The Advice

All of the characters and all of the ‘laws’ in this story are entirely fictional.

REX

v

DAVID WARD

ADVICE ON EVIDENCE

1. I am instructed by the Crown to advise on the case against David Ward. Mr. Ward is alleged to have assisted in the commission of an immigration offence, and I am asked to (i) review the evidence gathered so far; (ii) consider the relevant law; and (iii) apply the revised prosecutor’s test, in order to determine whether prosecution ought to be pursued.

2. In preparing this advice I have had recourse to a number of documents, including a translated transcript of Hassan Khaled’s police interview and two witness statements: one by Philip Scanlon and one by Sergeant Kaye Reed. I note that I have not received the transcript of Mr. Ward’s own police interview, but I understand that it is forthcoming.

Factual background

3. Hassan Khaled (‘Hassan’) is a Syrian national. In his interview (exhibit HK/1) he states that his family spent the summer traveling across Europe by road and rail. He is unable to detail the route that they took, but explains that England was their ultimate destination, and recalls that they had reached Calais by the time of his sister’s sixth birthday, in August.

4. Hassan states that his family were homeless when they first arrived in Calais, but that they soon settled in a makeshift migrants’ camp. His father had been a dentist in Syria, and so began treating the camp’s residents. One of his patients was a man named Ali, who spoke English and claimed to have family in London. Hassan remembers meeting Ali several times and provides a description of him (exhibit HK/1, page 9), but I understand that he is yet to be identified.

5. Hassan recalls being present when Ali informed his father that he could help the family get to England. The conversation took place during one of his father’s ‘clinics’, about a week before they left. In the days that followed, Hassan learned that Ali had arranged for them to cross the channel by boat, along with one other family.

6. Hassan states that the crossing, on 28 October, was two days before his eleventh birthday. He remembers that his mother promised him a party on their arrival in London, and he describes creeping down to the beach in darkness, his father telling him that their ‘mission’ was to find the boat without being seen. He recalls that there were two other families in the boat, neither of which he knew, and that his mother became worried that they would not all fit. He says he looked for Ali but could not see him.

7. Hassan’s interview ends abruptly after he describes his sister being sick on the boat. I would therefore ask those investigating to arrange a follow-up interview in order to establish whether he has any additional information regarding (a) his encounter with David Ward, and (b) the identity of Ali.

8. In his statement, Philip Scanlon explains that on the night of 28 October he was monitoring the Kent coastline in a converted shrimp cutter, as part of Patriot Patrol’s Voluntary Corps. He states that at 01.08 a.m. he and his team intercepted a message from the French authorities regarding a suspected migrant vessel that had crossed into English waters. He conferred with Patriot Patrol’s headquarters and obtained clearance to search for the vessel, using the coordinates broadcast by the French.

9. Mr. Scanlon states that at 01.46 a.m. his team located what they took to be the vessel in question. It was a zodiac, approximately six miles from the English shore, and it had capsized. He says:

There were eight bodies floating in the water. We performed our standard checks, confirming they were dead, and once we had done that we took them onboard. There were three adults and five children, so our working theory was that they had been two families.

10. Mr. Scanlon’s team then took the bodies to shore. As they did so they contacted Sergeant Kaye Reed of the Kent police marine unit, who agreed to meet them on arrival. Mr. Scanlon ends his statement by confirming that Sergeant Reed received the migrants’ bodies around one hour later.

11. Sergeant Reed’s first statement concerns her interaction with Mr. Scanlon that night. She describes being called out to meet Patriot Patrol, before registering the migrants’ bodies and overseeing their transport to the morgue. However, she also provides an addendum statement, made later that day, in which she recounts receiving an anonymous report of a body washed up on Hythe Beach. She states:

Having dealt with the migrant fatalities earlier that night I had good reason to believe that this case would be linked to theirs. I therefore made my way to Hythe, arriving at 08.29 a.m.. The tide was out, and as I stepped onto the beach I could see a boy lying motionless on his back. There was a man kneeling beside him performing CPR, and a Jack Russell whining and sniffing at his face.

I approached and demanded that the man identify himself. He told me that his name was DAVID WARD, and that he was attempting to resuscitate the boy. Before I could respond the boy began to cough. I now know him to be HASSAN KHALED.

12. Sergeant Reed arrested and cautioned Mr. Ward, then called for an ambulance. Hassan was taken to hospital, where he was treated for hypoxia and swelling of the brain. Doctor Gerald Jones, who oversaw his recovery, has provided a detailed report on his condition. Crucially, he concludes: ‘Had it not been for Mr. Ward’s intervention, Hassan would have died’ (exhibit GJ/1, page 10).

Legal framework

13. Sections 30 to 38 of the English Borders Act (‘the Act’) create a number of immigration offences. These include possession of false documentation, securing entry into England by deception, unlawful entry into England (other than by deception), and unlawful presence in England. Section 39 creates the further offence of assisting in the commission of an immigration offence. It reads:

39. Assisting in the commission of an immigration offence.

(1) A person commits an offence if he —

(a) does an act which facilitates the commission of an immigration offence, and

(b) knows or has reasonable cause to believe that his act facilitates the commission of that offence.

