61979C0131
OPINION OF MR ADVOCATE GENERAL WARNER
DELIVERED ON 27 FEBRUARY 1980
My Lords,
In this case the Court is once again concerned with Council Directive No 64/221/EEC“on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health”. More particularly the Court is concerned with the effect of that directive in relation to deportation orders made in England by the Secretary of State for Home Affairs on the recommendation of criminal courts under the procedure that I described in my opinion in Case 30/77 Reg. ν Bouchereau [1977] 2 ECR 1999.
The case comes before the Court by way óf a reference for a preliminary ruling by a Divisional Court of the Queen's Bench Division of the High Court of Justice of England and Wales. The applicant in the proceedings before that Court is Mr Mario Santillo. The respondent is the Secretary of State for Home Affairs.
The facts are these.
Mr Santillo, who was born in 1941 and is an Italian national, went to the United Kingdom as a migrant worker in 1967 and was in full employment there until December 1973. He is married to an Italian national and has two children, both born in the United Kingdom.
On 13 December 1973 Mr Santillo was convicted at the Central Criminal Court in London of offences of buggery, rape, indecent assault, and assault causing actual bodily harm. The victims of the offences were prostitutes. In sentencing Mr Santillo, which he did on 21 January 1974, the learned trial Judge described the offences as “very grave... callous, cruel and ruthless”. He sentenced Mr Santillo to a total of eight years' imprisonment and recommended him for deportation.
Before passing that sentence and making that recommendation the Judge heard Counsel on behalf of Mr Santillo. From the transcript of the hearing, which is among the papers before us, it seems that Counsel made three points. The first was as to the possibility of Mr Santillo responding to treatment, the second (on which Counsel placed the most emphasis) was as to the situation of his wife and children, and the third was that he had no previous convictions. At an earlier hearing, on 11 January 1974, Counsel had said that the United Kingdom's accession to the EEC did not mean that a deportation order could not be made in respect of Mr Santillo. (He was not the same Counsel as appeared for Mr Santillo in the Divisional Court and in this Court).
On 18 February 1974 Mr Santillo applied to the Court of Appeal (Criminal Division) for leave to appeal against his sentence and against the recommendation for deportation. The grounds put forward on his behalf were mostly concerned with the length of the sentence, though mention was made of the situation of his wife and children, and of the fact that he had previously been a hard-working man “of good character”. On 10 October 1974 a full Court of the Court of Appeal refused the application.
On 28 September 1978 (that is some 41/2 years after the recommendation for deportation had been made and nearly four years after the case had been considered by the Court of Appeal) the Secretary of State, pursuant to sections 3 (6) and 5 (1) of the Immigration Act 1971, made a deportation order in respect of Mr Santillo based on the recommendation of the trial Judge. By the last paragraph of that order the Secretary of State, pursuant to paragraph 2 of Schedule 3 to the Act, authorized Mr Santillo to be detained until he should be removed from the United Kingdom. No reason for the Secretary of State's decision was given in the deportation order itself, save the existence of the recommendation.
Mr Santillo was at the time still serving his sentence at Maidstone Prison. It was expected that, having earned remission for good conduct, he would complete his sentence on 3 April 1979.
On 5 October 1978 there was addressed to him on behalf of the Secretary of State a document headed “Directions for removal on deportation”, informing him that the Secretary of State had given directions for his removal from the United Kingdom “on 2 April 1979 or as soon as possible thereafter by air to Italy”. The document also stated that there was no appeal against deportation, but that he was entitled to appeal against the removal directions to the independent appellate authorities established under the Immigration Act 1971 on the ground that he ought not to be removed to Italy but ought to be removed to some other country or territory specified by him. The document went on to indicate the procedure on such an appeal.
The Order for Reference records that Mr Santillo had been afforded “no further hearing” between the date when the Court of Appeal refused his application and the date when the Secretary of State made the deportation order. We were told however at the hearing in this Court that written representations, to the effect that he ought not to be deported, had been made on his behalf to the Secretary of State in 1975 and again in 1978.
