Grant v. Borg

Publisher	United Kingdom: House of Lords (Judicial Committee)
Author	House of Lords
Publication Date	22 April 1982
Citation / Document Symbol	[1982] 2 All ER 257, [1982] 1 WLR 638
Cite as	Grant v. Borg, [1982] 2 All ER 257, [1982] 1 WLR 638, United Kingdom: House of Lords (Judicial Committee), 22 April 1982, available at: https://www.refworld.org/cases,GBR_HL,3ae6b65d20.html [accessed 5 November 2019]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

GRANT v BORG

HOUSE OF LORDS

[1982] 2 All ER 257, [1982] 1 WLR 638

Hearing Date: 15 March, 22 April 1982

22 April 1982

Index Terms:

Immigration -- Limited leave to enter -- Criminal proceedings -- Information preferred more than three years after expiry of leave to remain -- "Knowingly" overstaying leave -- Relevant date for ascertaining when time begins to run for bringing prosecution -- Immigration Act 1971 (c. 77), ss. 24 (1) (b) (i) (3), 28 (1)

Held:

On November 8, 1975, the appellant, who was not a patrial, was given leave to enter and remain in the United Kingdom until May 8, 1976. On April 27, 1976, he sought further leave to stay and the lifting of employment restrictions that had been placed upon him. On January 17, 1977, his application was refused by the Home Office, but he was offered the benefit of certain extra-statutory appeal procedures if he set them in motion within 14 days. At the expiration of that period on January 31, 1977, he applied for revocation of the occupational ban because of his marriage to a woman settled here. On April 18, 1977, that application was refused. The appellant remained in the United Kingdom and on May 24, 1979, he was arrested. On May 26, 1979, the respondent preferred an information against the appellant that on a date between April 19, 1977, and May 24, 1979, at a place unknown in the United Kingdom he knowingly remained beyond the time limited by the leave contrary to section 24 (1) (b) (i) of the Immigration Act 1971. n1

n1 Immigration Act 1971, s. 24 (1) (b): see post, p. 643E-F.

S. 24 (3): "The extended time limit for prosecutions which is provided for by section 28 below shall apply to offences under subsection (1) (a), (b) (i)... above."

S. 28: "Where the offence is one to which, under section 24... an extended time limit for prosecutions is to apply, then -- (a) an information relating to the offence may in England and Wales be tried by a magistrates' court if it is laid within six months after the commission of the offence, or if it is laid within three years after the commission of the offence and not more than two months after the date certified by a chief officer of police to be the date on which evidence sufficient to justify proceedings came to the notice of an officer of his police force;..."

The justices found that the appellant's limited leave subsisted until April 18, 1977, and convicted the appellant with a recommendation for deportation. On appeal, the Divisional Court held (i) that the knowledge required to establish guilt of an offence under section 24 (1) (b) (i) was not merely knowledge of the relevant facts which proved the commission of the offence but also knowledge in law that the offence had been committed; (ii) that the date of the offence was not necessarily the day after the immigrant's limited leave to remain expired, but might be any later date when he was still remaining following expiry of the leave and when he first became aware that he was guilty of an offence in so doing. The court quashed the conviction but remitted the case to the justices to determine the date on which the appellant first knew that he had overstayed his leave for if it was May 9, 1976, the prosecution was out of time and the appellant was entitled to be acquitted.

On appeal by the appellant: --

Held, allowing the appeal and rescinding the order for remission to the justices, (1) (per Lord Diplock, Lord Fraser of Tullybelton, Lord Scarman and Lord Bridge of Harwich) that the principle that ignorance of the law was no defence to a criminal charge was so fundamental that to construe the word "knowingly" in a criminal statute as requiring not merely knowledge of the facts material to the offender's guilt, but also knowledge of the relevant law could not be countenanced (post, pp. 640G-H, 643A, 646B).

Reg. v. Tzanatos (unreported), March 17, 1978, C.A. doubted.

