Kakaei, R. v

On 4^th September 2020 in the Crown Court at Canterbury, His Honour Judge O'Mahony determined a legal issue before trial. As a result of his ruling the appellant changed his plea to guilty to two counts, numbered 1 and 3 on the indictment, of assisting unlawful immigration to a member state contrary to section 25(1) of the Immigration Act 1971. These counts alleged that he had piloted a boat across the channel containing illegal migrants on two occasions, 24 July 2019 and 29 December 2019. Count 2 alleged that he had also committed a similar offence on the 12 December 2019. This was ordered to lie on the file in the usual terms.

In separate proceedings before the justices he had pleaded guilty to an offence contrary to section 24 of the 1971 Act which alleged that his own entry into the United Kingdom (UK) on 29 December 2019 had been unlawful. He received a sentence of 4 months imprisonment in respect of that offence on 31 December 2019.

On 21^st January 2021 he was sentenced to 26 months imprisonment on each count concurrently by HHJ Weekes, and further ancillary orders were made.

Leave to appeal against conviction was granted by the full court. He also applies for leave to appeal against sentence, his application having been referred to the full court by the single judge.

At the conclusion of the hearing we announced that this appeal would be allowed, and that we would give our reasons on a later date. This we now do. We also directed that the parties should serve written submissions on whether or not we should order a retrial and we will deal with that issue after this decision has been handed down.

The appellant was represented before us by Mr. Aneurin Brewer, as he was before the Crown Court. The respondent is represented by Mr. James Marsland, who did not appear below. We are very grateful to both counsel for their assistance in this case. In particular, we would like to thank Mr. Marsland for correcting the position taken by the prosecution below and doing so in time to enable Mr. Brewer to respond to the position now adopted in answer to this appeal.

We have set out the relevant provisions of the Immigration Act 1971 in the Appendix to this judgment.

The appellant pleaded guilty on a factual basis set out in a Basis of Plea and the sentencing judge accepted that basis.

The background is set out in the appellant’s Defence Case Statement:-

“Over the second half of 2019, following the refusal of his asylum claim in Denmark in April 2019, the Appellant, along with other migrants, repeatedly attempted to enter the UK as genuine asylum seekers on numerous occasions including on 24

Elements of this appear in the Basis of Plea, which reads as follows:-

The prosecution evidence showed that on 24 July 2019 the appellant and 26 migrants were stopped by UK Border Force officers as they attempted to cross the British Channel from France in a rigid hull inflatable boat (RHIB). The appellant was seen operating the rudder of the vessel. The 26 migrants were undocumented and made applications for asylum immediately after disembarking from the vessel. The appellant was searched and found to be in possession of £210 in cash and a Samsung smart phone. He refused to provide the PIN number for this phone and declined to make an application for asylum. He was subsequently returned to Denmark where a previous application for asylum had been refused.

On 29 December 2019, the appellant and 10 migrants were intercepted by UK Border Force officers whilst attempting to cross the channel in the same manner as they had on 24 July 2019 and again with the appellant operating the rudder of the vessel. On this occasion, the appellant did make an application for asylum along with the other 10 migrants that had accompanied him. The basis for the appellant’s claim was that he was at risk of persecution in his native Iran as a result of his sexuality. The investigators also noted that the appellant was in possession of a mobile telephone, 2 further SIM cards and an SD card in his possession. He refused to provide the PIN number for his phone to the investigators, although they were subsequently able to access it. He was the only person on the vessel who had a mobile phone, although he says that this was because other people on board threw their devices overboard.None of the occupants of the boat had any documentation.

The appellant was interviewed under caution on 29December 2019 and 13 March 2020. He stated that he had travelled to the UK in order to claim asylum and had brought the other migrants with him but he denied that he had done so for financial gain. He stated that he had piloted the boat for part of the journey but denied that he had been the sole person in charge of the boat for the July crossing. He accepted that he was the only person who piloted the boat during the December journey but only because no one else knew how to do so. He stated that he had not claimed asylum in July 2019 as the authorities had told him that that he would be unable to claim asylum in the UK as a result of the fact that his claim had been refused in Denmark.

All involved, therefore, were travelling from a safe country, France, to the UK on both occasions. No-one had any documentation. The appellant pleaded guilty, as we have said, to the offence of unlawfully entering the UK on 29 December 2019, contrary to section 24 of the 1971 Act.

