R v AUS
[2024] EWCA Crim 322
R v Kazem Khodamoradi
13 January 2023
[2022] EWCA Crim 37
Court of Appeal
A man pleaded guilty to helping migrants enter the UK illegally. His lawyer gave him bad advice. A new lawyer showed the old advice was wrong, so the court overturned the guilty plea and he is free.
Key Facts
- •Applicant pleaded guilty to facilitating a breach of immigration law under section 25 of the Immigration Act 1971.
- •Applicant was involved in steering a RHIB carrying migrants intercepted in the English Channel.
- •Applicant's guilty plea was based on the understanding he only steered the boat for 1-2 minutes.
- •Applicant was sentenced to 18 months' imprisonment (sentence served).
- •Trial counsel wrongly advised the applicant had no defence.
- •The appeal was filed 503 days out of time.
- •The prosecution did not oppose the extension of time or the appeal.
Legal Principles
A conviction is only unsafe if there are good grounds to question its safety; the court is not bound by the prosecution's stance.
Rakei & Ors
Unlawful entry under section 24 of the Immigration Act 1971 is not committed if a migrant is intercepted at sea and taken to an approved port area.
Kakaei [2021] EWCA Crim 203, Bani & Ors [2021] EWCA Crim 1958, Rakei
Facilitating an attempted breach of section 24 can be an offence if the defendant intended to deliver migrants outside the approved port area or recognised that as a possible outcome.
Bani at [105]
Sections 24 and 25 of the Immigration Act 1971 were amended (from June 26, 2022) to broaden the scope of offences to include arrival at an approved port area.
Immigration Act 1971 amendments
The Court of Appeal has the power to grant an extension of time under section 18(3) of the Criminal Appeal Act 1968, considering justice, finality, party interests, resource efficiency, and public interest.
Criminal Appeal Act 1968, section 18(3), Thorsby & Ors [2015] EWCA Crim 1, Paterson [2022] EWCA Crim 456
Outcomes
Extension of time granted, permission to appeal granted, appeal allowed.
The applicant had a valid defence that was not properly explained to him; the case is indistinguishable from others where appeals were allowed; no retrial sought by prosecution; applicant already served sentence.