England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HARROW CROWN COURT
His Honour Judge Moss

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/03/2006

Mr Justice Stanley Burnton:

Introduction

1. On 11 August 2005, at Harrow Crown Court, the appellant pleaded guilty to a number of offences of dishonesty. He was sentenced by His Honour Judge Moss to 15 months imprisonment. In addition, the judge made a recommendation for his deportation. He appeals against that recommendation with leave of the single judge.

The scope of this judgment

2. When this appeal was before this Court, differently constituted, on 2 December 2005, the Court suggested that this appeal would present an opportunity for the Court to give further guidance to Crown Court judges who are called upon to consider making a recommendation for deportation in the light of the Human Rights Act 1998 and the legislative incorporation of the European Convention on Human Rights. On reflection, we are concerned as to whether this is a suitable occasion to do so, for two reasons. The first is that in March of last year the Sentencing Advisory Panel issued a consultation paper on recommendations for deportation. The Panel's advice has not been published. We have been told that it is currently being forwarded to the Sentencing Guidelines Council. The Council will then formulate draft guidelines and proceed to publish its effective guidelines, to which the Courts are required to have regard by section 172 of the CJA 2003. This Court cannot of course anticipate the content of those guidelines.
3. The second reason is that Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 comes into force on 30 April 2006. It repeals Directive 64/221 and confers on citizens of the EU and their families enhanced rights to reside within the territory of Member States. In particular, Articles 27 to 33 regulate, and in important respects limit, the powers of Member States to expel a Union citizen or family members on grounds of public policy or public security. The new Directive does not apply to the decision on this appeal because it is not yet in force. Article 28 applies to an expulsion decision, and it seems to us that a recommendation for deportation may not be such a decision. The decision whether or not to expel, i.e. to deport, is that of the Home Secretary. Directive 64/221 is worded differently. It applies to "measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health". In Bouchereau (1977) 66 Cr App R 202, the European Court of Justice gave a wide meaning to that phrase, and held that a recommendation for deportation is a "measure" within the meaning of Directive 64/221. On any basis, however, we apprehend that the provisions of the new Directive will have a significant effect on the exercise by the courts of the power to make a recommendation for deportation, since it would not be right to make a recommendation for deportation in circumstances where the Directive precludes actual deportation.
4. Nonetheless, we have had the benefit of the submissions of leading counsel on the effect of the Human Rights Act 1998 on the exercise of the power to make a recommendation for deportation. This is the first appeal in which the Court has been able to consider the revolutionary impact of the Human Rights Act 1998 on our substantive law and procedure relating to recommendations for deportation . As will be seen, we have concluded that the incorporation of the European Convention on Human Rights should lead to an important change in the issues to be addressed by criminal courts when considering whether to make a recommendation for deportation. We hope that the judgment of the court will be of assistance to the Sentencing Guidelines Council in formulating its advice.

Existing law and procedure

5. The power to make a recommendation for deportation and the duty to consider doing so arise from the provisions of section 3(6) of the Immigration Act 1971:

"… a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so."

6. In relation to the law prior to the Human Rights Act 1998, there was no difference of significance between the submissions of the Appellant and those of the Crown. We summarise the position as follows:

(i) A recommendation for deportation is not part of the punishment imposed on the offender. The making of a recommendation for deportation does not justify a reduction in the sentence otherwise appropriate.

(ii) The first question to be considered by a criminal court when it considers whether to make a recommendation for deportation is whether the continued presence of the offender is to the detriment of this country: see Lawton LJ in the guideline case of Nazari [1980] 1 WLR 1366, (1980) 2 Cr App R (S) 84. We do not think that there is any difference of substance between this test and the formulation whether it is in the public interest for the offender to be deported, or against the public interest for him to remain in this country. In this connection, we refer to the judgment of Judge LJ in N (Kenya) v Secretary of State for the Home Department at paragraph 83:

The "public good" and the "public interest" are wide-ranging but undefined concepts. In my judgment … broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation.