The two relevant counts on the Indictment had been amended before the judge’s ruling to specify the breach of immigration law relied on: they now said:-

There was no evidence that any other entrant on either occasion had been convicted of an offence under section 24, but neither was there any evidence that any of them had any more right to enter the UK than he had on that second occasion to which his conviction related. The judge proceeded on the basis that this conviction would have been admissible in any trial to prove that the appellant’s entry into the UK on 29 December 2019 was unlawful, and, by extension, that all other entries by occupants of these two vessels on both occasions were also unlawful. That would have been a matter of fact for the jury to decide, if there had been a trial, in the light of any evidence adduced by the parties at trial which might explain why that inference should not be drawn.

Although, therefore, this case has features which enable a consideration of the general state of the law, it also has a particular feature which other cases may lack. There was evidence of unlawfulness derived from the appellant’s own plea of guilty on 31 December 2019.

Unfortunately, the proceedings before the judge were not formulated in such a way as to assist him in his task. It appears that counsel for both sides believed that there was a conflict of authority in this court, and that this required the judge to make a ruling of law at the pre-trial stage. The prosecution case was that the appellant had no defence even on his own case, and the defence wanted to know whether this was right. They wanted it decided in advance of the trial so that if his defence was excluded as a matter of law he could plead guilty. That appears to have been the common understanding of counsel and of the judge, although it was not formulated in this way. That was to lead to some lack of clarity in the outcome, as we shall see.

Mr. Brewer submittedthat the case of R v Kapoor [2012] EWCA Crim 435 applied to the present case. He submitted that if a person who had no right to come into the country appeared at a port and immediately claimed asylum, there was no breach of immigration law. As a result, in the present case, the appellant would not be guilty of the offence of assisting in the attempted breach of immigration law.

Counsel who then appeared for the Prosecution submitted that the facts of the present case had to be distinguished from Kapoor which concerned a very different factual scenario and a different section of 1971 Act, (section 11). The guidance which applied to this case was derived from R v. Bina [2014] EWCA Crim 1444. As the illegal entrants had no documents, they would have been committing a section 24 offence which would have formed the basis of the allegation that the appellant was assisting unlawful immigration.

After setting out the facts of the three counts he was then considering, the judge said this:-

The de minimis point the judge refers to is the submission on behalf of the appellant that his actions in piloting the boat, and doing nothing more, could not amount to facilitation of the unlawful entry of the other migrants in the boat. The content of the Defence Statement, see [9] above, was designed to set out the facts on which this is based. That submission was abandoned before us by Mr. Brewer as being completely hopeless. It was, however, treated by the judge as a matter which would be determined by the jury if the appellant did not plead guilty.

The ground on which leave was given is as follows:-

“The Judge erred in ruling that the present case could be distinguished from R v Kapoor [2012] EWCA Crim 435. The ratio in that case precisely covered the situation in the present matter. It is submitted that if the migrants had been intending to surrender and claim asylum immediately upon disembarking they would not have breached immigration law and the only applicable offence would have been one contrary to section 25A of the Immigration Act 1971 if a financial motive could have been established. It is submitted that the Judge erred in accepting the prosecution’s submission that R v Bina [2014] EWCA Crim 1444 applied to the present case. The fact that the appellant had himself pleaded guilty to an offence of illegal entry contrary to section 24 of the 1971 Act was wholly irrelevant to the question that the Judge had to resolve. It is submitted that contrary to the judge’s ruling, the appellant’s case did amount to a defence in law. In ruling as he did, the Judge deprived the appellant of a realistically viable defence before the jury and therefore made an acquittal all but legally impossible. As a result of this error the appellant’s conviction by his own plea is unsafe (R v Chalkley

[1997] EWCA Crim 3416).”

The reason why the full court gave leave is explained in its ruling given by Popplewell

Before the full court, the respondent made a concession which has now been withdrawn, following the instruction of Mr. Marsland. It said:-

“The respondent concedes that the judge's ruling deprived the applicant of any defence such that he is able to argue that if the ruling was wrong his convictions on Counts 1 and 3 are unsafe.”

In a skeleton argument dated 16 March 2021, Mr. Marsland, has fundamentally recast the position of the prosecution. He says that the judge’s ruling on the issue he was asked to decide was wrong, but withdraws the concession that it deprived the appellant of any defence and so he should nevertheless be held to his pleas of guilty.

