Murungaru v Secretary of State for the Home Department & Ors

Dr Murungaru was, although he no longer is, a Kenyan government minister. His multiple-entry visa for the United Kingdom was revoked without notice and without giving reasons in July 2005, about 3 months after it had been granted. Wanting to return to this country for continuing medical treatment, he brought judicial review proceedings asserting an entitlement to notice of the proposed action and to reasons for the decision (the procedural challenge) and a breach of his Convention right to a fair hearing of his claim for violation of the right of peaceful enjoyment of his possessions (the Convention challenge). A further ground concerning the prevention of entry in transit failed and was not revived.

The public interest immunity (PII) certificate issued by the Home Secretary in relation to the material (“the closed material”) which had satisfied him that it was contrary to the public interest to allow the claimant to re-enter the United Kingdom has at no stage been challenged. The formal issue now before us is how the closed material is to be handled; but before it is reached a series of other issues must be addressed.

Following the grant of permission in September 2005 by Collins J, on 4 October 2006 Keith J, in a full and carefully reasoned judgment [2006] EWHC 2416 (Admin), following a hearing on 9 May, decided that the refusal of entry interfered with the peaceful enjoyment of the claimant’s possessions, contrary to art.1 of the First Protocol (A1P1) to the European Convention on Human Rights, requiring justification in the public interest. He concluded that he could not determine either this issue or the procedural challenges without examining the closed material.

The latter part of the holding was contrary to the submission of leading counsel for the claimant: Rabinder Singh QC had argued that there was no need to examine the material in order to adjudicate on the asserted denials of due process. Nor had counsel for the Home Secretary invited this course: the submission of Jonathan Crow QC was that there had been too little time to give the claimant advance notice; though the “gist” which was subsequently provided to the claimant (“increasing concerns regarding your involvement in corrupt practice”) gives little reason to think that notice would have been of much use to him.

Keith J accordingly stood over the application for submissions on how the closed material was to be considered by the court. He reserved the case to himself, but for some reason it was restored on 30 November 2006 before Mitting J, who decided that the Attorney-General should be invited to appoint a special advocate to deal with the closed material.

Although the stated object of the Home Secretary’s appeal is to overset the decision of Mitting J to invite the Attorney-General to appoint a special advocate, the means by which Mr Crow seeks to accomplish this are to attack the reasoning of Keith J upon which Mitting J’s invitation was founded. In short, Mr Crow argues that there is no viable art. 6 claim, and that the procedural fairness issue does not require the court to look at the closed material.

As it presently stands, this is an appeal by the Home Secretary brought by permission which I gave on sight of the papers in February 2008 against the decision of Mitting J. Mitting J, however, took the judgment of Keith J as given, and there is now an application for permission to appeal the judgment of Keith J out of time. The Home Secretary submits that this is merely precautionary, and that because Mitting J adopted and built on Keith J’s decision and reasoning, the permissible and sensible course is to treat the two as one or, if need be, to grant permission out of time to appeal against the judgment of Keith J.

Although it is quite true that Mitting J builds on Keith J, their judgments represent two distinct stages of the proceedings and have resulted in two distinct orders. It is Mr Rabinder Singh’s contention that unless we now grant permission to appeal out of time against Keith J’s decision – which he submits we ought not to do – his findings stand, and with them the invitation to the Attorney-General, to appoint a special advocate.

It was Keith J who on 4 October 2006 decided that both the question of procedural fairness and the question of access to a court to vindicate the A1P1 right, which he held to have been interfered with, needed to be tried out with sight of the closed material. What he stood over was the machinery by which this was to be achieved. If the Home Secretary had awaited Mitting J’s decision and then made a prompt application for permission to appeal Keith J, it may very well be that an enlargement of time would have been given. But it was not until 7 December 2007, over 15 months later, that the application was made.

