England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
Mr RECORDER EVERETT
T20060683

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/04/2008

Lord Justice Leveson :

1. On 5^th January 2007, following a trial in the Crown Court at Manchester before Mr Recorder Everett and a jury, Roy Clarke was convicted of three offences of providing immigration services when not qualified to do so contrary to section 91 of the Immigration and Asylum Act 1999 ('the Act'). The prosecution was brought by the Office of the Immigration Services Commissioner ('the OISC'). On 26^th January, he was sentenced to a community order which required him to complete 100 hours of unpaid work on each count concurrent. He now appeals against conviction by leave of the single judge; the Registrar has referred to the full Court his subsequent application for leave to appeal against sentence.
2. At the time of mounting this appeal, the Appellant was represented by counsel and solicitor and he was granted a representation order for counsel to appear on his behalf. Subsequently, he declined the services of counsel and determined to pursue this appeal in person. When he did not attend at the hearing, we heard evidence that he was aware of the date and embarked upon the appeal. We have now seen an e mail exchange between him and the Court of Appeal office. Thus, he was initially told that as an appellant in person he did not have any automatic right to address the Court but that he could make application to do so either in writing prior to the hearing, or at the hearing. He responded by noting that advice and by pointing out that he had already been advised that an appellant need not appear if they did not wish to do so. He then specifically asked whether it was expected that he would appear. He was told that it was a matter for him; he was entitled to attend but there was no obligation to do so, although if he wished to make oral representations, clearly, his attendance would be necessary.
3. There is no doubt that if Mr Clarke had been refused leave to appeal, he would not have had the right personally to address the court on renewal of his application; an advocate is permitted to do so only with the leave of the court. The position is the same in relation to an application referred to the full court. Having been granted leave to appeal against conviction by the single judge, however, in our judgment, he was entitled to argue that appeal in any way that he wished, that is to say either by advocate or in person. In the circumstances, we arranged that he be informed of the true position, making it clear that the court had reserved its decision which would involve reviewing all the written material that he had submitted. He advanced certain additional arguments in support of his referred application for leave to appeal against sentence (in relation to which, we repeat, he did not have the right personally to address the court) but did not otherwise wish to go beyond the submissions that he had made in writing.

The Facts

4. The Act places a duty upon the OISC to regulate the provision of immigration advice and services. Section 84 of the Act defines those persons who are qualified to provide immigration advice or services and section 91 makes it an offence to do so if not qualified. Essentially, although we shall set out the legislation later in this judgment, qualification is achieved by being registered with the OISC, by professional qualification as a practising barrister, solicitor or member of the Institute of Legal Executives (ILEX), by having a relevant qualification from an European Economic Area state, by being a non-profit making organisation exempted from the requirement to be registered by the OISC or by being a person who is acting on behalf of, and under the supervision of a person who comes within one of these categories.
5. In short, Mr Clarke provided immigration services to three individuals (Abubakir Mohammed Al-Rigaibi on 18^th January 2005, Martin Sibanda on 11^th March 2005 and Fabian Msimanga on 5^th April 2005) by representing them before the Immigration Appellate Authority. The case for the Crown was that although Mr Clarke had, at various times, been qualified to provide immigration advice by virtue of his employment by organisations which are registered with OISC, he was never himself registered with OISC and did not otherwise qualify under the Act. Neither was he then acting on behalf of or under the supervision of a registered organisation.
6. It is not necessary to rehearse the detail of the evidence advanced by the Crown in support of its contentions of fact. In brief, at each of the three tribunals, Mr Clarke completed a form declaring that he was qualified in accordance with section 84 of the Act, identifying the name of his organisation as Dr Qureshi & Co. A search of the offices of that firm revealed that all three of these applicants had paid money to the firm and been involved in hearings before the tribunal. That firm was not, in fact, registered and was therefore an unqualified immigration practice.
7. When interviewed, Mr Clarke contended that he was working as a paralegal for a firm, Saints Solicitors, which was run by a Mr Sadiqque (or Siddiqui). He explained the record at the Tribunal on the basis that Dr Qureshi & Co was the organisation identified in the records and that he did not want to "mess their paperwork up". This continued to be his case at trial. When giving evidence, however, he accepted in any event that this gentleman had not been qualified for three years and therefore did not have the relevant experience to supervise him as an immigration services provider. He also explained, accurately, that he had been registered with two other companies, Asylum Support and Immigration Resource Team ('ASIRT') and Immigration Consultancy Services ('ICS') although, again, conceded that the three cases with which the prosecution was concerned were nothing to do with either.
8. At the trial, the Recorder ruled that the burden of proving qualification within the meaning of section 84 of the Act lay on Mr Clarke ('the burden of proof issue'). He then directed the jury that a qualified person for the purposes of the section was one who was physically registered with OISC ('the qualification issue'). Both of these rulings are challenged in this appeal and, in relation to the second, leave is sought to call and rely upon further evidence. Finally, Mr Clarke raises complaint that the Recorder's directions to the jury that there was no defence in law made the summing up unbalanced and unfair ('the fairness issue'). We deal with each of these complaints, of which the first is the most substantial, in turn.

