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Cite as: [2011] 1 Cr App Rep 35, [2010] EWCA Crim 2400, [2011] 1 Cr App R 35

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Neutral Citation Number: [2010] EWCA Crim 2400

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19/10/2010

Before :

LORD JUSTICE LEVESON

MR JUSTICE OWEN
and

MR JUSTICE FLAUX

Case No: 201002204 B1

ON APPEAL FROM THE CROWN COURT AT CHELMSFORD

His Honour Judge Hayward-Smtih Q.C.

T20097134

Between :

	ABDALLA MOHAMED	Appellant
	- and -
	THE QUEEN	Respondent

Case No: 201003034 D4

ON APPEAL FROM THE CROWN COURT AT LIVERPOOL

His Honour Judge George

T20097766

Between :

	MV	Appellant
	- and -
	THE QUEEN	Respondent

Case No: 20102435 C4

ON APPEAL FROM THE CROWN COURT AT CHELMSFORD

His Honour Judge Gratwicke

T20077265

Between :

	RAHMA ABUKAR MOHAMED	Appellant
	- and -
	THE QUEEN	Respondent

Case No: 20102498 D2

ON APPEAL FROM LEWES

His Honour Judge Rennie

T20097357

Between :

	MOHSEN NOFALLAH	Appellant
	- and -
	THE QUEEN	Respondent

- - - - - - - - - - - - - - - - - - - - -

Mr Ian Macdonald Q.C. and Ms Francesca Delany for MV

Mr Ian Macdonald Q.C. and Mr Daniel Bunting for Abdalla Mohamed and Nofallah

Mr Richard Thomas for Rahma Mohamed

Mr Anthony Arlidge Q.C. for the Crown

Hearing date : 28 September 2010

- - - - - - - - - - - - - - - - - - - - -

Judgment

Lord Justice Leveson :

1. Section 25(1) of the Identity Cards Act 2006 (“the 2006 Act”) provides that it is an offence for a person with the requisite intention to have in his possession or under his control an identity document that either to his knowledge or belief is false, or to his knowledge or belief was improperly obtained or that relates to someone else. The requisite intention is either to use the document for establishing registrable facts about himself (not being the person to whom it relates) or to allow or induce another to use it for a similar purpose. The presentation of false documents on entry to the UK and for the purpose of obtaining entry is an obvious example of the vice to which the provision relates.

2. This offence is not, however, absolute. Pursuant to U.K. obligations under Article 31(1) of the Refugee Convention (“the Convention”), s. 31 of the Immigration and Asylum Act 1999 (“the 1999 Act”) provides a defence which (by section 31(3)(aa) of that Act) was specifically amended to apply to any offence or attempt to commit an offence under s 25(1) of the Identity Cards Act 2006 and is in these terms:

“(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

(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.”

3. In each of these appeals, which have no connection with each other save for the similarity of the facts which form the basis of the argument, the relevant applicant pleaded guilty to a breach of the 2006 Act offence and was sentenced to a term of imprisonment. It is now submitted that each was wrongly advised as to the law and could have mounted a defence in reliance upon s. 31 of the 1999 Act. Each has been referred to the full court by the Registrar; during the course of the hearing, we granted leave along with the relevant extension of time.

4. It is necessary, first, to analyse the general scope of the defence under the 1999 Act and, second, the basis upon which it is appropriate to allow a challenge to the safety of a conviction after an unequivocal plea of guilty which followed legal advice. We will then deal with the facts of the four specific cases.

The Defence

5. The background to the legislation is not unimportant. Article 1 of the Convention defines a refugee as 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”. Article 31(1) goes on:

“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 authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

6. It was only in Regina v. Uxbridge Magistrates Court ex parte Adimi [2001] QB 667 that the circumstances of prosecuting for documentary offences those who claimed asylum were first considered. Simon Brown LJ considered the broad purpose of Article 31 and put the matter in this way (at 677G):

“Self evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaking the law. In the course of argument, Newman J suggested the following formulation: where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum whether here or elsewhere, that conduct should be covered by Article 31.”