(iii) The Panel's view is that the key question in considering whether to make a recommendation for deportation is whether the offence is serious enough to merit deportation. Having regard to the fact that a recommendation for deportation is not a punishment, we would question that formulation. The question for the court is whether the offence and other material before the court leads to the conclusion that the continued presence of the offender is detrimental to this country. One serious offence is liable to lead to that conclusion: see, e.g., Kouyoumdjian (1990) 12 Cr App R (S) 35. In that connection, we refer to paragraphs 64 and 65 of the judgment of May LJ in N (Kenya) v Secretary of State for the Home Department.

64. ….Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society's revulsion at the seriousness of the criminality.

65. …The risk of re-offending is a factor in the balance, but, for very serious crimes, a low risk of re-offending is not the most important public interest factor.

(iv) On the other hand, an offence that is not in itself so serious, such as shop-lifting, against a history of previous offences, leading to a conclusion of likely re-offending, may justify a recommendation for deportation. We do not exclude the possibility of a first offence that is not in itself serious justifying a recommendation for deportation if the material before the court cogently leads to the conclusion that the offender is likely to continue repeatedly to re-offend.

7. We add that in our judgment the sentence imposed by the sentencing court is an indication of the seriousness of the offence, but no more than that. It is not appropriate to lay down a mathematical test for seriousness or for the making of a recommendation for deportation based on the length of the custodial sentence imposed by the court. We were told that the Home Secretary applies an unpublished rule of thumb where a recommendation for deportation has been made. He will not normally order deportation unless the offender has received a sentence of at least one year's imprisonment if he is not an EU national, and of at least 2 years if he is an EU national. This should not in our judgment prevent sentencing judges making a recommendation for deportation when passing a lower sentence, provided that they are satisfied that the continued presence of the offender is against the public interest; but they should be cautious in doing so in such cases. We reject the submission made by Mr Bishop QC that the court should never make a recommendation in such cases because it will not result in deportation. We bear in mind that the practice of the Home Secretary is subject to exceptions: he has not, as we understand it, fettered his discretion, and indeed he could not lawfully do so. We also bear in mind that the difference between a sentence that is less than, say, 2 years' imprisonment and one that is greater may result from factors that do not bear on the seriousness of the offence itself and which may not have a significant affect on the issue of public interest. For example, a plea of guilty by an offender may result in a sentence below the 2 year level, as may facts indicating that a period of custody may bear particularly hard on the offender for reasons personal to him or her. Indeed, these considerations should lead the Home Secretary to be cautious in the application of the rule of thumb to which we have referred.
8. The assessment of the public interest is the first matter to be considered by the sentencing court. In Nazari this Court stated that there was a further matter to be considered, namely "the effect that an order recommending deportation will have upon others who are not before the court and who are innocent persons". It stated that the sentencing Judge must weigh the benefit to this country of the deportation of the offender against the harm that may be suffered by innocent third parties, and in particular his or her family, if he or she is deported. If that harm outweighs, a recommendation for deportation should not be made, because "This Court and all other Courts would have no wish to break up families or impose hardship on innocent people".
9. It is to be noted that the Court of Appeal in Nazari did not suggest that hardship to the offender himself should be considered by the Court as a factor pointing against a recommendation for deportation. In subsequent cases this Court has quashed recommendations on the ground of the harm that would be suffered by innocent members of the offender's family (see, e.g., Cravioto (1990) 12 Cr App R (S) 71 and Shittu (1993) 14 Cr App R (S) 284)), but we have been referred to no case in which this Court has quashed a recommendation for deportation on the ground that deportation would harm the interests of the offender himself. Indeed, in Bali [2001] 2 Cr App R (S) 464, [2001] EWCA Criminal 765, this Court held that a sentencer should not consider difficulties of a personal nature that will affect the offender if he returns to his country of origin. In that case the offender, if deported, would have been returned to Kosovo. The Court reached its conclusion because: "We have no means of assessing the appellant's likely personal circumstances in Kosovo.".
10. It should also be noted that the statement in Nazari that "This Court and all other Courts would have no wish to break up families or impose hardship on innocent people" was not intended and has not been understood literally. In appropriate cases this Court has upheld a recommendation for deportation even though its implementation would or might lead to the break up of the offender's family, as in Oddendaal (1992) 13 Cr App R (S) 341.
11. In Nazari, the Court stated that sentencing Judges should not be concerned with the political systems operating in other countries:

