R v. Bello

R v BELLO

Court of Appeal, Criminal Division

67 Cr App Rep 288

Hearing Date: 6 February 1978

6 February 1978

Index Terms:

Immigrant -- Non-Patrial -- Leave -- Non-Patrial Granted Limited Leave to Remain in United Kingdom -- Remaining in United Kingdom Beyond Time Limited for Leave -- Death of Non-Patrial's Mother in Nigeria -- Non-Patrial's Defence Death of Mother Caused him to Overstay Leave -- Duty of Non-Patrial to Act "Knowingly" -- Trial Judge on Prosecution's Invitation Ruling No Defence in Law -- Inadvisability of Such a Ruling -- Immigration Act 1971 (c. 77), s. 24 (1) (b).

Held:

By section 24 of the Immigration Act 1971: "A person who is not a patrial shall be guilty of an offence... in any of the following cases... (b) if, only having a limited leave to enter or remain in the United Kingdom, he knowingly... (i) remains beyond the time limited by the leave..." The appellant, a Nigerian and non-patrial, was given a six months' limited leave to remain in the United Kingdom on his entry on August 19, 1974. While in England, he received a letter from Nigeria in January 1975 notifying him that his mother had died there. He overstayed the six months period and was charged that on February 20, 1975, he knowingly remained in the United Kingdom contrary to section 24 (1) (b) (i) of the Immigration Act 1971. His defence was that as a result of his mother's death his memory had been destroyed, so that he could not deal with his business affairs for a long period including February 20, 1975. The prosecution invited the trial judge to rule that that defence was not a defence in law to the charge. The trial judge acceded to that request and the appellant was convicted. On appeal Held, that the circumstances in which a judge can properly rule against a defendant that his defence was not a defence known to the law were very, very few and far between, and it was treading on most dangerous ground in the instant case to invite such a ruling because there might well have been questions of fact and degree as to the precise state of the appellant's mind which might have arisen for consideration; nevertheless, there was no danger in upholding the conviction because the evidence against the appellant was all one way, and whatever niceties were developed on the meaning of the word "knowingly" in section 24 (1) (b) (i) of the Immigration Act 1971, it could not be said that the appellant did not know he had overstayed his leave, for he had lived a normal life in England since his mother's death and a decision in favour of the Crown was inevitable; accordingly, the Court would apply the proviso to section 2 (1) of the Criminal Appeal Act 1968, and dismiss the appeal. MACLEAY v. TAIT [1906] A.C. 24 considered.

Introduction:

Appeal against conviction, 67 Cr App Rep 288 On June 2, 1977, at Inner London Crown Court (Judge Michael Chevasse, Q.C.) the appellant was convicted by direction of the judge that he had on February 20, 1975, not being a patrial, and having only a limited leave to remain in the United Kingdom, knowingly remained beyond the time limited by the leave, namely, February 19, 1975, contrary to section 24 (1) (b) of the Immigration Act 1971. He was fined @ 100 and recommended for deportation. The facts appear in the judgment. His ground of appeal was that the judge should not have withdrawn the case from the jury.

Counsel:

Duncan Pratt for the appellant. Miss K. Arden for the Crown. PANEL: BEFORE LORD WIDGERY LCJ, LORD JUSTICE SHAW AND MR. JUSTICE LLOYD

Judgment One:

