R v Kazem Khodamoradi

Under the then-existing Immigration Act 1971, a migrant intercepted or rescued at sea and taken directly to an approved port area was deemed not to have entered the United Kingdom. Steering such a boat therefore did not, without more, facilitate unlawful entry. Facilitation of an attempted breach remained possible where the pilot intended, or recognised as possible, a landfall outside the approved area.

An out-of-time criminal appeal is governed by the interests of justice. The merits are important but are not a trump card. Detailed evidence explaining delay is normally required, although an extension may be granted where refusal would be unjust.

The applicant pleaded guilty at Canterbury Crown Court to facilitating a breach of immigration law after steering briefly on an overcrowded migrant boat intercepted in the Channel and taken to the approved area of the Port of Dover. He received an 18-month sentence, which he had served. He applied for permission to appeal 503 days out of time after being wrongly advised that he had no defence.

The prosecution opposed neither the extension nor the appeal. The central issues were whether the conviction was unsafe under the law then in force, whether time should be extended, and whether a retrial was required.

1. Disposition and the prosecution’s stance. The Court first considered the merits and held that the conviction was unsafe. The court’s duty to decide safety was its own and was not determined by the prosecution’s position, as illustrated by Rakei & Ors.
2. Immigration offences. Under the then-existing Immigration Act 1971, section 11(1) meant that a person intercepted or rescued at sea and taken directly to an approved area within a port was deemed not to have entered the United Kingdom. Steering such a boat therefore did not, without more, facilitate a breach of immigration law under section 25. Section 25 could nevertheless apply to an attempted breach where the pilot intended to deliver migrants to a landfall outside the approved area, or recognised that as a possible outcome. The court noted that the indictment charged facilitation of an actual breach only, so there was no scope to convict on the attempted-breach basis unless the indictment was amended.
3. Application to the conviction. The principles stated in Kakaei [2021] EWCA Crim 203 and Bani & Ors [2021] EWCA Crim 1958 made clear that the applicant had a defence. His case was indistinguishable from the guilty-plea appeals considered in Bani & Ors and Rakei & Ors, where convictions were quashed without retrial when the prosecution did not seek one. The appeal should therefore be allowed without a retrial.
4. Extension of time. Section 18(3) of the Criminal Appeal Act 1968 confers a judicial discretion, not an administrative one. The governing question is whether an extension is in the interests of justice, having regard to finality, the parties’ interests, resources, good administration, the public interest in justice and liberty, the reasons for delay, any resulting injustice, and the merits. The guidance in Thorsby & Ors [2015] EWCA Crim 1 and Paterson [2022] EWCA Crim 456 was applied. An arguable appeal is not by itself sufficient, particularly where delay is unexplained.
5. Procedural guidance and result. Except in an exceptional case, an applicant should provide a detailed witness statement complying with section 9 of the Criminal Justice Act 1967. A practice of providing no evidence merely because the prosecution does not oppose an extension should cease. Despite the 503-day delay and inadequate explanation, the interests of justice favoured the applicant because he had unknowingly pleaded guilty after wrong legal advice, could not reasonably have known of the defence, had served his sentence, and faced no retrial. Time was extended, permission to appeal was granted, and the appeal was allowed.

• Crown Court in Canterbury: The applicant pleaded guilty to one count of facilitating a breach of immigration law and received an 18-month custodial sentence.
• Court of Appeal (Criminal Division): The court granted an extension of time, granted permission to appeal, quashed the unsafe conviction and allowed the appeal without ordering a retrial: [2022] EWCA Crim 37.