R v. Gill

R v Gill

COURT OF APPEAL, CRIMINAL DIVISION

[1976] 2 All ER 893, [1977] 1 WLR 78, 63 Cr App Rep 83, 140 JP 507

Hearing Date: 2 APRIL 1976

2 APRIL 1976

Index Terms:

Immigration - False statement- Statement to person lawfully acting in execution of statute - Investigation of allegation that accused an illegal immigrant - Statement made by accused to constable investigating allegation - Whether constable 'acting in the execution of' statute - Immigration Act 1971, s 26(1)(c) .

Held:

A constable, while investigating a disturbance in which the appellant was involved, was told that the appellant was an illegal immigrant. The constable decided to investigate that allegation and asked the appellant to produce his passport. The appellant was unable to do so, stating that he had lost it. He later made a written statement that he had entered the country without leave and that he had lost his passport to avoid detection. He was convicted of, inter alia, making a false statement to a person lawfully acting in execution of the Immigration Act 1971, contrary to s 26(1)(c) a of that Act. On appeal, a Section 26(1), so far as material, is set out at p 895 c and d, post Held - Although a constable who, acting under the powers conferred by s 24(2) b of the 1971 Act, arrested a person suspected of being an illegal immigrant, could properly be described as a person 'acting in the execution of' the Act, within s 26(1)(c) , he could not be so described if all that he was doing was to carry out an investigation, even if the purpose of that investigation was to establish whether there were grounds for suspecting that that person was an illegal immigrant. It followed that the appellant had not been guilty of an offence under s 26(1)(c) since, at the time when he made the statement to the constable, the constable was merely making an investigation and was not therefore a 'person... acting in the execution of [the 1971] Act'. The appeal against the conviction would therefore be allowed (see p 897 b and c, post). b Section 24(2), so far as material, is set out at p 895 j to p 896 a, post

Notes:

For offences connected with illegal entry and the administration of the Immigration Act 1971, see 4 Halsbury's Laws (4th Edn) paras 1027, 1029. For the Immigration Act 1971, ss 24, 26, see 41 Halsbury's Statutes (3rd Edn) 43, 47.

Introduction:

Appeals. Chaudhry Mohammed Anwar Gill appealed against his conviction in the Crown Court at Manchester before Mr Recorder Stogdon on two counts (1) on 24th June 1975 making a false statement to an immigration officer, contrary to s 26(1)(c) of the Immigration Act 1971, and (2) on 26th June 1975 making a false statement to a person lawfully acting in the execution of the 1971 Act, contrary to s 26(1)(c) of that Act. He also appealed against the sentences imposed on him for those convictions. The facts are set out in the judgment of the court.

Counsel:

Mukhtar Hussain for the appellant. Harold Singer for the Crown. PANEL: JAMES LJ, KENNETH JONES AND PAIN JJ

Judgment One:

JAMES LJ delivered the following judgment of the court: The matter before the court relates to Chaudhry Mohammed Anwar Gill who was convicted on 6th January 1976 at the Crown Court at Manchester before the recorder and a jury of two offences of making a false statement, contrary to the Immigration Act 1971. He was sentenced to concurrent terms of six months' imprisonment on each count and the court made an order recommending his deportation. He now appeals to this court. The single judge gave leave to appeal against conviction though in one respect the question is a question of law and leave was not required. The single judge also gave leave to appeal against sentence. The facts can be stated quite shortly. The appellant arrived in the Orkneys on 24th June 1975 and was examined, within the meaning of the 1971 Act, by an immigration officer called Vallance and it was the Crown case that in the course of that examination, the appellant made a statement that he had lost his old passport when he had returned from this country to Pakistan, from where he was returning at the time of his examination by Mr Vallance. The issue for the jury in relation to that count therefore was whether the appellant had made the statement that he had lost his old passport -- which he denied making -- and secondly, if he had made the statement, whether it was a false statement. The position was that after questioning Mr Vallance allowed the appellant into the country and then the appellant made his way to Rochdale where he was seen on 26th June, that is two days later, by a Pc Roberts in the following circumstances. The officer had been called to a disturbance that was taking place in a house in a street in Rochdale. In the course of his trying to calm everybody down, he was told by one of the persons present that the appellant was an illegal immigrant. From that time on, Pc Roberts's view was that he assumed the role of investigating whether in fact he was an illegal immigrant. He asked the appellant for his passport and went with him to the house where he was then living and the appellant told him, according to the evidence for the Crown, that he had lost his old passport when he was in Pakistan, thereby repeating the statement the Crown alleged to be a false statement, that he had made to Mr Vallance. The appellant again denied making that statement to Pc Roberts and said that Pc Roberts had misunderstood the position and got that idea into his head from an endorsement on the passport which he had to the effect that the earlier one had been lost. The appellant was further questioned and eventually he made a statement which was taken down in writing and which included the following passage:

