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1. The Secretary of State seeks to challenge a decision made by a Special Adjudicator on 10th July 1997 to grant bail to Mr Mohammed Kerrouche.

2. I need take very little time with the background details. Mr Kerrouche is an asylum seeker.

3. A point came when the Secretary of State held in considering his asylum claim that the facts were such that France was a safe third country to which he could be returned. He appealed that decision to the Special Adjudicator who upheld the Home Secretary's certificate concerning France. A judicial review of the Special Adjudicator's decision was dismissed on 20th December 1996.

4. Mr Kerrouche has, at all times material to this present application, been in administrative detention under schedule 2 of the Immigration Act 1971 which, as is well-known, empowers the Secretary of State to detain a person pending his removal. The provisions I apprehend differ somewhat according to whether the person's position as an illegal entrant or a potential deportee. It matters not for present purposes.

5. He has made three applications for bail to a Special Adjudicator. Special Adjudicators are given jurisdiction under Schedule 2 to entertain applications for bail by persons who are in administrative detention. On the first two occasions bail was refused. On the third it was granted and that is a decision now sought to be reviewed by the Secretary of State.

6. In order to expose the arguments that have been canvassed in front of me, it is appropriate first to look at a letter written by the prison officer to Mr Kerrouche's solicitor dated 13th June 1996. It was a letter which was before the Special Adjudicator on each of the three occasions when a bail application was made. Mr Kerrouche is detained at Bellmarsh Prison. The letter reads in part as follows:

7. On 8th January 1997 the Treasury Solicitor wrote to Jane Coker and Partners, who I think by then had become solicitors to Mr Kerrouche. I should indicate that this letter was written, as I am told by Mr Nicol (the correspondence is before me) in answer to a specific request from the solicitors made to the Treasury Solicitor to explain what was the Home Office case relating to national security. The letter contains these passages:

8. It is useful to point out at this stage that it was in due course to be submitted by Miss Coker to the Special Adjudicator on the third bail application, and has been submitted by Mr Nicol QC to me today, that there is an inconsistency between what is said by the Treasury Solicitor and what had been said by the Prison Service. That arises primarily because, whereas the Treasury Solicitor refers to membership of the FIS, the letter from the Prison Service (read by an informed person so far as matters of terrorism in relation to Algeria are concerned) would indicate that he belonged to a different organisation, although it is not named in the Prison Service letter.

9. In the same month - January 1997 - as the Treasury Solicitor's letter was written, the Special Adjudicator, Mr Disley, determined the first bail application. I should cite a short passage from what I understand was counsel's note of what he said:

10. He proceeded to hold that there was a real risk that Mr Kerrouche would go to ground; and the offered surety was insufficient, as he put it:

11. Accordingly he refused bail.

12. The second application for bail was made on 11th June 1997 and was heard by Ms Jarvis, who was the same Special Adjudicator who heard the final application at which, of course, the grant of bail now under review was made. On 11th June she refused bail and there is before me a written statement of her reasons, part of which read as follows:

13. In fact, as has been made clear to me by Mr Nicol, the letter of 13th June as well as the letter of 8th January with its reference to a French newspaper was before the Adjudicator on each of the three occasions when bail was applied for.

14. The Special Adjudicator on 11th June proceeded, however, to refuse bail, again, because she was not satisfied that the sureties offered were adequate.

15. I come to the decision under challenge. It is clear from evidence put in by Mr Martin of the Treasury Solicitor's department, and also from written contemporaneous notes of the hearing which are before me, that Ms Coker was submitting that the Home Office case was inconsistent because of the actual or apparent disparity between the two letters to which I have referred. Mr Garnham for the Secretary of State, who also has appeared on his behalf before me, was submitting fair and square that the national security case depended on the letter of 13th June.

16. With that in mind I turn to the Special Adjudicator's decision on 10th July.

17. In the result Ms Jarvis decided to grant bail subject to a nominal recognisance to be entered by Mr Kerrouche and seven sureties. She also imposed a condition that he attend twice daily at a police station.

18. The Secretary of State sought very speedily to move for judicial review, and it is necessary only to say that, because of a stay granted on the Adjudicator's decision, Mr Kerrouche has remained in custody since 10th July.

19. The first point taken by Mr Garnham in support of his challenge to this decision is that the Special Adjudicator did not take the issue of national security into account at all when deciding whether or not to grant bail as a matter of principle. If one looked merely at the decision of June 23rd, it is not by any means readily apparent whether such a submission is supported by its terms or not.

