Khalif, R (On the Application Of) v Isleworth Crown Court [2015] EWHC 917 (Admin)

[2015] EWHC 917 (Admin)Case No CO10982014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 31 st March 2015
Before
The Rt Hon LORD JUSTICE BURNETTThe Hon MR JUSTICE LEWIS
Between
The Queen on the Application of FAISAL HASAN KHALIFClaimantISLEWORTH CROWN COURTDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Bhavin V Patel (instructed by Freemans Solicitors) for ClaimantBenjamin Douglas-Jones (instructed by CPS ARU) for DefendantHearing Hearing dates: 17 March 2015
JudgmentLord Justice Burnett :
[1]On 22 February 2006 the claimant pleaded guilty at Uxbridge Magistrates’ Court to an offence contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004 [“the 2004 Act”] of not having an immigration document at interview. He was sentenced to three months’ imprisonment. On 14 November 2013 he lodged a notice of appeal against conviction to the Crown Court and sought an extension of time of seven years and eight months to do so. In his Notice of Appeal the claimant asserted: “I pleaded guilty based upon erroneous legal advice” and identified the issue in the appeal as being whether he was able to rely upon a statutory defence found in section 2(4)(c) of the 2004 Act. It is apparent from the Notice of Appeal that the claimant believed that, despite his earlier guilty plea, the Crown Court could entertain an appeal in the same way as if he had entered a not guilty plea and then been convicted.[2]The relevant provisions of the 2004 Act are:
“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.” (b) satisfactorily establishes his identity and nationality or citizenship. (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. […] (i) for a reasonable cause, or (ii) beyond the control of the person charged with the offence, and (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.” (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.”
[3]The application for leave to appeal out of time explained a little of the claimant’s background. He travelled from Somalia to the United Kingdom and presented himself on arrival on 19 February 2006 without a passport. He claimed asylum. In an immigration interview he said that an agent had arranged his transport and provided him with a passport “to show to the relevant authorities on the way to the UK” but took it back as soon as the claimant had boarded the plane. The agent could not be found at Heathrow. The claimant drew attention to the decision of this court in Soe Thet v Director of Public Prosecution [2006] EWHC 2701 (Admin) and of the Court of Appeal in Asmeron v R [2013] EWCA Crim 435 as suggesting that on those facts a defence was available to him. He explained that the reasons for the delay were that he did not appreciate that he might have entered his plea of guilty in error until he took advice in January 2013. The claimant was recognised as a refugee in June 2007 and subsequently granted indefinite leave to remain in October 2011. That prompted him to apply to become a British citizen. His application was refused on 21 November 2012 because he had not disclosed his conviction. The delay since the beginning of 2013 was the result of problems in obtaining a transcript of his immigration interview and then other pressing commitments of his solicitors. The only evidence of what had happened in the Magistrates’ Court provided with the application for leave to appeal out of time was a letter from Messrs Constanti Shah, the claimant’s then solicitors, dated 8 March 2006:
“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.[4]Soe Thet was authority for the proposition that any reference to an “immigration document” in section 2 of the 2004 Act is to a valid document applying to the immigrant in question and is to be contrasted with a “false immigration document” as defined in subsection (13); see paragraphs [16] and [17]. The case itself was concerned with section 2(3) and (6) which govern the approach when an immigrant has entered the United Kingdom before the relevant interview takes place. With respect, it seems to me that neither the Magistrates’ Court nor this court in that case appreciated that “has entered” in the immigration context is a term of art and is not synonymous with “after arriving” in the United Kingdom; as to which see section 11 of the Immigration Act 1971 and section 2(14) of the 2004 Act. It is concerned with circumstances where someone has entered the United Kingdom with leave to enter and not with someone who has arrived and is seeking leave to enter. But that does not bear on the interpretation of “immigration document”. The result of that interpretation was that, albeit in an obiter dictum,Lord Phillips of Worth Matravers CJ observed in paragraph [26] that section 2(4)(e) provided a defence if it were proved “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.”[5]In Asmeron at paragraph [24] the Court of Appeal applied that interpretation and stated that the defence under subsection 2(4)(c) was “unrelated to any false document”.