Bina, R. v

J U D G M E N T

LORD JUSTICE McCOMBE:

1. On 14 December 2012, following a trial in the Crown Court at Kingston upon Thames before Her Honour Judge Coello and a jury, the applicant was convicted of eight offences: one offence under section 1(1) of the Criminal Law Act 1977 of conspiracy to facilitate the commission of a breach of an immigration law of a member state, contrary to section 25(1) of the Immigration Act 1971 (count 1); one offence under the 1977 Act of conspiracy to facilitate the arrival of an asylum seeker into the United Kingdom, contrary to section 25(A)(1) of the 1971 Act (count 2); two specific offences of facilitating the arrival of named asylum seekers into the United Kingdom, contrary to section 25(A)(1) of the 1971 Act (counts 3 and 4); and three offences of converting criminal property, contrary to section 327(1)(c) of the Proceeds of Crime Act 2002 (counts 6, 7, 8 and 9). The applicant was acquitted on the direction of the learned judge on one charge of encouraging or assisting the commission of fraud, contrary to section 45 of the Serious Crime Act 2007 (count 5). It is material to mention that acquittal because of a point taken in relation to the admissibility of evidence primarily relied upon in relation to the other offences.

2. On 18 December 2012 the applicant was sentenced to a total of nine years' imprisonment, made up of concurrent sentences of nine years for the two conspiracy offences, and four years each for the substantive section 25(A) offences and for each of the criminal property offences.

3. There was a co-accused, Monir Asemani (the applicant's wife), who was convicted with her husband on counts 8 and 9. She was sentenced to concurrent terms of 30 months' imprisonment on each count.

4. The applicant now renews his applications for leave to appeal against conviction and sentence following refusal by the single judge.

5. The underlying facts and the main features of the Crown's case against the applicant were as follows. The applicant was born in Iran. Through his first marriage he was related to the first foreign minister of the new revolutionary government of Iran, which set up the new regime in that country in 1979. Subsequently it appears that his family fell out with the regime and suffered mistreatment at the hands of the authorities. He and his wife were sent to jail where, it seems to be accepted, he suffered torture. His wife died shortly after her release from prison.

6. In 1990 he came to the United Kingdom and was afforded refugee status. In this country he and others interested in Iranian affairs founded the United Iran Party ("UIP") and he became its leader. The party campaigned against the regime and its activities. It helped individuals to escape from Iran and to come to the United Kingdom to seek asylum. The co-accused was the applicant's second wife.

7. The prosecution case was that the applicant was the head of a people smuggling enterprise in this country which he had set up with other Iranians working in Europe. The UIP, it was suggested, was a front for that business, the main purpose of which was to offer Iranian Nationals who wanted to come to the country a service whereby the applicant and others acting under his supervision would facilitate their journey from Iran through European countries, including especially Spain, to the United Kingdom using whatever means were at his disposal and avoiding proper immigration controls in the course of the activity. The service that was offered included the provision of accommodation en route, false documents, assistance in travelling to and from airports and through them, and also written accounts setting what had happened to them in Iran so that they could be presented in due course to a United Kingdom immigration officer. The majority of the accounts, said the Crown, were fabricated and for the service it was alleged that the applicant charged those whom he "assisted" significant sums of money. Over a six year period (the duration of the offences) it was alleged that he had made a substantial gain – in excess of £500,000 – passed into various bank accounts including that of Mohammed Hassan Befroei. The last account, it was alleged, was set up by the applicant with the use of a false Portuguese identity card.

8. In contrast, the defence case was that the terrible experiences that the applicant had suffered in Iran, together with friends and family, had provided motivation for him and his organisation to help compatriots in similar peril in Iran, and that this was all that motivated him – not greed or financial gain. The evidence, it was submitted, was open to an entirely different interpretation to that given by the Crown. There was no evidence of an affluent lifestyle and no direct evidence of how any individual had, in fact, entered Spain in transit to this country.

9. With regard to count 1, the applicant said that he had nothing to do with any particular individual's journey to Spain, and no knowledge of how they entered Spain or their circumstances while they were there. His only involvement was to help them to leave Iran for Turkey. He knew nothing for the arrangements made for them in the western parts of Europe.

10. In relation to count 2, he denied acting for financial gain. His motives, he said, in assisting the individuals were entirely humanitarian. He and his organisation only ever acted as guarantor for monies paid by relatives to smugglers. He did not seek or receive payment. The monies in his accounts were membership fees or voluntary donations to the UIP.

11. In relation to counts 3 and 4, he denied acting for financial gain. His motives towards the two individuals named in the indictment were entirely humanitarian.