If permission is indeed separately required to challenge Keith J’s decision, no explanation or excuse is tendered by the Home Secretary for not having applied much sooner. All that Mr Crow is able to say – and he is right about this – is that there is no appreciable prejudice to the claimant in the particular circumstances of this case, since both sides are here and ready to argue the issues. But I am satisfied that the real answer is that, although split between two judges, this is a single decision. Keith J’s decision was both in form and in substance to do no more than adjourn the hearing: “There will have to be another hearing at which I shall hear argument on how the material on which the Secretary of State based his decision and the contents of the confidential schedules to the PII certificate should be considered by me.” If, as he intended, the case had come back before him, nobody would have taken the point that time for challenging the substance of his eventual decision ran from the date of the adjournment. The fortuity of its having been restored before a different judge ought not to alter this.

I would hold, accordingly, that my grant of permission to appeal Mitting J’s decision embraces the Home Secretary’s challenges to the reasoning of Keith J which Mitting J adopted and built upon. The application for permission to appeal the order of Keith J is otiose.

I have outlined in §6 above the grounds advanced by the Home Secretary. But two further issues have been raised by the court, and we stood over the completion of the hearing from 28 to 30 July 2008 in order to give the parties time to deal with them. They are, first, whether a contractual arrangement such as that relied on by the claimant is capable of ranking as a “possession” within A1P1, and secondly what discretion the Attorney-General has in responding to the court’s request to appoint a special advocate. I will take the latter first.

It is odd that the Home Office should have any litigable interest in whether a special advocate is to be appointed to assist the judge who is to consider the closed material on which the Home Office relies. Mr Crow says that the Home Office does not want to see public money wasted; but the real reason may lie in the time problem addressed above: all that Mitting J ostensibly decided was that a special advocate was needed, and it is only by targeting this decision that the foundations laid by Keith J can be attacked. Mitting J’s own ruling, however, is also the subject of this appeal.

The reason why Mr Crow could not accept instructions to speak for the Attorney-General as well as for the Home Office is that it is in her capacity as custodian of the public interest, not her capacity as a member of the government, that the Attorney-General performs this role. We are indebted to the Attorney-General for having at short notice instructed Andrew Nicol QC, himself a member of the Attorney’s panel of special advocates, to assist us on the latter issue. Special advocates in England and Wales receive support from a dedicated unit, the Special Advocates Support Office (SASO), within the Treasury Solicitor’s department.

The special advocate procedure has become established in this country in the wake of the decision of the European Court of Human Rights in Chahal v UK (1996) 23 EHRR 413. The Grand Chamber in Chahal held (§131-2) that in order to satisfy the art. 5(4) due process guarantee in national security cases “there are techniques which can be employed which both accommodate legitimate security concerns … and yet accord the individual a substantial measure of procedural justice”. The United Kingdom’s then rudimentary procedures were held to fall short of this standard. The Court noted that Canada had already developed such a system, and it was in response to this that the Special Immigration Appeals Commission Act 1997 set up SIAC for immigration appeals involving questions of national security. More recently, in Charkaoui v Minister of Citizenship and Immigration  [2007] 1 SCR 350, the Supreme Court of Canada, after looking at the SIAC system, has held that Canada’s statutory procedures for reviewing certificates of inadmissibility to Canada and consequent detentions were inadequate: “the government can do more to protect the individual while keeping critical information confidential”.

The 1997 Act permitted closed sittings – a major inroad into the principle of open justice enshrined in Scott v Scott [1913] AC 417. It also, by s.6, authorised the Law Officers to appoint “a person to represent the interests of an appellant in any proceedings before [SIAC] from which the appellant and any legal representative of his are excluded”. Rules require notice to be given to the Attorney of any impending appeal to SIAC in which closed material is to be used. On receipt of such notice the Attorney may – and in practice, so far, always does – appoint a special advocate.

