England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10 October 2013

1. MR JUSTICE SILBER: The issue raised on this judicial review application is whether the Chelmsford Crown Court was right to refuse to entertain an appeal against conviction by Ms Azar Golrokhi (the claimant) who had previously pleaded guilty to an offence at the Harlow Magistrates' Court on 27 August 2008. The Claimant had then pleaded guilty to an offence of attending an asylum interview without an identity document contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004. She appealed against that conviction to the Chelmsford Crown Court, which held that it had no jurisdiction to entertain her appeal against conviction at the Harlow Magistrates' Court because of her guilty plea.
2. The claimant is now seeking to judicial review that finding on two grounds. The first ground is that the Crown Court erred in law in finding the claimant's plea was not equivocal, because the case summary contained evidence upon which the claimant could have founded defences to the charges to which she pleaded guilty. Thus, it is said that there was an error of law which led the court to find that there was no jurisdiction to entertain the claimant's appeal against conviction. The claimant asks for an order that the matter to be remitted to the Crown Court. The second, alternative, way the case is put is that the plea of guilty of the claimant was a nullity as first it was entered on the basis of wrong advice, which goes to the heart of the issue, and second, that if proper advice had been given the plea of guilty would not have been entered. The claimant asks this court to remit the case with the direction that jurisdiction is accepted because her plea was a nullity.
3. The application is resisted by the Crown Prosecution Service, an Interested Party, in respect of the first ground on the basis that the claimant's plea was not equivocal, that there is no evidence to suggest that the court acted unreasonably in finding that the claimant's plea was unequivocal and that the reasons of the decision maker his Honour Judge Gratwick at the Magistrates was soundly based. The Crown Prosecution Service resist the second ground on the basis that the issue was not raised before the Crown Court and so the decision of the crown court cannot be impugned on this ground. Thus, it is said on behalf of the Crown Prosecution Service, that the issue of nullity does not arise. As a fall-back position, the Crown Prosecution say that even if those submissions fail, the application should be rejected because there has been undue and unjustified delay by the claimant causing prejudice to the defendant and the Crown Prosecution Service in resisting this application.
4. Permission to pursue this application was refused on paper by Mostyn J but it was granted by Cranston J. He directed that the Harlow Magistrates' Court produce all files at the hearing. Evidence has now been given in a witness statement made by Miss Janine North, who is the Operations Manager for Essex for Her Majesty's Courts and Tribunal Service, who explained that those papers have been destroyed. A letter has, however, been retained, dated 19 April 2012, which confirms that the legal adviser, which is the assistant judge's clerk, had no recollection of the case. The Harlow Magistrates' Court has taken what steps it can to establish whether any of the magistrates has any recollection of the case, but they have been unable to discover anything which would assist evidentially.
5. I now turn to the facts in this case. At about 10.20 am on 25 August 2009, the claimant, then aged 24, entered the United Kingdom arriving on a flight into Stanstead in company with a male Daniel Delavri. The claimant and Mr Delavri presented themselves at the United Kingdom Immigration where they were met by officer McFarlane. Using a Farsi interpreter, it was established that the claimant had no passport, but that she wished to claim asylum in the United Kingdom. The claimant and Mr Delavri were detained in order for an interview to take place under section 2 of the Immigration Act 1971. On 25 August 2009 both the claimant and Mr Delavri entered the screening interviews where they were unable to produce any documents to prove their identity, their nationality or their citizenship. A search of the items they had in their possession on arrival in the United Kingdom failed to reveal any such documents or any travel documents either. It did not appear that any such documents were produced to the immigration authority in the three days following the screening interview. The documentation shows that a question was raised as to why claimant had spent so long in the lavatory and whether she had been destroying documents there. On the following day, 26 August 2009, police officers arrested the claimant a Mr Delavri on the suspicion of entering the United Kingdom without a passport.
6. It is appropriate now to refer to the criminal offence with which this case is concerned. It is contained in Section 2 of the 2004 Act, the material provisions of which are set out in section 2(1) and 2(3). And they provide that:-

"2. Entering United Kingdom without passport.

(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which-

(a) is in force, and

(b) satisfactorily establishes his identity and nationality or citizenship.

(3) But a person does not commit an offence under subsection (1) or (2) if—

(a) the interview referred to in that subsection takes place after the person has entered the United Kingdom, and

(b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection."

There are defences which are available and those are set out in Section 2(4) of the Act. Which provides that:-

"(4)It is a defence for a person charged with an offence under subsection (1)—

(a) to prove that he is an EEA national,

(b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,

(c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),

(d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or

(e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document."

