APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Johnston
Lord Kingarth
Lord Penrose
|
[2006]
HCJAC 59
Appeal No: XC125/06
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
NOTE OF APPEAL
under Section 74(1) of the
Criminal Procedure (Scotland) Act 1995
by
PATRICK JOSEPH NEVIN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: G. Allen; Clark Ferguson, Edinburgh
Alt: D. Bain, A.D.; Crown Agent
7 July 2006
[1] The appellant
was charged before the sheriff at Edinburgh in the following terms:
"(001) between 1 September 2001 and 1 May 2004, both dates inclusive, at
66 Salters Road, Wallyford, East Lothian, 29 Kippielaw Park and 4 Stone Place,
both Mayfield, Dalkeith, Midlothian and 35 and 55 Woodburn Street, Dalkeith,
Midlothian and 21/6 Harvesters Way, Wester Hailes, Edinburgh, you PATRICK
JOSEPH NEVIN did facilitate the commission of a breach of immigration law by
individuals namely, Oleksandr Boyko, Vazha Okruashvili, Mamouka Shonia, Elena
Podalty, Malgorzata Solmka, Piotr Pawel Matyjawka, Wojciechn Grabowski, Aija
Abola, Regina Marzena Britani, Emerita Sembele or Relina, Artur Szczubiak and
Ewa Bogusz, who were not citizens of the European Union in respect that you
provided said individuals with accommodation at the above libelled addresses
and work at various farms throughout Lothian and Borders including Bomains
Farm, Linlithgow, West Lothian, East Kerse Mains Farm, Bo'ness, West Lothian
and West Garleton, Haddington, East Lothian and provided transport to and from
said farms for said individuals.
CONTRARY to the Immigration Act 1971,
Section 25(1)(a)(b) and (c) and (6)."
[2] At the
hearing before the sheriff one of the dates was amended from 1
September 2001 to 10 February 2003.
[3] The material
legislatory provision which applied is in the following terms:
"143
Assisting unlawful immigration, &c.
The following shall be substituted
for section 25 of the Immigration Act 1971 (c. 77) (assisting illegal entry) --
'25
Assisting unlawful immigration to member State
(1) A
person commits an offence if he --
(a) does an act which facilitates the commission of a
breach of immigration law by an individual
who is not a citizen of the European Union,
(b) knows or has reasonable cause for believing that the act
facilitates the commission of a breach of
immigration law by the individual, and
(c) knows or has reasonable cause for believing that the
individual is not a citizen of the European
Union."
[4] Before the
sheriff, which was repeated before us, the appellant
took a plea to the relevancy of the indictment focusing on what was said to be
lack of specification with regard to the relevant connection between each of
the names mentioned in the charge and the corresponding addresses and alleged
places of work. In essence
Mr. Alan's position was that the defence were facing a Herculean task in
trying to make these necessary connections which it is up to the Crown to place
on averment. He referred us to Yeudall v William Baird & Company Limited 1925 J.C. 62 and Blair v Kene 1981 J.C. 19, both of which it was said supported the
proposition that, notwithstanding that the terms of the relevant part of the
1908 Act, there could still be circumstances where more specification than mere
reference to a statute was required for a relevant charge. This he submitted was one of those cases.
[5] The sheriff
rejected this proposition, hence this appeal, on the basis of the Crown's
position which was stated to be simply that sufficient in the terms of notice
as regards names, locations, of residence and work, had been given and no
further provision was required.
[6] We had no
hesitation in rejecting the appellant's position in support of that of the
Crown. We consider that all that is
required for relevancy in terms of specification is the names of the persons in
question, the addresses where they are supposed to have been accommodated,
which is part of the facilitation process, and
identification of places of work. It
could possibly be argued that even the latter specification was going further
than was strictly speaking necessary since all that had to be averred was that
providing work generally was part of the facilitation process. We do not consider that the defence faces the
task that was described as Herculean by Mr. Alan seeking to defend the matter.
[7] We should
add, which is no part of our decision, that we were slightly concerned to be
informed by the Crown that in fact their information was that all the addresses
that were listed as places of residence were houses belonging to the appellant
which would seem at first blush to cast some doubt as to the magnitude of the
task facing him.
[8] In any event,
we do not decide the matter on that basis.
We are content to determine that the sufficiency of specification has
been given and the appeal is accordingly refused.