Jersey Unreported Judgments

[2009]JRC041

ROYAL COURT

(Samedi Division)

5^th March 2009

Before     :

Sir Philip Bailhache, Kt., Bailiff and Jurats Morgan and Newcombe.

Krysztof Piotr Dryjanski

-v-

Attorney General

Advocate M. J. Haines for the Appellant.

Advocate R. C. P. Pedley for the Attorney General.

JUDGMENT

THE BAILIFF:

1.        On 11th February, 2009, we heard submissions from Mr Haines for the appellant and from Mr Pedley for the Attorney General in an appeal by Kryzstof Piotr Dryjanski against a recommendation for deportation made by the Assistant Magistrate.  Having considered the submissions of counsel, we dismissed the appeal and indicated that we would give our reasons at a later date.  This we now proceed to do.

2.        The appellant had been sentenced to a term of twelve months' imprisonment in relation to a number of motoring offences and disqualified for holding a driving licence for seven years.  He did not complain about that sentence, but asked the Court to quash the recommendation that he should be deported from the Island at the end of his sentence of imprisonment.  The ground of appeal was that the recommendation was wrong in principle and manifestly excessive.  Counsel for the appellant submitted that the Assistant Magistrate should not have taken it upon herself to make a recommendation for deportation, but that in any event she exercised her judgement wrongly.  The appeal raises a short but important point of judicial policy, namely whether it is appropriate for a recommendation for deportation to be made by the Magistrate's Court.  Counsel for the appellant accepted that, as a matter of law, the Magistrate has jurisdiction under Section 6(1) of the Immigration Act 1971, as extended to Jersey, to make such a recommendation.  He contended, however, that as a matter of practice such issues should be considered only at the level of the Royal Court.

3.        The facts underlying the appellant's sentence on 8th December, 2008, are as follows.  The appellant is 42 years old and has lived in Jersey for about three years.  His employment record is patchy, but he has been in employment for significant periods while in the Bailiwick.  In May 2008, things started to go wrong.  In the early hours of 9th May, he was stopped by the police while driving a car belonging to his girlfriend.  He was heavily intoxicated.  On 6th June, at about 3.30 in the afternoon, there was a collision when the appellant's car ran into the back of a motorcycle and knocked the rider into the road.  The motorcyclist did not complain to the police until later that day.  At 6.30pm the appellant was found by the police at Le Dicq in an intoxicated condition.  He denied having been drunk at 3.30pm, but admitted driving without due care and attention and without a driving licence.  On the 4th July, he appeared before the Magistrate and was given an interim disqualification.

4.        On 17th July, following complaints from members of the public about erratic driving, the appellant was found by the police again to have been driving whilst heavily intoxicated.  The specimen of breath showed him to have been nearly three times over the legal limit.  He was also in breach of the Magistrate's interim disqualification.

5.        On 18th August, he was sentenced to 90 hours' community service and disqualified for holding a driving licence for two years.

6.        At about 11pm on 6th November, 2008, the appellant drove his girlfriend's motor vehicle from St Thomas's Church to Vauxhall Street while he was disqualified for driving.  At 2.50am on 7th November, 2008, he was found in Vauxhall Street sitting in the car apparently asleep.  He was heavily intoxicated.  The keys were in the ignition.  The concentration of alcohol in his breath showed that he was some five times over the legal limit.  He appeared before the Assistant Magistrate on 8th December, when he was also sentenced for a breach of the community service order having been suspended from the scheme a short time before.  The Assistant Magistrate sentenced the appellant to a total of twelve months' imprisonment, disqualified him for holding a driving licence for seven years, and recommended that he should be deported from Jersey at the end of his sentence.

7.        The law in relation to recommendations for deportation is clear.  The Court must ask itself two questions.  (1) Is the defendant's continued presence in Jersey detrimental to the interests of the community? (2) If the answer to (1) is in the affirmative, would a recommendation for deportation be disproportionate having regard to the convention rights under the European Convention on Human Rights of the defendant or any other person?  Counsel for the appellant has conceded that the Assistant Magistrate applied the correct test and asked herself the relevant questions.

