Case No: 201401499 B1
Neutral Citation Number: [2016] EWCA Crim 57
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CARDIFF
His Honour Judge Richards 
T20137180 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/03/2016
Before :

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR. JUSTICE GLOBE 
and
MRS JUSTICE CHEEMA-GRUBB 

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Between :

	KENNETH BOATENG	Appellant	
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	THE QUEEN	Respondent	

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Daniel Bunting for the Appellant
Benjamin Douglas-Jones for the Respondent

Hearing date : 4 February 2016

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Judgment
Mr Justice Globe :

1.	On 7 June 2013, at Cardiff Crown Court, the appellant and his co-defendant wife, Catherine Kyie (CK), pleaded guilty to all counts on a 14 count indictment that alleged a number of documentation offences contrary to s.24A(1)(a) of the Immigration Act 1971, s.25(1) of the Immigration Act 1971, s.25 of the Identity Cards Act 2006 and s.4 of the Identity Documents Act 2010. The appellant pleaded guilty to 8 counts, namely, counts 2-7, 12 and 13. CK pleaded guilty to 7 counts, namely, counts 1, 3, 8-11 and 14. On 2 July 2013, they were sentenced to a total of 12 months and 15 months imprisonment respectively. The appellant appeals against conviction in relation to all 8 counts by leave of the single judge and the Full court. Neither counsel who appears before us appeared in the court below. 

Facts

2.	The respondent’s case was that the appellant and CK were Ghanaian nationals and, at all material times, the appellant knew that CK had falsely assumed the identity of another Ghanaian national, Joyce Pokuaa (JP), after she died in 2003. JP additionally had Dutch citizenship, which thereby gave her citizenship of the European Union (EU). 

3.	In June 2005, through CK’s assumption of JP’s citizenship, CK obtained a Dutch identification card and a Dutch passport in the name of JP. 

4.	In July 2005, the appellant applied for two residence cards. One was for himself. The other was for their daughter, Ama Korantem Boateng (AKB). A residence card confirms the rights of a family member of a European Economic Area (EEA) national. It takes the form of a Home Office stamp in a non-EU passport. The appellant’s two applications were successful and were obtained on the false premise that the appellant and AKB were entitled to reside in the United Kingdom (UK) by virtue of CK’s (falsely assumed) status as an EEA national. 

5.	In 2006, he used his passport to return to the UK on three occasions and in order to open a bank account. 

6.	In 2011, through a similar process, he applied for a certificate of naturalisation which was obtained in early 2012. 

7.	Upon being questioned, the appellant stated that, at all material times, he genuinely believed his wife was JP and not CK. The respondent’s case was that the appellant’s assertion lacked credibility given various matters, most particularly inconsistent answers he had given in interview under caution concerning when and where the appellant had met CK; the alteration of the date of marriage on the marriage certificate; the finding in his home of a receipt for £3,000 concerning the sale of land in Ghana in the names of the appellant and CK; and a card addressed to “Ken, Catherine and Family”.

Indictment

8.	Counts 2 and 12 alleged offences, contrary to s.24A(1)(a) of the Immigration Act 1971, of the appellant seeking or obtaining leave to enter or remain in the UK by the deception of applying to the Home Office for a residence card for himself (count 2) and for a certificate of naturalisation (count 12). 

9.	Count 3 alleged an offence, contrary to s.25(1) of the 1971 Act, of the appellant facilitating the commission of a breach of s.10(1)(c) of the Immigration Act 1999 by obtaining leave for AKB to enter or remain in the UK by the deception of applying to the Home Office for a residence card for AKB. 

10.	Counts 4 to 7 alleged four offences, contrary to s.25(1), (2) and (6) of the Identity Cards Act 2006, of possessing identity documents with intent. Counts 4, 5 and 7 related to the appellant using his passport containing the stamp on 7 January 2006, 18 March 2006 and 2 November 2008 respectively to return to the UK. Count 6 related to the appellant using the same passport and stamp to open a HSBC bank account on 24 August 2006.