(2) (Per Lord Diplock, Lord Fraser of Tullybelton, Lord Scarman and Lord Bridge of Harwich) that an offence under section 24 (1) (b) (i) of the Immigration Act 1971, could only be committed on the day after the leave expired; that accordingly if the offence could not be proved to have been committed on that day because the immigrant remained in ignorance of some fact constituting a necessary element of the offence, his acquisition of knowledge of that fact on a later date, when he was still in the United Kingdom without leave, would not render him guilty of any offence on that later date and that if the offence were committed on May 9, 1976, the prosecution was out of time (post, p. 640G-H, 643A, 644H, 646E-G).

Singh (Curdev) v. The Queen [1973] 1 W.L.R. 1444, D.C. applied.

Per Lord Russell of Killowen. In this case the offence was committed on May 9, 1976. In the circumstances, the questions of law posed in the appeal cannot be usefully answered in general terms. Indeed, such answer might be misleading (post, p. 642G-H).

Decision of the Divisional Court of the Queen's Bench Division reversed in part.

Cases referred to in the Judgment:

Reg. v. Immigration Appeal Tribunal, Ex parte Subramaniam [1977] Q.B. 190; [1976] 3 W.L.R. 630; [1976] 1 All E.R. 915; [1976] 3 All E.R. 604, D.C. and C.A. Reg. v. Tzanatos (unreported), March 17, 1978, C.A.

Secretary of State for Trade and Industry v. Hart [1982] 1 W.L.R. 481; [1982] 1 All E.R. 817; The Times, November 30, 1981, D.C.

Singh (Gurdev) v. The Queen [1973] 1 W.L.R. 1444; [1974] 1 All E.R. 26, D.C. Suthendran v. Immigration Appeal Tribunal [1977] A.C. 359; [1976] 3 All E.R. 611, H.L.(E).

Introduction:

APPEAL from the Divisional Court of the Queen's Bench Division.

This was an appeal by the appellant, Mario Borg, by leave of the House of Lords dated July 13, 1981, from an order of the Divisional Court of the Queen's Bench Division (Donaldson L.J. and Forbes J.) dated January 29, 1981, insofar as having quashed a decision of the justices for the Innher London Area in the Petty Sessional Division of North Westminster dated October 1, 1979, whereby on an information preferred by the respondent, Police Constable Grant, the appellant was found guilty of an offence contrary to section 24 (1) (b) (i) of the Immigration Act 1971 and fined @ 10 with a recommendation for deportation, they remitted the case for re-hearing in the light of their judgment.

The Divisional Court certified pursuant to section 1 (2) of the Administration of Justice Act 1960, that the following point of law of general public importance was involved in its decision, namely,

"For the purpose of ascertaining when time begins to run under section 28 (1) (a) of the Immigration Act 1971 for bringing a prosecution under section 24 (1) (b) (i) of that Act is that offence committed: (1) on the day after limited leave expires and only on that day? or (2) on that day or any later day on which the defendant is proved to have first known that his limited leave had expired?"

The facts are stated in their Lordships' opinions.

Counsel:

Michael Beloff Q.C. and Owen Davies for the appellant.

L. K. Lassman for the respondent.

Judgment-READ:

Their Lordships took time for consideration. April 22.

PANEL: Lord Diplock, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Scarman and Lord Bridge of Harwich

Judgment One:

LORD DIPLOCK. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich. I agree with it and with the order he has proposed.

Judgment Two:

LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage of reading in advance the speech prepared by my noble and learned friend Lord Bridge of Harwich. I agree with it and with the order he proposes.

Judgment Three:

LORD RUSSELL OF KILLOWEN. My Lords, the appellant is a non-patrial who entered this country on November 8, 1975, with leave to remain as a visitor until May 8, 1976, which had expired by May 9, 1976. He did not then leave and remained here until an information was preferred against him on May 26, 1979, that he had committed an offence under section 24 (1) (b) (i) of the Immigration Act 1971, which makes it an offence if a non-patrial having only limited leave to... remain "knowingly... remains beyond the time limited by the leave."

