Law Report, Nov. 3 Before LORD MAUGHAM. LORD ATKIN, LORD MACMILLAN, LORD WRIGHT, antd LORD RoMER. REGULATION 18B: ONUS OF PROOF LIVERSIDGE v. ANDERSON AND ANOTHER The HOUSE by a majority, Lord Atkin dis- senting, dismissed the appeal by Mr. Robert William Liversidge, of St. James's Close Regent's Park, N.W., and of Brixton Prison, from a djcision of the Court of Appeal (Lord Justice MacKinnon, Lord Justice Luxmoore, and Lord Justice du Parcq) dated June 20, 1941, upholding, on an interlocutory appeal, a decision in Chambers of Mr. Justice Tucker, who had affirmed a refusal of Master Moseley to ordler the defendants to an action brought by Mr. Liversidge to give certain particulars of the defence. Mr. Liversidge issued a writ against Sir John Anderson and Mr. Herbert Morrison claiming a declaration that his detention in Brixton Prison was unlawful, and, damages for false .imprisonment. Paragraph 3 of the defence stated: ' The defendants admit that the first- named defendant ordered that the plaintiff should be detained under the Defence (General) Regulations, 1939, regulation 18s.' Mr. Liversidge thereupon took out a summons before the Master, asking, inter alia. for an order that the defendants should give par- ticulars of paragraph 3 of the defence- namely (a) of the grounds on which the first defendant bad reason to believe Mr. Liver- sidge to be a person of hostile associations. and (b) of the grounds on which he had reasonable cause to believe that, by reason of such associations, it was necessary to exercise control over him (Mr. Liversidge). The Court of Appeal, dismissing Mr. Liver- sidge's appeal, held that the particulars sought should not be ordered because the onus did not lie on the defendants to prove (i) the various facts which Sir John Anderson con- sidered justified him in making the order, or (ii) his reasonable and honest belief that it was necessary to make that order. Mr. Liversidge appealed. Mr. D. N. Pritt, K.C., and Mr. G. 0. Slade appeared for Mr. Liversidge; the Attorney- General (Sir Donald Somervell, K.C.) and Mr. Valentine Holmes for the defendants. JUDGMENT LORD MAUGHAMI, whose judgment was read by Lord Macmillan, stated:-The real object of the application was to raise at that early stage the vital question wihat onus, if any, lay on the defendants in the action in the circumstances of the case. If the order for the detention of Mr. Liversidge was valid the action must clearly fail. He accordingly sought to throw on the defendants the burden of justifying the order. Section I (1) of the Emergency Powers (Defence) Act, i939, provided that his Majesty by Order in Council may make such regUilaiOnS . . . as appear to him to be necessary or expedient for securing the public safety. the defence of the Realm, the maintenancc of public order and th. efficient prosccution of any war in which his NMaiesty may be engaged, and for maintaining supplies and sernices essential to the life of the community. Subsection (2) enacted that Defence Regu- lations might make provision for a numbef of important purposes including regulations for the detention of persons whose detention appear, to tle Secretary of Statc to be cxpedient in the interesLi of the public safety or the defence of the Realm. The Court of Appeal in the present case were precluded by a previous deci- sion ftom considering the main point argued before the House-namely, whether there were in fact reasonable grounds for the beliefs (a) that Mr. Liversidge was a person of hostile associations, and (b) that by reason thereof it was necessary to exercise control over him. Here, however. the Secre- tary of State who made the order, and his successor in office, had sworn no affidavit in the action, and Mr. Liversidge was therefore entitled to contend, and did contend, that thie mere production of an order signed by the Secretary of State was not a sufficient primna facie defence to the action of false imprison- ment, and that an onus lay on the respondents to give evidence at the trial to prove that Sir John Anderson had reasonable grounds for the belief recited in the order. He (Lord Maugham) would first deal with the important question of the constrtiction of the words in the regulation: " If the Secretary of State has reasonable cause to believe," &c., that was, the question whether, as Mr. Liver- sidge contended, the words required that there must be an external fact as to reasonable cause for the belief, and one therefore capable of being challenged.in a Court of law * or whethier, as the defendants contended, the words in thc context in whichi they were found pointed simply to the belief of the Secretary of State founded on his view of there being reasonable cause for the belief which he entertained. Secortily, he would express his opinion on the question (which strictly speaking would not arise till the trial) whether the order of the Secretary of State was in the circumstances sufficient prima-facie proof that the Secretary of State had acted lawfully and that the deten- tion of Mr. Liversidge was accordingly not illegal. LIBERTY OF THE SUBJECT Counsel for Mr. Liversidge truly said that the liberty of the subject was involved. They referred in emphatic terms to Magna Carta and the Bill of Rights and conteplded that legis- lation dealing with the liberty of the subject must be construed, if possible, in favour of the subject and against the Crown. He this Lord- ship) held that the suggested rule had no rele- vance in dealing with an executive measure bv way of preventing a public danger when the safety of the State was involved. The language of the Act of 1939 showed beyond a doubt that Defence Regtulations might be made which must deprive the subject ' whose detention appears to the Secretary of State to be exg- pedient in the interests of the public safety of all his liberty of movement while the regula- tions remained in force. The Legislaturc obviously