R Golrokhi v Chelmsford Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber,Lord Justice Richards |
| Judgment Date | 10 October 2013 |
| Neutral Citation | [2013] EWHC 4343 (Admin) |
| Date | 10 October 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/13493/2012 |
[2013] EWHC 4343 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Richards
Mr Justice Silber
CO/13493/2012
Miss E Cook (instructed by Frank Brezell Walter Jennings Solicitors) appeared on behalf of the Claimant
Miss V Ailes (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Miss E Schutzer Weissman (instructed by the Crown Prosecution Servce)
(As approved)
The issue raised on this judicial review application is whether the Chelmsford Crown Court was right to refuse to entertain an appeal against conviction by Ms Azar Golrokhi (the claimant) who had previously pleaded guilty to an offence at the Harlow Magistrates' Court on 27 August 2008. The Claimant had then pleaded guilty to an offence of attending an asylum interview without an identity document contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004. She appealed against that conviction to the Chelmsford Crown Court, which held that it had no jurisdiction to entertain her appeal against conviction at the Harlow Magistrates' Court because of her guilty plea.
The claimant is now seeking to judicial review that finding on two grounds. The first ground is that the Crown Court erred in law in finding the claimant's plea was not equivocal, because the case summary contained evidence upon which the claimant could have founded defences to the charges to which she pleaded guilty. Thus, it is said that there was an error of law which led the court to find that there was no jurisdiction to entertain the claimant's appeal against conviction. The claimant asks for an order that the matter to be remitted to the Crown Court. The second, alternative, way the case is put is that the plea of guilty of the claimant was a nullity as first it was entered on the basis of wrong advice, which goes to the heart of the issue, and second, that if proper advice had been given the plea of guilty would not have been entered. The claimant asks this court to remit the case with the direction that jurisdiction is accepted because her plea was a nullity.
The application is resisted by the Crown Prosecution Service, an Interested Party, in respect of the first ground on the basis that the claimant's plea was not equivocal, that there is no evidence to suggest that the court acted unreasonably in finding that the claimant's plea was unequivocal and that the reasons of the decision maker his Honour Judge Gratwick at the Magistrates was soundly based. The Crown Prosecution Service resist the second ground on the basis that the issue was not raised before the Crown Court and so the decision of the crown court cannot be impugned on this ground. Thus, it is said on behalf of the Crown Prosecution Service, that the issue of nullity does not arise. As a fall-back position, the Crown Prosecution say that even if those submissions fail, the application should be rejected because there has been undue and unjustified delay by the claimant causing prejudice to the defendant and the Crown Prosecution Service in resisting this application.
Permission to pursue this application was refused on paper by Mostyn J but it was granted by Cranston J. He directed that the Harlow Magistrates' Court produce all files at the hearing. Evidence has now been given in a witness statement made by Miss Janine North, who is the Operations Manager for Essex for Her Majesty's Courts and Tribunal Service, who explained that those papers have been destroyed. A letter has, however, been retained, dated 19 April 2012, which confirms that the legal adviser, which is the assistant judge's clerk, had no recollection of the case. The Harlow Magistrates' Court has taken what steps it can to establish whether any of the magistrates has any recollection of the case, but they have been unable to discover anything which would assist evidentially.
I now turn to the facts in this case. At about 10.20 am on 25 August 2009, the claimant, then aged 24, entered the United Kingdom arriving on a flight into Stanstead in company with a male Daniel Delavri. The claimant and Mr Delavri presented themselves at the United Kingdom Immigration where they were met by officer McFarlane. Using a Farsi interpreter, it was established that the claimant had no passport, but that she wished to claim asylum in the United Kingdom. The claimant and Mr Delavri were detained in order for an interview to take place under section 2 of the Immigration Act 1971. On 25 August 2009 both the claimant and Mr Delavri entered the screening interviews where they were unable to produce any documents to prove their identity, their nationality or their citizenship. A search of the items they had in their possession on arrival in the United Kingdom failed to reveal any such documents or any travel documents either. It did not appear that any such documents were produced to the immigration authority in the three days following the screening interview. The documentation shows that a question was raised as to why claimant had spent so long in the lavatory and whether she had been destroying documents there. On the following day, 26 August 2009, police officers arrested the claimant a Mr Delavri on the suspicion of entering the United Kingdom without a passport.
It is appropriate now to refer to the criminal offence with which this case is concerned. It is contained in Section 2 of the 2004 Act, the material provisions of which are set out in section 2(1) and 2(3). And they provide that:-
"2. Entering United Kingdom without passport.
(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which-
(a) is in force, and
(b) satisfactorily establishes his identity and nationality or citizenship.
(3) But a person does not commit an offence under subsection ( 1) or (2) if—
(a) the interview referred to in that subsection takes place after the person has entered the United Kingdom, and
(b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection."
There are defences which are available and those are set out in Section 2(4) of the Act. Which provides that:-
"(4)It is a defence for a person charged with an offence under subsection (1)—
(a) to prove that he is an EEA national,
(b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,
(c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),
(d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or
(e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document."
In order to construe those offences, subsections 6 and 7 set out what the terms of the particular offences mean. The offence is one which is an either way offence and it has a maximum of two years' imprisonment. Both the claimant and Mr Delavri were interviewed under caution. Before the claimant was interviewed, she requested and was provided with legal advice in the form of a solicitor, Miss Robinson of Thompson Webb & Corfield. The claimant had a conference with Miss Robinson between 2.30 pm and 3.00 pm in the afternoon, at which time Miss Robinson was provided with advanced information by the police. The claimant told Miss Robinson that she, "Did enter the United Kingdom without a passport or any other relevant documentation." Miss Robinson advised the claimant that the evidence that she had no documentation was overwhelming and that she should seek to put forward the circumstances of what happened in mitigation through the interview. From about 3.00 pm to 3.40 pm that afternoon, the claimant was interviewed and she was accompanied by a Farsi interpreter and by Miss Robinson.
This interview was summarised in the prosecution case summary, which shows, first, that the claimant told the police that she and Mr Delavri had recently become girlfriend and boyfriend, and second, that they had fled Iran together as a result of being arrested following their involvement in the presidential elections. The claimant explained that she had travelled to the United Kingdom using an agent and that arrangements had not been in her control. Her evidence was that she had never been personally in possession of a passport throughout her journey to United Kingdom, but that she accepted that either a genuine one or a false one would have been had to have been used to obtain the boarding card. The claimant accepted that she should have retained the document to present to the United Kingdom authorities, and she denied destroying any documents before presenting herself at the United Kingdom immigration desk. Neither the prosecution summary, nor the notes of Miss Robinson show that the claimant said that she was scared of the agent in any way.
On that day, the claimant was charged with the offence of entering the United Kingdom without having an immigration document that satisfactorily establishes his identity and nationality or citizenship, contrary to section 2(1) of the 2004...
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