Two points arise for special consideration. One is that the offence is not a continuing offence: on the first day of so remaining the offence is committed, which, if nothing more be said, would thus far have been May 9, 1976: see Singh (Gurdev) v. The Queen [1973] 1 W.L.R. 1444. The other is that by virtue of sections 24 (3) and 28 the information must be preferred not later than three years after the committing of the offence, which means that if nothing more be said the information was too late to be entertained by the magistrates.

The information charged the offence as having been committed on a date unknown between April 19, 1977, and May 24, 1979. The explanation for the selection of those dates, which if established as the correct bracket of time would mean that the information was preferred within the three-year limitation, is to be found in the following facts.

On April 27, 1976, the appellant applied to the authorities for further leave to remain and without conditions against obtaining employment. While this application was being considered or processed his leave to remain had expired on May 9. On January 17, 1977, his application was refused: but at the same time he was told he could refer the matter to the Under Secretary of State at the Home Office if he gave notice of such intention within 14 days. At the expiration of that period, on January 31, 1977, he applied for revocation of the occupational ban because he had married here. On April 18, 1977, this was refused.

The selection of April 19, 1977, as the first possible date of the offence was presumably because the prosecution thought either that in some sort his original leave to remain was extended until the last refusal on April 18, 1977, or that he would not be "knowingly" remaining while he still had hope that his applications might be acceded to.

It would appear that in their dealings with the appellant's various approaches the authorities were making some extra-statutory attempts to mitigate the rigour of the law laid down by this House in Suthendran v. Immigration Appeal Tribunal [1977] A.C. 359, the decision of the Appellate Committee having been announced at the conclusion of the hearing in July 1976. That attempt was pursued by the Immigration (Variation of Leave) Order 1976 (S.I. 1976 No. 1572) which, however, by its terms did not apply to the appellant. It was, rightly in my view, accepted by counsel for the respondent in this House that in law the only leave to remain under the Act expired by May 9, 1976.

The magistrates convicted the appellant, and at the request of the appellant, stated a case for the consideration of the Divisional Court. The magistrates (in brief) expressed their opinion that the leave to remain had been "ex gratia" extended by the Home Office to April 18, 1977: and that the spirit of the Immigration (Variation of Leave) Order 1976 had been adopted in favour of the appellant and his leave to remain had as a matter of fact been extended at the discretion of the Secretary of State for the Home Office. Thus, the three-year limitation on proceedings did not apply.

The Divisional Court, while quashing the conviction, felt itself obliged to remit the matter to the magistrates for a rehearing so that they might determine on what date the appellant first "knowingly" remained after his only leave to remain had expired on May 9, 1976, they not having decided upon a date. The Divisional Court accepted that the only leave in law to remain expired then and that nothing that happened thereafter could be in law a leave to remain: and the contrary was not argued for the respondent in this House. In taking the course of remission the Divisional Court acted upon an obiter dictum in Reg. v. Tzanatos (unreported), March 17, 1978, C.A. which was not in my opinion justified. The Divisional Court certified that a point of law of general public importance was involved in its decision, viz.:

"For the purpose of ascertaining when time begins to run under section 28 (1) (a) of the Immigration Act 1971 for bringing a prosecution under section 24 (1) (b) (i) of that Act, is that offence committed: (1) on the day after limited leave expires and only on that day? or (2) on that day or any later day on which the defendant is proved to have first known that his limited leave had expired?"

The Divisional Court refused leave to appeal to this House, which was granted by the Appeal Committee. The somewhat topsy-turvy situation was then displayed that the appellant was contending that the offence was knowingly committed on May 9, 1976, and the respondent prosecutor was contending that the offence was not knowingly committed until all hope was finally extinguished on April 18, 1977. The appellant gave no evidence before the magistrates before whom the prosecutor was a police constable. I am not at all sure what would happen on a remission to the magistrates. I would suppose that the appellant would, if he gave evidence, say that he well knew that his leave expired but he remained in hope that it might be extended in effect retrospectively. That evidence would present a considerable problem in cross-examination.