The Burden of Proof Ruling

9. At the heart of the case was the question whether Mr Clarke was qualified under the Act to provide immigration services to the three individuals identified in paragraph 5; there was no dispute but that he had provided such services. In that regard, the question arose whether it was for the prosecution to prove that he was not qualified, or whether there was either a legal or an evidential burden on Mr Clarke to establish that he was qualified. The Recorder correctly approached this question in two stages, explaining:

"…In considering whether or not it is for the prosecution to prove to a jury so that he is sure the defendant was registered or whether or not for the defendant to prove that it is more likely than not that he was registered…there are two steps to be considered… firstly, I must look at sections 91 and 84 and decide whether or not the statute itself has imposed the reverse burden of proof in relation to the defendant's registration. Secondly, if I decide that the statute has imposed a reverse burden of proof I must then decide, nevertheless, whether this is compatible with the Human Rights Act 1998 and specifically with article 6 of the European Convention on Human Rights."

10. It is clear that Part V of the Act was enacted following concerns relating to the competence of immigration advisers. It "creates a statutory scheme to regulate both unqualified and, to a degree, legally qualified advisers" (per Lord Williams of Mostyn, introducing the proposed legislation in its Second Reading (Hansard, HL Debs. Vol 603, Col. 179, 29 June 1999). With identified penalties on summary conviction and conviction on indictment, Section 91(1) of the Act creates an offence both, summary and indictable, in these terms:

"A person who provides immigration advice or immigration services in contravention of section 84 or of a restraining order is guilty of an offence…."

11. The ways in which an individual may become a qualified person for the purposes of the 1999 Act, or be exempt from its provisions are governed by the comparatively complex provisions of section 84 of the 1999 Act. This section (as amended by section 37 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 as from 1 October 2004) provides:

"(1) No person may provide immigration advice or immigration services unless he is a qualified person;

(2) A person is a qualified person if he is-

(a) a registered person;

(b) authorised by a designated professional body to practise as a member of the profession whose members the body regulates;

(c) the equivalent in an EEA State of-

(i) a registered person, or

(ii) a person within paragraph (b),

(d) a person permitted, by virtue of exemption from a prohibition, to provide in an EEA State advice or services equivalent to immigration advice or services, or

(e) acting on behalf of, and under the supervision of, a person within any of paragraphs (a) to (d) (whether or not under a contract of employment).

(3) Subsection (2)(a) and (e) are subject to any limitation on the effect of a person's registration imposed under paragraph 2(2) of Schedule 6.

(4) Subsection (1) does not apply to a person who –

(a) is certified by the Commissioner as exempt ("an exempt person");

(b) is employed by an exempt person;

(c) works under the supervision of an exempt person or an employee of an exempt person; or

(d) who falls within a category of person specified in an order made by the Secretary of State for the purposes of this subsection.

(5) A certificate under subsection (4)(a) may relate only to a specified description of immigration advice or immigration services.

(6) Subsection (1) does not apply to a person –

(a) holding an office under the Crown, when acting in that capacity;

(b) employed by, or for the purposes of, a government department, when acting in that capacity;

(c) acting under the control of a government department; or

(d) otherwise exercising functions on behalf of the Crown.

(7) An exemption given under subsection (4) may be withdrawn by the Commissioner."

12. Without seeking to be exhaustive, it is evident from this provision that there are many ways in which a person might be qualified to provide immigration advice or services. Putting to one side those holding office under the Crown or employed by a government department, he or she may be registered (by OISC), authorised by a professional body as a member of that profession (eg as a barrister, solicitor or member of ILEX), hold registration from the equivalent to OISC or a professional body or otherwise by virtue of some exemption be permitted to provide such services in an EEA state, act on behalf or under the supervision of any such person, be certified exempt by OISC or be employed or supervised by such an exempt person or otherwise be specified by Order. The list clearly covers an enormous range of people and provides for qualification through a very large number of potential mechanisms or routes.
13. The starting point for any analysis of the burden of proof remains the famous dictum of Lord Sankey in Woolmington v. DPP [1935] AC 462 , referring to the "golden thread … that is the duty of the prosecution to prove the prisoner's guilt" albeit "subject to any statutory exception". The phrase "statutory exception" is not limited to express statutory exception but extends to the imposition by Parliament of such a burden of proof "either expressly or by necessary implication" (see R. v. Hunt [1987] 1 AC 352 per Lord Ackner) which included not only the necessary implication contained within section 101 of the Magistrates Courts Act 1980 ("Where the defendant to an information … relies for his defence on any exception, exemption, proviso, excuse or qualification …. the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him …") but also to trials on indictment (Hunt specifically approving the Court of Appeal decision of R. v. Edwards [1975] 1 QB 27 to that effect: see per Lord Griffiths at 375-376).
14. As a matter of common law, therefore, the position is best summarised by Lord Griffiths in Hunt to the effect that a statute may place a burden of proof upon a defendant whether the matter is triable summarily or on indictment if such a burden is appropriate on the true construction of the statute even where it does not expressly provide for it. He explained (at page 374A):

"I would summarise the position thus far by saying that Woolmington [1935] AC 462 did not lay down a rule that the burden of proving a statutory defence only lay upon the defendant if the statute specifically so provided: that a statute can, on its true construction, place a burden of proof on the defendant although it does not do so expressly: that if a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely, a burden that has to be discharged on the balance of probabilities.

