R v Clarke (Ediakpo)

A person acts in the execution of the Immigration Act 1971 only when performing a duty imposed by, or exercising a power conferred by, that Act. A police officer investigating a suspected immigration offence under common-law powers does not satisfy that description merely because the investigation furthers the Act’s purposes.

An offence under section 26(1)(c) arises only where a knowingly false statement is made during a specific statutory procedure in which the recipient’s function includes obtaining or receiving relevant information. The provision does not create a general offence of lying during a police investigation. Any ambiguity in such a penal provision should be resolved in favour of the narrower construction.

A police officer arrested the respondent on suspicion of unlawful possession of a car. After that suspicion had been dispelled, the officer questioned him about his immigration status. The respondent falsely claimed that he had been born in the United Kingdom, was a British subject and held a British passport.

The magistrates convicted him under section 26(1)(c) of the Immigration Act 1971. The Crown Court allowed his appeal because the officer was not acting in the execution of the Act. The Divisional Court dismissed the Crown’s appeal by case stated.

The certified question was whether a constable who reasonably suspected an offence under the Act was lawfully acting in its execution when questioning a person in furtherance of the investigation.

1. Appeal dismissed unanimously. Lord Bridge delivered the principal speech. Lord Diplock and Lord Brandon agreed with it. Lord Scarman agreed with both Lord Bridge and Lord Brightman. Lord Brightman reached the same conclusion by a consistent route. The certified question was answered in the negative.

2. Per Lord Bridge, “acting in the execution” of the Immigration Act 1971 naturally means performing a duty imposed by, or exercising a power conferred by, that Act. The Act neither imposes nor confers a power to investigate offences committed under it, because the common law already supplies the relevant police duty and investigative authority. Acting to further the purposes of the Act is therefore insufficient.

3. Section 26(1)(c) applies only where the falsehood is addressed to a person during a specific procedure under the Act and that person’s statutory function involves obtaining or receiving information relevant to the function. Examples include examinations under Schedule 2, applications to vary leave, police registration, hotel registration and immigration appellate procedures. The list was not necessarily exhaustive.

4. The power under section 24(2) to arrest without warrant did not convert preliminary questioning into action in execution of the Act. An officer exercising that arrest power acts under the Act, but the power concerns arrest on existing information. It does not confer a function of seeking or receiving information. Treating every immigration investigation as falling within section 26(1)(c) would create an exceptionally wide offence of making false statements to investigators without compelling statutory language.

5. Lord Brightman likewise concluded that the statutory phrase was confined to functions conferred by the Act or subordinate legislation. The words “or otherwise” and “other person” had ample operation within the statutory procedures. The narrower construction was also appropriate because section 26(1)(c) was penal.

6. R v Gill [1976] 2 All ER 893 was affirmed as rightly decided. R v Gunay [1984] Crim LR 102 was overruled as wrongly decided.

1. House of Lords: The Crown’s appeal was dismissed unanimously. The certified question was answered in the negative.
2. Divisional Court of the Queen’s Bench Division: Robert Goff LJ and McCullough J dismissed the Crown’s appeal by way of case stated and certified a point of law of general public importance.
3. Crown Court at Inner London Sessions: The respondent’s appeal was allowed. The court held that the prosecution evidence disclosed no case to answer because the police officer had not been acting in the execution of the Immigration Act 1971.
4. Old Street Magistrates’ Court: The respondent was convicted of making a false statement contrary to section 26(1)(c) of the Immigration Act 1971.