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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Clarke, R v. [1985] UKHL 14 (20 June 1985)
URL: http://www.bailii.org/uk/cases/UKHL/1985/14.html
Cite as: [1985] Crim LR 666, 81 Cr App R 220, [1985] 1 AC 1037, [1985] 3 WLR 113, [1985] 2 All ER 777, 81 Cr App Rep 220, [1985] UKHL 14
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R v Clarke
HOUSE OF LORDS
Hearing Date: 20, 21, 22 MAY, 20 JUNE 1985
20 June 1985
Index Terms:
Immigration -- False statement -- Statement to person acting lawfully in the execution of statute -- Police officer in the course of investigating another matter, having cause to suspect that accused was an illegal immigrant -- Police officer questioning accused and accused making false statement to police officer -- Whether police officer 'acting in the execution of ' statute -- Immigration Act 1971, s 26(1)(c).
Held:
The respondent was arrested by a police officer who mistakenly believed that he was in unlawful possession of a car. He was taken to a police station for questioning but after he had been cleared of that suspicion the police officer told the respondent that he had reason to suspect that he was unlawfully resident in the United Kingdom. The respondent falsely stated that he was born in the United Kingdom, that he was a British subject and that he possessed a British passport. The respondent was arrested as a suspected illegal entrant or resident and charged under s 26(1)(c) of the Immigration Act 1971 with having made a false statement to 'an immigration officer or other person lawfully acting in the execution of [the] Act'. The police officer claimed to be a 'person lawfully acting in the execution of [the] Act'. The respondent was convicted by magistrates but the Crown Court quashed the conviction. An appeal by the Crown to the Divisional Court was dismissed and the Crown appealed to the House of Lords. Held -- On the true construction of s 26(1)(c) of the 1971 Act a person could only claim to be 'acting in the execution of [the] Act' if he was acting in the performance of a duty imposed by, or in the exercise of a power conferred by, that Act and an offence under s 26(1)(c) was committed only if the false statement was addressed to a person in the course of a specific procedure under the Act in which that person's statutory function involved the obtaining or receipt of information relevant to the performance of that function. Since the police officer had not been acting in the execution of functions conferred on him by or under the 1971 Act when questioning the respondent even though he had reasonable cause to suspect that an offence under the Act had been committed, the officer had not been 'lawfully acting in the execution of [the] Act'. It followed that the Crown's appeal would be dismissed (see p 778 j, p 781 h j, p 782 h j to p 783 e and p 785 f to j, post). R v Gill [1976] 2 All ER 893 applied. R v Gunay (1980) [1984] Crim LR 102 overruled.Notes:
For general offences in connection with the administration of the Immigration Act 1971, see 4 Halsbury's Laws (4th edn) para 1029. For the Immigration Act 1971, s 26, see 41 Halsbury's Statutes (3rd edn) 47.Cases referred to in the Judgment:
Quazi v Quazi [1979] 3 All ER 897, [1980] AC 744, [1979] 3 WLR 833, HL. R v Gill [1976] 2 All ER 893, [1977] 1 WLR 78, CA. R v Gunay (1980) [1984] Crim LR 102, CA.Introduction:
Appeal The Crown appealed with leave of the Divisional Court of the Queen's Bench Division against the decision of that court (Robert Goff LJ and McCullough J) on 11 December 1984 dismissing the Crown's appeal by way of case stated from the decision of the Crown Court at Inner London Sessions (his Honour Judge Shindler QC and two justices) on 2 June 1983 allowing an appeal by the respondent, Ediakpo Clarke, against his conviction by the justices sitting at Old Street Magistrates' Court on 23 March 1983 of making a false statement contrary to s 26(1)(c) of the Immigration Act 1971. The Divisional Court certified under s 1(2) of the Administration of Justice Act 1960 that a point of law of general public importance was involved in its decision to dismiss the appeal. The facts are set out in the opinion of Lord Bridge.Counsel:
Michael Kalisher QC and Rosamond Keating for the Crown. Stephen Sedley QC and Nicholas Blake for the respondent.Judgment-READ:
Their Lordships took time for consideration. 20 June. The following opinions were delivered. PANEL: LORD SCARMAN, LORD DIPLOCK, LORD BRIDGE OF HARWICH, LORD BRANDON OF OAKBROOK AND LORD BRIGHTMANJudgment One:
LORD SCARMAN. My Lords, I have read in draft the speecs to be delivered by my noble and learned friends Lord Bridge and Lord Brightman. While they approach the problem of construction from differing starting points, they reach the same conclusion and the reasoning of each is consistent with that of the other. I accept both lines of reasoning, and so agree with both speeches. I would, therefore, answer the certified question in the negative and dismiss the appeal.Judgment Two:
