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AG Ref (Nos 49 and 50 of 2015) (Bakht)

Citation – AG Ref (Nos 49 & 50 of 2015) – [2015] EWCA Crim 1402

Date – 9th July 2015

Keywords – Sentence, s25, bogus college, Sentencing Guidelines

Overview – AG Ref allowed as the Sentencing Guidelines for Fraud do not reflect the seriousness of immigration offending

Summary – B and H were convicted after trial of conspiracy to commit a s25 offence. B was a part-time lecturer and H an external examiner.

177 students had submitted applications using false documents. Many were recruited through a company set up by B. Some were aware that they were obtaining false certificates issued by H, others paid course fees and attending lectures believing it to be a genuine and accredited course.

The total amount charged to each beneficiary appeared to have been between £1,500 and £4,000. The Judge estimated the value as around £300,000, or more.

Several students who believed that they were paying for legitimate courses had lost their right to remain, and spent a large sum of money trying to regularise their position. 

The conspiracy was over a period of a year

The Judge approached the case on the basis of the Sentencing Guidelines for Fraud and sentenced B to 5 years and 2½ years for H. 

The Court of Appeal said that it was simply not appropriate to use the Fraud guidelines, as the case was too serious for that – the usual sentencing guidance should apply and the sentences where increased to 8 years and 5 years.  

Comment 

(1) A useful reminder that the Guidelines do not apply to all cases. In future any such case (even if there is a count on the indictment alleging fraud as there was here) should be approached in light of the Le & Stark guidance.

Judges – Rafferty LJ, Cranstone J, HHJ Taylor

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3 – Deception and Leave Offences

ILLEGAL ENTRY (s24)

Offences

  1. s24 Immigration Act 1971 creates a set of summary only offences that relate to persons who are not British Citizens :

(a) entering without leave / in breach of a Deportation Order

(b) (i) remaining beyond a grant of leave

(ii) failing to observe a condition of leave that has been granted

(c) overstaying following a period of valid leave granted under s8 (an exemption for crew members)

(d) failing to comply with directions relating to health checks

(e) failing to comply with employment or reporting conditions

(f) leaving a boat or aircraft that he was put on to be removed (either administratively or by virtue of a deportation order)

(g) embarking contrary to an Order in Council made under s3(7) Immigration Act 1971 (there are currently no such orders)

  1. In practice, these are rarely, if ever, charged. Where they have been charged (certainly in the last twenty years or so) it is normally where another, more serious, charge has been laid (Bucpapa [2005] EWCA Crim 521 – forged passport / entering without leave, Gabier [2008] EWCA Crim 985 – false ID docs / remaining beyond a period of leave granted).

  1. Where these offences are most likely to occur are as being the underlying breach of immigration law for the s25 Facilitation offence.

  1. The offences under (b)(i) and (c) are continuous ones, whereas the others will be committed on the day that the infraction occurs.

Defences

  1. Offences (a) and (b) can only be committed ‘knowingly’. (d) and (e) have a defence of ‘reasonable excuse’. There is no guidance as to what can or cannot amount to a reasonable excuse.

  1. The s31 defence does not apply of any of the s24 offences. This can best be described as an oversight, particularly in relation to (a)-(c). In Asfaw [2008] UKHL 31, Lord Roger (who was in the minority) stated :

the offence of entering the United Kingdom unlawfully, contained in section 24 of the Immigration Act 1971, is not listed in section 31(3). Nor is the offence of attempting to obtain services by deception, contrary to section 1(1) of the Criminal Attempts Act 1981. While, for the reasons I shall give, the omission of the second provision is entirely understandable and correct, as presently advised, I am at a loss to understand why the first of these provisions has been omitted from the lists in section 31(3) and (4), since section 24, like section 24A, falls four-square within the terms of article 31. Article 31 is designed indeed for precisely that kind of offence.” (para 77)

  1. If a refugee, or presumptive refugee, were to be charged with this offences only in circumstances where Art 31 would offer them protection, then it is certainly arguably an abuse of process, this being the only way in that a prosecution could be defeated.

Procedure

  1. Although the offences are all summary only, under s28 there is an extended time limit for the bringing of a prosecution.

  1. This means that s127 Magistrates’ Court Act 1981 does not apply as usual. Instead, an offence can be prosecuted if it is started within 6 months of commission, or within 3 years of the offence, provided it is started no more than 2 months after the ‘the date certified by an officer of police above the rank of chief superintendent to be the date on which evidence sufficient to justify proceedings came to the notice of an officer of the police force to which he belongs‘.

  1. By analogy with similar provisions in the Social Security Acts, a valid certificate is conclusive of when sufficient evidence for a prosecution arose, subject to the ability to stay for an abuse of process in suitable cases (Azam [2009] EWHC 3177 (Admin)).

  1. For illegal entry under (a), the burden is on the prosecution to show that the entry was illegal, unless this was within 6 months of the start of the proceedings, in which case the burden is on the defence (presumably to the usual civil standard).

Sentence

  1. The maximum penalty for all these offences is 6 months or a Level 5 (unlimited) fine.

  1. There are no guidelines and, as noted above, where there has been any remotely recent case it has come alongside a more serious charge and attracted a concurrent sentence which does not assist in establishing any guidance.

DECEPTION (s24A)

Legislation

  1. s24A Immigration and Asylum Act creates two more serious ‘leave’ offences.

  1. This came into force on 14th February 2000. It is therefore unlikely, but not impossible, for offences to be prosecuted that pre-date this as a continuing offence (Badur v Birmingham Crown Court [2006] EWHC 539 (Admin)).

Definitions

  1. The offence is as follows :

Deception

(1) A person who is not a British citizen is guilty of an offence if, by means which include deception by him

(a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or

(b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him

(2) Enforcement action, in relation to a person, means

(a) the giving of directions for his removal from the United Kingdom (“directions) under Schedule 2 to this Act or section 10 of the Immigration and Asylum Act 1999

(b) the making of a deportation order against him under section 5 of this Act; or

(c) his removal from the United Kingdom in consequence of directions or a deportation order

Separate Offences / Leave

  1. The offence cannot be committed by a British Citizen (who would not require leave to enter).

  1. Enforcement action is exclusively defined in s24A(2) as being (a) giving of Removal Directions, (b) making a Deportation Order, and (c) removal in accordance with either of the other two.

