As front page headline news goes it would be hard to beat thefollowing: St Philips is extremely pleased to announce that Mr TimothyRaggatt QC has now joined the Criminal Group as a permanent member.His reputation and standing within the legal community speaks for itselfand it is with great pride that we offer him our warmest welcome.

In this the Spring issue we hope to provide you with a diverse selectionof articles.

Andrew Lockhart begins by setting out the principles that both sidesneed to keep in mind when dealing with the tricky issue of introducinga co-defendant’s plea of guilty as evidence against the another, beforeguiding us safely through the mine-strewn route to its admissibility.

Malcolm Morse and Tim Green collaborate in an analysis of abuse ofprocess so far as it relates to confiscation hearings.

Ben Williams, with customary precision, gives a useful insight into thepresentation of forfeiture hearings in the Magistrates Court along withan exposition of the recent authorities that are relevant to it.

Shane Crawford offers up the first of his two-part analysis into the lawrelating to people smuggling and people trafficking. The second part willappear in the next edition.

The only thing that remains is to thank all of those who were able toattend our New Year’s Party at the Orange Studio at the end of January2009 and to remind all of those who couldn’t make it, to underline it intheir diaries next year.

Happy Reading.

Ben MillsEditor

St Philips Criminal Law News

“A leading set on the Midlands Circuit. Home to a number of the region’s leading Criminalpractitioners”.(Chambers and Partners)

Spring 2009 Issue 4

Crime Brief

WelcomeWelcome to theSpring editionof Crime Brief.As Christmassurprises go,being asked totake over theeditorship of

this magazine ranks far, far, above thecartoon reindeer jumpers, novelty tiesand dried fruit baskets that I receivedover the same period. My quiet calmabout the task came from knowing forcertain that, no sooner had the last bitof turkey been squashed into a mid-afternoon Boxing Day sandwich, thekeen minds of the St Philips CriminalGroup were already turning towardstheir forthcoming contributions to thisNewsletter. To stretch the festivereferences to the edge of breaking: it’sa cracker.

Having been passed the baton byAndrew Jackson I hope to maintain thehigh standards which he promoted andthank him for all his efforts.

Crime Brief | St Philips Criminal Law

ADMITTING THEGUILTY PLEAS OFOTHERSAndrew Lockhart

This articles aims to examine the thornyand vexed subject of the admission intoevidence of the pleas/convictions ofothers not before the Court. These can beco-defendants in a joint enterprise, co-conspirators in a conspiracy allegation orsometimes simply persons whoseconvictions for other offences arenecessary for the proof of the allegationagainst the accused on trial. Perhaps theconviction of the burglar on the trial ofthe handler.

The most important point is that this typeof evidence should not be admittedunless it is truly relevant to an issue in thecase. Where it is admitted carefuldirections as to the proper use of theevidence are vital to avoid unfairness andprejudice.

THE LAW

So far as is relevant, section 74 of thePolice and Criminal Evidence Act 1984provides:

"(1): In any proceedings the fact that aperson other than the accused has beenconvicted of an offence ... shall beadmissible in evidence for the purpose ofproving ... that that person committedthat offence, where evidence of hishaving done so is admissible, whether ornot any other evidence of his havingcommitted that offence is given."

(2) In any proceedings… he shall be takento have committed that offence unlessthe contrary is proved.”

Prior to its amendment by the CJA 2003,section 74(1) and (2) not only providedfor proof that a person other than theaccused committed an offence by proofthat he was convicted of it, but alsostipulated when such proof could begiven, this being where it was “relevant toany issue in the proceedings in question”.As amended, subsection (1) no longerhelps as to when evidence of a personother than the accused committed an

offence is admissible, merely providingthat evidence that such person wasconvicted of the offence is admissiblewhere evidence that he committed theoffence is admissible, for the purpose ofproving that he did indeed commit it. Thiscould be seen as being a somewhatcircular statement.

Admissibility in this area will now dependon a combination of the general law andof the terms of the Criminal Justice Act2003.

Where evidence that a person other thanthe accused committed an offenceproperly amounts to evidence of badcharacter falling within section 98 of theAct, its admissibility will generally begoverned by section 100 of that Act.

Such evidence will not, however,constitute bad character evidence withinthese provisions if it “has to do with thealleged facts of the offence” with whichthe defendant is charged, see section 98.In essence, therefore, it is clear that inalmost all circumstances where it isessential (or desirable) to prove the guiltof a person other than the defendant of aparticular offence, evidence tendered forthat purpose is directly relevant to theguilt of the defendant on the charge thathe faces and is thus not evidence of badcharacter that is subject to section 100.Rarely therefore will any applicationunder section 100 be necessary; theadmissibility of the evidence will, in thevast majority of cases, fall outside the badcharacter provisions.

Furthermore, where there is evidence of ajoint enterprise and/or a conspiracy, it hasalways been legitimate at common law toprove against one defendant the acts anddeclarations of his jointventurers/conspirators done infurtherance of the commonenterprise/conspiracy. This rule was savedby section 118 of the 2003 Act andevidence of such acts and declarations isclearly not to be subject to therequirements of section 100.

