Scottish High Court of Justiciary Decisons

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Cite as: [2006] HCJ 59, [2006] ScotHC HCJ_59

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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:

_______

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.

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