… the courts are not concerned with the political systems which operate in other countries. They may be harsh, they may be soft; they may be oppressive; they may be the quintessence of democracy. The court has no knowledge of those matters over and above that which is common knowledge; and that may be wrong. In our judgment it would be undesirable for this court or any other court to express views about regimes which exist outside the United Kingdom of Great Britain and Northern Ireland. It is for the Home Secretary to decide in each case whether an offender's return to his country of origin would have consequences which would make his compulsory return unduly harsh. The Home Secretary has opportunities of informing himself about what is happening in other countries which the courts do not have. The sort of argument which was put up in this case is one which we did not find attractive. It may well be that the regime in Iran at the present time is likely to be unfavourable from the point of view of the applicant. Whether, and how long, it will continue to be so we do not know. Whether it will be so by the end of this man's sentence of imprisonment must be a matter of speculation. When the time comes for him to be released from prison, the Home Secretary, we are sure, will bear in mind the very matters which we have been urged to consider, namely, whether it would be unduly harsh to send him back to his country of origin.

12. So far as procedure is concerned, if the offender's advocate does not address the question of a recommendation for deportation, and the sentencing judge is considering making one, he should warn the advocate that he is considering making a recommendation for deportation in order for the advocate to be able to make such submissions and to put before the Court such material as he thinks fit: Nazari. The judge must give reasons for making a recommendation for deportation, which need not be lengthy but must show that the material issues have been addressed: Rodney [1996] 2 Cr App R (S) 230. A failure to give adequate or any reasons will not necessary lead to its being quashed, but will require this Court to reconsider the recommendation: Bozat [1997] 1 Cr App R (S) 270.
13. Citizens of the EU have additional rights under Article 48 of the Treaty. The present position is that a recommendation for deportation may be made only if the conditions specified in Directive 64/221 are satisfied. This is because, as stated above, a recommendation is a "measure" concerning expulsion from a Member State: see the judgment of the ECJ in Re Bouchereau (1977) 66 Cr App R 202. However, the Directive permits expulsion on the ground of public policy, and it adds little if anything to our domestic requirements that a recommendation for deportation should be made by a judicial authority, only if the conduct of the offender justifies it (in the sense that deportation is a proportionate response to his offending), and adequate reasons should be given: c.f. Articles 3, 6 and 9 of the Directive: see the helpful summary in the judgment of Sedley LJ in B v Secretary of State for the Home Department [20002] HRLR 439, 441.

The European Convention on Human Rights and other developments since Nazari

14. The Convention rights that are most likely to be engaged by a decision to deport an offender are those conferred by Articles 2, 3 and 8. Article 2 confers the right to life and Article 3 is the prohibition against torture:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

15. Article 8 is as follows:

"Right to Respect for Private and Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