Thus, in a run of the mill case, theprovisions of the 2003 Act will not berelevant. Of course there may be caseswhere special circumstances apply tomean that other offences by a personother than the accused are relevant tothe issues in the instant case but are notstrictly facts to do with the facts of theinstant alleged offence; if this is the casethen an application under section 100will have to be made. This might be thecase in a fraud where, part of theallegation being the production of falsedocuments, a defendant could be shownon observations to associate on a regular

basis with a known professional forgerwith convictions for counterfeiting. Insuch a case the forger’s counterfeitingconvictions would not be a part of thefacts that have to do with the allegedfacts of the offence and thus wouldarguably be evidence of bad characterrequiring an application under section100.

In the ordinary case therefore theprosecution will simply apply to adducethe evidence of the pleas ofguilty/convictions of the other personspursuant to section 74 of PACE 1984, nospecial form of application is prescribed.Often the Court will require skeletonarguments; it is best practice for them tobe provided if only to focus the minds ofall involved on the issues that theevidence is said to relate to.

Whilst section 74 of the Act does not setout any test of admissibility it is arguedthat in order to be admitted at trial it isnecessary for the Court to examine withcare the issues in the case and then todecide if the adduction of the evidence ofthe plea of guilty/conviction goes toprove one of the issues or otherwise.

It is vital that advocates and Courts carryout a stringent assessment of relevancebefore pleas/convictions of others areadmitted into evidence in a trial. Someguidance can be found in the authorties.

In R v Robertson 85 Cr App R 304 it washeld that an issue in the case extends toevidential issues arising in the course ofthe proceedings. Thus, on any allegationof joint enterprise, whether charged as aconspiracy or as a substantive offence, ithas always been open to the prosecution,provided there is prima facie evidence ofthe joint enterprise, to prove against oneparticipant the acts of his joint venturersin furtherance thereof. Where the jointventurer has been convicted, his guiltmay be established by the simpleexpedient of proof of the convictionunder section 74. Where, therefore, R wascharged with a conspiracy to burgle withX and Y, the commission of variousburglaries by X and Y was relevant to theissue of whether there was a conspiracyto burgle; the fact that they hadcommitted those burglaries could beestablished by proof of their convictions.Where the allegation is of jointparticipation in a particular offence withX, and there is evidence to connect theaccused with X shortly before, and shortlyafter the commission of the offence, thecommission of the offence by X is plainlyrelevant to the issue of the accused'sguilt, and its commission by him may beproved by proving his conviction.

Where the allegation is one of jointenterprise (conspiracy) with persons notbefore the Court or charged (others orothers unknown), there is unlikely to beany unfairness in admitting the evidenceof the plea of guilty of a co-defendant(member of the joint enterprise) who haspleaded guilty. By reason of the admissionof the plea there is no necessary inferencethat any of the other defendants is guilty.R v Lunnon 88 Cr App R 71.

The law has recently been restated by theCourt of Appeal in the case of R v Smith[2007] EWCA Crim 2105. In that case theevidence of conviction was held to beinadmissible, there were only 2 accusedand if one was guilty then it couldscarcely be said that the other personwith them at the time was not. The Courtreviewed all of the earlier authorities andmade it plain that the law as stated in R vKempster (1990) 90 Cr App R 14 was stillgood law. In particular the Court said thatthe approach in the line of caseculminating in R v Kempster was stillcorrect saying that: “It remains extremelyrelevant what the issue is in the casebefore the trial court. It remains ofconsiderable importance to examinewhether the case is one in which theadmission of the plea of guilty of a nowabsent co-defendant would have anunfair effect upon the instant trial byclosing off much, or in some cases all, ofthe issues which the jury is trying.”

The Court went on to state that: “Itremains a proper approach, we aresatisfied, that if there is no real questionbut that the offence was committed bysomeone and the real issue is whether thepresent defendant is party to it or not,evidence of pleas of guilty is likely to beperfectly fair, though of course each casedepends upon its own facts. However, italso remains true that such evidence maywell be unfair if the issues are such thatthe evidence closes off the issues that thejury has to try.”

Thus what is necessary is a carefulanalysis of the issues in the case beforeany decision as to the admissibility of aplea of guilty/conviction is made.

It will often be the case that, as in thecase of Smith a plea of guilty of a singleco-accused may have the effect ofclosing off many of the issues that thejury have to decide. On the other hand, ina multi-handed case, the evidence of thepleas of guilty will not have that effectbut will merely form a part of theevidential picture.

Plainly what prosecutors will seek toargue is that this evidence, if admitted onthe trial of the other joint venturers, does

not expressly or by necessary inferenceimport the complicity of the others in thedock but it merely forms a part of theevidential picture.

For defence advocates it will beimportant to argue that the evidencedoes close off issues for the jury and/orthat the prejudicial effect of the evidenceoutweighs its probative value. In caseswhere there are only two or threedefendants this may be decisive evidence,such as in a theft trial where an incident(said to be the theft) involving twopersons is seen on video and one haspleaded guilty. Should the prosecutionsucceed in getting this plea before thejury then it will be clear that the videoshows a theft taking place. It will be nighon impossible for the defendantcontesting the matter to have a fair trialbecause if he is there and any part of theincident the case is all but over.

It is noteworthy that even if the evidenceof convictions is admitted section 74 (2)does allow for the defence to prove thatthe person whose conviction has beenproved did not commit the offence.Whilst the situations where this will be ofassistance are likely to be limited it is notbeyond the bounds of possibility that thisprovision may be of assistance to adefendant faced with the admission ofsuch evidence. It might, for instance, bepossible to adduce evidence that a co-defendant pleaded guilty not because hewas guilty but because he was advisedthat he would receive a lesser sentence ifhe did plead. Of course, in all probability,that person would be required to comeand give evidence. Alternatively it mightbe possible to show that a technicaldefence could and ought to havesucceeded in that other person’s case.

