R v Carmona (Nelson)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 14 March 2006 |
| Neutral Citation | [2006] EWCA Crim 508 |
| Docket Number | Case No: 200504857/A1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 March 2006 |
[2006] EWCA Crim 508
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HARROW CROWN COURT
His Honour Judge Moss
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Keene
Mr Justice Stanley Burnton and
Mr Justice Simon
Case No: 200504857/A1
Malcolm Bishop QC and Charles Langley for the Appellant
Sir Allan Green QC for the Respondent
Introduction
On 11 August 2005, at Harrow Crown Court, the appellant pleaded guilty to a number of offences of dishonesty. He was sentenced by His Honour Judge Moss to 15 months imprisonment. In addition, the judge made a recommendation for his deportation. He appeals against that recommendation with leave of the single judge.
The scope of this judgment
When this appeal was before this Court, differently constituted, on 2 December 2005, the Court suggested that this appeal would present an opportunity for the Court to give further guidance to Crown Court judges who are called upon to consider making a recommendation for deportation in the light of the Human Rights Act 1998 and the legislative incorporation of the European Convention on Human Rights. On reflection, we are concerned as to whether this is a suitable occasion to do so, for two reasons. The first is that in March of last year the Sentencing Advisory Panel issued a consultation paper on recommendations for deportation. The Panel's advice has not been published. We have been told that it is currently being forwarded to the Sentencing Guidelines Council. The Council will then formulate draft guidelines and proceed to publish its effective guidelines, to which the Courts are required to have regard by section 172 of the CJA 2003. This Court cannot of course anticipate the content of those guidelines.
The second reason is that Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 comes into force on 30 April 2006. It repeals Directive 64/221 and confers on citizens of the EU and their families enhanced rights to reside within the territory of Member States. In particular, Articles 27 to 33 regulate, and in important respects limit, the powers of Member States to expel a Union citizen or family members on grounds of public policy or public security. The new Directive does not apply to the decision on this appeal because it is not yet in force. Article 28 applies to an expulsion decision, and it seems to us that a recommendation for deportation may not be such a decision. The decision whether or not to expel, i.e. to deport, is that of the Home Secretary. Directive 64/221 is worded differently. It applies to "measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health". In Bouchereau (1977) 66 Cr App R 202, the European Court of Justice gave a wide meaning to that phrase, and held that a recommendation for deportation is a "measure" within the meaning of Directive 64/221. On any basis, however, we apprehend that the provisions of the new Directive will have a significant effect on the exercise by the courts of the power to make a recommendation for deportation, since it would not be right to make a recommendation for deportation in circumstances where the Directive precludes actual deportation.
Nonetheless, we have had the benefit of the submissions of leading counsel on the effect of the Human Rights Act 1998 on the exercise of the power to make a recommendation for deportation. This is the first appeal in which the Court has been able to consider the revolutionary impact of the Human Rights Act 1998 on our substantive law and procedure relating to recommendations for deportation. As will be seen, we have concluded that the incorporation of the European Convention on Human Rights should lead to an important change in the issues to be addressed by criminal courts when considering whether to make a recommendation for deportation. We hope that the judgment of the court will be of assistance to the Sentencing Guidelines Council in formulating its advice.
Existing law and procedure
The power to make a recommendation for deportation and the duty to consider doing so arise from the provisions of section 3(6) of the Immigration Act 1971:
"… a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so."
In relation to the law prior to the Human Rights Act 1998, there was no difference of significance between the submissions of the Appellant and those of the Crown. We summarise the position as follows:
(i) A recommendation for deportation is not part of the punishment imposed on the offender. The making of a recommendation for deportation does not justify a reduction in the sentence otherwise appropriate.
(ii) The first question to be considered by a criminal court when it considers whether to make a recommendation for deportation is whether the continued presence of the offender is to the detriment of this country: see Lawton LJ in the guideline case of Nazari [1980] 1 WLR 1366, (1980) 2 Cr App R (S) 84 We do not think that there is any difference of substance between this test and the formulation whether it is in the public interest for the offender to be deported, or against the public interest for him to remain in this country. In this connection, we refer to the judgment of Judge LJ in N (Kenya) v Secretary of State for the Home Department at paragraph 83:
The "public good" and the "public interest" are wide-ranging but undefined concepts. In my judgment … broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation.
(iii) The Panel's view is that the key question in considering whether to make a recommendation for deportation is whether the offence is serious enough to merit deportation. Having regard to the fact that a recommendation for deportation is not a punishment, we would question that formulation. The question for the court is whether the offence and other material before the court leads to the conclusion that the continued presence of the offender is detrimental to this country. One serious offence is liable to lead to that conclusion: see, e.g., Kouyoumdjian (1990) 12 Cr App R (S) 35. In that connection, we refer to paragraphs 64 and 65 of the judgment of May LJ in N (Kenya) v Secretary of State for the Home Department.
64. ….Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society's revulsion at the seriousness of the criminality.
65. …The risk of re-offending is a factor in the balance, but, for very serious crimes, a low risk of re-offending is not the most important public interest factor.
(iv) On the other hand, an offence that is not in itself so serious, such as shop-lifting, against a history of previous offences, leading to a conclusion of likely re-offending, may justify a recommendation for deportation. We do not exclude the possibility of a first offence that is not in itself serious justifying a recommendation for deportation if the material before the court cogently leads to the conclusion that the offender is likely to continue repeatedly to re-offend.
We add that in our judgment the sentence imposed by the sentencing court is an indication of the seriousness of the offence, but no more than that. It is not appropriate to lay down a mathematical test for seriousness or for the making of a recommendation for deportation based on the length of the custodial sentence imposed by the court. We were told that the Home Secretary applies an unpublished rule of thumb where a recommendation for deportation has been made. He will not normally order deportation unless the offender has received a sentence of at least one year's imprisonment if he is not an EU national, and of at least 2 years if he is an EU national. This should not in our judgment prevent sentencing judges making a recommendation for deportation when passing a lower sentence, provided that they are satisfied that the continued presence of the offender is against the public interest; but they should be cautious in doing so in such cases. We reject the submission made by Mr Bishop QC that the court should never make a recommendation in such cases because it will not result in deportation. We bear in mind that the practice of the Home Secretary is subject to exceptions: he has not, as we understand it, fettered his discretion, and indeed he could not lawfully do so. We also bear in mind that the difference between a sentence that is less than, say, 2 years' imprisonment and one that is greater may result from factors that do not bear on the seriousness of the offence itself and which may not have a significant affect on the issue of public interest. For example, a plea of guilty by an offender may...
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