Samir v Crown Prosecution Service [2013] EWHC 2660 (Admin)

Case No CO/1017/2013[2013] EWHC 2660 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Cardiff Civil Justice Centre, 2 Park Street, CardiffDate Thursday, 20 June 2013
CF10 1ET
B e f o r e:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
SIR JOHN THOMAS
MR JUSTICE HICKINBOTTOM
Between
SAMIRClaimantv
Between
CROWN PROSECUTION SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Jones appeared for Claimant
J U D G M E N T
[1]THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: There is before the court an application to renew an application for judicial review of the decision of the Crown Prosecution Service to prosecute the claimant for offences of knowingly employing persons at his restaurant in Aberystwyth, known as the Shilam.[2]It is important to point out at the outset that this is a serious offence because, particularly in a town like Aberystwyth, the knowing employment of people who are not entitled to work deprives others of employment. We say that at the outset because there must be a serious public interest in ensuring that those who knowingly employ people who are not entitled to work in this country are dealt with by the severe sanctions of the criminal law and not merely by civil penalty.[3]The facts are relatively simple. There was a raid on the restaurant in April 2009 and two workers, a man known as Rodrigues and a man known as Ahmed, were found. A civil penalty was imposed of £5,000. Subsequently, there was a raid on 2nd November where the man Rodrigues was found again and on 18th November 2011 another raid and Ahmed and Rodrigues were found again. It is accepted that there is a case to answer in respect of the employment of Ahmed and of Rodrigues. In the case of Rodrigues it is said that he is now entitled to work as an EU or EEA national.[4]When therefore the application came on before the learned district judge to stay these proceedings, it could only be advanced on the basis of there being something that brought the administration of justice into disrepute. The learned district judge quite rightly said that this was not a matter he should deal with. So the matter came to this court.[5]As we understand the argument that has been advanced before us, it is that the conduct of the Crown Prosecution Service has amounted to a degree of severity that to allow the prosecution to continue would bring the system of justice into disrepute.[6]We accept that the matter evidenced a degree of incompetence. The facts can be briefly summarised from which that is evident. After the raids a warrant was executed on the claimant's home address and as the Crown Prosecution Service set out in their acknowledgement of service, there were found documents, a catering award certificate to Ahmed and a photocopy of an Indian passport in the name of a gentleman called Perriera, with a photograph of Rodrigues in it. The claimant was then interviewed. A little bit later than that, in February 2012, the police withdrew an allegation that they had made under section 51 of the Licensing Act 2003 to Ceredigion County Council for a review of the claimant's licence. The public notice in respect of that had stated as follows:
"Businessmen like Mr Samir who operate premises in this manner are exploiting those individuals and perpetuating the traffic of illegal immigrants in the UK. Often such illegal persons are exploited and abused and are not paid a fair wage for what they do."
The police accepted on 6th February 2012 that there was no evidence that Mr Samir had been engaged in trafficking, withdrew that, apologised for it and withdrew their objection. However, it is quite clear that there was evidence on which the charges of knowingly employing could proceed.[7]What the police did was to consult the CPS. They gave advice which was correct in one respect, namely that charges should be brought under section 21 of the Immigration, Asylum and Nationality Act 2006 in respect of knowingly employment. They also advised that an offence under section 8 of the Asylum and Immigration Act 1996 should be charged. That was, as they accept now, an error as that Act had ceased to have any application at the time of the first employment.[8]They considered whether an offence should be charged under section 25 of facilitating a breach of employment law, but they did not advise that a charge should be brought under section 4, which is the offence of facilitating entry or trafficking.[9]Despite that advice, the police charged Mr Samir, the claimant in this case, under section 4 with facilitating entry for trafficking. They charged him under section 25 for facilitating in breach of immigration law and they charged him under section 21 for employing Ahmed on 18th November 2011.[10]After he had been charged he was bailed to appear at the Aberystwyth Magistrates' Court. At the hearing at that court the CPS agreed to review the charges. They did so and decided that they would offer no evidence in the charge under section 25. The charge under section 4 was withdrawn. They would thereafter charge Mr Samir the claimant in respect of Rodrigues and Ahmed under section 21.[11]Unfortunately, when the matter came back before the Aberystwyth Magistrates' Court they offered no evidence under section 25, but inadvertently failed to offer no evidence under section 4 and they failed to charge in respect of section 21, the employment of Rodrigues. On 15th August the Crown put matters right; they offered no evidence on section 4 and laid the charge under section 21 in respect of the employment of Rodrigues. It was accepted at that hearing, as we have indicated, that there was an acceptance that there was a case to answer under section 21 of knowing employment.[12]It is very unfortunate that matters proceeded in the way described. Certainly that could be characterised as a degree of incompetence. But it is suggested that this amounted to some form of bad faith. When counsel was asked if there was any evidence of bad faith, there was none except what could be inferred from the events described. It seems wholly impossible to see how bad faith could be inferred. The conduct was unedifying and incompetent but it is a very, very long way from bad faith. There is absolutely no evidence whatsoever of any malice or bad faith against Mr Samir. It is, we would with respect observe, somewhat surprising that counsel has put forward such a case without any evidence to support it.[13]The position therefore is, as regards the primary grounds upon which this claim for judicial review to stay the prosecution, a case where there is no evidence of bad faith. It is accepted that there is a case that can go forward for prosecuting what we say in the circumstances in Wales is a serious offence of knowing employment. It seems to us that there can be really no basis whatsoever for an application in respect of staying this matter on the basis that there was something that would bring the administration of justice into disrepute.[14]We have given our reasons at some length, but we cannot help observing that when this was considered by the single judge he dealt with the matter in three lines. The argument that has been advanced before us could have been dealt with in that way, but we have decided to deal with it in a little more detail to show that the argument is completely without merit. If we were to describe the argument so far as completely without merit, that deals with the first part of the case.[15]We are very, very surprised that in the second part of the case an argument has been advanced that there has been a breach, first of article 3 and then of article 8 of the European Convention on Human Rights. It is said, and we are prepared to accept, that as a result of the charges under section 4 being brought, Mr Samir suffered a degree of anxiety. The complaint made by the CPS to which there was attached a letter from his general practitioner and which unfortunately is not before us, refers at the end to Mr Samir suffering from lack of sleep and anxiety. We will assume for present purposes that he has that degree of anxiety as a result of these charges being brought and that is a factual assumption for those purposes that we have made. To suggest that this amounts to a breach of article 3 is, with respect to counsel, nonsensical. It is word that I do not lightly use but I feel that Mr Samir should know that that is how the court characterises this argument. Indeed, it might be thought by many that it is the kind of argument that does serious damage in the public's eyes to the European Convention on Human Rights. Article 3 is an article which deals with very serious state misconduct. In the current case, where there is no evidence whatsoever of any form of deliberate conduct, let alone any conduct evidencing bad faith on the part of the CPS or the police, to suggest a breach of article 3 is, as we have said, nonsensical. It is an argument that never should have been advanced in this court and we are astonished it has been.[16]As regards the position under article 8, again there is no basis whatsoever upon which that can be advanced. This renewed application on the first basis, as we have said, is wholly without merit and on the second basis on which it has been advanced it should never have been advanced in this court at all. We therefore refuse this renewed application and the matter can proceed before the district judge as quickly as is conveniently possible.