Quashing Small Boat Convictions
Mr John Barker, Counsel instructed by Miss Sadie Castle of this firm successfully appeared before the Lord Justice Edis at the Court of Appeal on 21st December 2021 in order to represent Samyar Bani in appeal against the conviction imposed on 7th November 2019.
Mr Bani was one of 6 individuals who sought to enter the UK on 1st June 2019 to claim asylum using a small boat across the English Channel. It was deemed Mr Bani was the pilot of said vessel and as such he was charged with Assisting Illegal Immigration of a Member State contrary to Section 25(1) of the Immigration Act 1971.
In a statement of position submitted to the Crown and Court by the defence on 24th September 2019, it relayed “…it was the purpose of all concerned in the boat to apply for asylum once they had been detained as they inevitably would be by the authorities.”
A legal argument was heard before the Judge at the Canterbury Crown Court on 27th September 2019 in which Mr Barker argued there was an abuse of process of prosecute Mr Bani under Section 25, it being unfair and constituted an abuse of process. The Judge ruled in favour of the Crown.
At the conclusion of the case, another Judge directed the jury that a breach of immigration law would occur when the boat entered “UK coastal water”, as was the agreed legal position before him. Mr Bani was convicted and handed a sentence of 6 years imprisonment, reduced to 5 years upon appeal to the Court of Appeal.
That direction of the Judge was wrong. The breach of immigration law would occur on disembarkation, otherwise than at a port with an approved area where the migrants could remain until given leave to enter, detained or bailed. Whether they disembarked into such an approved area directly from their own boat or from a vessel in which they had been picked up by the United Kingdom authorities does not matter. The jury were not directed that they should consider whether Mr Bani might have intended that the other migrants would enter the United Kingdom without committing a breach of immigration law.
Following the Judgement in Kakaei  EWCA Crim 503, which was handed down on 8 April 2021, Mr Barker prepared advice and grounds of appeal and an application to the Court of Appeal for leave to appeal against conviction out of time was submitted by Miss Castle.
When Mr Barker appeared before the Court of Appeal on 21st December 2021, Mr Bani was granted leave to appeal out of time and his conviction was quashed.
You can read the Court of Appeal transcript by clicking the link at the bottom of this article.
Mr John Barker, Counsel, instructed by Miss Sadie Castle of this firm, appeared at the Court of Appeal on 8th February 2022 in order to represent Mr Mohamed in an appeal against conviction.
Mr Mohamad was charged with Doing an Act to facilitate the commission of a breach of UK immigration law by a non-EU person on 9th October 2020 in that he piloted a Rigid Hulled Inflatable Boat carrying 30 undocumented non EU migrants into the UK, which facilitated the commission of a breach of immigration law, namely Section 24 (1) (a) of the Immigration Act 1971.
Mr Mohamad pleaded guilty at the Canterbury Crown Court on 5th February 2021 on the basis of the previous ruling in the Bani case following legal argument.
On 10th February 2021 Mr Mohamad was sentenced to a term of imprisonment of 2 years 6 months.
An application for leave to appeal against that sentence was submitted to the Court of Appeal. Leave to appeal was refused.
Following the Judgement in Kakaei, Mr Barker prepared advice and grounds of appeal against conviction and an application as submitted to the Court of Appeal by Miss Castle.
On 8th February 2022, Mr Barker successfully appeared before the Court of Appeal, the appeal was allowed and Mr Mohamad’s conviction was quashed.
If you wish to discuss the contents of this article, or to instruct our firm, please contact Sadie Castle on 0300 303 3883 or by email to firstname.lastname@example.org
R v Bani  EWCA Crim 1958