  2. It is not clear whether there needs to actually be enforcement action in progress, or merely that the defendant contemplates them and the dishonest act is done ‘in case’. It is presumably the latter.

  1. There is a distinction between EEA nationals and Non-EEA nationals as to how the law applies. Under EU law, an EEA national does not require leave to enter, and so somebody who obtains a residence permit by deception does not commit the offence under (a) (Boateng [2016] EWCA Crim 57).

  1. It is arguable that they would commit the offence under subsection (b) by virtue of Reg 24 Immigration (European Economic Area) Regulations 2006 as they would then be “treated as if he were a person to whom section 10(1)(a) of the 1999 Act applied”.

  1. This would depend on whether ‘as if he were a person’ is sufficient to bring him in (b), and whether the contemplated removal would not be sufficiently remote. Somebody in this position who obtained a Residence Permit could be charged with a document offence in relation to that.

  1. The deception has to be committed by the Defendant, and it must be a material (albeit not a sole) cause of the grant of leave or deferral of enforcement action.

Defences

  1. The s31 Defence applies to this offence.

Sentence

  1. The offence is either way, with a maximum sentence of 2 years.

  1. Although the maximum sentence is a fifth of that for using a false passport, it has been seen by the Courts as being equivalent to the Kolawole offences, so the same tariff will apply : 12-18 months even on a guilty plea (Ali [2001] EWCA Crim 2874 and Deng [2010] EWCA Crim 1979).

  1. There is no distinction in culpability between the s24A(1)(a) and (b) offences (Deng [2010] EWCA Crim 1979).

  1. The Court should not try to assess any asylum claim in trying to assess sentence (Deng [2010] EWCA Crim 1979).

  1. When sentencing youths then, in accordance with general principles, different considerations apply. Special attention should be paid to the role of agents in suchs cases, and a custodial sentence is not inevitable (K v Croydon Crown Court [2005] EWHC 478 (Admin)).

FALSE STATEMENT FOR MARRIAGE

Definition

  1. This is an offence contrary to s3 Perjury Act 1911 which is defined as follows :

(1) If any person –

(a) for the purpose of procuring a marriage, or a certificate or licence for marriage, knowingly and wilfully makes a false oath, or makes or signs a false declaration, notice or certificate required under any Act of Parliament for the time being in force relating to marriage; or

(b) knowingly and wilfully makes, or knowingly and wilfully causes to be made, for the purpose of being inserted in any register of marriage, a false statement as to any particular required by law to be known and registered relating to any marriage; or

(c) forbids the issue of any certificate or licence for marriage by falsely representing himself to be a person whose consent to the marriage is required by law knowing such representation to be false,

(d) with respect to a declaration made under section 16(1A) or 27B(2) of the Marriage Act 1949—

(i) enters a caveat under subsection (2) of the said section 16

(ii) makes a statement mentioned in subsection (4) of the said section 27B,

which he knows to be false in a material particular

  1. The false statement must be in relation to something that the law requires should be stated correctly (Frickey [1956] Crim LR 421 – a false declaration on a form purporting to give parental consent that was for the convenience of the Superintendent Registrar, but not mandatory, was not an offence contrary to s3).

  1. The offence is the making of the false statement, and it does not matter whether the statement was acting on.

  1. As with other offences of perjury, by virtue of s13 Perjury Act, “A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false”.

  1. This means that before there can be a conviction, there needs to be two sources of evidence of the falsity of the statement. This can be two witnesses, or one witness and another source independent of that witness.

  1. The only exception is if the case is put not on the basis that the statement was false, but that whether or not it was, the defendant did not believe it to be true.

  1. This can also be satisfied by two people who hear a confession by a defendant.

Defences

  1. s3(2) reads :

No prosecution for knowingly and wilfully making a false declaration for the purpose of procuring any marriage out of the district in which the parties or one of them dwell shall take place after the expiration of eighteen months from the solemnization of the marriage to which the declaration refers

  1. This should be interpreted so that it will only apply if the false declaration is made for the purpose of procuring the marriage out of the relevant district, rather than procuring a marriage that happens to be outside the relevant district. Ie, it will not be a defence if the relevant false declaration is nothing to do with the location of the marriage (Garvin [2005] EWCA Crim 2088a not entirely uncontroversial interpretation).

  1. This has the consequence of severely limiting the impact of the defence. It dates from 1836 which, amongst other matters, created provision for civil marriages and to recognise those from religions and denominations other than the Church of England, Quakers, and Jews.

  2. There were not many places for people who were not members of the Church of England to get married and so provision was made to allow people to marry out of their district provided they declared their reasons, their place of intended marriage, and that there was no location in their home district. s3(2) re-enacts the defence that such a false declaration could only be prosecuted if started within 18 months.

Impact on Civil Partnerships

  1. Marriages includes the conversion of a civil partnership to marriage.

  1. An analogous offence for civil partnerships was created by s80 Civil Partnership Act 2004. This has the same maximum penalty.

  1. The rules contained in s13 Perjury Act applies (s80(4)), but there is no equivalent of s3(2).

Sentence

  1. The maximum sentence is 7 years.

  1. Assuming that the offence is committed for the purposes of evading immigration control, then the appropriate sentence is the same as for the Kolawole type of offences; 12-18 months imprisonment (Kuku [2010] EWCA Crim 2533 and Biloum [2004] EWCA Crim 3462).

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Nguidjol

Citation – Nguidjol [2015] EWCA Crim 2073

Date – 18th June 2015

Keywords – False passport, s31, Guilty plea

Overview – Appeal allowed on a guilty plea on a false passport case 

Summary – N came to UK on 16th January 2009 with a false passport from Cameroon. The previous year he had claimed asylum in Switzerland, but withdrew this to go home as he was told it was safe to return. This was incorrect, so he left with his family to Nigeria, then France (with the help of an agent) where he stayed for 10 days, before flying to Spain for a 2 day stay, then to the UK. He was intending to go to Canada to claim asylum.

When challenged at the airport, he claimed asylum. His solicitor advised him that the stay in France excluded him from the defence. 

He was granted asylum in July 2010.

The appeal would be allowed in light of the above. 

Comment 

(1) A straightforward application of the current law on s31.

