R v. Patel

R v Patel

COURT OF APPEAL, CRIMINAL DIVISION

[1981] 3 All ER 94, 73 Cr App Rep 117, 146 JP 29

Hearing Date: 16, 26 JANUARY 1981

26 JANUARY 1981

Index Terms:

Criminal evidence - Hearsay - Document - Home Office records - Evidence as to contents of records given by person other than officer responsible for compiling and keeping records -- Defendant charged with assisting illegal entry into United Kingdom - Home Office records showing person assisted was illegal entrant - Immigration officer giving evidence that he had examined records - Whether evidence admissible - Whether records proof of facts contained therein - Criminal Evidence Act 1965, s 1(1).

Held:

The defendant was charged with assisting the illegal entry of A into the United Kingdom, contrary to s 25(1) of the Immigration Act 1971. To prove that A was an illegal entrant the Crown called an immigration officer, who gave evidence that he had examined Home Office records which showed that A's name was not in the records as being entitled to a certificate of registration in the United Kingdom and that therefore at the material time he was an illegal entrant. On a submission by the defendant that the Home Office records were inadmissible evidence, the trial judge ruled that the records were admissible to prove that A was an illegal entrant. The defendant was convicted. He, appealed against the conviction on the ground that the judge's ruling was wrong. Held - The Home Office records relied on by the Crown were hearsay evidence, and, since they were not within the class of documents which were made admissible in criminal proceedings as evidence of the facts contained in them under s 1(1) a of the Criminal Evidence Act 1965, an officer responsible for their compilation and custody should have been called by the Crown to give evidence that the method of compilation was such that if A's name was not in the records he must be an illegal entrant. Since the immigration officer was not such an officer, his evidence about the records had been wrongly admitted and, as no other evidence had been adduced by the Crown to prove that A was an illegal entrant, the defendant's conviction would be quashed (see p 96 e to h and p 97 e, post). a Section 1(1) provides: 'In any criminal proceedings where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, on production of the document, be admissible as evidence of that fact if -- (a) the document is, or forms part of, a record relating to any trade or business and compiled, in the course of that trade or business, from information supplied (whether directly or indirectly) by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with in the information they supply; and (b) the person who supplied the information recorded in the statement in question is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identified or found, or cannot reasonably be expected (having regard to the time which has elapsed since he supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information he supplied.' Myers v Director of Public Prosecutions [1964] 2 All ER 881 applied. Per Curiam. Where there are a large number of counts in an indictment dealing with several different offences in respect of several different matters, even though there may be a common thread running through them all, it is important that in his summing up the trial judge should deal clearly and distinctly with the case on each count in order to avoid the possibility of confusion in the jury's mind (see p 97 d e, post).

Notes:

For the inadmissibility of hearsay evidence and exceptions to the rule under the Criminal Evidence Act 1965 in regard to certain documents, see 11 Halsbury's Laws (4th Edn) paras 437, 439, 442. For the Criminal Evidence Act 1965, s 1, see 12 Halsbury's Statutes (3rd Edn) 907. For the Immigration Act 1971, s 25, see 41 ibid 45.

Cases referred to in the Judgment:

Myers v Director of Public Prosecutions [1964] 2 All ER 881, [1965] AC 1001, [1964] 3 WLR 145, 128 JP 481, 48 Cr App R 348, HL; affg sub nom R v Myers [1964] 1 All ER 877, CCA, 22 Digest (Reissue) 63, 388. R v Mehet and Hayr (21st March 1980, unreported), CA.

Introduction:

Application for leave to appeal. On 22nd November 1979 in the Crown Court at Preston before his Honour Judge Openshaw the appellant, Abdul Hamid Ibrahim Patel, was convicted on, inter alia, counts 4 and 5 of an indictment of assisting the illegal entry of Mohammed Ashraf into the United Kingdom, contrary to s 25(1) of the Immigration Act 1971, and was sentenced on each of those counts to three years' imprisonment to run consecutively. He applied for leave to appeal against the convictions on the ground that the trial judge had erred in law in admitting Home Office records as evidence that Shraf was an illegal entrant when that evidence was hearsay. The facts are set out in the judgment of the court.