7. In order to construe those offences, subsections 6 and 7 set out what the terms of the particular offences mean. The offence is one which is an either way offence and it has a maximum of two years' imprisonment. Both the claimant and Mr Delavri were interviewed under caution. Before the claimant was interviewed, she requested and was provided with legal advice in the form of a solicitor, Miss Robinson of Thompson Webb & Corfield. The claimant had a conference with Miss Robinson between 2.30 pm and 3.00 pm in the afternoon, at which time Miss Robinson was provided with advanced information by the police. The claimant told Miss Robinson that she, "Did enter the United Kingdom without a passport or any other relevant documentation." Miss Robinson advised the claimant that the evidence that she had no documentation was overwhelming and that she should seek to put forward the circumstances of what happened in mitigation through the interview. From about 3.00 pm to 3.40 pm that afternoon, the claimant was interviewed and she was accompanied by a Farsi interpreter and by Miss Robinson.
8. This interview was summarised in the prosecution case summary, which shows, first, that the claimant told the police that she and Mr Delavri had recently become girlfriend and boyfriend, and second, that they had fled Iran together as a result of being arrested following their involvement in the presidential elections. The claimant explained that she had travelled to the United Kingdom using an agent and that arrangements had not been in her control. Her evidence was that she had never been personally in possession of a passport throughout her journey to United Kingdom, but that she accepted that either a genuine one or a false one would have been had to have been used to obtain the boarding card. The claimant accepted that she should have retained the document to present to the United Kingdom authorities, and she denied destroying any documents before presenting herself at the United Kingdom immigration desk. Neither the prosecution summary, nor the notes of Miss Robinson show that the claimant said that she was scared of the agent in any way.
9. On that day, the claimant was charged with the offence of entering the United Kingdom without having an immigration document that satisfactorily establishes his identity and nationality or citizenship, contrary to section 2(1) of the 2004 Act.
10. On the following day, the claimant and Mr Delavri attended Harlow Magistrates' Court where they were represented by Mr Casey, a freelance solicitor acting for Thompson Webb & Corfield solicitors. In conference with Mr Casey, the claimant confirmed that the account that she had given in her interview was correct, and it was noted that:

"While she has not produced a passport when she entered the country she accepted that in order to board the aeroplane either her actual passport or a false one had been used and that this was held by another party."

11. It does not appear from the note that the claimant explained that she was afraid of the agent. Mr Casey advised the claimant to plead guilty as she had no valid defence and the claimant then entered a guilty plea. The magistrate committed the case for sentence at the Crown Court at Chelmsford, with the claimant remaining in custody. Further clarification has been provided by and on behalf of Mr Casey, when pressed by the claimant solicitors. It was explained that:

"Having spoken to Mr Casey about the matter, he has confirmed his view, namely that Miss Golrokhi did not have a defence upon the basis of the clear facts in this case. Miss Golrokhi did not put forward a reasonable excuse for not being in possession of genuine documents, was unable to produce them, and finally, could not prove that at no stage did she travel to the United Kingdom without them."

12. The statement of facts are that the claimant confirmed that at this hearing the prosecution, Mr Casey and the legal advisers would have had possession of a case summary prepared by the prosecution that contained a summary of the interview by the claimant with the police. It is not known whether the summary of the claimant's interview was read out to the magistrates, or indeed, by them. As I have already explained, it is not now possible to ascertain that as a fact, because the Harlow Magistrates' court file relating to these proceedings has been destroyed. On 9 October 2009 the claimant and Mr Delavri appeared before his Honour Judge Bathurst-Norman at the Crown Court at Chelmsford for sentence.
13. On that occasion the claimant was represented by Miss Allinson, a barrister instructed by Thompson Webb & Corfield, solicitors. She drafted a full attendance note of what occurred. This showed that she had had a conference with the claimant using an interpreter prior to the case being called on, and there is no mention of the claimant telling her that she was scared of the agent. There was some discussion about the sentence that would be imposed and whether there would be a recommendation made for deportation. Later that day the claimant and Mr Delavri were each sentenced to 84 days' imprisonment with an order that 42 days already spent on remand would be taken into account, allowing for their immediate release.
14. On 9 February 2012, which was almost 18 months' later, an appeal had been lodged in the crown court by Frank Brezell & Partners, solicitors, on behalf of the claimant, which involved an application to change the plea of the claimant. The crown court directed that Mr Casey provide an affidavit of dealings with the claimant at the Harlow Magistrates' Court, and he duly did so on 5 March 2012.
15. On 7 September 2012, the claimant's appeal was heard by his Honour Judge Gratwick and two magistrates at Chelmsford Crown Court. The claimant was represented by Miss Cook, a barrister instructed by Frank Brezell & Partners, who has also acted for the claimant in the present application. The court was in possession of information from Mr Casey, who stated that he could not recall if the summary of the claimant's interview had been read out at Harlow Magistrates' Court on 27 August 2009. Enquiries had been made of Chelmsford Crown Court, which could not establish whether it had been read out at the hearing on 9 October 2009 either.
16. The case for the claimant was that while there was no evidence that the summary had been read out, it would have been because it was part of the case summary.
17. The appeal was dismissed with a ruling that since there was no evidence that the summary was read to the Harlow Magistrates' Court, there was no basis for finding that the pleas were equivocal.
18. In giving his ruling, which is the subject matter of the present challenge, Judge Gratwick stated that the documentation showed that there were potentially three defences available to the claimant, but that none were in fact raised at the time the plea was entered. Mr Casey did not, in fact, think they were defences available to the claimant. In addition, he explained that what had occurred in the magistrates' court was not the end of the matter because the claimant had subsequently appeared at the crown court, where she was sentenced. The sentencing court had the benefit of the interview summary, which it was agreed, revealed three potential defences, but nevertheless, "Took no view on the plea that had been entered in the lower court."
19. In his ruling Judge Gratwick made it plain in the appeal that, "No-one submits in itself that the plea was equivocal." There was no evidence which would permit of a conclusion that:

"The magistrates in the court, who heard the plea, should have considered whether they should have exercised their discretion to make or permit a change of a plea."

20. Before the appeal in March 2012 the claimant had provided a short statement in which she had stated that had she been advised that she had possible defences, she would have pleaded not guilty.
21. On 23 October 2012 the claimant made an unsigned statement in which she said she did not know what documents had been used by the agents to assist her in travelling to the United Kingdom but she had never been in possession of them. She said she was terrified of the agents and at the Harlow Magistrates' Court she only had a short time with her legal representative. She does not recall being asked by him about her journey or about what she said to the police when interviewed. She does not recall whether the interview was read or not.
22. The present judicial review proceedings were lodged on 14 December 2012. The difficulty confronting the claimant was that the power to appeal a conviction in the magistrates' court is found in section 108(1) of the Magistrates' Courts Act 1980. An appeal lies to the crown court against conviction only if the appellant had pleaded not guilty.
23. I now turn to the issues which are the two issues to which I have referred earlier. So far as the first issue is concerned, which is that relating to the equivocality of the plea, it is common ground that there are three questions that had been asked in order to determine whether a plea was equivocal. These were explained by O'Connor J, giving the judgment of this court in P (Foster) Haulage v Roberts 67 Cr. App. R. 305 at page 314, where he said that the questions which have to be asked are:

A) Was the plea equivocal?

B) Did anything occur in the proceedings to make it clear to the magistrates that they should consider exercising their discretion to permit a change of plea? and

C) Has it been shown that by not inviting a change of plea the magistrates exercised their discretion wrongly?

24. It is not disputed in this case that the plea of the claimant was not equivocal. The answer to the first of the questions is not in the negative.
25. Miss Cook counsel for the claimant accepts in respect of the second question that she cannot point to any factor which shows that matters occurred in the magistrates proceedings which would have made it clear to the magistrates that they should exercise their discretion to permit a change of plea. There is no evidence that the summary of the police interview was read to the magistrates. Indeed, there is no duty on the prosecution to open an interview summary to the magistrates. In any event, I consider that the magistrates were entitled to act on the basis that a defendant who enters a plea of guilty does so knowingly and willingly in the absence of any evidence to the contrary. The mere fact that a defendant pleads guilty after saying something inconsistent within the interview is not unusual. Indeed, it cannot in itself form the basis of finding that the plea was equivocal. In my view, there was nothing which showed that the magistrates exercised their discretion wrongly by not inviting a change of plea. For the reasons which I have explained, there is nothing to suggest to the magistrates that the claimant had entered a plea other than knowingly and with the benefit of proper legal advice. For those reasons the first ground of challenge fails.
26. I now turn to the second ground. It is accepted that this was not specifically raised in the crown court. In consequence, in my view, the decision of the crown court cannot be impugned on this ground. In reaching that conclusion I have not overlooked the submission of Miss Cook that Judge Gratwick erred, when he said at the end of the judgment, having found that the plea was not equivocal:

"It seems to this court that, regrettably, this court can take the matter no further."

27. In my view, the Crown Court cannot be criticised for not considering of its own volition the second point now put forward by Miss Cook, but which had not been put forward on the claimant's behalf in the Crown Court. This means that the second ground of challenge also fails. Even if this ground had been run in front of the Crown Court, there would have been many obstacles for the claimant to overcome. It is settled law that the court will only allow a party to appeal against a conviction where, as was explained by Simon Brown LJ in R v Boal (1992) 95 Cr. App. R. 272 at 278, it believes the defendant would probably have succeeded in being found not guilty, so that a clear injustice has been done.
28. There is much authority to show that those circumstances will in fact be extremely rare. In the case of R v Saik [2004] EWCA Crim 2936, the Court of Appeal (Criminal Division) had to consider this point. Scott Baker LJ, giving the judgment of the court, said at paragraph 57:

"For an appeal against conviction to succeed on the basis that the plea was entered following erroneous advice, it seems to us the facts must be so strong as to show that the plea of guilty was not a true admission of guilt. The advice must go to the heart of the plea, so that, as in the cases of Inns and Turner, the plea would not be a free plea and what followed would be a nullity."

