PARTLY DISSENTING OPINION OF JUDGE WALSH JOINED BY JUDGE RUSSO

1. In my opinion the applicants ’ claim that there has been a breach of Article 13 (art. 13) of the Convention is well founded. The comparison of the present case with the Soering case is not well founded. In the latter case there was no disputed question of fact whereas in the present case the facts were in dispute. Judicial review does not exist to resolve such disputed issues. The purpose and extent of judicial review in the English courts is exclusively a matter for English law. I believe that the principles governing the exercise of that remedy are clearly set out in the following decisions of the English courts.

The Chief Constable of North Wales Police v. Evans (1982) 1 WLR p. 1155, per Lord Brightman at pp. 1173-1174:

"Judicial review is concerned, not with the decision, but with the decision making procedure. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power .... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made."

In the same case the Lord Chancellor, Lord Hailsham , said at p. 1160:

"But it is important to remember in every case that the purpose of the remedies (of judicial review) is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is not part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question."

One of the grounds on which the decision making process may be subject to judicial review is where it exercises a power it has in so unreasonable a manner that the exercise becomes open to review on what in English law are known as the " Wednesbury principles" and frequently have been referred to with approval in the House of Lords and the Court of Appeal. The case from which they derive their name was Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948 1 KB 223, Per Lord Greene M.R. at pp. 230, 233):

"It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could have ever come to it, then the courts can interfere."

In the Council of Civil Service Unions v. Minister for the Civil Service (1984 3 A.E.R. 935) Lord Diplock said of the Wednesbury test:

"It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." (at p. 921)

In short the decision must be one which is indefensible for being in the teeth of plain reason and common sense and is plainly and unambiguously so. In the Wednesbury case it was stated that to prove a case of that kind "would require something overwhelming".

In the present case the claim of the U.K. Government that judicial review "controls" the decision of the immigration authorities must be qualified by the fact that in English law judicial review controls only the procedure and not the merits of the impugned decision.

This case was ultimately decided by the Adjudicator in favour of the applicant by an examination of the merits. Judicial review could not have entered into any examination of the merits for the purposes of deciding on the merits. An examination of the merits could only have been undertaken for the purposes of dealing with any claim that the immigration decision fitted within the criteria of unreasonableness or outrage referred to in the English cases above cited. That "would require something overwhelming" and nobody has claimed that any such overwhelming evidence of unreasonableness or outrageousness exists in the present case.

2. The national authority envisaged by Article 13 (art. 13) of the Convention is one before which an effective remedy can be obtained for a violation of the rights and freedoms set forth in the Convention. Judicial review cannot grant any relief simply on the grounds that the facts of any given case disclose a breach of the Convention. It may well be that in some cases in which there has in fact been such a breach judicial review may be available to set aside the decision impugned on the grounds that a fatal procedural defect in English law has been proved but this latter ground would be the sole ground. In such a case the existence of a breach of the Convention would be simply a coincidence. The English courts will not review a decision by reason only of the fact that the deciding authority failed to consider whether or not there was a breach of the Convention (see the Soering judgment of 7 July 1989 , Series A no. 161, pp. 18-19, para. 35). The view of the Court on the effectiveness of judicial review expressed at para. 121 of the latter judgment can only be understood in the light of the circumstances of that case because there was no essential question of fact in issue and if there had been judicial review it would not have involved any disputed question of fact or any of the merits of that case. It was theoretically possible, but never put to the test, that the English courts would, as a matter of English law, regard "the death row phenomenon" as being so barbarous that any Secretary of State permitting such an extradition would have (in the words of Lord Diplock ) reached a decision which was "so outrageous in its defiance of ... accepted moral standards" that it would have to be set aside as a matter of law on the grounds that it was one that no reasonable authority could have arrived at it. If such an event had occurred in the English courts that would have been the end of the affair and there would have been no breach of Article 3 (art. 3) and the matter would not have reached the Convention organs. If such an application for judicial review had been unsuccessful the matter would ultimately have been decided by the Court as it did and judicial review would not have been held to satisfy Article 13 (art. 13).

3. It appears to me that a national system which it is claimed provides an effective remedy for a breach of the Convention and which excludes the competence to make a decision on the merits cannot meet the requirements of Article 13 (art. 13).

4. I agree with the majority of the Court that there has been no violation of Article 3 (art. 3).