11.	Count 13 alleged an offence, contrary to s.4 of the Identity Documents Act 2010, of the appellant being in possession or control with intent of an identity document, namely a British passport in his own name that he knew or believed to have been improperly obtained in February 2012. 

Grounds of appeal

Ground 1 – residence and naturalisation do not amount to leave to remain – counts 2 and 12

12.	Mr Bunting submits that, by making the applications referred to in counts 2 and 12, the appellant did not seek or obtain leave to remain in the UK for the purposes of s.24A(1)(a) of the Immigration Act 1971. 

13.	Mr Douglas-Jones concedes that the appellant did not seek or obtain leave to remain in the UK for the purposes of the 1971 Act and was thereby indicted under the wrong subsection. He was indicted under ss.(1)(a), namely, by his deception “he secures or seeks to obtain leave to enter or remain in the UK”, whereas he should have been indicted under ss.(1)(b), namely, by his deception “he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him”. By s.24A(2)(a), “enforcement action” includes “the giving of directions for his removal from the UK under……s.10 of the Immigration and Asylum Act 1999”. By regulation 21(3)(a) of the Immigration (EEA) Regulations 2000, a person may be removed from the UK if he is not or has ceased to be “(i) a qualified person; or (ii) the family member of a qualified person.” The appellant was neither a qualified person nor the family member of a qualified person. By regulation 26(2), a decision to remove a person from the UK under regulation 21(3)(a) “is to be treated as if he were a person to whom s.10(1)(a) of the 1999 Act applied, and s.10 of that Act (removal of certain persons unlawfully in the UK) is to apply accordingly”. In such circumstances, Mr Douglas-Jones contends that, applying the principles derived from cases such as R v Graham [1997] 1 Cr App R 302 and R v Stocker [2014] 1 Cr App R 18, reference to the wrong subsection was “a mere drafting or clerical error” (Graham at 309D) and was “a purely technical defect” (Stocker at [42]) and the convictions on counts 2 and 12 are thereby safe.

14.	Mr Bunting raises a number of potential difficulties with indicting under ss.(1)(b). First, there is no evidence that the appellant was or was proposed to be the subject of any such enforcement action. Second, even if action were to have been taken by the Home Secretary under the regulations for the appellant’s removal, s.24A(1)(b) would not have applied because, although he would have been treated as if s.10 applied, the underlying action taken against him would be under the regulations rather than s.10. Third, even if s.24A(1)(b) did potentially apply, that is not the offence on the indictment. The appellant “could not in law be guilty of the offence charged on the facts relied on (and therefore) no conviction of that offence could be other than unsafe” (Graham at 309E and Stocker at [38]). 

15.	We do not find it necessary to resolve either the evidential issue or the interpretation issue in relation to s.10 because, in our judgment, the pleading issue cannot possibly be regarded as “a mere drafting or clerical error” or “a purely technical defect”. The counts were “fundamentally flawed” (Stocker at [43]). They breached what was then Rule 14.2 of the Criminal Procedure Rules in that they did not identify the correct legislation and did not contain such particulars of the conduct constituting the commission of the offence as to make it clear what the prosecutor was alleging against the defendant. Each count alleged the wrong subsection in the statement of offence and the wrong details in the particulars of offence. The jury could not have been given any legal directions in relation to the counts as pleaded. The judge would have had to direct the jury to ignore everything that appeared on the face of the indictment in relation to these counts. No direction could have been given that the appellant could be convicted of an offence under s.24A(1)(b) by way of alternative to an offence under s.24A(1)(a). It is not an alternative offence. Further, it was never suggested by the prosecution in the lower court that s.24A(1)(b) was the offence it intended to pursue. The possibility was not raised until after the appeal had been instituted. Ground 1 in relation to counts 2 and 12 succeeds.     

Ground 2 - power to remove family members - count 3

16.	The statement of offence alleged in count 3 was doing an act to facilitate the commission of a breach of UK immigration law by a non-EU citizen, contrary to section 25(1) and (6) of the Immigration Act 1971. The particulars of offence refer to the breach of immigration law being s.10(1)(c) of the Immigration Act 1999. Mr Bunting contends that count 3 is as defective as counts 2 and 12.  