7. The response of the Government to this decision was to move an amendment to the Immigration and Asylum Bill then before Parliament. It was that amendment which became s. 31 of the 1999 Act although it is to be noted that the legislation contains two aspects that more narrowly define the position than that advanced by Simon Brown LJ namely, in subsection (1) the requirement that anyone claiming protection must have applied for asylum as soon as is reasonably practicable and in subsection (2) that a refugee who has stopped in another country outside the U.K. must show that he could not reasonably have been expected to have been given Convention protection in that other country.

8. The decision in Adimi was subsequently affirmed by the House of Lords in Regina v Asfaw [2008] 1 AC 1061 which concluded (per Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Carswell, Lord Rodger of Earlsferry and Lord Mance dissenting) that the Convention (and the amendment to the 1999 Act) was to be given a purposive construction consistent with its humanitarian aims. It was thus sufficient to include protection of refugees from the imposition of criminal penalties for infractions of the law reasonably or necessarily committed in the course of their flight from persecution, even if they had made a short term stopover in an intermediate country on route to the country of intended refuge.

9. Although the full scope of s. 31 of the 1999 Act was not determined by Afsaw, Lord Bingham did make clear that in order to satisfy the requirement of s. 31(1)(c) the claim for asylum must be made as soon as was reasonably possible (which did not necessarily mean at the earliest possible moment: see para. 16). Second, the fact that a refugee had stopped in a third country in transit was not necessarily fatal: he affirmed the observations of Simon Brown LJ in Adimi (at page 678) that refugees had some choice as to where they might properly claim asylum and that the main touchstones by which exclusion from protection should be judged were the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection de jure or de facto from the persecution from which he or she was seeking to escape: see also R. v MMH [2008] EWCA Crim 3117 at paras 14-15.

10. The upshot of this analysis is that it is open to anyone charged with an offence under s. 25(1) of the 2006 Act to adduce sufficient material to raise an issue that he or she is a refugee and entitled to the protection of s. 31 of the 1999 Act whereupon the burden of disproving that defence will fall upon the prosecution: see R v Makuwa [2006] EWCA Crim 175. It is thus critical that those advising defendants charged with such an offence make clear the parameters of the defence (including the limitations and potential difficulties) so that the defendant can make an informed choice whether or not to seek to advance it. We now turn to consider the consequence if such advice is not given.

Failure to Advise

11. There is no doubt that this Court can entertain an application for leave to appeal against conviction on the grounds that a tendered guilty plea was a nullity. The limited basis of that jurisdiction was explained in R v Evans [2009] EWCA Crim 2243) by Thomas LJ in these terms (at para. 52):

“The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial “is actually no trial at all” (see the opinion of Lord Atkinson in Crane v DPP [1921] 2 AC 299 at 330) or where there has been “some irregularity in procedure which prevents the trial ever having been validly commenced” (see the opinion of Lord Diplock in Rose (1982) 75 Cr App R 322 at 336.”

12. The test for a plea to be held a nullity was elaborated (per Scott Baker LJ in R v Saik [2004] EWCA Crim 2936) as requiring the facts to be so strong as to demonstrate that there is no true acknowledgment of guilt with the advice going to the heart of the plea so that it was not “a free plea”. It is, however, important not to water down the underlying concept of the jurisdiction so as to bring nullity into play purely on the basis of advice alleged to be wrong. For those circumstances, there remains a basis on which this Court can intervene which is firmly grounded in the safety of the conviction. Thus, in R v Lee (Bruce) (1984) 79 Cr App R 108, the approach was articulated by Ackner LJ in this way:

“The fact that [Lee] was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although factors highly relevant to whether the convictions or any of them were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications.”