The real difficulty in these cases lies in determining upon whom Parliament intended to place the burden of proof when the statute has not expressly so provided. It presents particularly difficult problems of construction when what might be regarded as a matter of defence appears in a clause creating the offence rather than in some subsequent proviso from which it may more readily be inferred that it was intended to provide for a separate defence which a defendant must set up and prove if he wishes to avail himself of it. This difficulty was acutely demonstrated in Nimmo v Alexander Cowan & Sons Ltd. [1968] A.C. 107. Section 29(1) of the Factories Act 1961 provides:

'There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place, so far as is reasonably practicable, be made and kept safe for any person working there.'

The question before the House was whether the burden of proving that it was not reasonably practicable to make the working place safe lay upon the defendant or the plaintiff in a civil action. However, as the section also created a summary offence the same question would have arisen in a prosecution. In the event, the House divided three to two on the construction of the section, Lord Reid and Lord Wilberforce holding that the section required the plaintiff or prosecution to prove that it was reasonably practicable to make the working place safe, the majority, Lord Guest, Lord Upjohn and Lord Pearson, holding that if the plaintiff or prosecution proved that the working place was not safe it was for the defendant to excuse himself by proving that it was not reasonably practicable to make it safe. However, their Lordships were in agreement that if the linguistic construction of the statute did not clearly indicate upon whom the burden should lie the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to draw any such inference from the language of a statute."

15. This approach was adopted in R. (on the application of Grundy & Co Excavations Ltd and Sean Parry) v Halton Division Magistrates' Court and the Forestry Commission [2003] EWHC 272 (QBD). The Divisional Court held that a reverse legal burden applied to defendants accused of an offence under section 17 of the Forestry Act 1967 which, in specified circumstances, created an offence of felling a tree without a felling licence. Giving the judgment of the Court, Clarke LJ (as he then was) identified the principles (at paragraph 23) in these terms:

"It is thus clear that, while the general principles are those set out in Edwards, each case depends upon the construction of the particular statute. The question in each case will be whether the provision concerned is an 'exception, exemption, proviso, excuse or qualification' within the meaning of section 101 of the Magistrates' Courts Act 1980. It is also clear from Hunt, and indeed from the express terms of section 101, that in such a case 'the burden of proving the exception, proviso, excuse or qualification, shall be on the defendant'.

As I read the decision in Hunt, the House rejected the submission that any burden on the accused should be construed as evidential and not legal… Lord Griffiths rejected the submission in this way, at page 376A to B:

'My Lords, I am, of course well aware of the body of distinguished opinion that urges that wherever a burden of proof is placed upon a defendant by statute the burden should be an evidential burden and not a persuasive burden, and that it has the support of the 11^th Report of the Criminal Law Revision Committee, Evidence (General) 1972 (Cmnd 4991). My Lords, such a fundamental change is, in my view, a matter for Parliament and not a decision for your Lordships' House.'

It is thus quite clear that where, applying the principles in Edwards and Hunt and the provisions of section 101 of the Magistrates' Courts Act 1980 there is a burden on the accused, it is a legal burden and not an evidential burden."

16. In reaching this conclusion, the Court took account of the practical considerations referred to in Hunt. As Mr Perry, for the Crown, argued: if no burden was placed on the accused, the prosecution in R. (on the application of Grundy & Co Excavations Ltd and Sean Parry) v Halton Division Magistrates' Court and the Forestry Commission [2003] EWHC 272 (QBD) would have to negative all the factual situations provided for by the Forestry Act notwithstanding that the facts required to bring a defendant within the exceptions are within his own knowledge and not difficult for him to establish.
17. This analysis of the common law must be read subject to Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms ("the Convention") which presumes innocent "everyone charged with a criminal offence … until proven guilty according to law". The impact of this requirement on provisions which place a legal burden of proof on an accused was considered in Salabiaku v. France (1988) 13 EHRR 379, the Court observing (at paragraph 28):

"Presumptions of fact or law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does however require the contracting States to remain within certain limits in this respect as regards criminal law… Article 6(2) does not therefore regard presumptions of fact or law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."