If the evidence is allowed in thenadvocates should be careful to assist thelearned Judge in coming to a form ofwords to be used in summing up. It issubmitted that there should never needto be a direction setting out that the pleais before the jury just to explain whathappened to others involved in theoffending. If this direction is or may beappropriate it is probably indicative ofthe fact that the evidence has beenwrongly admitted into evidence.

The directions given should focus theminds of the jury on the fact that theevidence is before them because it isrelevant to a certain issue and then thisshould be explained to them in clearterms with a clear warning about the usethat they can put the evidence to.

In the event that the Court has decidedthat the evidence of the plea should notbe before the Court then the appropriatedirection must be one that drawsattention to the fact that they should notspeculate about what has happened inthe other persons case and that theyshould concentrate on the case of thedefendant in their charge and decidewhether the evidence before them makesthem sure of guilt or not.

Stringent application of these principlesshould avoid the pitfalls of the wrongfuladmission before the jury of evidencethat is irrelevant and highly prejudicial.

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Crime Brief | St Philips Criminal Law

BENEFIT ABUSE Part 1Tim Green

Experienced criminal practitioners told byand an opponent “this is an abuse ofprocess” will usually pass a loud andweary sigh. The doctrine of “abuse”, as itis colloquially known, has a relationshipwith counsel similar to that a rogue haswith patriotism; it is the place of lastrefuge. However, the power to stay anindictment because a particularprosecution would be “vexatious oroppressive” remains a real and importantsafeguard for an exceptional category ofcases (Hui Chi-Ming v R [1992] 1 AC 34).The purpose of this article is to considerhow the doctrine has developed and howit is being applied in the novel context ofconfiscation proceedings.

The House of Lords “found” the doctrineof abuse of process in 1964. The leadingauthority is Connelly v DPP [1964] AC1254. This case concerned the power theprosecution had to try a person twiceupon the same evidence for the sameoffence.

Lord Morris held, “The power (which isinherent in a court's jurisdiction) toprevent abuses of its process and tocontrol its own procedure must in acriminal court include a power tosafeguard an accused person fromoppression or prejudice. That power, as isdemonstrated by a stream of authority towhich I will refer, has, however, neverbeen regarded as endowing a court witha power to say that evidence given inreference to one charge may not berepeated in reference to another anddifferent charge. Nor does it enable acourt to order that a prosecution bedropped merely because of some ratherimprecise regret that an accused shouldhave to face another charge.”

More recently in the case of Attorney-General of Trinidad and Tobago v Philip[1995] 1 AC 396 the Privy Councilconsidered the power to stay proceedingin the context of the Crown’s lawfulpower to grant pardons. Lord Woolf held,

“The common law has now developed aformidable safeguard to protect persons

from being prosecuted in circumstanceswhere it would be seriously unjust to doso. It could well be an abuse of process toseek to prosecute those who have reliedon an offer or promise of a pardon andcomplied with the conditions subject towhich that offer or promise of a pardonwas made. If there were notcircumstances justifying the state in notfulfilling the terms of its offer or promise,then the courts could well intervene toprevent injustice.”

Since then the doctrine has been appliedin wide variety of ways with whichreaders will probably be familiar. Twocommon themes emerge from thereported cases. A that a stay will only begranted if:

a defendant could not receive a fair trial(e.g. evidence destroyed, bad faith onbehalf of investigators, evidence andallegations too old etc) and/or,

to try the defendant would be unfair (e.g.a promise by the prosecutor not toproceed, the defendant has already beentried and acquitted of the same offence,entrapment etc).

There is also discernable a third theme. Inthe authors’ experience an application tostay the indictment as an abuse ofprocess almost always requires goodevidence by the defendant that there hasbeen some deliberate misuse of executivepower by investigator or prosecutorwhich cannot be remedied by the trialprocess. Until very recently it was rare, ifnot completely unknown, for thedefendant to discharge this burden if theinvestigator had been efficient andhonest, and the prosecutor has acted in atimely fashion and with good faith.

Thus in Environment Agency v Stanford[1998] ELR 286 the Magistrates heardevidence that the respondent had aperfectly legitimate expectation thecompany would not be prosecutedunlawfully storing waste. Hearing theappeal by the Environment Agency LordBingham CJ held that,

“Time and again parties, relying on theHouse of Lords' decision in Bennett, invitethe lower courts to exercise anill-defined roving discretion to stayaccording to those courts' judgment ofwhether a prosecution is wise and well-advised or unwise and ill-advised. It isnecessary to stress that that is not anissue for the court.”

On the other hand, if the prosecutiongives an unequivocal promise that personwill not be prosecuted, and the defendantacts to his detriment relying upon thispromise and the prosecution seeks to

ignore its’ earlier promise, then this badfaith may justify a stay as an abuse ofprocess [Abu Hamza [2007] 1 Cr App R27].

The emerging doctrine of abuse ofprocess in relation to confiscationproceedings is a new departure. Not onlyhas the Court of Appeal developed thedoctrine to apply it to the new context ofconfiscation, the Court of Appeal hasheld that it may amount to an abuse ofprocess to proceed with confiscation evenwhere the prosecution have done nomore than in good faith apply the letterof statute (POCA 2002), albeit with direand perhaps unforeseen consequences forthe defendant.