13. This alternative approach was adopted in R v Boal (1992) 95 Cr App R 272 which concerned the failure to challenge what was held to be the erroneous assumption that an assistant general manager at a bookshop, responsible for the shop during a week in which the manager was absent, was a manager within s 23(1) of the Fire Precautions Act 1971. In quashing the conviction that followed guilty pleas based on that assumption (observing that the appellant “was deprived of what was in all likelihood a good defence in law”), Simon Brown LJ also made clear the additional hurdle that had to be overcome when he said (at 278):

“This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often.”

14. It is against that background of law that we now examine the facts of the four cases which were argued before us.

R v Abdalla Mohamed

15. Abdalla Mohamed, who is a Somali national now aged 27, arrived at Stansted Airport on Saturday 25 April 2009, on a flight from Bergamo in Italy. He was in possession of a Swedish passport belonging to another person which he presented to an immigration officer. The appellant spoke no English and the officer in question spoke no Somali. He was detained and when an interpreter was provided who spoke Somali he claimed asylum on the basis that he was a refugee. He was later arrested and, in due course, charged with an offence under section 25(1)(c) of the 2006 Act.

16. On 7 May 2009, at the Crown Court at Chelmsford, before His Honour Judge Hayward Smith QC, the appellant pleaded guilty to that offence and was sentenced initially to a term of 12 months imprisonment; when the judge realised that this would lead to automatic deportation, he reduced the sentence to 11½ months imprisonment. He now seeks to appeal this conviction on the grounds that he was not advised of the possibility of a defence under section 31 of the 1999 Act and that accordingly his plea was not a proper admission of guilt.

17. Again, it is necessary to summarise the nature of this appellant’s case. During a screening interview with immigration officers which took place on the day of his arrival, the appellant claimed that he had flown from Mogadishu Airport in the company of an agent pursuant to arrangements made by his father, who had paid 3,000 Euros. They had flown for three hours to another airport where people spoke Arabic. They had stayed there for one and a half days, not leaving the airport. He had then caught a second flight that very day but was unable to say how long that flight had taken, other than he believed that it had lasted longer than the first flight. He could not confirm whether they had stopped anywhere else before landing at Stansted, but said that it was possible they had done so.

18. In answer to a question as to his reason for coming to the UK, he said that his intention was to seek asylum in any European country and he had no idea where the agent was taking him. He said that he could not return to Somalia because the country was unstable and he belonged to the minority Ashraf clan who were persecuted. He had to stay at home all the time and could not even go to the local mosque or study. He said that he and his father had discussed his leaving Somalia some two months previously and that his father was concerned about his well-being. He also said that hopefully his family would travel to Ethiopia the following week. We add that the appellant’s claim for asylum has recently been refused by the Borders Agency: we were informed that the appellant intends to appeal that decision.

19. For the purposes of the criminal proceedings, the appellant was represented by Mr Richard Conley, a solicitor advocate and partner in Taylor Haldane Barlex LLP. The appellant asserted that he had not received advice about the possibility of mounting a defence under s. 31 of the 1999 Act and waived privilege. In a response dated 18 June 2010, Mr Conley said that he was able to say with confidence that he would have advised the appellant about the statutory defence because at the time that he represented the appellant, he was also briefed to represent another defendant who had come from Iran to the UK via another EU country whom Mr Conley had advised about the availability of the defence and who was proposing to run it at trial. He said that it was inconceivable that having researched the availability of that defence for that other client he would not have advised the appellant as to the existence of the defence. In order to resolve this issue, the Court heard the evidence of both the appellant and Mr Conley de bene esse.

20. The appellant’s evidence about the court hearing and events surrounding it was somewhat vague. He appeared to have no clear recollection, even of whether he was being asked to plead guilty or not guilty. Although he claimed that he was told by the lawyer to plead guilty, he said that he could not remember any discussion about the availability of a defence.

