R v OFORI; R v TACKIE

COURT OF APPEAL (CRIMINAL DIVISION)

99 Cr App Rep 219, [1994] Crim LR 822

Hearing Date: 4, 8 November 1993

8 November 1993

Index Terms:

Court of Appeal -- Power to Release Deportee Against Whom Recommendation for Deportation was in Force -- Criminal Appeal Act 1968 (c 19), ss 19(1), 51(1) -- Immigration Act 1971 (c 77), Sched 3, para 2(1), as amended by the Criminal Justice Act 1982 (c 48), s 64, Sched 10.

Held:

By section 19(1) [of Part 1] of the Criminal Appeal Act 1968: "The Court of Appeal may, if they think fit -- (a) grant an appellant bail pending the determination of his appeal . . ." By section 51(1): ". . . 'appeal' where used in Part I . . . of this Act, means appeal under that Part, and 'appellant' has a corresponding meaning and in Part I includes a person who has given notice of application for leave to appeal . . ." By paragraph 2 of Schedule 3 to the Immigration Act 1971, as amended: "Where a recommendation for deportation by a court is in force in respect of any person, and that person is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power to release him, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under subparagraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case. (1A) Where -- (a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and (b) he appeals against his conviction or against that recommendation, the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation." The Court of Appeal has power under sections 19(1) and 51(1) of the Criminal Appeal Act 1968 to direct the release of an offender in respect of whom a recommendation for deportation is in force, notwithstanding that the Secretary of State has declined to order his release. That power was given by paragraph 2(1A) of Schedule 3 to the Immigration Act 1971, as inserted by the Criminal Justice Act 1982, in respect of an appellant even when an appeal against the recommendation for deportation has failed. In the instant case, the Court refused applications for bail pending leave to appeal against conviction and sentence by Ofori and Tackie on November 4, 1993, in that their appeals were due to be heard on November 8, 1993. 99 Cr App Rep 219, [1994] Crim LR 822

Notes:

[For ss 19, 51 of the Criminal Appeals Act 1968, see Archbold (1993) paras 7-190, 275.]

Introduction:

Applications for bail. The applicants Ofori and Tackie applied for bail pending their appeals against their conviction and sentence including recommendation for deportation on pleas of guilty on rearraignment before Judge Fordham at the Crown Court of Inner London Sessions House on June 9, 1993, to counts of handling or attempting to handle cars stolen from hire firms in Europe and were each sentenced to two years' imprisonment with recommendations for deportation. Other counts were ordered to lie on the file. The facts and issues in the applications appear in the judgment. The applications were heard on November 4, 1993, when the Court stated that the applications would be refused, reasons being given later.

Counsel:

B Aina for the applicants; D Fisher for the prosecution; D Rose for the Home Secretary.

Judgment-READ:

Cur adv vult PANEL: The Lord Chief Justice, Lord Taylor, Schiemann, Wright JJ

Judgment One:

LORD TAYLOR CJ, (Reading the judgment of the court): On June 9, 1993, in the Crown Court at Inner London, the two applicants pleaded guilty on rearraignment and were each sentenced as follows: on count 13, for handling stolen goods, on count 14, for handling stolen goods, and on count 16, for attempted handling stolen goods, two years' imprisonment on each count concurrently in respect of each applicant. By reason of the time spent in custody on remand, Ofori would have been due for release, having served the operative part of his sentence, on August 31, 1993, and Tackie on August 28, 1993. However, each has been held in detention under the provisions of Schedule 3 to the Immigration Act 1971. They have each applied for an extension of time of 16 days in which to apply for leave to appeal against conviction and they apply to appeal against sentence, their cases having been referred to the full court by the registrar. Each also applied for bail pending appeal. We heard their applications for bail on November 4 and dismissed them. Before proceeding to the substance of their applications for leave to appeal, which we shall hear today, we now give our reasons for refusing bail. The issues raised were: (1) whether this Court has jurisdiction to grant bail; and (2) if so, whether we should do so here on the merits. 99 Cr App Rep 219, [1994] Crim LR 822 Paragraph 2(1) of Schedule 3 to the Immigration Act 1971 provides: "Where a recommendation for deportation made by a court is in force in respect of any person, and that person is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him, he shall, unless the court by which the recommendation is made otherwise directs [or a direction is given under subparagraph (1A) below] be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case." Subparagraph (1A) of paragraph 2 provides: "Where -- (a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and (b) he appeals against his conviction or against that recommendation, the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation." This Court held in Barsoum (CA , unreported, judgment September 28, 1993) that the power to release under paragraph 2(1A) can only be exercised by the court actually determining the appeal and at the time of determining it. Section 19(1) of the Criminal Appeal Act 1968 provides as follows so far as is relevant: "The Court of Appeal may if they think fit -- (a) grant an appellant bail pending the determination of his appeal." An appellant includes a person who has given notice of application for leave to appeal (see section 51(1) of the 1968 Act). Mr Aina, who appears for both applicants and who has argued their case admirably, contended that, by reason of those statutory provisions, the Court has power to grant them bail. The applicants are, by section 51, appellants. Therefore, this Court has power under section 19 to grant them bail pending appeal. Paragraph 2(1) of the Schedule to the 1971 Act provides for detention pending the making of a deportation order where a recommendation for deportation made by a court is in force, but subject to certain exceptions. One exception is if the person is "for the time being released on bail by any Court having power so to release him". Mr Aina submits this Court has that power. Counsel for the Crown and counsel for the Home Office, whom we have heard on this issue, argued to the contrary. They accept that this Court would have had power to grant bail pending appeal whilst the applicants were still serving a sentence imposed by the Crown Court, but they contend that once that sentence was served, the subsequent detention was purely administrative pursuant to the Immigration Act 1971 and this Court has no power to grant bail in respect of it. To quote Miss Rose's skeleton argument: 99 Cr App Rep 219, [1994] Crim LR 822 "In other words a person may not be detained under Schedule 3 if he has already been released on bail. No power can be extracted from this paragraph to release a person on bail after he has been detained." But the power to grant bail does not derive from that paragraph. It derives from section 19 of the Criminal Appeal Act 1968. The applicants' continued detention after serving their prison term flows directly from the court's recommendation for deportation which is part of the court's sentence and is the subject of an appeal. It is next argued that if the Court of Appeal can grant bail at any stage pending appeal, paragraph 2(1A) is (to use Miss Rose's words) "meaningless and without purpose". That is not so. Once the appeal is determined and the recommendation for deportation has not been quashed, this Court could not grant bail. Section 19 of the Criminal Appeal Act would no longer empower the Court to do so since the appeal would no longer be pending. Thus, the further power of release had to be given to the Court by paragraph 2(1A). It is submitted that the regime of paragraph 2(1) of Schedule 3 should be consistent with that of paragraphs 2(2) and 2(3). They deal respectively with detention following a notice of intention by the Secretary of State to make a deportation order, and detention pending removal where a deportation order has been made. Under those paragraphs Miss Rose maintains that the only recourse against the detention is by judicial review and not by an application for bail. That is so, but those paragraphs do not relate to detention flowing from a Crown Court decision in a criminal case from which there is an appeal pending to this Court. Finally, it is submitted that, if this Court could entertain an application for bail, in the circumstances it would be tantamount to overruling the decision of the Secretary of State not to release the applicants, and the court would lack the information available to the Secretary of State. However, paragraph 2(1) clearly contemplates that the court making the recommendation for deportation can direct release, and even on Miss Rose's argument this Court would have power to do so while a sentence of imprisonment is still being served. Furthermore, paragraph (1A) gives this Court power to release at an even later stage, although ex hypothesi the Secretary of State has thus far declined to do so. In our judgment the effect of paragraph 2(1) and 2(1A) is to give the courts power at each stage to release the offender notwithstanding that a recommendation for deportation is in force. It starts with the power of the Crown Court to direct his release; it continues with any court having the power to release him on bail; and it culminates, even when an appeal against a recommendation fails, in the power given to the appeal court to release him. We recognise the force of Miss Rose's submission that the Secretary of State may have information highly relevant to determining whether bail or release should be granted. We accordingly consider that a court proposing to grant bail, or to release an offender subject to a recommendation for deportation, may, depending on the circumstances, consider it wise to give the Secretary of State an opportunity to make representations. Whilst holding that we have power under section 19 of the 1968 Act to grant bail, we declined to do so in the present case. There is no presumption in favour of bail where the offenders have been convicted and are recommended for 99 Cr App Rep 219, [1994] Crim LR 822 deportation. Their application came before us on Thursday last and their case was listed to be determined today, Monday. The granting of bail was opposed on the merits by the prosecution and by the Secretary of State, who has declined to release the applicants himself. In the circumstances, we did not consider it to be in the public interest to grant bail when the waiting period was so short and the temptation to abscond might be at its highest.

DISPOSITION:

Applications refused

SOLICITORS:

Crown Prosecution Service, London, Treasury Solicitor.

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