17.	Mr Douglas-Jones concedes that the Act has been wrongly stated. It should have been the Immigration and Asylum Act 1999 not the Immigration Act 1999. As to that, Mr Bunting realistically accepts that this is a “technical error” which cannot have any fundamentally adverse impact on the adequacy of the charge. He relies on a more substantial alleged defect. He submits that, even with the statute corrected, the appellant had not facilitated the commission of a breach of immigration law. The immigration law relied on is s.10(1)(c) of the 1999 Act. However, that section relates to removal directions and, as such, it is a procedural section rather than a section that relates to substantive immigration law. Reliance is placed on R v Kapoor [2012] EWCA Crim 435 in support of the distinction. In Kapoor, it was held that the definition of “immigration law” within s.25 of the Immigration Act 1971 covered laws which control the entitlement of persons who are not UK nationals to enter, transit across or be in the UK and this needed to be contrasted with the procedural aspects of the manner in which such rights may be sought to be exercised [35-39]. 

18.	Mr Douglas-Jones concedes that the particularised breach of immigration law alleged in count 3, namely s.10(1)(c), was wrongly identified. The breach of immigration law of facilitating AKB remaining in the UK without leave to remain stemmed from s.3(1)(b) of the 1999 Act and not s.10(1)(c). Strictly, therefore, it was that section that should have been referred to in the particulars of offence. Nonetheless, the statement of offence was correct and S.10(1)(c) provided the mechanism of removal under s.3(1)(b) and was therefore not irrelevant. Furthermore, although the reference to s.10(1)(c) was in error, the particulars of offence were otherwise accurate and, if the appellant was not sure which Act was alleged to have facilitated the commission of an immigration law, he could have sought further particulars and would then have been referred to s.3.   

19.	In our judgment, the errors in the drafting of count 3 are less significant than those already referred to in counts 2 and 12. In the context of Rule 14.2, the statement of offence identified the correct legislation and the particulars of offence contained particulars of the conduct constituting the commission of the offence so as to make it clear what was being alleged against the appellant. In the context of Graham and Stocker, the error in relation to s.10(1)(c) was akin to a “mere drafting or clerical error” and did not invalidate the count. Ground 2 in relation to count 3 fails. 

Ground 3 - Home Office stamp is not an identity document – counts 4 to 7
Ground 6 – non-existent offence – counts 4 and 5 

20.	Ground 6 relates solely to counts 4 and 5. Counts 4 to 7 were all indicted under s.25 of the Identity Cards Act 2006. The offences in counts 4 and 5 were stated to have been committed on 7 January 2006 and 18 March 2006 respectively. S.25 of the Act did not come into force until 7 June 2006. Mr Douglas-Jones accepts an error was made and those convictions cannot be maintained. Ground 6 therefore succeeds in relation to counts 4 and 5. 

21.	Ground 3, now effectively limited to counts 6 and 7, concerns what in oral submissions was accepted by Mr Bunting to be a technical argument about whether a passport with a Home Office resident card stamp upon it, which was obtained by deception, amounted to being in possession of a false “identity document” contrary to s.25 of the Identity Cards Act 2006. 

22.	Mr Bunting relies upon s.25(10) of the Act which states that “identity document” has the meaning given by s.26 and the definition within S.26 does not include reference to a stamp. His submission is therefore that the residence card stamp in the passport was not an “identity document” within the meaning of the Act. It was the passport itself which was the “identity document” and the stamp within it did not modify the passport so as to render it false. In circumstances where the passport was not false, no offence was therefore made out in any of the counts 4 to 7 under s.25 of the Act.

23.	Mr Douglas-Jones relies upon s.42 of the Act, the interpretation section, where a “document” is stated to include a stamp. He further relies upon the fact that a written note accompanying the indictment made it clear the allegation was that the appellant had obtained a Home Office stamp by deception and that he had it in his Ghanaian passport with intent. The particulars of offence made it clear how the stamp was used in each case within the passport and with intent. Upon proof by the prosecution that the appellant obtained the Home Office stamp by deception, the appellant’s Ghanaian passport would have been rendered false by the affixation to it of the unlawfully obtained residence stamp, which thereby rendered the passport a false “identity document” pursuant to s.25(1). 

