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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khalif, R (On the Application Of) v Isleworth Crown Court [2015] EWHC 917 (Admin) (31 March 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/917.html Cite as: [2015] EWHC 917 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
The Hon MR JUSTICE LEWIS
____________________
The Queen on the Application of FAISAL HASAN ![]() |
Claimant |
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- and - |
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ISLEWORTH CROWN COURT |
Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
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Benjamin Douglas-Jones (instructed by CPS ARU) for the Defendant
Hearing dates: 17 March 2015
____________________
Crown Copyright ©
Lord Justice Burnett :
"2 Entering United Kingdom without passport, &c.
(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.
(2) A person commits an offence if at a leave or asylum interview he does not have with him, in respect of any dependent child with whom he claims to be travelling or living, an immigration document which—
(a) is in force, and
(b) satisfactorily establishes the child's identity and nationality or citizenship.
(3) But a person does not commit an offence under subsection (1) or (2) if—
(a) the interview referred to in that subsection takes place after the person has entered the United Kingdom, and
(b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.
(4) It is a defence for a person charged with an offence under subsection (1)—
(a) to prove that he is an EEA national,
(b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,
(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) subsections (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—
"EEA national" means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),
"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 (c. 42) 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."
"You were later interviewed on 21st February 2006 and were represented by my colleague Miss Shah. During interview you gave a full account upon advice from Miss Shah. You stated that you had first left your home in Somalia on 3rd February 2006 as there was no peace over there. You stated that members of your family had been killed and you would have been killed if you stayed there. You travelled to Ethiopia by lorry and left there on 17th February 2006 after your uncle introduced you to a man. Your uncle paid this man to arrange your travel to this country. You took three flights to reach the UK but you do not know which countries you travelled through. This man checked in for each flight for you and then handed you the Passport to show security officers at the airport and board the plane. This man then took the Passport back from you once you were on the plane. This was done on each occasion and you were not threatened to hand it over. You stated that the Passport belonged to this man so you gave it back to him. You confirmed that you never applied for or held your own Passport.
Following your interview you were charged and held in custody to appear at Uxbridge Magistrates Court. The reason you were held in custody is because you were of no fixed abode in this country.
You were represented at Court on 22nd February 2006 by my colleague Cameron Collins. Cameron obtained your instructions in relation to the offence you faced and advised you on plea before venue, mode of trial and the effects of an early guilty plea. You confirmed you would plead guilty given that you had provided instructions consistent with guilty pleas. You entered a guilty plea, full mitigation was put forward on your behalf and you were sentenced to a term of imprisonment of three months. You will be required to serve one and half months of this sentence."
The letter was signed by a third member of staff. Although written after the event its purpose was to provide detail of the terms upon which the firm was acting.
"that from beginning to end of the journey he has not possessed a valid immigration document and on its face would appear to provide a defence even if he had entered on false documents of which he has subsequently disposed or destroyed."
"This application is refused. Any application to vacate the guilty plea would have to be based on advice given seven years ago, and it is, in my judgment, far too late to investigate that properly."
Solicitors acting for the claimant made an application to the judge to state a case. The question identified for consideration by the High Court was:
"Whether the learned judge acted Wednesbury unreasonably in the exercise of the discretion afforded to him in determining the application by failing to adequately consider the interests of justice in the merits of the appeal and/or lack of fault attributable to the applicant in the delay.
Further or alternatively whether the learned judge acted Wednesbury unreasonably in the exercise of the discretion afforded to him in determining the application generally."
One of the complaints raised in the application to the judge to state a case was that he was wrong to treat the application to appeal out of time as being an application to vacate the guilty plea. That point is not pursued. The judge was right in that analysis. Section 108(1) of the Magistrates Courts Act 1980 ["the 1980 Act"] prevents an appeal from the Magistrates' Court against conviction following a guilty plea. However, it has long been the position that the Crown Court can investigate whether the plea of guilty entered in the Magistrates' Court was equivocal. If it concludes that was the case it can direct the Magistrates' Court to rehear the matter: See R v Rochdale Justices ex parte Allwork [1981] 3 All ER 434 and R v Plymouth Justices ex parte Hart [1986] 1 QB 950. Before embarking upon an investigation at an oral hearing the Crown Court must be satisfied that there is a prima facie case that the guilty plea entered in the Magistrates' Court was an equivocal plea. An equivocal plea was described in Allwork as:
"I am guilty but": for instance, "I plead guilty to stealing, but I thought the article was mine."
The question of whether a guilty plea in equivocal is confined to considering what happened before the court. That is because the rationale for concluding that a plea was equivocal is that the magistrates should not have accepted it in the light of what they were told, but rather should have directed a not guilty plea and proceeded to trial.
i) The length of time of the delay;
ii) The reasons for the delay;
iii) The apparent strength of the underlying case on its merits;
iv) Whether a substantial injustice may have resulted;
v) Whether the conviction in question is now spent;
vi) In an equivocal plea case, the ability to investigate effectively what occurred at the time of the guilty plea;
vii) The practicalities after the elapse of time of there being an effective retrial. In ordinary cases there is a rehearing on an appeal to the Crown Court; in equivocal plea cases there is the possibility of a trial in the Magistrates' Court. The interests of justice encompass not only those of the accused but also of the public in having an effective trial.
MR JUSTICE LEWIS