr Emmerson, and sought a short adjournment to seek instructions from the Secretary of State. The instructions that he received were to concede that SIAC had jurisdiction to grant ‘bail’ where this was necessary to avoid a breach of Article 3, but not otherwise unless it was granted pending the hearing of an appeal by SIAC. We found this limited concession lacking in logic and would be reluctant to base any findings upon it.
12.	The Court has formed no final view on the question of the scope of SIAC’s jurisdiction to grant bail. If we are to resolve this issue we must first give notice to the Crown of the fact that incompatibility is in issue and consider any further submissions that may be made to us in consequence. 
Issues in relation to our jurisdiction
13.	The Court of Appeal is a creature of statute and has no jurisdiction other than that accorded by statute or that which is ancillary to such jurisdiction by reason of implication – see Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528. The only statutory provision which confers jurisdiction on the Court of Appeal to entertain an appeal from a decision of SIAC is section 7 of SIACA. Mr Emmerson submitted that section 7 did not cover the appeal that the Secretary of State seeks to bring against SIAC’s bail decision. He submitted that the only ‘final determination of an appeal’ made by SIAC in relation to G was that of 29 October 2003, in relation to which G had exercised his right of appeal. The question of whether SIAC had properly granted bail to G was not ‘a question of law material to that determination’ for the following reasons:-
i)	SIAC’s decision to admit G to bail was not material to their determination of the appeal because the appeal lay against the decision of the Secretary of State to certify G as a suspected international terrorist, not to detain him.
ii)	SIAC’s decision to grant bail on 20 January 2004 was not material to their determination of the appeal on 29 October 2003 because it was based upon a change of circumstances after that date, namely a deterioration in G’s condition.
iii)	SIAC’s decision to grant bail does not render nugatory the dismissal of G’s appeal to SIAC. That appeal determined that G had been lawfully certified, which remains the case (unless on G’s appeal the Court of Appeal determines otherwise). 
iv)	G’s application for bail was a discrete proceeding from the proceedings that challenged G’s certification.
14.	Mr Williams challenged these submissions. He contended that the decision to grant G bail was ‘material’ to the determination reached on 29 October 2003, in that it rendered it of little or no practical effect. He submitted that the issue of whether G could and should be granted bail was interlinked with G’s appeal against certification. Alternatively Mr Williams submitted that we had ‘implicit’ jurisdiction to entertain an appeal against a bail decision because this was necessary if the generic appeal was not to be thwarted by it.
15.	We were persuaded by Mr Emmerson that section 7 of SIACA does not apply to the appeal that the Secretary of State seeks to bring against SIAC’s decision to grant bail to G. The only appeal that was made by G to SIAC was an appeal against certification. That appeal was dismissed and thus finally determined. G has appealed against that final determination. The subsequent application to SIAC for bail was not an appeal. The grant of bail was not the final determination of an appeal. There is no statutory right of appeal in relation to a decision to grant bail under section 24 of ATCSA. 
16.	Both parties accepted that we should, if possible determine whether SIAC has jurisdiction to grant bail in circumstances where this is not ancillary to pending proceedings before SIAC. If SIAC does not have such jurisdiction, then we consider it is also desirable that we should address the issue of whether ATCSA is incompatible with the Convention. In the course of argument we indicated that, if we concluded that there was no statutory right of appeal against the bail decision, we would be minded to reconstitute the court as the Administrative Court and consider whether SIAC’s decision was susceptible to judicial review. No objection was made to this proposal in principle, although Mr Emmerson submitted that judicial review of SIAC’s decision would not lie.
17.	 We can see no problem, so far as jurisdiction is concerned, with addressing the issue of whether ATCSA is incompatible with the Convention. The problem is that G seeks a declaration to that effect only if wrong in his primary submission that the bail order made by SIAC fell within their jurisdiction. Thus it seems to us that we can only deal with the issue of SIAC’s jurisdiction if this is a matter that can be raised by judicial review. Mr Williams had no instructions to make any positive submissions in relation to the question of whether judicial review will lie, nor did he obtain any. Mr Emmerson submitted vigorously that judicial review would not lie in relation to SIAC’s jurisdiction to grant bail. 