24.	In our judgment, the respondent’s contentions are to be preferred. Ground 3 fails in relation to counts 4 to 7.

Ground 4 – dishonesty – count 3

25.	Mr Bunting submits that, in order to be guilty of the offence of facilitating a breach of immigration law under s.25 of the Immigration Act 1971, the person whose entry into the UK is facilitated must have acted dishonestly. In the context of count 3, that person was the appellant’s two year old daughter, who could not have acted dishonestly. 

26.	Reliance is placed on R v Kaile [2009] EWCA Crim 2868. The appellant in that case was successful on the ground that the trial judge had failed to direct the jury that, before convicting the appellant, it had to be satisfied that the individuals whose entry into the UK the appellant sought to facilitate were themselves committing a breach of immigration law.

27.	Kaile needs to be considered within its own context as a fact specific case. All that happened in Kaile was that counsel were explaining how the case had been put in the lower court. They explained that the breach of immigration law relied on in the case under s.25 was to be found in s.24A or s.26 of the Act, each of which included an element of mens rea. As such, on the facts of Kaile, dishonesty needed to be proved on the part of the person who was being facilitated. What was not being decided in Kaile was that, in order for there to be the commission of an offence under s.25, there had to be dishonesty by the person who was being facilitated. The breach of immigration law relied on for a prosecution under s.25 may vary from case to case. The particular immigration law being breached may or may not include an element of dishonesty. Here, the underlying immigration law relied on was a breach of s.3 of the Immigration Act 1971. That is a provision which does not include a requirement to prove dishonesty. Ground 4 therefore fails in relation to count 3.

Ground 5 – validity of the pleas entered – all counts

28.	It is the appellant’s case that, for the whole period spanned by the indictment, he believed that his wife was JP who was a Dutch citizen and that, throughout all of the proceedings in the court below, he kept telling his solicitors and both counsel who were representing him that that was his belief. He was given wrong advice that he had no defence in law to counts 2 and 12, thereby making his pleas a nullity. Further, in relation to all counts, including counts 2 and 12 if his pleas were not a nullity, he was given insufficient advice and was effectively told he had to plead guilty in circumstances where his freedom of choice was improperly narrowed. As such, he should not be bound by his pleas. His convictions are unsafe. 

29.	In order to examine the issues of nullity and safety as a result of alleged wrong and/or insufficient legal advice, privilege having been waived, we have considered the appeal papers, including such contemporaneous documents that still exist, have heard oral evidence from the appellant and the two counsel who represented him in the lower court, namely, Mr Meirion Davies and Mr Eugene Egan and have received additional written submissions following the receipt of that evidence from Mr Bunting and Mr Douglas-Jones. 

30.	It is necessary to examine the chronology of events.

31.	On 13 May 2013, a conference took place at the chambers of Mr Meirion Davies. Those present were the appellant, a fee earner from the appellant’s solicitors and Mr Meirion Davies. The fee earner’s file note states Mr Meirion Davies was aware of the fact that the prosecution case was that the appellant had used CK’s false identity in order for him to come to the UK and to stay here. However, by 13 May, no indictment had been preferred. As a result, Mr Meirion Davies stated that no precise advice in relation to pleas could be given until he had seen a copy of the indictment. For that reason, he stated that the PCMH that was listed for 17 May 2013 might have to be adjourned. We are satisfied that no decisions as to plea were taken at the conference held on 13 May.

32.	On 17 May 2013, the PCMH was adjourned to 7 June 2013. The solicitor’s representative’s file note confirms that an indictment was produced, but it was difficult to marry up the counts with the 600 pages of case papers which had been served as the prosecution case. The note adds that “although both defendants would be eager to plead today”, counsel were reluctant to advise to plead guilty until further work had been done on the case. We are further satisfied that no decisions as to plea were taken on 17 May. No satisfactory explanation has been provided as to why the appellant, in addition to his wife, was eager then to plead guilty.

