Liversidge v Anderson

Under regulation 18B(1) of the Defence (General) Regulations 1939, the Secretary of State’s reasonable cause for believing that a person should be detained was assessed by the Secretary of State himself. Provided that he acted in good faith, the existence and sufficiency of his grounds were not independently reviewable by a court.

A detention order which was regular on its face and stated the prescribed belief constituted prima facie justification for detention. The detained person bore the burden of establishing invalidity. The Secretary of State was therefore not required at the pleading stage to particularise the information underlying his belief.

The appellant was detained under an order made by the Home Secretary pursuant to regulation 18B of the Defence (General) Regulations 1939. He brought an action against the former and current Home Secretaries seeking a declaration of unlawful detention, damages for false imprisonment and consequential relief.

The appellant sought particulars of the grounds on which the former Home Secretary had reasonable cause to believe that he had hostile associations and that control over him was necessary. The master refused the application. Tucker J and the Court of Appeal upheld that refusal. The Court of Appeal held that production of the detention order placed the burden on the appellant to prove its invalidity.

The central question was whether “reasonable cause to believe” imposed an objectively verifiable condition or referred to the Home Secretary’s own good-faith assessment. A related question was whether a facially regular order was sufficient prima facie justification for detention.

1. Disposition. By a majority of four to one, the House dismissed the appeal. Viscount Maugham, Lord Macmillan, Lord Wright and Lord Romer formed the majority. Lord Atkin dissented. No order for costs was sought following discussion at the conclusion of the hearing.
2. Construction of regulation 18B. Per Viscount Maugham, Lord Macmillan, Lord Wright and Lord Romer, the words “has reasonable cause to believe” referred, in their statutory and wartime context, to grounds which the Secretary of State himself regarded as reasonable. His decision was executive and preventive rather than judicial. Provided that he acted in good faith, a court could not determine independently whether his information supplied objectively reasonable grounds.
3. Context and safeguards. The majority relied upon the emergency purpose of the Emergency Powers (Defence) Act 1939, the confidential character of national-security information, and the Secretary of State’s responsibility to Parliament. Regulations 18B(3)–(6) supplied a special system of representations, review by an advisory committee and parliamentary reporting. Those provisions supported the conclusion that judicial reconsideration of the merits was not intended.
4. Proof and particulars. Per Viscount Maugham, an authenticated order regular on its face attracted the presumption that official acts had been duly performed. Lord Macmillan regarded such an order as a peremptory defence unless the detainee established that it was unwarranted, defective or otherwise invalid. Lord Wright and Lord Romer likewise held that production of the order discharged the respondents’ initial burden of justification. The requested particulars were therefore unavailable.
5. Limits. Lord Wright observed that questions such as bad faith or mistaken identity could remain justiciable. He also held that regulation 18B(8) did not validate detention which otherwise exceeded the Secretary of State’s powers.
6. Dissent. Lord Atkin considered reasonable cause to be an objective condition precedent. A court should determine whether grounds capable of supporting the prescribed beliefs existed. Because imprisonment was prima facie unlawful, the person directing it bore the burden of justification and should ordinarily provide particulars. He would have allowed this appeal.

1. House of Lords: Dismissed the appeal by a majority of four to one and upheld the refusal to order particulars.
2. Court of Appeal: MacKinnon, Luxmoore and du Parcq LJJ dismissed the appeal. They held that production or admission of a duly signed order placed the burden on the appellant to show invalidity.
3. High Court: Tucker J, sitting in chambers, dismissed the appeal from the master but granted leave to appeal.
4. Master: Master Moseley refused the application for particulars.