It is therefore agreed that the decision of the judge was wrong, and the issue before us is what the consequence of that is. In view of the terms on which leave was given, we should set out our view of the correct legal position, even though it is now agreed. It is apparent that the judge did not have the benefit of the legal analysis advanced before us by Mr. Marsland and that, if he had, things would have turned out differently.

In his recent skeleton argument, agreed by Mr. Brewer, Mr. Marsland analyses the authorities in a way which accords with our understanding of their meaning. We shall set that out below. In essence, he says that because of section 11 of the 1971 Act a person who arrives at a port or airport with an approved area where people are held pending consideration of their entry into the UK, is deemed not to enter the country until they leave that area. Such arrangements are familiar to anyone who travels by air. Entry into the UK does not occur on arrival, it occurs on passing through passport

He cites R v. Naillie [1993] AC 674, R v. Adams [1996] Crim LR 593, and R v. Javaherifard [2005] EWCA Crim 3231 in support of that distinction between arrival and entry for the purpose of the Immigration Act 1971.

He then submits that Kapoor and Bina, the only cases placed before the judge, were merely illustrations of this principle. Kapoor was a case where the migrants travelled on a flight and would inevitably be held within an approved area and would not be deemed to enter the UK under section 11 of the Immigration Act 1971. Bina was a case where the immigration law which was to be breached was the law of Spain and nobody was intending to claim asylum in Spain, so the distinction between “arrival” and “entry” was irrelevant. That offence was complete before anyone arrived in the UK.

The judge decided that the arrival of the migrants in the UK would inevitably involve the commission of an offence under section 24 and he was wrong about that, Mr. Marsland accepts. That would depend on whether that arrival was at a port with an approved area which the migrants did not leave before claiming asylum. The submission before the judge of the prosecution that it depended on whether the migrants had documents or not (see the passage at the end of his ruling) was simply wrong in law.

We have set out the provisions of sections 11, 24, 25 and 25A of the Immigration Act 1971 in full in the appendix to this judgment. They are set out as they were at the relevant time. Section 25 has since been substantially amended because of the UK ’s departure from the EU.

Section 24 creates a number of summary offences which may be committed by a person who is not a citizen of the UK. The relevant one in this case is knowingly entering the UK without leave. The prosecution case was that all those on the boats on both journeys committed this offence, and that the appellant facilitated that by piloting the boat.

Section 25 is the section under which the appellant was indicted. It creates an offence where a person does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union, and knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

Section 25A creates a similar offence where a person knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the UK of an individual, and he knows or has reasonable cause to believe that the individual is an asylum-seeker.

The offences under section 25 and 25A are triable either way, and, if tried on indictment, carry maximum terms of 14 years’ imprisonment.

The question posed by the full court when granting leave is whether, given the terms of section 25A, an offence cannot be committed under section 25 where the person whose entry into the UK is facilitated is an asylum seeker. If that is right, then the only offence which can be committed in respect of those seeking to enter as asylum seekers in good faith is that under section 25A, which requires proof that the assistance was provided for “gain”. That is the issue which arises from what it describes as the tension between Kapoor and Bina.

The broader issue is whether, and in what respects, the judge’s ruling was wrong and whether the case falls into any of the categories of case where this court may allow an appeal despite the fact that the convictions follow guilty pleas.

We have considered four decisions on the proper construction of the Immigration Act 1971. In date order these were Sternaj v. DPP [2011] EWHC 1094 (Admin), R. v. Kapoor [2012] EWCA Crim 435; [2012] 1 WLR 3569, R. v. Dhall (Harpreet Singh) [2013] EWCA Crim 1610, and R. v. Bina [2014] EWCA Crim 1444; [2014] 2 Cr. App. R. 30. The full court identified a tension between Kapoor and Bina to which we will turn after summarising the effect of each of the decisions.

In Sternaj, the Divisional Court considered the issue which is before us. Laws LJ at paragraphs 18 and 19 said:-

“The overall submission here is that the legislative scheme of Sections 25 and 25A is to the effect that a person who facilitates or seeks to facilitate the entry into the United Kingdom of an asylum seeker may only be proceeded against under Section 25A, and in that case the prosecution have to prove that it was done for gain. It is also said that Section 25 must be referring to the immigration law of a European Member State other than the United Kingdom (see paragraph 38 (a) of the skeleton argument), and that there could have been no offence contrary to Section 25 on the facts here because Edmir's son, being only 2, cannot himself have been guilty of any offence and so has not committed a breach of immigration law within the meaning of Section 25 (1) (a).

