In Court
| Date | 01 December 2001 |
| Published date | 01 December 2001 |
| Author | Nigel Stone |
| DOI | 10.1177/026455050104800425 |
| Subject Matter | Articles |
In Court-p310-317 22/11/01 9:19 am Page 1
country. The Secretary of State had made
a deportation order in 1998 and had
subsequently refused his application for
IN COURT exceptional leave to remain. The Home
Office recognised his family
circumstances, this being a close family
Nigel Stone, Senior Lecturer in the
unit, and the length of time that had
School of Social Work, University of
passed since he last lived in Guyana where
East Anglia, reviews recent appeal
he had no significant ties. The family
judgements and other judicial
would not be well served by
developments that inform sentencing,
accompanying him back to Guyana but
early release and court welfare
would also suffer from the separation if
practice.
they remained here after his deportation.
He had had an exemplary prison record
and had been released in February 2000.
Deportation, Crime
Though recognising that these factors
Prevention and Human
were “of much weight”, the Home
Rights
Secretary nevertheless concluded that, in
the light of the seriousness and nature of
Foreign national offenders may have
his offence, in which he was not simply a
established family ties in the United
carrier but had played a crucial
Kingdom. The Court of Appeal has given
organisational role, it would not be in the
an important judgement on the approach
public interest for him to remain here. He
to be exercised when balancing the public
thus applied for judicial review on the
interest in favour of deportation, against
basis that deportation would contravene
their rights to family life under Article 8
Article 8.
of the European Convention of Human
Giving the Court’s judgement,
Rights. It has indicated that, at least as far
Dyson LJ said as a general starting point
as drug importation offenders are
that the objective of preventing crime and
concerned, a deportation order in
disorder is sufficiently important to justify
furtherance of a general policy in favour
limiting a fundamental right and that
of such a measure will be upheld despite
deportation of those convicted of serious
consequent substantial disruption to family
offences is a measure rationally connected
life, provided the Home Office identifies
to that objective. The sole question was
the factors at stake in justifying its
whether deportation would have a
decision.
disproportionate effect on the applicant’s
In SAMAROO v HOME SECRETARY The
rights under Article 8. The Court had to
Times 18 September 2001, a Guyanan
ascertain whether a fair balance had been
national aged 52 had been sentenced in
struck between seeking that legitimate aim
1994 to 13 years’imprisonment for being
and his right to respect for his family life.
concerned in the importation of cocaine
In deciding whether the Home Secretary
and recommended for deportation. This
had struck that fair balance, “how much
was his first conviction. He had lived in
weight he gives to each factor will be the
the UK since 1988, marrying a British
subject of careful scrutiny by the court”.
subject resident here from 1969. In
In exercising its supervisory task, “the
addition to his wife’s three children by a
court will interfere if, despite an allowance
previous relationship, one being a
for an appropriate margin of discretion, it
university student, the couple had a son
concludes that the weight accorded was
born in 1991. His wife owned a home in
unfair and unreasonable”. In this instance,
London, was in permanent employment
it was not suggested that the Home
and all her close family were in this
310
In Court-p310-317 22/11/01 9:19 am Page 2
Secretary had failed to have regard to a
of three months imprisonment, the Appeal
relevant factor or had taken into account
Court was not persuaded that inflicting
an irrelevant factor. It was thus difficult to
burns, fortunately not serious, in the
know what more he could have done in
course of a domestic argument, did not
explaining his decision, having identified
cross the custody threshold but, in the
the factors taken into account and the
light of mitigation, sentence was reduced
weight placed on them. The Secretary of
to 28 days.
State was entitled to attach importance to
Theft in Breach of Trust – In R v B EARD
his general policy of deporting those
(2001, unreported), the appellant aged 32,
convicted of importing Class A drugs in
of previous good character, had held a
order to protect UK residents from the
responsible full-time job with a national
harmful effects of drugs and to deter
company for over 15 years but also
others. It was not incumbent on him to
worked part-time as a supermarket
prove that the withholding of a deportation
supervisor. In that latter capacity she had
order would seriously undermine his
allowed her domestic partner to leave the
policy of deterring crime. This would be
store with goods worth £260 without
to ask the impossible. The court does not
payment when he claimed to have
have expertise in judging how effective
forgotten his wallet, in clear breach of
the policy is as a deterrent and the
company procedures. She had pleaded not
Secretary of State is better placed to take a
guilty to theft, claiming that she had not
view of that question. A fair balance had
been involved in any plan to steal.
been struck and the application thus failed.
Reviewing sentence of four months
imprisonment, the Court considered that a
custodial sentence was justified, given her
‘So Serious’ Threshold
participation in a planned theft when in a
particular position of trust, notwithstanding
Various recent Appeal Court judgements
that her conviction had meant the loss of
provide further illustration of the current
employment in both positions and that her
interpretation of the custodial threshold.
partner was dealt with by non-custodial
sentence. However, the term could be
Partner Violence – In R v H INDS (2001,
reduced to two months, applying the
unreported) the appellant, aged 23 and of
“clang of prison gates” principle of
previous good character, had pleaded
Ollerenshaw.
guilty to common assault of his domestic
partner. In the course of a dispute between
Spiking Drink – In R v C ALLAGHAN [2001]
them while he was cooking some porridge
2 Cr App R(S) 339, the appellant, aged 52
she had asked him to leave. As she stood
and of previous good character, had sold
with her back to him she had felt burning
his house to a young woman known to
to the back of her head and neck from hot
him for several years and agreed to
porridge, causing blistering behind her ear
complete some carpentry work at the
and soreness to her fingers from seeking to
property...
country. The Secretary of State had made
a deportation order in 1998 and had
subsequently refused his application for
IN COURT exceptional leave to remain. The Home
Office recognised his family
circumstances, this being a close family
Nigel Stone, Senior Lecturer in the
unit, and the length of time that had
School of Social Work, University of
passed since he last lived in Guyana where
East Anglia, reviews recent appeal
he had no significant ties. The family
judgements and other judicial
would not be well served by
developments that inform sentencing,
accompanying him back to Guyana but
early release and court welfare
would also suffer from the separation if
practice.
they remained here after his deportation.
