R v Bhagwan

R v Bhagwan

COURT OF APPEAL, CRIMINAL DIVISION

[1970] 1 All ER 1129, [1970] 2 WLR 837

Hearing Date: 5, 6, 17 FEBRUARY 1970

17 FEBRUARY 1970

Index Terms:

Criminal law - Conspiracy - Conspiracy to commit act injurious to public interest - Conspiracy to evade controls on immigration - Evasion of examination on landing - Whether unlawful as tending to defeat intent and purpose of statute - Commonwealth Immigrants Act 1962, Sch 1, Part I, para 1.

Held:

The appellant, a Commonwealth citizen to whom the provisions of the Commonwealth Immigrants Act 1962 applied, landed, with others, at a point on the English coast where there was no immigration officer so that he was not examined in accordance with para 1 of Part I of Sch 1 a to the Act. He was charged with conspiracy to evade the control on immigration of Commonwealth citizens into the UK in order that he might enter the UK without, on landing, submitting himself for examination. a Schedule 1, Part I, para 1 is set out at p 1131 f, post Held - The indictment disclosed no offence known to the law (see p 1135 c, post), because - (1) the appellant had not committed any act expressly prohibited or caused any other person to commit such an act (see p 1134 f, post); R v Newland [1953] 2 All ER 1067 distinguished; accordingly (ii) he could be guilty of a criminal conspiracy only if his act in not submitting himself to examination was injurious to the public interest as tending to defeat the clear intention and purpose of the Commonwealth Immigrants Act 1962 (see p 1134 f and g, post); and (iii) the scheme and purpose of the Act (prior to its amendment by the Commonwealth Immigrants Act 1968) did not contemplate that every Commonwealth citizen subject to control should necessarily be examined by an immigration officer (see p 1134 h, post)

Notes:

For conspiracy, see 10 Halsbury's Laws (3rd Edn) 310-314, paras 569, 570, and for cases on the subject, see 14 Digest (Repl) 121-125, 851-869. For the examination of Commonwealth immigrants, see Supplement to 5 Halsbury's Laws (3rd Edn) para 1514, and for offences in connection with the control of immigration, see ibid para 1515. For the Commonwealth Immigrants Act 1962, Sch 1 (as originally enacted), see 42 Halsbury's Statutes (2nd Edn) 21. The Commonwealth Immigrants Act 1962 has been amended by the Commonwealth Immigrants Act 1968.

Cases referred to in the Judgment:

R v Newland [1953] 2 All ER 1067, [1954] 1 QB 158, [1953] 3 WLR 826, 117 JP 573, 37 Cr App Rep 154, 15 Digest (Repl) 913, 8787. Shaw v Director of Public Prosecutions [1961] 2 All ER 446, [1962] AC 220, [1961] 2 WLR 897, 125 JP 437, 45 Cr App Rep 113, Digest (Cont Vol A) 339, 919a.

Cases cited in the Judgment:

Calvin's Case (1608) 7 Co Rep 1a. Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] 1 All ER 142, [1942] AC 435. Fender v Mildmay [1937] 3 All ER 402, [1938] AC 1. Quinn v Leathem [1901] AC 495, [1900-03] All ER Rep 1. R v Barnett [1951] 1 All ER 917, [1951] 2 KB 425. R v Bassey (1931) 22 Cr App Rep 160. R v Blamires Transport Services Ltd [1963] 3 All ER 170, [1964] 1 QB 278. R v Bramley (30th October 1946) unreported. R v Brixton Prison Governor, ex parte Ahson [1969] 2 All ER 347, [1969] 2 QB 222. R v Griffiths [1965] 2 All ER 448, [1966] 1 QB 589. R v Higgins (1801) 2 East 5. R v Kenrick (1843) 5 QBD 49. R v Mawbey (1796) 6 Term Rep 619, [1775-1802] All ER Rep 457. R v Sterling (1663) 1 Lev 125. R v Wheatley (1761) 2 Burr 1125. R v Whitaker [1914] 3 KB 1283. R v Willett (1906) 70 JP 127. R v Young (1944) 30 Cr App Rep 57. Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904, [1969] 2 Ch 149.