Judges – Laws LJ, Blair & Holroyde JJ

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Boateng

Citation – Boateng [2016] EWCA Crim 57

Date –216th March 2016

Keywords – Conviction, Immigration Offences, Nullity, Guilty plea 

Overview -Guilty pleas to various immigration offences were not unsafe on the grounds of incorrect advice, but four out of the eight counts were quashed on other grounds

Summary – 

B’s wife had fraudulently obtained a Dutch passport, which B used to come to the UK and obtain an EEA permit for himself and their children, followed by British Citizenship

There was an 8 count indictment covering a seven year period. The issue at any trial would have been his knowledge of his wife’s dishonesty. He pleaded guilty and was later sentenced.

After pleading guilty at the PCMH he protested that he should not have so pleaded. Fresh counsel was instructed who gave the same advice.

It was held that B had been offered an opportunity to change his plea and had made a decision not to. In relation to specific issues :

(1) Counts 2 and 12 charged obtaining leave to enter by deception. As he had obtained an EEA permit, not leave to enter, this could not be sustained

(2) Counts 4 and 5 were ID card offences indicted under the 2006 Act, but before it had been passed. These counts had to be quashed.

(3) Dishonesty is not needed in all cases for the s25 offence – every case depends on its own facts

(4) Although s10(1)(c) Immigration Act 1999 is not an ‘immigration law’ for the purposes of s25 as it is procedural in nature, this was not a fundamental flaw

(5) A ‘false’ Home Office stamp in a genuine document makes the document a false one

(6) Even if advice tendered goes to the heart of the plea, and the plea is not a ‘free one’, then this does not itself make the plea a nullity.

Judges – Leveson P, Globe & Cheema-Grubb JJ

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YY & Nori

Citation – YY & Nori [2016] EWCA Crim 18

Date – 26th February 2016

Keywords – Conviction, false passport, s31, CCRC

Overview –These were two, otherwise unrelated, cases that were heard to give guidance to the CCRC in ‘passport’ cases where no previous application to the Court of Appeal has been made. 

Summary – 

YY – Iranian national who arrived in the UK on 11th February 2011 via Iraq, Turkey, and another third country from which he was taken by land to a French airport. He was arrested at Gatwick where he gave his correct name and details. His instructions to the duty solicitor was that his reason for leaving Iran was that he had committed adultery.

The advice was that as he had provided his correct details, there was a defence to the s4 offence (which requires proof of an improper intention), but not to simple possession (s6). It was agreed that advice had been given about s31

In an asylum interview on 6th April he stated that his marriage had been broken up by his and his wife’s family, but after she had re-married they had an affair. But also he stated that during a search (presumably of his house) the authorities found a leaflet about his conversion from Islam to Christianity. 

At the PCMH on 26th April, the CPS accepted a s6 offence and YY was sentenced

His statement about conversion from Islam was re-iterated at a further asylum interview on 2nd June.

YY was granted asylum in 2013 – the reasons for this aren’t set out.

The CCRC referred the case on the basis of the s31 defence, but this was abandoned as there was no convention reason

Ayad Nori – Iraqi who left by car to Syria with his family and flew to Turkey on genuine passports, before coming to the UK on false passports with an agent. After initially pleading not guilty duress and/or reasonable excuse, there was a later guilty plea

The PSR was critical of his account of his journey to the UK, and there appears to have been question marks over his credibility. Leaving those aside, it was a freely entered guilty plea, and the later grant of humanitarian protection did not impact on that.

CCRC – whilst welcoming the contribution of the CCRC, the Court of Appeal discouraged it from referring cases where there has not previously been an appeal from the Crown Court (Magistrates’ Courts guilty pleas are different – they have to be referred) by restricting the definition of ‘exceptional circumstances’.

Comment 

(1) Grounds of appeal – one of the difficulties that is often apparent in looking at judgments is the lack of information and detail of what was argued and what the background was. With that caveat … 

(2) Convention Reason – There is nothing new in the analysis of s31, although this is a rare example of a s31 defence failing due to a lack of convention reason – in this case male adulterers in Iran. The Court of Appeal relied on ME Iran CG [2003] UKIAT 166 in relation to this. 

It is noteworthy that the Home Office Country Information and Guidance, Iran : Adulterers from November 2015 asks the question ‘Do adulterers constitute a particular social group?‘ and answers it at 2.2.1 “Adulterers in Iran form a particular social group (PSG) within the meaning of the Refugee Convention. This is because they share an immutable (or innate) characteristic – the fact that they have (allegedly) committed adultery – that cannot be changed; and have a distinct identity in their home society”.

The case of XY v Immigration Minister [2013] EUECJ C-199/12 is relied upon, which concerns gay Iranians. It may be that this may not apply to adulterers, but armed with the above, the CPS may accept that ME be revisited on a later occasion. 

(3)  Criminal Justice is not a game -.. Here, YY was a refugee in 2013. This could have been on the basis of a sur place Christian conversion, but that does seem unlikely given the history. A sur place conversion is mentioned in para 14, but this would appear to relate to what information the criminal lawyers had (see para 12). 

If it was something that happened, or started to happen, in Iran then he was a refugee when he arrived in the UK. The granting of refugee status in 2013 being a declaratory act.

Assuming every other part of the s31 defence is made out (which it seems to be), then he should not have entered a plea to the s6 matter as he had a complete defence to the s4 one. The solicitor cannot be criticised for the advice, but on the information we have it would appear that he was not guilty of the offence (again, one of the problems here is the lack of information – given the constitution of the Court and the representatives, it is likely that there is more to this than the summary suggests).

The question for the Court of Appeal is whether he should be held to his plea, which does seem excessively formalistic. The more interesting question is ‘is he guilty?’ And on the facts above, the answer is no.

Is holding him to his plea consistent with the overriding objective (see Ghorbani)? By the time he entered his plea, he had told the Home Office about his Christianity. Had prosecuting counsel told the Court this, then all of the information necessary to mount the s31 defence was there.

This was not a shoplifting with a potentially easy case of dishonesty. Half the lawyers in England do not know about the s31 defence, so it is hard to criticise YY for not being fully up to speed. 

(4) Possession with intent – YY ‘presented himself to an immigration desk … together with an Israeli passport … When the immigration officer challenged him as to whether that passport was genuine, he admitted that it was false

Against those facts, it may seem surprising that the CPS in the Crown Court accepted that he had no intention of using it ‘to establish registrable facts‘ or allow others to do so, but there is no comment from the Court of Appeal about this. It remains to be seen if this is accepted in later cases. 