BENEFIT ABUSE Part 2Malcolm Morse

“Once the Crown decides to invoke theconfiscation process, the making of anorder is mandatory, and its amount isarithmetically determined but cannot bemoderated by judicial decision.... It hasbeen accepted before us by the Crownthat that makes the decision to invokethe confiscation process a critical one.... itis not appropriate to seek confiscation inevery single case where some benefit hasbeen obtained by crime.... Accordinglythere is an individual decision to be madeby the Crown in each such case.... [and]an individual exercise of judgment... Thecourt retains the power to stay anapplication for confiscation, as any othercriminal process, where it amounts to anabuse of the court’s process. In thepresent context, that power exists whereit would be oppressive to seekconfiscation. That has been recognised inseveral cases and has been acceptedbefore us.”

These are some of the words of Hughes LJ(Smith J and Judge Loraine-Smith agreed)in Morgan and Bygraves [2008] EWCACrim 1323 (paras 26 and 27). Thequotation would continue to citeMahmood [2006] 1 Cr App R (S) 570 at[26], Hockey [2007] EWCA Crim 1577 at[18],Nield [2007] EWCA Crim 993 andFarquhar[2008] EWCA Crim 806 at

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[12].The passage continues by pointingout that in those cases (a) no abuse wasestablished and (b) they concernedinstances where the Crown hadundertaken not to seek confiscation ifthere were repayment.

This is quite easy to see. If the Crownforswears some undertaking on which acitizen has relied and acts contrary to itsundertaking so that the citizen isdisadvantaged then everyone would hopethat a power did exist in the court toprevent the Crown from proceeding. Ifthe court cannot do it, who could? Thisline of thought sits comfortably with thecases which decide that the Court canprevent the Crown from takingadvantage of its own illegal acts (such asthe kidnapping cases like Bennett [1994]or other illegal conduct by the authoritieslike Grant [2005]). In other cases, thecourt has intervened where theprosecuting authority has acted legallybut unconscionably, so as to create anaffront to Justice. In each such case, thecourt has held that it would be wrong toallow the Crown to proceed to trial at all,however fair such a trial could be. Inother cases again, the courts have in thepast intervened where circumstancesmake the holding of a fair trialimpossible.

Confiscation, however, is an order that anAct of Parliament orders the court tomake once simple preconditions(principally a conviction for crime) areestablished. Ever since confiscation wasfirst introduced for drug trafficking,Judges have been less keen to make theorders to which the process leads thanare the prosecuting authorities to seekthe orders. Perhaps a consequence ofthat was the recommendation of theHome Office working party in 1992 thatorders should become compulsory subjectto the need to protect victims (seMorganparas [22] and [23]).

The propositions that confiscation ordersin general, and calculation of benefitspecifically as required by the Act of 2002are in principal not oppressive and arecompatible in general with Rightsguaranteed by the European Conventionare beyond contest. These propositionsare entirely approved by the House ofLords and have been approved repeatedly.It is of concern, therefore, to see theCourt of Appeal establishing by simplerepetition the proposition that it can bean abuse of the process of the court forthe Crown to ask it to perform a duty laidupon by Act of Parliament when the dutyhas been considered and approved. Thisobjection allows that there arecircumstances where the Crown behaves

unconscionably and that in such case thepower to prevent a proceeding isestablished (see above). Such aconcession should not lead to the court’staking power to stay confiscationproceedings because it does not want tomake the order. Nothing in Morgan’scase supposes that this would bejustifiable, but our system is such that the“rare and exceptional” becomes “everyother day” in a surprisingly short time.Frankly, it is disappointing to read thatthe Crown has apparently concededrepeatedly that the Court of Appeal isright when it claims this power in thisway.

There are occasions on which the makingof an order according to the rules of the2003 Act can cause an outcome sodisproportionate and gross as to beentirely an affront to conscience. Onesuch is Mohammed Shabir[2008] EWCACrim 1809. Fortunately, Mr Shabir’s caseon appeal came to Hughes LJ. TheAppellant had been convicted ofdefrauding the NHS by inflating claimsfor money to which (apart from thefraudulent inflation) he was entitled. Thetotal paid out to him was £179,731.97 inthe indicted charges. The application ofcriminal lifestyle provisions led to abenefit calculation over time of£212,464.17. This came about becauseoriginal charges of stealing £6.30 werereplaced by charging obtaining moneytransfers of (for example £28,333.34) bydeception. It is easy to see how it allmounted up. At sentence time, the Judgeaccepted that the wrongful moneyamounted to £464. He was entitled tothe balance – or would have been if hehad not upped it by £6.30 a time. TheCourt of Appeal repeated its claim, andthat of the Crown Court, to a power tostay confiscation proceedings eventhough the Statute imposed a duty tohear them and to make orders in them.They could, they said, hold that this orderwas an abuse of the process, or that theapplication was.