18. That principle was repeated and followed in Janosevic v. Sweden [2004] 38 EHRR 473, in which the Court observed that:

"… in employing presumptions in criminal law, the Contracting States are required to strike a balance between the importance of what is at stake and the rights of the defence; in other words, the means employed have to be reasonably proportionate to the legitimate aim to be achieved."

19. The House of Lords has analysed the impact of the Convention in relation to a number of circumstances in which reverse burdens of proof have been argued. As a matter of generality, Lord Hope of Craighead adopted the suggestion of counsel in these terms (at 386A):

" [I]t may be useful to consider the following questions: (1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused – does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or (I would add) to which he readily has access? (3) what is the nature of the threat faced by society which the provision is designed to combat? It seems to me that these questions provide a convenient way of breaking down the broad issue of balance into its essential components, and I would adopt them for the purpose of pursuing the argument as far as it is proper to go in the present case. "

20. In R. v. Lambert [2002] 2 AC 545, the House of Lords, while recognising that the presumption required by Article 6(2) was not absolute, determined that it would not be compatible with that provision 6(2) to interpret s. 28 of the Misuse of Drugs Act 1971 as imposing on a defendant the burden of proving that he was unaware that the contents of a bag in his possession consisted of prohibited drugs. Lord Steyn (at paragraph 38) spoke of the need to consider "whether there was a pressing necessity to impose a legal rather than an evidential burden on an accused". Lord Clyde distinguished between acts "truly criminal" and those regulated in the public interest. He observed that this particular offence carried with it a potential sentence of life imprisonment and stated:

"A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many are relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy."

21. There are other examples of the Court considering reverse burden provisions. R. v. Johnstone [2003] 1 WLR 1736 concerned section 92 of the Trade Marks Act 1994 which creates the offence of being in possession of goods that infringe a registered trade mark punishable on indictment with up to 10 years' imprisonment. The House of Lords held that the reverse burden within section 92(5), creating a defence on proof that the defendant had a reasonable believe that the goods were not infringing, was proportionate on the basis that the facts were within the defendant's own knowledge, that he had engaged in trade in branded products knowing of the risk of counterfeit goods and that Parliament had primary responsibility for policy decisions as to the constituents of the offence.
22. A reverse burden was similarly also upheld by the House of Lords in relation to an offence of being in charge of a motor vehicle while being over the prescribed alcohol limit contrary to s. 5(1)(b) of the Road Traffic Act 1988. The reverse burden defence of a defendant proving that there was no likelihood of his driving while over the limit contained within s. 5(2) was proportionate and not objectionable: Sheldrake v. DPP [2005] 1 AC 264. On the other hand, an appeal argued at the same time (Attorney General's Reference (No 4 of 2002) and reported with Sheldrake, concerned s. 11(1) of the Terrorism Act 2000 which creates the offence (with a maximum penalty of 10 years' imprisonment) of being a member and professing to be a member of a proscribed organisation. In that case the House decided, by majority, that although section 11(2) of that Act (which provides that it is a defence to prove that the organisation was not proscribed when the defendant became a member, or began to profess to be a member, and that he had not taken part in any of its activities while it was proscribed) imposed a legal burden, it was disproportionate to the legitimate aim of the legislation and should be read down to being an evidential burden only.
23. In this conjoined appeal, Lord Bingham of Cornhill analysed both domestic and Strasbourg authorities and summarised (at paragraph 21):

"From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirements of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgement on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."

