Khalif v Isleworth Crown Court

Citation – [2015] EWHC 917 (Admin)

Date – 31st March 2015

Keywords – Conviction, s2, Guilty plea, Crown Court

Overview – Judicial Review of a decision of the Crown Court to not state a case on application to appeal out of time from a guilty plea dismissed.

Summary – K was a Somali who arrived in the UK on 19th February 2006 without a passport (stating that it had been handed to an agent). He was charged with a s2 offence, pleaded guilty in the magistrates’ court and was sentenced to 3 months. 

His circumstances were that he had left Somalia by lorry to Eritrea on 3rd February 2006 as members of his family had been killed. He flew to the UK with several transfers, having left Eritrea on 17th February. An agent gave him a passport at each stop, which was handed back. The letter to K afterwards stated “You confirmed that you never applied for or held your own passport“. 

Subsequently he was recognised as a refugee and, after being refused British Citizenship due to this conviction, received advice that he had a defence, leading to an application to the Crown Court to appeal out of time.

The application was refused as “Any application to vacate the guilty plea would have to be based on advice given seven years ago, and it is, in my judgment, far too late to investigate that properly“. There then followed an application to state a case, which was also refused.

The High Court refused the application for a Judicial Review of that decision. They set out the following seven factors to be considered in an application such as this :

i) The length of time of the delay;

ii) The reasons for the delay;

iii) The apparent strength of the underlying case on its merits;

iv) Whether a substantial injustice may have resulted;

v) Whether the conviction in question is now spent;

vi) In an equivocal plea case, the ability to investigate effectively what occurred at the time of the guilty plea;

vii) The practicalities after the elapse of time of there being an effective retrial. In ordinary cases there is a rehearing on an appeal to the Crown Court; in equivocal plea cases there is the possibility of a trial in the Magistrates’ Court. The interests of justice encompass not only those of the accused but also of the public in having an effective trial.

It was specifically stated that even if there were strong prospects of success, then this would not be sufficient, of itself, to mean that an application out of time should be allowed. The solicitor’s firm was no longer trading and neither the Court file nor the solicitors file were available. In light of that, it was held that there was no evidence of an unequivocal plea. If this were to be investigated, then it should be by the CCRC.

Comment –

(1) s2 – it is unclear whether the Court properly set out the nature of the defences to s2 (in fairness, this is because the judgment in Mohammed is equally unclear). The nature of the defence is set out at paras 6 and 16. Specifically, it is stated that “the reference in section 2(4)(c) encompassed both a genuine and a false immigration document” which is incorrect. The ‘document’ in s2(4)(c) is a genuine immigration document.

(2)  Equivocal Plea – We don’t know which aspects of K’s history were accepted, but in light of the fact that he was recognised as a refugee and that his account is, in essence, an everyday account of life in Somalia at the time, it can be assumed that it was, or would be, accepted.

Equally, there is nothing in the solicitor’s letter that strikes as odd. The critical line is at the end – “You confirmed that you never applied for or held your own passport“. Again, this would accord with the situation prevailing in Somalia at the time. Putting the two together however, this of itself (if told to the Court) would be sufficient to raise the question of whether the plea was equivocal. 

(2) CCRC – it is noted by the Court and Crown that K could make an application to the CCRC. It is likely that this will be met with more sympathy than the Crown Court. K would probably have been best off applying there before the Crown Court (and certainly before the Administrative Court). 

Judges – Burnett LJ, Lewis J