Citation – YY & Nori  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.
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’.
(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  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  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