(5) Reasonable excuse – the s31 defence doesn’t apply to the s6 offence. It is not suggested at paras 18-19 that the principles underlying the s31 defence (but potentially wider) cannot apply to amount to a ‘reasonable excuse’. Again, this may require resolution.

(6) CCRC – This was the main interest in the judgement. The powers of the CCRC to refer, and the good investigation that they do, makes these cases proceed much more smoothly.

Although the sense of it can be seen, it is a much harder process for lawyers to deal with collecting all the materials and arguments for a CCRC referral. It will almost certainly take more time for cases to come through, and it may well cost more money for the cases to go through the Registrar (although that is not clear).      

Judges – Leveson P, Globe & Cheema-Grubb JJ

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Other Guidance

The Home Office

 

Law Society

 

CPS Guidance

 

Procurator Fiscal Service

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Ndjanga

Citation – Ndjanga [2015] EWCA Crim 2020

Date – 6th November 2015

Keywords – Sentence, false passport, Ovieriakhi

Overview – Sentence reduced to ‘Ovieriakhi’ levels where passport used to obtain employment, but an Overiakhi + category is established.

Summary – N entered the UK in March 2000 on a false passport and claimed asylum. This was refused and whilst waiting for an appeal to be heard, he failed to comply with his bail conditions. He used a false passport to obtain employment in 2002, which wasn’t discovered until 2015, when he then arrested and pleaded guilty at the earliest opportunity and was sentenced to 12 months. 

In April 2015 he had been granted Leave to Remain for 2½ years.

The Court of Appeal put the case above Ovieriakhi as N had not arrived in the UK lawfully, but reduced the sentence (to reflect other personal mitigation) to 6 months. 

Comment 

(1) This was decided after Acheampong, but follows a similar path. Although the sentence was reduced to 6 months, it seems that but for the other mitigation he would have got around the 8-9 month mark.

(2)  As a tentative suggestion, it may be that where a passport is used to get employment, the tariff (after a plea) is 6-12 months, but the 6-9 month range is for people who entered legally and the 8-12 month bracket for where people have not. 

Judges – Sharp LJ, Supperstone J, HHJ Morris QC

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2 – THE s31 DEFENCE

Introduction

  1. The Refugee Convention was signed in 1951 in the aftermath of, and as a response to the atrocities of, the Second World War. At that time, although there had been a huge amount of mass migration from displaced people, commercial air travel was still in its infancy.

  1. Nowadays, someone fleeing persecution in their home country is often forced to take an irregular route to safety, for obvious reasons. This will often entail using people smugglers (euphemistically called ‘agents’) to get them across international borders.

  1. This presents, particularly at times of mass migration during a conflict, problems for states who have a legitimate concern about, and interest in, checking the identities of those who enter the country.

  1. As border controls have got tighter, the role of agents has increased and the only realistic option for many asylum seekers is to travel on false documents. This has created a tension between the interest of the authorities in controlling their borders whilst not penalising those refugees who are effectively forced into committing criminal offences in their quest for safety.

  1. The Refugee Convention tried to balance these competing interests in the following way (Art 31(1)) –

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

  1. This was never incorporated into English law. The issue had seemingly never arisen until Adimi (R v Uxbridge Magistrates’ Court, ex parte Adimi [2001] QB 667) when an attempt was made to challenge the prosecution of asylum seekers for using a false passport.

  1. The Divisional Court gave guidance on the meaning of Art 31, essentially giving it the wide meaning that the s31 defence now has (see below).

Legislation

  1. As a consequence of the Adimi judgment, s31 Immigration and Asylum Act 1999 was enacted to provide a statutory defence for someone in the position of Mr Adimi :

(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he –

(a) presented himself to the authorities in the United Kingdom without delay;

(b) showed good cause for his illegal entry or presence; and

(c) made a claim for asylum as soon as was reasonably practicable after his arrival in

the United Kingdom.

(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

(7 )If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.

  1. This applies to the following offences :

the following false documentation offences (depending on when committed) :

  • s25 Identity Cards Act 2006 – 21st January 2011 onwards

  • s4 Identity Documents Act 2010 – between 7th June 2006 and 20th January 2011

  • Part 1 of the Forgery and Counterfeiting Act 1981 – before 7th June 2006

and

  • s24A of the Immigration Act 1971 (leave to enter by deception)

  • s26(1)(d) of the Immigration 1971 Act (alteration or falsification of an entry clearance document, work permit, or similar)

  1. The s26(1)(d) Immigration Act is summary only, with a maximum sentence of 6 months. It is very rarely charged, not least because wherever it is committed it is likely that a more serious offence will also have been committed.

  1. The defence can be broken down in to the following six elements. It will apply to a defendant who is a :

  1. refugee; who

  2. came ‘directly’ from their home country; and

  3. did not stop in any country along the way; and

  4. presented himself to the authorities in the UK “without delay”; and

  5. claimed asylum as soon as was reasonably practicable after arrival; and

  6. had good cause for his illegal entry or presence in the UK

(1) Refugee

  1. The question of ‘who is a refugee’ is, at the margin, an incredibly complex one.

  1. The definition in Art 1(1) Refugee Convention :

“A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..”

  1. It is not possible to give a reading list of cases that give a brief and concise overview of the law as it relates to refugee status. What follows is a brief summary of the law. For more detail, the Immigration and Refugee Board of Canada has probably the best, concise but complete, summary. The caselaw is obviously Canadian, which does differ to that of the UK, but is similar enough in most cases. Given the Refugee Convention’s status as an international Convention, the Courts have been more willing than in other areas of law to draw inspiration from higher court decisions of other countries.

Persecution

  1. Ill treatment must reach a certain level before it can be considered to be persecution. Clearly matters such as execution, imprisonment, or torture satisfies this threshold.

  1. As a rule of thumb, if there is treatment that would amount to a breach of Arts 2, 3 or 4(1) ECHR, or to a ‘flagrant denial‘ of the other ECHR rights, then there is likely to be persecution.