[6]Mr Patel, who appeared on behalf of the claimant, drew our attention to Mohammed v R [2007] EWCA Crim 2332. It is not referred to in the judgment of Toulson LJ in Asmeron. The reserved judgment of the President of the Queen’s Bench Division confronted the stark consequences of the interpretation of “immigration document” and “false immigration document” in Soe Thet. If the dichotomy favoured by Lord Phillips were correct it would mean that section 2(4)(d) would be a dead letter because there would be no need for a person to produce a false immigration document and prove he used it for all parts of his journey if, under section 2(4)(e), he could simply prove he did not travel with a genuine immigration document. The Court of Appeal concluded that section 2(13) did not define a “false immigration document” by contrast with an “immigration document”. Rather, a “false immigration document” was a sub-species of an “immigration document”. In that way the reference in section 2(4)(c) encompassed both a genuine and a false immigration document. The immigrant is required to provide a reasonable excuse for not providing any immigration document. Section 4(2)(d) enables an immigrant to produce a false immigration document and prove he used it for the whole of his journey to the United Kingdom. If either a valid or false immigration document has been destroyed or disposed of the immigrant must prove that he had reasonable grounds for doing so. Section 2(4)(e) provides a defence for the immigrant who proves that he travelled to the United Kingdom never in possession of an immigration document (whether genuine or false): See paragraphs [33] to [37] of the judgment.[7]Mohammed was not provided to the Crown Court with the application for permission to appeal out of time, although it was referred to in the covering narrative. Soe Thet and Asmeron read without Mohammed would suggest that on the facts outlined briefly at that stage by the claimant section 2(4)(c) would not have assisted him. On his case the document he says he travelled on was a “false immigration document”. But section 2(4)(e) might have done so. However, on the strength of Mohammed a defence under section 2(4)(c) would be available if he could prove that he acted reasonably in returning his false immigration document to the agent who travelled with him.[8]The papers were placed before His Honour Judge McGregor-Johnson. He refused the application for leave to appeal out of time in these terms:
“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 434and 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.[9]The judge refused the application to state a case. In his decision letter, he noted the provisions of section 108 (1) of the 1980 Act and reiterated that the only route of appeal for the applicant would be to seek to persuade the Crown Court to allow him to vacate his earlier guilty plea. He explained that he made no findings in respect of any disputed fact in arriving at his decision. The only material before him was that provided in writing by the claimant. In those circumstances, the judge considered that the case stated route was inappropriate. Since the matter challenged the exercise of his discretion his view was that it would be more appropriate to pursue the matter by way of judicial review.[10]These proceedings are in form a challenge to the judge’s refusal to state a case. However, we determined to proceed upon the basis that the real challenge was to the exercise of the judge’s discretion refusing to extend time to appeal. We dispensed with all further formalities.[11]Mr Patel submits that irrespective of the passage of time, however long, in any case where it appears that there may have been a wrongful conviction, time should be extended by a court considering the application for permission to appeal. He suggests that at the time of the claimant’s appearance before the Magistrates Court the jurisprudence which started with Soe Thet was not available with the consequence that few practitioners would have appreciated that a defence might be available to someone who travelled on false documents and returned them to the person facilitating the journey. Nonetheless, the legal position having become clear, Mr Patel submits that the material provided to the Crown Court showed that the claimant had strong grounds for supposing that if investigated at a hearing in the Crown Court, his plea would be accepted to have been equivocal. On a retrial in the Magistrates’ Court he would have very good prospects of establishing the statutory defence. Mr Douglas-Jones submits that the judge was entitled to conclude that it was simply too late to pursue an appeal to the Crown Court and that the material provided to the judge did not show a prima facie case of the plea being equivocal. That being so, it would have been wrong to grant permission whatever the position regarding time. He also submits that the claimant should make an application to the Criminal Cases Review Commission who have power under section 11 and 13 of the Criminal Appeal Act 1995 to refer cases to the Crown Court, including when there had been a guilty plea in the Magistrates’ Court, if having investigated the facts the Commission concludes that there is a real possibility that the appeal will succeed.[12]Arguments about the inter-relationship between delay and prospects of success were not developed before us nor, more generally, were arguments relating to appeals which were founded upon a development in the law which followed the earlier guilty plea. But I do not accept Mr Patel’s argument that, whatever the delay, if an appellant can demonstrate that he would have had strong prospects of success if the appeal had been brought in time to the Crown Court, time should be extended. The following factors, at least, fall to be considered: 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.[13]In this case the first question was whether the judge was entitled to conclude that the application for permission was too late because it would be impracticable to investigate the position regarding legal advice properly. The application explained that the solicitors who represented him in 2006 were no longer trading.