Chinganga, R. v

The reasonable-excuse defence under section 2(4) of the Asylym and Immigration (Treatment of Claimants) Act 2004 requires the jury to decide whether the defendant had a reasonable excuse for not possessing the immigration document used on the journey to the United Kingdom. A direction which fairly leaves that issue to the jury accords with R v Mohammed and R v Osman [2007] EWCA Crim 2332.

A renewed and very late application for leave to appeal will be refused where the alleged misdirection is unfounded. Even if a defect were arguable, the court would consider whether it caused substantial injustice.

The applicant was convicted at Liverpool Crown Court of entering the United Kingdom without an immigration document, contrary to section 2(1) of the Asylym and Immigration (Treatment of Claimants) Act 2004, and was sentenced to six months’ imprisonment less time on remand.

He said that he had entered using a forged passport arranged by an agent, but had returned it to the agent after arrival. His defence was that this gave him a reasonable excuse for not producing an immigration document within three days. A single judge refused leave to appeal and an extension of time. More than a year late, the applicant renewed those applications, alleging a misdirection on section 2(4).

Disposition

1. The court refused the renewed application for leave to appeal and for an extension of time. It was wholly without merit and substantially out of time.

2. The trial judge had directed the jury in accordance with R v Mohammed and R v Osman [2007] EWCA Crim 2332. Read together, section 2(1) and section 2(4) of the Asylym and Immigration (Treatment of Claimants) Act 2004 permit a defence where a person who entered using an immigration document proves a reasonable excuse for no longer possessing it.

3. The judge correctly identified the sole factual issue. The jury had to decide whether it was reasonable for the applicant to have returned the forged passport to the agent. The judge fairly put the applicant’s explanation to the jury and directed that acquittal must follow if it was accepted. The jury’s rejection of that account therefore disclosed no misdirection and no basis to doubt the safety of the conviction.

4. In any event, the court observed that, under the substantial-injustice approach referred to in Cottrell [2007] EWCA Crim 2016, there would have been no substantial injustice. The applicant had received a fair trial, the jury had disbelieved his account, and he had served the sentence.

• Court of Appeal (Criminal Division) The renewed application for leave to appeal and for an extension of time was refused.
• Single judge of the Court of Appeal Leave to appeal and an extension of time were previously refused.
• Crown Court at Liverpool On 9 June 2005, the applicant was convicted and sentenced to six months’ imprisonment less time on remand.