But there was anotherremedy and it had its rootsin the Article 1 of the FirstProtocol to the EuropeanConvention. This had beenspelled out by Lord Binghamin May[2008] UKHL 28. TheArticle protects a person’speaceful enjoyment of hispossessions and providesthat nobody is to bedeprived of his possessionsexcept in the public interestand subject to theconditions provided for by

law and by the general principles ofinternational law. “The precedingprovisions shall not, however, in any wayimpair the right of a State to enforcesuch laws as it deems necessary to controlthe use of property in accordance withthe general interest or to secure thepayment of taxes or other contributionsor penalties.” One of the greatadvantages of the introduction of theConvention into English domestic law isthat the principles of it arrive with it.These include proportionality. This orderwas, manifestly, disproportionate;oppressive is the word chosen by theCourt of Appeal with entire accuracy. TheConvention Right enabled theoverturning of the order without anypower of staying for abuse of process.This route has the advantage of clarityand express sanction both by legislationwhich has to be read as superior to theAct of 2002 and by the House of Lords.

Lastly, it is possible to wonder whyeverybody agreed in Mr Shabir’scircumstances that his benefit couldconceivably be quarter of a millionpounds when he had not actually brokenthrough half a thousand. A person’sbenefit is what he obtains by thecommission of the crime; that was easilycalculable at £464 and had been agreed.If the Crown were reneging on thatagreement, then of course we return tothe start; if they were not, but wereproceeding lawfully under Act ofParliament, then the solution is in theConvention. Stage one, however, is notto concede the huge benefit but to arguefor the actual benefit.

Crime Brief | St Philips Criminal Law

PEOPLE SMUGGLINGand TRAFFICKINGShane Crawford

Economic migration has occurred sincebiblical times and before. Unfortunatelyfor those who undertake what are oftenhazardous journeys, there are stringentimmigration laws which frequentlyprevent legal entry into the promisedland. Faced with these impediments theother route is to pay another to besmuggled across the border to thedestination of choice. Such acts amountto criminal offences. There are penaltiesfor the subjects of such smuggling butthe more serious sentences are aimed atthose who seek to facilitate illegal entryoften for financial rewards.

Smuggling people frequently developsinto trafficking. The distinction betweensmuggling people and people traffickingis primarily the consent of the individualwho is the object of the illegal entryinto the country. Smuggling does notinvolve coercion and the peoplesmuggled are desirous of this end. Thevictims of people trafficking aresubjected to threats or actual violence

and/or deception to cause them toimmigrate to another country. Suchvictims are made to work a life ofservitude for the gang masters that paidfor their entry or in the sex industry.

The law dealing with smuggling hasbeen modified by the Nationality,Immigration and Asylum Act 2002introducing new sections punishingthose who facilitate the entering, transitacross or simply being in the UK of non-EU nationals. The law criminalizingtrafficking has undergone numerouschanges to try and counter a rise in thisarea of criminality which is widelyacknowledged to be the biggestgenerator of criminal revenue secondonly to dealing in arms or drugs. Mostrecently the UK ratified the Council ofEurope Convention Against HumanTrafficking on December 17th 2008which sets out a Europe-wide framework for, among other things, bettersupport mechanisms for victims in givinginformation to police.

This article seeks to look at the currentlaw on the offences of people smugglingand trafficking. For reasons of space thearticle is split this first part dealing withsmuggling; the second part will examinethe current law on trafficking and willappear in the next edition of theNewsletter.

Smuggling

The Offences

The Immigration Act 1971 provides thestatutory framework for the offencescommitted by those who smuggle people

into this jurisdiction as well as theindividual who is smuggled.

The offences committed by those whoare smuggled are primarily summaryonly save for those found under s.24A ofthe Immigration Act [Archbold 25-228a]:entry by deception. This offence ariseswhere the individual deceives theimmigration authorities to seek leave toremain or avoid enforcement action toremove him from the UK. These offencesare triable either way with a statutorymaximum of two years custody onconviction on indictment.

The more serious penalties are affordedto the smugglers and the bulk of thisarticle is devoted to these offences.

Immigration Act 1971 s.25 [Archbold 25-229]: 3 principal offences

The Immigration Act 1971 provides thestatutory framework and, as statedabove, has been amended in recenttimes by the Nationality, Immigrationand Asylum Act 2002. The principaloffences are committed if a personknowingly facilitates a breach of thelaws of immigration by another whomthe smuggler knows or believes is a non-EU citizen. The immigration laws withwhich the section is concerned aregrouped under three headings. Thesethree headings form the basis of thethree offences that may be indicted.They are:

entering the State;

transit across the State; or

being in the State, (sometimes referredto as the “presence” offence).

Definition of “Enter the State”

The statute envisaged clandestine entryby boat or by plane. A person “enters”the UK when he “disembarks” from thatboat or plane: s.11 Immigration Act1971. This is straightforward enough. Butif disembarkation occurs at a port, theperson arriving in the UK will not bedeemed to enter the UK as long as heremains in the designated immigrationentry area and until such time as he maybe given leave to enter by animmigration officer: s,11(1) ImmigrationAct 1971. If there is no such designatedarea at the port entry occurs at thepoint of disembarkation: R vJavaherifard and Miller [2005] EWCACrim 3231.

This deeming provision catches thoseentrants who seek entry through a portwith a designated immigration area butconceal themselves for example in alorry. Such individuals are deemed to

have entered the country.

A common route for smugglers andtraffickers is from the Republic ofIreland for which there are noimmigration controls to enter the rest ofthe UK. The Republic of Ireland and theChannel Islands are termed “Commontravel areas” (CTAs): s.1(3). s.11(2)(a)excludes the “designated immigrationarea” caveat if one arrives from the aCTA. If one therefore arrives in the UKfrom a CTA one has entered the UK.Moreover s.11 has no application toentry by land so if one simply crosses theborder into Northern Ireland one hasentered the UK.