[14]In my judgment that was a conclusion that the judge was entitled to arrive at on the information before him. The clear implication of the terms of the application was that the letter attached from Constanti Shah was the beginning and end of the contemporary record of what occurred. As it happens, that position has since been confirmed because those involved in the firm have explained that all documents were destroyed after seven years. The judge was also well aware that, despite the way in which the application for permission to appeal out of time was couched, this was an equivocal plea case. He said so in his decision. In those circumstances he would have been alive to the reality that any investigation that might take place would be into what transpired in the court itself. That is something which, after the passage of approaching eight years, would be extremely difficult. We have been told that the Magistrates’ Court long ago destroyed all the papers relating to this case in the normal course of its paper management procedures. It would be entirely unrealistic to expect anyone involved to have a recollection of the case. It may be that a judge as experienced as this one would have been well aware of the reality that the Magistrates’ Court would not have retained any relevant records. That said, the reason he gave for refusing permission to appeal out of time in this case is an entirely cogent and realistic one. It cannot be stigmatised as Wednesbury unreasonable.[15]In the light of his conclusion, the judge did not go on to consider in his short reasons whether a prima facie case of an equivocal plea was established on the material provided in the application to the Crown Court. Mr Patel submits that an irresistible inference from the indication that “full mitigation was put forward” is that information was put before the magistrates which should have led them to conclude that the claimant was suggesting that he had a reasonable excuse for not being in possession of an immigration document. That conclusion is said to flow from the juxtaposition of the summary of the instructions given to Miss Shah and the reference to “instructions consistent with guilty pleas” obtained by Cameron Collins at the hearing. I am unable to accept that submission.[16]There is no indication in the letter from Constanti Shah of the precise nature of the instructions obtained on 22 February 2006 by Mr Collins and whether they were the same as those given to Miss Shah. There is no elucidation of why the instructions given to Mr Shah were considered “consistent with guilty pleas”. There is no explanation of what was contained within the “full mitigation” referred to in the letter. There is nothing which indicates the solicitors’ individual or collective understanding of the “reasonable excuse” defence. However, prior to the decision in Soe Thet it is apparent that the interpretation of section 2 of the 2004 Act favoured by the Divisional Court, which prevailed until Mohammed,was not widely understood. If the solicitors had anticipated Soe Thet they might have advised the claimant that a defence under section 2(4)(c) was not available to him: the provision was concerned with genuine documents. They might have considered that a defence was available under section 2(4)(e) in the way later mooted by Lord Phillips. It is perhaps more likely that they would have considered whether the facts outlined by the claimant provided a defence of reasonable excuse for not having an immigration document. That is the natural reading of the section and the one which prevailed in Mohammed. The reference in the instructions given to Miss Shah to there being no threat made to secure the return of the passport on which the claimant travelled seems to be directed towards whether the claimant could establish a reasonable excuse for not having kept it.[17]It should not be overlooked that in these circumstances the claimant had the burden of establishing the defence on balance of probabilities, in an environment where attempting to do so, but failing, would result in his losing the available discount for plea.[18]In the absence of any indication of what occurred before the magistrates beyond the exiguous references in the letter, there is no prima facie case for asserting that the plea entered by the claimant was equivocal. Even assuming that the broad circumstances on the claimant’s journey to the United Kingdom were explained to the magistrates, including the fact that he was under no pressure as a result of threats to return the passport, I do not consider that would have put them on notice that his plea was equivocal. It would indicate that the claimant did not suggest that he had a reasonable excuse but rather was praying in aid the realities of the dynamic between him and his agent as a mitigating factor.[19]For all these reasons the attack upon the decision of the judge fails. The claim for judicial review will be dismissed.[20]The conviction is now spent although it was not spent at the time of the claimant’s application for British citizenship. However, the difficulty that the claimant encountered with the immigration authorities flowed not simply from the fact of the conviction but also from his failure to declare it. The refusal letter indicated that in those circumstances a fresh application would not normally prosper in the next 10 years. It is unclear what the position would be regarding the earlier non-disclosure if the claimant were successful in an appeal against the conviction.[21]We were provided with further evidence by the claimant of the circumstances of his journey to the United Kingdom, including a transcript of his screening interview on 21 February 2006 and a recent short statement. Neither bore upon the decision of the Crown Court. The attempted appeal to the Crown Court was conditioned by section 108 of the 1980 Act and the constraints relating to equivocal pleas. The presentation of a detailed factual case to the Criminal Cases Review Commission with a view to their investigating and making a decision whether to refer the case to the Crown Court would not be so constrained. The claimant may choose to take advantage of that statutory scheme, but the result would be entirely a matter for the CCRC. MR JUSTICE LEWIS[22]I agree.

Cited in 2 later judgments