12. With regard to counts 6-9, he denied any criminal activity and he denied that the proceeds, which were alleged to be criminal property, were of that character at all.

13. In interview with the police on arrest, the applicant declined to answer questions but did provide a prepared statement to the officers. The judge directed the jury that no adverse inference should be drawn against the applicant by reason of his silence in the interview process.

14. The grounds of appeal now sought to be advanced by the applicant on this application are to a substantial extent issues of law following the judge's ruling rejecting a submission of no case to answer on count 1 of the indictment.

15. A ground of appeal was originally advanced as to a challenge to a ruling made by the judge in the course of the trial rejecting the defence submission that the applicant was not fit to stand trial. Mr Kivdeh realistically abandoned that submission shortly before the hearing today.

16. We turn to the arguments, principally of law, raised on the proposed conviction appeal. First, it is submitted that the learned judge erred in failing to accede to the defence submission of no case to answer. Behind that broad submission there are three points. First, it was submitted that the judge was wrong to conclude that the offence in section 25(1) of the 1971 Act can be committed where the individual, whose breach of immigration law is hypothetically facilitated, is an asylum seeker or proposed asylum seeker. It is submitted that the Crown evidence indicated that all the individuals concerned fell into that category. Secondly, it is argued that the judge was wrong in failing to find that the offence in count 1 had been wrongly charged as a conspiracy to commit the section 25(1) offence, rather than as an offence under section 25(A) of the Act (helping an asylum seeker to enter this country). Thirdly, it is said (and this was the second point more firmly advanced by Mr Kivdeh this morning) that the offence in count 1 should have been charged under section 1(A) of the Criminal Law Act 1977, as amended, rather than under section 1(1).

17. The first point can be dealt with in our judgment shortly. There is nothing whatsoever in section 25 of the 1971 Act to indicate that the individual non-national of the European Union, whose breach of the immigration law has been facilitated, needs to be a person who is not an applicant for asylum. In our view it is plain that there is no such limitation. Unfortunately, even persons who in the end are found to have genuine asylum claims have sometimes committed breaches of immigration law on securing entry to a European Union state. The statute, in our judgment, is aimed at those who facilitate such illegal entry. On the face of the statute there is no such limitation as that for which Mr Kivdeh contends.

18. In the course of his robust submissions to us this morning, Mr Kivdeh helpfully referred us to R v Kapoor [2012] EWCA Crim 435, in which the judgment of the court was given by Hooper LJ. At paragraph 38 Hooper LJ said this:

"We … note that, if the Crown is right, then, on the facts of this case, section 25A can simply be bypassed. Section 25A limits the offence of facilitation to someone who knowingly and for gain facilitates the arrival in, or the entry into, the United Kingdom of an asylum seeker and excludes anything done by a person acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services. Section 25A strikes a careful balance reflecting the obligation of the United Kingdom under the Refugee Convention. It would be strange if a person who facilitated the arrival into this country of an asylum seeker would not be guilty of an offence under section 25A designed specifically to deal with asylum seekers but guilty of the general offence in section 25. Given that an asylum seeker who presents himself to an immigration officer at an airport and claims asylum is not an illegal entrant or, at least for the time being and following temporary admission, not unlawfully in the United Kingdom, section 25 would, on our preferred interpretation, not bite. It would be strange if Parliament, by enacting the 2004 Act intended to interfere with the balance achieved in 2002 when enacting section 25A."

19. As Mr Kivdeh pointed out to us, those cases were specific cases of immigrants who presented themselves on arrival to immigration officers, as the last passage of the judgment in Kapoor indicates. On the contrary, in this case what was alleged by the Crown was not the presentation of individuals to immigration officers in Spain saying "We want to go to the United Kingdom to claim asylum"; the case for the Crown was simply that facilitation was carried out to get people into Spain (as Mr Kivdeh put in his argument on sentence) through the use of forged documents. Therefore the distinction made in Kapoor in our judgment does not apply to the instant case.

20. We turn to the second point. It is, in our judgment, no answer to the offence charged that there may have been a parallel offence of conspiracy to commit an offence under section 25A. That may well have been the case. But it was, in our judgment, no objection to the preferment of a charge of conspiracy to convene section 25(1).

21. Finally, on the third point we do not accept that the offence in count 1 should have been charged under section 1(A) of the 1977 Act as a conspiracy to commit an offence overseas. The applicant was at all material times present in the United Kingdom. The acts constituting his part in the conspiracy were alleged to have occurred here. It is nothing to the point that the immigration law that was proposed to be broken was that of a foreign EU state. The entirely domestic offence of facilitation of a breach of immigration law includes breach of a law having effect in a member state. It is not a foreign conspiracy to do acts amounting to a conspiracy to commit the section 25(1) offence, which was what the applicant was accused of doing in the present case.