“19.

There is nothing in these two subsidiary submissions. There is nothing whatever to suggest that the first is the case….”

And at paragraph 21 and 22:-

“21.

I return to the principal point on the relation between Section 25 and 25A. In my judgment it is not possible to conclude, by reading Section 25 and 25A together, that only Section 25A covers a case where the third party is an asylum seeker. Section 25A would in my judgment apply in the case of an asylum seeker who arrives in or enters the United Kingdom without any breach of immigration law being committed by the third party at all. It is plainly principally directed at traffickers of asylum seekers.

“22.

Section 25, by contrast, is concerned with facilitation of the commission of breaches of immigration law.”

Kapoor involved an alleged conspiracy to assist Afghans to enter the UK on a flight from Bangkok to London using false documentation to board the flight, with the plan of disposing of the documentation during the flight, arriving without any documentation, and claiming asylum. The prosecution claimed that this was a breach of an immigration law, because of the terms of section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This creates an offence of being at a leave or asylum interview without a valid immigration document. The court held that this was not an “immigration law” for the purposes of section 25 of the 1971 Act, saying:-

“36.

In our view for the purposes of section 25(2) an immigration law is a law which determines whether a person is lawfully or unlawfully either entering the UK, or in transit or being in the UK. If a person facilitates with the necessary knowledge or reasonable cause to believe, the unlawful entry or unlawful presence in the UK of a person who is not a citizen of the EU, then he commits the offence.”

This conclusion was based on the construction of section 25(2) of the 1971 Act which defines “immigration law” for the purposes of that section. It derived support from the Council Directive 2002/90EC of 28 November and R v. Javaherifard [2005] EWCA Crim 3231; [2006] Imm AR 185.

Further support for it was identified in the following paragraph:-

“38.

We also note that, if the respondent 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 UK 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 UK, 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.”

In Dhall (Harpreet Singh) the Court of Appeal had occasion to consider the meaning of “immigration law” again for the purposes of section 25 of the 1971 Act. It was held that sections 1(2) and 3(1)(b) of the 1971 Act constituted an immigration law for that purpose, and that the fact that they had not been identified as such in the proceedings in the Crown Court did not invalidate the conviction. This decision essentially applies the same definition to the term “immigration law” in section 25 as had Kapoor.

In Bina the Court of Appeal was considering a case in which it was alleged that there was a conspiracy to facilitate the breach of an immigration law of Spain, and other European countries, in order to secure the entry of Iranian nationals with the intention that they would then travel to the UK where they intended to claim asylum. There was evidence that the conspirators made a substantial financial gain by their activity, which includes the provision of false documents for use by the asylum seekers at different stages of their journey. It was commercial “people trafficking”. For reasons which are not clear from the judgment, the prosecution indicted two conspiracies, Count One alleged a conspiracy to breach section 25 and Count Two a conspiracy to breach section 25A. There were also convictions for two substantive section 25A offences, as Counts Three and Four. The judgment is on the application for leave to appeal against conviction. The part which is relevant to the present case related to Count 1, and was summarised and dealt with as follows by McCombe LJ giving the judgment of the court:-

“16.

We turn to the arguments, principally of law, raised on the proposed conviction appeal. First, it is submitted that the 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 s.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 s.25(1) offence, rather than as an offence under s.25A of the Act (helping an asylum seeker to enter this country). Thirdly, [an immaterial submission is summarised].

“17.

The first point can be dealt with in our judgment shortly. There is nothing whatsoever in s.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 an EU 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; [2012] 2 Cr. App. R. 11 (p.125), in which the judgment of the court was given by Hooper LJ [the court then set out the passage from Kapoor at [38] set out above].

“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 s.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 contravene s.25(1).”

The judge in his ruling dealt with submissions from the prosecution which sought to equate the present case with Bina and to distinguish Kapoor. The defence submissions were a mirror image of that. The defence position appears to have been that Kapoor is authority for the proposition that a person who arrives in the United Kingdom without leave but who intends to make a claim for asylum as soon as he can after arrival commits no offence under section 24 of the 1971 Act, wherever in the United Kingdom that arrival takes place. It is not, therefore, an offence under section 25 to facilitate him. The facilitator can only be prosecuted under section 25A which requires proof of gain.

