R v Kluxen; R v Rostas and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maddison |
| Judgment Date | 14 May 2010 |
| Neutral Citation | [2010] EWCA Crim 1081 |
| Docket Number | Case No: 200906205 A9 (KLUXEN) 200903011 A2 (ADAM) & 200903013 A2 (ROSTAS) T20087093 -1 (ROSTAS) & T20087093—2 (ADAM) |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 May 2010 |
[2010] EWCA Crim 1081
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM:
MISS RECORDER CUTTS QC
His Honour Judge Curran
Before Lord Justice Thomas
and
Mr Justice Maddison
Sir Geoffrey Grigson
Case No: 200906205 A9 (KLUXEN) 200903011 A2 (ADAM) & 200903013 A2 (ROSTAS)
T20090309 (KLUXEN)
T20087093 -1 (ROSTAS) & T20087093—2 (ADAM)
Mr E Boateng-Addo (instructed by Hanson Woods Solicitors LLP) for the Appellant (Kluxen)
Miss C Laing QC and Miss Flavia Kenyon (instructed by Johl & Walters) for the Appellant s (Adam & Rostas)
Miss E Pearson (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 23 February 2010
Mr Justice Maddison:
This is the judgment of the Court to which we have all contributed.
Introduction
These appeals were listed together to enable the court to consider the circumstances in which a court should recommend an offender's deportation and whether or not different principles should be applied in this regard to offenders who are and are not citizens of the European Union (EU).
The appellants Adam and Rostas, Romanian nationals, pleaded guilty on 1 May 2009 to an offence of conspiracy to steal and on 22 May 2009 they were sentenced to two years detention and recommended for deportation. When their appeal came on for hearing in August 2009, the appeal was adjourned to enable full argument to be presented on the approach to be adopted when a court considered recommending for deportation an offender who was a citizen of the EU. The appellant Kluxen, a Ghanaian national was convicted on 29 September 2009 of immigration offences and on 6 November 2009 was sentenced to a total of 30 months imprisonment and recommended for deportation.
The effect of the United Kingdom Borders Act 2007
We will first consider whether recommendations should have been made for the deportation of any of the appellants. In our judgement, they should not. This conclusion is based not on the merits of their individual cases (to which we turn at paragraph 49 below), but on the effect of the United Kingdom Borders Act 2007 (the 2007 Act).
(a) The provisions of the Act
The relevant provisions of this Act were brought into force on 1 August 2008 by the United Kingdom Borders Act 2007 (Commencement No.3 and Transitional Provisions) Order 2008 (2008 SI No.1818). They apply to all convicted persons who are not British citizens, whether they are citizens of the EU or not.
Section 32 (5) provides that the Secretary of State must make a deportation order in respect of a “foreign criminal” unless one of the exceptions in section 33 (to which we refer at paragraph 8 below) applies. Section 32(1) defines a “foreign criminal” as a person who is not a British citizen, is convicted in the United Kingdom of an offence, and “to whom Condition 1 or 2 applies”. Condition 1, defined in section 32(2), is much the more likely to arise in practice, and is the condition that applies in the cases of all three appellants. It is that “…the person is sentenced to a period of imprisonment of at least 12 months”. By section 38(1)(c) imprisonment for this purpose includes detention.
A custodial sentence of at least 12 months must attach to a single offence before Condition 1 applies. This is because section 38(1)(b) provides that Condition 1 does not apply to “…a person who is sentenced to a period of imprisonment of at least 12 months only by virtue of being sentenced to consecutive sentences amounting in aggregate to more than 12 months”. (The emphases are ours). In our judgement, the last four words of this extract must be read as meaning “12 months or more”. Such a reading would avoid an inconsistency with the words ‘at least’ in section 32(2) and earlier in section 38(1)(b).
The five exceptions within section 33 include cases where the removal of the “foreign criminal” pursuant to a deportation order would breach his rights under the European Convention on Human Rights, or the United Kingdom's obligations under the Geneva Convention relating to the Status of Refugees; where the Secretary of State thinks that the “foreign criminal” was under 18 on the date of conviction; and where specified orders under the Mental Health Act, 1983 (including orders under section 37) are in force in respect of the “foreign criminal”.