An affidavit sworn in the proceedings before the Divisional Court by an official of the Immigration and Nationality Department of the Home Office mentions the factors taken into account by the Secretary of State in considering whether Mr Santillo should be deported. The deponent says that the Secretary of State took into account Mr Santillo's status as a national of an EEC Member State and the considerations set out in Rule 47 of the Immigration Rules for Control after Entry — EEC and other Non-Commonwealth Nationals 1973. Those are Rules laid down by the Secretary of State under section 3 (2) of the Immigration Act 1971. Rule 47 provides (so far as material) :
“In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor, including —
—
age;
—
length of residence in the United Kingdom;
—
strength of connection with the United Kingdom;
—
personal history, including character, conduct and employment record;
—
domestic circumstances;
—
the nature of the offence of which the person was convicted;
—
previous criminal record;
—
compassionate circumstances;
—
any representations received on the person's behalf.”
The affidavit goes on to say that the Secretary of State took into account in particular —
(i)
Mr Santillo's domestic circumstances;
(ii)
the nature and circumstances of his conviction including the fact that it arose from two separate incidents involving different women; and
(iii)
the fact that the Parole Review Committee of Maidstone Prison had refused to recommend him for parole in 1976 and 1977 and that the Secretary of State himself had decided not to release him on licence in 1978. (This was an allusion to the application — or rather non-application — in Mr Santillo's case of the provisions of Section 60 of the Criminal Justice Act 1967, under which the Secretary of State may, if recommended to do so by the Parole Board created by that Act, release on licence a person serving a sentence of imprisonment after he has served one-third of his sentence or 12 months of it, whichever expires later).
The affidavit concludes :
“As a matter of public policy and in the interests of public safety the Secretary of State reached the conclusion that in all the circumstances there would be an excessive risk to the public from offences of the same or similar sort as those of which the applicant had been convicted, which out-weighed the arguments in favour of allowing the applicant to remain... in the United Kingdom on completion of his sentences of imprisonment.”
There has also been filed in the proceedings before the Divisional Court an affidavit by the Senior Medical Officer of Maidstone Prison. That affidavit is before us too. It is about the relations between Mr Santillo and his wife and children, and about the likelihood of his committing similar offences again. We were told however that no report by that Officer was before the Secretary of State when he made the deportation order, though other medical reports may have been. We were also told that the Secretary of State had before him information to the effect that the police suspected Mr Santillo of having committed other offences similar to the ones for which he had been convicted.
The proceedings before the Divisional Court are proceedings for judicial review (under Order 53 of the Rules of the Supreme Court) in which Mr Santillo seeks an order of certiorari to quash the deportation order. They are thus proceedings in which the Divisional Court has jurisdiction in respect of the legal validity of the deportation order but not in respect of its merits.
It was submitted on Mr Santillo's behalf before the Divisional Court that that order was a nullity as being in breach of Article 9 (1) of Directive No 64/221, which is (so far as material) in these terms:
“Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision_... a decision... ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for.
This authority shall not be the same as that empowered to take the decision... ordering expulsion.”
It was further submitted on Mr Santillo's behalf, in reliance on the judgment of this Court in the Boucbereau case, that before any deportation order was made in the case of an EEC national the authorities had to be satisfied that he presented “a present threat to the requirements of public policy” and that a court recommendation made over 4 1/2 years before the deportation order could not comply with that rule.
Finally as regards the facts I must mention that Mr Santillo did complete his sentence, as expected, on 3 April 1979. He was thereafter detained for some months under the deportation order. In the summer of 1979, however, the Home Office arranged for him to go to Italy pending the outcome of the Divisional Court proceedings. His wife and children are, we were told, still in England.