We do not accept that analysis of the authorities. It appears to us that there is no doubt that both Kapoor and Bina were correctly decided, in their result although there is a tension between paragraph [38] of Kapoor and Bina. An offence under section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 is not a breach of an “immigration law” for the purposes of section 25. It is unnecessary to go beyond the plain words of section 25(2) of the 1971 Act to reach that conclusion. The passage contained in paragraph [38], which is the gravamen of this appeal, was not necessary to the decision. The decision of the Divisional Court in Sternaj was not binding on the Court of Appeal Criminal Division as matter of precedent, but it was certainly persuasive. It does not appear to have been cited to the court in Kapoor. We venture to suggest that if it had been the Court in Kapoor would probably not have departed from it in order to make a point in support of a conclusion which was clearly correct without it. At all events, it is open to us to treat paragraph [38] of Kapoor as obiter dicta and not to follow it. Kapoor was based on the fact that the asylum seekers would arrive on a flight and never leave the reserved part of the airport for the purposes of section

The distinction of Kapoor in Bina on the facts is not available to us in this case. Paragraph 3 of the Basis of Plea set out above puts that beyond doubt. However, paragraph 17 of Bina does not depend on that distinction. In Bina the offence was committed when a breach of Spanish immigration law was committed, and the issue of whether arrival in the UK would or would not be deemed to constitute entry into the UK for the purposes of section 11 and 24 of the 1971 Act simply did not arise for decision.

There is therefore no tension between Kapoor and Bina save as to the obiter dicta contained in paragraph [38] of Kapoor. On that question Bina is to be preferred since the rejection of the submission that the fact that the migrants were intending to claim asylum in the UK at some point long after the section 25 offence was complete in Spain was a defence to the allegation of conspiracy to breach section 25 of the 1971 Act was necessary to the decision and plainly correct.

Both Kapoor and Bina appear to us to have been correct in their result, and examination before the judge of the legal reasoning in those cases, as well as the factual positions, would have shown this, and also illustrated the correct answer to the present case. That answer is that the judge should not have given the ruling he did, and should probably not have given any ruling of law at that stage at all. Whether this appellant had a defence in law on the facts as he asserted them to be was a nuanced question which would have been better determined at trial in the light of the way in which he conducted that defence, and of the evidence which emerged about it. The question was whether there was any material before the court to show that the passengers on these journeys would have committed an offence under section 24 if they had carried out the plan which the appellant had facilitated by piloting the boats. It was later agreed in the basis of plea that they planned to disembark and surrender to the UK Border authorities and claim asylum immediately. Whether that constituted an offence under section 24 would depend on where they arrived in the UK. If it was at a port with an approved area, then they would not commit the offence. Consideration would also have to be given at trial to an alternative possibility (raised by the appellant in interview), which was that they actually intended to be picked up at sea and hoped to be brought into the UK by UK officials. We have heard no argument on whether that constitutes a breach of section 24 by those entering the UK in that way, and whether in consequence facilitation of it constitutes an offence contrary to section 25.

Because the live issue before us is whether the convictions are safe given that the appellant entered guilty pleas, it is necessary to say something further about the ruling.

This case demonstrates the care which is required when dealing with legal issues before trial. The law is summarised in Archbold at 4-151. The power to determine points of law before trial, other than in a preparatory hearing, is found in sections 39-40 of the Criminal Procedure and Investigations Act 1996. In Rv.Marshall Coombes and Eren [1998] 2 Cr App R 282, 285 this court said this:-

“Before considering that remaining ground we permit ourselves to make certain observations as to the procedure adopted in the lower court. It is beyond question that an appeal will lie from a conviction entered upon a plea of guilty where that plea is a

consequence of an earlier incorrect ruling in law. (See D.P.P. v. Shannon (1974) 59 Cr.App. R. 250, [1975] A.C. 717.) We were told that in this case the judge was asked to rule upon the relevant matters of law under section 40(1) of the Criminal Procedure and Investigations Act 1996 at a pre-trial hearing. We were further told by counsel that little thought had been given to the procedure to be followed. The statute enables rulings of law, binding unless and until discharged, to be made before a plea is entered or a jury sworn, which in appropriate cases is a great advantage. It will, however, be important to ensure that the facts are fully and accurately before the Court, something which cannot always be achieved without oral evidence. Where oral evidence is not required it is preferable, if not essential, for the agreed facts to be writtendown if only because the ruling may become the subject of an appeal.”

