Christian v Secretary of State for the Home Department

An academic appeal will generally not be heard merely because the issue may affect other cases. The court should exercise its discretion with caution and should hear an academic public-law appeal only where there is a good reason in the public interest, such as a discrete point of statutory construction likely to recur and not requiring detailed examination of the facts.

An appellant cannot ordinarily transform a limited permission application into a test case by introducing grounds not argued below, especially where the proposed issues would require substantially more hearing time and the existing case is an unsuitable vehicle for resolving them.

The appellant, a foreign national prisoner, challenged delays in processing his possible early removal from prison for deportation. The Administrative Court dismissed the judicial review claim, holding that section 46A of the Criminal Justice Act 1991 conferred a discretion rather than imposing a duty to remove a prisoner on a particular date, and that the relevant prison instructions created no legitimate expectation of removal at the start of the eligibility period.

Permission to appeal was initially refused on the papers. On renewal, the challenge was substantially confined to alleged maladministration caused by staffing delays. After the appellant had been removed to Antigua and his sentence had ended, the proposed appeal was recast to add false imprisonment, Article 5 and compensation arguments which had not been pursued below. The central issues were whether amendment should be allowed and whether the remaining academic appeal should be heard in the public interest.

1. Applications refused. The court refused the application to amend the grounds and refused permission to appeal. Lady Justice Arden and Lady Justice Smith agreed with the reasons given by Lord Justice May. The order was: application refused.
2. The proposed amendments were not permissible in the circumstances. They sought to revive substantial grounds abandoned when permission was renewed and to introduce false-imprisonment and Article 5 arguments which had not been argued before the Administrative Court. The attempt would have converted a short, single-ground permission application into a full-scale test-case appeal for which the listed time was plainly inadequate.
3. The remaining grounds were academic. The appellant had been released, had completed the relevant custodial term and had returned to Antigua. Without the proposed Article 5 case, he had no surviving personal interest, and no damages claim had been pursued in the judicial review proceedings.
4. Following R (Salem) v Secretary of State for the Home Department [1999] AC 450, the discretion to determine an academic dispute, including in public law, must be exercised with caution. An academic appeal may be heard where there is a good public-interest reason, for example a discrete statutory-construction issue likely to require resolution in numerous present or anticipated cases and not dependent on detailed facts.
5. This appeal was not a suitable vehicle for such a test case. Important arguments had not been advanced below, and the case as it remained did not justify an exercise intended to determine issues beyond the facts of the individual claim. Permission was therefore refused on the original grounds as a matter of discretion.

• Court of Appeal (Civil Division): application to amend refused and permission to appeal refused.
• Administrative Court: judicial review claim dismissed on 4 July 2006; decision reported as [2006] EWHC 2152 Admin.
• Permission stage: permission was refused on the papers by Buxton LJ and the application was renewed before Laws LJ.