21. Mr Conley, on the other hand, told us that his firm was located in the catchment area for Stansted Airport and he had represented at Chelmsford Crown Court dozens of defendants who had entered the country on false documents, at the rate of two or three a month. He could not recall specifically this particular case and had not been able to find his counsel’s notebook in which he would have made notes of his conference in the cells. He was confident as to his usual practice, which would have involved informing the appellant about the possible statutory defence.

22. Reconstructing what he would have thought about this particular case, he thought that the sticking point for the appellant was the period in transit, including spending a day and a half at an airport in Italy. He said that he would undoubtedly have advised the appellant that if the prosecution could show that he should have claimed asylum when he had an opportunity to do so in Italy, the defence under section 31 would fail.

24. Mr Conley was asked whether there were difficulties in explaining, through an interpreter, the complex concepts that this defence involved. He explained that he had experience, from many cases, of Somali interpreters appointed by the Court. Some were very good and others not so good. With a competent interpreter, it was possible to be confident of the defendant understanding the concepts; with a less competent interpreter, it would be necessary to work harder to ensure the defendant understood.

25. We accept Mr Conley’s evidence that he would have followed his usual practice in the present case. We consider that he did provide the appellant advice about the availability of a defence under section 31, including the difficulty of running such a defence, given the terms of section 31(2) and the fact that he had spent one and a half days at an airport in another country. Having heard the appellant’s evidence, we are not sure to what extent he was really in a position to challenge that he was given advice about the statutory defence, in the light of his poor recollection of events. To such extent as it is said to support the allegation of inadequate advice, we do not consider it capable of belief although the better way of putting it may be that even if we had accepted the evidence, it would not afford a ground for allowing the appeal: see s. 23(2) of the Criminal Appeal Act 1968.

26. For the avoidance of doubt, however, to the extent that there remained a conflict of evidence about whether the advice was given, we preferred the evidence of Mr Conley. We are also satisfied that Mr Conley would have satisfied himself that the appellant understood the advice that was given, so there is no scope for Mr Macdonald’s fall back position that even if the advice was given, the appellant did not understand it. Furthermore, we consider that such advice as to the difficulty of running the defence in this case was appropriate advice in all the circumstances and the submission that the appellant was given no advice or the wrong advice is misconceived. Accordingly, there is no basis for setting aside the plea of guilty.

27. Even if we had concluded that no advice had been given, we would still have concluded that the plea of guilty should not be set aside. There was no reasonable prospect of a defence under section 31 succeeding, given the facts of the appellant’s case as they emerged in the screening interview and to an extent in cross-examination: (i) he was extremely vague about the journey from Mogadishu and in particular where he had come from when he entered the UK, notwithstanding that he was being interviewed on the same day as he had flown into the country and that he had never been on an aeroplane before, so that he might have been expected to have a greater interest in where he was going; (ii) he had said that hopefully his family would travel to Ethiopia the following week and did not explain why he could not have also gone there or suggest that he would not have been safe in Ethiopia: (iii) he had no specific desire to go to the UK but just to any European country and (iv) he had in fact come into the UK on a flight from Italy and given his inability to say whether the flight had stopped somewhere else after leaving the airport where he had spent one and a half days, a jury would in all probability have concluded that that time had been spent in Italy. Against that background, we consider that section 31(2) would have presented real difficulties standing in way of any defence under section 31(1).

28. Accordingly, there is no arguable basis for saying that the conviction is unsafe and the appeal is dismissed.

R v MV

29. MV (wrongly indicted as MW) is an Iranian national. On 7 August 2009 he arrived at Liverpool John Lennon airport from Reus in Spain. At immigration control he presented a false Bulgarian passport in the name of Stanimirov. He was arrested and in due course charged with an offence under section 25 of the 2006 Act. On 7 September 2009 he appeared in the Crown Court at Liverpool where he pleaded guilty to possession of a false identity document with intent and was sentenced to 12 months imprisonment. He now seeks to appeal this conviction on the grounds that he was not advised of the possibility of a defence under section 31 of the 1999 Act and that accordingly his plea was not a proper admission of guilt.