Counsel:

NJ Ley for the appellant. Philip Cattan for the Crown.

Judgment-READ:

Cur adv vult. 26th January. PANEL: SHAW LJ, BRISTOW AND HODGSON JJ

Judgment One:

BRISTOW J read the following judgment of the court: On 22nd November 1979 the appellant, then aged 32, was tried in the Crown Court at Preston before his Honour Judge Openshaw on an indictment containing ten counts, as follows. Counts 1 and 2 were handling stolen goods. He was convicted and sentenced to six months on each count concurrent. Count 3 was obtaining a policy of insurance by deception. This count was not proceeded with and was ordered to lie on the file, not to be proceeded with without leave. Counts 4 and 5 were assisting illegal entry into the United Kingdom, contrary to s 25(1)(d) of the Immigration Act 1971. He was convicted and sentenced to three years on each count concurrent with each other, and with the sentences on counts 1 and 2. Count 6 was assisting illegal entry into the United Kingdom, contrary to s 25(1) of the 1971 Act, and he was acquitted. Count 7 was possession of a false document, contrary to @ 26(1)(d) of the 1971 Act. He was convicted and sentenced to three months concurrent. Count 8 was assisting illegal entry into the United Kingdom, contrary to s 25(1) of the 1971 Act. He was convicted and sentenced to four years' imprisonment concurrent. Count 9 was harbouring an illegal entrant, contrary to s 25(2) of the 1971 Act. He was sentenced to three months concurrent. Count 10 was inciting someone to enter the office of the Registrar of Births, Deaths and Marriages at Chorley and steal registration certificates. He was acquitted of that. In passing sentence, the trial judge observed that it was quite plain that the appellant was running some sort of ghastly racket, and that it was conduct which could not be tolerated since it created ill-will between the various races, and racial prejudice. The judge made it clear that the sentences which he passed were intended, in total, to be exemplary. The appellant now applies to this court for leave to appeal against conviction and sentence. This court has given leave to appeal and, since counsel for both the appellant and the Crown have been present and have presented argument to the court, has treated the hearing as the hearing of the appeal. No argument has been presented by counsel for the appellant in respect of his convictions on counts 1 and 2. In so far as his appeal relates to conviction and sentence on those counts, it is dismissed. Not only were the sentences proper, but they have already been served. This court does not interfere with those sentences. Counsel for the Crown rightly does not seek to support the convictions on counts 7 and 9. It is accepted that the offences charged in these counts are offences triable only summarily, not on indictment, see R v Mehet and Hayr (21st March 1980, unreported), a case which does not appear to have been cited for the assistance of the trial judge when asked to rule on the question of the jurisdiction of the Crown Court in relation to counts 7 and 9. The convictions on those counts are therefore quashed. So there remain the appeals in respect of counts 4, 5 and 8. Count 4 charged the appellant and Mohammed Ashraf with being knowingly concerned in making arrangements for facilitating the entry into the United Kingdom of Ashraf, who he knew, or had reasonable cause to believe, was an illegal entrant. Count 5 charged the appellant with being knowingly concerned in making arrangements for securing or facilitating the entry into the United Kingdom of Mohammed Ashraf, who he knew, or had reasonable cause to believe, was an illegal entrant. Count 8 charged him similarly in respect of Masoud Akhtar. The evidence led by the Crown to prove that Ashraf was an illegal immigrant was that of Brian Stone, the chief immigration officer at Manchester airport. His evidence was that his examination of Home Office records showed that Ashraf was not entitled to a certificate of registration in the United Kingdom and was, at the time with which count 4 is concerned, an illegal entrant. Counsel for the appellant submitted to the trial judge that the Home Office records were inadmissible to prove that Ashraf was an illegal entrant. The trial judge ruled that they were clearly admissible. Counsel for the appellant submits to this court that he was wrong, relying on the decision in the House of Lords in Myers v Director of Public Prosecutions [1964] 2 All ER 881, [1965] AC 1001, and in particular on the observations of Lord Morris and Lord Hodson ([1964] 2 All ER 881 at 890, 896, [1965] AC 1001 at 1028, 1033). In the judgment of this court, the Home Office records relied on by the Crown in this case