  1. Although persecution is usually at the hands of the state, treatment from non-state actors can amount to persecution if the state is unwilling or unable to provide protection (the failure of state protection being the important part). This could be from groups that are quasi-state like (such as ISIS), or other groups (such as skinhead gangs).

  1. Persecution is distinct from prosecution, although it is possible that a prosecution for a ‘normal’ crime can amount to persecution in certain circumstances. For example, a prosecution for fraud that was politically motivated would be persecution.

  1. Likewise, a prosecution for behaviour that is covered by the convention (for example for homosexuality) may also be persecutory.

Well-founded

  1. There must be an objective risk of persecution. The burden of proof has been variously expressed as ‘a real and substantial risk‘, ‘a reasonable degree of likelihood‘, ‘a reasonable chance‘. This is a lower threshold than a balance of probabilities (R v Home Secretary, ep Sivakumuran [1987] UKHL 1).

Convention Reason

  1. It is not sufficient that there is persecution, it needs to be persecution that has occurred for a ‘convention reason’. There are five reasons that will engage the Refugee Convention :

  • Race

  • Religion

  • Nationality

  • Political belief

  • Membership of a particular social group

  1. The first four are fairly uncontentious and will tend to be what is commonly understood by the terms. If there is doubt, then it should be remembered that they should be interpreted widely.

  1. What is important is what the agents of persecution perceive to be the case, rather than the actual state of affairs.

  1. The fifth is a bit more complicated. There have been a multitude of cases as to what is, and what is not, a social group.

  1. The following is taken from the UNHCR Guidelines. Whether somebody is a member of a particular social group is a very fact specific question that depends on the situation in the defendant’s home country. “A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights” .

  1. In Evans [2013] EWCA Crim 125, Evans was a Jamaican who had come to the UK in 2000 and was deported in 2009 as a result of a conviction for supplying drugs. He returned in 2011 on a false passport. After a brief attempt to pass himself off as the person in the passport, he accepted that he was using false documents and claimed asylum two days later.

  1. The grounds for the asylum claim were that he was targeted on his return by a gang on the belief that as someone returning from the UK, he had money.

  1. There was a trial and after E’s evidence the Judge withdrew the defence on the basis that there was no convention reason – he was one of many people who were targeted by Jamaican gangs. The Court of Appeal upheld this, and declined to hold ‘migrants of Jamaican origin returning to Jamaica after having been resident in the USA, Canada or UK’, or some such similar definition, as there was no persecution independent of the group.

  1. Although this decision is correct on its facts, a Court should be very wary about withdrawing a defence from a jury.

  2. In YY [2016] EWCA Crim 18, YY was an Iranian man accused of committing an adultery. The Court of Appeal relied on ME Iran CG [2003] UKIAT 166 to hold that this cannot be a Particular Social Group (which may no longer be sustianable in light of caselaw since then). This should be approached with caution and should not be binding on a Crown Court considering a similar case.

  3. In practice, a criminal court is not the place to determine complicated questions of asylum law. It is only in a clear cut case that a Judge should withdraw a case from a jury on the basis that a defendant is not a refugee.

  4. On general principles, a Judge would not be entitled to withdraw a defence when the issue over refugee status was one of credibility.

(2) Come Directly / (3) Did not stop

  1. These two elements are inter-linked. They have also historically caused the most problems of application and have featured in almost all the appeals to the Court of Appeal.

  1. The Courts have not made a clear distinction between the two elements of the defence, and have approached them together. It will be looked at here through the prism of ‘coming directly’ before looking at where there is, in fact, anything added by s31(2).

  1. It was stated by Simon Brown LJ in (R v Uxbridge Magistrates’ Court, ex parte Adimi [1999] EWHC Admin 765):I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing”.

  1. This interpretation was upheld (by a 3-2 majority) in Asfaw [2008] UKHL 31.

Coming Directly

  1. What is the test as to whether someone has ‘come directly’ and not ‘stopped’? There is no simple answer to this question, and no one factor that will be determinative. One question to ask (quoting Lord Williams, the then Attorney General) is whether the defendant is “still running away” from persecution (per Lord Bingham in Asfaw [2008] UKHL 31).

  1. An alternative formulation (per the current LCJ) is – “The real question is, looking at all the circumstances: is the person in the course of a flight? Is he making a short-term stop over? Is he in transit? Whichever phrase is used, one has to see whether at the material time the person was here, not having come to this country either temporarily or permanently seeking to stop here, but was going on. That is a question of fact” (SK [2010] EWCA Crim 1335).

  1. This means that even long periods of time in a third country does not, of itself, preclude reliance on the defence. Neither will a period of time in transit in the UK.

  1. A quest for asylum is often an irregular journey, and can take place over many months (and even years). Although people born and brought up in the UK are well aware of which countries are safe, and which are not, it may not be as clear to an asylum seeker (who additionally may not even know which country they are in).

  1. Finally, a refugee has an element of choice as to which country they wish to settle in. Therefore a period of time in transit, even in the UK, is not sufficient to lose the protection of the defence. As was simon by Simon Brown J “some element of choice is indeed open to refugees as to where they may properly claim asylum” (R v Uxbridge Magistrates’ Court, ex parte Adimi [1999] EWHC Admin 765).

  1. There are many reasons, good and bad, why someone would pass through other safe (including safe EU) countries in order to get to the UK – knowledge of English and family members already present here being two obvious ones. Similarly, these may be reasons why somebody would be in transit in the UK and not claim asylum.

  1. A failure to claim asylum elsewhere may provide good ammunition for a prosecutor when cross-examining a defendant, but does not necessarily mean that the defence is excluded.

  1. A summary of all the Court of Appeal cases that have considered the s31 defence and allowed the appeal since AM & Others [2010 EWCA Crim 2400 follows, along with a brief summary of the journey taken :

  • AM & Others [2010] EWCA Crim 2400

    • MV – Iranian who went by land to Turkey, then by plane to Syria (1 week) before flying to Spain (3 hours spent in the airport).

    • RM – Somali. Left Somalia by lorry through ‘various African countries’ before flying to the Netherlands (3 days) and on to the UK.

    • MN – Iranian. Left Iran on a lorry for 25 days, ending up in Greece (2 weeks locked in a flat) before flying to the UK.

  • Dastjerdi [2011] EWCA Crim 365 – Iranian, came to UK via Turkey and ‘two other countries’ (length of stay unknown) – was going to Canada but nobody met him at the UK, so claimed asylum.