30. In order to analyse the circumstances, it is necessary to set out the facts in some detail. This appellant was born on 23 December 1977 and is therefore now 32 years of age. He has filed a witness statement in support of his appeal dated 16 September 2010 in which he gives a detailed account of the circumstances in which he left Iran and travelled to the United Kingdom. Mr Arlidge QC (for the Crown in each of these appeals) accepts that its contents are consistent with the screening interview carried out on 7 August 2009 and the asylum interview carried out on 26 November 2009.

31. According to the witness statement, the appellant was born in Abhar, a city in the North West of Iran. He married in October 1998 and has a son born in August 1999. His wife and son are still in Iran. In June 2009 he became involved in demonstrations against the Iranian government. On 15 June he travelled by bus to Tehran with a number of friends and relations. They joined a demonstration; but he became separated from the group, and was subjected to physical violence at the hands of what he described as soldiers. He was taken into custody and was detained for 16 days during which he was interrogated and subjected to torture. It is not necessary for present purposes to particularise the treatment that he claims to have suffered at the hands of the authorities.

32. He was able to escape with outside assistance arranged, he thinks, by his father and an uncle. The arrangements involved his being supplied with a drink containing soap that provoked symptoms indicative of illness with the consequence that he was transferred to hospital from which he was able to escape. Arrangements had been made for him to be taken to Turkey in the back of a lorry. The agent who accompanied him on the journey provided him with an Iranian passport, and after arrival in Ankara arranged for the passport to be endorsed with a visa for Syria. He then travelled to Syria by air and on arrival was taken to a flat where he stayed for a week. He was then taken by the agent to an airport from which he flew to Spain. He was in transit in Spain for about three hours, during which he did not leave the airport. He was then given the Bulgarian passport the subject of the charge, and was told that he would be on his own when he arrived in the United Kingdom. Up until that point he had been told to follow the agent, and to do what he said at all times.

33. A witness statement from an immigration officer on duty at Liverpool John Lennon airport on 7 August 2009 states that he was approached by the appellant who handed him the Bulgarian passport which the officer immediately recognised as a forgery. The appellant gave his name and date of birth. He also gave his nationality as Iranian and told the officer “… that he had problems in Iran.” In the course of the screening interview carried out on the same day he was asked the standard question as to why, if he had stayed in a country or countries before arriving in the United Kingdom, he had not applied for asylum before arriving in the UK. His answer is recorded in the following terms:

“Turkey and Iran are hand in hand. There is nowhere safe in Turkey and my father asked to take me to a safe country.”

34. On 8 August 2009, when charged with the offence, the appellant was represented by a duty solicitor, Graham Polson of Canter Levin and Berg. Mr Polson also represented him on his appearance at the Liverpool City Magistrates’ Court two days later when he gave him advice as to his plea. In his witness statement, dated 21 May 2010, Mr Polson states in terms that at no time did he advise the appellant on the statutory defence under section 31. Having pleaded guilty at the Magistrates Court, the appellant was committed to the Liverpool Crown Court for sentence where he was represented by Mr Brendon Carville of counsel. In his note to the Registrar, Mr Carville says that he took the view that there had been a bona fide plea before the Magistrates, and, further, that the statutory defence under section 31 did not apply as the appellant had not come directly to this country from Iran. Thus, although Mr Carville addressed his mind to the issue, his note is consistent with the appellant’s evidence that even when he appeared in the Crown Court, he was not, in fact, given advice as to section 31.

35. The appellant was only too aware that he had entered the UK using false documents and, on the basis of the evidence we have summarised, before the case was disposed of, counsel did address the issue of a potential defence. In the circumstances, we are not prepared to conclude that the plea was a nullity but we recognise that the circumstances potentially render it unsafe and so consider the merits of the potential defence.

