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Waddington v. Miah

Publisher United Kingdom: House of Lords (Judicial Committee)
Author House of Lords
Publication Date 1 May 1974
Citation / Document Symbol [1974] 2 All ER 377, [1974] 1 WLR 683, 59 Cr App Rep 149, 138 JP 497
Cite as Waddington v. Miah, [1974] 2 All ER 377, [1974] 1 WLR 683, 59 Cr App Rep 149, 138 JP 497, United Kingdom: House of Lords (Judicial Committee), 1 May 1974, available at: http://www.refworld.org/cases,GBR_HL,3ae6b69f20.html [accessed 23 November 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Waddington v Miah

HOUSE OF LORDS

[1974] 2 All ER 377, [1974] 1 WLR 683, 59 Cr App Rep 149, 138 JP 497

Hearing Date: 18, 19 MARCH, 1 MAY 1974

1 MAY 1974

Index Terms:

Immigration - Statute controlling immigration - Retrospective operation - Penal provisions - Illegal entry - Possession of false passport - Whether statute creating offences in respect of acts performed before it came into force - Immigration Act 1971, ss 24(1)(a), 26(1)(d).

Held:

The penal provisions of the Immigration Act 1971, in particular ss 24(1)(a) a and 26(1)(d) b, are not retrospective and accordingly a person cannot be convicted of an offence under the 1971 Act in respect of anything done by him before 1st January 1973, the date when the 1971 Act came into force (see p 379 b c g and h, p 380 f g and j and p 381 a to c, post).

a Section 24(1), so far as material, provides: 'A person who is not patrial shall be guilty of an offence... in any of the following cases: -- (a) if contrary to this Act he knowingly enters the United Kingdon in breach of a deportation order or without leave...'

b Section 26(1), so far as material, provides: 'A person shall be guilty of an offence... in any of the following cases... (d) if, without lawful authority, he alters any certificate of patriality, entry clearance, work permit or other document issued or made under or for the purposes of this Act, or uses for the purposes of this Act, or has in his possession for such use, any passport, certificate of patriality, entry clearance, work permit or other document which he knows or has reasonable cause to believe to be false...'

Decision of the Court of Appeal, Criminal Division, sub nom R v Miah [1974] 1 All ER 1110 affirmed.

Notes:

For offences under the Immigration Act 1971, see 4 Halsbury's Laws (4th Edn) 518-522, paras 1027-1030.

For the presumption against the retrospective operation of statutes, see 36 Halsbury's Laws (3rd Edn) 423-426, paras 644, 645, and for cases on the subject, see 44 Digest (Repl) 285, 1136-1145.

For the Immigration Act 1971, ss 24, 26, see 41 Halsbury's Statutes (3rd Edn) 43, 47.

Introduction:

Appeal. This was an appeal by Geoffrey Waddington, Acting Chief Superintendent of the Lincolnshire constabulary, against the order of the Court of Appeal, Criminal Division n1 (Stephenson LJ, Chapman and Forbes JJ) dated

20th December 1973 allowing an appeal by the respondent, Moyna Miah alias Abid Ullah, against his conviction in the Crown Court at Grimsby on 10th October 1973 on two counts of an indictment charging him with offences against ss 24 and 26 of the Immigration Act 1971. The facts are set out in the opinion of Lord Reid.

n1 [1974] 1 All ER 1110

Counsel:

Charles McCullough QC and David Farrer for the appellant. E F Jowitt QC and C G Young for the respondent.

Judgment-READ:

Their Lordships took time for consideration. 1st May. The following opinions were delivered.

PANEL: LORD REID, LORD MORRIS OF BORTH-Y-GEST, VISCOUNT DILHORNE, LORD SIMON OF GLAISDALE AND LORD SALMON

Judgment One:

LORD REID. My Lords, the respondent was tried in the Crown Court at Grimsby on an indictment which contained two counts. Count I stated the offence charged as 'Illegal Immigrant, contrary to Section 24 of the Immigration Act 1971' and count 2 stated the offence as 'Possession of False Passport, contrary to Section 26 of the Immigration Act 1971'. That Act was passed on 28th October 1971 but the greater part of it, including ss 24 and 26, did not come into force until 1st January 1973. But the particulars given under count 1 were that the respondent --

'on a day unknown between the 22nd day of October 1970 and the 29th day of September 1972, being a person who was not patrial within the meaning of the Immigration Act 1971, knowingly entered the United Kingdom without leave.' And the particulars given under count 2 were that the respondent --

'on the 29th day of September 1972, had in his possession for the purposes of the Immigration Act 1971, a Passport No. AC386290 which he had reasonable cause to believe to be false.'