He had had an exemplary prison record
and had been released in February 2000.
Deportation, Crime
Though recognising that these factors
Prevention and Human
were “of much weight”, the Home
Rights
Secretary nevertheless concluded that, in
the light of the seriousness and nature of
Foreign national offenders may have
his offence, in which he was not simply a
established family ties in the United
carrier but had played a crucial
Kingdom. The Court of Appeal has given
organisational role, it would not be in the
an important judgement on the approach
public interest for him to remain here. He
to be exercised when balancing the public
thus applied for judicial review on the
interest in favour of deportation, against
basis that deportation would contravene
their rights to family life under Article 8
Article 8.
of the European Convention of Human
Giving the Court’s judgement,
Rights. It has indicated that, at least as far
Dyson LJ said as a general starting point
as drug importation offenders are
that the objective of preventing crime and
concerned, a deportation order in
disorder is sufficiently important to justify
furtherance of a general policy in favour
limiting a fundamental right and that
of such a measure will be upheld despite
deportation of those convicted of serious
consequent substantial disruption to family
offences is a measure rationally connected
life, provided the Home Office identifies
to that objective. The sole question was
the factors at stake in justifying its
whether deportation would have a
decision.
disproportionate effect on the applicant’s
In SAMAROO v HOME SECRETARY The
rights under Article 8. The Court had to
Times 18 September 2001, a Guyanan
ascertain whether a fair balance had been
national aged 52 had been sentenced in
struck between seeking that legitimate aim
1994 to 13 years’imprisonment for being
and his right to respect for his family life.
concerned in the importation of cocaine
In deciding whether the Home Secretary
and recommended for deportation. This
had struck that fair balance, “how much
was his first conviction. He had lived in
weight he gives to each factor will be the
the UK since 1988, marrying a British
subject of careful scrutiny by the court”.
subject resident here from 1969. In
In exercising its supervisory task, “the
addition to his wife’s three children by a
court will interfere if, despite an allowance
previous relationship, one being a
for an appropriate margin of discretion, it
university student, the couple had a son
concludes that the weight accorded was
born in 1991. His wife owned a home in
unfair and unreasonable”. In this instance,
London, was in permanent employment
it was not suggested that the Home
and all her close family were in this
310
In Court-p310-317 22/11/01 9:19 am Page 2
Secretary had failed to have regard to a
of three months imprisonment, the Appeal
relevant factor or had taken into account
Court was not persuaded that inflicting
an irrelevant factor. It was thus difficult to
burns, fortunately not serious, in the
know what more he could have done in
course of a domestic argument, did not
explaining his decision, having identified
cross the custody threshold but, in the
the factors taken into account and the
light of mitigation, sentence was reduced
weight placed on them. The Secretary of
to 28 days.
State was entitled to attach importance to
Theft in Breach of Trust – In R v B EARD
his general policy of deporting those
(2001, unreported), the appellant aged 32,
convicted of importing Class A drugs in
of previous good character, had held a
order to protect UK residents from the
responsible full-time job with a national
harmful effects of drugs and to deter
company for over 15 years but also
others. It was not incumbent on him to
worked part-time as a supermarket
prove that the withholding of a deportation
supervisor. In that latter capacity she had
order would seriously undermine his
allowed her domestic partner to leave the
policy of deterring crime. This would be
store with goods worth £260 without
to ask the impossible. The court does not
payment when he claimed to have
have expertise in judging how effective
forgotten his wallet, in clear breach of
the policy is as a deterrent and the
company procedures. She had pleaded not
Secretary of State is better placed to take a
guilty to theft, claiming that she had not
view of that question. A fair balance had
been involved in any plan to steal.
been struck and the application thus failed.
Reviewing sentence of four months
imprisonment, the Court considered that a
custodial sentence was justified, given her
‘So Serious’ Threshold
participation in a planned theft when in a
particular position of trust, notwithstanding
Various recent Appeal Court judgements
that her conviction had meant the loss of
provide further illustration of the current
employment in both positions and that her
interpretation of the custodial threshold.
partner was dealt with by non-custodial
sentence. However, the term could be
Partner Violence – In R v H INDS (2001,
reduced to two months, applying the
unreported) the appellant, aged 23 and of
“clang of prison gates” principle of
previous good character, had pleaded
Ollerenshaw.
guilty to common assault of his domestic
partner. In the course of a dispute between
Spiking Drink – In R v C ALLAGHAN [2001]
them while he was cooking some porridge
2 Cr App R(S) 339, the appellant, aged 52
she had asked him to leave. As she stood
and of previous good character, had sold
with her back to him she had felt burning
his house to a young woman known to
to the back of her head and neck from hot
him for several years and agreed to
porridge, causing blistering behind her ear
complete some carpentry work at the
and soreness to her fingers from seeking to
property...
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