24. We ought also to mention R. v. Opwa-Otto [2004] EWCA Crim 251 which concerned the provisions under consideration in this case. No point was taken as to the proper interpretation of the Act or the issue of a reverse burden but, giving the judgment of the court, Butterfield J observed that it had been common ground at the trial ("and rightly so") that once it had been proved that the appellant had provided immigration advice or services, he bore the burden of proving, on the balance of probabilities, that he was a qualified person within the meaning of section 94. Having said that, we recognise that this observation was clearly obiter and had not been the subject of detailed argument.
25. In the written Perfected Grounds in support of the appeal against conviction, counsel who then acted for Mr Clarke relied on Lord Bingham's analysis in Sheldrake (set out in paragraph 23 above). He argued that the reverse burden did not apply in this case, that there was no authority to the contrary, and that the form completed by Mr Clarke had no basis in law containing, as it did, numerous errors. Mr Clarke's written submissions do not take this particular issue any further and his Reply to the Respondent's skeleton (which analysed the above line of authority in great detail) only observes that it would neither be onerous nor complicated to confirm whether an individual is qualified or not: the OISC have a list, on a data base, of all registered advisers located up and down the country divided both geographically and in alphabetical order. That the OISC knows whom they have registered is not, however, the entire point: those qualified to provide immigration advice and services is far wider than those whom the OISC have registered.
26. Bearing in mind the approach identified in both domestic and Strasbourg jurisprudence and making every allowance for the vital importance of ensuring that both factual and legal presumptions are kept within reasonable limits and not arbitrarily imposed or lacking in proportion, we have no doubt that the imposition of a legal burden to establish himself as qualified within section 84(2) of the Act is both justified and proportionate. We do so for the following reasons.
27. First, in order to transfer the onus to a defendant in cases such as these, the prosecution must first establish, to the criminal standard, that a defendant provided immigration advice and/or services as defined by section 82 of the Act. In other words, a defendant will have been engaged in a course of conduct (either the giving of advice or the provision of services such as advocacy for a Tribunal) for someone seeking such service who will almost invariably be legally unsophisticated and not otherwise well equipped to participate as fully as otherwise might be the case in litigation concerned with immigration status.
28. Secondly, we agree that a legal burden on a defendant in these circumstances does not impose an onerous obligation. He (or she) will be well aware of the route whereby the criteria of the Act is satisfied and will have ready access to information or evidence to establish this qualification. Furthermore, although the OISC will be aware of those whom it has registered, there are many other routes to qualification. The OISC would not only have to know whether a particular defendant was authorised by a professional body to practice as a member of the profession not only in the United Kingdom but also in every other state of the European Economic Area. Beyond authorisation by that body, the OISC would also need to know (or be able to ascertain) whether a particular person was acting on behalf of, or under the supervision of, such a person either in this country or the E.E.A. the OISC would also have to be aware of every potential exemption from a prohibition to provide advice or services equivalent to immigration advice or services in an E.E.A. state. If the burden was evidential, not legal, it would be sufficient for a defendant merely to raise the possibility of qualification by reference to employment by a lawyer in a foreign country thereby requiring the OISC to undertake a costly investigation in circumstances where if the authority was genuine, it would be a simple matter for the defendant to prove it. Far from being simple for the prosecution to disprove qualification, it would be exceedingly complex.
29. We return to the purpose of the legislation which is to combat the menace of unqualified (and potentially unscrupulous or incompetent) so called 'advisers' preying on the vulnerable and thereby undermining public confidence in the system available for those seeking immigration services or advice; qualification also requires other minimum standards such as insurance. We say immediately that no criticism is made of Mr Clarke's advice and neither is it even suggested that he is either unscrupulous or incompetent; the point, however, is addressed to the threat which the legislation is intended to counter.
30. Finally, although the offence is punishable on indictment by a maximum of two years' imprisonment, we agree with the formulation advanced by the Respondent that the offence created by s. 91 is "a statutory offence … concerned to regulate the conduct of some particular activity in the public interest" which is the test identified by Lord Clyde in Lambert: see paragraph 20 above.
31. In the circumstances, we conclude that the Recorder was correct to construe this legislation as imposing a legal burden on Mr Clarke to prove, on the balance of probabilities, that he was qualified within section 84(2) of the Act. This ground of appeal fails.

The Qualification Issue

32. Both in the Perfected Grounds of Appeal and in the document subsequently submitted by Mr Clarke, it is argued that the Recorder was wrong to direct the jury that to be qualified under s. 84 of the Act, an individual had to be registered, that is to say, physically registered with OISC. It is suggested that there is no reason for believing that his previous registration with the immigration organisations ASIRT and/or ICS is not sufficient. It is further argued that supervision by an exempt person is sufficient to qualify. In that regard, reliance is placed on the regulatory requirements published by the OISC, but since superceded, called "The Commissioner's Rules" ("the Rules"), paragraph 5(3) of which at the relevant time provided:

"As in the Act a 'registered person' includes a registered person and those employed by them or working for them. It also includes the registered person both as an individual or as an organisation which employs them or supervises registered advisers".