Introduction:

Appeal. This was an appeal by Dharam Singh Bhagwan against his conviction at the Central Criminal Court (Judge Humphreys QC) on 22nd October 1969 on his plea of guilty to a charge of conspiracy to evade the control on immigration imposed under the Commonwealth Immigrants Act 1962. The trial judge granted a certificate of appeal on the ground that the indictment disclosed no offence known to the law. On 28th May 1969, the appellant was interviewed in Hayes, Middlesex, by policy officers when, in answer to questions, he said that he had landed in a fishing boat somewhere on the Engligh coast with eight or nine other men and that he had not been examined by an immigration officer. The appellant admitted that he had been in the United Kingdom for many months. His passport disclosed that he had left India on 23rd March 1967 and it bore no endorsement with a landing stamp at any UK port and he had no work permit.

Counsel:

Quintin Hogg QC and V K Winstain for the appellant. R D L Du Cann for the Crown.

Judgment-READ:

Cur adv vult. 17th February.

PANEL: WIDGERY AND CROSS LLJ AND BRABIN J

Judgment One:

WIDGERY LJ read the judgment of the court. The appellant pleaded guilty at the Central Criminal Court to a charge of conspiracy, and was sentenced to one day's imprisonmet with a recommendation that he be deported. He is a citizen of India and thus a Commonwealth citizen by virtue of s 1 of the British Nationality Act 1948. The indictment was in the following terms:

'Statement of Offence. Conspiracy to evade the control on immigration imposed under the Commonwealth Immigrants Act, 1962.

Particulars. Between the 1st January and 23rd October, 1967, conspiring with other persons to evade the control on immigration of Commonwealth citizens into the United Kingdom in order that you, being a Cmmonwealth citizen and subject to such control, might center the United Kingdom without, upon landing, submitting yourself for examination by an immigration oficer and medical inspector and without holding an employment voucher'. Prior to the entry of his plea the appellant had moved to quash the indictment on the ground that it disclosed no offence known to the law, but this submission was overruled. He now appeals, by authority of a certificate of the trial judge, on the same ground. This appeal requires a careful examination of the terms of the Commonwealth Immigrants Act 1962. By its long title it is described as an Act (inter alia) to make temporary provision for controlling the immigration into the United Kingdon of Commonwealth citizens. Its purposes is novel in that a Commonwealth citizen is also a British subject by virtue of s 1 (2) of the British Nationality Act 1948, and there had never previously been any restriction on, or control of, entry of British subjects into the UK. By s 1 (2) of the 1962 Act Part I of that Act applies to any Commonwealth citizen, other than a person born in the UK or a citizen of the UK and colonies holding a UK passport. The Act accordingly applied to the appellant. By s 3 (1) (a) it is provided that the provisions of Part I of Sch 1 shall have effect with respect to 'the examination of persons landing or seeking to land in the United Kingdom from ships and aircraft'. Paragraph 1 of Part I of Sch 1 provides:

'(1) Subject to the provisions of this paragraph, an immigration officer may examine any person who lands or seeks to land in the United Kingdom for the purpose of ascertaining whether that person is or is not a Commonwealth citize subject to control under Part I of this Act, and if so or the purpose of determining what action, if any, should be taken in his case under the said Part I; and it shall be the duty of every such person to furnish to an immigration officer such information in his possession as that officer may reasonably require for the purpose of his functions under this paragraph.

'(2) A person shall not be required to submit to examination under this paragraph after the expiration of the period of twenty-four hours n1 from the time when he lands in the Untied Kingdom unless, upon being examined within that period, he is required in writing by an immigration officer to submit to further examination.'

n1 Now 28 days. See the Commonwealth Immigrants Act 1968, s 4 The immigration officer referred to is an officer appointed by the Secretary of State (s 16) and the powers of such an officer, on the examination of a Commonwealth citizen to whom the Act applies, are contained in s 2. In brief, he has a discretion to admit or refuse admission, subject to the provisions of s 2 (2) and (3), which specify a number of circumstances in which admission cannot be refused. In particular a Commonwealth citizen landing in the UK cannot be refused admission if under s (2) (3) (a) he has an employment voucher of the kind three described, unless the overriding power of refusal under s 2 (4) or (5) arises on medical grounds, or in the interests of national security or by reason of his criminal record, or if a deportion order in respect of him is in force. The offences which may be committed by a Commonwealth citizen under the Act appear in s 4. The two material to this case are as follows:

'(1) If any person being a Commonwealth citizen to whom section one of this Act applies -- (a) enters... the United Kingdom, otherwise than in accordance with the directions or under the authority of an immigration officer, while a refusal of admission under section two of this Act is in force in relation to him... he shall be guilty of an offence;...