But even if he thought that his leave had not expired that would have been but a mistake in law. It is, I suppose, conceivable that in some circumstances under some statute the requirement of "knowingly" can only embrace a mistake of law.But in the instant case there is quite sufficient subject matter for the word without introducing a mistake in the law that follows from known facts. An immigrant unfamiliar with the language and perhaps illiterate may, by a misunderstanding of what he was told or what was written on his passport, genuinely think as a fact that he has leave to remain: I give this as a possible example of a case in which he would lack the knowledge in point of fact that he was remaining after the expiration of his leave. But if it were the case of his thinking that that which was not in law leave was in law leave, that would be to show ignorance of the law and does not enable him to plead lack of knowledge.

In those circumstances it is, in my opinion, clear that in this case the only possible answer is that the offence was committed on May 9, 1976, and the prosecution was time barred before the information was preferred. Accordingly, while retaining that part of the order of the Divisional Court which quashed the conviction, I would set aside that part which remitted the case to the magistrates.

In the circumstances, I do not think that the questions of law posed can usefully be answered in general terms. Indeed, such answer might be misleading.

Accordingly, I would allow the appeal to the extent indicated.

Judgment Four:

LORD SCARMAN. My Lords, I have had the advantage of reading a draft of the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree with it. I would allow the appeal. I would answer the certified question in the way my noble and learned friend proposes.

Judgment Five:

LORD BRIDGE OF HARWICH. My Lords, this is an appeal by leave of your Lordships' House from a decision of the Queen's Bench Divisional Court (Donaldson L.J. and Forbes J.) quashing the appellant's conviction by Wells Street Magistrates' Court of an offence under section 24 (1) (b) (i) of the Immigration Act 1971 but remitting the case to that court for rehearing in the light of the Divisional Court's judgment.

The essential facts are conveniently summarised in the case stated by the justices as follows:

"(a) The appellant was not a 'patrial' and had no right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act 1971. (b) The appellant had entered the United Kingdom on November 8, 1975, as a visitor with limited leave to remain only until May 8, 1976. On April 27, 1976, he called at the Home Office seeking the grant of further leave to remain in the United Kingdom and take up employment. By letter dated January 17, 1977, the Home Office informed the appellant of refusal of that leave but pointed out that he could have the matter referred to the Under-Secretary of State for the Home Office (Appeals Section) provided notice was given of that intention not later than 14 days after the date of that letter (January 17, 1977). (c) The appellant called at the Home Office on January 31, 1977, and requested revocation of conditions on the basis of his marriage to a woman settled in the United Kingdom, and by letter dated April 18, 1977, he was notified of the Immigration Department's refusal of this application."

Section 24 (1) (b) (i) of the Act, so far as material, provides:

"A person who is not patrial shall be guilty of an offence... (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly... (i) remains beyond the time limited by the leave;..."

The decision of the Divisional Court in Singh (Gurdev) v. The Queen [1973] 1 W.L.R. 1444 establishes that the offence so created is not a continuing offence but a "once and for all" offence committed on the day following the expiry of the immigrant's limited leave to remain. The correctness of this decision has not been challenged in any later case and was not questioned at any stage in the proceedings culminating in the present appeal. The time limit for prosecution, in certain circumstances which it is common ground were present in the instant case, is three years from the date of the commission of the offence. So far, then, the law is clear.

In 1976, however, at the time of the relevant events, there was great doubt as to the true construction and effect of section 14 (1) of the Act which gives to a person "who has a limited leave... to... remain in the United Kingdom" a right of appeal to an adjudicator against any refusal to vary it and provides that pending determination of such an appeal the appellant shall not be required to leave the United Kingdom. I need not go into detail. The full report of

Reg. v. Immigration Appeal Tribunal, Ex parte Subramaniam [1977] Q.B. 190, including in particular the report of the argument of counsel for the Home Secretary, shows the diverse views reflected (1) in the practice of the Home Office and the appellate authorities under the Act up to 1976, (2) in the decision of the Divisional Court given in February 1976, and (3) in the decision of the Court of Appeal given in May 1976. The doubt was not finally resolved until the decision of this House in Sutherndran v. Immigration Appeal Tribunal [1977] A.C. 359, which affirmed, by a majority, what I may perhaps respectfully call the rigorous and literalist view of section 14 (1) first expressed by the Divisional Court in Subramaniam, sc. that, if an application for extension of the period of a limited leave to remain was made during the currency of that leave, but, following some administrative delay, refused after the period of the leave had expired, the applicant had no right of appeal to an adjudicator or to the consequential benefits accruing from such an appeal under section 14 (1) of the Act. Although the speeches in this case were not delivered until October 27, 1976, the effect of the majority decision was announced at the conclusion of the argument on July 28, 1976: [1977] A.C. 359, 363.