LORD DIPLOCK. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bridge. I agree with it and for the reasons which he gives I would dismiss the appeal.Judgment Three:
LORD BRIDGE OF HARWICH. My Lords, the respondent was convicted at Old Street Magistrates' Court of an offence under s 26(1)(c) of the Immigration Act 1971. He appealed to the Crown Court at Inner London Sessions, which upheld a submission that the evidence called for the prosecution established no case for the respondent to answer and accordingly allowed his appeal. An appeal by case stated from that decision was dismissed by the Divisional Court (Robert Goff LJ and McCullough J) who certified that their decision involved a point of law of general public importance in the following terms:'Is a Constable who has reasonable cause to suspect that an offence has been committed under the Immigration Act 1971 a person lawfully acting in the execution of the Act when questioning in furtherance of his investigation? '
The appellant police officer now appeals by leave of the Divisional Court to your Lordships' House. The case stated proceeds on the assumption, properly accepting for the purpose of the respondent's submission of no case, the evidence called for the prosecution that the appellant police officer, in the course of investigating another matter, had reason to suspect that the respondent was unlawfully in this country. In answer to questions by the appellant the respondent stated that he was born in this country, was a British subject, and held a British passport. As the respondent admitted in the course of later investigation, all these answers were to his knowledge false. The paragraphs of s 26(1) of the 1971 Act lettered (a) to ( f ) create summary offences each punishable by a fine up to @200, imprisonment up to six months, or both. The offence created by para (c) is committed by a person--'if on any such examination [sc an examination under Sch 2 to the Act] or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true.'
The precise question for decision on the interpretation of this language must be considered both in the wider context of the general scheme of the Act and in the narrower context of the provisions of Pt III creating criminal offences relating to immigration, more particularly, the offences created by s 26(1) itself. As is well known, all persons who are not patrial require leave under the Act to enter the United Kingdom, which may be temporary or permanent, conditional or unconditional (s 3(1) ). Control of entry is exercised by immigration officers pursuant to the provisions of s 4(1) and (2) and Sch 2 and persons entering are required to submit to examination under that schedule by immigration officers and others. Control over non-patrials already in this country with temporary or conditional leave to remain is exercised in a number of ways of which the most significant for present purposes are again provided by s 4. The important power to vary the terms of any leave to enter or remain in the country is to be exercised by the Secretary of State, which, in practical terms, normally means by officers of the immigration department of the Home Office acting in the name and with the authority of the Secretary of State. Section 4(3) provides for the registration with the police in accordance with regulations to be made by statutory instrument under the subsection, of those required so to register by condition under the Act and enables the regulations to impose obligations on the party to be registered to furnish relevant information. Again, information may be required to be supplied by persons staying at hotels or lodging houses for the purpose of records required to be kept by statutory instrument made under s 4(4). I should perhaps add for completeness that removal from this country of non-patrials may be effected either by the summary procedure provided by Sch 2, applicable to those refused leave to enter and to illegal entrants, or by deportation order, which may be made either on the grounds afforded by s 3(5) or pursuant to the recommendation of a court by which the non-patrial has been convicted of an offence punishable with imprisonment (s 3(6) ). Superimposed on these primary control mechanisms are the elaborate appellate procedures provided for by Pt II of the Act, which enable immigrants to appeal against adverse decisions to adjudicators and the Immigration Appeal Tribunal. Leaving aside s 26, to which I shall shortly revert, the general character of the criminal offences created by Pt III of the Act is, for present purposes, sufficiently indicated by the sidenotes to the relevant sections, which are as follows. Section 24: 'Illegal entry and similar offences.' Section 25: 'Assisting illegal entry, and harbouring.' Section 27: 'Offences by persons connected with ships or aircraft or with ports.' All the offences created by ss 24 and 27 are summary offences punishable in each case, as in the case of an offence