Despite objection that the Act is not retrospetive the respondent was convicted. His conviction was quashed by the Court of Appeal n1. That court in granting leave to the prosecution to appeal certified the following question:

n1 [1974] 1 All ER 1110

'Whether the appellant could be convicted of offences against the Immigration Act 1971 in respect of things done by him before the Act came into force, and in particular offences against ss 24(1)(a) 26(1)(d) of the Act.' The facts are conveniently set out in an agreed statement as follows:

'The Respondent, an (unidentified) non-patrial for the purposes of the Immigra-Act, 1971, and probably a native of Bangladesh, entered the United Kingdom at Heathrow airport on 28th October, 1971. He passed himself off to the Immigration Officer as one Abid Ullah, a non-patrial Pakistani who had come to the United Kingdom in 1957 and had returned on a visit to Bangladesh in

October, 1970. For this purpose the Respondent presented a passport originally issued to the true Abid Ullah and subsequently altered by the substitition of a photograph of the Respondent. The Respondent subsequently took various employments in the United Kingdom, finally working in a foundry at Scunthorpe. He was seen by police officers on 29th September, 1972 and questioned as to his true identity. In his possession were found the passport used to obtain entry and an earlier passport issued to Abid Ullah. The police took possession of them immediately. Throughout subsequent questioning he maintained that he was Abid Ullah and recited details of his life and produced documents in support of his claim. Forensic examination of the passport showed that this was not so. On 11th May, 1973, the Chief Constable of the Lincolnshire Constabulary issued a certificate for the purposes of Section 28 of the Immigration Act, 1971. Informations were laid on 28th June, 1973.'

The law with regard to immigrants such as the respondent was previously contained in the Commonwealth Immigrants Acts of 1962 and 1968 These Acts were repealed by the 1971 Act. It has I think been generally understood that, when provisions in an earlier Act are replaced by provisions in a later Act which repeals the earlier Act, and in the absence of special provisions in the later Act, offenders against the earlier Act before the date of its repeal can still be prosecuted under the earlier Act after its repeal and the later Act has no application.

Counsel informed us that he had examined a number of recent Acts which repealed earlier Acts and had found that in some there were special transitional provisions which substantially achieved that result, in others there were no such provisions so that the ordinary rule would apply, but that he had found none which authorised proceedings for an offence under the later Act in respect of acts committed before it came into force. That is what I would have expected because there has for a very long time been a strong feeling against making legislation, and particularly criminal legislation, retrospective.

It is also I think important to bear in mind that the Declaration of Human Rights of the United Nations n1 provides in art 11(2):

n1 (1949) Cmd 7662

'No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.'

And the Convention for the Protection of Human Rights and Fundamental Freedoms n2 ratified by the United Kingdom in 1951 provides by art 7:

n2 (1953) Cmd 8969

'(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

'(2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.' So it is hardly credible that any government department would promote or that Parliament would pass retrospective criminal legislation.

Yet whoever authorised this prosecution must somehow have formed an opinion that Parliament had made ss 24 and 26 of the 1971 Act retrospective. That contention was strongly urged in the Crown Court and in the Court of Appeal n3, but when this case was opened before your Lordships, counsel said that he had been unable to find any argument which he thought he could properly submit to the House. In so doing I think that he acted with complete propriety. But nevertheless he drew our attention to every possible aspect of the matter and in view of the importance of the general principle we spent two days on a full investigation.

n3 [1974] 1 All ER 1110

In the courts below the prosecution relied chiefly on s 34(1) of the 1971 Act but also relied to some extent on s 35(3). These provisions are as follows:

'34. -- (1) Subject to the following provisions of this section, the enactments mentioned in Schedule 6 to this Act are hereby repealed, as from the coming into force of this Act, to the extent mentioned in column 3 of the Schedule; and -- (a) this Act, as from its coming into force, shall apply in relation to entrants or others arriving in the United Kingdom at whatever date before or after it comes into force; and (b) after this Act comes into force anything done under or for the purposes of the former immigration laws shall have effect, in so far as any corresponding action could be taken under or for the purposes of this Act, as if done by way of action so taken, and in relation to anything so done this Act shall apply accordingly...