  • Jaddi [2012] EWCA Crim 2565 – Iranian who had previously unsuccessfully claimed asylum in the UK and returned. Came to UK with the help of an agent through Turkey (1 month), Greece (2-3 days), Italy (3-4 days) before flying to Gatwick. There he produced two false documents before being arrested (although there was some factual dispute as to exactly what happened).

  • Adom [2013] EWCA Crim 384 – Ghanian, flew to Egypt (in transit for a few hours), then to UK. Presented passport on arrival then claimed asylum after he was fingerprinted.

  • Mateta [2013] EWCA Crim 1372

    • Mateta – national of the DRC, came to the UK via an overnight stay in Belgium, on way to Canada to claim asylum. Arrested at airport when leaving to go to Canada (length of stay in UK unknown)

    • Adukwa – Cameroonian national. Flew to Kenya (where he remained in the airport at all times) then to Heathrow. Arrested trying to leave Manchester airport the next day on a flight to Canada where he was intending to claim asylum).

    • Bashir – Somali. Travelled via Kenya (1 month), Dubai and Greece (length unknown). Claimed asylum after arrest.

    • Amir Ghavami & Saeideh Afshar – Iranian husband and wife. Came to UK via Thailand (2 months, flying there on their own passports with a valid visa), Tanzania (20 days), Kenya (7 days) and Spain (20 days). Flew to Gatwick, before getting a bus to Heathrow to fly to Canada where they intended to claim asylum. Arrested whilst trying to board the plane to leave the UK.

  • Zondo [2014] EWCA Crim 1501 – Zimbabwean, came to the UK via South Africa and Qatar (length of time unknown). Non-counsel application, so very little detail.

  • Hussein [2014] EWCA Crim 1978 – Somali, left Somalia and spent 2 years in Kenya. Didn’t claim asylum there as “he did not wish to be held in a refugee camp where he could not earn a living in order to support his family”. Came to UK via Tanzania (with a stop of about 3 weeks), not stopping there as he “did not come across any refugee camps, and in any event did not know how to apply for asylum”.

  • Sidiqi [2014] EWCA Crim 2479 – Iranian husband and wife. Came to UK via Turkey and then by air to Spain (length of stay unknown), intending to travel to the USA to claim asylum there.

Claimed asylum in the UK after arrest when trying to leave the country.

  • Sadeghi [2014] EWCA Crim 2933 – Iranian. Left via Turkey, before flying to Tanzania, then going to Zambia by train, before flying to the UK (length of time in those countries unknown). Intending to go on to Canada to claim asylum. Spent 7-8 days in UK before being arrested trying to board a flight to Canada. Claimed asylum 23 days after arrival in the UK.

It is worth noting some comments from the Court of Appeal :

he could not reasonably have been expected to claim asylum in Turkey, Tanzania or Zambia. Indeed it is clear that in any event he was under the control of an agent at that time who was conducting his intended transit to Canada, which provides a perfectly sensible explanation, on his part, as to why he did not seek asylum in any of those places”

  • Mulugeta & others [2015] EWCA Crim 6

    • Issa – Somali, came to the UK via Dubai (some weeks), then transiting through Holland.

    • Firouzi – Iranian, came via Thailand and Uganda (total of 6 weeks). Spent 14 days in the UK before being arrested trying to board a flight to Canada where he was intending to claim asylum.

  • Shabani [2015] EWCA Crim 1924 – Iranian. Left via Turkey, before flying to Spain (for 11 days), then to the UK.

  1. None of these are ‘factual precedents’, and should not be considered as such, but they give an overview of just how wide the defence is.

  1. Each case will be decided on its own facts; generally speaking, EU countries are safer than non-EU countries, and the longer the stay in a third country the weaker the defence is. It will be an exceptional case however where a Judge would be entitled to withdraw the defence from the jury as this limb would inevitably fail.

Did not stop

  1. The existence of s31(2) shows that ‘coming directly‘ for the purposes of s31(1) does not literally mean directly without stopping.

  1. Any country that is not a signatory to the Refugee Convention can be discounted for the purposes of s31(2). A list of all signatories is available online1 along with a map which may be easier to navigate2.

  1. It was confirmed in MMH [2008] EWCA Crim 3117 that s31(2) must be read in the spirit of Art 31, so that somebody who was in transit for a short period of time can be considered to have not ‘stopped’ for the purpose of the legislation (rather than saying that he could not reasonably have been given protection). In essence, there is no longer any real difference between these two limbs of the defence.

(4) Present without delay

  1. The rationale for this aspect of the defence is that a genuine refugee who comes to a safe country should co-operate with the host country and not hide their presence. The idea being that someone who is a ‘genuine’ refugee would not go to ground.

  1. ‘Present’ does not mean ‘present and claim asylum’. Given that, it is likely that it will be only be an issue in cases where there is a clandestine, rather than an irregular, entry.

  1. Somebody who enters the UK and presents a false passport intending to claim asylum as a later stage will be able to avail themselves of the defence; “The appellant did present himself to the authorities as soon as he arrived in the United Kingdom on 11 May 2009 and proceeded through immigration control, albeit that at that time he did not claim asylum. This appellant entered the United Kingdom with false documentation. His physical entry was not concealed from the authorities.” (Firouzi [2015] EWCA Crim 6).

  1. This interpretation would appear to undermine the purpose of the legislation – everyone who enters the UK on a false passport would then be covered – and it may be revisited in a later case.

  1. But even if this conclusion is revised by the Court of Appeal, it will still be a question of fact. Presumably there will be an element of latitude to an asylum seeker who is arriving in an unfamiliar country, and who may have a history that means that they have an undertandable mistrust of uniformed border guards.

  1. It is common for asylum seekers to be told, erroneously, that if they are intercepted at the airport, then they will be deported. Although this is completely incorrect, it seems to have gained currency (presumably as people smugglers feel that this is the best way of hiding their involvement from the authorities).

  1. Someone who is in transit in the UK and who does not state that he is travelling on a false passport on arrival, will not be deprived of the defence; “… it was explicable that he did not present himself to the authorities in the UK. As will be evident from the facts which we have set out above, he was, at the time of being in the UK, in transit to Canada having been told he was not able to claim asylum in the United Kingdom … having accepted that the appellant had good reason not to claim asylum in the United Kingdom prior to his arrest and whilst still in transit, he did in fact claim asylum, on 3 February 2012, not long after the criminal proceedings in his case had been concluded(Sadeghi [2014] EWCA Crim 2933).