What happens if the person neveractually enters the UK, but there is clearevidence that the accused gaveassistance to that end? Is it necessarythat there is an entry into the UK by theperson assisted by the accused before aprima facie case is made out.? In R vAdams [1996] Crim.LR 593 Roch LJaddressed this question and found thatit was not necessary. The facts in Adamswere that, due to bad weather, a cruiserput into a port which was not approvedfor entry for immigration purposes – itwas simply a marina. Onboard the boatwere 12 Chinese nationals withoutimmigration clearance nor identificationdocuments. In addition were the twopeople who it was later asserted werethe smugglers. One of the smugglersgave evidence for the Prosecutionagainst the other. It was argued onappeal that since the 12 potentialentrants had not disembarked norsought to enter, the Defendant’s actionsdid not fall within the definition of s.11“enter the state” for the purposes ofcommitting an offence under s.25(2)(a).Roch LJ concluded that a person couldcome within the definition of an illegalentrant before entry was effected andthat assistance to facilitate entry to sucha person would suffice.

What if the assisted entrantcategorically states that it was hisintention to enter the UK legally despitethe dubious circumstances of hisdiscovery in a van or lorry on a ferrybound for Dover? In such circumstancesthe Defendant would be giving a lift toa person who had not entered the UKand who stated it was his intention notto evade immigration but to seek legalentry. That was the position in R v Eyck[2000] 1 WLR 1389. Mantell LJ held thatthe issues were whether it had beenproved that the passengers intended toenter or to seek to enter illegally andwhether Eyck was knowingly concernedin carrying out arrangements for

facilitating such an entry.

It seems clear therefore that peoplesmugglers cannot raise a submission ofno case to answer because no breach ofimmigration law has actually beencommitted. It is sufficient to prove thata future breach has been facilitated bywhat the Defendant has done: see alsoRegina v Javaherifard and Miller [2005]EWCA Crim 3231.

The Javaherifard and Miller case isinteresting in that the two Iraniansentered Northern Ireland from theRepublic of Ireland by train. They wereassisted by the two Appellants, Millar infact brought them from Belfast toBirkenhead by ferry whereasJavaherifard organised matters over thetelephone whilst remaining in Newcastle.In the court of first instance theRecorder raised the distinction between“arrival” and “entry” dealt with by s.11Immigration Act 1971 because theIranians did not present themselves toimmigration officials until they reachedBirkenhead. He concluded that they hadnot “entered” the UK until this stage oftheir travels despite the fact that theyhad arrived when they crossed theRepublic of Ireland and Northern Irelandborder. The Court of Appeal concludedthat the men had “entered” the UK whenthey crossed the border into NorthernIreland and that s.11 did not apply sinceit was only concerned with boats orplanes. Of greater significance were theCourt of Appeal’s considerations of theparameters of the definition of “enter”. Itconcluded, for the purposes ofprosecuting such cases, that decidingwhether the appellants’ acts hadfacilitated either the “entry” or the“being in” the state was undesirablewhen the alleged acts were in closeproximity to the actual illegal entry ofthe Iranians. Ousley J stated:

“It would be highly undesirable, in ourjudgement, if every time the factsinvolved actions before and immediatelyafter entry, although part and parcel ofit, they always had to be the subjectmatter of a separate count offacilitating “being”, with nicedistinctions being drawn between thefacts and knowledge relevant to eachcount. This would be especially so forone continuous course of conduct by thesame people”.

The Court of Appeal in the case ofJavaherifard and Miller endorsed thecase of R v Singh and Meeuwsen [1972]1 WLR 1600, [1973] 57 Cr App R 180about which the court said was “goodauthority for the proposition that it is

possible to facilitate entry by acts whichoccur close to but after actual entry”.The Singh case involved two men whoassisted illegal entrants get away fromthe trailer in which they were concealedafter it had left the port area.

Can a Defendant who is guilty offacilitating the “entry” of an individualalso be guilty of facilitating the “being”in the UK by the illegal entrant, after theentrant has already entered the countryillegally? The Court of Appeal in theJavaherifard and Miller decided thatsuch a Defendant could andacknowledged that sentence shouldrelate to the whole course of conduct.

Sentence

Convictions of smuggling attractimmediate custody. The appropriatesentence bracket is 2 – 5 years. Themaximum sentence is 14 years and it is alife style offence for the purposes of theProceeds of Crime Act 2002. Guidancewas provided by Lord Bingham LCJ inVan Binh Le and Stark [1993] 1 Cr App R(S) 422. He identified aggravatingfeatures to include:

repeat offender of this type of crime;

offence committed for financial gain;

illegal entry facilitated for strangers asopposed to a spouse or close familymember;

in a conspiracy

where the offence was committed over aperiod of time;

a high degree of planning andorganisation and sophistication

large numbers of illegal entrants;

having a trial.

In the case of Stark the Appellant was ofgood character and pleaded guilty totrying to smuggle two men, one womanand six children all from Kosovo. Theywere seeking to move from Germany toUK and had been apprehended at the UKImmigration Zone at Coquelles in France.The Appellant had been paid to do thisbut learned of the purpose of thejourney once it had begun. The Court ofAppeal reduced his sentence from 5years to 3 years.