16. The provisions of Article 5 must also be borne in mind:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

…

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

17. Leaving aside for the present the question of custody, pending the decision of the Home Secretary on deportation (a matter to which we shall return below), in our judgment a recommendation for deportation will not of itself infringe Article 8 rights. We reject the submission made by Mr Bishop QC that any decision made in the course of the process that may lead to deportation may infringe the offender's Article 8 rights. In this respect the wording of Article 8.1 is to be contrasted with that of Directive 64/221, which, as we have said, applies to any "measure" concerning expulsion. It is only if there is an unjustified interference with the rights conferred by Article 8 that it is infringed. If the recommendation is not followed by the Home Secretary, and he decides before the expiry of the custodial sentence not to make a deportation order, on expiry of his custodial sentence his private and family life will resume and he will be free to live in his home. The Article 8 rights may be affected by the decision of the Home Secretary to deport the offender, but not by what is only a recommendation. Thus, in, for example, Samaroo and Sezek v Home Secretary [2001] EWCA Civ 1139, the Claimant had been convicted of a drug offence and sentenced to imprisonment; a recommendation for deportation had been made. The Home Secretary made a deportation order. The Claimant's challenge on the grounds of an alleged infringement of his Article 8 rights was to the Home Secretary's order, not to the recommendation for deportation.
18. Since the coming into force of the Human Rights Act 1998, the prescription in Nazari that sentencing judges should have regard to the effect of deportation on the offender's family would be regarded as a requirement to consider the Article 8 rights of his family. However, if the sentencing judge is to consider Convention rights at all, in our judgment it would be illogical to restrict consideration to the Article 8 rights of the offender's family to the exclusion of the more immediately engaged Article 8 rights of the offender himself. Furthermore, deportation to some countries may sadly involve or risk a breach of the offender's rights under Articles 2 and 3. The political situation in the offender's country of nationality may be such that his return would risk him, or risk subjecting him to treatment that is not merely harsh, but which contravenes Article 3, and may even involve risk to life. Nazari precludes the sentencing judge from considering such risks. In our judgment it would be irrational if the sentencing judge were required to consider the Article 8 rights of the offender's family but debarred from considering the more important rights of the offender under Articles 2 and 3 and his own rights under Article 8.
19. The Court in Nazari was undoubtedly right in concluding that a criminal court is not equipped to consider and to make findings as to the political situation in foreign countries. But the same difficulty arises in relation to an assessment of social, housing, economic, educational and medical conditions in the offender's country of nationality, as this Court pointed out in Bali. Such conditions bear upon the extent of the interference with Article 8 rights. A claim asserted on Article 8 grounds is liable to involve a comparison of conditions in the country to which an offender is to be deported with those in this country. (Even so, as the House of Lords has pointed out in R (Razgar) v Home Secretary [2004] 2 AC 368, decisions of the Home Secretary taken pursuant to the lawful operation of immigration control will be proportionate, and therefore justified under Article 8.2, in all save a small minority of exceptional cases": Lord Bingham at [20]).
20. There has been a further important development since Nazari. There is now a right of appeal against a decision of the Home Secretary to deport an offender: see section 82(2)(j) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004). The appeal is to the Asylum and Immigration Tribunal, which is a specialist independent tribunal which will receive evidence from the Home Secretary and the offender and which is equipped to consider conditions in the country of deportation, and which will when making its decision consider the (qualified) Article 8 and the other Convention rights of the offender and his family.
21. Furthermore, where the court imposes a substantial custodial sentence, if the sentencing court is to consider the effect of deportation on the offender's family, it must necessarily gaze into the future. The Court would have to consider the effect on third parties and on the offender of his deportation on the expiry of the sentence. However, circumstances may have changed very considerably at the end of his sentence. Conditions in the country to which he is to be deported may have changed dramatically, as in the case of South Africa before and after apartheid. His domestic situation may have changed: his partner may not have stood by him, or his marriage may not have survived his imprisonment. The future is necessarily unknown. It is far better for issues as to the effect of deportation on the offender and his family to be addressed, by the Home Secretary or by the Tribunal, close to the time of the proposed deportation rather than at the time of sentence.
22. In our judgment, it follows that there is now no need for a sentencing court to consider the Convention rights of an offender whose offence justifies a recommendation for deportation. It is moreover undesirable that the sentencing court should undertake an assessment for which it is not qualified or equipped, and which will in any event be undertaken by the Home Secretary and the Tribunal. His Convention rights will be considered if the Home Secretary makes a deportation order against which the offender appeals to the Tribunal. In the case of non-EU citizens, sentencing courts should consider only whether the offence committed by the offender, in the light of the information before the Court, justifies the conclusion that his continued presence in this country is contrary to the public interest. Different considerations will arise in relation to EU citizens once Directive 2004/38/EC is in force.

Custody

23. As Sir Allan Green QC pointed out, a recommendation for deportation may engage an offender's rights under Article 5. This is because he may be detained as a result of the recommendation. Paragraph 2(1) of Schedule 3 to the Immigration Act 1971 as amended is as follows:

2 (1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.