The ways in which a special advocate will seek to represent the interests of an appellant are, first, to test by cross-examination, evidence and argument the strength of the case for non-disclosure. Secondly, to the extent that non-disclosure is maintained, the special advocate is to do what he or she can to protect the interests of the appellant, a task which has to be carried out without taking instructions on any aspect of the closed material. In the words of the (undated) memorandum agreed between the Lord Chief Justice and the Attorney-General, the special advocate represents no one. A special advocate system is thus not a substitute for the common law principle that everyone facing an accusation made by the state is entitled to a fair chance to know the evidence in support of it and to test and answer it in a public hearing.  But it is the best procedure so far devised to mitigate the effect of trial without disclosure if such trial is unavoidable.

The model has now been adopted by statute for a number of other security-sensitive processes. It has also been adopted without statutory authority by the majority decision of House of Lords in Roberts v Parole Board [2005] UKHL 45, a case not involving national security, as well as in the more marginal instances mentioned by Lord Bingham, ibid. §31. The model invites but does not require the Attorney to comply with the tribunal’s request. This makes it of even greater importance that requests for the appointment of a special advocate should not be made where the Attorney could legitimately take an opposite view of the need for one. The constitutional and forensic misfortune which a refusal on her part would represent needs no elaboration.

Among the factors which Mr Nicol tells us the Attorney will consider, and which we record without comment, are cost; the administrative burden on the Special Advocates Support Office; the increase in this burden which may result from the introduction of a special advocate into a fresh jurisdiction; the risk of unnecessary proliferation; the possibility of “contamination” of individual special advocates in overlapping cases; the limited number of special advocates on the panel – about 50 - and the much smaller number with significant experience in the role; the desirability of selecting each special advocate in or after consultation with the “open” advocates; and the lengthy and involved process of selecting new members of the panel.

Although they do not arise directly in the present case, there are some larger principles which need to be borne in mind by courts. The help of a special advocate is to be sought if, but only if, the interests of justice require it: it is a last resort if all other means of doing justice fail (see Lord Bingham in R v H [2004] 2 AC 134 §22). Even disclosure of evidence is not a universal right (see Lady Hale in Home Secretary v MB [2008} AC 440 §58ff). The availability of a special advocate can never be a reason for reducing the procedural protections which the law otherwise guarantees (see Lord Woolf in Roberts v Parole Board §59). These, whether under art. 6 or at common law, may vary with the gravity of the potential consequences of the proceedings (see Lord Bingham in Home Secretary v MB §24).

The foregoing summary reflects what has recently been fully explained by the Divisional Court (Dyson LJ, Pitchford and Ouseley JJ) in Malik v Manchester Crown Court [2008] EWHC 1362 (Admin), in terms which I would respectfully adopt and endorse, including the following:

101.

As Mr Nicol points out, even in a procedure which is entirely ex parte, the court may consider that the absent party is afforded a sufficient measure of procedural protection by the obligation on the party who is present to lay before the court any material that undermines or qualifies his case or which would assist the absent party. Further, the court itself can be expected to perform a role of testing and probing the case which is presented. All these features may satisfy the court that the procedure is fair and complies with article 6, even without a special advocate. We would wish to place particular emphasis on the duty of the court to test and probe the material that is laid before it in the absence of the person who is affected. Judges who conduct criminal trials routinely perform this role when they hold public interest immunity hearings.

102.

A further relevant question is the extent to which a special advocate is likely to be able to further the absent party's case before the court. It may not always be possible for the court to form a view as to how far, realistically, a special advocate is likely to be able to advance the party's case. But sometimes, it is possible. If the court concludes that the special advocate is unlikely to be able to make a significant contribution to the party's case, that is a relevant factor for the court to weigh in the balance. It should always, however, be borne in mind that it is exceptional to appoint a special advocate outside an applicable statutory scheme.

