K v Croydon Crown Court [2005] EWHC 478 (Admin)

Case No CO/1267/2005[2005] EWHC 478 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 4th March 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE MOSES
Between
KClaimant-v-
Between
CROYDON CROWN COURTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS C KILROY (instructed by Messrs Blavo & Co) appeared for CLAIMANTMS G FROST (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MOSES: This matter comes before the court as a matter of urgency. It is an application for judicial review of the decision of Croydon Crown Court sitting as an appellate court on 18th February 2005 from a decision of the Bromley Youth Court. The Croydon Crown Court upheld a sentence of four months' detention and a training order passed by the Bromley Youth Court for a conviction of an offence of seeking leave to enter by deception under section 24(a) of the Immigration Act 1971 ("the 1971 Act"). This court indicated at the outset of the argument that it would grant permission. Fortunately, as a matter of urgency, Ms Frost was instructed on behalf of the Crown Prosecution Service. Having given permission, the court has indicated that it proposes to dispose of this matter as a substantive matter.[2]The background facts of this matter are that the claimant is a national of Ethiopia. Although there has in the past, and possibly in the future, been some question about her date of birth, as a result of Social Services enquiries, the position at present, and the position with which both the courts below proceeded upon and which I proceed upon, is that she was born on 16th April 1987 and she is, thus, 17 years old. She arrived in the United Kingdom by aeroplane on 25th May 2004. She was later to say that she had fled Ethiopia after a period when she had been detained and ill-treated in detention in Ethiopia as a member of the Oromo Liberation Front. She said that her father had been murdered in detention. So fearful was her family for her safety that they paid a bribe for an agent to assist her to escape. The agent arranged for her, so she said, to make an application for entry clearance under a false name in the British Embassy in Addis Ababa. It was that fact which led to her breaking the criminal law in this country.[3]The agent brought her, via Kenya, to the United Kingdom. She made, on her arrival on 25th May 2004, a claim for asylum at the Lunar House asylum screening unit in Croydon. The screening interview was conducted immediately. There appears to have been no responsible adult present, although she gave her date of birth, to which I have already referred, from the outset. I shall turn later to the significance of that fact, but in short it meant that, contrary to all the Guidance, she was being interviewed and screened in the absence of a responsible adult.[4]She was asked questions during the course of the interview which led to the criminal conviction at the Bromley Youth Court. She was asked whether she had sought to enter the United Kingdom before and she said no. That was in fact untrue. It subsequently emerged that a woman under a different name had submitted an application for entry clearance on 7th April 2004 as a visitor to the United Kingdom for medical treatment. The fact that this claimant was participating, and was that applicant, emerged as a result of the identity of the fingerprints used in that earlier application for entry clearance. Thus it was, once it emerged that the fingerprints were the same, that this defendant was charged with attempting to obtain leave to remain in the United Kingdom by deception. After caution, she persisted in saying that she had co-operated in the interview. She was, thus, guilty of an offence pursuant to section 24(a) of the Immigration Act 1971, in that she had sought, by means which included deception, to remain in the United Kingdom.[5]There is, consonant with the United Kingdom's obligations under Article 31(1) of the Refugee Convention, a defence to that charge of deception, but the defence is not available in relation to any offence committed after making the claim for refugee status. If, in the course of making the claim for refugee status, this applicant had made the deceptive remark in relation to not having sought to enter the United Kingdom before, she would have had a good defence. She attempted to assert that defence before the Bromley Youth Court, but, understandably, she failed in challenging her conviction, because, by an hour or so, that defence was not available to her. Sensibly she abandoned her persistence in that contention when her appeal came on at the Croydon Crown Court.[6]The Recorder, Miss Wickham, sitting with another justice, as I have said, upheld the decision of the Bromley Youth Court. That decision effectively was that custody, or detention, was the only appropriate means of dealing with her, and the minimum, therefore, for a detention and training order was detention for four months. There is a note of the judgment of Miss Recorder Wickham, in which she commented that deceit had brought this applicant to the proceedings and pointed out that she had not disclosed the deceit until it was proved by fingerprint evidence. She remarked that "custody is still the entry point". She then upheld the decision.[7]That led to a discussion as to the authorities on which the Recorder was relying in asserting that custody was the entry point. Reference was then made by the Recorder to decisions such as Nasir Ali [2002] 2 Cr App R 115 and R v Kishientine [2004] EWCA Crim 3352. It is to be noted as Ms Kilroy on behalf of this claimant says, that those decisions did not concern children or juveniles, and both were related to serious offences, for example, of having false passports.