8.        The Assistant Magistrate's conclusions were that the appellant's continued presence in Jersey would be detrimental to the public interest, and that there were no ECHR reasons for not making a recommendation for deportation.  Her reasons as set out in the transcript were as follows:-

"So now I come to question of whether I should recommend your deportation.  I've looked at the cases of Nazari, De Sousa and Camacho and I've listened very carefully to everything your Advocate has said.  There are two parts to this question, one, is your continued presence detrimental to the Island?  I cannot agree with the assessment of the Probation Service that you are at a low end of the medium risk of re-offending.  Taking into account your recent record of five serious offences since May, I conclude that you're a high risk of re-offending and when offending concerns drink driving it means that in my view there is a high risk to the public and particularly when each of those drink driving offences has been at an extremely high level.  Then I have to consider the effect of a possible deportation on you and your family because you have Human Rights under Article 8 to a family life.  Now, you're not a British citizen so the Court does have power to recommend deportation and these are clearly imprisonable offences.  Your son is in Poland, he's not here with you, I do hear what your Lawyer says that you are earning money here and that is helping him at the moment but there is no reason why that money could only be earned in Jersey, you could go to another country, you're not being sent back to Poland it's just deported from Jersey.  You have a girlfriend as well, you've been with her for 3 years and I understand you would like to get married.  That is an important and a difficult consideration for the Court but she is not a Jersey person herself and she says she's been with you for 3 years.  I take all this into account but I do not think that a recommendation to deportation is disproportionate with the impact that that would have on your family life, so I do recommend deportation."

9.        Counsel for the appellant submitted in his written contentions that, if the case were fit to be dealt with by the Magistrate, it could not be so serious as to warrant a recommendation for deportation.  He cited an extract from the judgment of Beloff JA in Camacho v Attorney General [2007] JLR 462 at paragraphs 41 - 42:-

"The first limb of the Nazari test has seldom given rise to difficulty.  The continued presence of the offender being 'to the public detriment' and other formulations such as 'Not in the public interest' or 'not conducive to the public good' have been applied in England broadly in line with the dictum of Judge LJ in N (Kenya) v Secretary of State of the Home Department [2004] EWCA Civ 1094 that '[t]he 'public good' and the 'public interest' are wide-ranging but undefined concepts.  In my judgment... broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged.  They include an element of deterrence... so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation'

In the Bailiwicks similar principles are applied.  In Jersey, the courts have sometimes expressed it in terms of abuse of privilege.  In AG v Dubiel [2006] JRC 118 at para 7.  See also AG v Martin [2006] JRC 122 para 6."

10.      Counsel also referred to an English case of R v Ali Maftonian [2005] EWCA Crim 1088 where Silver J stated:

"The starting point for determining whether a recommendation for deportation should be made is to be found in the judgment of Lawton LJ in this court in Nazari [1980] 1 WLR 1366 at 1373, where he said that:

'This country has no use for criminals of other nationalities particularly if they have committed serious crimes or have long criminal records.  That is self evident.  The more serious the crime and the longer the record the more obvious it is there should be an order recommending deportation.  On the other hand, a minor offence would not merit an order recommending deportation'

It is clear that the courts might not order deportation if an offence had been committed under emotional distress and there was little chance of re-offending by the defendant.  Thus in Tshuma (1981) 3 Cr App R (S) 97 this court quashed an order recommending deportation notwithstanding that the defendant had committed 'a very serious offence' of arson in circumstances in which he was unlikely to offend again.  Indeed the decision in that case shows that, in so far as the learned judge made the deportation order because the defendant had committed 'a very serious offence', that was not a correct approach.

Indeed the correct approach was explained by this court in Compassi (1987) 9 Cr App R (S), in which the court quashed a deportation recommendation imposed on a man who pleaded guilty to unlawful wounding after having struck another man in the face with a beer glass.  Rose J (as he then was), giving the judgment of this court, said that:

'The question which has to be asked in relation to whether or not it is appropriate that a deportation order should be made is whether or not he constitutes a genuinely and sufficiently serious threat to the requirements of public policy.'"

11.      Finally on this point, counsel referred to AG v Abreu [2007] JRC 081 where Clyde-Smith, Commissioner stated that the Court had been "much assisted" by the above passage from Ali Maftonian to which it had been referred by defence counsel.

12.      We do not disagree with any of the sentiments expressed in these authorities, but we think that two points deserve emphasis.  First, the requirements of public policy in Jersey are set by this Court and not by the courts of England and Wales.  What may be the requirements of public policy in England are not necessarily the requirements of public policy in Jersey.  As mentioned by Beloff JA in Camacho, this Court has often expressed its approach to a recommendation for deportation in terms of whether an abuse of privilege is in question.  In Mendonca v AG [2006] JRC 132 the Superior Number, sitting as a Court of Appeal, stated:-

"It is a privilege to live in this Island.  If a person who is a foreign national conducts himself in such a way that he abuses that privilege he is liable to be deported"

Secondly, it is an incorrect approach to ask whether the offence is serious enough to merit a recommendation for deportation.  The gravity of the offence or offences is but one factor, even if often an important factor, in determining whether the continued presence of the defendant in the Island is detrimental to the interests of the community.