'(4) If any person acts in contravention of, or fails to comply with, any provision of the First Schedule to this Act, or of any order made, directions given or requirement imposed thereunder... he shall be guilty of an offence.' The offence is a summary ofence in each case (s 14).

There provisions provide a striking contrast to those which for nearly 50 years had controlled the entry of aliens into the UK. By the aliens Order 1953 n2, art 1 -- n2 SI 1953 No 1671

'... an alien shall not land... in the United Kingdom except with the leave of an immigration officer, and shall not so land... elsewhere than at an approved port...'

Thus an alien commits an offence by landing, unless he commes by a prescribed route, and submits himself to an examination, whereas a Commonwealth citizen, even though subject to control under the Act, may land wherever he chooses and is, in our opinion, under no obligation to seek out an immigration officer and present himself for examination. Counsel for the Crown contended that since the immigration officer has a duty to examine, there must be a corresponding duty on the immigrant to submit himself for examination, but we do not regard this as applying to an immigrant who lands at a point where no immigration control exists. Indeed the terms of para 1 of Sch 1 are permissive and we do not think that the Act imposes a duty to examine on the immigration officer unless he has had directions to that effect from the Secretary of State under s 16 (3). As will appear later, the 1962 Act was substantially amended in 1968 but in the form in which it existed at the date of this alleged offence it left the extent of control to be exercised on Commonwealth immigration very much in the hands of the Secretary of State. It was for him to decide how many immigration officers to appoint and where to deploy them. It was for him to direct on such matters as whether examination should be selective or should apply to all persons landing. On the immigrant's side there was no restriction on his right as a British subject to land where he chose and no prohibition of landing unless he had in fact been examined by an immigration officer and refused admission (s 4 (1) (a)). By pleading guilty to this charge the appellant admitted the facts alleged in the particulars of the indictment. It may thus be assumed that he well knew that his entry was subject to control and that if he landed at one of the more conventional points of entry he was lable to be examined by an immigration officer and refused admission. It may also be assumed that he deliberately chose to land at a point where he was unlikely to find an immigration officer and that he did this in combination with others. Counsel for the Crown invited us to look at the depositions for further details, in particular as to the route followed from India and the constitution of the appellant's party, but in the face of objection from counsel for the appellant we decided that this issue should be determined on the wording of the indictment. Counsel for the Crown concedes that the appellant committed no substantive offence under the 1962 Act but contends that he was guilty of an indictable conspiracy by reason of his having so acted in combination with others. According to Hawkins's Pleas of the Crown n3 (see Archbold's Criminal Pleading, Evidence & Practice n4), conspiracy as an indictable misdemeanour consists in the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. Many taxtbook writers have endeavoured to classify the acts which may be treated as unlawful for this purpose, but the meaning of the word remains elusive. It is clear that an agreement to commit a substantive crime, to cheat and defraud, or to commit certain torts, is suficient to support an indictment but none of these is relevant to the present case. There remains a further class of which Lord Ried said in Shaw v Director of Public Prosecutions n5: n3 Vol 1, c 72, s 8 n4 37th Edn, 1969, p 1343, para 4051 n5 [1961] 2 All ER 446 at 456, [1962] AC 220 at 273, 274

'No one has ever attempted to define what makes an act "unlawful" so as to bring it within this class, the law seems to be haphazard depending largely on historical accident. Perhaps as good a summary as any is that which goes back to early editions of Professor Kenny's book n6 "... certain other acts... which... are not breaches of law at all, but which nevertheless are outrageously immoral or else are, in some way, extremely injurious to the public".'