18.	Mr Emmerson relied upon the provisions in relation to the status of SIAC  inserted into SIACA by section 35 of ATCSA. He accepted that it might be open to the court to consider the scope of the SIAC’s jurisdiction to grant bail notwithstanding section 1(4) SIACA by adopting the approach of the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 147. He submitted, however, that section 1(3) SIACA definitively precluded any question of judicial review. He referred us to the observation of Lord Browne-Wilkinson in Reg. V Manchester Crown Court ex parte DPP [1993] 1 WLR 1524 at p. 1528 that judicial review would not lie to a superior court of record in the absence of express provision.
19.	More cogent, perhaps, is the decision of the House of Lords in In re Racal Communications Ltd [1981] AC 375, where the issue was the effect of a provision in section 441 of the Companies Act 1948 that “a decision of a judge of the High Court…on an application under this section shall not be appealable”. In the course of his speech, Lord Diplock made the following observations at p. 384:-
“There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealable, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.”
20.	We are not persuaded that these words are necessarily fatal to judicial review of the jurisdiction of SIAC to order the release of a detainee who is not pursuing an appeal to SIAC, by purporting to grant bail. SIAC is a court of very limited jurisdiction. It is not easy to accept that, if SIAC purports to exercise a jurisdiction that does not exist, Parliament has excluded all possibility of putting the matter right. What if section 24 had provided that ‘a suspected international terrorist who is detained may not be released on bail’? Would there be no remedy if SIAC purported to grant bail? 
21.	The question of the possibility of a judicial review of SIAC’s jurisdiction was one which arose in the course of argument and on which counsel did not have adequate time either to take instructions or to prepare detailed argument. We consider that the matter should be properly examined.  
22.	Accordingly, what we propose to do is to restore this application for further argument. We shall notify the Crown that an issue of incompatibility may arise and we shall also seek the assistance of an advocate to the court in respect of the issue of jurisdiction judicially to review SIAC’s jurisdiction to grant bail.

Lord Justice Pill: 

23.	I express briefly my respectful dissent from the conclusion that the Court has no jurisdiction to entertain the appeal.
Section 7(1) of SIACA provides:
“Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination.”
By virtue of section 7(3), the appropriate appeal court is the Court of Appeal.
24.	The usual meaning of bail, whether in ordinary language or in  statute (for example, Bail Act 1976 and Magistrates Court Act 1980, section 128) is the  temporary release of a person pending a further decision of a court (or administrative body).  I agree with the Master of the Rolls that the scope of SIAC’s jurisdiction to grant bail needs further consideration.  Differing views have been expressed as to its role in the statutory scheme and it appears to me that what constitutes a “final determination” within the meaning of section 7 of SIACA may depend on the role bail is held to have in the scheme.
25.	I would have preferred to defer a decision on section 7.  However, the issues of certification, detention and bail are in my view so interwoven that a grant of bail contemporaneous with the dismissal of the appeal of a detained person against certification (in this case a dismissal with “no hesitation”) should be treated as a part of the final determination involved.  The dismissal of the appeal involves a finding that the criteria in section 21(1) of ATCSA are  satisfied and that indefinite detention under section 23 (subject to review under section 26) is justified.  It is a final determination.  A grant of bail may so undermine that determination that to treat it other than as part of the final determination would be highly artificial.  In context, the dismissal of the appeal cannot be treated as a determination separate from a contemporaneous grant of bail.
26.	In this case, the bail application was made shortly after the dismissal of the appeal. G had mental problems, of which those representing him were, without fault on their part, unaware when the appeal was heard.  The lapse of time should not in my view be permitted to create a separation from the final determination which would deprive this court of jurisdiction.
27.	I accept that if, upon a further consideration, a broad and continuing power to grant “bail” is recognised, the argument that the grant is a part of SIAC’s final determination is weakened.  I should wish to reserve the position as to the merits of the decision of SIAC on bail, including the factors taken into account, and the extent, to which, if at all, conditions may be imposed upon a grant.
28.	Subject to that point of dissent, I agree with the course proposed by the Master of the Rolls.