33.	On 30 May 2013, Mr Roger Griffiths, who was prosecuting, produced an explanatory note in relation to the indictment for the assistance of defence counsel and the judge.  

34.	On 7 June 2013, at the adjourned PCMH, both defendants pleaded guilty to all counts. The solicitor’s representative’s file note refers to a conference that took place between the appellant and Mr Meirion Davies prior to the hearing, during the course of which Mr Meirion Davies advised the appellant that he would have to plead guilty to all counts and the appellant accepted that advice, albeit there was a sticking point over count 13. The note goes on to record that the solicitor’s representative then advised the appellant to consider counsel’s advice very carefully and, if he were to be found guilty at a trial, some if not all of the credit he may have obtained by pleading guilty to the rest of the indictment may be eroded. The appellant accepted the advice and pleaded guilty to all counts. The file note concludes with the observation that the appellant was unhappy about pleading guilty to count 13. There is no reference to him being unhappy about pleading guilty to any other count.

35.	On 11 June 2013, the appellant sent an email to his solicitor expressing his disappointment about Mr Meirion Davies, who he alleged had bullied him to enter guilty pleas. At one point in the email, he said he had reservations throughout and challenged the barrister, but the barrister insisted that was the law and pleading guilty was what was required. At another point, he said the barrister said he should plead guilty so that all matters should be cut short. Further on, he said the barrister told him he had no defence so he should plead guilty. At another point, he said that, in the middle of pleading guilty in court, he shouted “not guilty” and the barrister and solicitor turned round aggressively bullying him into submission. The full transcript of the arraignment is in the papers. There is no reference to such an incident in the note. Mr Meirion Davies denies that it happened. We are satisfied that, at the very least, this aspect of the appellant’s account and evidence is wrong.

36.	In an advice dated 13 June 2013, Mr Meirion Davies stated that he did advise the appellant that “he had to plead guilty to the new indictment that had been preferred”. Taken in isolation, those words suggest that the appellant had no option but to plead guilty to all counts. However, when the advice is looked at as a whole, it is apparent that this is not a correct interpretation. In relation to counts 2 and 12, Mr Meirion Davies advised that the appellant’s assertion that he was unaware of his wife’s real identity was not a defence in law to an offence under s.24A of the Immigration Act 1971. On these two counts, it is therefore correct that the appellant was advised that “he had to plead guilty”. That is not the situation with the other counts. In relation to them, the advice was that the weight of the evidence was such that it was in the appellant’s best interests for him to plead guilty. In relation to all of those counts, the appellant therefore had a choice as to whether or not to plead guilty, although the advice was that it was probably in his best interests to gain the benefit of guilty pleas rather than to be convicted at trial. Mr Meirion Davies denied that he had bullied the appellant, although he stated that if the appellant considered he had been too direct with him and wanted to be represented by someone else then steps could be taken to enable that to be done so that consideration could be given to making an application to vacate the pleas. 

37.	Mr Meirion Davies has since realised that he was wrong about the appellant having no defence in law to counts 2 and 12. To this extent, he accepts that part of his advice to the appellant on 7 June was in error for which he apologised. However, he maintains that the rest of his advice was correct and in any event the evidence on counts 2 and 12 was as strong against the appellant as it was on the other counts. To this extent, his overall advice would have remained the same. Having heard evidence from the applicant and Mr Meirion Davies, we prefer the evidence of Mr Meirion Davies to that of the appellant as to the accuracy of what occurred at the PCMH on 7 June.  

38.	As a result of the appellant’s dissatisfaction with Mr Meirion Davies, the appellant’s solicitors arranged for him to be represented by a different barrister. A conference took place on 27 June with Mr Egan. The solicitor’s conference attendance note commences by stating that, although Mr Egan shared the same building as Mr Meirion Davies, they were both independent barristers. The note next states that Mr Egan had considered the written advice of 13 June and he agreed with the understanding of the law by Mr Meirion Davies. Mr Egan has also since realised that he was wrong about the appellant having no defence in law to counts 2 and 12 and he too apologised for that error. Nonetheless, he told us that that error does not affect the rest of the advice that he gave. 