I must also mention, before I turn to the questions referred to this Court by the Divisional Court, that there were cited to us on behalf of Mr Santillo a number of cases in the Court of Appeal (Criminal Division) in which that Court has considered the principles on which an English criminal court should exercise its discretion whether or not to recommend an alien for deportation. It was submitted that those authorities were unsatisfactory and to some extent inconsistent with each other. None of them seems to me directly in point. Some of them were decided before the United Kingdom became a Member State of the Community. Those decided after that date are either cases where the Court of Appeal has set aside the recommendation for deportation made by the Court of trial or cases where the Court of Appeal has ascertained the nationality of the convicted person and found that it was (in one case) Nigerian or (in the other) Israeli. The general tenor of at all events the later cases seems to me, however, to be to the effect that an English criminal court should, before making a recommendation for deportation, consider all relevant factors, to the exclusion only of the risk to the convicted person of persecution or ostracism in his or her country of origin. Those risks, the Court of Appeal has held, the English courts do not have the machinery for investigating, and their evaluation must be left to the Secretary of State. Since such risks do not exist (or at least should not exist) in any Member State of the Community, the exception is in my opinion irrelevant for present purposes.
The questions referred to this Court by the Divisional Court are, in slightly abbreviated form, these:
1.
Whether Article 9 (1) of Council Directive 64/221 confers on individuals rights which are enforceable by them in the national courts of a Member State and which the national courts must protect;
2.
(a)
What is the meaning of the phrase “an opinion has been obtained from a competent authority of the host country” in Article 9 (1) of the Directive; and
(b)
in particular, can a recommendation for deportation made by a criminal court on passing sentence constitute “an opinion”?
3.
If the answer to Question 2 (b) is Yes:
(a)
Must “a recommendation” be fully reasoned?
(b)
In what (if any) circumstances does the lapse of time between the making of “a recommendation” and the taking of the decision ordering the expulsion preclude “a recommendation” from constituting “an opinion”?
(c)
In particular, does the lapse of time involved in serving a sentence of imprisonment have the effect that “a recommendation” ceases to be “an opinion”?
It was submitted on behalf of Mr Santillo and of the Commission that the first question should be answered in the affirmative; on behalf on the United Kingdom Government that it should be answered in the negative.
The starting point of the United Kingdom Government's argument was that the problem to be solved was whether Article 9 (1) of the Directive was “self-executing”. In my opinion that expression, which is taken from American law, is in the present context best avoided, because it blurs the distinction between direct applicability and direct effect. Those two concepts are different and it is confusion between them that leads to the fallacious argument that one sometimes hears that, because Article 189 of the Treaty says that a regulation shall be “directly applicable in all Member States” and says nothing of the kind in the case of directives, no provision of a directive can ever have direct effect. Unquestionably every provision of every regulation is directly applicable, but not every provision of every regulation has direct effect, in the sense of conferring on private persons rights enforceable by them in national courts. One can point to numerous examples of provisions of regulations that confer no direct rights on private persons. Conversely it is, as Mr Advocate General Reischl said in Case 148/78 Publico Ministem ν Ratti [1979] ECR 1629, at p. 1650, “certainly inappropriate to speak of the direct applicability of a directive”. But it does not follow that a directive can never have a direct effect. As the Court has said more than once, “whilst under Article 189 regulations are directly applicable and, consequently, by their nature capable of producing direct effects, that does not mean that other categories of acts covered by that article can never produce similar effects” — see Case 41/74 Van Duyn ν Home Office [1974] 2 ECR 1337 (paragraph 12 of the judgment), Case 51/76 Nederlandse Ondernemingen ν Inspecteur der Invoerrechten en Accijnzen [1977] 1 ECR 113 (paragraph 21), Case 21/78 the Delkvist case [1978] ECR 2327 (paragraph 19) and the Ratti case (paragraph 19). The United Kingdom Government indeed acknowledged that that was so.
