England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22 November 2012

1. THE VICE PRESIDENT: This defendant pleaded guilty at the Crown Court to offences of possession of identity documents with improper intention. He appeals against his conviction on the grounds that he had available a sound legal defence under section 31 of the Immigration and Asylum Act 1999. He contends that the advice given to him by his trial advocate was, although otherwise careful, in this respect in error.
2. The defendant arrived at Gatwick Airport on 31st May 2012. As we shall explain in a moment, the precise sequence of events at passport control is surrounded by some limited penumbra of doubt. But what is clear is that he had in his possession a French passport in the name of Marcelle Girette and a French identity card in the same name. Both were in fact forgeries. The passport had a bogus bio data page inserted into what had once been a genuine passport and the identity card was wholly counterfeit.
3. The falsity of the documents was spotted and so he was detained. It turned out that his fingerprints were on record in this country because he had made an asylum claim here in the past which had been refused.
4. From a stage before he was interviewed by the police he was advised by a very experienced local solicitor who was well familiar with immigration cases and in due course that gentleman represented the appellant at the Crown Court. Since it is contended that the advice which the appellant was given was in some respects erroneous, the defendant has chosen to waive privilege. That has been very helpful because the result of it is that we have a very full and careful statement from the solicitor in question, which both sides to this appeal accept as factually accurate and complete. This is known: that the defendant's case, as advanced through his solicitor by way of mitigation after his plea of guilty, was as follows. He is an Iranian citizen. In the early 2000s he was in this country as a student and had a student visa permitting him to be here. In 2006 he made an asylum claim, claiming that he was fleeing from persecution in his home country. That was rejected after investigation by the Secretary of State. The appellant appealed that, no doubt to the adjudicator as it would then have been, and it may be further, but certainly by 2008 all his legal routes of appeal were exhausted.
5. In that year, 2008, he returned to Iran. He had not been deported, although no doubt that would have happened had he not returned. He said that the reason that he returned was that his father had died and he went back to be with the family. Thereafter, according to the account which he advanced, he had been suspected in Iran of being a British spy, detained for about ten weeks and subjected to physical ill-treatment. He had then been released but he was politically active, taking part in anti-government demonstrations, and he also incurred disapproval because he pursued an affair with a girlfriend who was now a married woman, he says because she had been pressured by her father into marrying someone else.
6. With that background he asserted that he had left Iran a second time because he had a genuine fear of persecution there and he asserted that it was his intention to travel by one way or another to the United Kingdom and to make a fresh new claim for asylum here. He went initially to Turkey where he stayed for about a month and while he was there, he says, he sought out an agent, a fixer, who he says agreed for a fee of €12,000 to get him to the United Kingdom. Through the assistance of either that agent or a further agent, he journeyed from Turkey to Greece on a different false passport and after two to three days in Greece he moved on to Rome, again travelling on some form of false documentation. He spent three or four days in Rome and then, as arranged he says by the person helping him, he went first by train to Bologna and then there boarded the flight which brought him to Gatwick and to the beginning of the story that we have told. He has said throughout that his object was to claim asylum here. Whether he is indeed a refugee or not remains undetermined. We are told that he has now undertaken the first screening interview by the immigration authorities, but his claim to be in fear of persecution has yet to be decided upon by the Secretary of State, still less has it been tested in the tribunal.
7. Subject to the possibility of the statutory defence under section 31 of the Immigration and Asylum Act 1999, there can be no doubt that the defendant was guilty of the offences of possession of the two false identity documents with the necessary improper intention. On any view he knew that they were false and on any view he had them with him with the intention of using them to establish personal information about himself - in other words with a view to passing under the false identity that they provided.
8. So the question revolves around section 31. Section 31 is a statutory defence which was introduced into English law, as the solicitor originally acting for the defendant rightly says rather belatedly, in order to give effect to article 31(1) of the Refugee Convention. Article 31 provides:

"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."

When that provision of the Convention to which this country has been a signatory for a great many years was given effect, it was given effect via section 31 of the Immigration and Asylum Act 1999 inserted by the Identity Documents Act 2010. Section 31 provides as follows, under the side heading: "Defences based on article 31(1) of the Refugee Convention:

"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."

The solicitor who acted for Mr Jaddi in the Crown Court was very familiar with this section. He considered it and he advised Mr Jaddi that he had no defence and that he ought to plead guilty. The submission which is now made is that that advice was erroneous because the defendant did have a defence which could have been advanced before the jury; indeed Mr Halim submits that it would have been bound to succeed.