36. Although there has yet to be an adjudication as to the appellant’s refugee status, in his skeleton argument, Mr Arlidge QC conceded that “amongst the details he produced to the Border Control Officer, the Probation Officer and the court, there are matters which might lead to a conclusion that he is a refugee”. He suggested that it might be advisable for the appellant to make a more detailed statement for the assistance of the court dealing with his escape from custody and the issue of danger to life and freedom which he has now done and it is accepted by the Crown that its content is consistent with the information given in the course of the screening interviews. In the circumstances, we are satisfied that had the defence under section 31 been raised, the appellant would have been able to adduce sufficient evidence in support of his claim to refugee status to shift the burden to the prosecution to prove that he was not: see paragraph 9 above.

37. It is also conceded by Mr Arlidge that the appellant presented himself to the authorities in the United Kingdom without delay, and made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

38. The remaining issue with regard to the availability of the statutory defence is whether the appellant could have discharged the burden under section 31(2) of showing that he could not reasonably have been expected to have been given protection by the Convention in the countries through which he passed en route to the UK. It was accepted by the Crown that if his stay in Spain was limited to three hours in transit at the airport, he could not reasonably have been expected to seek asylum in that country. It was also accepted that he could not reasonably have been expected to do so in Syria, given that it is not a signatory to the Refugee Convention. As to Turkey, the statement that the appellant made to the immigration officer in the course of the first screening interview to which we have already referred, was supported by the report from Amnesty International “Stranded - Refugees in Turkey denied protection” dated April 2009, and Mr Arlidge QC did not seek to argue that the appellant ought to have sought asylum in that country. It follows that it is highly likely that the appellant would have been able to discharge the evidential burden imposed by section 31(2).

39. We are therefore satisfied that this appellant would have had a good prospect of a successful defence under section 31. Given that he was not at any stage advised as to the availability of the statutory defence, we are also satisfied that notwithstanding his plea of guilty, the conviction was unsafe. We therefore allow this appeal and quash the conviction.

R v. Rahma Abukar Mohamed

40. On 9 August 2007, at Stansted airport, Rahma Bukar Mohamed (then aged 32) entered the UK on a flight from Eindhoven. She approached an immigration officer saying that she had arrived from Holland and presenting a genuine UK Convention travel document along with a UK asylum registration card in the name Ayni Abdalla. The officer noticed that the photograph was not that of the appellant; when questioned she revealed her correct name and age. She then claimed asylum. On the following day, the appellant was arrested and, after interview, charged with two offences each of possession of a false instrument under s. 25(1) and 25(5) of the 2006 Act.

41. On 21 August 2007, at a preliminary hearing in the Crown Court at Chelmsford, the appellant pleaded guilty to both offences and was sentenced by His Honour Judge Gratwicke to 15 months and 3 months imprisonment respectively, the sentences to run concurrently. She now also seeks leave to appeal her conviction (and an extension of time within which to do so) on the basis that she was not advised of the possibility of mounting a defence under s. 31 of the 1999 Act.

42. Her account, set out in her screening interview and amplified in a witness statement, can be shortly summarised. The militia in Somalia had shot her in 2000 due to her ethnicity and in 2004 she was threatened with rape (although a neighbour intervened and prevented the attack); in May 2007, she was assaulted by the militia and suffered a dislocated arm; she feared she might be killed. Thus, leaving her husband and children but accompanied by an agent who had been paid US $3,000, she had left Somalia and travelled by lorry to various African countries. She then flew to Holland arriving on 6 August: she did not know where she was and only knew that she was on her way to the UK (which was her destination of choice because she knew that members of her clan were here). She was subsequently taken to the airport and provided with the documents she later presented to the immigration authorities at Stansted. In her witness statement, she put the matter in this way:

“When I arrived in Holland, I did not even know that I was in Europe; only that I was on my way to the UK .... I was frightened that I would be abandoned if I did not do what the agent had told me to do.