What then is it that makes a provision of a directive have direct effect? In Case 38/77, the Erika case [1977] 2 ECR at p. 2226, I said:
“The crucial consideration seems to me to be this. Article 189 of the Treaty, although it leaves to each Member State the choice of the ‘form and methods’ whereby it is to give effect to a directive, does not allow it the choice of not giving effect to the directive at all, or of giving effect to it only in part. On the contrary Article 189 says in terms that a directive ‘shall be binding, as to the result to be achieved, upon each Member State to which it is addressed’. A Member State that fails fully to give effect to a directive is in breach of the Treaty, so that to allow it (through its executive or administrative authorities) to rely upon that fact as against a private person in proceedings in its own Courts would be to allow it to plead its own wrong.”
Similarly, in the Ratti case, Mr Advocate General Reischl said this (at p. 1650):
“The essence of such effects is that in certain cases, which however constitute the exception to the rule, Member States which do not comply with their obligations under the directive are unable to rely on provisions of the internal legal order which are illegal from the point of view of Community law, so that individuals become entitled to rely on the directive as against the defaulting State and acquire rights thereunder which the national courts must protect.”
That view was clearly adopted by the Court in the Ratti case — see paragraph 22 of the judgment, which reads:
“Consequently a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails.”
Of course a Member State's failure to implement a provision of a directive does not of itself mean that that provision may be directly invoked by private persons. That result follows only where the provision in question was of such a kind as to require the Member State to confer, by its own law, rights on private persons. The test in each case is whether “the nature, general scheme and wording of the provision” are such as to entail such a requirement — consider Van Duyn ν Home Office (paragraph 12 of the judgment).
It was submitted on behalf of the United Kingdom Government that a provision of a directive could never have direct effect unless it satisfied three conditions: (i) it must be “clear”, (ii) it must be “unconditional or at least subject only to clearly defined conditions” and (iii) it must leave “no element of discretion to Member States in regard to its application”. The United Kingdom Government went so far as to submit that those conditions had been laid down by this Court in its judgments on the direct effect of directives. In my opinion that is not so. Those conditions are, more or less, those that the Court has held must be satisfied before a provision of the Treaty can have direct effect. But the Court has never, so far as I am aware, held that they apply in the case of a directive. Nor, as it seems to me, could the Court have so held without qualification.
Take the third condition: that no element of discretion should be left to Member States in the application of the directive. It is of the very essence of a directive that it should, in the words of Article 189, “leave to the national authorities the choice of form and methods”. Of course the width of that choice will depend on the subject-matter and content of the directive, but some element of discretion there will nearly always be.
The United Kingdom Government submitted that a distinction should be drawn between those Articles of Directive No 64/221 that were concerned with substantive rights (Articles 2, 3 and 4) and those concerned with procedural safeguards (Articles 5 to 9). The substantive provisions, it was said, created rights for individuals as to the scope of which Member States had no discretion, whereas the procedural provisions admitted of a variety of methods of compliance adapted to “the varied administrative and judicial processes of the individual Member States”. I do not doubt that that is right. But it does not mean that, if a Member State should fail to provide a procedural safeguard of a kind required by any of the provisions of Articles 5 to 9, or should provide it only imperfectly, an individual thereby adversely affected can have no remedy. The Member State has “the choice of form and methods”, but it must in some form and by some method afford to the individual the safeguards required by the Directive. As was pointed out to us on behalf of the Commission, those procedural safeguards may in practice be as important to him as his substantive rights.
That the provision in question must be unconditional is obviously right. Indeed, if the application of a provision in a directive is subject to a condition and that condition is not fulfilled, that provision can have no effect at all. We had a very good example of such a situation in Case 70/77 Simmenthal ν Amministrazione delle Finanze dello Stato [1978] ECR 1453. But the United Kingdom Government has here interpreted the word “conditional” in quite a different sense. It has fastened on the introductory words of Article 9 (1) — “Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, etc.” — and suggested that those words import a relevant condition.
In my opinion they do nothing of the kind. They merely describe the circumstances in which Article 9 (1) is to apply.