39.	The file note, with which Mr Egan agrees, makes it clear that Mr Egan pointed out certain important evidential elements of the case against the appellant, including the two documents found at his home, namely, the receipt in the name of himself and CK and the card addressed to “Ken, Catherine and family”. Mr Egan also pointed out that, if the appellant had a trial, then his wife would almost inevitably have to be called as a witness and she would have to admit to being a liar and a fraudster; the result would be that her position might be worsened. He also explained the options that were open to the appellant. He could proceed to sentence on 1 July and accept he was guilty or he could try and vacate his pleas. Mr Egan expressed the view that in his opinion he would not be able to persuade the judge that the pleas should be vacated. He added that if the appellant was going to say that he was bullied into pleading guilty, then Mr Egan would not be able to represent him because he was a colleague of Mr Meirion Davies. The note then states that the appellant accepted that it would not be wise for him to vacate his pleas and confirmed he was happy to proceed to sentence. He did not want to lose his maximum credit for his guilty pleas and he did not wish to make the case against his wife more serious.

40.	The appellant’s evidence is very similar to what has been recorded in the solicitor’s file note except that he maintains that he wanted to change his plea and Mr Egan would not let him do so. Mr Egan specifically denies that he would not let the appellant change his plea. He told us that he made it abundantly clear that it was the appellant’s choice and decision. He said he always tells a defendant that it is the defendant’s name on the indictment and it was therefore for the defendant to make the decision and not for him as counsel to make the decision. That is a line that cannot be crossed. Where there are differences of recollection, we prefer the evidence of Mr Egan to that of the appellant. We note that Mr Egan’s evidence is substantially supported in material respects by the contemporaneous solicitor’s conference attendance note. 

41.	At the sentence hearing on 1 July, the case was put back in the list because a discussion needed to take place about what the appellant had told the report writer of the pre-sentence report. What the appellant was reported as having said was that he was not aware of his wife’s actions and did not feel he was guilty of the offences, but he had been advised to plead guilty by his legal team. Mr Egan gave evidence that the confusion had arisen because the interview with the probation officer had occurred before the conference had taken place on 27 June. The solicitor’s file note confirms that is what happened. Having clarified that matter, the case then proceeded to sentence without any application being made to change the appellant’s pleas. 

42.	The appellant’s account is that, in conference prior to the sentence taking place, he was still maintaining that he didn’t have knowledge of his wife’s actions. He says he never withdrew that assertion and he was never given a second chance to change his pleas. Mr Egan’s evidence is in accordance with the file note. He says he was never given instructions to vacate the pleas on the day of sentence. Again, we prefer the corroborated account of Mr Egan to that of the appellant.

43.	Mr Bunting submits that, in relation to counts 2 and 12, Mr Meirion Davies gave wrong advice and the guilty pleas to those counts should be treated as a nullity. Further, when Mr Egan became involved, the appellant was left with the view that it was either not possible at all or alternatively it was not a realistic possibility for him to be able to change his pleas. Such opportunity as he was given to change his pleas on those counts was so limited that his mind did not go with any decision to proceed to sentence.  The result is that the pleas can therefore still be considered to be a nullity.

44.	In relation to the safety of the convictions on all counts, Mr Bunting submits that it is important to put the whole matter into context. The appellant faced an 8 count indictment to which he pleaded guilty on legal advice. Two of those counts (counts 4 and 5) were counts that, at the time of their alleged commission, were not counts known to law. Two other counts (counts 2 and 12) are unsafe by reason of substantial errors in the indictment. If that is correct, then the appellant has been incorrectly advised to plead guilty to 4 counts, half the indictment, which pleas were fundamentally flawed. Further, even if the pleas to counts 2 and 12 are not to be regarded as a nullity, it would have been confusing to the appellant to be told there was a potential defence to some counts and not to others when there was similarity in the terminology within the particulars of offence. 

