Tag Archives: Conviction

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Overview –Conviction under the Identity Documents Act 2006 unsafe where that Act had been repealed and replaced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offence was alleged to have been committed (not named, but presumably the date of arrest in 2013), the IDCA had been repealed and re-enacted in the same terms by the Identity Documents Act 2010.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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Ghorbani

Citation – [2015] EWCA Crim 275 (unreported / not on BAILII)

Date – 12th February 2015

Keywords – Conviction, s31, Guilty plea

Overview – Appeal against conviction following a guilty plea refused as wrong advice not given

Summary – G was an Iranian woman married to a man with dual British and Iranian nationality. He had been accused of being a British spy and she was arrested and detained. As a result, she used an agent to come to the UK, leaving Iran overgroud to Turkey and by ferry to Copenhagen where she stayed two nights before flying to the UK on 22nd August 2011. G claimed asylum straight away.

The history in Court was not entirely clear, but G pleaded guilty on 11th November.

Crucially, she was advised of the s31 defence on three occasions and on 3rd November “she is thinking of pleading guilty so she can get out of prison quicker and is therefore undecided [as to plea]”. On the 11th it was recorded that “she just wishes to get it over and done with, I have advised her of the defence again and she wishes to plead guilty”. She signed an endorsement to this.

She was later granted asylum.

The Court held that the “guilty plea was intentionally and freely given, it was unequivocal following proper advice and cannot be said to be a nullity”.

Comment

(1) On the law, the decision cannot be faulted. It is clear that Ms Ghorbani was fully and properly advised, which effectively scuppered any chance of appeal. The attempt to draw an analogy with Victims of Trafficking was always doomed to fail.

(2) Criminal justice, we are told, “is not a game … It is a search for truth“. If so, and we wish to convict the guilty and acquit the innocent, then how should the Court approach an appeal such as this one? Here, on the facts we can say that a defence would ‘quite probably have succeeded‘, in other words, it is more likely than not that Ms Ghorbani is innocent, and yet she remains convicted because of a tactical decision. Is this consistent with the overriding objective?

It is a very difficult area. A guilty plea should be conclusive evidence of guilt, and the Court of Appeal are understandably extremely reluctant to let anyone appeal against a conviction following a plea of guilty. This issue is wider than immigration offences, when can a Court leave convicted someone about whom there is serious doubts about their guilt?

(3) As is often the case, the Court appears to elide the two possibile ways a guilty plea can be appealed (a nullity versus a more general ‘interest of justice’ test). It would not have made a difference.

Judges – Sharp LJ, Goss J, HHJ Kramer QC

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Sadeghi

Citation – [2014] EWCA Crim 2933 (unreported / not on BAILII)

Date – 17th December 2014

Keywords – Conviction, s31, CCRC

Overview – Appeal against conviction following a guilty plea allowed.

Summary – S was an Iranian Christian apostate who left Iran and came to the UK via Turkey, Tanzania and Zambia. He flew to the UK on a false passport, arriving on 5th or 6th January 2012. Thereafter he bought a ticket to Canada (his original destination) and was arrested on 12th January 2012 whilst trying to leave the UK.

He was charged with using a false passport and pleaded guilty on 24th January, being sentenced to 12 months. He claimed asylum on 4th February.

He “was never properly or comprehensively advised about the potential defence which might be available to him” under s31. On a CCRC Reference, the CPS did not oppose the appeal. The immigration appeal was allowed in the First Tier Tribunal and it was held that it was not reasonable for S to have claimed asylum in the above three countries.

Comment – There is nothing new in the judgment by way of law, but it is good confirmation of how far things have moved since before Asfaw. Here, the Court said “It is important to appreciate that the purpose of section 31 is to embed in domestic law the protections provided by Article 31 of the Refugee Convention“, which is absolutely correct, but it is good to see this recognised.

Also, the Court were refreshingly quick to not only allow the appeal, but to say that they were “entirely satisfied that the defence under section 31 would have succeeded“. Considering the journey, the amount of time in the UK and the delay in claiming asylum, this reinforces how wide the s31 defence is.

Judges – Macur LJ, Blake & Dove JJ

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