The question in Malik was whether the Crown Court judge had erred in not asking for a special advocate. The High Court held that he had not. In the present case Mitting J’s principal object in invoking the special advocate procedure was to have the fairest possible representation of the claimant’s interests when the court came to examine the public interest justification advanced by the state under A1P1. He considered that the case was weaker in relation to the procedural challenges, although he did not exclude these. But, having looked at the closed material himself, he did not dissent from Keith J’s view that the urgency of the exclusion of the claimant from the UK could only be adjudicated on in the light of the closed material. It may well be, however, that the relevance of the closed material to the due process issue goes wider. Were it not for the PII certificate, the Home Secretary would have had to disclose the reasons for revoking the claimant’s visa and the court would have been called upon to say whether they were capable of justifying the decision. Because of the certificate the court will have to evaluate the material for itself. Mitting J, a judge with very considerable experience in this problematical field, took the view that a special advocate would be of value to the court in this exercise – not because a special advocate can represent the claimant (they cannot and do not purport to) but because he or she can probe the material independently and relieve the judge of what might otherwise resemble a partisan intervention.

The last of these considerations may, however, be negotiable. In Malik the divisional court said:

“It is true that a special advocate could test and probe the assessments of the officer, but so too could the judge”

While I recognise the factuality of this proposition, I would temper it with a need to gauge the risk that probing the material may draw the judge from the bench into the arena.

One notes, too, that the decision of Mitting J in the present case was before the divisional court in Malik. Noting that Mitting J had drawn attention to the fact that Lord Bingham’s comments in R v H had been made in the context of criminal procedure, the court commented:

“That is true, but we doubt whether the court should be more willing to request the appointment of a special advocate in other contexts.”

I have found myself at several points of the argument wondering why the Convention is being relied on at all. What the claimant wants is a fair chance to contest the revocation of his visa by challenging the reasons for it. He would be given that chance by the common law if it were not for the PII certificate. Faced with the certificate, he has to rely on a judge, with or without a special advocate, to decide whether the reasons hold water. None of this endeavour is jeopardised by the present appeal, and I would have thought it was enough to bring the claim home if it is capable of being brought home. The invocation of a freestanding Convention right to get round the prohibition on using art. 6 to challenge immigration controls (Maaouia v France (2000) 33 EHRR 42) simply brings the claimant back to the same point: an entitlement to as fair a hearing as PII permits.

With his customary realism Mr Rabinder Singh, confronted with this by the court, accepted that he could do as well without art. 6 as with it. The question is what due process, whatever its source, entitles the claimant to in these proceedings.

Keith J held at §37:

37.

It follows that the decision to exclude Dr Murungaru from the United Kingdom amounted to a sufficient interference with his contractual rights as to engage Art. 1 of the First Protocol. Indeed, it amounted to a deprivation of those rights because even though it would have been possible for Dr Murungaru's medical team to treat him outside the United Kingdom, the contract must be regarded as having contemplated that they would be treating him in the United Kingdom.

One of the submissions for the Home Secretary was that the evidence before the court was insufficient to support any claim under A1P1. Put as it was on this narrow basis, Keith J rejected it, at least to the extent of accepting that the claimant was part-way through a course of “surgery and post-operative treatment and review”. Whatever my own doubts, I would not  be prepared to say that this finding was not open to him simply because the evidence came at second hand from the claimant’s solicitor or because insufficient detail was given to establish the terms of the contract. I approach this part of the appeal accordingly on the footing that Keith J has found the claimant to be party to a continuing contract for medical services to be provided at the claimant’s election.

What is nevertheless more to the point is whether a contract for personal services such as this can possibly rank as a possession for the purposes of A1P1. Surprisingly, this was not debated at either of the hearings below. Counsel then instructed for the Home Office wrote:

“The defendants accept that contractual rights, which are a chose in action, are capable of being property for article 1P purposes.”

Assuming that the first comma is meant to be there, the first proposition is simply wrong. By no means all contractual rights are choses in action. If the first comma (and with it the second) is there by accident, so that the proposition is simply that those contractual rights which amount to choses in action are capable of being possessions (not property) under A1P1, I would not, at least for present purposes, demur; but it becomes immediately necessary to decide whether the contractual right in play here are capable of falling into that class.