20. Mr Garnham says that what this Adjudicator has in fact done is to replicate the reasoning process of Mr Disley at the time of the first decision. She has simply disregarded national security as an issue of principle, although she differs from Mr Disley in the result, because on the occasion of 10th July she was satisfied as to the sureties.

21. There is set out in the grounds material which shows certain exchanges between Mr Garnham and the Special Adjudicator herself immediately after or, at any rate, on the same day as the Adjudicator had given her decision orally. It is not entirely clear to me what is the evidential basis upon which I should receive these exchanges but I infer from the lack of any objection from Mr Nicol that they are by some proper means agreed.

22. What is said is this; Mr Garnham asked the Special Adjudicator to confirm:

23. Mr Garnham then asked:

24. And then, after the Special Adjudicator's written reasons had been given, Mr Garnham asked her for clarification of an expression in her note. What is said is this:

25. Mr Nicol makes the entirely simple point that, since Mr Garnham accepts that happened, there is no basis for the suggestion that she literally disregarded the issue of national security when considering the question of bail in principle, since to do so accuses the Special Adjudicator of a falsehood in asserting, as she plainly did, that she had taken it into account. It seems to me that Mr Nicol is right; there being no question of bad faith on the Special Adjudicator's part, the material before me would not justify a finding that the issue of national security was, if I may use the expression again, literally disregarded by the Special Adjudicator when considering whether to grant bail. However, quite a different question is what she made of it.

26. The second basis upon which Mr Garnham impugns or seeks to impugn the decision is, he says, that the reasons given by the Special Adjudicator are inadequate.

27. I say at once it is wholly plain to me that those reasons do not explain or begin to explain what the Special Adjudicator made of the evidence that was before her about national security. There is no reference to the letter of 13th June 1996; there is no reference to the letter of 8th January 1997, nor to a statement made by Mr Kerrouche (who was also before her) and which amongst other things asserts he had never been involved in any political activity. All one has is the reference to national security in the sentence I have quoted.

28. Then in the next paragraph one sees this:

29. The rest of the letter deals with the sureties. So were this a case in which the Special Adjudicator were obliged by statute to give reasons, I would hold without the least hesitation that these reasons are very gravely inadequate. It is plain that the national security case being made by Mr Garnham was at the forefront of the Home Office concerns. Whatever points might have been made as to inconsistency between the two letters, or between them or either of them and the Applicant's statement, a decision made as to whose duty it was to arrive at a decision upon the strength or weakness of the national security case and to explain what that decision was, must surely at the very least have referred to the material which was before her relative to that issue, and indicated what she made of it. None of that has been done here. But Mr Nicol submits that this was a case where there was no duty to give reasons. Certainly none is imposed by the Immigration Act 1971, and it remains at present unhappily the position under the common law that there is no general duty upon public administrators or other public authorities to give reasons. Mr Garnham, I think, does not even contest the proposition that in general Special Adjudicators are not obliged to give reasons, although he would say that this was a special case given the critical importance of the issue. I am not sure that a duty to give reasons could be generated out of the content and context of a particular case in circumstances where otherwise the decision maker has no legal duty to give reasons.

30. Mr Garnham's more substantial submission is that where a decision-maker chooses voluntarily to give reasons, why then he or she attracts a duty to see to it that the reasons given are adequate; that is to say that they explain essentially why the decision was taken. A decision-maker therefore may put him or herself into the same position as would be occupied by one who owes a duty to give reasons.

31. Mr Garnham cited certain planning cases as supporting this proposition. However, I think they are, with respect, of limited assistance. They are all concerned with decisions by planning inspectors on the basis of written representations; true it is that in such a case the planning inspector has no duty ab initio to give reasons but such a duty is imposed where reasons are requested. So it is unsurprising that the cases show that where such an inspector gives reasons in advance of a request being made, then they are to be judged as if given in response to a request and therefore pursuant to a duty.

32. Mr Garnham relies also on a passage in De Smith, Judicial Review Administrative Action at paragraph 9-053.

33. The planning cases are there set out.

34. The decision of Sedley J., in R v Criminal Injuries Compensation Board ex parte Gambles [1994] PIQR P314 is cited. That case concerned the Criminal Injuries Compensation Board. It is enough to say that Sedley J's reasoning in Gambles was disapproved by the Court of Appeal in R v CICB ex parte Cook [1996] 1 WLR 1037. It is perhaps with respect unnecessary to read from the text of Sedley J.