45.	In such circumstances, there must come a point where, in the light of the factual backdrop, it cannot be proper to hold the appellant to the remainder of the pleas. Further, Mr Bunting submits that the prosecution case was not a strong one and there were various defence points that could have been made about whether or not the appellant ever did know his wife’s name was CK. The issue of whether the appellant knew of his wife’s identity was a jury matter and it cannot be said that the appellant’s account is so flawed that it can be concluded that a jury would inevitably reject it. As a result, it is submitted that the convictions on all counts are unsafe and should be quashed.

46.	Mr Douglas-Jones, in his final written submissions, concedes that, by applying the principles in R v Mateta, [2013] EWCA Crim 1372 [2014] 1 WLR 1516, [2013] 2 Cr App R 35, the appellant’s convictions in respect of counts 2 and 12 are arguably unsafe, and by applying the principles in R v Nightingale [2013] EWCA Crim 405, [2013] 2 Cr App R 7, the pleas to counts 2 and 12 are arguably nullities.

47.	The principles in Mateta were distilled from a number of previous decisions of this Court. In R v Saik [2004] EWCA Crim 2936 the test for a plea to be held a nullity was a requirement that the facts were so strong as to demonstrate that there was no true acknowledgement of guilt with the advice going to the heart of the plea so that it was not a “free plea” [at 57].  In R v Mohamed Abdalla, R v V(M), R v Mohamed (Rahma Abukar), R v Nofallah [2011] 1 Cr App R 35, [2010] EWCA Crim 2400, it was stated (at [12]) that it was important not to water down the underlying concept of the jurisdiction so as to bring nullity into play purely on the basis of advice alleged to be wrong. For those circumstances, there remains a basis on which this court can intervene which is firmly grounded in the safety of the conviction. In R v Boal [1992] 95 Cr App R 272, Simon Brown LJ (as he then was) made it clear that only most exceptionally will this court be prepared to intervene in such a situation. Only where it believes the defence would “quite probably have succeeded” and concludes, therefore, that a clear injustice has been done.

48.	Mateta confirmed [at 24], albeit in a slightly different factual scenario (failure to advise on a s.31 defence to a s.25 offence), that if an accused’s representatives fail to advise him about the availability of a s.31 defence, on appeal to this court, the court will assess whether the defence would “quite probably have succeeded”.

49.	It is now common ground that Mr Meirion Davies and Mr Egan advised the appellant wrongly in relation to counts 2 and 12. Leaving aside the reasons why we have already indicated that ground 1 succeeds in relation those counts, both counsel failed to advise the appellant that the element of deception inherent in an offence contrary to s.24A(1) requires the prosecution to prove dishonesty. We are therefore in agreement with the proposition that, on the facts, the appellant was given advice that went to the heart of the plea and he was not allowed a “free plea”. The principles in Nightingale do not add to the principle of a defendant having to be free to choose whether to plead guilty or not guilty. 

50.	That alone, though, is not sufficient. As stated in Nightingale [at 11-12] the principle of choice does not mean a defendant has to be free from the pressure of the circumstances in which he has to make that choice and it is the duty of an advocate to give realistic and forthright advice about the prospects of successfully contesting the charges. Here, in our judgment, the prosecution evidence was strong and Mr Meirion Davies and Mr Egan were right to point out the overall strength of the case. That strength affects all of the counts because the appellant’s defence of lack of knowledge flowed throughout the whole case. We are not satisfied that this is a case where the defence of lack of knowledge would quite probably have succeeded. Far from it, the appropriate and proper advice that the appellant was given was that the defence of lack of knowledge would quite probably have failed with consequential adverse consequences in terms of sentence for both himself and his wife. For this reason, notwithstanding the fact that, in part, the appellant was wrongly advised, we are not satisfied this is a case where the defence would quite probably have succeeded or a clear injustice has been done. The pleas to counts 2 and 12 were therefore not nullities (although unsafe) and the convictions on all counts covered by this Ground are not unsafe for that reason alone. Ground 5 therefore fails.

Conclusion

51.	For the above reasons, the counts that must be quashed are counts 2 [ground 1]; count 4 [ground 6]; count 5 [ground 6]; and count 12 [ground one]. To this extent and this extent only the appeal is allowed. All other grounds are dismissed.