Boateng v R

A defect in an indictment is not cured as a technical error where it identifies the wrong statutory offence and alleges the wrong conduct. The count is fundamentally flawed if the jury could not be directed on it as pleaded and the substituted offence is not an alternative offence.

By contrast, an erroneous statutory reference in particulars will not invalidate a count that identifies the correct offence and makes the alleged conduct clear. Whether a person facilitated a breach of immigration law, including any requirement for dishonesty, depends on the substantive immigration law said to have been breached. Wrong legal advice affecting a guilty plea does not alone make the plea a nullity or conviction unsafe. The appellate court must assess whether the defence would quite probably have succeeded and whether a clear injustice occurred.

The appellant and his wife pleaded guilty in the Crown Court at Cardiff to documentation and immigration offences arising from the wife’s use of the identity of a deceased Dutch citizen. The appellant obtained residence documentation and a certificate of naturalisation, used a passport carrying a Home Office residence stamp, and obtained residence documentation for his daughter.

He was sentenced to 12 months’ imprisonment and appealed eight convictions. The appeal challenged the statutory basis and drafting of several counts, whether a passport bearing a residence stamp was a false identity document, whether dishonesty by the child was required for facilitation, and whether guilty pleas entered after erroneous legal advice were nullities or rendered the convictions unsafe.

1. Appeal allowed in part. Counts 2 and 12, brought under Immigration Act 1971 section 24A(1)(a), were quashed. Applying for a residence card or naturalisation did not seek or secure leave to remain for that provision. The prosecution’s proposed reliance on section 24A(1)(b) alleged a different offence, not an alternative offence.

   The errors were fundamental, rather than technical. The counts stated the wrong subsection and alleged the wrong conduct. They failed the then Criminal Procedure Rules rule 14.2, could not have been the subject of lawful jury directions, and the prosecution had not advanced the different offence at trial.

2. Count 3 remained valid. Although it wrongly referred to the Immigration Act 1999 and to section 10(1)(c), the statement of offence correctly alleged facilitation contrary to Immigration Act 1971 section 25. The particulars sufficiently identified the alleged conduct. The underlying immigration breach was remaining without leave, rather than the removal mechanism in section 10(1)(c), so the defects were technical and did not invalidate the count.

3. Counts 4 and 5 were quashed because the alleged conduct pre-dated the coming into force of Identity Cards Act 2006 section 25. The challenge to counts 6 and 7 failed. A Home Office residence stamp obtained by deception was a document, because section 42 included a stamp within that term. Its affixation rendered the passport a false identity document for section 25(1).

4. The court rejected the submission that facilitation under section 25 necessarily required dishonesty by the person facilitated. Any mens rea depends on the particular underlying immigration law. The relevant breach of section 3 of the Immigration Act 1971 did not require dishonesty.

5. Although counsel had wrongly advised that the appellant had no defence to counts 2 and 12, the pleas were not nullities and the remaining convictions were safe. The erroneous advice went to the heart of the pleas, but the evidence of knowledge was strong. A lack-of-knowledge defence would not quite probably have succeeded, and no clear injustice had been shown.

• Court of Appeal (Criminal Division): Appeal allowed only to the extent that convictions on counts 2, 4, 5 and 12 were quashed: [2016] EWCA Crim 57.
• Crown Court at Cardiff: The appellant pleaded guilty to eight counts and was sentenced to 12 months’ imprisonment.