29. This statement was approved and followed by Thomas LJ, as he then was, giving the judgment of the Court of Appeal (Criminal Division) in the case of R v Evans 2009 EWCA Crim 2243 at paragraph 55. More recently, in the case of the R v Abdela Mohammed et al 2011 1 CrAppR 35, this court had to consider the same issue. It approved the principle that had been enunciated by Scott Baker LJ and what had been said by Thomas LJ in evidence. It then proceeded to refer to the approach of this court in R v Boal (1992) 95 Cr. App. R. 272, in which a conviction was quashed following guilty pleas based on an assumption, so that:

"The appellant was deprived of what was, in all likelihood, a good defence in law."

30. Simon Brown LJ made it clear, page 278, that allowing a party who had pleaded guilty to challenge a conviction in that case:

"...must not be taken as a licence to appeal by anyone who discovers that following conviction, still less where there has been a plea of guilty, some possible lines of defence have been overlooked. Only most exceptionally will this court be prepared to intervene in such a situation only in short where it believes the defence would probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often."

31. In that case of Mohammed Leveson LJ explained that the basis of allowing a party to challenge a conviction after they have pleaded guilty must be used rarely. He explained that:

"It is, however, important not to water down the underlying concept of jurisdiction so as to bring nullity into play purely on the basis of advice alleged to be wrong. For those circumstances there remains a basis on which this court can intervene which is firmly grounded on the safety of the conviction."

32. Returning to this case, the Crown Prosecution Service rely on limitations in the defences which are set out in section 2(7) of the 2004 Act to show why the claimant cannot avail herself of the defences on which she would be hoping to rely. Whether those defences would succeed would depend on the views of the decision maker on a number of matters, not least of which would be the reliability of a claimant as a witness. In this case, we have not seen the claimant give evidence and there has not been material put before us to show that this case reaches the Boal threshold, which the claimant would have to reach if this ground was to succeed. I should add that the Criminal Case Review Commission have a much lower threshold for referring cases to the Court of Appeal (Criminal Division) than this court has in seeking to set aside an order of the kind made by Judge Gratwick and the justices. It might well be that the Criminal Case Review Commission might take the view that this case should be considered by that body and referred to the Court of Appeal (Criminal Division).
33. For the reasons which I have sought to explain and in spite of the careful and detailed submissions of Miss Cook, for which I am grateful, and subject to the views of my Lord, this appeal must be dismissed.
34. LORD JUSTICE RICHARDS: I agree on the evidence before the Crown Court that court was fully entitled to find as it did that the claimant's plea before the magistrates' court was an unequivocal plea and that what took place at the hearing before the magistrates has not been shown to have been such as to render the plea equivocal, or to have made it incumbent on the magistrates to exercise their discretion to invite a change of plea. There was no error of law in the decision of the crown court on this point.
35. I also agree that it is too late to raise the nullity argument and that, in any event, on the evidence available to this court, which is materially the same as the evidence before the crown court, it has not been shown that the case for the claimant has reached the threshold that would justify a finding of nullity in respect of the plea. Accordingly, I too am satisfied that the Crown Court was correct to decline jurisdiction to entertain an appeal against conviction and I too would dismiss this claim for judicial review.
36. MISS SCHUTZER-WEISSMAN: May it please my Lord, firstly, Miss Ailes asks that her thanks be conveyed to your Lordship for being released.
37. There was one matter, and it is my fault entirely, my Lord Silber, but I believe you read out the Chelmsford Crown Court order was made on 18th September. In fact, it was on 7th.
38. MR JUSTICE SILBER: I am so sorry.
39. MISS SCHUTZER-WEISSMAN: It may be that you were led astray by something I wrote in the document.
40. MR JUSTICE SILBER: I am sure it is my fault. Thank you, very much indeed. I am sure the shorthand writer will have taken that on board.
41. LORD JUSTICE RICHARDS: There is no further application?
42. MISS SCHUTZER-WEISSMAN: No, thank you.
43. MISS COOK: My Lord, might I just clarify one matter on behalf of those instructing me? Mr Justice Cranston, on 20 June, gave a representation order but did not make clear whether that representation order covered representation by solicitors and counsel. I would ask that you make clear that it did cover solicitor and counsel.
44. LORD JUSTICE RICHARDS: We will make clear that it does cover representation by counsel as well as solicitor, and to the extent that you need a separate provision, we will order detailed assessment for public funding purposes.
45. MISS COOK: Thank you, my Lord.
46. LORD JUSTICE RICHARDS: Thank you, very much.