We agree with that, and would add also that it would almost always be wise for the court to have an application before it in which it was absolutely clear what it was being asked to do, by whom, and for what purpose. With great respect to the judge, it is not always clear from his ruling whether he was deciding a submission of no case to answer, or dismissal application, taking the prosecution case at its highest, or whether he was ruling that even on his own evidence, taken at its highest, the appellant had no defence in law to the charges he faced. He expresses his final conclusion in favour of the prosecution as one reached “on the height of the evidence of course – because this could still be a jury trial.” What was clear, though, is that he regarded factual matters as being of importance to the outcome. We can identify these as follows:-

The effect of the ruling in fact was that the appellant was advised to plead guilty to counts 1 and 3 because he was advised that the judge had withdrawn his defence to those counts, leaving only the de minimis issue open. As we have said, the appellant was advised that this was hopeless. This appeal is not based on the suggestion that this last piece of advice was incompetent, and it clearly was not. Steering the boat is a pretty clear case of facilitation, many people would think.

Mr. Marsland has helpfully analysed the appellant’s case as having three potential routes to acquittal. We accept that analysis and will adopt in below in expressing our conclusions. Mr. Marsland accepts that the ruling removed the first two of them but submits that it left the third open for the appellant to run if he wanted to. That is a controversial matter to which we shall have to return. It explains the withdrawal of the concession made before the full court by his predecessor.

Those elements were

Mr. Marsland relies on R v. Asiedu [2015] 2 Cr App R 8, and submits that the appellant should have relied on the third of these points before the jury, and says that if convicted he could appeal on the basis that the first and second was wrongly taken from him by the judge. Pleas were instead offered on a reduced basis, in which count 2 was left to lie on the file and his Basis of Plea was accepted. It is submitted that the appellant took a beneficial course to him and should now be held to it.

This would be more persuasive if it had been the prosecution position consistently throughout these proceedings. However, the Form RN was submitted to the Court of Appeal in November 2020 and was drafted by counsel who appeared for the prosecution before the judge. It makes the concession recorded by the full court and quoted above. This, we think, reflects the way in which the matter was dealt with by the prosecution in the Crown Court as well. Having succeeded on their argument, they took the view that the appellant had nowhere to go but to plead guilty.

We asked Mr. Marsland whether the Basis of Plea amounted to an admission of an offence in law. He said that it did, although accepted that the ruling which had been secured by the prosecution creates a difficulty in that submission. That is a realistic position in our judgment, because the fact is that the document does not set out precisely

Mr. Brewer agrees with Mr. Marsland’s analysis of the legal issues so far as the legality of the arrival of the migrants in the UK is concerned. He now advances the submissions we summarise at [62]ff below on this part of the appeal, which go to the consequences for the safety of the conviction of the guilty pleas following the judge’s ruling.

He points to paragraph 2.2 of the Defence Case Statement, set out above, and paragraph 5 and following of the prosecution document of 8 August 2020, as defining the issue for the judge. It was clear that the prosecution submitted that arrival into UK waters without documents would amount to an offence. This would not and could not be right, he says, but the judge so ruled. He says that the appellant’s plea to the section 24 offence was entered in error.

He thus submits that the effect of the ruling was to remove all viable defences from the appellant because the one which it left open, whether the conduct amounted to facilitation, was not arguable. The admitted conduct of the appellant by piloting the boats amounted to facilitation as a matter of law. This line of defence, called “de minimis” by the judge, was, we are told, not run before the jury because the appellant was advised it was hopeless. This distinguishes the present case from Asiedu.

If that is wrong, then it is submitted that the conviction is unsafe relying on the approach to convictions based on guilty pleas in R v. Boal [1992] QB 591. He was deprived by the judge’s ruling of a defence which would very probably have succeeded and the conviction is therefore unsafe. The point is made that there is no evidence that the boats were not heading to a recognised port of entry, although, inconsistently with this, the suggestion is also made that it was obvious to the migrants that they would be interdicted during the crossing. If that is true, then they may not actually have been heading anywhere except to such place as they would be picked up by the UK authorities and led to safety.