Following this decision, the Secretary of State, in order no doubt to alleviate the inevitable hardship which would in many cases flow from the strict construction of section 14 (1) which had prevailed, exercised his power under the Act to provide by statutory instrument that, subject to certain exceptions, an applicant for extension of a limited leave to remain should enjoy an automatic extension of that leave until 28 days after the decision on the application, thus ensuring that he would not be deprived of his right of appeal under section 14 (1) by administrative delay: see the Immigration (Variation of Leave) Order 1976. The statutory instrument came into operation on September 27, 1976. It did not apply to a case such as that of the present appellant, whose limited leave to remain had expired before that date.

I have thought it right to explain this background at some length in order to account for the offer by the Home Office to the appellant on January 17, 1977, to have the matter referred to the Under-Secretary of State for the Home Office (Appeals Section). This was presumably an attempt to provide, outside the statutory machinery, for something roughly comparable to an appeal to an adjudicator under section 14 (1), for the benefit of those excluded from the new rights conferred by the statutory instrument.

The information was laid against the appellant on May 26, 1979, and alleged that the offence under section 24 (1) (b) (i) was committed between April 19, 1977 and May 24, 1979. The defence took the point that the prosecution was out of time; the offence had been committed on May 9, 1976. The prosecution, brought by the respondent constable, was not legally represented and hence could give the magistrates' court no assistance.

The justices held "on the facts the appellant's leave to remain had been 'ex gratia' extended to April 18, 1977, as per Home Office letter." This conclusion is manifestly untenable and no argument was addressed to the Divisional Court or to your Lordships' House in support of it.

It is clear from the judgment of Donaldson L.J. that, apart from authority, he would simply have allowed the appeal on the ground that, applying the Suthendran principle, the offence was committed on May 9, 1976, and the prosecution was out of time. The respondent, however, now represented by counsel, took a new point. It was submitted, in view of the word "knowingly"

in the definition of the offence, that the offence could have been committed on any date after the appellant's limited leave in fact expired whenever the appellant first knew that his leave had expired. Counsel supported his submission on this point by reference to Reg. v. Tzanatos (unreported). I am bound to say first, with respect, that it was wrong to allow this new point to be taken at all. It was not a point of pure law arising from facts found in the case stated. If the appellant's state of mind was relevant, it was for the prosecution to pursue the matter in evidence at the trial and obtain from the justices the appropriate findings of fact in the case stated. It is difficult to see how they could possibly have done so. But in any event it could not be right to send the case back to give the prosecution a second chance to prove the commission of an offence within the limitation period of three years before May 26, 1979.

In Reg. v. Tzanatos the appellant had been convicted on indictment of an offence under section 24 (1) (b) (i) of the Act alleged in the relevant count to have been committed "on a day between September 30, 1976 and February 18, 1977." The appellant's limited leave to remain expired on September 18, 1976. He subsequently applied for an extension. This application was refused in February 1977 and it would appear that notice of the refusal was received by the appellant not later than February 17, 1977. The judgment of the court (Lane L.J., Thompson and Brown JJ.) was delivered extempore by Lane L.J. No point was taken that the prosecution was out of time. The argument for the appellant, as summarised in the judgment, is difficult to follow. It was described by Lane L.J. as a totally false point. However, counsel for the respondent in the present case relied on the following passage in the judgment:

