Clarke v R

A reverse legal burden may be imposed by necessary implication where a regulatory criminal provision makes qualification an exception to a general prohibition. Its compatibility with Article 6(2) depends on proportionality. Relevant matters include what the prosecution must first prove, the defendant’s access to evidence of qualification, the regulatory threat addressed, and the practical burden on the prosecution.

Under Immigration and Asylum Act 1999, a person who has previously acted for a qualified organisation is not thereby qualified indefinitely. A person relying on supervision must, when providing the advice or service, act on behalf of and under the supervision of a qualified person.

A judge must leave the jury’s verdict voluntary, while accurately directing it on the law and the evidence.

The appellant was convicted at Manchester Crown Court of three offences of providing immigration services while unqualified, contrary to section 91 of the Immigration and Asylum Act 1999. He had represented three clients before the Immigration Appellate Authority. The prosecution alleged that he was neither registered nor otherwise qualified when doing so.

He appealed against conviction, challenging the reverse legal burden concerning qualification, the meaning of qualification under section 84, the exclusion of proposed fresh evidence, and the fairness of the summing up. He also sought leave to appeal against a community order requiring 100 hours’ unpaid work on each count concurrently.

The central issues were whether the statutory scheme imposed a proportionate legal burden to prove qualification and whether earlier work for registered organisations entitled him to provide services independently.

1. Conviction appeal dismissed. Once the prosecution had proved beyond reasonable doubt that the appellant provided immigration advice or services, section 84 of the Immigration and Asylum Act 1999, properly construed, imposed a legal burden on him to prove on the balance of probabilities that he was qualified under section 84(2).

   That burden was proportionate for Article 6(2) purposes. The prosecution had first to establish the provision of services. The defendant would know, and could readily prove, the route by which he was qualified. By contrast, the prosecution would face an exceptionally wide and costly inquiry because qualification could arise through many domestic and EEA routes. The offence regulated an activity in the public interest intended to protect vulnerable users of immigration services.

2. Previous employment or agency with a qualified person did not confer an enduring personal entitlement to provide immigration services. A person not personally registered or professionally authorised could rely on section 84(2)(e) only while acting both on behalf of, and under the supervision of, a qualified person in relation to the services then provided. The Commissioner’s Rules could not enlarge that statutory qualification. The evidence did not establish that the appellant was qualified on any of the charged occasions.

3. The proposed evidence from Mr Siddiqi was known and could have been obtained for trial. In any event, it did not show that the appellant was qualified. The court therefore declined to receive it under section 23 of the Criminal Appeal Act 1968.

4. The Recorder had left the jury to return its own voluntary verdict. Following R. v. Wang [2005] UKHL 9, a judge cannot direct a guilty verdict, but may accurately explain the law and the effect of unchallenged evidence without giving weight to legally untenable submissions.

5. Sentence appeal allowed. The community order was quashed. Although the deliberate provision of unqualified services was serious, including because there was no insurance protection, the offending by a man of previous good character did not reach the community-penalty threshold. Fines of £200 on each count and £300 prosecution costs, totalling £900, were substituted.

• Court of Appeal (Criminal Division): Conviction appeal dismissed. Leave to appeal against sentence granted; the community order was quashed and replaced with financial penalties.
• Crown Court at Manchester: The appellant was convicted on three counts contrary to section 91 of the Immigration and Asylum Act 1999 and received concurrent community orders requiring 100 hours’ unpaid work.