England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		8 June 2017

1. MR JUSTICE HOLROYDE: On 11th June 2013 in the Crown Court at Croydon, this applicant was convicted of an offence of obtaining leave to enter or remain in the United Kingdom by deception, contrary to section 24A(a) of the Immigration Act 1971. Her co-accused Mr Rudy Puljhun was convicted of an offence, contrary to section 25 of that Act, of doing an act to facilitate the commission of a breach of UK immigration law by a non-EU person. The essence of the case brought by the prosecution against both defendants was that they had entered into a sham marriage. Having been convicted, each was sentenced to 15 months' imprisonment.
2. Nearly three years later, on 2nd March 2016, the Crown Prosecution Service, in proper discharge of their continuing obligations in relation to disclosure, wrote to the applicant's solicitors to inform them that Miss Harkins, who had been the officer in charge of the investigation in this case and had given evidence for the prosecution, had been severely criticised by the judge in a trial in October 2014. A defendant in that other trial was the Reverend Ntege, who officiated at the church at which the applicant and Mr Puljhun had gone through a ceremony of marriage.
3. Having received that information from the Crown Prosecution Service, an application was made by or on behalf of the applicant for an extension of time in which to apply for leave to appeal against her conviction. The application was refused by the single judge. It is now renewed to the full court.
4. A further short extension of time is now requested because the renewal itself was out of time. The applicant is now acting in person and she has explained the reasons for that short delay. She has also put in further written grounds which amplify, though do not significantly alter, the grounds considered by the single judge. In addition she has today produced further documentation, in which she brings to the court's attention her concerns about Mr Puljhun's mental health and issues relating to that in connection with the trial.
5. At the trial the critical issue, so far as the case against the applicant was concerned, was whether the jury were sure that the marriage was a sham from her point of view. Her case, faithfully and fairly presented by the learned judge during the summing-up, was that as far as she was concerned the marriage was a genuine one based upon a loving relationship. She contended that all documentation relating to the marriage, and to the steps leading up to the marriage, had been genuine documents.
6. The prosecution however advanced what in our view was a very strong case against her, relying on a substantial body of circumstantial evidence as supporting the inference that the marriage was a sham. Amongst the matters relied upon by the prosecution were these. First, there were admitted lies in the documents submitted by the couple in order to marry. Secondly, the prosecution pointed to the fact that the marriage ceremony took place in a church which was a considerable distance from the applicant's home, was not her regular place of worship and was described by her in unflattering terms. Thirdly, the prosecution pointed to the fact that Mr Puljhun lived in Holland: he was considerably older than the applicant, he was the father of four children (who as we understand it lived with him in Holland) and the prosecution were able to show that the couple were separated from one another for very lengthy periods of time. In addition, the prosecution contended, although this was hotly disputed by the defence, that Mr Puljhun's claims as to his employment were fictitious and were simply designed to lend credibility to the sham marriage. By the end of the trial the prosecution were also able to point to significant differences in the evidence given by the applicant and by Mr Puljhun to the jury.
7. It was in those circumstances that the jury returned their guilty verdict. The question which now arises is whether any doubt is cast upon the safety of that conviction by later events relating to Miss Harkins. As we understand it, Miss Harkins is presently under investigation.
8. However badly she may be found to have behaved in relation to the later trial, the important issue for us to consider is whether the fact of any later misconduct by Miss Harkins casts any doubt on the safety of this applicant's conviction. The applicant submits that later events show that Miss Harkins had been determined to secure the conviction of the Reverend Ntege. The applicant suggests that Miss Harkins would have regarded conviction of this applicant as providing helpful support for her intended prosecution of the Reverend Ntege. On that basis, the applicant argues that Miss Harkins must therefore have resorted to impropriety in the investigation and/or presentation of the case against this applicant in order to secure her conviction so as to assist the future prosecution of the Reverend Ntege. In one of her written submissions the applicant puts it in this way:

"If Miss Harkins and her team were able to suppress evidence and perjure herself in the Reverend Ntege case, there is no guarantee that she would not have done the same in me and my husband's case. Furthermore, the jury were led to believe that they were presented with a high ranking immigration officer who on the face of it had no motive to lie or mislead the court and was portrayed as a credible witness. It is submitted to be a departure from the reality when one considers everything that came to light on the whole case and investigation."

In her oral submissions to the court this morning, the applicant has pointed to the fact that Mr Puljhun has had the misfortune to suffer from mental ill-health for which he has required medication for many years. She tells us that one of the matters which arose at trial was a criticism of Miss Harkins for failing to ensure that Mr Puljhun was appropriately assessed and, it may be, supported by an appropriate adult when being interviewed. We have considered that additional point, but we do not think it adds significantly to the other matters which the applicant has raised in writing.

9. The insuperable problem which the applicant faces in this application is that in our judgment she has put forward no arguable ground for saying that any later impropriety by Miss Harkins in the prosecution of Reverend Ntege could have any bearing on the safety of this applicant's conviction. It seems to us that her grounds of appeal are based on what are in truth speculative assertions, for which no foundation has been shown, as to how Miss Harkins would or might have behaved in this case. It is apparent from the summing-up that at trial no substantial issue was raised in relation to Miss Harkins' credibility. The grounds of appeal do not even now identify any substantial issue of that kind. Similarly, it does not appear that any allegation was made at trial about any significant impropriety in the investigation of this case, and again the grounds of appeal do not identify any substantial point in this regard. Moreover, when we read the grounds of appeal, we do not find in them any echoes of the allegations of impropriety advanced by the defence in the later trial of Reverend Ntege.
10. In short, whilst we have considered the grounds of appeal afresh and have taken into account the additional grounds and the additional material provided by the applicant, we reach the same conclusion as did the single judge when he refused leave: namely, that there is no arguable basis for challenging this conviction as a result of criticism made by a judge in a later trial of the conduct in that later trial of Miss Harkins. In those circumstances, no purpose would be served by our enquiring further into the merits of the applications for an extension of time because we are satisfied that there is no arguable ground of appeal. For those reasons all the applications are refused.