The agent took me to some friends of his in Holland who we stayed with for three days. During these days I did not speak to the other people at all. I felt extremely frightened and alone. I did not ask the people about Holland ... It did not occur to me to claim asylum at this point. I would not have known where to go or who to speak to. All I knew is that I had to do what the agent said and that he was going to take me to the UK and that I should stay with him at all times.”

43. Conditions in Somalia and the likely persecution of Ms Mohamed’s sect have been confirmed by Professor Lewis, an acknowledged expert upon life in Somalia; he also confirmed the cultural background that explained her obedience to each and every instruction issued by the male agent. It is pertinent to add that, although initially refused asylum, Ms Mohamed was successful on appeal and has now been granted leave to remain for five years in the UK as a refugee.

44. She maintained that she was advised by her representatives to plead guilty and was not told that she had or may have a defence. There is no evidence from the lawyer who apparently represented the appellant when she was interviewed but, on her first appearance in the Magistrates Court after charge, the duty solicitor, then Mr Gary Ryan of Buxton Ryan, appeared on her behalf. After the appropriate waiver of privilege, he has made it clear that his firm had not previously represented her and that his advice on that occasion was limited to the procedural issues. He did not provide Ms Mohamed with any advice as to plea but instructed counsel to appear on her behalf. Mr Rio Pahlavanpour of counsel has written to the effect that he “advised fully as to the elements of the offence, including the requisite intention contained in subsection 2 of section 25” and that it was on this basis that she was advised to enter a plea of guilty. Although the point in issue was flagged, counsel did not address the possibility of mounting a defence under s. 31 and has not since done so.

45. In the light of the absence of contrary evidence and the circumstances, Mr Arlidge QC does not challenge the proposition that this appellant was not advised of the potential defence open to her and accepts that she had a good prospect of successfully establishing that she came directly and that, in any event, it was reasonable for her not to claim asylum in Holland. Thus, he does not oppose this application or the appeal.

46. Mr Thomas, who appeared for Ms Mohamed in this Court, was content to approach the appeal on the basis that these convictions were unsafe. We agree with both counsel. In the circumstances, the appeal is allowed and the convictions are quashed.

R. v. Mohsen Nofallah

47. On 2 August 2009, this appellant arrived at Gatwick airport having arrived on a flight from Athens. He handed the immigration official a Danish passport in the name of Soren Howell but made no response to questions put to him, save eventually to nod when asked if he was Iranian. The passport was found to be counterfeit with a substituted biodata page. He was arrested and, on 21 August 2009, appeared in the Crown Court at Lewes before His Honour Judge Rennie where he pleaded guilty to a contravention of s 25 of the 2006 Act. He was sentenced to 8 months imprisonment. He now seeks leave to appeal his conviction and an extension of time on the grounds that he was not advised of a potential defence under s. 31 of the 1999 Act and could successfully have relied upon it.

48. The appellant’s various accounts to the authorities have not been entirely consistent in that they have developed although it is clear that, either to the immigration authorities or the police, he claimed asylum. In his screening interview, he explained that he had been arrested and accused of embezzlement; because he could not prove that he was innocent, he was sentenced to two years imprisonment but bailed pending appeal; as a result, he had to escape. He later explained to his criminal solicitor, Mr Anthony Eden of Frame Smith & Co. that he had been employed as a bank manager and, in that capacity, granted a loan which had been approved by his superiors: the loan had later been found to have been obtained using false documents. When the borrower defaulted, he was prosecuted to conviction and, after five years, his appeal failed and not only ordered to serve the sentence but also ordered to pay compensation. He feared that if he went to prison he would never be released until the money was paid and could have faced execution. Thus he fled. The handwritten note of his instructions goes on:

“Nothing to do with political problems.”

Mr Eden then advised that there was no defence and instructed counsel accordingly.

