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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bhatti& Ors v R. [2015] EWCA Crim 1305 (30 July 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/1305.html Cite as: [2015] EWCA Crim 1305, [2015] WLR(D) 346

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT HARROW
HH Judge Anderson

		Royal Courts of Justice Strand. London, WC2A 2LL
		30/07/2015

Mr Justice Simon:

1. On 22 March 2013, in the Crown Court at Harrow, the appellants were convicted (by a majority of 10:1) of conspiracy to facilitate a breach of immigration law by non-EU citizens, contrary to s.l(l) of the Criminal Law Act 1977.
2. On 26 March they were sentenced: Bhatti and Akhtar to terms of 9 years imprisonment, Muhammad to a term of 4 years imprisonment. They were also each disqualified from being a director of a company for a period of 10 years, pursuant to s.2 of the Company Directors Act 1986.
3. They each appeal against their convictions with the leave of the single judge.
4. At the opening of the Prosecution case, the indictment contained 3 counts. Count 1 was the conspiracy charge against all appellants; count 2 was a charge of Acquiring Criminal Property (contrary to s.329(l)(a) of the Proceeds of Crime Act 2002) against Bhatti and Akhtar; and count 3 was a charge of Transferring Criminal Property (contrary to s.327 of the same act) against Muhammad alone.
5. At the close of the Prosecution case, counts 2 and 3 were withdrawn from the Jury, and ordered to lie on the file on the usual terms.
6. The statement of offence in relation to count 1 was:

Conspiracy to Facilitate a Breach of Immigration Law by non- EU citizens, contrary to s.l(l) of the Criminal Law Act 1977.

7. As amended, the particulars of offence were:

Waqar Bhatti, Sohail Akhtar and Noasheen Faqir Muhammad between 1 December 2003 and 1 December 2009 conspired together with others to facilitate a breach of immigration law by non-EU citizens by:

(a) facilitating applications to enter or remain in the UK made by deception, and

(b) knowing that by doing so, it would facilitate an application or remain in the UK by deception, and

(c) knowing that the Applicants were not citizens of the European Union.