35. Aldous LJ in Cook at 1044 H says this:

36. And he added: "I also cannot agree that..." and cited Sedley J.:

37. Hobhouse LJ., with deference, was much to the same effect at 1050:

38. Then after setting out a passage from Sedley J's judgment the learned Lord Justice continues at 1051 A:

39. So it seems to me that the Court of Appeal have disapproved reasoning in the case of Ex parte Gambles in considerable measure on the footing that that reasoning drove judicial review towards a merits appeal.

40. Mr Nicol refers to the Cook case for the principal purpose of seeking to refute the statement in the De Smith:

41. It does not seem to me that Ex parte Cook refutes what the authors of De Smith said. Certainly Ex parte Gambles had it stood would have required a complicated process of reasoning to be undertaken and expressed by a board such as the Criminal Injuries Compensation Board, but Ex parte Cook says nothing to the proposition whether if a decision-maker chooses to give reasons he may give what, had he a duty, would be legally bad reasons. I consider that a reasonable decision-maker, if he chooses to give reasons, must have concluded that proper reasons should be communicated to the interested parties. And undoubtedly in a case such as the present, without for a moment derogating from the proposition that the Adjudicator generally owed no duty to give reasons, nothing could be easier than to perceive why a reasonable Special Adjudicator would choose to give the reasons for the decision she has made. But in that case the decision to give reasons is a decision to give proper reasons.

42. If in the result the reasons given simply do not explain why the decision was taken, then the decision-maker's own choice that reasons should be given has not been carried through. The reasons do not achieve the result intended and in my judgment in such a case the court will scrutinise the reasons given on much the same footing as where the decision-maker owes a duty to give reasons.

43. If that is right, this decision falls to be quashed. As I have already explained the reasons here are, I fear, very seriously inadequate. If it is wrong, however, I should canvass Mr Garnham's third argument and that is that this was an irrational decision.

44. I do not hold that a reasonable Adjudicator on the material before Mrs Jarvis on 10th July was bound to refuse bail, Though, as it seems to me, the difficulty being a decision to grant bail is a very difficult one to justify.

45. The right approach to the rationality challenge, it seems to me, is connected with that part of the case which concerns reasons. It is well-known, it is well established that if a decision-maker chooses not to give reasons or not to give full or proper reasons the court may infer that the decision-maker has not dealt properly and lawfully with the material before him. There is reference to a such a position in the leading authority in the House of Lords in Padfield [1968] AC 997.

46. In the present case one simply does not know what the Special Adjudicator made of the arguments concerning national security. The inference is that in truth while I have accepted that she in a literal sense took account of it, she has not grappled with the problem to which the very grave case, made on national security grounds, gave rise. She has not considered whether the contents of the letter of 13th June 1996 might reasonably be true and what should follow from that. She has not, I think, measured it against the letter of January 1997 nor the Applicant's statement. In short, although the material was before her and I have indicated that I cannot hold that she simply disregarded it, she has not reached an adjudication on the merits of the national security issue that she was obliged to do.

47. On this ground also I will quash the decision.

48. I wish to add this out of deference to an important submission made by Mr Nicol. This of course is an application for a judicial review of a grant of bail. Such an application I apprehend will be very rare indeed, Mr Nicol certainly has not contested the court's jurisdiction to entertain it. The court will look with very great care on any such application, not only because of the very bringing of judicial review proceedings if a stay is granted it will mean that a person is detained beyond the time when, according to the order of a properly constituted judicial authority he ought to be released, but also because of the obvious importance always recognised by the common law of a person's liberty.

49. I have held in the present case that the grant of bail falls to be quashed. I desire to emphasis that I regard this case and the granting of such relief in a context such as this as wholly exceptional.

50. MR GARNHAM: My Lord, those behind me are anxious to reassure your Lordship that the making of this application is exceptional, just as the grant of relief is.

51. MR JUSTICE LAWS: I imagine they have no previous experience of making such an application any more than I have.

52. MR GARNHAM: I think that is the case.

53. I was also anxious on one point arising out of the judgment. Your Lordship was uncertain as to the evidential basis for the material and the ground relating to the exchange.

54. MR JUSTICE LAWS: I did not mean to criticise, it is just that I was only shown the grounds. I imagine this is somewhere.

55. MR GARNHAM: In the affidavit, page 17, my Lord. In those circumstances I seek an order quashing the grant of bail. My Lord, I think I need nothing else.