33. Mr Clarke argues that interpretation of moot points within the regulatory framework has been left to the individual discretion of caseworkers and that one such interpretation is encapsulated in the phrase "registered in his own right" albeit that such a phrase is not mentioned in the Act. He observes that if the OISC set the lead in its interpretation, it should not be surprising that advisers, unwittingly, follow the same course "which is adopting a misinterpretation of the Act". He argues that where an adviser meets the standard, he must be registered. In his case, he was registered during the relevant period; further, both ICS and its proprietor were registered with his name as a 'qualified' adviser. Thus, all three were registered and qualified to offer immigration services whether in conjunction with the organisation or independently (our emphasis).
34. Mr Perry accepts that the Rules are inapt and might have given the impression that a registered person includes someone employed by a registered person. He submits, however, that the Rules are published pursuant to the statutory obligation placed upon OISC to regulate the provision of immigration advice and in accordance with paragraph 1(2) of Schedule 5 of the Act and that, on its true construction, the (now replaced) paragraph 5(3) means no more than that all persons who are employed by a 'registered person' (whether an individual or organisation) are bound to comply with the Commissioner's Rules. It does not mean that once a person has been employed as an adviser by a registered organisation, that person is qualified indefinitely to provide immigration advice and services regardless of whether they remain in the employment of the registered organisation. He argues that to give the paragraph the interpretation claimed by Mr Clarke would serve entirely to defeat the regulatory scheme created by the Act.
35. We return to the terms of section 84 of the Act which, subject to exemptions or other circumstances (such as office holding under the Crown or government employment) prohibits the provision of immigration advice or services unless 'a qualified person' and then carefully defines who are qualified for these purposes. Qualification can be obtained by registration or authorisation by professional body here or in another EEA state. Additionally, a person not registered or authorised may provide these services if "acting on behalf of, and under the supervision of, a person" who is otherwise qualified (our emphasis). It is thus clearly not sufficient merely once (or for a period) to have acted on behalf of a qualified person; that person (which can include a body) must both be the principal and the supervisor in relation to the immigration advice or immigration services then being offered or provided. In our view, the Rules do not (and could not) suggest to the contrary: the registration to which reference is made lasts no longer and is no wider than the provision of advice or services for and as part of that employment or agency.
36. In the circumstances, we agree with the submissions made by Mr Perry that the fact that a person has once been qualified to provide immigration advice or services (as an employee or agent of a qualified person) does not allow that person to give advice or offer services otherwise than for and under the supervision of the qualified person. There would be absolutely no point to the registration provisions if a person who had once been employed by a solicitor to give such advice could claim to be entitled to do so without the supervision of that solicitor and with no protection for those to whom advice is being offered.
37. Mr Clarke also seeks to rely on fresh evidence in the form of a statement from Mr Zain Siddiqi of Saints Solicitors to the effect that Mr Clarke was working in the conduct of these cases under the auspices of Saints Solicitors. He was also summoned for offences contrary to section 91 of the Act and, in particular, pleaded guilty to five offences of aiding, abetting counselling and procuring the provision of immigration advice and services by an unqualified person, Gurvinder Suthi, in relation to two of the three persons with whom Mr Clarke was concerned. Although the statement is dated 16^th January 2007 (ie after the trial but before sentence), it is not suggested that Mr Clarke or his advisers were not aware of Mr Siddiqi at the time of the trial. In a communication to the court, he explained:

"Mr Z. Siddiqi … one of the co-accused, spent his Christmas holiday abroad. This is not the reason for him not being called to give evidence on the 4^th, 5^th, 6^th January 2007 but it was a contributory factor. It also prevented him from making the statement signed and later submitted by him in my defence on those dates. As care and conduct of my defence was left to my legal representatives, I am unable to tell you why Mr Siddiqi was neither called nor subpoenaed to attend court."

38. In the circumstances, it is clear that this evidence was known about and could have been made available for the trial: furthermore, and in any event, it does not assist Mr Clarke. At the trial, having dealt with the Prosecution case that he was working for Qureshi & Co, the Recorder explained the position in the summing up in these terms:

"[I]t is [Mr Clarke's] evidence that he was working for Saints Solicitors. Well, will that help him? As a matter of law, it does not …. Because we heard from Mr Hanley that Saints Solicitors were run by Mr [Siddiqi] based in Birmingham who had been a solicitor for only about 12 months. He had been a solicitor since February 2004 and that means it is not long enough … by the time of the events in this indictment to be in a position to supervise Mr Clarke as an adviser under immigration services even though he was a solicitor and although solicitors are allowed to have people working for them to carry out immigration work. They have to be solicitors for three years within the preceding ten years and also go on, it seems, relevant training courses in that period before they are allowed somebody such as Mr Clarke to properly carry out immigration work for them. So on the evidence, the agreed evidence it seems from prosecution and defence, it will not help Mr Clarke by saying "I was working for Saints Solicitors" because they could not as a matter of law properly supervise him for the Act."

39. Whatever might have been Mr Clarke's understanding, the evidence of Mr Siddiqi does not advance the case that he was qualified to provide services for the three persons identified in the indictment. Thus, quite apart from any explanation for the failure to adduce the evidence within section 23(2)(d) of the Criminal Appeals Act 1968, it is quite clear that this evidence affords no grounds for allowing the appeal (see section 23(2)(b) of that Act). We decline to admit this evidence. This ground of appeal also fails.

The Fairness Issue

40. In his closing submissions, it is clear that counsel then appearing for Mr Clarke suggested reasons to acquit him other than reasons specifically linked to the facts and the law. The Recorder dealt with the meaning of qualification under the Act and analysed the law surrounding each of the possible routes to qualification. Before turning to the evidence, he dealt with the suggestion made by counsel that the jury could find Mr Clarke not guilty "as effectively to send a message… to the OISC" and went on:

"Ladies and gentlemen, just as it is a defendant's right to have a trial and to contest the case it is actually your right to return whatever you wish. So you do have the right to return whatever verdict you wish. But with every right comes a duty, doesn't it, and your duty is to return a verdict in accordance with the oath that each of you took at the start of the trial. So, just as I suppose it is your right, if you wanted to return a verdict to send a message, you have got to bear in mind that your right is tempered with your duty and your duty must be to return a true verdict or verdicts according to the evidence. So when we look at the evidence now in a second or two you are going to hear me say, I make no bones about it, that as a matter of law, on the evidence that you heard, both from the prosecution and indeed from Mr Clarke's own lips, he has not provided any evidence which suggests that he is qualified or was qualified on each of those 3 occasions but it is not my function and you will not hear me saying that means I am telling you what your verdicts must be. You have to decide what your verdicts are but you have to be true to your oaths, do you not? If you agree with that then you have to decide what that verdict is. So keep in mind, if I may say so, the oath that you took and the duties that you have in accordance with those oaths…"

