Abdi, R v [2007] EWCA Crim 1913

[2007] EWCA Crim 1913Case No 200606462 A4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KINGSTON UPON THAMES CROWN COURT
Mr Recorder Shorrock
T20067177
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2007
Before
LORD JUSTICE TOULSONMR JUSTICE WALKERHIS HONOUR JUDGE WADSWORTH QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISON)
Between
RRespondentLIBAN ABDIAppellant
Mr Tim Banks instructed for AppellantMs Sarah Ellis instructed for RespondentHearing Hearing date: 14 June 2007
JudgmentLord Justice Toulson :
[1]Liban Abdi pleaded guilty at Kingston upon Thames Crown Court on 23 October 2006 to an offence of assaulting a child under 13 by penetration, contrary to s 6(1) of the Sexual Offences Act 2003. On 27 November 2006 he was sentenced by Mr Recorder Philip Shorrock to 5 years’ imprisonment and recommended for deportation.[2]His application for permission to appeal was considered on paper by Roderick Evans J. He refused permission to appeal against the custodial part of the sentence, and that part of his application has not been pursued. He referred the application for leave to appeal against the recommendation for deportation to the full court because there was doubt whether prior notice had been given as required by s 6(2) of the Immigration Act 1971 (as amended) before the recommendation was made. This point had not been raised in the grounds of appeal but it had been spotted by the casework lawyer in the criminal appeal office, who brought it to the attention of the single judge. The point was then taken up in the skeleton argument prepared by Mr Tim Banks, who appeared for the defendant at the trial and before this court. Because the point is of some general importance, we considered it right to give leave to appeal. Mr Banks challenged the recommendation for deportation both on the grounds of lack of notice and on the merits, so it is necessary to summarise the facts.

The facts

[3]The appellant is a Somali national, who came of the United Kingdom illegally in 2003. He claimed asylum, but his application was rejected. At the time of the offence he was aged 30 and had no previous convictions.[4]The victim was an 8 year old boy. The offence happened at his home. The appellant had gone there to visit other members of the boy’s family, but they were out. He had visited the family previously, but he had not met the boy. On this occasion the only people at home were the boy and his grandmother. She was not feeling well and went to her room, leaving the appellant alone with the boy. The boy was watching television and the appellant joined him. With the boy on his lap, the appellant began to masturbate. He pulled down the boy’s clothing and penetrated his anus with his finger. He then ejaculated and semen was found on the boy’s pants.[5]The boy said nothing at the time, but he later asked his mother if they could stop living there because he did not like the appellant. He then explained what had happened.[6]The appellant was interviewed but denied the offence. He said that the boy had made up the story. He pleaded guilty on the morning of the trial.[7]The victim’s mother said in an impact statement that the victim’s life had been seriously affected. He did not sleep properly, and he seemed to become worried and angry very quickly. He said that he would not forget what had happened for the rest of his life.[8]A pre-sentence report assessed the appellant as posing a high risk of harm to young children. He was sexually aroused by young boys and the probation officer expressed concern that he sought to explain the offence as a misjudgement influenced by alcohol.[9]The recorder asked counsel for the prosecution, at the end of his opening of the facts at the sentence hearing, whether a form IM3 had been served on the appellant. The reply was, “I understand from my learned friend that it has, yes.” Mr Banks then addressed the recorder on sentence, including the question whether there should be a recommendation for deportation.[10]Mr Banks told us that in conference prior to the sentencing hearing he asked the appellant through an interpreter if he had been served with an IM3 form and he explained what this was. The reply was that some document about deportation had been served on him after his arrest. Mr Banks believed from what he was told that the form had been served. Mr Banks also readily accepted that if the form had not in fact been served, no prejudice was caused to the appellant by the omission, and that he had been able to put before the recorder all that he could properly say on the subject of deportation.

Immigration Act 1971

[11]A person who is not a British citizen may become liable to deportation under s 3(5) or 3(6), which provide as follows: “(5) A person who is not a British citizen is liable to deportation from the United Kingdom if – (a) the Secretary of State deems his deportation to be conducive to the public good;… (6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.” (a) the Secretary of State deems his deportation to be conducive to the public good;…[12]Section 6 deals with recommendations by a court for deportation. Its provisions include the following:
“(1) Where under section 3(6) above a person convicted of an offence is liable to deportation on the recommendation of a court, he may be recommended for deportation by any court having power to sentence him for the offence unless the court commits him to be sentenced or further dealt with for that offence by another court… (2) A court shall not recommend a person for deportation unless he has been given not less than seven days notice in writing stating that a person is not liable to deportation if he is a British citizen, describing the persons who are British citizens …; but the powers of adjournment conferred by section 10(3) of the Magistrates’ Courts Act 1980, section 179 or 380 of the Criminal Procedure (Scotland) Act 1975 or any corresponding enactment for the time being in force in Northern Ireland shall include power to adjourn, after convicting an offender, for the purpose of enabling a notice to be given to him under this subsection or, if a notice was so given to him less than seven days previously, for the purpose of enabling the necessary seven days to elapse. ”
[13]Form IM3 is the standard form used under s 6(2).

