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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mobarak, R. v [2022] EWCA Crim 596 (08 February 2022) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2022/596.html Cite as: [2022] EWCA Crim 596

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice
		Tuesday, 8 February 2022

LORD JUSTICE EDIS:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. Accordingly, we decline to deal with the question in the summary way which has been proposed to us.
9. 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.
10. 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.
11. 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.

Mr Brewer, how long will it take you?

MR BREWER: Mr Lord, it places us in a little difficulty because those who currently represent Mr Bari do not have a civil legal aid contract. It may well be that alternative representation would have to be arranged. We are not in a position to assist the court with how long that is likely to take. Perhaps, in the first instance, we could ask for eight weeks for matters to be progressed and, if necessary, make further application if further time is required.

LORD JUSTICE EDIS: I think that takes you to 5 April.

MR BREWER: Thank you.

LORD JUSTICE EDIS: So that is the date that will be in the order. Obviously, Mr Bari will need to identify solicitors who will act for him. And a transcript of this ruling, such as it is, will be available for their assistance. Mr Brewer, you have been involved in this process to some extent. It would obviously be highly desirable from the point of view of public funding that as many of these cases should be grouped within this judicial review where it is possible in order to relieve the Criminal Cases Review Commission of work that they may not have to do.

MR BREWER: Yes.

LORD JUSTICE EDIS: We will see how it goes. Thank you very much. I do not think there is anything to say about the judicial review.

MR JOHNSON: I know these proceedings have been reserved to your Lordship as the presiding Lord Justice. Is the judicial review reserved in the same way?

LORD JUSTICE EDIS: No, no. I do not think so. I think that will be dealt with just in the ordinary way. I expect it will turn out to be the Divisional Court, two judges. I would not wish to tie the hands of the listings as to that in relation to that.

MR BREWER: Mr Houli, who sits behind me, has instructed me in relation to all of these appeals, both Mr Kakaei originally and Mr Rakei's case now and five of the seven cases which appear before the court. A very limited representation order has been extended at his request by the registrar, simply to allow him to contact those that he represents to establish which language was required for the purposes of interpretation. May I respectfully invite the court to extend that order a little further, to be taxed? A great deal of work has been done. He did not represent any of these individuals in their original proceedings and, therefore, did not have the benefit of a representation order for the appeals. He has had to contact these individuals with an interpreter, visit them - almost all in custody - and then conduct inquiries and other inquiries as the case has progressed to keep them abreast of their various cases. In my submission it would be appropriate for the work that has been done for a representation order to be properly assessed, to be extended to that work that has been done.

LORD JUSTICE EDIS: The work that has been done has not been drafting legal documents for the purposes of the appeals or applications.

MR BREWER: No.

LORD JUSTICE EDIS: You have done that.

MR BREWER: Of course.

LORD JUSTICE EDIS: It has been communicating with the appellants which has not been straightforward for reasons you have explained.

MR BREWER: Yes.

LORD JUSTICE EDIS: Does the representation order already cover that? Or is it - - - - -

MR BREWER: My understanding is - and forgive me if I am mis-speaking - the representation order was sought in correspondence with the court's administration and a limited order, as I understand it, was extended simply for the purposes of contacting the appellants for the purposes of establishing their language so that proper interpreters could be booked for today. That was done, but a great deal of other work has been done, both in initial conferences with these individuals in custody with the assistance of interpreters to establish whether or not they had arguable appeals and then thereafter corresponding with the original trial teams to get some of the files, counsel's files, etc. So a substantial amount of work has been done, particularly given the fact that there has been quite a large number of these appellants to manage (if I can put it like that).

LORD JUSTICE EDIS: We are just talking about these seven appeals - - - - -

MR BREWER: Yes.

LORD JUSTICE EDIS: - - - - - in today's list. The issue in relation to Kakaei, it has already been - - - - -

MR BREWER: Of course, yes.

(Bench retire)

LORD JUSTICE EDIS: The representation orders in respect of all seven appeals will be varied to a limited extent. We will make it clear that in each case the solicitor who has had the conduct of them under a limited representation order will be allowed three hours of conference time with each appellant; in addition, travelling time to and from prison in respect of those who were visited in custody together with expenses associated with those journeys.

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