(b) The making of recommendations
In our judgement, since the 2007 Act came into force it is no longer appropriate for a court to recommend the deportation of a “foreign criminal” as defined in section 32. This is so for two reasons.
i) No useful purpose would be served by doing so. The Secretary of State is obliged by section 32(5) to make a deportation order unless one or more of the exceptions specified in section 33 applies, and it is for the Secretary of State to decide whether any of those exceptions does apply.
ii) Although section 32 of the 2007 Act does not expressly prevent the Court from recommending the deportation of a “foreign criminal” it does expressly remove any need for the Court to do so. To explain this, it is necessary to turn to the Immigration Act 1971 (1971 Act). The power of the Secretary of State to order the deportation of a person who is not a British Citizen derives from section 5(1) of that Act. This provides that “where a person is under section 3( 5) or (6) above liable to deportation… the Secretary of State may make a deportation order against him…”. Sections 3(5) and (6), in their present form, provide that a person who is not a British Citizen shall be liable to deportation if:
1. the Secretary of State deems his deportation to be conducive to the public good (section 3(5)(a)); or
2. another person to whose family he belongs is or has been ordered to be deported (section 3(5)(b)); or
3. after he has obtained the age of 17, he is convicted of an offence punishable by imprisonment and is recommended for deportation by a court empowered by the 1971 Act to do so (section 3(6)): that is by any court having power to sentence a person to whom section 3(6) applies unless the court commits him to be sentenced or further dealt with for the offence by another court (section 6(1)).
Returning to the 2007 Act, section 32(4) provides that “for the purpose of section 3(5)(a) of the 1971 Act the deportation of a foreign criminal is conducive to the public good”. Thus any “foreign criminal” is liable to deportation under section 3(5)(a) of the 1971 Act and must be deported under section 5(1) of that Act by virtue of section 32(5) of the 2007 Act. There is no need for a court to be involved in this process at all.
We have considered whether, when sentencing a “foreign criminal”, it is necessary for the court to explain during its sentencing remarks that it is not recommending his or her deportation because the 2007 Act applies. In our judgement this is not necessary, though of course a court may do so if it wishes.
Offenders to whom the 2007 Act does not apply
Although that conclusion will, as we shall explain, dispose of the three appeals, as the hearing of the appeals in the case of Rostas and Adam was adjourned to consider the position of EU citizens, we will set out our views on the exercise of the Court's power to recommend deportation in the case of an offender who is not a British Citizen, but to whom the 2007 Act does not apply. This will arise if the offender concerned does not receive any single custodial sentence of 12 months or more, or receives a non-custodial sentence, and is therefore not a “foreign criminal” as defined in section 32 of the 2007 Act.
(a) The Nazari test
The test to be applied by a court when deciding whether or not to make a recommendation for an offender's deportation has been expressed differently in different cases. We begin with the familiar case of Nazari and others (1980) 71 Cr. App. R. 87, in which Lawton LJ said at page 95:
“First the Court must consider…whether the accused's continued presence in the United Kingdom is to its detriment. This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records… The more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation. On the other hand, a minor offence would not merit an order recommending deportation…”.
We will refer to the test “…whether the accused's continued presence in the United Kingdom is to its detriment” as “the Nazari test”. In Nazari, none of the appellants were EU citizens. They were Iranian, Sri-Lankan and Spanish nationals. Spain had not yet acceded to the EU.
(b) The Bouchereau test
In subsequent cases, in which this Court was dealing only with EU citizens, it was said that the court must consider whether the offender's conduct (including the instant offence and any earlier ones) constituted “…a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society”. These were the cases of R. v. Kraus (1982) 4 Crim. App. R. (S.) 113; R. v. Compassi (1987) 9 Crim. App. R. (S.) 270; R. v. Escauriaza (1988) 87 Crim. App. R. 344; and R. v. Spura (1988) 10 Crim. App. R. (S.) 376. In all of these cases the Court adopted the reasoning of the European Court of Justice in R. v. Bouchereau [1987] QB 732 (a case to which we will return). Accordingly we will refer to this second test as “the Bouchereau test”.
(c) Is the Bo...
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