8. In view of the relatively confined nature of the appeal we can summarise the facts giving rise to the conspiracy charge relatively shortly.
9. The prosecution arose out of the activities of Middlesex College. This establishment began operating in December 2003 offering various courses to overseas students, including degrees. It was owned by Bhatti (who described himself as the founding shareholder); and was managed by Akhtar. Muhammad was Akhtar's sister, joining them as an administrator at Middlesex College in 2005. Each of the Appellant's immigration status was (to put it neutrally) highly uncertain.
10. In summary the Prosecution case was that the Appellants established and ran the College for the purposes of immigration fraud; it was not a bona fide educational establishment and provided no real or proper education. It was, and was known to be, a place which could establish bogus immigration status. The College issued dishonest documents to non-EU foreign nationals who wanted to obtain leave to enter, or to remain in, the United Kingdom as students, in either case without any intention of studying. These people obtained documents purporting to show that they were studying or had studied at Middlesex College, which (if they had been genuine) would have entitled them to enter or remain lawfully in the country. The Appellants were at the centre of the conspiracy, which involved a large number of students, whose purpose was to circumvent immigration control. Akhtar and Muhammad were familiar with the immigration system, particularly in so far as it related to student entry requirements. The College was a sham; and Akhtar's application for a work permit demonstrated this, since he listed as an employer a man whom he himself employed.
11. At the close of the Prosecution case, counsel for the Defendants submitted that there was no case fit to go before the Jury.
12. A number of points were made, but one of the arguments which arises on the first ground of appeal is that Count 1 effectively alleged two conspiracies: first, a conspiracy in relation to those that wished to enter the UK and, secondly, a conspiracy in relation to those who were already here and wished to remain.
13. The Defence argued that it would be fairer to split the conspiracy charge to reflect this difference and relied on the decision of this court in R v. Griffiths [1966] 1 QB 589. The Judge rejected that submission, and the appellants submit that he was wrong to have done so.
14. There was, but is no longer, a further ground of appeal that the nature of the alleged conspiracy was to facilitate a breach of immigration law, and that a person who was lawfully in the country and wished prospectively to remain by means of deception was outside the scope of section 25(2)(C) of the Immigration Act 1971. That point was argued in this Court in R v Mahmud and Gupta [2013] EWCA Crim 2543. The Court rejected the argument and, following that decision, the ground was abandoned by the appellants.
15. There was another ground of appeal which arose out of a jury note and the way in which the judge dealt with it; but that ground too is no longer pursued.
16. The second ground is not a ground for which leave was given by the single judge. Mr Alun Jones QC (who was not trial Counsel) seeks to argue that there is material which is now available that would or, alternatively, might have led to the exclusion of important financial evidence from the jury's consideration, under section 78 (1) of the Police and Criminal Evidence Act 1984 ('PACE').
17. In February 2009, material was seized in execution of a search warrant. The entries, searches and seizures were subsequently declared unlawful by the Divisional Court in R (Bhatti) v. Croydon Magistrates Court [2011] 1 WLR 948, [2010] EWHC 522 (Admin). The Defence had argued at trial in the Crown Court that all the material that had been seized should be excluded under Section 78 (1). However, the Prosecution assured the court that no material which had been seized had been used for the purposes of the prosecution.
18. The argument that Mr Jones now wishes to advance is different; and is based on disclosure by the Prosecution during confiscation proceedings. On 9 March 2015, the Prosecution disclosed a report from the credit-ratings agency, Experian Ltd. This indicated that in January 2009 (in the month before the search warrants were executed) the Metropolitan Police had downloaded material relating to Mr Bhatti from the Experian site, including particulars of his bank accounts and credit rating.
19. We turn then to the first ground of appeal.
20. At the conclusion of the prosecution case, the Judge was faced with three applications of which the first is relevant to this appeal. This was an application that there was no case to answer on Count 1 as it was a rolled-up conspiracy based on evidence that revealed numerous conspiracies and not a single conspiracy as charged.
21. The Judge ruled against the Defence and held that there was a case to answer. In the course of his written ruling he identified that the Prosecution case on count 1 was that the Defendant had conspired with 'others'. Those 'others' being a number of students whose names appeared on the documentation and various others who had assisted them. The Judge was distinguishing from these 'others' a further category of students who were innocent of any involvement in evading immigration control and were outside any conspiracy.
22. He recorded the Defence argument that there was a difference between those seeking to enter the country and those seeking further leave to remain; but considered that the question for decision was whether there was evidence of a common design of those involved, and whether the 'others' could be said to have known that the arrangements they made with the college were part of a bigger enterprise.
23. The Judge continued:

[5] Count 1 of the indictment is an allegation of an agreement to commit what would be the substance of an offence, contrary to section 25 of the Immigration Act 1971, of facilitating a breach of the immigration law that controls entitlement to enter or remain in this country.

[6] Whilst it may be suggested that the offence can be committed in two ways (facilitating entry or facilitating remaining), it is in my view, still to ail intents and purposes, one offence of facilitating that is alleged.

[7] The common thread that runs throughout the prosecution evidence is that students who are seeking to enter or remain are using the support of specific documentation bearing the Middlesex College insignia, documents that it may be inferred emanated from Middlesex College.

[8] In my view the state of the evidence shows that those alleged to be conspiring of the college and students (who come and go) have not just a similar but separate design, but one common design in mind, and that is to get into or remain in the UK by using Middlesex College documents.

24. The Judge considered the test in Griffiths (at 597F) to which we will come later, before considering the question of whether there was one or more conspiracies.

[10] Does the evidence in this case show that there were numerous conspiracies between individual students and those at the centre of Middlesex College, or is this in reality one conspiracy?

[11] If it were the case that there was no evidence that any particular student knew what, if any, documents other than those provided to him had been or were being provided to others by Middlesex College, that it seems to me might militate in favour of the assertion that there were numerous different conspiracies.