(5) Claimed asylum as soon as reasonably practicable

  1. There is an overlap with ‘presenting without delay’ and this aspect of the defence.

  1. It is common for asylum seekers to hand over their false documents and then only claim asylum after these have been discovered as being forged. Whether this precludes the defence from being relied on will again be a question of fact in every case.

  1. In Jaddi [2012] EWCA Crim 2565, Mr Jaddi had claimed asylum in the UK in 2006, having been a student here for several years. This claim was rejected and he left the UK in 2008 (before being deported).

  1. In 2012 he returned to claim asylum, armed with a false French passport and ID document. He undoubtedly handed over his false passport to an immigration officer rather than claim asylum, but there was an element of uncertainty as to what the exact sequence of events were.

  1. The Court held that :

26 … In the great majority of cases there will simply be no excuse for a genuine refugee not to make himself known immediately he arrives in the safe place — that is to say the arrivals immigration hall at a United Kingdom airport …

29 As it seems to us, the question of whether section 31(1(c) is satisfied or not must be a question of fact in every case … The question of whether it was reasonably practicable to make a claim for asylum sooner than was done is an objective one for the jury to decide but, in deciding it, the jury will certainly have to take account of the defendant’s state of knowledge, intention and mind …

30 … it is certainly open to a tribunal of fact to conclude and in many cases it may be the right conclusion, that there is simply no reason for such a traveller not to identify himself the moment he is in friendly official hands

  1. The jury will be directed to look at all the surrounding factors; age of the defendant, whether an agent was used and present, and so forth.

  1. The defence can only apply to actions taken before the claim of asylum (s31(5) and Mulugeta).

(6) Show good cause

  1. This is likely to be relatively uncontentious and has not featured in any of the Court of Appeal cases to date. A genuine claim for asylum is a good reason to be illegally present in the UK.

Burden of Proof

  1. It is for the Prosecution to first prove that a defendant was in possession of the false passport, or practiced a deception as the case may be.

  1. The Court of Appeal determined in Makuwa [2006] EWCA Crim 175 that apart form the question of whether someone is a refugee, the burden is on the defendant with the standard being the usual one of the balance of probabilities.

  1. In relation to the question of whether the defendant is a refugee, the position is more complicated and will depend on whether there has been a decision on the defendant’s claim for asylum.

  1. If there has not been, then there is an evidential burden only on the defendant to raise the issue that he is a refugee. When this has been done, the burden is then on the prosecution to disprove this, to the usual criminal standard.

  1. If the Home Secretary (the person in who’s name all the decisions on Refugee status is made) has refused an asylum claim, then by virtue of s31(7), the burden will be on the defendant, again to the usual ‘balance of probabilities’ standard (confirmed in Sadighpour [2012] EWCA Crim 2669).

  1. The statute is silent on what the situation would be if the Home Secretary either grants asylum to a defendant, or the defendant successfully appeal to the First-Tier Tribunal before the criminal trial. Although as a matter of law this would not be binding on the CPS, it is likely that they would accept that that element of s31(1) would be satisfied.

  1. Decisions by the Home Office tend to be a lot quicker now than they were a few years ago. For that reason, it is quite possible that this decision will have occurred before the trial. If it is adverse to the defendant, it may take a long time before an appeal is heard, certainly longer that the average wait for a Crown Court trial. Whether or not to adjourn a trial pending an appeal is a matter for the trial Judge’s discretion in all the circumstances.

Duress / Necessity

  1. In theory both the common law defences of ‘duress’ and ‘necessity’ are available. In practice, these are very difficult defences to run.

  1. They are both wider than the s31 defence, and could apply in cases where that defence is not available (for example for someone who would otherwise be a refugee but for the fact that they there was no Convention reason). In practice however, it is very unlikely that it could succeed.

Offences not covered by s31

  1. The s31 defence only applies to the offences set out above.

  1. In Asfaw [2008] UKHL 31, Ms Asfaw was an Ethiopian lady arrested whilst trying to leave the UK on a flight to the USA with a false passport, having been in transit here. She was charged with an offence under the Forgery and Counterfeiting Act 1981 for using the false passport, and also an offence of Attempting to Obtain Services by Deception, this being the flight. She was later recognised as a refugee.

  1. At trial she was acquitted of the passport offence. As there was no defence to the other offence, she had pleaded guilty after an application to stay the proceedings as an abuse of process had failed before the jury was sworn.

  1. The House of Lords allowed the appeal as, once Ms Asfaw was acquitted of the first charge, it was wrong to proceed with the second.

  1. In future, if there are several counts on the indictment, only some of which attract the s31 defence, then a trial should proceed on those latter ones. If there is an acquittal, then the other count(s) should not be proceeded with.

  1. If an individual is charged with only an offence(s) where Art 31 would apply, but the s31 defence does not, then the situation is more complicated. If there is an alternative charge that could be indicted on the facts, then the CPS should be invited to add that, and the situation proceed as above.

  1. If for some reason the CPS decline, that an application to stay the proceedings would probably follow.

  1. If there is no such charge that is possible on the facts, then an application to stay the proceedings could be made. There is no authority as to how the Courts should approach this.

Impact on Sentence

False Passport

  1. The case of Kolawole [2004] EWCA Crim 3047 still sets the ‘tariff’ for people entering the UK on a false passport. For someone of good character on a plea of guilty, the guidance is a sentence in the range of 12-18 months (although in practice Crown Courts that are in the catchment area of an international port that see many such cases will tend to impose sentences lower than that).

Leave to enter by Deception

  1. Notwithstanding the fact that the maximum sentence is 2 years, similar sentencing levels apply to this offence Ding [2010] EWCA Crim 1979 as to false passport offences.

  1. It is an open question as to whether, if a defendant is a refugee who cannot bring himself within the s31 defence, account should be taken of his refugee status as a matter of mitigation. In Kishientine [2004] EWCA Crim 3352, it was held that the criminal courts should not involve themselves in an assessment of the genuineness of an asylum claim.