"What the prosecution have to prove is that upon the date laid in the indictment the defendant was in the position of knowingly remaining in this country beyond the time limited by that leave. In this particular case, the prosecution has succeeded in laing it accurately. They were not in a position precisely to pin-point the date upon which this man became seized of the necessary knowledge. They laid it in fact correctly, and as it turns out, on the defendant's own evidence the material date was February 17, 1977, which lay between the two dates selected by the prosecution for their indictment." It was submitted that, by necessary implication, this passage establishes two propositions.First, that the knowledge required to establish guilt of an offence under section 24 (1) (b) (i) is not merely knowledge of the relevant facts which prove the commission of the offence but also knowledge in law that the offence has been committed. Secondly, that the date of the commission of the offence is not necessarily the day after the immigrant's limited leave to remain expires, but may be any later date when he is still remaining following expiry of his leave to remain and when he first becomes aware that he is guilty of an offence in so doing. It was on the basis of accepting these two propositions that the Divisional Court ordered the case to be remitted for rehearing. They certified that the following point of law of general public importance was involved in their decision:

(1) on the day after limited leave expires and only on that day? or (2) on that day or any later day on which the defendant is proved to have first known that his limited leave had expired?"

If the Court of Appeal in Reg. v. Tzanatos intended to enunciate either of these propositions accepted by the Divisional Court, I must express my respectful but emphatic dissent from both.

First, the principle that ignorance of the law is no defence in crime is so fundamental that to construe the word "knowingly" in a criminal statute as requiring not merely knowledge of the facts material to the offender's guilt, but also knowledge of the relevant law, would be revolutionary and, to my mind, wholly unacceptable. I reserve my opinion as to whether the courts might nevertheless be driven to that extremity if a statutory offence embodying a requirement of knowledge in the definition of the offence were of such a nature that it was impossible to envisage circumstances in which the facts necessary to establish the offender's guilt would not be known to him. But that is certainly not this case. It would be unusual, but by no means impossible, for an immigrant (as, for example, one who was wholly illiterate) to remain beyond the time in fact limited by his leave, but nevertheless to be honestly mistaken in believing that his leave had not expired. I should mention in this connection a reference made in the course of argument by counsel for the respondent to the decision of the Divisional Court (Ormrod L.J. and Woolf J.) in Secretary of State for Trade and Industry v. Hart on November 24, 1981, which considered the mens rea required under the provisions of section 13 (5) and (6) of the Companies Act 1976, which make it an offence for a person to act as auditor of a company at a time when he knows that he is disqualified for appointment to that office. As the only report of the case made available was that in The Times, November 30, 1981 * and your Lordships heard no argument on the statute, it would, it seems to me, be wholly inappropriate either to look to that case as establishing any proposition of law relevant to the present appeal or to make any comment upon it.

* Now reported [1982] 1 W.L.R. 481.

Secondly, the logic of the decision in Singh (Gurdev) v. The Queen [1973] 1 W.L.R. 1444 leads, to my mind, inexorably to the conclusion that an offence under section 24 (1) (b) (i) of the Act can only be committed on the day after the limited leave expires, in just the same way as the offence of knowingly entering the United Kingdom without leave under section 24 (1) (a) can only be committed on the day of entry. In either case, if the offence cannot be proved to have been committed on that day because the immigrant remained or entered in ignorance of some fact constituting a necessary element of the offence, his acquisition of knowledge of that fact on a later date, when he is still in the United Kingdom without leave, will not render him guilty of any offence on that later date.

It is right to add that these conclusions with respect to criminal liability under section 24 in no way affect the liability of the immigrant who remains beyond the time limited by his leave to deportation under section 3 (5) (a) or the liability of the person who has entered without leave to removal as an "illegal entrant" pursuant to section 4 (2) and Schedule 2.

My Lords, for these reasons I would allow the appeal, affirm that part of the order of the Divisional Court which quashed the appellant's conviction, but set aside that part which remitted the case to the justices for rehearing. I would answer the certified question to the effect that an offence under section 24 (1) (b) (i) of the Act can be committed on the day after the limited leave expires and only on that day.

DISPOSITION:

Appeal allowed.

SOLICITORS:

Winstanley-Burgess; Solicitor, Metropolitan Police.