proceeded on the footing that there might be certain persons against whom no offence was proved nor any charge formulated, but as regarded whom it might be expedient to authorize the Secretary of State to make an order for detention. The only safeguards, if they were safeguards, was that detention ' appears to the Secretarv of State to be expedient in tlhe interests of the public safety or the defence of the Realm," and that he himself was subject to the control of Parliament. It should be added that the power concerned was to take preventive measures in the nature of internment which would only last for a limited time. There 'was no charge against Mr. Liversidge. In the absence of a context the prima facie meaning of such a phrase as . if A.B. has reasonable cause to believe ' a certain thing, it should be construed as meaning " if there is in fact reasonable cause for believinn " that thing and if A.B. believes it. But he (his Lord- ship) was quite unable to take the view that the words could only have that meaning. It seemed reasonably clear that if the thing to be believed was something which was essen- tially one within the knowledge of A.B., or one for the exercise of his exclusive discretion, the words might well mean if A.B. acting on what he thought was reasonable cause (and of course acting in good faith) believed the thing in question. Having referred to the various matters which uider regulation 18B the Secretary of State must have reasonable cause to believe, his LORDSHIP said that any one of those various circumstances was sufficient to satisfy the first fact which the Secretary of State must believe, and that he did not doubt that a Court could investigate the question whether there were grounds for a reasonable man to believe some at least of those facts if they could be put before the Court. But the Minister must at the same time also believe soniething very different in its nature-namely, that by reason of the first fact. ' it is necessary to exercise control over " the person in question. To his (his Lordship's) mind that was so clearly a matter for Executive discretion and nothing else that those responsible for the Order-in- Council could not have contemplated for a moment the possibility that'the action of the Secretary of State might be subject to the dis- cussion, criticism, and control of a Judge in a Court of law. If, then, in the present case the second requisite, as to the grounds. on which the Secretary of State could make his order for detention, was left to his sole discretion without appeal to a Court, it necessarily fol- lowed that the same was true of all the facts which he must have reasonable cause to believe. What was of even greater importance was that obviously the Mhiiister would in many cases be acting on information of the most confidential claracter. wlhicih could not be conmnmunicated to the person detained or dis- closed in Court without the greatest risk of prejudicing the future efforts of the Secretary of $tate in that and like matters for the de- fence of the Realm. The power of the Court (under section 6 of the Act) to give directions for the hearing of proceedings in camrera would not prevent confidential matters from leaking out, since suchi matters would become known to the person detained and to a number of other persons. The person primarily entrusted with these most important duties was one of the principal Secretaries of State, and a member of Govern- ment answerable to Parliament for a proper dischiarge of his duties. He was not at all in the same position as. for example, a police constable. If any appeal from the decision of the Secre- tary of State had been thought proper, it would have been to a special tribunal with power to inquire privately into all the reasons for the Secretary's action, but without any obligation to communicate them to the person detained. The result was that there was no pre- liminary question of fact which could be sub- mitted to the Courts. and that in effect there was no appeal from the decision of the Secre- tary of State in those matters, provided only that he acted in good faith. It followed that the application for particulars must fail. As for the questiqon whether an onus was thrown on the Minister who made the order for detention to give evidence to show, that he had reasonable cause to believe Mr. Liversidge to be a persoin of hostile associations, and that by reason thereof it was necessary to exercise control over him, the well-known presumption omflnia esse rite acta applied to the order, and accordingly, assuming the order to be proved or admitted. it must be taken prina facie to have been properly made, and that the requi- site as,to the belief of the Secretary of State was complied with. The appeal should be dismissed. LORD ATKIN'S VIEW LORD ATKIN, in the course of his dissenting speech, said that the material words were simple and, in his opinion, obviously gave only a conditional authority to the Minister to det'ain any person without trial, the condi- tion being that he hiad reasonable cause for the belief whicih led to the detention order. The meaning, however, which appeared to have found favour with some of their Lordships was that there was no condition: for the words ' if the Secretary of State has reasonable cause " merely meant if the Secretary of State thought that he had reasonable cause. The result was that the only implied condition was that the Secretary of State acted in good faith. If he did that the Minister had been given complete discretion whether he should detain a subject or not. It was an absolite power which had never been given before to the Executive. and he (his Lordship) would demonstrate that no such power was in fact given to the Minister by the words in question. It was surely incapable of dispute that the words " if A has X " constituted a condition the essence of which was the existence of X and the