are hearsay, just as were the commercial records in question in Myers v Director of Public Prosecutions, and since they cannot therefore speak for themselves in criminal proceedings, and are not within those classes of documents which, since the Criminal Evidence Act 1965 have been allowed to speak for themselves in criminal proceedings, an officer responsible for their compilation and custody should have been called to give evidence that the method of compilation and custody is such that if Ashraf's name is not there, he must be an illegal entrant. It is not suggested that Mr Stone is such an officer. In our judgment, the trial judge was wrong in law to admit the evidence about the state of the records for the purpose for which it was tendered. Ashraf failed to appear at the trial and give evidence. The appellant made no admission about whether Ashraf was an illegal entrant or not. There was, therefore, in the judgment of this court, no admissible evidence to support the proposition that he was, a proposition which was an essential element in the offence charged in count 4. The conviction on count 4 is therefore quashed. In support of count 5, the evidence was that a blank passport application form was found bearing the name of Arif, together with letters addressed to the appellant from a man called Butt, in the appellant's house. The appellant said he knew nothing about them, and the forensic evidence shed no light on who had written the Arif application form. As far as this court has been able to discover, there was no other evidence about whether Arif was an illegal entrant or not, or indeed that the appellant did anything about him. Of course, the finding of the application form in the appellant's house arouses suspicion, but, in our judgment, there was no more evidence in respect of count 5 and Arif than there was in respect of count 6 and Kurishid, where the judge rightly directed the jury to return a verdict of not guilty. The conviction on count 5 is accordingly quashed. In respect of count 8, Masood Akhtar, the position is very different. When the appellant's house was searched on 17th July 1979 the police found taped to the back of a picture in the fireplace a completed application form bearing two photographs in the name of Akhtar. The appellant said he knew nothing about it. But Akhtar was called, and gave evidence that the appellant agreed to get a British passport for him for a fee of @200 plus @11, the passport office fee, and that he could go out on his Pakistan passport, and return on the bogus British passport and stay permanently. On his own story, Akhtar was a party to a deal intended to get him into the United Kingdom as an illegal entrant, and so an accomplice of whose evidence the jury ought to look for corroboration, without which it would be dangerous to convict. The trial judge, taking the view, in our judgment erroneously, that Akhtar was not an accomplice, did not give the jury the classic direction on corroboration, although he warned them that Akhtar might have an axe to grind. Had he done so, the jury would no doubt have concluded that the finding of the passport application corroborated Akhtar's story up to the hilt. Counsel for the appellant very candidly told this court that if he had been charged on count 8 alone, he would have had difficulty in saying that the conviction on count 8 was unsatisfactory. But he submits that having regard to the course the trial took, we ought so to regard it. It was part of a complex story, some of which ought not to have been before the Crown Court at all, some of which was supported by inadmissible evidence, some of which was really insufficient supported by evidence, a story which, if all taken at its face value, added up to the black picture spoken of by the trial judge in sentencing. This court has found the case made at trial difficult to follow because of the way in which the trial judge summed up to the jury. Where you have ten counts dealing with several different offences in respect of several different people, even though there may be a common thread running through them all, it is important to deal clearly and distinctly with the case on each count in order to avoid the possibility of confusion in the jury's mind. In our judgment, the trial judge for once fell short of his usual high standard. For these reasons, we have come to the conclusion that, in spite of the strength of the Crown case on count 8, this court must regard the conviction on count 8 as unsafe, and it must be quashed. Accordingly, to that extent this appeal succeeds.

DISPOSITION:

Appeal allowed in part.

SOLICITORS:

JS Sierzant & Co, Chorley (for the appellant); Leo B Wallwork & Co, Chorley (for the Crown).