Practice and Procedure


PUBLISHED November 3, 2003

In all the circumstances, a judge's decision to recommend deportation following sentences for conspiracy to defraud being served could not be faulted, as he had performed the correct balancing exercise and taken into account the guidelines in R v Nazari (1980).Appeal with leave of the single judge, against the judge's recommendation of deportation following sentences for conspiracy to defraud being served. The defendants ('B', 'C' and 'D') pleaded guilty at Manchester Minshull Street Crown Court on 15 September 2003 and were sentenced as follows, B and C to 12 months' imprisonment and D to 4 months. The defendants were all from the Congo and entered the UK in 2001, their asylum claims were all rejected. B and C formed a relationship and had a child in February 2003. The conspiracy involved the cashing of forged giro cheques using stolen or false credit cards as identification. Following a surveillance operation D was observed driving B and C to three different post offices. B and C entered the post offices and cashed giros whilst D waited in the car. The defendants pleaded guilty on written bases, accepted by the prosecution for the purpose of sentencing. When sentencing the judge stated that state benefits were under enormous pressures and every penny was needed, the crime was not victimless. He accepted that the defendants were "foot soldiers" but had, nevertheless, played an important part in the conspiracy and after consideration of the guidelines in R v Nazari (1980) 71 Cr App R (S) 87, recommended deportation. The defendants appealed the deportation recommendations on the grounds that their presence in the UK was not a detriment and deportation would have an adverse effect on innocent parties.HELD: (1) When making the decision to recommend deportation, the judge carefully considered the matter. He had to perform a balancing exercise and take into account the guidelines in R v Nazari (supra). He had to consider the seriousness of the defendant's wrongdoing and had to consider the effect of deportation on innocent persons. The potential damaging effect on innocent persons was by no means as great as was usually considered given that B and C would both be deported and could take their child. (2) The judge's decision could not be faulted, he conducted a balancing exercise between the seriousness of the criminal conduct against matters raised on behalf of the defendants. The offences were very serious and it was appropriate to recommend deportation, whether that deportation recommendation was implemented was dependant on the Home Office.Appeal dismissed.

[2003] EWCA Crim 3246