'35. --... (3) The provisions of section 28(1) and (2) above shall have effect, as from the passing of this Act, in relation to offences under section 4A (unauthorised landing) of the Commonwealth Immigrants Act 1962 as amended by the Commonwealth Immigrants Act 1968, other than offences committed six months or more before the passing of this Act, as those provisions are expressed to have effect in relation to offences to which the extended time limit for prosecutions is to apply under sections 24, 25 and 26 above; but where proceedings for an offence under section 4A of the Commonwealth Immigrants Act 1962 would have been out of time but for this subsection, section 4A(4) (under which, in certain cases, a person not producing a passport duly stamped by an immigration officer is presumed for purposes of that section to have landed in contravention of it, unless the contrary is proved) shall not apply...'

I can see nothing retrospective in s 34(1). I use retrospective in the sense of authorising people being punished for what they did before the Act came into force. But there is nothing to prevent Parliament from authorising discrimination in the future between various classes of people and one ground of discrimination could be that if certain people have done a certain thing in the past or had a certain ancestry they shall be treated differently in future from those who have not done that thing or had a different ancestry. Whether that is good policy is a matter of opinion. But in my opinion that is what Parliament has done by this Act.

Section 34(1)(a) makes the 1971 Act apply to all 'entrants' and 'entrant' is defined in s 33 as 'a person entering or seeking to enter the United Kingdom'.

His entry need not have been unlawful and it may have taken place a long time ago. Some entrants are given a right of abode here. Some are given indefinite leave to enter and remain here. The position of others is more precarious. I cannot see how s 34(1)(a) can be construed as having any reference to what any entrant may have done in this country before the Act came into force. All that it does is to subject to the provisions of the Act for the future anyone who entered in the past.

Section 34(1)(b) refers to 'the former immigration laws' which include the Acts of 1962 and 1968. It applies to anything 'done under or for the purposes of' those laws. So it does not apply to anything done contrary to, or to any offence against, those laws. And it certainly does not support the view that an act done before the 1971 Act came into force can be treated as an offence against that Act.

Section 35(3) requires more explanation. Under former immigration laws there was a time limit for prosecution of six months. Section 28 applied to certain offences against the 1971 Act a time limit of three years. Section 35(3) applies the new time limit to old offences against s 4A of the 1962 Act where, but only where, the provisions of s 35(3) are satisfied. Those provisions are complicated but the general effect appears to me to be that if prosecution for an old offence had become time-barred before the passing of the 1971 Act the old offence was not revived. So as the Act was passed on 28th October 1971 offences committed before 28th April 1971 remained time-barred. I do not think that s 35(3) can be said to have retrospective effect or that it can lend any support to the validity of the present prosecution. We are not concerned with any question whether in the circumstance of this case any charges could have been made of offences against former immigration laws.

This is a very clear case. I do not think it necessary to examine the details of the counts in this indictment.

I would dismiss the appeal. Costs are not usually awarded in cases of this kind but in view of the circumstances I would award to the respondent his costs in the House.

Judgment Two:

LORD MORRIS OF BORTH-Y-GEST. My Lords, I have had the advantage of reading the speech prepared by my noble and learned friend, Lord Reid. I am in agreement with it and accordingly would dismiss the appeal.

Judgment Three:

VISCOUNT DILHORNE. My Lords, I have read the speech of my noble and learned friend, Lord Reid. I agree with it and with his conclusion that the appeal should be dismissed and the respondent awarded his costs in this House.

Judgment Four:

LORD SIMON OF GLAISDALE. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Reid. I agree with it, and I would therefore dismiss the appeal.

Judgment Five:

LORD SALMON. My Lords, I, too, agree with my noble and learned friend, Lord Reid, and for the reasons he gives I would dismiss the appeal.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Collyer-Bristow & Co, agents for Hetts, Stubbs & Kemp, Scunthorpe (for the appellant); Joynson-Hicks & Co, agents for R A C Symes & Co, Scunthorpe (for the respondent).

Copyright notice: Crown Copyright

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