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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mohammed, R v [2007] EWCA Crim 2332 (16 October 2007) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2007/2332.html Cite as: [2008] WLR 1130, [2007] EWCA Crim 2332, [2008] 1 WLR 1130 |
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2007/03229/D4(2) |
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CROYDON
Mr Recorder King (1)
ON APPEAL FROM THE CROWN COURT AT CROYDON
His Honour Judge Tanzar (2)
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ELIAS
and
MR JUSTICE GRIFFITH WILLIAMS
____________________
R |
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- v - |
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Farida Said Mohammed (1) R -v- Abdullah Mohamed Osman (2) |
____________________
Daniel Bunting (instructed by Wilson & Co) for the Appellant (Osman)(2)
Alex Chalk (Instructed by CPS) for the Crown in both appeals
Hearing date: 11th July 2007
____________________
Crown Copyright ©
President of the Queen's Bench Division:
Farida Said Mohammed – The Facts
Abdullah Mohamed Osman – The Facts
Section 2 of the 2004 Act
"(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which –
(a) is in force, and
(b) satisfactorily establishes his identity and nationality or citizenship."
The offence is clearly defined in unambiguous language. However it is not absolute. To begin with, a statutory period of grace, permitting late production of appropriate documentation in defined circumstances is provided by s. 2(3). Thereafter when the facts which give rise to the offence under s. 2(1) are established, specific defences are expressly provided. It is this aspect of the legislative language and structure which gives rise to both appeals.
"It is a defence for a person charged with an offence under subsection (1)—
…………
(c) To prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),
(d) To produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or
(e) To prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.
(6) Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom –
(a) subsection (4)(c) and (5)(c) shall not apply, but
(b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3).
(7) For the purposes of subsections (4) to (6) –
(a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was –
(i) for a reasonable cause, or
(ii) beyond the control of the person charged with the offence, and
(b) in paragraph (a)(i) "reasonable cause" does not include the purpose of –
(i) delaying the handling or resolution of a claim or application or the taking of a decision,
(ii) increasing the chances of success of a claim or application, or
(iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice."
"(12) In this section –
…..
'immigration document' means -
(a) a passport, and
(b) a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport, and
'leave or asylum interview' means an interview with an immigration officer or an official of the Secretary of State at which a person –
…
(a) seeks leave to enter or remain in the United Kingdom, or
(b) claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights
Act 1998 (c42) as being incompatible with his Convention rights.
(13) For the purposes of this section –
(a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and
(b) an immigration document is a false immigration document if and in so far as it is used –
(i) outside the period for which it is expressed to be valid,
(ii) contrary to provision for its use made by the person issuing it, or
(iii) by or in respect of a person other than the person to or for whom it was issued."
Discussion
"The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence ".
"…self-evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law…that Article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt".
In the light of the observations of the Divisional Court in Adimi, section 31 of the Immigration and Asylum Act 1999 created a statutory defence to some of the offences which then applied to the possession or use of false documents. Thereafter, in R (Pepushi) The Crown Prosecution Service [2004] EWHC 798 (Admin) the Divisional Court reached the clear conclusion:
"….that the scope of the defence available to the claimant is that set out in section 31 and not in Article 31; Parliament has decided to give effect to the international obligations of the UK in the narrower way, but that is, on the authorities that are binding on us, the law which must be applied in the UK."
"Parliament sought to address directly the problem of those seeking asylum or leave to enter without documentation to establish their identity nationality or citizenship. It was recognised that some of those seeking assistance may never have had documentation, or may have only had false documentation, but even false documentation might assist immigration authorities, and the aim was at least in part to prevent wilful disposal or destruction of documents which ought to be produced, and which would assist the immigration authorities if they were produced, so the section created a new offence ".
These observations are plainly consistent with and derived from the Home Office guidance that:
"The offence is intended to discourage persons from destroying or disposing of their immigration documents en route to the United Kingdom. In particular to discourage them from doing so in order to conceal their identity, age or nationality in an attempt to increase the chances of success of a claim or application or to make consideration of their claim or application more difficult and/or to thwart removal… "
Finally we note that, in effect for the reasons identified by Simon Brown LJ in Adimi, the court accepted that the offence created by section 2 of the 2004 Act fell within the ambit of Article 31, and indeed that Article 31 was to be "generously interpreted".
i) that he has a reasonable excuse for not producing a genuine document; (s2(4)(c))
ii) that he travelled to the United Kingdom without at any stage being in possession of any immigration document; (s2(4)(e))
iii) that he used a false document as an immigration document for all purposes in connection with his journey to the United Kingdom, and produces it. (s2(4)(d))
"(i) is the defence under s2(6)(b) available to a defendant in relation to a genuine document, as defined by s2(1) where no such document exists?
(ii) if so, can s2(6)(b) provide a defence in relation to a genuine document where the accused has travelled to and entered the United Kingdom using a false document which is not provided in accordance with s2(3) and has no reasonable excuse for not having done so? "
The Appeals
The appeal under s 2(4)(c)
The appeal under s 2(4) (e)
Conclusion