For reasons which Lewison J explains more fully, I agree that it cannot be. Mr Rabinder Singh, put on notice of the issue by the court because we were not willing to approach the appeal on a legally false basis, has submitted – rightly – that ‘possessions’ in A1P1 is an autonomous concept, and that it is not confined to corporeal property. But while he has been able to instance ECHR cases on entitlement to rental income (Mellacher v Austria (1989) 12 EHRR 391), the right to practise a profession (Van Marle v Netherlands (1986) 8 EHRR 483) and a licence to sell drink (Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR 309), none of these come close to the contract on which the claimant relies because all can be characterised in one way or another as assets. The fact that possessions can include contracts does not mean that all contracts are possessions.

It is not irrelevant, moreover, to ask whether the A1P1 right is really intended to be invoked every time the state changes the regulations which govern someone’s ongoing arrangements with their solicitor, architect, builder or milkman; or whether, as Lewison J asked in argument, an intending immigrant can secure a justiciable Convention right by phoning ahead to book a taxi from the airport.

Upon Keith J’s incorrect but unchallenged premise Mitting J concluded:

14.

In determining the issue of proportionality, at the very least it seems to me a judge would have to decide whether or not the Secretary of State's belief that he had been involved in those activities was a reasonable belief. In theory, at least, the judge might have to decide whether the belief was mistaken or not. There are other issues in relation to the material that might be the subject of effective submission by an advocate on the part of the claimant. I say no more about the detail of it because the material remains secret from the claimant. But it is not for a judge alone and unaided to determine whether or not such submissions can properly be made.

15.

Once proportionality is engaged, and once that issue depends to any significant extent upon material which the claimant cannot see, then in my judgment fairness requires where his Convention rights are engaged that his interests are represented by an advocate who can make submissions to the court. Accordingly, in my view, the application for the appointment of special counsel is well-founded. I do so order. I observe that if this claim is unsuccessful, the court has, as Mr Rabinder Singh conceded in principle, a discretion to order the claimant to bear the costs of the special advocate. He concedes also, correctly in my view, that in principle security can be required of him against that cost. Those are matters of detail which should not be explored now.

If the premise were right I would find no fault with this conclusion; and none is suggested. But Mr Crow contends that there is in any event an intervening barrier: neither A1P1 nor art. 6 may be used to circumvent the non-justiciability under the Convention of immigration controls. He cites Ilic v Croatia (app.no. 42389/98), in which it was held that there was no breach of either article in denying residency to a citizen of the former Yugoslavia, now domiciled in Germany, who had a house in what was now Croatia: indeed the claim was held to be manifestly unfounded. Although Ilic almost certainly went off on the proposition that the petitioner retained substantial rights of access to her Croatian property, I have no difficulty with the principle that a challenge to immigration controls cannot be disguised as an assertion of property rights.

Applying this principle, and assuming (contrary to my present view) that the withdrawal of the claimant’s visa is an interference with the enjoyment of his possessions, I agree that the challenge to it is, on the facts accepted by Keith J, in reality a challenge to the withdrawal of the visa. I put it this way because I do not accept for a moment that the Strasbourg doctrine of non-intervention in member states’ immigration controls allows a state to dress up an interference with a Convention right as an exercise in immigration control: see the Belmarsh case, A v Home Secretary [2004] UKHL 56. But the present case is on any rational view at the opposite end of the spectrum: regardless of why he wants to come here – even if it is merely in transit – the Home Secretary has formed the view that it is contrary to the public interest to let the claimant enter the United Kingdom. If, fortuitously, this has interrupted a course of medical treatment, then it is open to the Home Secretary to waive the prohibition. But there is no hint that this was the purpose of the ban, and it does not enable the claimant to treat the withdrawal of his visa as anything but an immigration decision.

While it is true that the case for a special advocate was argued before Keith J solely in relation to the Convention issues, and while it is also true that Mitting J plainly had his doubts about whether the need extended to the question of procedural fairness, Keith J had decided that he needed help with both. He said (§26):

26.