Once successfully smuggled into the UKthe illegal entrant can find all that waspromised was in fact a lie. At thisjuncture the acts of those who gaveassistance become trafficking. This willbe dealt with in Part 2 of this article.

Crime Brief | St Philips Criminal Law

CRIMINAL CASH: Summaryforfeiture proceedings – abeginner’s guideBen Williams

With the collapse of banks, people have joked that theirmoney’s probably safer under the mattress. Cash foundthere by the authorities however, could be liable to seizure,detention and, ultimately, forfeiture.

Applications are governed by PoCA 2002, Pt 5 – sections289-303 –, and the Magistrates’ Court (Detention andForfeiture of Cash) Rules 2002 (‘the 2002 Rules’). Hearingsare Civil in nature (s240(1)(b)).

Test = (1) from crime or (2) for crime?

Key to this area is the test for ‘forfeitability’ (not a termfound in the statute) (s298). Cash must be

(1) “recoverable property”: which means it was obtained‘through unlawful conduct’ (s304), where “through” means‘by or in return for’ (s242(1)), and “unlawful conduct”means ‘conduct occurring in any part of the UnitedKingdom which is unlawful under the criminal law of thatpart’ (or conduct occurring and unlawful in a foreigncountry, but which would also be unlawful in the UK)(s241). So, in a nutshell, it must be from crime.

Or

(2) “intended by any person for use in unlawful conduct”:i.e., it must be for crime.

NB: the type or types of crime the cash is said to have comefrom (or to be for) does not have to be specified. Sullivan Jconfirmed in Green [2005] EWHC 3168 that cash seizureswere a unique species: carrying a large amount of hardcash demands an answer, where owning luxurious assets,by itself, does not (see my article on NW & Anwoir in thelast Crime Brief). Furthermore, in Muneka [2005] EWHC(Admin) 495 the court said “all that has to be identified isthat the source was criminal activity or the intendeddestination was use for criminal activity”.

In some cases it will also be worth considering whether,regarding the 1st limb, cash has truly been obtained ‘by orin return for’ criminal conduct: for example, unlicensedstreet-trading is an offence but profits of such tradinghave been held not to have been gotten ‘by or in return for’that offence (DARA v John [2007] EWHC 360 - QBD).

Stage One: Seizure

A Police Constable, or Revenue & Customs Officer, can seizeanything upwards of £1,000 in cash (s294(3)) if he or shehas reasonable grounds to suspect it, or part of it, isforfeitable under the above test.

Crime Brief | St Philips Criminal Law

Cash can be held for 48 hours, excludingweekends and bank holidays (s295(1B)),but any order for continued detentionhas to be made within 48 hours exactly,or it will be invalid (Henry [1994] Crim LR581; Walsh The Times, 4 July 2001 (DC)).

Stage Two: Detention

A single magistrate can make the firstdetention order (s295(3)) for up to 3months, with the same cap on anysubsequent applications for extension, upto a maximum total of 2 years.

The test for detention (s295) is reasonablesuspicion of ‘forfeitability’ (as per theabove two-limb test), coupled withjustification for continued detentionwhilst either (a) derivation &/or intentionis investigated or consideration is givento bringing connected criminalproceedings, or (b) connected criminalproceedings, already pending, arebrought to a conclusion.

Representation

For those defending an application fordetention or forfeiture, civil LSC fundingis available (para 2(3)(l) sch 2 Access toJustice Act 1999). It is worthremembering that if the cash isrecovered, any costs not paid by thelosing party will be deducted from it.

Applications for Release

Under s297 the court can release the cashto the person it was seized from, if it ispersuaded the criteria for detention nolonger apply, as long as there’s nopending application for forfeiture(s298(4)). In an interesting recent case, R(CC of Gr. Manchester) v Salford MC &Salwar [2008] EWHC 1651, therespondent company’s employment ofillegal workers made a “materialcontribution” to its profits, and thereforethe s295 conditions for continueddetention were met as the whole of anamount of cash can be detained if thetainted proportion of it cannot yet bespecifically identified (s295(7)).

Third parties can apply for release unders301(1) and can be joined to relatedproceedings (most likely a substantiveforfeiture application) under r6(5) of the2002 Rules. s301(3) allows a victim toclaim the money if he can show (1) hewas deprived of the cash throughunlawful conduct and (2) it was ‘legit’when it was his.

Alternatively, a person claimingownership can apply for release unders301(4) if he is (a) not the person it wasseized from; (b) it appears to the court it’shis; and (c) either (i) the s295 criteria nolonger apply or (ii) the court decides not

to grant an application under s298 [seebelow]; and (d) the person from whomthe cash was seized does not object.

Stage Three: Applications forForfeiture

An application is made under s298(1) onForm G (r.7 2002 rules), which must befiled and served. The court must then fixa directions hearing (r7(4)), e.g. to direct,though this will be subject to the right toclaim privilege over statements ofproposed witnesses (R (Kelly) v Warley MC[2007] EWHC 1836 (Admin)).

Final Stage: Forfeiture Hearing

Burden & Standard of Proof

The burden is on each party to prove itscase, and the standard is the civil one.Two recent House of Lords cases havegenerally (re-) asserted that in civilproceedings the standard is always ‘thebalance of probabilities’. Re D suggeststhat more serious allegations need to beconsidered with greater care andcriticism, and inherent unlikeness is afactor; furthermore serious consequencesheighten the need for caution, but shouldnot actually influence findings (Re D[2008] 1 W.L.R. 1499; Re B (Children)[2008] 3 W.L.R. 1 – both from 11.06.08).