(2) In subsection (1), ‘immigration offence’ refers to the offences listed in sections 30 to 38 of this Act.

(3) A person guilty of an offence under this section shall be liable to imprisonment for a term not exceeding 14 years.

14. The leading authority on the application of Section 39 is R v Freeman. The case concerned two North Sea fishermen who encountered a sinking skiff and rescued its four-man crew (three of whom later died of hypothermia). The fishermen were convicted of offences under Section 39, the prosecution case being that the very act of rescuing the crew had facilitated their unlawful entry into England. They appealed against their convictions, arguing that the judge had misdirected the jury. However, the Court of Appeal disagreed. In upholding the original verdicts, Lord Justice Morton clarified the elements of the offence and outlined what he termed ‘the counterfactual approach’:

There are two points to be borne in mind. First, it might be thought that a defendant is not guilty [of an offence under Section 39] if his primary intention is to save an individual’s life rather than to assist in the commission of an offence. But what matters is knowledge, not intention, and a reasonable person is able to know or believe multiple things at once. He is also able to understand cause and effect. Therefore, if he knows or believes that he is saving an individual’s life, he will also know or believe that his doing so has consequences. In this case, those consequences clearly included the crew’s unlawful entry into England.

But second, the Act makes it clear that the essence of this offence is a defendant’s deeds, not thoughts. Accordingly, there is no need to delve into the depths of his mind in order to determine whether he facilitated the commission of an offence. It is enough that we step back and observe the results of his actions. The question is: if he had not acted as he did, would the offence have been committed? If the answer is ‘no’, as in this case, then he is guilty.

Discussion

15. When considering a charge under Section 39, there are two issues to address:

  • whether an immigration offence was in fact committed; and
  • if so, whether the defendant’s actions facilitated its commission.

16. Hassan has now been convicted of unlawful entry and unlawful presence in England, with a Tagged Deportation Order due to take effect on completion of his sentence. It has therefore been established that, in respect of the first of the issues above, an immigration offence was committed on the night of 28 October.

17. The question remains whether Mr. Ward’s actions facilitated the commission of Hassan’s offences. As noted above, according to Morton L. J.’s counterfactual approach, a defendant’s actions facilitate the commission of an offence if, without those actions, the offence would not have been committed. Although Hassan entered England before encountering Mr. Ward, his continued presence here was only possible because Mr. Ward resuscitated him. Dr. Jones’ report makes this clear: had Mr. Ward not administered CPR, Hassan would have died, and had he died, he would not have been ‘present’ in England (see Stanforth L. J.’s comments in the case of Theroux: ‘the dead do not migrate, nor are they present’).

18. On this basis, I consider that Mr. Ward’s efforts to help Hassan did facilitate the commission of an immigration offence, namely, Hassan’s continued unlawful presence in England.

19. The revised prosecutor’s test states that charges should only be laid if:

  • on the balance of probabilities, there is a realistic prospect of conviction; and
  • prosecution is in the public interest.

20. Addressing the first limb of this test, the prospect of conviction is high. Without having seen Mr. Ward’s police interview, I am unable to analyse his position. However, Sergeant Reed and Mr. Scanlon are likely to be compelling witnesses, given their extensive experience in this area.

21. Turning to the second limb of the test, I consider that prosecuting Mr. Ward would be in the public interest. In making this assessment, I recall the remarks of Lady Borthwick as the Act made its way through the House of Lords:

The celebrated English jurist, Sir Edward Coke, once observed that in England your home is your castle, your fortress. He was right, of course, but this Bill reminds us that England itself is our home – and as such, our castle. This sceptered isle is our fortress, and the provisions of this Bill its ramparts: defending our happy breed of men against the envy of less happy lands. There is no greater or more noble task than that defence, and no deeper source of fellowship. This Bill manifests our shared defence of jobs and wages, traditions and customs, hamlets and cities, flesh and blood. It will protect us from those who covet our world; from those who fetter our interests, retard our values, and greedily eye the fat of our land.

22. I would add that the Prime Minister has repeatedly called for a robust response to offences of this kind, stating that migrants, and those who assist them, must face the full force of the law in order to deter others from engaging in criminality.

Conclusion and next steps

23. In light of the foregoing, I would advise those instructing me to lay the following charge:

ASSISTING IN THE COMMISSION OF AN IMMIGRATION OFFENCE, contrary to section 39 of the English Borders Act.

DAVID MICHAEL WARD, on the twenty-ninth day of October, assisted in the commission of an immigration offence, in that he administered cardiopulmonary resuscitation to Hassan Khaled, thereby facilitating his unlawful presence in England, contrary to section 39 of the English Borders Act.

24. Please do contact me should you wish to discuss the case further.

J. C. BAINES

KING’S COURT CHAMBERS