n6 Outlines of Criminal Law. See now 16th Edn, p 428, para 451 The modern example of this class which approaches most closely to the present case is R v Newland n7, a decision of the Court of Criminal Appeal in 1953. At that time an order having statutory force and known as the Domestic Pottery (Manufacture and Supply) Order 1947 n8, sought to prohibit the sale of decorated pottery on the home market in order that is should all be exported, and, accordingly, prohibited manufacturers from selling such pottery except for export. The accused obtained decorated pottery from a manufacturer by falsely pretending that it would be exported, but then sold it on the home market. The order did not prescribe a penalty for making such a false declaration nor did it specifically prohibit the obtaining of decorated pottery by such means, or its subsequent sale. The accused were convicted of conspiring to effect a public mischief and this conviction was upheld on appeal. n7 [1953] 2 All ER 1067, [1954] 1 QB 158 n8 SR & O 1947 No 373 Lord Goddard CJ, in giving the judgment of the court observed that although the order did not specifically deal with the obtaining of goods in this way n9 -- n9 [1953] 2 All ER at 1070, [1954] 1 QB at 164

'... it is obvious that, if persons who falsely represent that they intend to export the goods and thereby obtain supplies of them could then with impunity sell the goods in this country, the whole scheme would break down and the object of the legislature would be defeated.'

He confired that n10 -- n10 [1953] 2 All ER at 1071, [1954] 1 QB at 165

'It is much too late to object that a conspiracy to effect a public mischief is an offence unknown to the law.'

And whilst recognising the caution which the courts should observe when asked to hold an act to be one tending to create a public mischief, he pointed to two reasons which justified the conviction in that case, namely n11: n11 [1953] 2 All ER at 1072, [1954] 1 QB at 166

'The particulars sufficiently allege a common law misdemeanour, namely, conspiracy, and whether the matter is looked at simply as a conspiracy to effect an unlawful purpose or a conspiracy by dishonest devices to defeat the clear intention and purpose of an Act of Parliament or to work to the prejudice of the State, in our opinion, they disclose oences which have long been known to the common law of this country.'

In Shaw's case n12 the indictment charged a conspiracy to corrupt public morals. Unlike the present case and R v Newland n13 it was not concerned with the use of a charge of conspiracy to reinforce a system of control imposed by statute, but it nevertheless throws light on the duty of the courts to intervene in cases of the public mischief type when Parliament has failed to do so. Viscount Simonds in upholding the power of the court to cinvict of the offence then charged said n14: n12 [1961] 2 All ER 446, [1962] AC 220 n13 [1953] 2 All ER 1067, [1954] 1 QB 158 n14 [1961] 2 All ER at 452, [1962] AC at 267

'In the sphere of criminal lw, I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.' He pointed out that the court has a residual power n15:

n15 [1961] 2 All ER at 452, [1962] AC at 268

'... where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare. Such occasions will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused.'

On the same topic Lord Reid referred to the fact that the judges appear to have continued to extent the law of conspiracy after they have ceased to extend offences by individuals and added n16: n16 [1961] 2 All ER at 457, [1962] AC at 275

'Even if there is still a vestigial power of this kind, it ought not, in my view, to be used unless there appears to be general agreement that the offence to which it is applied ought to be criminal if committed by an individual... When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in.'