13.      Mr Haines also submitted that it was relevant that this was the first occasion on which a Magistrate had made a recommendation for deportation.  Defendants were entitled, he said, to a consistency of approach, and the Magistrate's Court had no experience of making recommendations for deportation.  He submitted, in effect, that this was an inappropriate innovation.  We were not impressed by this argument.  If nothing is done which has never been done before, there will be no progress. 

14.      Counsel's stronger point was that the process before the Magistrate's Court was less structured than in the Royal Court.  In particular he drew attention to the absence of a Crown Advocate offering the conclusions of the Attorney General as to the appropriate sentence to be imposed.  He cited another passage from the Judgment of Beloff JA, to which we have already referred, in Camacho v Attorney General where the learned Judge of Appeal stated at paragraph 49 in relation to deportation that it was:-

"only fair to someone whose modus vivendi is at risk to give the fullest procedural protection"

It is true that the Magistrate sits alone whereas the Royal Court is composed of a Presiding Judge and two Jurats.  It is also true that the Attorney General or his representative offers "conclusions" in the Royal Court.  On the other hand it could be argued that the absence of a Crown Advocate in the Magistrate's Court operates to the benefit of the defendant.  The defendant must clearly be put on notice (as he was in this case) that a recommendation for deportation is under consideration, and must have the opportunity through counsel to make submissions to the Magistrate.  But at that stage the defendant, or his counsel, has the floor to himself.  There is no-one to advance the arguments as to why the public interest demands that a recommendation for deportation should be made.  Furthermore, whether the argument takes place before the Magistrate's Court or the Royal Court, there is a right of appeal to a higher tribunal.  Despite the eloquent submissions of Mr Haines, we are satisfied that the "fullest procedural protection" is available to a defendant where the Magistrate is considering a recommendation for deportation.

15.      We accordingly reject the submission that the Magistrate's Court ought not to consider the making of a recommendation for deportation.  The Magistrate's Court is composed of competent, professional judicial officers who are well able to weigh in the balance the competing arguments for and against a recommendation for deportation.  Magistrates have jurisdiction to impose up to twelve months in prison.  The Magistrate's Court is a public authority within the meaning of the Human Rights (Jersey) Law 1998 and is under a continuing obligation to respect convention rights in all cases before it.  The statute confers a jurisdiction on the Magistrate's Court to make a recommendation for deportation.  We can find no compelling reason of public policy why a Magistrate should not, in an appropriate case, make such a recommendation.

16.      We turn to the second limb of counsel's argument, namely whether the Assistant Magistrate erred in the conclusion at which she arrived.  Mr Haines complained that he had not had sight of a note prepared by the Immigration Officer following an interview of the appellant two days before he was served with the requisite notice under the Immigration Act.  Counsel suggested that this note might have been with the papers before the Assistant Magistrate.  We find no force in this complaint.  All the matters referred to in the note, bar one, are to be found in the social inquiry report prepared by the Probation Service or the report of the Alcohol and Drug Service.  Counsel had access to both those reports.  The exception is a reference to a possible disqualification in Poland which the appellant had drawn to the attention of the Immigration Officer.  The Assistant Magistrate unsurprisingly made no reference to that fact in her sentencing remarks; we do not think it was in any way relevant.

17.      It is clear that the Assistant Magistrate concluded that there was a high risk of the appellant re-offending and driving a vehicle whilst under the influence of alcohol.  She took the view that he constituted a "high risk to the public".  That was one of the reasons why she disqualified him for holding a driving licence for seven years.  Bearing in mind his admission that he was an alcoholic, and that during the preceding seven months he had shown a repeated inability to heed the orders of the Court and a propensity to drive a vehicle whilst grossly intoxicated, that conclusion seems to us entirely justifiable.  In all the circumstances the Assistant Magistrate's decision that the appellant's continued presence in the Island was detrimental to the interests of the community cannot be impugned.  Counsel conceded that no human rights issue arose under the second limb of the Nazari/Camacho test.  It was for all those reasons that the appeal was dismissed.

Authorities

Immigration Act 1971.

European Convention on Human Rights 2000.

Camacho v Attorney General [2007] JLR 462.

R v Ali Maftonian [2005] EWCA Crim 1088.

AG v Abreu [2007] JRC 081.

Mendonca v AG [2006] JRC 132.

Human Rights (Jersey) Law 1998.