under s 26, by a fine up to @200, imprisonment up to six months, or both. Section 24(2) gives to a constable or an immigration officer power to arrest without warrant anyone suspected, with reasonable cause, of an offence under s 24(1) except under para (d ) of that subsection (failing to comply with a requirement imposed under Sch 2 to report for or submit to medical examination). No power of arrest is conferred in relation to the offences created by ss 26 and 27. The most serious offence created by the Act is under s 25(1) (being knowingly concerned in arrangements for illegal entry). This is triable either way and is punishable on conviction or indictment by up to seven years imprisonment. It is subject to the same power of arrest without warrant as the s 24 offences. The offence under s 25(2) (harbouring an illegal entrant) is again a summary offence and though the maximum fine for this offence is @400, it is not the subject of any power of arrest without warrant. The offences, apart from that under para (c), created by s 26(1) are all, with the exception of that under para ( g) (obstructing an immigration officer or other person lawfully acting in the execution of the Act), primarily concerned with failure to give information required or with giving false information under or in connection with the various procedures of the Act. They may be summarised as follows: para (a), failure to submit to examination under Sch 2 para (b), failure to give information required under Sch 2 para (d ), falsifying an immigration document issued under the Act (e g an entry clearance or work permit) or using or possessing for use such a document knowing it to be false para (e), failing to complete and produce a landing or embarkation card para ( f ), failing to comply with regulations or orders made under s 4(3) or (4). Before the decision of the Divisional Court, which is the subject of the present appeal, there were two decisions of the Court of Appeal bearing on the construction of s 26(1)(c) of the 1971 Act which appear to me to conflict with each other. In R v Gill [1976] 2 All ER 893, [1977] 1 WLR 78 a police officer was called to a disturbance at a private house. In the course of restoring order, he was informed by one of those present that the appellant, also present, was an illegal immigrant. He proceeded to put questions to the appellant to which the appellant gave untruthful answers. An appeal by the appellant against his conviction of an offence under s 26(1)(c) was allowed on the ground that there was no basis on the facts for holding the police officer to be within the words 'other person lawfully acting in the execution of this Act'. In R v Gunay (1980) [1984] Crim LR 102 a non-patrial named Osman had been given temporary leave to enter the country. He remained here beyond the time limited by his leave, thus committing an offence under s 24(1)(b) of the Act. The appellant was Osman's sister. Two police officers went to the appellant's house suspecting that they would find Osman there and intending to arrest him. When they arrived, they asked the appellant if Osman was living with her and she falsely denied it. When later they found Osman in the house, he gave a false name and she told the police officers that he was not her brother Osman. The appellant's appeal against conviction of an offence under s 26(1)(c) was dismissed. It is apparent from the judgments that in both these cases the prosecution rested its argument primarily on the footing that the police officers, when they were given false answers to their questions, were acting with a view to the exercise of the power to arrest without warrant a person suspected of an offence under s 24(1) to which that power applies. The argument is succinctly summarised in the judgment of the court in R v Gill [1976] 2 All ER 893 at 896, [1977] 1 WLR 78 at 81--82 delivered by James LJ, as follows:'The argument for the Crown is that since Pc Roberts had, as he did have, reasonable cause to suspect the appellant of having contravened s 24(1)(a), Pc Roberts had power to arrest without warrant, and it is a necessary parallel of that power, and is implicit in s 24(2), that Pc Roberts should be able to ascertain facts which could form the basis of having reasonable cause to suspect--which in turn could form the basis of an arrest. Therefore counsel for the Crown argues that if the position was that Pc Roberts was asking questions regarding immigration matters which might found that basis of suspecting that the appellant had committed the offence, then he was acting in the execution of the 1971 Act although the precise action of arrest, which the Act gave him power to perform, had not yet taken place. It is argued that it would be unduly restrictive if we interpreted s 24(2) as meaning that a constable was acting in the execution of the 1971 Act only when he was in fact effecting the arrest, or doing something that was a necessary result of the arrest, and did not extend to preliminary questioning . . .'