having of it by A. The words (lid not and could not mean " If A thinks that he has." " Reasonable catise " for an action or a belief was just as much a positive fact capable of determination by a third party as was a broken ankle or a legal right. That meaning of the words had been accepted in innumerable legal decisions for many genera- tions: " reasonable cause " for a belief when the subject of legal dispute had been always treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribtinal. - In the Defence Regulations themselves the persons responsible for the framing of them had shown themselves to be fully aware of the true meaning of the words, and had obviously used the words " reasonable cause ' to indicate that mere honest belief was not enough, using different words wlhere it was intended that the Executive ofiicer should have unqualified dis- cretion. Having considered the various Defence Regulations as supporting that view, his LORD- SHIP considered the wording of regulation 18B. and said that organizations were impugned if the Secretary of State was satisfied as to their nature, btut the person was not to be detained unless the Secretary of State had reasonable cause to believe that he was a member. Why the two different expressions should be used if they had the same " subjective " meaning no one had been able to explain. He suggested that the obvious intention' was to give a safe- gtiard to the individual against arbitrary im- prisonment. CONFIDENTIAL MATTERS It was argued that it could never have been intended to substitute the decision of Judges for that of the Minister. But no one proposed either a substitution or an appeal. A Judge had the dtity to say wlhether the conditions of the power of detention were fulfilled. If there-were reasonable grounds, the Judge had no ftirtiler duty of deciding whether he would have formed the same belief, any more than, if there was reasonable evidence to go to a Jury, the Judge was concerned with whether he wouild have come to the same verdict. It was further argued that the grotnds of belief might be confidential matters of public importance, and that it was impossible to suppose that the Secretary of State was intended to disclose either his grounds or his information to the Court. The objection was answered by the very terms of the regulation itself, in its pro- ivisions that the deta'ined person had the right to make objections to an advisory committee, and that the chairman must inform the objector of the grounds on wlvich the order had been made against him. The only argument as to expediency put for ward by the defendants which had any weight was that it could not have been intended that the accumulated experience, instinct, knowledge of the Minister in coming to a decisioni on this matter could be replaced by a jtidgment of a Court of law. But before that decision was made there had to be a valid belief that the subject was of hostile origin, association, &c. Once that was established it was very unlikely that a Court would not in most cases acccpt as reasonable the Home Secretary's decision to detain. He (Lord Atkin) viewed with apprehension the attitude of Judges who on a mere question of construction, when face to face with claims involving the liberty of the subject, showed themselves more executive-minded than the Executive. Their function was to give words their natural meaning, although not perhaps in war-time leaning towards liberty. In this country amid the clash of arms the laws were not silent. They might be changed, but they spoke the same language in war as in peace. It had always been one of the pillars of freedom, one of the principles of liberty for which on recent authority this cotntry was now fighting, that the Judges were no respecters of persons, and stood between the subject and any attempted encroachments on hIis liberty by the Executive, alert to see that any coercive actioii was Itistified in law. In this case he (his Lordship) had listened to arguments which might have been addressed acceptably to the Court Of King's Bench in the time of Charles 1. He protested, even if he did it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment toithe Minister. The words had only one meaning: they were used with that meaning in statements of the common law and in statutes. They had never been used in the sense now imputed to them; they were used in the Defence Regulations in the natural meaning. He knew of only one authority which might justify the suggested method of construction. " When I use a word," Humpty Dumpty had said in rather a scornful tone, " it means just what I choose it to mean, neither more nor less." " The question is," said Alice, " whether you can make words mean different things." " The question is," said Humpty Dumpty, ".which is to be master-that's all." (Looking Glass, c. vi.) After all the long dis- cussion in that House the question was whether the words " If a man has " could mean " If a man thinks he has." He was of opinion that they could not, and that the case should be decided accordingly. The plaintiff's right to particulars, however, was based on a principle which. again, was one of the pillars of liberty, in that in English law every imprisonment was prima facie un- lawful, and that it was for a person directing imprisonment to justify his act. LORD MACMILLAN LORD WRIGHT- and LORD RO,MER gave judgments agreeing that the appeal should be dismissed. Solicitors. - Messrs. Buckeridge and Braune; Treasury Solicitor. A HABEAS CORPUS APPLICATION T1he HOUSE unanimously dismissed the appeal by Mr. Benjamin Greene, of the Hall Cottage, Berkhamsted, from the deci- sion of the Court of Appeal uphiolding the refusal by a Divisional Cotirt of an application for a writ of Ihabeas corpus. Mr. Greene is at present detained in Brixton Prison tinder regtilation 18B of the Defence (General) Regulations, 1939. Law Report, Nov. 3 HOUSE OF LORDS