Mahajna v Secretary of State for the Home Department  EWHC 2481 (Admin) (30 September 2011)
The High Court of England and Wales has upheld the right of people under arrest to be given adequate factual and legal reasons for arrest in a timely manner and in a language they understand, in line with article 5(2) of the European Convention on Human Rights. Justice Nicol of the High Court emphasised that “[r]ights under the common law and the Convention are intended to be real rights and confer real benefits. The Claimant was entitled to know, at least in the broadest terms, why he was being arrested.”
The UK Secretary of State made a decision excluding Mr Mahajna, a pro-Palestine political activist, from entering the UK on public interest grounds. Mr Mahajna was not notified of this decision before being granted leave to enter the UK on 25 June 2011.
On 28 June 2011, Mr Mahajna was arrested by five Immigration Officers at his hotel in London. One of the officers stated in English that Mr Mahajna was being arrested for detention under the Immigration Act 1971 (UK). Mr Mahajna does not speak or understand English. Mr Mahajna’s interpreter was prevented from communicating with Mr Mahajna at the time of arrest and from accompanying Mr Mahajna to the police station. In the car to the police station, one of the officers incorrectly informed Mr Mahajna that he was being arrested for immigration offences (using an iPhone translation application). The form on which the grounds for arrest were listed contained errors as to the reasons for Mr Mahajna’s arrest, but Mr Mahajna was not able to understand these errors as they were written in English. Mr Mahajna was not provided with the correct reasons for his arrest – namely that the Secretary of State considered his deportation to be imminent and in the public interest – in Arabic until 30 June 2011.
Mr Mahajna remained in detention until he was released subject to stringent bail conditions on 18 July 2011. Mr Mahajna is currently appealing the Secretary of State’s decision that his presence in the UK is inimical to the public good in a separate case.
Justice Nicol held that the Secretary of State’s statutory power to detain a person pending deportation under the Immigration Act 1971 (UK) is qualified by the right to adequate reasons for arrest. Article 5(2) of the European Convention on Human Rights provides that “[e]veryone who is arrested shall be informed promptly in a language which he understands, of the reasons for his arrest and any charge against him”.
Justice Nicol applied the objective test of “whether, having regard to all the circumstances of the particular case, the person arrested was told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest”, originally formulated in Lord Justice Clarke’s leading judgment in the European Court of Human Rights decision of Fox, Campbell and Hartley v UK (1990).
Mr Mahajna’s arrest was held to be unlawful following two separate principles.
First, a person under arrest must be told the factual and legal reasons for their arrest at the time the arrest is made. While Mr Mahajna did not have to be informed of all the details, he had a right to be informed that he was being arrested because he was about to be deported. The officers’ failure to state this reason was of itself sufficient to establish that Mr Mahajna’s right to adequate reasons for arrest had been violated, rendering the arrest unlawful.
Secondly, the reasons given to a person under arrest must be in a language which the person can understand. Whether the officers knew Mr Mahajna could not speak or understand English was considered immaterial to determining the objective test that the arresting officers do “all that was reasonable in the circumstances” to provide adequate reasons. On the facts, there was a lack of evidence explaining why the officers had failed to ensure the reasons were available in Arabic, such as allowing Mr Mahajna’s interpreter to communicate with him or ensuring an Arabic speaking officer was present at the time of arrest. Thus, the failure to provide Mr Mahajna with reasons for his arrest in a language he could understand constituted a separate ground on which his arrest was unlawful.
Although the form on which the reasons for arrest and detention were listed contained errors, Nicol J found that these did not prejudice Mr Mahajna as he was unable to understand them at the relevant time. By the time the errors on the form were translated to Mr Mahajna, the accurate reasons for arrest and detention had been provided.
Further, the fact that Mr Mahajna did not ask for further information about his detention does not prejudice his case. Justice Nicol clarified that the onus is on the arresting officers to provide reasons irrespective of whether the person under arrest or detention asks for them.
Relevance to the Victorian Charter
Section 21(4) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises a right to adequate reasons for arrest or detention similar to article 5(2) of the Convention. It explicitly states that “[a] person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.”
Although it is unclear whether Australian courts will adopt the approach taken by the English and Wales High Court, this case indicates that the right to adequate reasons for arrest or detention under the Victorian Charter should be qualified by two key principles. First, the reasons provided should contain both the factual and legal grounds for arrest or detention. Secondly, the reasons should be in a language which the person under arrest is able to understand.
The decision can be found online at: www.bailii.org/ew/cases/EWHC/Admin/2011/2481.html
Lee Carnie is a volunteer with the Human Rights Law Centre.