'I was interviewed by an Immigration Officer who asked me about my first visit to the country. I told him lies about having lived here since 1962. I

had been told by other Pakistani people to tell lies as this would help me to get into the country. The Immigration Officer didn't believe my story and I was sent back to Pakistan.'

That passage relates to the time when he arrived in England at Manchester by air on 30th May 1974. The statement goes on: 'The passport was taken from me and handed to one of the aircraft crew, as far as I know. I have never seen that passport since. Some time after arriving in Pakistan, I went to the passport office', and then he recites how he told the person there that he had lost his passport on a train and this was the only way he could obtain another one. By virtue of that, he said, 'They issued me with a new passport', and it was with that that he was returning to this country. The jury convicted him on both charges. In the course of the trial it had been argued that in respect of the second count the police officer, Pc Roberts, was not a person acting in the execution of the 1971 Act, and that therefore any statement made to Pc Roberts could not form a basis of a charge under s 26 of that Act. Section 26(1) provides:

'A person shall be guilty of an offence punishable on summary conviction with a fine of not more than @ 200 or with imprisonment for not more than six months, or with both, in any of the following cases [and then there are a number of cases set out; the first is:] (a) if, without reasonable excuse, he refuses or fails to submit to examination under Schedule 2 to this Act [and then:] (c) if on any such examination 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...'

In this case the charge was preferred in relation to that provision which I have just read out. It can be said in respect of Pc Roberts that the statement made, if not on such an examination as is referred to in s 26(1)(a), was in the course of questioning which was covered by the words, 'or otherwise', but it was said that Pc Roberts was lawfully acting in the execution of the 1971 Act. Schedule 2, para 2(1), provides:

'An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft [and certain other persons] for the purpose of determining -- (a) whether any of them is or is not patrial; and (b) whether, if he is not, he may or may not enter the United Kingdom without leave; and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave.'

Under the provisions of Sch 2 a person may be required to submit to a medical examination by a medical inspector or in certain circumstances by a general practitioner. Now, apart from immigration officers and medical inspectors or persons carrying out the functions of immigration officers, such as customs officers, who may be authorised so to do, and registered medical practitioners who may carry out the duties of a medical inspector, the only other persons, say the Crown, who can act in the execution of the provisions of the Immigration Act 1971 are police officers. One finds under s 24(1) of the 1971 Act provision as to criminal offences punishable on summary conviction in certain events if certain conduct is perpetrated by persons who enter, or who have entered, the United Kingdom. So far as is relevant to the present case, s 24(1) provides that a criminal offence is committed --

'(a) if, contrary to this Act, he knowingly enters the United Kingdom in breach of a deportation order or without leave; or (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either -- (i) remains beyond the time limited by the leave; or (ii) fails to observe a condition of the leave...'

Section 24(2) provides:

'A constable or immigration officer may arrest without warrant anyone who has, or whom he, with reasonable cause, suspects to have, committed or attempted to commit an offence under this section other than an offence under subsection (1)(d) [which is not applicable here].'