For these reasons, I cannot go along with the primary contention advanced on Dr Murungaru's behalf that this claim for judicial review can be decided in Dr Murungaru's favour without the court inspecting the material contained in the schedules to the PII certificate. By the same token, I do not believe that it can be decided in the Secretary of State's favour either without an inspection of that material.

My initial doubt about this has been eroded in the course of argument. Put simply, what has to be decided in this regard is whether the claimant is entitled to know what has so far been kept from him (a question which will turn on the content of the closed material), and, if he is not so entitled, what the court itself should make of the material in relation to the withdrawal of the visa (again remembering that it is not a court of appeal from the Home Secretary). I think Keith J was justified in holding as he did at §38:

38.

If Dr Murungaru's exclusion from the United Kingdom was to be provided for by law, it was necessary for the Secretary of State to have acted fairly in deciding to exclude him. Whether he acted fairly depends on what the requirements for fairness were in this particular case. Accordingly, whether Dr Murungaru's exclusion was provided for by law depends on the view which the court takes once it has seen the material on which the Secretary of State's decision was based.

But it did not necessarily follow that a special advocate was required.

With the consent of both parties the court has read the material covered by the PII certificate. We do not propose to give a separate closed judgment upon it. We simply record that it is uncomplicated and undramatic.

It follows from the foregoing that, although he has no viable Convention claim, Dr Murungaru still has a viable claim at common law for judicial review of the withdrawal of his multiple-entry visa. In my view, however, applying the principles which ought to govern requests for a special advocate in proceedings of this kind, the material covered by the PII certificate does not warrant the appointment of a special advocate. There is no reason to think that the judge, in what is now purely a common law due process claim, cannot do what a special advocate might otherwise do by way of critical examination of the closed material in the claimant’s absence, assuming that the material turns out to have any useful bearing at all.

This in a sense brings the case full circle. Both sides had initially taken the view that the procedural challenge, which as it has turned out is the only viable one, did not require the court to consider the closed material, and Mitting J clearly doubted whether it did. It was Keith J who thought otherwise. The A1P1 issue, so far as it was an issue of principle, went by default until this court raised it. The request for a special advocate, although we have now dealt with it, is one in which the Home Secretary really has no litigable interest, for it concerns only the degree of procedural protection the court can give to a claimant who has been denied access to part of the Home Secretary’s evidence.

I mention these considerations so that the parties may reflect on them before deciding what application, if any, should be made for costs. For the rest, I would allow the appeal to the extent of quashing the request to Her Majesty’s Attorney-General to appoint a special advocate for the purposes of the pending judicial review proceedings, and would remit these for hearing in accordance with the judgment of this court.

I agree with both judgments.

In the court below the Secretary of State was treated as having conceded (1) that Dr Murungaru’s contractual rights amounted to a chose in action and (2) that any chose in action was property or a possession for the purposes of Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms (“A1 P1”). In my judgment the first of these concessions was at best dubious and the second was wrong.

The classic definition of a chose in action is that of Channel J in Torkington v Magee [1922] 2 KB 427: it is a personal right of property which can only be claimed or enforced by action, and not by taking physical possession. To use this definition to decide whether a contractual right counts as a possession for the purposes of A1 P1 is, to some extent circular. If the rights that Dr Murungaru enjoys under his contract are rights of property, they will be choses in action. Looked at from the other end of the telescope, if they are choses of action, they will be rights of property. It is a necessary condition of the existence of a chose in action that there is a remedy for its enforcement; and it is usually the case that a chose in action is something that is capable of being turned into money: Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 898, 915 (usually cited for other reasons).