It seems to me implicit in the decision of the court that, on the facts, the police officer was not 'lawfully acting in the execution of this Act' that this argument was rejected. However, the appellant having relied on R v Gill, in R v Gunay Caulfield J, delivering the judgment of the court, dealt with it in this way:'One can understand that decision. All that need be said is that the facts are wholly different. In this particular case McCarthy [a police officer] and the woman police constable went specifically to the premises to find Osman. They were thereby lawfully acting in the execution of the Act from the moment they went into the premises, and the argument which has been addressed to this court that the power, as it were, only descended on the police officers under the Immigration Act once they had effected the arrest is an argument which is not appealing. It appears to this court that the officers were certainly lawfully acting in the execution of the Act once they went to the premises and made inquiries regarding Mr Osman.'
In the instant case Robert Goff LJ, confronted by these two authorities, understandably directed his attention to the relationship between the questioning of the respondent by the appellant and the possible exercise of a power of arrest without warrant. Delivering the first judgment in the Divisional Court, he said:'In accordance with the authorities, therefore, I ask myself whether, in the present case, at the time when the respondent made the false statement with which he was later charged, the appellant police officer was proceeding to arrest the respondent. In my judgment, he was not. On the contrary, the appellant was at the time simply interviewing the respondent at the police station with regard to his status in this country and it was not until after the conclusion of that interview that the police officer proceeded to arrest him. In those circumstances I am satisfied, in agreement with the appeals committee [of the Inner London Crown Court], that the respondent then committed no offence under s 26(1)(c) of the Act.'
With all respect, it seems to me that the argument founded on a power of arrest without warrant conferred by s 24(2) as applied to the interpretation of s 26(1)(c) is misconceived. An officer lawfully effecting an arrest pursuant to s 24(2) is unquestionably acting lawfully in execution of the Act, in that he is exercising a power specifically conferred on him by the Act. But this power has nothing to do with either seeking or obtaining information. An arresting officer acts on information he already possesses. It is, however, plainly of the essence of the offence created by s 26(1)(c) that the person acting lawfully in the execution of the Act should be so acting in his capacity as the recipient of the false return, statement or representation made by the defendant, in other words, should be so acting in the course of obtaining or receiving information. Thus, the fallacy, in my respectful opinion, in the judgment in R v Gunay, is implicit in the words 'the officers were certainly lawfully acting in the execution of the Act once they went to the premises and made inquiries regarding Mr Osman'. The implication that because, in the circumstances, the officers were empowered by the Act to arrest Mr Osman and would be acting in execution of the Act when they did so, they were therefore acting in execution of the Act in making inquiries about him is a non sequitur. Moreover, it would be an absurd construction to put on s 26(1)(c), as the form of the certified question implicitly recognises, to hold that it applied to falsehoods told to officers investigating suspected offences to which the power of arrest without warrant is applicable but not to falsehoods told to officers investigating other suspected offences under the Act. Counsel for the Crown fully recognised and squarely faced up to this difficulty. He rested his argument boldly on the submission that any constable who has reason to suspect the commission of any offence under the Act and who is asking questions by way of investigation of the suspected offence is within the words of s 26(1)(c) 'other person lawfully acting in the execution of this Act'. If the submission is well founded it creates a whole new area of criminal behaviour, peculiar to the field of immigration law, the scope of which was, if I may say so, aptly described by my noble and learned friend Lord Scarman, in the course of the argument, as breathtaking. It means that any citizen being questioned by a constable or immigration officer about a suspected immigration offence, whether that citizen is himself the suspect or not, will, if he chooses to answer, which he is under no compulsion to do, depart from the truth at peril of being convicted of a form of statutory perjury, being imprisoned for up to six months, and, if he is not patrial, being deported. I should require the most compelling language to drive me to the conclusion that Parliament intended to create such a wide-ranging new offence. When one turns to the language of s 26(1)(c) to examine it in detail, the argument for the appellant confronts two obstacles. The first is the phrase 'on any such examination or otherwise'. Why, one may ask, are those words necessary or, to put the question another way, what difference, if any, would it make to the meaning of the paragraph if they were omitted? One possible answer suggested in the course of the argument is that the words were introduced merely to point the contrast with paras (a) and (b), which create offences exclusively in connection with the procedure of examination under Sch 2, and to make clear that the offence created by para (c) is not so limited. Only if one accepts this answer can one avoid the conclusion that the phrase is intended to impose some limitation on the scope of para (c). In a totally different statutory context my noble and learned friend Lord Diplock said in Quazi v Quazi [1979] 3 All ER 897 at 903, [1980] AC 744 at 808:'The fact that the ejusdem generis rule is not applicable does not, however, necessarily mean that where the expression ''other'' appears in a statute preceded by only one expression of greater specificity its generality may not be cut down if to give it its wide prima facie meaning would lead to results that would be contrary to the manifest policy of the Act looked at as a whole, or would conflict with the evidence purpose for which it was enacted.'