56. It would be possible to admit the matter to the same or another Special Adjudicator but I do not seek that. I seek simply to quash it and I imagine my friend -- I will leave to it him to make his own submission -- but it might be that it is good for him to make another application --

57. MR JUSTICE LAWS: We had better not leave the matter in a state of uncertainty. Leaving aside any question of whether Mr Nicol would want to test the case in the Court of Appeal, I would have thought that the consequence of my quashing the decision is that notionally it remains undetermined and the Adjudicator or an Adjudicator will have to redetermine it. That would be the conventional decision.

58. MR GARNHAM: I think that is right.

59. MR JUSTICE LAWS: That gives no problem to your client.

60. MR JUSTICE LAWS: If Mr Nicol agrees that is our common understanding. You make no other application, Mr Garnham? Costs?

61. MR GARNHAM: Only if it is to be remitted, I would invite your Lordship to remit it to a different Special Adjudicator.

62. MR JUSTICE LAWS: That may be wise; we will see what Mr Nicol says.

63. MR NICOL: My Lord, as far as the order disposing of the

64. MR JUSTICE LAWS: Yes, certainly.

65. MR NICOL: I was about to mislead the court. The arrangement that had provisionally been made for another bail hearing was only in the event that this application by the Secretary of State was unsuccessful.

66. MR JUSTICE LAWS: If it was unsuccessful your client would be bailed.

67. MR GARNHAM: Could I help, because I think I know the background of the story. When the Special Adjudicator granted bail on this occasion she imposed a surety regime. She said that that should run until the date of the hearing of the judicial review into the safe third country case.

68. MR JUSTICE LAWS: That has still not been --

69. MR GARNHAM: That has still not been decided; it now has been.

70. My Lord, can I complete the story? My friend will stop me if I do anything wrong. Judgment in the third challenge is to be given at three o'clock this afternoon. As it happens those instructing me, in case it became relevant, sought the leave of the Master of the Rolls who was one of the three Court of Appeal judges who heard the case, to refer your Lordship to it. It has not been necessary thus far, but I know my friend knows the answers, as does his client, I imagine, as does everybody else, and the challenge failed in the Court of Appeal.

71. What subsists by way of hearing tomorrow is that the Special Adjudicator indicated that if it became necessary to continue the bail regime that she imposed, she would want to see the parties again to arrange times and dates for securities.

72. MR JUSTICE LAWS: That is being done tomorrow as it

73. MR GARNHAM: That would have been done tomorrow, yes. As your Lordship has quashed bail on which that hearing was premised --

74. MR JUSTICE LAWS: We are back to where we started. It has to be determined. That is right, is it not, Mr Nicol?

75. MR NICOL: It has to go back.

76. MR JUSTICE LAWS: You agree it would be appropriate to be done by a different Adjudicator? I would have thought, given that there has been some perfectly proper argument about what she said and what she did not say, it might be a little embarrassing for her to have to deal with it a second time round or a third time round.

77. MR NICOL: I leave it in your Lordship's hands. These are people who are used to exercising effectively judicial functions; they have broad shoulders and they are also used to setting out of their mind considerations that should not be there.

78. MR JUSTICE LAWS: I accept that without trouble.

79. MR NICOL: My Lord, this is an experienced Adjudicator. I

80. LORD JUSTICE LAWS: Thank you, Mr Nicol.

81. I think all things considered -- and I emphasise I mean no criticism of the Adjudicator in this, any criticism I have made is wholly limited to my judgment -- it would be more appropriate for a different Adjudicator to re-hear this application for bail.

82. MR NICOL: That disposes of the order that your Lordship

83. MR JUSTICE LAWS: There is nothing in the jurisprudence

84. MR NICOL: I have not come across any. Your Lordship

85. MR JUSTICE LAWS: Nor has Mr Garnham.

86. MR NICOL: I am sure he would draw it to your attention.

87. MR JUSTICE LAWS: I suppose you want to say that it may be appropriate for the Court of Appeal just to see whether any special limitation of principles apply when you have judicial review of the grant of bail.

88. MR NICOL: Indeed, and that would also be something material

89. MR JUSTICE LAWS: Mr Garnham, exceptionally I think this may be a case where at first instance the court should give leave. What would you like to say?

90. MR GARNHAM: I hesitate to say anything. It is ultimately a matter for your Lordship. I register my opposition to the application but do no more, I think.

91. LORD JUSTICE LAWS: Thank you, Mr Garnham, that is entirely proper. I will give leave to appeal in this case.

92. MR NICOL: My Lord, I am legally aided and I ask for legal aid taxation.

93. MR JUSTICE LAWS: Yes, certainly. I am grateful to