[12] But the reality here in the circumstances of this case is that, whilst the only concern of a particular student would have been his own case and documentation, it may readily be inferred that the particular student would have been well aware that he could not have been the only one taking advantage of Middlesex College's readiness to supply these misleading documents for the very purpose that he required them-to wrongfully either get in or stay in the UK.

[13] Further, depending on the view which the jury take there is evidence here capable of supporting an inference that Middlesex College were known to certain people, both in this country and abroad, as a provider of such material to assist either initial immigration or continued residence in this country.

[14] On these lines of reasoning, a student may legitimately be inferred to have entered into an agreement with Middlesex College that he was aware went beyond his own application to the extent that others were doing the same thing with Middlesex College in pursuance of the same criminal purpose that he had in mind. The principles are set out in R v Mehta [2012] EWCA Crim 2824 at paragraphs 36-37.

25. On this basis the Judge rejected the Defence submission that count 1 charged as a single conspiracy what was, in reality, a very large number of conspiracies. He also rejected the submission that there was no, or at least no sufficient, evidence to show a conspiracy in relation to initial entry visas and referred to the evidence, including statistics in the Agreed Facts.
26. As to the submission that Count 1 should be split into two counts, the Judge saw no need for such a course of action and was not persuaded that this would make for a fairer picture for the purposes of sentence.
27. Mr Jones submitted that the Judge was wrong for the following reasons.
28. First, as the judge had noted, the substantive offence of assisting unlawful immigration was an offence contrary to Section 25 of the Immigration Act 1971 (the 1971 Act). Section 25(1) of the 1971 Act provides that a person commits an offence if he:

(a) does an act which facilitates a breach of immigration law by an individual who is not a citizen of the European Union,

(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by that individual, and

(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

29. Section 25 (2) of the 1971 Act defines 'Immigration Law' for the purposes of the offence under Section 25 (1) as:

... a law which has effect in a member state and which controls, in respect of some or all persons who are not nationals of the state, entitlement to:

(a) enter the state

(b) transit the state

(c) be in the state.

30. If a person were prosecuted for a substantive offence under Section 25 it would be necessary to specify the act which facilitated the breach of immigration law, which immigration law was breached and the act of deception (if deception were alleged). Mr Jones drew attention to the indictment in R v Dhall [2013] EWCA Crim 1610, while noting that the court in that case said it would be sufficient if the prosecution stated in opening what immigration law was broken.
31. In a conspiracy which is alleged to have lasted six years and to have involved the appellants and an uncertain (although large) number of individuals, Mr Jones argued that it was particularly important to be specific in the particulars of the offence; whereas in the present case the particulars simply recited the terms of Section 25, with the additional confusion created by various grammatical infelicities. The vice of Count 1 was that it was not designed to meet the facts of the case, but rather to show the appellants' involvement in numerous offences of facilitating breaches of immigration law, some in contravention of laws affecting entering the country and others in contravention of laws affecting persons staying in it. By trying to avoid a complaint that the count was duplicitous, and in order to embrace events which had occurred over a period of 6 years, count 1 had become what Mr Jones characterised as 'a mess.'
32. What the prosecution had to show was a common unlawful purpose or design. This meant a shared design. The facts demonstrated a similar but separate design, and that was not sufficient to found a conspiracy, see Mehta (referred to by Judge Anderson in his ruling at [14]). There was no evidence of a shared design: some students wanted to enter the country and others wanted to stay, but there was no common unlawful purpose which lasted throughout the six years of the conspiracy.
33. In our view the starting point is the judgment of this court in Griffiths. In that case there was a fraud to which Griffiths and his bookkeeper were parties. Lime was supplied to farmers and fraudulent claims were made in respect of this supply against the Ministry of Agriculture. At trial the Prosecution conceded that there was no evidence that any farmer knew of any contracts other than his own. The point taken on appeal was that there was no single conspiracy to which all the farmers were party.
34. At page 297F-G of the report, Paull J giving the judgment of the Court said:

... in law all must join in one conspiracy, each with the others in order to join in the one agreement, each with the other in order to constitute one conspiracy. They may join at various times, each attaching himself to that agreement; any one of them may not know all the other parties, but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself; but what each must know is that there is a coming into existence or is an existence of a scheme which goes beyond the illegal act which he agrees to.

