The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the defence of reasonable excuse and otherwise. The statute had to be read so as to comply with art 31 of the 1951 Convention. The convictions however were safe in this case.
Kennedy L.J said that the burden of proof was legal rather than evidential: ‘For that same reason, namely that the defendant alone is likely to have all of the relevant information, and bearing in mind the importance of maintaining an effective immigration policy, and the limitation on the penalties which can be imposed under the Act, we see no reason to conclude that the burden of proof should be interpreted as being anything less than a legal burden. An evidential burden would do little to promote the objects of the legislation in circumstances where the prosecution would have very limited means of testing any defence raised. ‘
Judges:
Kennedy LJ, Bell J, Dobbs J
Citations:
[2005] EWCA Crim 2865, Times 05-Dec-2005
Links:
Statutes:
Asylum and Immigration (Treatment of Claimants etc) Act 2004 2, Convention and Protocols relating to the Status of Refugees 31
Jurisdiction:
England and Wales
Citing:
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Khaboka v Secretary of State for the Home Department CA 1993
A refugee does not become a refugee because of recognition as such. He is recognised because he is a refugee so, for the purposes of Article 31.1 the term refugee includes someone who is only subsequently established as being a refugee, in other . .
Cited – Regina (on the Application of Gjovalin Pepushi) v Crown Prosecution Service Admn 11-May-2004
The claimant was stopped when boarding a flight to Canada, having previously stopped in France and Italy. He bore a false Swedish passport, and intended to claim asylum in Canada. He now claimed the benefit of the article 31 (per Adimi), to defend a . .
Cited – Regina v Abdul Hussain and others CA 1999
The judge had been wrong to refused to leave the defence of necessity to the jury. The court gave guidance as to the proper approach. The judge should have asked himself whether there was evidence of such fear operating on the mind of the defendant . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .
Cited by:
Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
Lists of cited by and citing cases may be incomplete.
Crime, Immigration, Human Rights
Updated: 04 July 2022; Ref: scu.235244