49. By the time that the appellant appeared in the Crown Court, his instructions were more extensive. It was explained to Judge Rennie that, with his daughter, the appellant had been on a demonstration against the recently disputed elections in Iran, his photograph had been taken and he had been identified by the intelligence services. It was further put that he believed that the two issues (the embezzlement and the identification by the intelligence services) were “inextricably linked”. In later statements for the purposes of his claim to asylum, he elaborated further and also explained that the authorities had raided his house in his absence and his wife had three times been detained and interrogated.

50. The appellant’s claim for asylum was originally rejected. On appeal, the Immigration Judge focused on the appellant’s involvement with his daughteer in the political demonstration (in which he said that both used and was treated with violence); he found the appellant a credible witness who would be at risk if he was returned to Iran; the appeal was successful both on asylum and Article 3 ECHR grounds. It does not appear that the allegation of embezzlement and the conviction was ever mentioned: not only is there no mention of it but the Immigration Judge specifically emphasised that the appellant was a middle aged man with “a good future ahead of him in Iran if he had not become involved in this demonstration”.

51. As for his travel out of Iran, he has consistently explained that he left Iran on 1 July in a lorry (paying the equivalent of between 7,000 and 8,000 Euros); he remained in the lorry for 25 days, the lorry driver offering to drop him off anywhere that was suitable. He ended up in Athens (not applying for asylum in intermediate countries because he did not know where he was and could not speak the language), spent two weeks locked in a flat in Athens and then flew to the UK.

52. Section 31 of the 1999 Act applies only in the case of a refugee (which, using the definition within Article 1 of the Refugee Convention defines a refugee as set out in paragraph 5 above). If the appellant was simply seeking to avoid the consequences of his criminal conviction (specifically disavowing ‘political problems’), it is difficult to see on what basis he would qualify. In those circumstances, we reject any suggestion that he was not properly advised by his solicitors. What was later to emerge before the Immigration Judge cannot affect the advice given on the basis of the instructions which Mr Eden then received.

53. By the time counsel was instructed, however, the position was slightly different in that the political dimension surrounding the investigation was part of the appellant’s instructions and was advanced in mitigation to the judge. The appellant having waived privilege, Leesha Whawell of counsel was asked about her advice to the appellant. In a candid letter to this Court, she agreed with the advice of counsel now advising the appellant that he had what was, potentially, a good defence; she accepted full responsibility for failing to advise him of it. Had it not been for the additional material placed before the Crown Court, we would have wanted to investigate that concession (and its consistency with the instructions from solicitors) in rather greater detail.

54. Having regard to the circumstances, however, we do not seek to do so but are prepared to accept it at face value. We also accept that he satisfies the criteria under s. 31(1) of the 1999 Act subject only to the exception in s 31(2) and whether he came directly or could reasonably have been expected to claim asylum in Greece. Only because of the very favourable impression that this appellant made upon the Immigration Judge (putting to one side that the judge does not appear to have known about the embezzlement conviction), we are not prepared to conclude that the defence would have failed and that a jury would not have been entitled to accept his account that he had been locked in a flat in Athens and conclude that he had done no more than engaged in a “short term stopover” within the meaning of that phrase as explained in Adimi.

55. Not without some hesitation, we are prepared to conclude that this appellant’s conviction is unsafe and is quashed.

Concluding Remarks

56. These cases are characterised by allegations that those advising illegal entrants to this country have simply failed to ensure that the scope of the potential defences to an allegation of breach of s. 25 of the 2006 Act have fully been explored. If the circumstances and instructions generate the possibility of mounting a defence under s. 31 of the 1999 Act, there is simply no excuse for a failure to do so and, at the same time, properly to note both the instructions received and the advice given. If these steps are taken, cases such as the four with which the Court has just dealt, will not recur and considerable public expense (both in the imprisonment of those convicted and in the pursuit of an appeal which will involve evidence and waiver of privilege) will be avoided.