  1. However, if refugee status has been granted, then this would appear to be something that should properly mitigate the sentence (the fact that someone had been trafficked into the UK was a proper matter to take into account in mitigation in a sham marriage case – G [2011] EWCA Crim 491).

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Idhoiaissine

Citation – Idhoiaissine [2015] EWCA Crim 1872

Date – 12th November 2015

Keywords – Conviction, false passport, indictment errors

Overview –Conviction under the Identity Documents Act 2006 unsafe where that Act had been repealed and replaced

Summary –I had been arrested for an offence in July 2013, for which he was later acquitted. When being booked in, he had two false documents dated from 2010. He made full admissions to having used these to try and gain employment, knowing that they were false.

He was indicted on 2 counts under the IDCA 2006 and pleaded guilty, getting 15 months. An appeal against sentence out of time was lodged, and it was noted in the Court of Appeal Office that by the date on the indictment on which the offence was alleged to have been committed (not named, but presumably the date of arrest in 2013), the IDCA had been repealed and re-enacted in the same terms by the Identity Documents Act 2010.

Referring to Stocker [2013] EWCA Crim 1933 (and Abdul [2012] EWCA Crim 1788 (unreported)), I was charged with an offence not known to law and the conviction could not be considered safe.

Comment 

(1) There was the briefest discussion as to whether the decision in Stocker might be enough to save the conviction (despite the fact that Abdul was specifically approved in Stocker) but it was decided that it was not necessary to resolve it in the circumstances of the case (the sentence being long served). It may be that this argument is expanded on in future cases.

(2)  As to the merits of it, the argument that the conviction is safe following Stocker is a strong one. In Stocker, a rape that was committed in 2008 had been indicted under the 1956 (pre-2003) Act. The Court held that that conviction was safe “The only error here was to click the 1956 box rather than the 2003 box. It could have been cured easily by an amendment at any time. That seems to us to be something of a pure technicality. It has caused no prejudice whatsoever.

All of this is true, but would apply equally to the position here (and in Abdul). If anything, this case appears stronger – although the offence is called something slightly different, the particulars are the same. In Stocker, although the offence was called the same thing (rape), the elements of the offence are different, and someone could be guilty of rape under the 2003 Act, but not guilty under the 1956 Act.

The argument that Abdul was a different situation entirely would not appear to be a compelling one.

That is not to say the decision here is incorrect, but the question would be whether Stocker itself is correct. True it is that this is a ‘technical’ defect that could have been cured at any time, and that no prejudice was caused. That doesn’t stop the fact that Mr Stocker was convicted of an offence that was not known to law. However inconvenient it may be, it is hard to see how a conviction in those circumstances could be anything but unsafe.

A defendant would not get off scot free. The prosecution would be entitled to proceed again against him on a correct indictment, so no grave injustice would be done.

It would be inconvenient, and if a complainant is forced to give evidence again, then this would be more so. However, it should not be too much to ask for the indictment to contain an offence that actually exists, and allowing the appeal may focus the minds of everyone in future.

But that is probably all by the by; Stocker will be binding on any future Court.

(3) In this case it appears that I accepted historic use. In those circumstances, it would be possible to have indicted him under the IDCA 2006 on the basis of his admissions. The problem in the indictment alleging an offence not known to law remains however.

(4) In this case, the Court could have issued a writ of venire de novo. But whether that is done, or the appeal allowed, is there a bar on the prosecution starting proceedings again, but under the correct indictment?

The answer would appear to be that there is no legal impediment (although they may well be met with an abuse argument) and if there were a conviction, then no punishment should follow. In light of that, it is unlikely that the Crown would wish to in cases such as this, although it cannot be ruled out in a suitable case.

Judges – Davis LJ, Edis J, HHJ Cutts QC

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Shabani

Citation – Shabani [2015] EWCA Crim 1924

Date – 22nd July 2015

Keywords – Conviction, false passport, s31, guilty plea

Overview – Conviction for a false passport quashed where inadequate advice given. Police Station Representative and the Crown Court advocate were referred to the SRA due to the nature of the advice given.

Summary –AS, an Iranian national, left Iran due to being wanted for his political activities. Came to the UK via Turkey (not stated how long) and Spain (11 days). Subsequently refused asylum, but appeal allowed by the First Tier Tribunal.

The duty solicitor in interview did not offer any advice on the defence, and although the Crown Court advocate was aware of the defence ‘he wholly failed to give [AS] proper advice‘. As a result the Appellant pleaded guilty.

On a CCRC reference, the appeal was allowed, the Court concluding “The issue in this case would have been whether the time that the appellant spent in Spain was time spent in the course of the flight. In our judgment, having looked at the facts and been taken to the evidence that was available, there was plainly a reasonable prospect of him persuading a jury that he was in the course of flight

At the end, in relation to the advice given, the Court said

  1. There is, however, one serious matter. As a result of the incompetent advice given by the duty solicitor, and more seriously by the solicitor who represented the appellant when he was before the Crown Court, the appellant spent time unnecessarily in prison. It has led to the cost of his detention in prison, the investigation by the Criminal Cases Review Commission, and the appearance of two counsel before us today.
  2. It is unacceptable that such advice was given which plainly did not pass a standard of competence. It seems to us that people in the position of this appellant, and the system as a whole, are entitled to expect that those who advise in circumstances such as this should be familiar with the law. There can be little excuse for a failure to understand the law and advise properly. We therefore consider that this is a case where we should refer both the duty solicitor and the solicitor who represented the appellant at the hearing to the Solicitors Regulatory Authority for them to consider whether any proper sanction is to be taken against them.
  3. The criminal justice system cannot afford the kind of incompetence that was displayed in this case; nor can we as a nation afford to have lawyers who act so incompetently that someone wrongly spends a considerable amount of time in prison. We have not named the advisers because to do so would be to pre-judge the decision of the Solicitors Regulatory Authority. But if the Solicitors Regulatory Authority find, after they have had a chance properly to investigate the matter, that they breached the levels of competence required, they will be named on that occasion.

Comment 

(1) The conclusion on the appeal is uncontentious (perhaps unsurprisingly so as the Crown conceded the appeal).

(2)  The main interest in the case will relate to the referral of the duty solicitor and the Crown Court advocate to the SRA due to the lack or inadequacy of the advice given.

Judges – LCJ, Nicol & Stuart-Smith JJ

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