Although the present case does not charge conspiracy to effect a public mischief it must, we think, be subject to the same principles since the only basis on which the act agreed on in this case can be described as 'unlawful' is that it was injurious to the public interest. The appellant's entry into the United Kingdom could not have been regarded as injurious to the public interest before, or apart from, the 1962 Act, and it was not prohibited by that Act. Unlike R v Newland n17, the appellant used no deceit and did not cause any other person to do a prohibited act. Accordingly it seems to us that the Crown cannot bring his act into the 'unlawful' category unless it can show at the very least that that act tended to defeat the clear intention and purpose of the Act. n17 [1953] 2 All ER 1067, [1954] 1 QB 158 The fist and fundamental question therefore is whether the scheme and purpose of the Act did contemplate that every Commonwealth citizen subject to control should be examined by an immigration officer. It may seem unfair that such a system should be operated on a selective basis so that some immigrants were exempt and some were not, and at first sight it may seem unlikely that Parliament should have so intended, but an examination of the Act has brought us to a different conclusion. It seems clear to us that the omission of any requirement on an immigrant to land at a specified port was not accidental and that the whole Act shows an intention to treat Commonwealth citizens far less rigidly than aliens. Part I of the Act was to apply only until 31st December 1963 unless renewed, and, as we have already pointed out, its effectiveness depended largely on the extent to which the Secretary of State elected to use the powers conferred on him. We regad it as probable that Parliament recognised that some immigrants would enter without examination but thought that the numbers would be so small as to be insignificant. If this be so, and the present charge were nevertheless upheld, the courts would indeed be reshing in where Parliament refused to tread. We can we understand that, by 1967, the flow of unexamined immigrants may have assumed serious proportions, but an act does not not take on itself the character of a public mischief merely because others copy the example. If Parliament miscalculated the volume of unexamined entry it was for Parliament and not the courts to change the law, and this was in fact done by the Commonwealth Immigrants Act 1968, which made it an offence for a Commonwealth citizen to land unless he had been examined on board ship or aircraft or, alternatively, he landed in accordance with arrangements approved by an immigration officer and duly submitted himself to examination. For these reasons we concluded that the indictment disclosed no offence known to the law and we allowed the appeal.

DISPOSITION:

Appeal allowed. On 20th February 1970 the Court certified under s 1 (2) of the Administration of Justice Act 1960 that a point of law of general public importance was involved, namely whether an indictment for conspiracy will lie against a Commonwealth immigrant who in combination with others entered the United Kingdom between 1962 and 1968 by evading examination by an immigration officer and a medical examination and without holding an employment voucher, but refused leave to appeal to the House of Lords n18. n18 On 24th March 1970 the appeal committee of the House of Lords granted a petition by the Director of Public Prosecutions for leave to appeal against this decision

SOLICITORS:

Norman E Bell & Co (for the appellant); Director of Public Prosecutions (for the Crown).

R v IMMIGRATION APPEAL TRIBUNAL ex parte MARIE DENISE FULLER
CO/2208/91 16 January 1992

Queen's Bench Division: Pill J

Deportation- 1988 Act-restricted rights of appeal for overstayers - exemption from those restrictions by 1988 Order extends only to those who had secured leave to re-enter by virtue of s. 3(3)(b) of the 1971Act - arbitrary application of that section before the 1988 Act came into force - whether the 1988 Order was ultra vires. Immigration Act 1971 (as amended) ss. 3(3)(b), 3(5)(a): Immigration Act 1988 s. 5(l): Immigration (Restricted Right of Appeal against Deportation) (Exemption) (No 2) Order 1988 (S.I. 1988: 1203) para. 2(b).

The applicant for leave to move for judicial review was a citizen of Jamaica. She was an overstayer at the date when the Secretary of State decided to initiate deportation proceedings against her pursuant to s. 3(5)(a) of the 1971 Act (as amended). She first arrived in the United Kingdom in 1982 and thereafter secured a series of extensions of leave as a student. During those periods of leave she left the United Kingdom for short periods. On her return she was granted leave to enter, but not on the basis of a s. 3(3)(b) stamp in her passport. The consequence was that she was "last given leave to enter" in February 1988. Thus at the date of decision by the Secretary of State she had last been given leave to enter less than seven years before, and that leave did not come within the exemption order that gave unrestricted right of appeal to those last admitted less than seven years before on the basis of a s. 3(b) stamp. She therefore had only restricted rights of appeal: the jurisdiction of the appellate authorities was limited to determining whether the Secretary of State had had the power in law to take the decision he had taken. An adjudicator and the Tribunal concluded that he had had that power.

On application for judicial review it was argued that paragraph 2(b) of the 1988 Exemption Order was arbitrary in its effect and ultra vires.

Held

1. It was for Parliament and not the courts to make the law.

2. In the circumstances it was not arguable that the court should intervene and quash the Order.

U Cooray for the applicant
D Pannick for the respondent

Cases referred to in the judgment:

Kruse v Johnson [1898] 2 QB 91.

R v Secretary of State for the Environment ex parte Nottinghamshire County Council [1986] AC 240: [1986] 1 All ER 199.

R v Immigration Appeal Tribunal ex parte Manshoora Begum [1986] Imm AR 385.

Family Division