The argument about notice

[14]Mr Banks’ argument was very simple. It was as follows: 1. Diligent enquires have been made and there is no documentary evidence that a form IM3 was ever served on the appellant. It must therefore be taken that it was not served. It would not be fair to regard it as having been served from what the appellant told Mr Banks in conference, since the discussion was through an interpreter and imprecise. 2. The language of s 6(2) contains an unambiguous prohibition on a court making a recommendation for a deportation unless the appropriate notice has been given, and the recommendation was therefore unlawful.[15]Counsel for the prosecution, Ms Sarah Ellis, did not oppose either proposition.[16]We have no difficulty accepting Mr Banks’ first proposition. We would have liked to hear full argument on the second point.

Discussion

[17]We are unaware of any direct authority on the question whether a recommendation for deportation must necessarily be quashed if the notice required by s 6(2) had not been given.[18]Mr Banks relied on the case Nazari [1980] 1 WLR 1366, 1373 A, where Lawton LJ said:
“A person who is likely to be the subject of an order must be given 7 clear days notice of what may happen to him. The object of that is to enable him to prepare his answer to a suggestion that he should be recommended for deportation.”
[19]However, the court was not there concerned with the consequences of a failure to serve the required notice. That was not an issue before the court.[20]The decision of the House of Lords in Soneji [2005] UKHL 49, [2006] 1 AC 340, provides important guidance on how a court should approach the consequences of a failure to comply with a statutory requirement of this kind. The case concerned the procedural requirements of s 72A of the Criminal Justice Act 1988 governing postponed determinations of confiscation proceedings. Section 72A(3) stated:
“Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above [i.e. a period of postponement of the determination] which – (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction.”
[21]This court held that the wording of that provision was fatal to the validity of a confiscation order which had been made after a postponement of more than 6 months without exceptional circumstances. The House of Lords reversed that decision.[22]Lord Steyn said at [14]:
“A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows.”
[23]Lord Steyn went on to trace the development of a new and more flexible approach through a line of authorities including London and Clydeside Estates Limited v Aberdeen District Council [1980] 1 WLR 182, 189-190 (Lord Hailsham of St Marylebone LC), Wang v Comr of Inland Revenue [1994] 1286, 1296 (Lord Slynn of Hadley) and the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, which Lord Steyn at [21] described as the most valuable decision in the evolution of this corner of the law in the common law world.[24]In the judgment in Project Blue Sky, cited by Lord Steyn at [21], it was said that a court determining the validity of an act done in breach of a statutory provision may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. The court considered that a better test for determining the issue of validity is to ask whether it was a purpose of legislation that an act done in breach of the provision should be invalid. In determining that question, regard must be had to the language of the relevant provision and the scope and object of the whole statute.[25]Agreeing with that approach, Lord Steyn said at [23] that the emphasis ought to be on the consequences of non-compliance and on the question whether Parliament could fairly have been taken to have intended total invalidity.[26]Looking at the matter in that way, Lord Steyn observed that any prejudice to the defendants caused by the delayed determination of the confiscation proceedings was not significant, and was decisively outweighed by the countervailing public interest in not allowing an offender to escape confiscation for what were no more than bona fide errors in the judicial process.[27]The other members of the Judicial Committee either agreed with Lord Steyn or gave judgments adopting the same approach.[28]The broad purpose of the deportation provisions in the Act is to enable the removal from the United Kingdom of those of who have no right to be here and whose deportation would be to the public good. Where a decision to deport is taken, whether under s 3(5) or s 3(6), there is a right of appeal to the Asylum and Immigration Tribunal under s 82(2)(j) of the Nationality, Immigration and Asylum Act 2002. The right to appeal against a decision taken after a recommendation by a criminal court is new.[29]The language of s 6(2) might suggest that its purpose is to avoid the risk of a person being recommended by a court for deportation who is not eligible to be deported because he is a British Citizen. But the appellant is not a British citizen. It is difficult to see why Parliament should have intended that a recommendation for deportation of a non-British citizen should be automatically invalidated by a failure to serve a notice which would on the facts have been irrelevant to the offender.[30]The purpose of s 6(2) may, however be the wider purpose suggested in Nazari of putting the defendant on notice of the possibility of the making of a recommendation for deportation, so as to give him time to prepare to address the possibility on the merits. Even on that basis, in this case the appellant and his counsel were aware of the risk of such a recommendation and Mr Banks was able to make his submissions to the recorder on it. He also recognised that it is a particularly unappealing point in terms of any substantial merit in circumstances where the appellant’s case was conducted on the basis that the appropriate notice had been served and the judge was led to believe that it had been served.[31]If it were to happen that a court made a recommendation for deportation against a person who was a British citizen, and therefore ineligible to be deported, there would be a number of other safeguards within the statutory scheme. First, the recommendation is just that – a recommendation and not an order. It would be open to the offender or his representatives to draw the position to the attention of the Secretary of State. Secondly, there could be an appeal against the recommendation to this court. Thirdly, if a deportation order were made, there could be an appeal to the Asylum and Immigration Tribunal. Fourthly, as a matter of practicality, the process for carrying out a deportation requires Home Office officials to obtain personal details regarding the deportee’s citizenship in order to prepare the necessary travel documentation.[32]Recommendations for deportation are not always opposed by defendants. Sometimes a defendant will recognise that a deportation recommendation is inevitable, or may even welcome it, and may wish the sentencing process including the recommendation for deportation to be completed as quickly as possible. According to Mr Banks’ argument, if in such a case the defendant had not received the prescribed notice, the court would have no power to make an unopposed recommendation for deportation, but would be compelled to adjourn the matter to everyone’s cost and inconvenience.[33]Bearing these considerations in mind, we do not believe that the court should impute to Parliament an intention that non-compliance with s 6(2) should necessarily render a recommendation for deportation invalid. Unless that were the proper construction of the Act, the ground of appeal based on lack of notice must in this case fail.[34]We would add that if we had accepted the appellant’s argument on this point, his victory would in all likelihood would have been pyrrhic, since it would remain open to the Secretary of State to make a deportation order under s 2(5) on the ground that it would be conducive to the public good.