22. In R v Patel [2009] 2 Cr App R(S) 475, the offence concerned related to breach of United States immigration control. It appears from the opening words of the judgment, given by Hughes LJ, that the offence with which the court was concerned was a conspiracy to commit trafficking of persons across the world. The United States of America is not a member of the European Union and therefore no charge of conspiracy to commit a domestic offence under section 25(1) in relation to an EU state could be brought.

23. That, in our judgment, deals with the principal ground upon which the applicant challenged the learned judge's ruling on the submission of no case. However, there is a second and subsidiary point. The applicant also challenges the judge's finding that there was sufficient evidence of a breach of the law of the relevant member state because of the absence of any certificate under section 25(3) as to the law in question.

24. Section 25(3) of the 1971 Act provides as follows:

"A document issued by the government of a member State certifying a matter of law in that State –

(a) shall be admissible in proceedings for an offence under this section, and

(b) shall be conclusive as to the matter certified."

25. In our judgment that subsection is an example of a well-known legislative device whereby some fact of foreign law (perhaps of diplomatic or other status) may be admitted or proved in evidence. However, compliance with this particular legislative device is not, in our judgment, the only manner in which the content of a relevant foreign law may be proved. It may be proved by way of expert evidence. Alternatively, as appears in this case, it may be proved by an admission as to what the foreign law is. The Crown had provided details of the provisions of Spanish law, and Mr Chalk (junior counsel for the Crown) has read to us this morning the relevant admission that was made shortly before the close of the Crown's case. It is not suggested that the relevant provisions, as supplied in translation, were not accurate statements of the relevant law for the jury's consideration. Further, as is submitted in paragraph 4.2(ii) of the Respondent's Notice, there was, in fact, significant evidence of the fact of contravention of Spanish law in the course of this conspiracy, not least by the reason that the evidence of arrest in Spain of Iranian immigrants whose entry was being assisted by these alleged conspirators. Compliance with the precise mechanics of section 25(3) is permissive only. It is not, in our judgment, the only manner in which conspiracy to breach the law of a member state could be proved on the facts of the case.

26. The final remaining ground on the conviction appeal relates to the direction to the jury about evidence relating to count 5 (encouraging or assisting the commission of a fraud), which the judge had withdrawn from the jury's consideration.

27. Count 5 related to the fabrication of allegedly bogus asylum histories for potential immigrants. The gain that had to be established for the purposes of the offence under section 2 of the Fraud Act, the underlying offence for the "encouragement or assistance" which was charged in the indictment, extends only to gain or loss in money or other property: see section 5 of the Fraud Act 2006. The prosecution's case was that in a case such as the present the achievement of asylum status opened the doors to a number of financial benefits to the person concerned, which met the statutory test. The judge disagreed. Count 5 was accordingly withdrawn from the jury.

28. It is now suggested, however, by Mr Kivdeh that the evidence of alleged bogus histories and certain other evidence, to which we will refer in a moment, should not have been left to the jury's consideration on the other counts.

29. The evidence about which particular objection is taken concerns the finding of a briefcase in the applicant's office which contained certain materials which might be said to be useful to persons seeking to establish an asylum claim. They were blank summons documents from Iranian Courts, rubber stamps purportedly from the Iranian Courts, and e-mail exchanges about the potential back-dating of histories of individuals involved in potential asylum cases.

30. Mr Kivdeh tells us, in his helpful grounds of appeal, that, after rejecting the defence submission of no case to answer, the judge went on to tell the jury that this evidence was relevant to the remaining counts. With that direction we respectfully agree. The jury was reminded of aspects of it in the summing up of the facts. However, somewhat mysteriously, at page 9E-H the judge is recorded as saying that the fabrication of asylum accounts was irrelevant to the other charges. Mr Kivdeh's objection to the briefcase materials was that the documents were exclusively material to the establishing of an asylum claim (genuine or otherwise) once someone had arrived in the United Kingdom, rather than for the facilitation of any of the breaches alleged in the indictment.

31. We must consider carefully that (on the face of it) somewhat unattractive submission. It seems to us that this material was clearly evidence upon which the jury could rely in establishing the enterprise for which the Crown contended. The fact that part of the enterprise consisted of matters that were to happen here, hypothetically, after arrival does not make them irrelevant to what the course might be before such arrival was achieved. In our judgment all this evidence was clearly relevant to the other charges. No harm was done by the treatment of this aspect of the case in any part of the learned judge's summing-up.