Some of the characteristics of the contract in the present case are not in doubt. First, the benefit of the contract is incapable of assignment. Dr Murungaru could not confer the right to medical treatment on anyone else. Second, as a contract for personal services it cannot be vicariously performed. No other doctor could perform the treatment. Third, if, for example, Dr Murungaru were to become bankrupt under English law, the contract would not vest in his trustee. If he died, his personal representatives would not be able to take advantage of the contract. Fourth, it is incapable of being enforced by injunction or specific performance. Fifth, there is no suggestion that Dr Murungaru has paid for any medical treatment in advance. If, having received medical treatment, Dr Murungaru refused to pay for it, the doctors would be entitled to recover the agreed payment by action. The debt would be a chose in action which the doctors would be entitled to assign to someone else. Likewise, if the doctors refused to treat Dr Murungaru, he would be entitled, at least in theory, to recover damages for breach of contract, and his right to damages would itself be a chose in action capable of being assigned to someone else. But although breach of the contract may give rise to claims capable of being choses in action, I doubt whether the underlying contract itself is a chose in action. To take an analogy: a claim for damages for personal injury (say, a broken leg) is undoubtedly a chose in action. But one would hardly say that the fracture itself is property.

However, this probably does not matter. It is common ground that the concept of “possessions” or “property” for the purposes of A1 P1 is independent of classifications in domestic law. It is an autonomous concept of the Convention itself. In Gasus Dosier v Netherlands (1995) 20 EHRR 403 the European Court of Human Rights said at para 53:

“The Court recalls that the notion “possessions” (in French: biens) in Article 1 of Protocol No. 1 has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as “property rights” and thus as “possessions” for the purposes of this provision.”

The touchstone here is whether the rights and interests can be regarded as constituting “assets”.

The Strasbourg jurisprudence establishes that the mere fact that rights are contractual does not disqualify them from counting as property or possessions. Thus in Association of General Practitioners v Denmark (1989) 62 DR 226 the contractual entitlement of Danish GPs under a collective agreement to indexation of their remuneration was accepted by the Commission as amounting to a possession. This was a contractual right in the nature of a debt. But the converse: viz. that all contractual rights are property or possessions, does not follow. Mr Rabinder Singh QC accepted that the logic of his argument entailed that conclusion.

As Mr Rabinder Singh QC pointed out, a claim may count as a possession even though no court has yet adjudicated on its validity. But a claim justiciable in domestic law can amount to a possession for the purposes of A1 P1 only if it is sufficiently established to be enforceable. By contrast, a claim may amount to an assignable chose in action in domestic law, even if it is not established. Indeed it may be a speculative claim, but it would still be classified, domestically, as a chose in action. In my judgment this demonstrates that there is no necessary coincidence between the autonomous Convention concept of property or possessions and the domestic concept of property.

Mr Rabinder Singh QC relied on the decision of the European Court of Human Rights (“ECHR”) in Tre Traktörer Aktiebolag v Sweden (1989) EHRR 309 for the proposition that a non-transferable licence could amount to a possession. That analysis is supported by Harris, O’Boyle and Warbrick on Human Rights p. 518. To see whether this analysis is correct it is necessary to examine that case more closely. Tre Traktörer Aktiebolag (“TTA”) managed a restaurant called Le Cardinal. It had the benefit of a liquor licence. The licence was not transferable. The authorities withdrew the liquor licence after complaints about the management (including the financial management) of the restaurant. One of the questions was whether there had been a breach of A1 P1 by withdrawing the licence. The ECHR said (para 53):

“The Government argued that a licence to serve alcoholic beverages could not be considered to be a "possession" within the meaning of Article 1 of the Protocol (P1-1). This provision was therefore, in their opinion, not applicable to the case.

Like the Commission, however, the Court takes the view that the economic interests connected with the running of Le Cardinal were "possessions" for the purposes of Article 1 of the Protocol (P1-1). Indeed, the Court has already found that the maintenance of the licence was one of the principal conditions for the carrying on of the applicant company’s business, and that its withdrawal had adverse effects on the goodwill and value of the restaurant (see paragraph 43 above).