Lastly there is the first condition enunciated on behalf of the United Kingdom Government: that the provision should be “clear”. Clear of course it must be, in the sense of precise enough to give rise to a legal right or to legal rights (see paragraph 23 of the judgment in the Ratti case). But the United Kingdom Government interpreted “clear” in this context as meaning not “precise”, but “unam-biguous”. It submitted that Article 9 (l)'s “want of clarity is perhaps best demonstrated by the competing contentions as to its proper meaning” advanced by the parties in this case. Ambiguity in legislative provisions is one of the things that courts exist to resolve. It is not the same as lack of precision. We are only too familiar in this Court with ambiguities in regulations. No-one has ever suggested however, and quite rightly, that an ambiguity in a regulation meant that it could not have direct effect. The same is true of directives, as the Court held in the Van Duyn case (see paragraph 14 of the judgment).
Thus, in my opinion, the answer to the Divisional Court's first question really depends upon whether one should infer from “the nature, general scheme and wording” of Article 9 (1) that it imposed on each Member State an obligation to afford to nationals of other Member States procedural safeguards of the kind that it prescribed. To my mind the answer can only be ‘Yes’.
So I turn to the Divisional Court's second question.
On that it was submitted on behalf of Mr Santillo and of the Commission that a recommendation of the kind here in question could not constitute an “opinion” for the purposes of Article 9 (1). On behalf of the United Kingdom Government it was submitted that it could.
It was common ground that no legislation had been introduced in the United Kingdom specifically to give effect to Directive No 64/221. Those responsible considered at the time of Accession that the United Kingdom's existing laws complied with the Directive. This case in effect raises the question whether they were right. Manifestly a Member State the law of which already complies with the provisions of a directive at the time when the directive becomes binding on it need not enact new legislation to implement the directive (consider in that respect the Delkvist case).
The main point taken on behalf of Mr Santillo was that the Secretary of State would often have available to him information about the offender that was not before the court of trial. That was illustrated by this case, where the Secretary of State was informed of the suspicions of the police, of the views of Parole Review Committee, and so forth.
That is undoubtedly a valid criticism of the way in which the procedure was operated in this case and may have been operated in other cases. The scheme of Articles 8 and 9 of the Directive is plainly that the person concerned should be afforded the opportunity of having the merits of his case considered by a body independent of the administrative authority in which is vested the power of decision. That independent consideration may come about by virtue of Article 8. If not it must (save in “cases of urgency”) come about by virtue of Article 9. I respectfully agree with the view expressed by Mr Advocate General Capotorti in the opinion that he delivered recently in Case 98/79 Pecastaing ν Etat Belge that, in a case where Article 9 applies, and subject to the exception for national security made by the last few words of Article 9 (2), the person concerned must be supplied with all the material on which the administrative authority may found its decision, so that he may at least make representations thereon to the independent body. The reference in Article 9 (1) to “rights of defence” clearly imports that the person concerned should have the protection of what English-speaking lawyers generally call “the rules of natural justice” and French-speaking lawyers call “les droits de la défense”. It is contrary to those rules to withhold from a person, so that he cannot comment on it, material that is to be taken into account in reaching a decision affecting him. (I should add that the words “such rights... as the domestic law of that country provides for” in the English text of Article 9 (1) cannot be interpreted as meaning that the host country is free to deny such rights to the person concerned. Reference to the other five texts shows that the discretion of that country is only as to the procedure according to which he is to exercise his rights. Thus the French text has “... l'intéressé doit pouvoir faire valoir ses moyens de défense... dans les conditions de procédure prévues par la législation nationale.”)
To say however that in the present case (and possibly in other cases) the procedure was operated in a manner incompatible with Article 9 (1) is not to say that a recommendation made by a criminal court on passing sentence cannot be an opinion for the purposes of that Article. The procedure will not be incompatible with the requirements of Article 9 (1) if all the material on which the Secretary of State may base his decision is placed before the court and the court considers it, together with any representations made by or on behalf of the convicted person, before deciding whether or not to make a recommendation.
The Commission for its part put forward two arguments of a more technical kind.