LORD WIDGERY LCJ: On June 2, 1977, at the Inner London Crown Court the appellant was convicted on a direction of the learned trial judge "that he, on February 20, 1975, not being a patrial and having only a limited leave to remain in the United Kingdom, knowingly remained beyond the time limited by the leave, namely, February 19, 1975." Having been convicted of that offence, he was fined and recommended for deportation. He appeals against his conviction by leave of the single judge. The appellant first came to this country on August 19, 1974. He came in through Newcastle-upon-Tyne and was initially given a six months' limited leave to remain in this country, and that six months' limited leave would, therefore, have expired on February 19, 1975. He is charged that on February 20, 1975, he knowingly remained in this country, and the reason why that is done is because it is accepted on both sides in this case that for an immigrant to overstay his leave as in this fashion is a once and for all offence and not a continuing offence. The offence, therefore, is committed on that established approach on the first day of overstay, and the first day of overstay being February 20, 1975, the indictment relied on it accordingly. This meant of course that the prosecution had to prove not merely that the appellant had overstayed his permitted time in this country, but that he was in the course of overstaying it on the day specified, namely, February 20. The defence which the appellant put forward was very brief and took this form. He said that in early January 1975 by a letter from his home country -- Nigeria -- he received information that his mother had died. This information would have come to him early in the month of January 1975. He said and describes in some vivid detail how the effect of this news had made it impossible for him to deal with his business affairs, how it had destroyed his memory and how he could think of nothing during a very long period embracing February 20. Thus it was contended by the defence that the element of "knowingly" was not established in this offence because on the day in question his mind was not in a state in which he knew of anything of this character, 67 Cr App Rep 288 and certainly that he did not on that day know that he was in this country after the expiry of his permit. The matter came up very clearly on these lines, and counsel for the Crown invited the judge to say that there was on these facts no defence in law at all. What was being submitted in the briefest possible terms was that this man did not cease knowingly to be in this country after the expiry of his permit merely because he had forgotten the fact and because his mind was so full {290} of other things that he did not refer to it or think about it. The argument put forward by the Crown, with some force, was that that was not good enough to amount to a defence, and the learned judge was invited to rule upon that. We do not understand why he was invited to rule upon the matter because it seems to have been an extremely foolhardy thing for him to do. The circumstances in which a judge can properly rule against a defendant that his defence is not a defence known to the law are very, very few and far between, and it was treading on the most dangerous ground in this case to invite a ruling by the judge that the defence put forward was not available as a defence in law, without recognising that there might well be questions of fact and degree as to the precise state of the defendant's mind which might arise for consideration. We have been shown a certain amount of authority, and we are grateful to counsel for having produced it, although one may say that it does not take us very far. What there is of authority is favourable to the Crown. We have been shown MACLEAY v. TAIT [1906] A.C. 24, a passage beginning at p. 28, dealing with whether a company director knowingly issued a prospectus when there was a contract which did not disclose any prospectus. At p. 28 Lord Lindley says: "When the section [i.e. section 38 of the Companies Act 1967] has to be applied to any particular case, i.e. when a plaintiff sues a defendant for damages for a breach of duty imposed by this section, the following questions necessarily arise, viz. -- (1) Is the document to which the plaintiff says no reference is made in the prospectus such a contract as is described in the first part of the section? If it is not such a contract, there is an end of the case. If it is, and if it is not disclosed, then it is necessary to enquire. (2) Whether the defendant was a promoter, director, or officer of the company? (3) Whether he knowingly issued the prospectus?" On p. 32 of the same report, still in the speech of Lord Lindley, one finds this helpful paragraph: "I cannot, however, think that the section can be properly restricted so as not to apply to a director who knew of a contract such as is described in the first part of the section, but who forgot all about it when he issued a prospectus not referring to it. Whether such a director could be properly convicted on an indictment for fraud, or for something short of it, is quite another question, which your Lordships have not to consider." That supports the view that a man cannot plead that he did something unknowingly if he had the capacity for reviving the recollection of that event from his memory. A man can do an act knowingly even though at the moment when he does it the relevant fact is not actually in his mind. If he has the capacity to restore that fact to his mind, then on the face of it we would have thought the requirement of "knowingly" is satisfied. 67 Cr App Rep 288 That is supported by a paragraph in Mr. Glanville Williams' book on the Criminal Law, The General Part (2nd ed., 1964), at p. 170 where he deals with the subject under the vivid title of "Forgotten Knowledge." Dealing with forgotten knowledge he says: "Even if an average person would have remembered the fact, the test of knowledge is subjective not objective. On the other hand, it would probably be going too far in the other direction to assert that in order to have knowledge the fact must be present to the mind at the moment in question. To have knowledge of an event is not the same as to be thinking about it. Probably the test is: was the defendant capable of recalling the fact at the moment in question, if he had addressed his mind to it?" We would not in this case officially or formally approve that passage, but it is {291} obviously a passage well worth considering when this type of problem arises. We have come to the conclusion that in this case there is no danger in upholding the conviction because the evidence was all one way, and whatever niceties are developed on the meaning of the word "knowingly," one could not say that this young man did not know of his overstaying his leave because he was, although no doubt upset by his mother's death, capable of living a normal life, going to his polytechnic and that kind of thing. It seems to us that, although it was dangerous and undesirable to invite the judge to decide a case on this basis, the facts still remain that on any other basis a decision in favour of the Crown was inevitable. Accordingly it seems to us that the proper way to treat this matter is to apply the proviso to section 2 of the Criminal Appeal Act 1968 and uphold the conviction on that basis. The appeal will therefore be dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Registrar of Criminal Appeals, for the appellant, Solicitor, Metropolitan Police, for the Crown.