[8]The material before the Recorder and her colleague consisted not only of the evidence surrounding the deception, but also a pre-sentence report. The pre-sentence report spoke highly of this young lady. There was no suggestion that she had ever been in trouble before. It reiterated the story advanced, namely that this applicant had entered under the control of an agent and had been persuaded to make the false claim for entry clearance earlier under the influence of the agent. Further, that she had only denied the earlier application as a result of suggestions from the agent. All of that was accepted in the pre-sentence report. None of it has ever been disputed.[9]The pre-sentence report spoke of the low risk of offending and in particular made a strong recommendation that detention would not be appropriate. That was fortified by a helpful letter from the education support manager at the Trinity Community Centre dated 26th January 2005. That spoke highly of this claimant, drawing attention to the fact that she had voluntarily attended that centre for educational purposes, participated in the activities of that centre, and spoke, as indeed the pre-sentence report had spoken, of the terror of this young lady at the prospect of being imprisoned. It requires no imagination to emphasise the terror of a 17 year old Ethiopian leaving her family and fleeing from that country in fear of persecution to find herself threatened with imprisonment or detention in this country, where she had hoped to find a haven for her protection.[10]Notwithstanding those features, both the Bromley Youth Court and this highly respected Recorder took the view that custody was the only course. Had matters stopped there, I, for my part, had I been sitting in a different jurisdiction, might not have had difficulty in finding that the sentence was manifestly excessive, but would not have found myself able to interfere with the sentence, exercising the jurisdiction of this court. As is well known, this court does not sit in the same capacity as the Court of Appeal Criminal Division, hearing appeals against sentence. This court can only interfere with the sentence either of the Magistrates' Court or of the Crown Court in circumstances where, and in the very unusual circumstances where, there has been an excess of jurisdiction or otherwise the sentence is wrong in law; see, for example, R v DPP ex parte Eileen McGeary [1999] 2 Cr App R (S) 263 at page 267 in the judgment of Lord Bingham CJ citing ex parte Miller the judgment of Watkins LJ.[11]However, in this case, there is an important feature which was not drawn, unfortunately, to the attention either of the Bromley Youth Court or of Miss Recorder Wickham. It may well have been mentioned, but it lacked the support of authority. The feature is the role of the agent. In immigration law, it is well known that those in the unfortunate position of fleeing from their homes and seeking refugee status can often only do so with the assistance of the agent. Frequently that agent is paid with the only resources remaining to the family. Thus, those seeking the aid of an agent are powerfully under their influence. That that is so has been observed by the Court of Appeal in R (Q) v Secretary of State for the Home Department [2004] QBR 36 at paragraph 40. The court said:
"It is also clear that some asylum seekers are so much under the influence of the agents who are shepherding them into the country that they cannot be criticised for accepting implicitly what they are told by them. There is no valid comparison between agents of this kind, whose interests at the point of entry may well be in serious conflict with those of the asylum seekers, and professional advisers. To disregard the effect that they may have on their charges would be both unrealistic and unjust."
[12]Similar observations were made by Maurice Kay J, as he then was, in R (SDT) v Secretary of State for the Home Department [2004] HLR 16 at paragraphs 9 and 19.[13]Further, the powerful influence of the agent is underpinned by acknowledgment within the control of immigration screening procedures of the particular care which needs to be taken when interviewing and screening minors. It is unnecessary for the purposes of this judgment to identify all the passages in the screening manuals which require those conducting interviews to make sure that a responsible adult is present. No such responsible adult was present in this case.[14]The significance of that fact and of the age of this claimant is that it makes it all the more important to take into account the influence that the agent must have had on this young lady in this case. As I have said, she said that she had initially made the false entry clearance application under the influence of the agent. It was the agent who persuaded her not to reveal her earlier history when she was interviewed following her claim for asylum.[15]It is plain, both from the decision of Bromley Youth Court and from the decision of the Recorder, that the significance of the influence of the agent was not properly brought home to either of those courts. Had it have been, it would, in my judgment, have been not possible to say that custody was the only appropriate means of dealing with this young lady. As a matter of principle, I would hold to ignore the fact that the influence of the agent amounted to an error of law. In those circumstances, I conclude that the Croydon Crown Court did err as a matter of law in upholding the sentence of detention. As a matter of principle, detention in the circumstances of this case, was wrong. In those circumstances I would quash the decision of the Croydon Crown Court in the exceptional circumstances of this case.[16]For my part, rather than sending the matter back and putting this young lady through further trauma as a result of the criminal processes in this country, I would substitute for the sentence of detention a conditional discharge.

LORD JUSTICE MAURICE KAY: I entirely agree. It follows that the order is that we will quash the sentence and substitute a sentence of a 12-month conditional discharge.

[18]MS KILROY: Thank you, my Lords.