The first was that, since (as was to be deduced from the judgment of the Court in the Bouchereau case) a recommendation of a criminal court made under the Immigration Act 1971 was a “measure” within the meaning of that expression in Article 3 of the Directive, it could not be an “opinion” for the purposes of Article 9. I disagree. Such a recommendation clearly has the effect of conveying to the Secretary of State the opinion of the court that the person concerned ought to be deported. It was held in the Bouchereau case to be a “measure” for the purposes of Article 3 because it affected the right of free movement of that person in two ways: it was a necessary step in the process of arriving at any decision to make a deportation order under Section 3 (6) of the Act and it enabled the person concerned to be deprived of his liberty under paragraph 2 of Schedule 3 thereto (see paragraphs 21 to 24 of the judgment). A “necessary step in the process of arriving at any decision to make a deportation order” is a precise description of an opinion obtained under Article 9 (1). Thus “measure” in Article 3 and “opinion” in Article 9 are not mutually exclusive. Nor indeed is there any reason why they should be.
The Commission's other argument was based on the words “not until an opinion has been obtained” in Article 9 (1). Those words, said the Commission, showed that what the authors of the Directive envisaged was that the administrative authority, as soon as it was minded to take a decision ordering the expulsion of the holder of a residence permit, should inform an independent body of that fact and ask that body to give its opinion as to whether or not the decision would be justified. I agree that the phrase “not until an opinion has been obtained” in the English text of Article 9 (1) suggests that the initiative should come from the administrative authority rather than from the independent advisory body. If, however, the phrase were “only after an opinion has been given”, it would then be quite neutral, in the sense that it would equally cover a case where the initiative came from the independent body. It is the equivalent of the latter formula that one finds in the Dutch, French, German and Italian texts. The French text, for instance, has “qu'après avis donné”. The sense of the Danish text is midway between that of the English and that of the others. That illustrates, in my opinion, how mistaken it can be to seek to interpret a Community instrument on the basis of a semantic analysis of its text in only one language. Bearing in mind the manifest purpose of Article 9 (1) (which I have already stated) I see no reason why the opinion of the independent body should not precede consideration of the case by the administrative authority having the power of decision.
One last point on this question: in his opinion in the Pecastaing case Mr Advocate General Capotorti seems to have assumed that the independent body, the “competent authority”, referred to in Article 9 (1) must be an administrative one. In the circumstances of that case it was unnecessary for Mr Advocate General Capotorti to consider whether that body might not be a court. There is, in my opinion, plainly no reason why it should not be.
I would therefore answer the Divisional Court's second question by saying that a recommendation for deportation made by a criminal court of the host country on passing sentence can constitute an opinion for the purposes of Article 9 (1) of the Directive provided that all the material on which the administrative authority of that country may base its decision has been placed before that court and that the court has considered it, together with any representations made by or on behalf of the convicted person, before deciding whether or not to make the recommendation.
The Divisional Court's question 3 (a) is, Your Lordships remember: “Must a ‘recommendation’ be fully reasoned”? As was pointed out in argument before us, the real question is: “Must an ‘opinion’, in order to satisfy the requirements of Article 9 (1), be fully reasoned”?
For Mr Santillo and for the Commission it was submitted that that question should be answered in the affirmative. For the United Kingdom Government it was submitted that it should be answered in the negative.
On behalf of Mr Santillo it was asserted that a recommendation for deportation made by an English criminal court was virtually never reasoned. It is not of course for this Court to say whether that assertion is correct, but I did find it surprising, if only because in this very case the learned trial Judge gave his reasons for making the recommendation, albeit briefly and albeit in terms which, in the light of later judgments of this Court (in particular the judgment in the Bouchereau case), can be seen not to have been entirely appropriate. I will not take up Your Lordships' time by reading from the transcript of what the learned Judge said.
The United Kingdom Government rested its submission on two grounds. First, it pointed out that there was no express requirement in Article 9 (1) that an opinion should be fully reasoned or, indeed, reasoned at all. This contrasted with the provisions of Article 6 of the Directive which clearly required reasons to be given for a “decision”. An “opinion” under Article 9 (1) was not a “decision”. Secondly, said the United Kingdom Government, no requirement that an opinion should be reasoned was necessarily to be implied into Article 9 (1).