32. It is further submitted by the Crown that, following the submission of no case to answer, time was sought in which to consider whether, in the light of the withdrawal of count 5, the jury should be discharged from considering the other matters. Equally, in the Respondent's Notice the Crown say that it sought to invite any other consequential submissions that ought to be made in relation to the other counts in the light of that withdrawal of count 5. It appears that no such applications were made.

33. In the circumstances, therefore, we consider that for the reasons we have given the evidence was properly admitted. For all these reasons, therefore, we consider that the renewed application for leave to appeal against conviction must be refused.

34. We turn to the application for leave to appeal against sentence. The applicant is now 58 years of age. He was of previous good character. As the medical evidence which we have seen indicates, he had some mental health and other health problems of which, having considered that material for questions of fitness to stand trial, the judge was well aware.

35. In passing sentence on the applicant the learned judge's sentencing remarks included the following:

"Aya Bina, you have been convicted after trial of conspiracy to facilitate a breach of immigration law in Spain, conspiracy to traffic asylum seekers to the UK, and of the trafficking of two specific asylum seekers to the UK for gain, and of converting the benefit of your criminal conduct, ie the money you were paid for this enterprise into various bank accounts, including those in your wife's name, and further converting the proceeds of your criminal activity by using it to rent property, to run a hair salon and to purchase and run motor vehicles. The total amount of money involved in counts 6 to 9 amounts to over £500,00 and I am sure that does not represent the total amount that was gained.

…

… You undoubtedly have been running this criminal business for many years, stretching back, I am sure, long before the earliest dates of the bank accounts that were produced by the prosecution in this case. Indeed, you have said so yourself, as was evident from the telephone transcripts, that you had been doing this for many years.

You were controlling the operation using the UK based political party you had set up with others: the United Iranian Party. I accept that the organisation was involved in some political activity against the Iranian regime, but I do not accept that was what drove your activities. I consider that you largely used the UIP as a convenient front for what in reality was a business, the main purpose of which was to offer Iranian nationals who wanted to come to the United Kingdom a service whereby you and others acting under your instruction would facilitate their journey from Iran through European courts, including Spain, to the United Kingdom using whatever means were at your disposal and avoiding proper immigration control, and you knew perfectly well what the situation was in Spain regarding the lack of immigration status of these individuals. These people were your clients, as you described them, in what was clearly a momentary slip in your evidence. …

…

You charged your clients for this service significant sums of money and it was plain from the evidence that for the last six years, and I say very likely much longer, that you have been earning a very good living from this criminal enterprise. I consider therefore that the whole of the money credited to your accounts should be seen in that context. Over the same period you were claiming council tax and housing benefit to the tune of over £50,000. …"

36. In the proposed appeal against sentence it is argued that the learned judge was wrong to sentence the applicant on the basis that he was the "main man" in the conspiracies. It is said that the judge did not identify how many people's breach of the law was facilitated, although it is recognised that 2,000 files had been seized from the applicant's office. Mr Kivdeh this morning says that there were a great deal more than simply immigration matters, and the 2,000 files could not be treated as involving 2,000 immigrants in the offences of which the applicant by this stage had been convicted.

37. It is said that the judge misdirected herself in concluding that the entire £500,000 must have been derived from criminal conduct. It is further submitted that the judge failed to take due account of the mitigation in terms of the applicant's age, his health, his past history and mistreatment in Iran, his character, and the fact that there was no evidence of injury or threat to life.

38. In refusing the application for leave to appeal against sentence, the single judge said this:

"These were offences on a grand scale. The judge was entitled to conclude that you were 'the UK head' of this enterprise, that it had been going on for a long time, that despite your concern for your compatriots, you were motivated by gain, and that you made a great deal of money out of it. Sentences totalling nine years' imprisonment for what you did for a man of your age and background was tough but it was not too long."

We agree with those observations.

39. We have been helpfully referred by Mr Kivdeh this morning to a number of authorities, including R v Kao [2010] EWCA Crim 2617, R v Van Binh Le and Others [1999] 1 Cr App R(S) 422, R v Oliviera and Others [2013] 2 Cr App R 18, and R v Naillie[1993] 2 WLR 927.

40. To the observations of the single judge we would simply add this. To facilitate the entry of asylum seekers is to obtain gain from the acutely vulnerable. The submission that somehow or other the fact that the people involved were asylum seekers is hardly, in our judgment, a mitigating factor. We would add that the applicant's criminal conduct is, in our judgment, a sad response to the grant of refugee status. He has repaid that grant of status with grossly abusive behaviour in respect of the immigration laws of the European Union and of the country that afforded him sanctuary, and has done so for personal gain.

41. We have no hesitation in refusing this wholly unmeritorious renewed application for leave to appeal against sentence.

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