Such withdrawal thus constitutes, in the circumstances of the case, an interference with TTA’s right to the "peaceful enjoyment of [its] possessions".” (Emphasis added)

However, in my judgment, the possession which the ECHR recognised was not the licence itself; but the economic interests connected with the running of the restaurant, including its goodwill. These economic interests also included a lease and property assets (para 55). That the licence itself was not the relevant possession is borne out by the fact that the ECHR held that the withdrawal of the licence was not a deprivation of property but a measure of control of the use of property (para 55). If the licence itself had been the relevant possession, it is impossible to see how its withdrawal did not amount to a deprivation. Likewise in Karni v Sweden (1988) 55 DR 157 it was the doctor’s “vested interests in the … medical practice” rather than his exclusion from the social security system that were regarded as his “possessions”.

In R (on the application of Malik) v. Waltham Forest NHS Primary Care Trust [2007] 1 WLR 2092 this court held that A1 P1 did not apply to a right to future earnings unless those earnings could be capitalised and a present financial value ascribed to them. Where there was no possibility of realising that financial value, that was a powerful factor against the conclusion that the right in question could amount to a possession.

Mr Rabinder Singh QC also relied on the statement of Auld LJ in Malik at para 36:

“However, before looking at the jurisprudence, it may be helpful to step back for a moment to remember that possessions may be tangible or intangible and that the reach of human rights goes beyond economic protection. In the case of tangible objects, such as land or goods, and also in the case of certain intangible assets, an individual's right to enjoy them as possessions may not be, or not just be, of an economic nature. Something may have value to a person though it may have no value in the market. One cannot comprehensively define possession for this purpose by reference to a person's ability or wish to sell it.”

Auld LJ elaborated on this in the next two paragraphs of his judgment. In para 37 he referred to tangible property, saying that no elaborate argument based on an analysis of its value is needed. What is more germane to this case is how he dealt with intangible property in para 38. He said:

“Where, however, the possessory right claimed is, as here, to some intangible entitlement conferred by a licence or other form of permission to the grantee to continue to follow an activity to his advantage, it seems to me that some additional factor is necessary to render it a “possessory” entitlement as distinct from the broader concept of a legal right to do so. In many or most cases, such identification is likely to depend on the existence of some present economic value of the entitlement to the individual claiming it conferred by a licence or other form of permission.” (Auld LJ’s emphasis)

In para 39 he posed the question:

“whether economic value is a distinguishing feature of a possessory right and whether it can only be identified in the sense of marketability.”

Subject to one point, he approved the reasoning of Mr Kenneth Parker QC in R (Nicholds) v Security Industry Authority [2007] 1 WLR 2067 in which the deputy judge had held that there was a distinction to be drawn between rights which had a monetary value and could be marketed for consideration and rights which could not. Only the former were “assets” for the purposes of A1 P1. It is true that in para 44 Auld LJ said that “transmissibility cannot always be the touchstone of a possessory entitlement under article 1”. But although not necessarily the touchstone, it is a highly relevant factor. Thus Auld LJ distinguished a previous case concerned with a licence to fish on the ground that that licence was transferable with the fishing boat, whereas Dr Malik’s ability to practice was not. If transmissibility had not been a relevant factor, there would have been no ground for the distinction. Rix LJ referred to the statutory prohibition on selling the goodwill of a medical practice and said that that prohibition:

“effectively means that an NHS doctor's goodwill has no economic value. As such, I do not see how it can be regarded as an asset or, therefore, a possession for the purposes of article 1 of the First Protocol. It is neither a physical thing (land or chattels) nor a right or other chose in action, nor an asset of any kind. In Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546 Lord Hobhouse of Woodborough said, at para 91, that “possessions” in article 1 of the First Protocol applied “to all forms of property and is the equivalent of ‘assets'.” See also Van Marle 8 EHRR 483, para 41: “an asset and, hence, a possession.”

Moses LJ agreed with both judgments.

In the present case, Dr Murungaru’s contractual rights have none of the indicia of possessions. They are intangible; they are not assignable; they are not even transmissible; they are not realisable and they have no present economic value. They cannot realistically be described as an “asset”. That is the touchstone of whether something counts as a possession for the purposes of A1 P1. In my judgment Dr Murungaru’s contractual rights do not.