Tom Farr Successful in Obtaining Stay of Criminal Proceedings in Immigration and Asylum Case

December 13, 2023

Exchange’s Manchester crime pupil Tom Farr was successful in pre-trial legal argument that took place on 07 December 2023, seeking to have both the indictment and the proceedings as a whole stayed on the grounds of abuse of process, error of law, and injustice to the Defendant.

Tom – instructed by Catherine Green of Tranters Solicitors – represented AK, an asylum seeker who was standing trial accused of facilitating the unlawful immigration of a 2-year-old baby (MM), who, the Crown alleged, had knowingly arrived in the country without leave. In an effort to resolve matters, the Defence had previously alerted the Crown to the fact that the indicted offence required mens rea on the part of MM, which, given his age, was impossible.

As a result of this, and prior to the trial starting, the Crown sought to amend the indictment to a new offence of facilitating the attempted entry of MM into the country without leave, contrary to Section 3 Immigration Act 1971.The Defence opposed this and requested that the matter be dealt with in a pre-trial legal ruling.

The Defence lodged a skeleton argument with the Court arguing that to allow the Crown to amend the indictment would cause injustice to the Defendant, as it would risk AK being convicted on an error of law, and that the amendment was an abuse of process as it had prevented AK from having the opportunity to apply to dismiss the case prior to arraignment.

The Defence argued that the offence of arrival without leave is legally and factually distinct from the offence of entry without leave, relying upon Section 11 Immigration Act 1971, and a number of Court of Appeal authorities that had dealt with the construction of the terms previously.

In her judgment, Her Honour Judge Baxter ruled in favour of the Defence, stating that to permit the amendment would cause injustice to the Defendant on the grounds advanced by the Defence from the outset. As a result, the proceedings were stayed, and the terminatory ruling had the effect of concluding the matter in AK’s favour.

Tom was instructed by Catherine Green of Tranters Solicitors, and is available to receive instructions in all areas of criminal law.