We have had to consider a line of authority culminating in R v. Asiedu [2015] EWCA Crim 714; [2015] 2 Cr. App. R. 8 as to the consequences of the fact that these pleas followed this ruling. In this respect the position has moved on from that before the full court, the Crown having withdrawn its earlier concession.

In Asiedu, Lord Hughes, giving the judgment of the Court of Appeal Criminal Division, said that there were two principal situations where a guilty plea is no bar to an appeal. The second is where the proceedings against the appellant were an abuse of process such that they should not have been taking place at all. This does not arise here. As to the first category he said, at paragraph 20:-

“It does not follow that a plea of guilty is always a bar to the quashing by this court of a conviction. Leaving aside equivocal or unintended pleas (which do not concern us here), there are two principal cases in which it is not. The first is where the plea of guilty was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury. So, if the judge rules as a matter of law that on the defendant’s own case, that is on agreed or assumed facts, the offence has been committed, there is no arguable defence which the defendant can put before the jury. In that situation he can plead guilty and challenge the adverse ruling by appeal to this court. If the ruling is adjudged to have been wrong, the conviction is likely to be quashed. Contrast the situation where an adverse ruling at the trial (for example as to the admissibility of evidence) renders the defence being advanced more difficult, perhaps dramatically so. There, the ruling does not leave the defendant no case to advance to the jury. He remains able, despite the evidence against him, to advance his defence and, if convicted, to challenge the judicial ruling as to admissibility by way of appeal. If he chooses to plead guilty, he will be admitting the facts which constitute the offence, and it will be too late to mount an appeal to this court. For this important distinction see R. v Chalkley [1998] 2 Cr. App. R. 79; [1998] Q.B. 848 , which on this point is clear law. That was a case in which the defendants had failed to persuade the trial judge to exclude evidence pursuant to s.78 of the Police and Criminal Evidence Act 1984 , and, faced with evidence which they judged to be difficult to overcome, had pleaded guilty, indeed in explicit terms which made it clear that they now admitted the conspiracy to rob which was charged. Giving the court’s judgment, Auld LJ said this at 94 and 864:

“Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstance would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged.”

We would add a third such category, which can perhaps be viewed as an extension of the first. Where a person has pleaded guilty following legal advice which deprived him of a defence which would probably have succeeded that is a proper ground for regarding the conviction as unsafe, see R. v. Boal [1992] 1 QB 591, which has been frequently applied: see for example the recent case of R. v. P.B.L. [2020] EWCA Crim 1445. The test for this approach to guilty pleas in this court is not the same as Chalkley. Chalkley requires a situation where the ruling on law means that the appellant has no defence

In this case, there was no focus on the precise means by which the migrants would arrive in the UK and whether they would be deemed not have to have entered it at that point by reason of section 11 of the Immigration Act 1971. On one view of the facts, the boat would land wherever it landed and the occupants would enter the UK unlawfully at that point. They would not be able to arrive at a port and then:-

“…remain in such area (if any) at the port as may be approved for this purpose by an immigration officer..”

Section 11(1) of the 1971 Act would not on that basis operate to deem that their arrival by boat did not amount to entry into the UK. They would commit the summary offence of entering the UK without leave.

In order to show that this provision assisted him, the appellant would have to persuade the court that he intended to deliver the occupants of the boats directly into the approved area of a port. Given the circumstances of these journeys it is easy to see why he might encounter a problem doing that. These boats are very difficult to steer in the conditions in the Dover Straits for which they are completely unsuitable, and the task of entering an approved area of a port would have been very difficult. It would not have been assisted either by the evidence that when intercepted these boats were not heading towards any port with an approved area, or any port at all. Further, his case is that he was only steering the boats with others on the first occasion, and because no-one else could do so on the second occasion. He suggested in interview that on the first occasion he was told to aim for a particular landmark on shore but that is all he said about his intended course. That account is quite inconsistent with the pilot of the vessels having a fixed plan to aim for a particular port with an approved area which he could reach and enter. Had that been the plan, it is likely, the jury may think, that he would have mentioned in interview which port he was aiming for.

The alternative line of defence identified in interview was that actually the point at which he was steering was a point at which it was expected that the UK authorities would intercept the boat and pick up the migrants. If it was with the intention that this should happen that the appellant steered the boats, then the trial court would have to consider whether that amounted to facilitation of a section 24 offence by the others in the boat.