The merits of the deportation order

[35]In his sentencing remarks the recorder said :
“You are liable to be deported from this country and given the very serious nature of this offence it is my view that your continued presence is to the detriment of this country and those that live here. Accordingly, I do recommend that you are deported when you are released from your prison sentence.”
[36]It was submitted on the appellant’s behalf that the decision to make a recommendation for deportation was wrong. It was an isolated offence, for which the appellant had shown full remorse, and the recorder had not found for the purposes of s 229 of the Criminal Justice Act 2003 that he presented a significant risk to members of the public of serious harm by the commission of further offences.[37]As to the last point, the recorder concluded that if the appellant were to commit a similar offence in future he would undoubtedly cause serious harm, and that there was some risk of him doing so. However, bearing in mind, in particular, the appellant’s age and lack of previous convictions, he gave him “the benefit of the doubt” and did not find that there was a significant risk of him re-offending. This conclusion coincided with the assessment, albeit qualified, in the pre-sentence report. The probation officer wrote:
“On the basis that this is Mr Abdi’s first conviction and his current age it is presumed that his risk of re-offending would be low. This is evidenced by the Offender Group Re-Conviction Scale which has assessed his risk of re-offending at 13%. However, given the fact that we do not have any substantiated knowledge save from the defendant’s word, I believe that this assessment is limited.”
[38]There is no inconsistency between the recorder’s conclusion that the criteria of s 229 were not established and his decision to make a recommendation of deportation. For the purposes of s 229, he had to be satisfied that there was both a significant risk of the appellant committing further offences and a significant risk of him causing serious harm to the public by doing so. For the purposes of deciding whether to recommend deportation, he was entitled to balance both the degree of risk of the appellant re-offending and, if so, the likely harm which would result. He concluded that there was a risk of the appellant re-offending (although not such as to satisfy s 229), and that, if he did so, the result would undoubtedly be to cause serious harm. The recorder was fully entitled to conclude that it was not conducive to the public interest that young children should be exposed to such a risk.[39]Although the offence was not pre-planned and there was a level of remorse, it was a grave offence committed on a child whom he had not previously met but was in his temporary trust.[40]In our judgment no complaint can properly be made about the recommendation for deportation. The appeal is accordingly dismissed.

Cited in 1 later judgment