High Court of Justice in Northern Ireland Queen's Bench Division Decisions

(a) Donald Bassey, a national of Nigeria, born on 31 August 1996, now 11 years of age. His Order 53 statement is dated 16 October 2007. The affidavit lodged in relation to his application is the affidavit of his mother, Eunice Bassey, which she swore on 25 September 2007 and which was lodged in relation to her husband's application.

(b) Karen Bassey, a national of Nigeria, born on 23 April 2000, now 8 years of age. Her Order 53 statement is dated 16 October 2007. The affidavit lodged in relation to her application is the affidavit of her mother, Eunice Bassey, which she swore on 25 September 2007 and which was lodged in relation to her husband's application.

(c) Loretta Bassey, a national of Ireland, who was born on 22 October 2004 in Belfast. She is now 3 years of age. Her Order 53 statement is dated 16 October 2007. The affidavit lodged in relation to her application is the affidavit of her mother, Eunice Bassey, which she swore on 25 September 2007 and which was lodged in relation to her husband's application.

(a) That they had an Irish born daughter, namely, Loretta Bassey, born on 22 October 2004 in Belfast, Northern Ireland.

(b) That they wanted their children to attend school in Northern Ireland.

(c) That Eunice Bassey had given birth to her daughter Loretta in Belfast in 2004 and that she had maintained an address in Belfast since her daughter's birth and that she had opened a bank account in 2004.

(d) That they intended to bring their children to the United Kingdom to obtain an education.

[7 ] The circumstances giving rise to the allegations that all five members of the Bassey family were illegal immigrants not only depends on the contents of the visa application forms but also on events which occurred at Belfast docks on 24 September 2007 when all five members of the family were stopped by an Immigration Officer. The affidavit of Eunice Bassey sworn on 25 September 2007 which purports to verify the facts in relation to the applications by the other members of her family contains not only direct evidence for instance as to the contents of the visa application forms but also hearsay evidence. An instance of the hearsay evidence was as to the intentions of Emen Bassey.

"An application for leave must be made ex parte by lodging in the Central Office-

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(b) an affidavit or affidavits, as the case may require, verifying the facts relied on."

"The application shall be grounded on the original statement and affidavit or affidavits lodged in support of the application for leave."

"The Court may on the hearing of the motion direct or allow the applicant to amend his statement, whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used."

"An affidavit may contain statements of information or belief with the sources and grounds thereof."

"In civil proceedings evidence shall not be excluded on the ground that it is hearsay."

"In this Order "civil proceedings" means civil proceedings, before any court or other tribunal, in relation to which the strict rules of evidence apply."

5.  - (1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

    (2) Regard shall be had, in particular, to whether the party by whom the hearsay evidence is adduced gave notice to the other party or parties to the proceedings of his intention to adduce the hearsay evidence and, if so, to the sufficiency of the notice given.

     (3) Regard may also be had, in particular, to the following –

(a) whether it would have been reasonable and practicable for the party by whom the evidence is adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

(a) There was no express requirement in Order 53, rule 3(2)(b) or in Order 53, rule 5(2) of the Rules of the Supreme Court (Northern Ireland) 1980 that the affidavit be sworn by the applicant. That this was in contrast to the provisions of Order 54, rule 1(3) and (4) which governs applications for Writ of Habeas Corpus. Those rules provide as follows:-

"(3) The application must, subject to paragraph (4), be supported by an affidavit of the person restrained showing that it is made at his instance and setting out the nature of the restraint.

(4) Where the person restrained is unable for any reason to make the affidavit required by paragraph (3), the affidavit may be made by some other person on his behalf and that affidavit must state for what reason the person detained is unable to make the affidavit himself."

(b) The decision in Re Copeland [1990] NI 301 was a decision in relation to an application for Habeas Corpus and accordingly there was in that case a clear breach of Order 54, rule 1(3) which expressly requires (subject to paragraph (4)) the application to be supported by an affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.

(c) That in any event there must be circumstances in which an affidavit cannot be sworn by the applicant for instance if physically or mentally unable to do so or if the applicant was of an age where he could not be expected to do so. Accordingly that if there is a requirement that the verifying affidavit be sworn by the applicant then it would be a matter of discretion as to what action should be taken if there was a failure to comply with that requirement.

(d) That an application for judicial review fell within the definition of civil proceedings in the Criminal Evidence (Northern Ireland) Order 1997. Accordingly under that order and provided there was compliance with the provisions of Order 41, rule 5, the facts relied upon by the applicant could be verified by an affidavit containing hearsay evidence.

(e) That the decision in Wanderval Oliveira Da Silveira could be distinguished because in that case the applicant had acted in such a way as to prevent his solicitor fulfilling her undertaking to the court.

"In this Act, except in so far as the context otherwise requires or it is otherwise expressly provided, the following expressions have the meanings hereby respectively assigned to them, that is to say:—

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"Civil proceedings" includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King's Bench Division;"

Judicial review proceedings are on the crown side. Accordingly she submitted that these proceedings are not civil proceedings. However it is clear that the definition of civil proceedings in the Crown Proceedings Act 1947 is for the purposes of that act. The definition that is significant from the point of view of hearsay evidence is contained in the Civil Evidence Order (Northern Ireland) 1980 and Ms Connolly did not seek to suggest that judicial review proceedings did not fall within that definition.

"And finally, we wish to deprecate a procedure which is becoming too common in applications by persons in custody, namely, the swearing of the grounding affidavit by the applicant's solicitor from information and belief instead of by the applicant. This should be done only where the solicitor is unable to gain access to his client, and the Court will rely on the prison authorities to facilitate access by solicitors to their clients in these circumstances."

That condemnation has informed practice in judicial review applications which practice continues. The reasons for the practice are demonstrated by the facts of in Re Copeland and also by the adverse inferences that can and will no doubt be taken in appropriate cases under Article 5 of the Civil Evidence (Northern Ireland) Order 1997.