If, on this principle, some restrictive effect is to be attributed to the phrase 'on any such examination or otherwise', it must presumably be understood as meaning 'on any examination under Sch 2 or in the course of any comparable or analogous procedure under this Act'. I think there is much to be said for this construction, but I prefer to reach substantially the same result by a different route. The more formidable obstacle which the appellant's argument must surmount is presented by the words 'acting in the execution of this Act'. The natural meaning of these words is 'acting in the performance of some duty or the exercise of some power imposed or conferred by this Act'. But no duty or power to investigate criminal offences committed in contravention of the Act is imposed or conferred by the Act itself because none is needed. The common law is amply sufficient to impose a duty on constables and to confer power on all citizens to investigate any crime, whether statutory or otherwise, which they suspect to have been committed. The argument for the appellant would require that one should read the words 'acting in the execution of this Act' as equivalent to 'acting in furtherance of the purposes of this Act'. Even if the words are capable of that meaning, which I doubt, it would be a wholly illegitimate meaning to attribute to an ambiguous phrase in a penal statute, having regard to the extent to which this would, as I have already pointed out, broaden the ambit of its operation. The conclusion which I reach is that an offence under s 26(1)(c) is committed if, and only if, the relevant falsehood is addressed to a person in the course of a specific procedure under the Act in which that person's statutory function involves the obtaining or receipt of information relevant to the performance of that function. This limited construction seems to me not only to be entirely consonant with the policy and intention of the Act, as indicated by the wider and narrower statutory contexts of s 26(1)(c) which I have attempted briefly to summarise earlier in this opinion, but also to give full effect to the language of s 26(1)(c) itself, in particular by allowing ample substance and content to the phrases 'or otherwise' and 'other person[s]' in para (c). 'Other persons' include, of course, the several other persons besides immigration officers, e g medical inspectors, with functions to perform under Sch 2 itself which will, or may, involve the obtaining of relevant information. The procedures outside Sch 2 embraced by the words 'or otherwise' involving the function of receiving relevant information to which s 26(1)(c) would apply must, in my opinion, include the following: consideration of applications to vary the terms of leave to remain in the United Kingdom by officers of the immigration department of the Home Office under s 4(1) receipt of information required to be furnished for registration by regulations made under s 4(3) receipt of information required to be given to hotel proprietors by statutory instrument under s 4(4) and, last but by no means least, all the appellate procedures under Pt II of the Act in connection with which it is relevant to observe that it is provided by rules made under s 22 of the Act, not by the Act itself, that evidence may, but only if the appellate authority so requires, be given on oath or affirmation: Immigration Appeals (Procedure) Rules 1984, SI 1984/2041, r 29(3). I do not claim that this list is necessarily exhaustive. In the result I would affirm that R v Gill [1976] 2 All ER 893, [1977] 1 WLR 78 was rightly decided, but overrule R v Gunay (1980) [1984] Crim LR 102 as wrongly decided. I would answer the certified question in the negative and dismiss the appeal.