35. In Mehta (see above) the Court, having reviewed the authorities, found that they established three propositions which it set out at [36]:

(1) A conspiracy requires that the parties to it have a common unlawful purpose or design.

(2) A common design means a shared design. It is not the same as a similar but separate design.

(3) In criminal law (as in civil law) there may be an umbrella agreement pursuant to which the parties enter into further agreements...

36. In SFO v Papachristos and others [2014] EWCA Crim 1863 at [63], the Court made clear that those charged with a conspiracy may have sought to achieve the common aim by different means, and that it was not necessary to prove all of the conspirators were aware of the full range of ways in which the common purpose might be executed.
37. In our view the criticism of the Judge's application of these principles at [10]-[14] of his ruling is unfounded.
38. He was right to conclude that it was open to the Jury to draw the following conclusions from the evidence they had heard. First, Middlesex College was known to certain people (the 'others' referred to in the indictment), both in this country and abroad, as a provider of material which assisted either initial immigration or continued residence in this country and which (in either case) flouted immigration law (see Ruling [13]). Secondly, when entering into an agreement with Middlesex College these students were aware that this was part of a common unlawful purpose which involved others: a shared purpose, within the meaning of that expression as set out in Mehta (see Ruling [14]). The facts of each substantive offence may have been similar, but their purpose was the same. Thirdly, these students knew that there was a scheme which went beyond the particular offence in which he or she was involved, see Griffiths.
39. We should add that we do not accept Mr Jones's submission that the indictment in Dhall was 'much more realistic'. In that case the indictment charged the Section 25 offence in relation to twelve named individuals. The Court held that it was open to the Prosecution to proceed in this way; but we do not accept that charging the substantive offences is the only way of prosecuting this type of offence.
40. In our view the Judge did not err in his ruling and accordingly we reject the first ground of appeal.
41. We should add that there was a complaint in Mr Jones's skeleton argument about the summing-up, which he developed orally. His complaint was that the Judge should have raised with the Jury the possibility that there were two conspiracies: one involving entry to the country and another involving remaining in the country. He referred, by way of contrast, to the summing-up approved by this Court in R v. Greenfield (1973) 1 WLR 1154. Identifying two distinct conspiracies is, in our view and on the facts of this case, artificial, and this must on reflection have appeared so to those engaged in the trial. It was not raised at the time of the summing-up, is not a ground on which leave was given to appeal and does not in our view give rise to arguable grounds of appeal.
42. The second ground (which was not considered by the Single Judge) relates to the disclosure of material about Mr Bhatti by Experian Limited.
43. Since the matter did not arise at trial, we have had to rely on a limited amount of new evidence which was produced in order to deal with the point, in addition to the submissions of Counsel.
44. It appears that Experian disclosed the personal data of Bhatti to the Prosecution under the provisions of Section 29(1) of the Data Protection Act 1998 ('DPA'), which provides that personal data processed for the purpose of (a) the prevention of detection of crime, or (b) the prosecution of offenders, is exempt from the first data protection principle (subject to various exceptions).
45. The first data principle under the DPA is that, 'Personal data shall be processed fairly and lawfully'.
46. Mr Jones submitted that the process by which the Prosecution acquired information in the Experian printout was unlawful in two respects. First, no assessment had been made by Experian as to whether the material should be released, and the Police knew this; and secondly, Experian was effectively making material available to the Prosecution without an order from a Judge, and such an order would not have been made without stringent conditions. In summary his submission was that the Prosecution had contrived to by-pass the procedural requirements of PACE in order to acquire confidential information which it could not otherwise have obtained. He submitted that the information about the total amount of the fees paid into the bank accounts was crucial; and if the trial Judge had been made aware of the unlawful means of procuring such evidence, he would not have permitted its deployment.
