R v Altaib Alfatih Mobarak & Ors

There are before the court seven applications for leave to appeal against conviction for offences of facilitating the unlawful entry into the United Kingdom of persons who were not citizens of the United Kingdom or of the European Union, contrary to section 25 of the Immigration Act 1971.

The applications all raise the same point which arises out of the decisions of different constitutions of the Court of Appeal (Criminal Division) in, first, R v Kakaei [2021] EWCA 503 and, secondly, R v Bani and Others [2021] EWCA Crim 1958. In those decisions the court set out at length the reasoning which underpinned the conclusion that an issue had not been properly left to the jury in those trials. The issue concerns whether the act of facilitation was an act which facilitated the unlawful entry of a person into the United Kingdom as opposed to the arrival of that person into the United Kingdom. That distinction is a matter of importance because of the terms of section 11 of the 1971 Act. These cases, it is accepted on behalf of the prosecution, are in law indistinguishable from the cases in which convictions were quashed in those two earlier decisions. For that reason, the prosecution does not oppose any of these appeals.

The decision as to whether a conviction is or is not safe is of course a matter entirely for the court, and the court is not bound by the stance taken by the prosecution in response to any appeal. In these particular circumstances the stance taken by the prosecution is plainly right. The legal issues have all been settled. The trials were in all relevant respects indistinguishable from the trials which resulted in the convictions which have already been quashed.

It is unnecessary to set out the facts of these cases, the events which took place at the trials or the reasons why the convictions are unsafe. All of that can be divined by reading the court's earlier judgments.

Therefore, in each of these cases we grant leave to appeal. We quash the convictions. The result of that is that the sentence appeals, where they have been brought, fall away. The prosecution does not seek an order that any of these cases be retried and, accordingly, these appeal proceedings are concluded and the Crown Court proceedings at which they arose are likewise concluded.

We now move from the appeal to consider, sitting now as a Divisional Court of the Queen's Bench Division and not as a constitution of the Court of Appeal (Criminal Division), the conviction of Nima Bari for the summary-only offence created by section 24 of the 1971 Act. Mr Bari was charged with that offence very soon after he landed in the United Kingdom. He appeared before the justices and pleaded guilty. He was committed for sentence in relation to it under what was then section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. That conviction, and others like it in cases other than those listed before us today, is, it is said, tainted by the same error of law which has caused all of the section 25 convictions to be quashed.

We are invited to consider dispensing with service of the proceedings in an application for judicial review abrogating all the time requirements and quashing that summary conviction now without further ado. Although that is a tempting course, it appears to us that this may give rise to an issue of some technicality and some importance. It would be highly desirable in the interests of preserving the resources of the Criminal Cases Review Commission, apart from anything else, if these apparently defective summary convictions could be disposed of by an efficient use of the power of the court. However, it is to be remembered that this was a conviction based on a guilty plea. The court of Appeal (Criminal Division) can, and sometimes does, quash convictions following guilty pleas where it finds that they are unsafe. The Divisional Court, considering the lawfulness and regularity of proceedings before the Magistrates' Court, does not generally concern itself with the safety of any conviction. It generally applies a different test. Whether that produces a different result appears to us to be a matter to be approached with some caution.

Accordingly, we decline to deal with the question in the summary way which has been proposed to us.

What instead we intend to do, sitting as a Divisional Court, is to grant leave to Mr Bari to bring a challenge to his conviction before the Magistrates' Court by way of judicial review proceedings and to extend time for him to do that conditional upon him lodging a claim form within a certain period of time which we will fix having heard submissions from Mr Brewer who may be concerned about the availability of legal aid for such a challenge and the time it may take to procure it. We will resolve that shortly.

Generally speaking, in judicial review proceedings following a summary process in the Magistrates' Court resulting in a criminal conviction, the court will be looking for some error of law made by the court. In this case the error of law was made by those advising Mr Bari. That may have induced an error by the court which ought, had it been properly informed as to the law and received submissions based upon Mr Bari's position as truly analysed, to have decided to send the section 25 offence to the Crown Court for trial under section 51 of the Crime and Disorder Act 1988 while sending the summary offence with it under the provisions of the same section of the same Act. It may be that its failure to do that as opposed to committing for sentence after a plea of guilty was an error of law. It may be that other errors of law may be identified by those who are considering this issue with the care which it will receive.

So in the judicial review proceedings the order will be that (1) Mr Bari has leave to bring a claim for judicial review challenging the lawfulness of his conviction under section 24 of the 1971 Act; (2) his time for lodging a claim form in relation to that claim is extended.