Tag Archives: Refugee

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

2 Comments

Filed under Uncategorized

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

Leave a comment

Filed under Uncategorized