41. Later, dealing with ASIRT and ICS, the Recorder went on:

"We heard about Mr Clarke's work for ASIRT and ICS. You have to decide. I just wonder where it takes us because the fact is Mr Clarke is not saying that when he did the 3 tribunals that relate to this indictment that he was working for either ASIRT of ICS and you have to take it from me that as a matter of law that he could only take advantage of their registration if he was working for them, supervised by them, and working for them. So actually his registration on each of those two certificates, as a matter of law, is irrelevant to this case, so he is not qualified through ASIRT. He is not qualified through ICS.

You also heard from Mr Harris that he was not qualified in his own right either because, of course, he was not on the register. He was applying for it but had not got that far and still has not got that far and Mr Clarke told you himself today he is still waiting. He is awaiting the outcome of this case before the Commissioner's office makes a decision whether he goes on the register in his own name. So that is the essence of Mr Harris' evidence."

42. The Recorder then proceeded to analyse the routes through which a person qualifies to provide immigration advice and services as set out in section 84 of the 1999 Act and directed that:

"…under all the various headings under the Act he was not qualified. It is as simple as that. That is the evidence as it came out.

You have to decide. I will not be saying to you what your verdict must be because it is not my job. You have to decide in accordance with your oaths where that leaves you. If you came to the conclusion he was working for Qureshi and Co. then he would not be qualified either because we know Qureshi and Co. did not allow that."

43. At the conclusion of his summing up, the Recorder said:

"As a matter of law I tell you now that there are none of the circumstances under the Act which suggests that he was qualified. You have to decide what you make of that as a matter of law. The Act does not help him one little bit, whatever his beliefs."

44. Mr Clarke challenges this approach to the summing up, complaining that the Recorder devoted a great deal of energy towards what he felt was the direction in which the jury should concentrate their minds, namely to return a verdict of 'Guilty'. After such verdicts were returned, he apparently observed (not reflected in that part of the transcript which has been provided) that "there was no other verdict you could have come back with really". He maintains that the underlying direction was to convict.
45. The difficulty facing Mr Clarke is that it was not in dispute that he had provided immigration advice and services to the three persons named in the indictment and, based on the evidence placed before the court, there was no evidence upon which the jury could conclude that he was qualified so to do. In such circumstances, it is not very long ago that judges would, indeed, have directed the jury, being true to their oaths faithfully to try the defendant and return true verdicts according to the evidence, to return verdicts of guilty. That approach has now been overtaken by R. v. Wang [2005] UKHL 9, [2005] 1 WLR 661 in which the House of Lords determined that the decision of all factual questions, including the application of the law as expounded by the trial judge to the facts as they found them to be was a matter for the jury alone.
46. In that regard, giving the considered opinion of the Committee, Lord Bingham of Cornhill observed that the analysis of Mantell LJ in R. v. Kelleher [2003] EWCA Crim 3525 contained "a very lucid and accurate exposition of the law". He said (at paragraph 42):

"For our part we can quite see the distinction between a ruling that a defendant has not satisfied the evidential burden necessary to raise a particular defence which may lead, quite properly, to the issue being removed from the jury's consideration, but, as it seems to us, in every case it will be necessary for the prosecution to establish an affirmative case. So even though it may be ruled, quite correctly, that the defence of lawful excuse is not available it is still for the Crown to prove to the satisfaction of the jury that the offence of criminal damage has been committed. It matters not that the evidence is overwhelming or even that by his evidence the appellant has seemingly admitted all the constituents of the offence; it remains for the jury to return its own voluntary verdict."

47. That is exactly how the Recorder approached this case; it is quite clear from all that he said that he firmly left the jury to return its own voluntary verdict. That is not the same as saying that he had to direct the jury to accord weight to arguments that he considered (accurately) to be specious in law. Mr Clarke was entitled to a summing up which accurately reflected what the law was and what the unchallenged facts demonstrated, leaving the jury to resolve any outstanding issues of fact; he was not entitled to a summing up which reflected what he, Mr Clarke, believed the law ought to be or what he considered ought to be accepted as fact irrespective of the evidence. That is exactly what he received. The approach of the Recorder was exemplary; this complaint is also without merit.
48. It follows that each of the grounds upon which this appeal against conviction has been mounted fails; accordingly, it is dismissed.