24. Since a recommendation for deportation should be reserved for reasonably serious offences, it will be only in rare cases that a non-custodial sentence will be imposed and a recommendation for deportation nonetheless made. In such cases, the sentencing judge must consider whether detention pending the Home Secretary's decision is reasonably necessary. If there is no real risk of his absconding, the judge should direct that the offender should not be detained pending the making of a deportation order.
25. Detention that is reasonably necessary with a view to deportation will not infringe Article 5: Article 5.1(f). However, it is to be noted that even if no non-custodial direction is made pursuant to paragraph 2(1) of Schedule 3, the offender may apply for bail to a chief immigration officer or to the Asylum and Immigration Tribunal: see paragraph 2(4) of Schedule 3 to the 1971 Act and paragraph 22 of the Second Schedule.

The order made in this case

26. The appellant is a Portuguese national of Angolan descent. He was of previous good character, and was aged 26 at the date of sentence. He pleaded guilty to 6 counts of handling stolen goods and 8 counts of forgery. 39 offences of forgery were taken into consideration. In considering whether to make a recommendation for deportation, the sentencing judge should consider both the offences of which the offender is convicted or to which he pleads guilty and those taken into consideration. In the summer of 2004, the police mounted an operation to investigate reports of a substantial number of cheques being stolen in the area of Golders Green in London. The cheques were stolen at the Royal Mail sorting office. In all, over 4,500 cheques had been stolen and fraudulently cashed. The appellant received some of the stolen cheques and forged entries on them. Between 18 June and 18 July 2004 he paid them into his account or that of a man called Gomes. The total amount of the cheques, including the offences taken into consideration, was some £23,400. In addition, between November 2002 and the end of March 2003 the appellant was involved in handling 6 stolen cheques of the Department of Works and Pensions. These cheques, totalling £866, were paid into his account.
27. There was a written basis of plea to the 8 counts of forgery:

"1. He received stolen cheques from a third party.

2. He accepts he forged the details on the cheques in counts 3, 5, 7, 9, 11, 13, 15 and 17.

3. He would make some of the cheques payable to himself and put them in a bank account in his name. He would also make cheques payable to Rui Gomes and would pay them into a Gomes account.

4. While he accepts he had control over the account in his name, he did not have control of the Gomes account.

5. He received a proportion of the money."

28. In deciding to make a recommendation for deportation, the learned Judge said:

"Dishonesty on this level with this success, it seems to me in the circumstances your presence in the UK is not conducive to the good order of this society and in those circumstances I make a recommendation."

29. The appellant came to the UK in 2000. Until shortly before his arrest he was in regular full-time employment. At that time, he was attending an English course on the advice of the local job centre. His long-standing partner is also of Angolan descent, and is of Angolan nationality, but she has indefinite leave to remain in the UK. The family unit comprises their 2-year-old child born here and so a British citizen and a 7-year-old born to his partner of a previous relationship. He and his family are said to be settled here.
30. The grounds of appeal are that the judge failed to consider the likely effect of the recommendation on the appellant's family, and that if the judge struck a balance between the possibility that the appellant would commit further offences and the harm that might be done to innocent third parties (his partner and the children), he concentrated excessively on the first aspect and therefore did not correctly determine where the balance lay.
31. It would appear from his sentencing remarks that the learned Judge did not consider the effect of his recommendation for deportation, if implemented, on the appellant's family. However, while Nazari required him to do so, for the reasons we have given we consider that it is now unnecessary and indeed undesirable for a judge to do so. The impact of deportation on the appellant's family is a matter to be considered by the Home Secretary in determining whether to make a deportation order, and if necessary by the Asylum and Immigration Tribunal on appeal. That may involve consideration of the question whether the appellant's partner would want to join him if he is deported to Portugal, or can reasonably be expected to do so.
32. It follows that the matters relied upon in the grounds of appeal would not themselves lead this Court to quash the recommendation. The written grounds of appeal do not contend that the judge was not entitled to conclude that the offences to which the appellant pleaded guilty or which were taken into consideration justified the making of a recommendation for deportation. In argument, it was so submitted. We disagree. The appellant committed a large number of offences of dishonesty involving a substantial sum of money. Notwithstanding the relatively lenient sentence, the judge was entitled to conclude that the appellant's continued presence was against the public interest and in consequence to make a recommendation for deportation. It follows that the appeal will be dismissed.