New Appeal: Must a document required to justify detention be headed as a “Warrant of Detention” in order to be valid ?

Here, P (I) v Governor of Cloverhill Prison, the Supreme Court granted P leave to appeal his order of detention pending deportation. The Court certifying five questions:

(i) Must the document required to justify the detention of an individual be headed as a “Warrant of Detention” in order to be valid ?

(ii) What is the nature of the power to amend a document providing for the detention of an individual relied on in answer to an enquiry under Article 40.4.2° of the Constitution and can a new warrant be provided in place of the original document relied on to justify the detention?

(iii) Can such new document be backdated to the date of the original detention of the individual or should it be regarded as being in addition to the original documentation provided by way of certificate rather than a substitution thereof?

(iv) What effect, if any, does backdating have on the validity of the documentation relied on and the steps taken to detain the applicant?

(v) Finally, what is the jurisdiction of any Court to grant a stay or an injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged?

Background

The Governor of Cloverhill Prison was holding P pending deportation on a valid, unchallenged, order for deportation. P issued Article 40.4.2° (habeas corpus) proceedings in the High Court. He alleged that the order for his detention was invalid, as it was headed “Notification of arrest and detention” instead of “Warrant of arrest and detention”. The High Court (Humphreys J) held that the warrant was defective but that the court had an inherent jurisdiction to permit the amendment of the document. The Governor amended the document heading to “Warrant of arrest and detention”, and Humphreys J held that P’s detention was legal.

The Court of Appeal dismissed P’s appeal and upheld the Governor’s cross appeal. It held that the original document was sufficient to justify P’s detention. It also upheld the High Court’s finding on its inherent jurisdiction to amend.

The Supreme Court determined that P had raised issues of general public importance which met the constitutional threshold for a further appeal to the Supreme Court.

 

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