The argument for the Crown is that when Pc Roberts had, as he did have, reasonable cause to suspect the appellant of having contravened the provisions of 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 the provisions of 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 and it is argued for the Crown that therefore Pc Roberts comes within s 26(1)(c) as a person who was lawfully acting in the execution of the 1971 Act, and although it is stated that such questions as were being asked by Pc Roberts of the appellant did not amount to an examination within the meaning of Sch 2 to the 1971 Act, they were matters which were covered by the words 'or otherwise' which follow the words 'such examination' in s 26(1)(c) . For the appellant it is argued to the contrary and counsel says that Pc Roberts was not lawfully acting in the execution of the 1971 Act. He was not arresting the appellant at the time. He was merely making enquiries of him and therefore there was no basis for the preferment of a charge in relation to a false statement made by the appellant in those circumstances. But, if that is wrong, counsel for the appellant says that even if Pc Roberts was acting in the execution of the Act at the time, the circumstances did not amount either to an examination within the meaning of Sch 2 or a situation which can be shown within the cover of the words 'or otherwise'. It is argued that the words 'or otherwise' must be construed ejusdem generis with the word 'examination'. Now, if one looks at Sch 2 to the 1971 Act, it is difficult to see what is provided for there which would be covered by the words 'or otherwise' and which is ejusdem generis to the examination. It is argued for the Crown that any construction of the statutory provisions which I have cited which would result in a police officer being within the execution of his duties under the 1971 Act when he is asking preliminary questions to an arrest and any construction which excluded from the words 'or otherwise' the situation in which such questions are being asked of a person suspected of committing an offence under the 1971 Act, then the result would be that the important purposes of the statutory provisions would be defeated because if a person did make a false statement knowing it to be false or not believing it to be true in such circumstances and was not liable to be charged with this offence and as a result of making the false statement the officer took no further action and effected no arrest, then there would be no consequential examination by the immigration officer and the man would be allowed to remain free in this country, not being caught by the provisions of the 1971 Act. The other argument is that this Act creates, under the provisions which we have been considering, criminal offences and there are penal consequences. Therefore, they have to be construed strictly and if there is any doubt about the construction they can be construed in favour of the liberty of the subject. We do not think it necessary to define all the situations or circumstances which can be brought within the words 'or otherwise' under s 26(1)(c) . It is necessary for us to determine, for the purposes of this appeal, the important question, whether, as a matter of law on the facts of this case, Pc Roberts can be a person acting in the execution of the 1971 Act.The recorder obviously took the view that Pc Roberts could be, in law, a person acting in the execution of the Act, and in the transcript of the summing-up it is shown that he directed the jury on their consideration on whether, as a matter of fact, they should determine that the officer was acting within the execution of the 1971 Act, and of course, such a direction can only arise where a preliminary question of law is necessary whether the facts are capable of being construed in that way. In our view on the facts of this case, putting the prosecution case at its highest, there was no factual situation which could bring Pc Roberts within the words of s 26(1)(c) 'other person lawfully acting in the execution of this Act'. In those circumstances the statement made at that time, and relied on by the Crown, even if false, known to be false or made not believing in its truth, cannot found the basis of a charge pursuant to s 26(1)(c) . In those circumstances, in respect of count 2 of the indictment the conviction must be quashed. It is argued by counsel for the appellant on the facts of this case that there was not sufficient evidence to support the conviction on count 1 or count 2. We need no longer bother about count 2. The position was that the Crown adduced evidence of what the appellant had said in his written statement to the police in support of the allegation made by the Crown that the statement that he had lost his passport was a false statement. It was material that came from the mouth of the appellant himself. The jury may have thought, 'Well, that is the best possible material for determining the question that we have to determine on this issue'. It is argued that the jury in considering that statement, the words in the relevant passages, were faced with material which was ambiguous, or possibly ambiguous, in its meaning and they represent in one sense that that statement did not provide the evidence on which the jury could find that the statement made by the appellant, if made, was in fact a false statement. Counsel for the appellant has to concede that there was some evidence on which the jury could make the decision which led to their eventual conviction of the appellant, and that is how we see it. There was placed before the jury sufficient evidence for them to evaluate and construe in the light of the oral evidence given in the trial, and if they took a certain view of that evidence, as they clearly did by their verdict, then there was ample material to support the conviction on count 1. In those circumstances as to conviction the appeal will be allowed to this extent, that the verdict of guilty on count 2 will be quashed. The question of sentence remains. The sentence of imprisonment has already been served. The recommendation for deportation remains. It is submitted that in the circumstances here, which I need not go into detail, it was unduly harsh to make an order recommending deportation. The court has to consider each case, of course, but also has to be consistent in its approach to this question which comes before the court fairly frequently these days. On the facts of this particular case relating to the original entry of the appellant to this country, he was returned to Pakistan, his appeal to get back which failed, and then the return to this country which resulted eventually in his arrest, together with the information as to what he has been doing in this country and his connection with this country is such that it has not enabled us to say that the recommendation for deportation made by the recorder was wrong. What action is taken on the recommendation, of course, is not for this court to decide. The appeal against sentence is dismissed.

DISPOSITION:

Appeal allowed in part; conviction on count 2 quashed. Appeal against sentence on count 1 dismissed.

SOLICITORS:

Registrar of Criminal Appeals; D S Gandy, Manchester (for the Crown).