I agree of course that Article 6 applies only to decisions and does not apply to opinions. Nor do I think that the Court held otherwise in paragraphs 36 to 39 of its judgment in Case 36/75, the Rutili case [1975] 2 ECR 1219, to which we were referred on behalf of Mr Santillo and of the Commission. It does not, however, in my opinion follow that an opinion need not, in order to comply with Article 9 (1), be reasoned. Whether an opinion needs to be reasoned must depend on its purpose. It seems to me that an opinion that was a bare statement of the independent body's conclusion would be of scant assistance to the administrative authority in making up its mind and a scant safeguard to the person whose expulsion was under consideration. It must in that connection be borne in mind that, although under the English system a recommendation is always positive (in the sense that, if the court does not think that an offender should be deported, it simply refrains from making any recommendation in his case), Article 9 (1) is wide enough to encompass a system where a negative opinion given by the independent body may be followed by a positive decision (i.e. a decision to expel) taken by the administrative authority.
I would hesitate however to answer the Divisional Court's question simply in the affirmative, because to say that an opinion must be “fully reasoned” might convey the impression that a lengthy document was called for. The authors of the Directive clearly intended that the procedural traditions of the different Member States should be respected. In the case of an English criminal court, I think that an oral statement by the Judge or by the Presiding Magistrate of its reasons for recommending deportation (of which a transcript can be made available) must suffice. The statement need not be long, provided it is not incomplete.
I would accordingly answer the question by saying that, in order to satisfy the requirements of Article 9 (1), the “competent authority” therein referred to must state the reasons for its opinion.
I come lastly to paragraphs (b) and (c) of the Divisional Court's third question, relating to lapse of time between “opinion” and “decision”, and in particular lapse of time due to the person concerned serving a sentence of imprisonment. As to that Counsel for the United Kingdom Government very helpfully placed some figures before us which enabled us to get the magnitude of the problem into focus. In the past three years (1977, 1978 and 1979) the number of EEC nationals recommended for deportation by English criminal courts was 73, 60 and 71 respectively. Of those, about half received non-custodial sentences, so that the problem of lapse of time did not arise in their case, and something of the order of another third received sentences of under six months, so that the problem in their case was negligible. Recipients of sentences of six months or more have numbered about a dozen a year.
The crux of the problem is of course that, if there is a substantial lapse of time, new factors may arise, rendering the opinion stale. Much emphasis was laid on behalf of Mr Santillo and of the Commission on the formula used by this Court in the Bouchereau case “a present threat to the requirements of public policy”. In my opinion, however, if a court has made a finding that a person's conduct is a present threat to those requirements, that threat may reasonably be assumed to continue unless and until some new factor comes to light. Mere lapse of time therefore would not, I think, invalidate an opinion. But the reality is that, the more time passes, the less probable the absence of new factors becomes. If a new factor does arise (such as for instance a report of a Parole Review Committee) there is a dilemma. Either the administrative authority must ignore it, which could be detrimental to the person concerned or, alternatively, to the public in the host country, or that authority must take it into account although it has not been considered by the independent “competent authority”. Neither course would in my opinion accord with the scheme of Article 9 (1).
During the course of the hearing one of Your Lordships suggested that in England the dilemma might be solved by the Secretary of State sending the case back to the court of trial for reconsideration in the light of the new factor or factors. Counsel for the United Kingdom Government accepted that that might be practicable in some circumstances. I imagine that, generally speaking, it would be practicable only in cases where the lapse of time had not been too great.
In the result, I would answer the Divisional Court's questions 3 (b) and (c) by saying that, whilst lapse of time between the date of the opinion envisaged by Article 9 (1) and the making of a decision ordering the expulsion of the person concerned does not of itself invalidate the opinion; it will do so if it is such that a new factor arises which ought to be taken into account in making the decision and which the “competent authority” has had no opportunity of considering.