Sentence

49. At the time of his conviction, Mr Clarke was 53 years of age and of prior good character. The Recorder spoke of his "good work in terms of immigration appellate authority and tribunal work" but expressed himself clear that he knew that he had lost his accreditation and decided to carry on working nevertheless. He observed that one of the "problems" of what he had done was:

"…to run the risk that, if something goes wrong, you were not, as you would have been under the umbrella of another company which was able to provide such work, insured – there would have been no come back; there was no possibility of that person able to point to you and say there should be some sort of reparation – and insurance is an important feature of this particular work."

50. The Recorder went on to comment that he had been convicted on overwhelming evidence and that he should put something back into the community by performing unpaid work. It was in those circumstances that he ordered Mr Clarke to carry out 100 hours unpaid work on each of the three counts concurrently.
51. We have already observed that Zain Siddiqi pleaded guilty before the Magistrates to five offences under section 91; he was fined a total of £1,000 and ordered to pay £578.65 in costs and £275 in compensation. These offences consisted of aiding abetting counselling and procuring the provision of immigration services by an unqualified person, Guvinder Suthi, and, as we have observed, two of these pleas concerned two of those involved with Mr Clarke. In addition, Guvinder Suthi and Tasib Yusaf similarly pleaded guilty to six offences and were fined £1,000 and £650 in each case respectively with similar orders for costs and compensation. Included within the offences were pleas to providing advice to the three persons in respect of whom Mr Clarke was convicted. We know nothing about their means or financial position (save that we are aware that Mr Siddiqi is a solicitor and was practising as Saints Solicitors).
52. We have no doubt that this was a serious matter; the law is designed to protect those seeking immigration advice and services by regulating those who provide them. This regulation not only maintains standards, but also provides for insurance cover. As to that, Mr Clarke recognises that he would not have been covered by public liability insurance but observes:

"Whilst this is a serious omission on my part, I was not charged for not being insured whilst giving immigration advice and services."

If Mr Clarke is seeking to argue that the lack of insurance is irrelevant, we do not agree. One of the serious consequences of his lack of qualification to advise the three persons in respect of whom he was convicted is the fact that he did not have insurance: it aggravates the offences that he has committed.

53. In his application for leave to appeal against sentence, Mr Clarke argued that the fines imposed on his co-defendants (all full time business men) allowed them to treat the matter as "nothing more than a minor inconvenience". He submits that the fact that he was unemployed meant that the Recorder chose to sentence him to unpaid work which, in the long run, imposed a greater financial burden because he would not receive expenses, would suffer loss of earnings and the hours that he would have to work did not equate with earnings he would otherwise obtain from paid work. He also observed that he incurred expenses of £500 travelling to courts in Birmingham and Manchester.
54. More recently, Mr Clarke has argued that a sentence of unpaid work offends the Human Rights Act 1988 on the basis that it constitutes forced labour within Article 4(2) of the Convention. He cites Van der Mussele v. Belgium 6 EHRR 163 which concerns a pupil avocat not paid for a case that he undertook and which defines compulsory labour as work exacted under the menace of a penalty and performed against the will of the person concerned. Article 4(3)(a), however, exempts work required in the ordinary course of detention imposed according to Article 5 (which prevents deprivation of liberty otherwise than in accordance with a procedure which includes criminal conviction). A sentence of unpaid work does not constitute a breach of Article 4 of the Convention.
55. We do, however, believe that there is force in the argument that Mr Clarke's offending (serious though it is) does not, at this stage, reach the threshold for a community penalty. It was not challenged that the work that he did for the three persons whom he advised was competent; the gravity of his offending was, as the Recorder found, his deliberate decision to carry on working knowing that he had lost his accreditation. That may have consequences upon his ability to obtain accreditation in the future, as to which we do not comment, but in our judgment the gravity of this offending, for a man of prior good character, could have been met with a financial penalty. The suggestion (made by Mr Clarke) of an absolute discharge merely reinforces that he does not understand or appreciate the seriousness of what he did. In the circumstances, we grant leave to appeal against sentence and treat the hearing as the appeal.
56. We have little evidence of Mr Clarke's means although are bound to have regard to them when fixing a financial penalty. He speaks of unemployment but equally observes that "the hours to which I was sentenced on work without pay do not equate with earnings I would otherwise obtain from paid work". He clearly does not have the means of his employed co-defendants although neither does he have the benefit of having pleaded guilty. In the circumstances, doing the best we can, we quash the sentence of unpaid work and, in its place, order that, on each count, he should be fined the sum of £200, making £600 in all. He should also make a contribution of £300 (modest in light of the costs incurred) to the costs of the prosecution. Thus, in place of the sentence passed by the Recorder, we impose a total financial penalty of £900. That is not to make light of the offending; if Mr Clarke is convicted of similar offences in the future, he can expect a very much more severe sentence. To that extent the appeal against sentence is allowed.
57. Neither party need attend the court when this judgment is handed down. We invite Mr Clarke to make submissions as to the rate at which he is prepared to offer to pay the penalty now imposed, which we will fix based, upon his submissions, when we do so.