Grant v Borg
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Scarman,Lord Bridge of Harwich |
| Judgment Date | 22 April 1982 |
| Judgment citation (vLex) | [1982] UKHL J0422-2 |
| Court | House of Lords |
| Date | 22 April 1982 |
[1982] UKHL J0422-2
House of Lords
Lord Diplock
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Scarman
Lord Bridge of Harwich
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich. I agree with it and with the order he has proposed.
My Lords,
I have had the advantage of reading in advance the speech prepared by my noble and learned friend Lord Bridge of Harwich. I agree with it and with the order he proposes.
My Lords,
The appellant is a non-patrial who entered this country on 8th November 1975 with leave to remain as a visitor until 8th May 1976 which had expired by 9th May 1976. He did not then leave and remained here until information was preferred against him on 26th May 1979 that he had committed an offence under section 24(1)( b)(i) of the Immigration Act 1971, which makes it an offence if a non-patrial having only limited leave to … remain "knowingly … remains beyond the time limited by the leave".
Two points arise for special consideration. One is that the offence is not a continuing offence: on the first day of so remaining the offence is committed, which, if nothing more be said, would thus far have been 9th May 1976: see Gurdev Singh [1973] 1 W.L.R. 1441. The other is that by virtue of sections 24(3) and 28 the information must be preferred not later than three years after the committing of the offence, which means that if nothing more be said the information was too late to be entertained by the magistrates.
The information charged the offence as having been committed on a date unknown between 19th April 1977 and 24th May 1979. The explanation for the selection of those dates, which if established as the correct bracket of time would mean that the information was preferred within the three-year limitation, is to be found in the following facts.
On 27th April 1976 the appellant applied to the authorities for further leave to remain and without conditions against obtaining employment. While this application was being considered or processed his leave to remain had expired on 9th May. On 17th January 1977 his application was refused: but at the same time he was told that he could refer the matter to the Under Secretary of State at the Home Office if he gave notice of such intention within fourteen days. At the expiration of that period, on 31st January 1977, he applied for revocation of the occupational ban because he had married here. On 18th April 1977 this was refused.
The selection of the 19th April 1977 as the first possible date of the offence was presumably because the prosecution thought either that in some sort his original leave to remain was extended until the last refusal on 18th April 1977, or that he would not be "knowingly" remaining while he still had hope that his applications might be acceded to.
It would appear that in their dealings with the appellant's various approaches the authorities were making some extra-statutory attempts to to mitigate the rigour of the law laid down by this House in the Suthendran case [1977] A.C. 359, the decision of the Appellate Committee having been announced at the conclusion of the hearing in July 1976. That attempt was pursued by the Immigration (Variation of Leave) Order 1976 which, however, by its terms did not apply to the appellant. It was, rightly in my view, accepted by counsel for the respondent in this House that in law the only leave to remain under the Act expired by 9th May 1976.
The magistrates convicted the appellant, and at the request of the appellant, stated a case for the consideration of the Divisional Court. The magistrates (in brief) expressed their opinion that the leave to remain had been " ex gratia" extended by the Home Office to the 18th April 1977: and that the spirit of the Immigration (Variation of Leave) Order 1976 had been adopted in favour of the appellant and his leave to remain had as a matter of fact been extended at the discretion of the Secretary of State for the Home Office. Thus, the three-year limitation on proceedings did not apply.
The Divisional Court, while quashing the conviction, felt itself obliged to remit the matter to the magistrates for a rehearing so that they might determine on what date the appellant first "knowingly" remained after his only leave to remain had expired on the 9th May 1976, they not having decided upon a date. The Divisional Court accepted that the only leave in law to remain expired then and that nothing that happened thereafter could be in law a leave to remain: and the contrary was not argued for the respondent in this House. In taking the course of remission the Divisional Court acted upon an obiter dictum in the case of Tzanatos (Court of Appeal, 17th March 1978, unreported) which was not in my opinion justified. The Divisional Court certified that a point of law of general public importance was involved in its decision, viz.:
"For the purpose of ascertaining when time begins to run under section 28(1)( a) of the Immigration Act 1971 for bringing a prosecution under section 24(1)( b)(ii) of that Act, is that offence committed: (1) on the day after limited leave expires and only on that day? or (2) on that day or any later day on which the defendant is proved to have first known that his limited leave had expired?"
The Divisional Court refused leave to appeal to this House, which was granted by the Appeal Committee. The somewhat topsy-turvy situation was then displayed that the appellant was contending that the offence was knowingly committed on 9th May 1976, and the respondent prosecutor was contending that the offence was not knowingly committed until all hope was finally extinguished on 18th April 1977. The appellant gave no evidence before the magistrates before whom the prosecutor was a police constable. I am not at all sure what would happen on a remission to the magistrates. I would suppose that the appellant would, if he gave evidence, say that he well knew that his leave expired but he remained in hope that it might be extended in effect retrospectively. That evidence would present a considerable problem in cross-examination.
But even if he thought that his leave had not expired that would have been but a mistake in law. It is, I suppose, conceivable that in some circumstances under some statute the requirement of "knowingly" can only embrace a mistake of law. But in the instant case there is quite sufficient subject-matter for the word without introducing a mistake in the law that follows from known facts. An immigrant unfamiliar with the language and perhaps illiterate may, by a misunderstanding of what he was told or what was written on his passport, genuinely think as a fact that he has leave to remain: I give this as a possible example of a case in which he would lack the knowledge in point of fact that he was remaining after the expiration of his leave. But if it were the case of his thinking that that which was not in law leave was in law leave, that would be to show ignorance of the law and does not enable him to plead lack of knowledge.
In those circumstances it is, in my opinion, clear that in this case the only possible answer is that the offence was committed on the 9th May 1976 and the prosecution was time barred before the information was preferred. Accordingly, while retaining that part of the order of the Divisional Court which quashed the conviction, I would set aside that part which remitted the case to the magistrates.
In the circumstances, I do not think that the questions of law posed can usefully be answered in general terms. Indeed, such answer might be misleading.
Accordingly, I would allow the appeal to the extent indicated.
My Lords,
I have had the advantage of reading a draft of the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree with it. I would allow the appeal. I would answer the certified question in the way my noble and learned friend proposes.
My Lords,
This is an appeal by leave of your Lordships' House from a decision of the Queen's Bench Divisional Court (Donaldson L.J. and Forbes J.) quashing the appellant's conviction by North Westminster Magistrates Court of an offence under section 24(1)( b)(i) of the Immigration Act 1971 ("the Act") but remitting the case to that court for rehearing in the light of the Divisional Court's judgment.
The essential facts are conveniently summarised in the case stated by the justices as follows:
"( a) The appellant was not a 'patrial' and had no right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act...
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