Although the appellant’s guilty plea on 31December 2019 to an offence under section 24 appears to close off these lines of defence at least in respect of the second journey, the judge did not fully articulate its evidential significance. By section 74 of the Police and Criminal Evidence Act 1984 the conviction was evidence that the appellant had entered the UK unlawfully on the second occasion. By extension that evidence applied to everyone else in the boat in that occasion because they were all, as it might be put, in the same boat. However, even as far as the appellant’s guilt is concerned that conviction is not conclusive. It proves that his entry was unlawful “unless the contrary is proved”, see section 74(2). The judge made no ruling on its evidential status so far as the guilt of others in the boat are concerned in December, and the conviction does not relate to the first journey at all. The judge was therefore wrong in law to hold, to the extent that he did, that the effect of the earlier conviction was to remove the first two lines of defence from the appellant.

So far as the first two lines of defence are concerned, these were withdrawn by the ruling of the judge and on a wrongful basis. Here, there is no requirement that the defence which was wrongly withdrawn would probably have succeeded. It might have done, or it might not. It appears to us that a closer focus was required than occurred in the Crown Court on how in fact the migrants intended that their journey would end, and on the lawfulness or otherwise of that conduct.

That is the position so far as the first two lines of his defence are concerned. His third, what was called the de minimis point, was and is regarded as hopeless on the facts by his counsel. His pleas to counts 1 and 3 did not deprive him of a defence which would probably have succeeded in that respect and given that the Boal test applies here, the loss of that line of defence (which the judge left open) cannot found an appeal. However, we do not accept the prosecution submission that the fact that this line of defence was left open by the judge when he wrongly removed the real defences in this case means that the convictions must be regarded as safe. We do not, of course, doubt Chalkley and Asiedu. On the contrary, we have no doubt they are right. But we do consider that the lack of clarity on the facts of this particular case about the scope and meaning of the ruling is important. The prosecution position, which was until recently that it did close down all possible lines of defence, illustrates precisely the lack of clarity this appellant faced when deciding how to respond to the ruling. We do not consider that it is in the interests of justice to allow the prosecution to withdraw the earlier concession and to run the present argument. The time for clarity about that was before the pleas were entered.

This could be viewed, therefore, as a mixed case where the three lines of defence were removed by a combination of correct legal advice and an incorrect legal ruling. Although the judge left one line of defence open, in truth he deprived the appellant of the only viable line of defence. Viewed in this way, the case falls within Chalkley rather than Boal. When we say “viable” we do not hide the difficulties it involved from the appellant’s point of view but as we have said, where the defence is removed by an erroneous legal ruling by the judge, its factual merits are usually immaterial: the appellant was entitled to the verdict of a jury on the factual issues.

For these reasons we concluded that the appellant’s convictions were unsafe and should be quashed. The question of whether to order a re-trial is complex, largely because the appellant is due for release from his sentence on 14 April 2021. If convicted again after a trial he might receive a somewhat longer sentence because there will be no credit for a plea. If he is remanded in custody pending the re-trial he will certainly have served his sentence before that second trial starts. There is a real possibility that he would be held in this country pending trial for far longer than it will take to deport him if there is no re-trial. We therefore invited the Crown to consider the public interest in a re-trial in consultation with the Home Office who will be able to assist with explaining the practical consequences of a conviction at a re-trial and the likely course of events if no re-trial is ordered. The lists at Canterbury are likely to be full and there is a substantial backlog of cases awaiting trial throughout the country. We will receive these submissions and decide the question now.

The court directed a re-trial which was held at Canterbury Crown Court and resulted in the acquittal of the appellant on 13 May 2021.

The order postponing publication of this judgment until the conclusion of the re-trial has therefore come to an end and this judgment may now be published.

A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained under the powers conferred by Schedule 2 to this Act or section 62 of the Nationality, Immigration and Asylum Act 2002 or on immigration bail within the meaning of Schedule 10 to the Immigration Act 2016.

In this Act “disembark” means disembark from a ship or aircraft, and “embark” means embark in a ship or aircraft; and, except in subsection (1) above,

Except in so far as the context otherwise requires, references in this Act to arriving in the

any stamp purporting to have been imprinted on a passport or other travel document by an immigration officer on a particular date for the purpose of giving leave shall be presumed to have been duly so imprinted, unless the contrary is proved;

proof that a person had leave to enter the United Kingdom shall lie on the defence if, but only if, he is shown to have entered within six months before the date when the proceedings were commenced.