Evidence

Most applications will rely oncircumstantial evidence – such as therespondent being stopped travelingbetween Amsterdam and the UK with awedge of cash and no good explanation(see Bassick (1997) 161 JP 377; Bryan(1998) 162 JP 251). The cases of Nevin(QBD, 3 November 1995), and Muneka(above) establish that the court can relyon the respondent’s untruthfulness tomake otherwise insufficiently persuasiveevidence, persuasive.

There is no power to exclude admissibleevidence on the grounds of unfairness.However, the civil court retains a generalpower to decide whether or not evidenceis admissible based on its ‘relevance’. Inthe case of Vernon v Bosley 1994 PIQR337, Hoffman LJ (as he was) stated “thedegree of relevance needed foradmissibility is not some fixed point on ascale, but will vary according to thenature of the evidence and in particularthe inconvenience, expense, delay oroppression which would attend itsreception” (at 340, my emphasis).

‘Bad character’ is freely admissible andcan be powerful: e.g. in Ali v Best (1997)161 JP 393, just shy of £50k was seizedfrom a respondent’s car boot; he had oneconviction for possessing heroin with

intent; he gave an explanation ininterview but did not go in the box: thecash was forfeited. Unproven allegationsare also admissible – including wherecharges based on them have beendropped (CEC v T (1998) 162 JP 193): theissue will be what weight such evidenceshould carry.

Orders

If the application succeeds, forfeiture willbe ordered. If it fails, the money will bereturned together with interest (it havingbeen paid into the obligatory interest-bearing account (s296)). Part may beforfeited and part returned.

Costs in the Magistrates’ Court are onlyavailable in matters brought oncomplaint (see Dover MC The TimesDecember 1995). Rule 11(2) becomesrelevant again, as it states proceedingsare regulated in the same manner as amatter brought on complaint. In practiceit is usually accepted that costs areavailable and the normal civil costsprinciples apply – i.e. costs follow theevent; subject of course to the court’sdiscretion to decide what is ‘just andreasonable’ (s64 MCA 1980). However, itcan be argued that the position of theapplicant will be equivalent to that of aregulatory authority exercising itsregulatory functions and it should notpay costs if unsuccessful unless it hasacted in bad faith, etc.: see, e.g., UxbridgeJustices [1981] WLR 112 – QBD.

Compensation can also be sought by asuccessful respondent if he has suffered aloss (which has not been compensated byinterest accruing) and he can show thecircumstances are ‘exceptional’ (s302).

Appeals

Any party unhappy with the result canappeal, and has 30 days to do so: s299.(As such, forfeited cash will not be paidinto central funds before that time-period is up: s300.) Although the currentlegislation does not specify it, the appealwill normally be by way of rehearing:s299(3) was previously explicit to thateffect; s79(3) Supreme Court Act 1981preserves such as the customary practicein Crown Court appeals; and it is sensiblein light of the Magistrates’ not being acourt of record.

Crime Brief | St Philips Criminal Law

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THE CRIMINAL CLERKING TEAM

Joe Wilson (Director of Crime, Family & Regulatory) – 0121 246 2052 (jwilson@st-philips.com)James Turner (Senior Clerk - Crime) – 0121 246 2175 (jturner@st-philips.com)

Carl Streeting – 0121 246 7069 (cstreeting@st-philips.com)Phil Jones – 0121 246 2163 (pjones@st-philips.com)

Su Turner-Gilbert – 0121 246 2164 (sturner@st-philips.com)Natalie Hill – 0121 246 7056 (nhill@st-philips.com)

Duty Clerk (after 6pm) – 07967 975448 Dedicated Criminal Fax: 0121 246 7060

Messages can also be sent to counsel or the clerks via the Chamberse-mail system using the following address – clerks@st-philips.com

Shrinking Markets?Jonathan Salmon

In a world of fixed penalties, precharge advice, and ever tighteninglegalaid budgets criminal solicitors canfeel under siege. Perhaps before thecredit crunch you dreamed of movingover to corporate finance or perhapsconveyancing? Now is your only choice

to join your clients over at the BigIssue?

No.

As the world wonders what an earth hasbeen happening in the world of bankingand lending – governments areincreasingly talking of Regulation.

Your expertise in criminal work has agreat deal of cross over into the worldof Regulatory Work. Much of it is in factreal crime as you and I know it.

There are real opportunities to developthis side of your practise.

At St Philips we have an ever expandingdepartment of specialist regulatorypractitioners. Their experience inmatters as diverse as company fraud,taxi licensing, environmental crime,health and safety, gaming licences,trading standards and much more.

Therefore should you find yourselvesmoving into this area St Philips canprovide the back up you need. Whilstthings are superficially the same asgeneral crime there are differences ofattitude and approach. A lack offamiliarity with criminal procedures byinvestigators can lead to the exclusionof evidence, non conformity withprosecution policies, and abusearguments. Often cases revolve aroundexpert evidence and detailed analysis ofbusiness records. The battle grounds arenot always as they might appear at firstblush.

For further details of Counsel in theRegulatory Group, a copy of ourNewsletter or assistance in respect totraining within this area of work pleasecall Joe Wilson who will be happy tohelp. We look forward to hearing fromyou.