47. Schedule 1 of PACE gives a Circuit Judge power to make an order for production of special procedure material; but such an order requires the fulfilment of one of two sets of 'access conditions' before the Judge may exercise his discretion in favour of the Prosecution. Under paragraph 2(b) the first set of access conditions is fulfilled if other methods of obtaining the material have (i) have been tried without success, or (ii) have not been tried because it appeared that they were bound to fail.
48. Mr Higgs QC argued that, unless the Prosecution has tried to obtain the material by other methods, it cannot make an application to a Judge under the provisions of Schedule 1 of PACE. It is only if it has tried without success that it can invoke the Special Procedure. He submitted that Experian was under a duty, by reason of s.4(4) of the DPA, to comply with the Data Protection Principles. The first data principle, set in Schedule 1 of the DPA, provides that 'personal data shall be processed fairly and lawfully'. 'Processing' is defined as (among other things) disclosure of information and data. Plainly data disclosed in breach of the obligation of confidentiality between (say) a bank and a customer would not be disclosed lawfully. However, Experian did not disclose the information in breach of confidence, since it acquires credit information because customers of lenders and other financial organisations agree that credit account information may be shared. In the present case Experian had voluntarily made the information available to DC Edwards (an accredited financial investigator).
49. So far as the on-line enquiries of DC Edwards was concerned, Mr Higgs submitted that, when considering whether the provisions of s.29 of the DPA had been complied with, Experian was entitled to rely on his identifying himself as a police officer who had been specially trained, who stated that the information was for the purpose set out in s.29 of the DPA, who set out the offence he was investigating, who (as part of public authority) was obliged to act in compliance with the law, including the Human Rights Act 1998 and the DPA, and whose actions were subject to audit. He further submitted that the information (details of bank accounts, employment history and telephone numbers) was relevant to the investigation into organised crime, and that Experian had very plainly acted lawfully in disclosing information for the purposes of the detection of crime and the prosecution of offenders.
50. In view of the potential implications and since Mr Higgs did not have direct instructions about Experian's processes, we took the unusual course of offering Experian the opportunity of informing the Court if it disagreed with what Mr Higgs had told the Court, with a right of response from Mr Jones. This offer was treated as an invitation to serve a witness statement from Mr Ian Sharpe, the Compliance Change Manager in the Compliance Department of Experian Limited, with responsibility for Europe, the Middle East and Africa. His evidence did not add materially to what we had been told. It confirmed that Experian does not 'own' the data held on its systems, but acts under licence. The data is provided by and 'owned' by lenders and other organisations, who obtain the consent of those whose data they hold as a condition of considering applications for and granting financial facilities. Experian's activities are regulated by the Financial Conduct Authority, the Information Commissioner's Office and by specific provisions of the Consumer Credit Act 1974.
51. So far as is relevant to this case, it holds a Credit Account Information Sharing ('CAIS') file which, as its names suggests, is a file from which credit information may be accessed. Customers (or potential customers) expressly agree in their credit applications and agreements that their data may be shared for the purpose of crime detection, prevention and prosecution.
52. What all this demonstrates is that the way in which this type of information may now be made available has moved on since the coming into force of PACE.
53. Although customers may be surprised to find that credit referencing information is found on this type of system and may be accessed by the Police under s.29 of the DPA, in our judgment the contention that Experian or the Police acted unlawfully in relation to the disclosure is unfounded.
54. In these circumstances, it is unnecessary to consider the further point that, if the trial Judge had been made aware of how this data had been procured, he would have been bound to exclude it. It is sufficient to say that we do not accept that this would have been so. The information from Experian identified accounts and credit balances, but the most damaging information to his defence (the total amount of fees) was obtained independently.
55. We give permission to argue the second ground; but dismiss both grounds for the reasons set out above. Accordingly, the appeal against the conviction of each Appellant is dismissed.