9. This court does have power to entertain an appeal against conviction even though the defendant pleaded guilty in the trial court. It is very rarely appropriate to do so because in the ordinary course of events a plea of guilty amounts to an admission of the facts which amount to the offence. There is a very limited exception where the plea of guilty is a nullity, but that is clearly not an arguable possibility here and nor is it contended.
10. Another situation in which the court can hear an appeal against conviction despite a plea of guilty is if this court is persuaded of two things. First, that the plea was tendered on advice which was wrong and also, secondly, that there was a defence which would quite probably have succeeded so that a clear injustice can be shown to have occurred. For those propositions see R v Boal (1992) 95 Cr.App.R 272. It is that jurisdiction described in Boal which Mr Halim contends we should exercise in this case. He reminds us, correctly, that this court has done so in the context of the section 31 defence in at least two cases, one of which is reported as R v Mohammed (Abdalla) [2011] 1 CrAppR 35. There the court considered four cases in all. It considered whether the defendant had received advice as to the section 31 defence or not and it considered whether the defence would have been available or not. In those cases this court found that in one of them, the first, there had been advice about section 31 and the defendant had been left to make an informed decision of his own as to whether to advance the defence or not. Accordingly, his appeal failed. In the other cases the court was satisfied that no advice at all had been given and went on to consider whether the defence under section 31 had good prospects of succeeding. It concluded that it had, but in two of those cases there was an express concession of the point by the Crown at the appeal and in the third, counsel who had appeared at trial expressly conceded that she ought to have advised that the defence could succeed. So the cases which succeeded in Mohammed (Abdalla) were cases where the point was substantially conceded.
11. In the present case, it is perfectly clear to us that the defendant, unlike the three successful applicants in Mohammed (Abdalla) did receive advice and indeed thorough and careful advice from the solicitor who acted for him in relation to section 31. The plea that he entered as a result was plainly unequivocal, but we agree with Mr Halim that unlike the case of the first defendant in Mohammed (Abdalla) the advice that this defendant received was not an explanation of how the defence could be run, with an invitation to him to make up his own mind whether to advance it or not; this was a case in which the advice received was that the defence was simply not available. The solicitor says with complete transparency, such as one would expect from an officer of the court, this:

"I did not discuss the statutory defence in any detail with Mr Jaddi as it seemed clear to me that whilst a court might well accept that his 2006 claim for asylum could be disregarded as he had fresh reasons to seek asylum, his time spent in Italy where he was supplied with the false French documents meant that he could not succeed under section 31."

12. It follows that we are persuaded that what we will call the Boal exception is available to the defendant and there is jurisdiction to entertain the appeal. The question then becomes: 'Did the section 31 defence have good prospects of succeeding?'
13. There are in section 31 two potential obstacles to this defendant successfully relying on the statutory defence. The first is the one that principally concerned the solicitor who advised him. It arises from a combination of the words in section 31(1): "Having come to the United Kingdom directly from a country ..." (our emphasis), together with the provisions of section 31(2) which effectively say that the defence is not available if the refugee stopped in another country where he could reasonably have been expected to make his asylum claim.
14. The second potential obstacle to the defence in this case arises from the terms of section 31(1)(c). Those require for the defence to succeed that the claim for asylum be made as soon as was reasonably practicable after arrival in the United Kingdom. We take those two potential hurdles in turn.
15. Although Mr Robinson for the Crown has drawn our attention to the fact that the defendant stayed for something like a month in Turkey and for some days in Greece, he does not in the end contend that in either of those countries the defendant could reasonably have been expected to have made his asylum claim. Turkey is a place where, for him at least, appropriate refugee protection could not be relied upon. Greece is a friendly country, a member of the European Union and a signatory to the Refugee Convention, but it is right to say that there are currently some reservations in this country about its methods of dealing with refugees. As we understand it, currently it is unusual for a person to be returned to Greece under the terms of the Dublin Convention 1990 for asylum claim to be made there. That being so, that would bear on the question of whether a person could reasonably be expected to make a claim there in the first place. Accordingly, it is necessary to concentrate, as the trial solicitor did and indeed as Mr Robinson in the end does here, on the stay in Italy.
16. On the defendant's behalf Mr Halim's careful submission is that the solicitor's advice that this stay in Italy was fatal to the statutory defence is erroneous. It overlooked, says Mr Halim, the availability to the defendant of the contention that he had merely been in transit in Italy and that therefore he was not to be treated in law as having "stopped" there for the purposes of section 31(2). Says Mr Halim, that follows from the decision of the House of Lords in R v Asfaw [2008] UKHL 31, [2008] 1 AC 1061. That was an in-transit case of a slightly different kind. The defendant travelled through Heathrow and was stopped when presenting a false passport outward bound for Washington at the boarding gate. She had arrived at Heathrow not many hours beforehand, but because of the flights that she was taking and the manner of her travel she had crossed from air side to land side and was presenting herself at the boarding gate to board a flight to Washington. The actual issue in Asfaw was quite different. It was whether the section 31 defence applies not only to the offence to which it is made explicitly referable, namely the identity documents offence, but also to the additional offence with which Mrs Asfaw was charged of attempting dishonestly to obtain services, that is to say the proposed flight to Washington, by deception. The decision of the House of Lords was that in order to give effect to this country's obligations under the Convention not to punish refugees who are present without authorisation, provided they fulfil the necessary conditions, the defence had to be extended beyond its explicit terms to apply also to the offence of obtaining services by deception. However, it is right to say that in thus concluding the House of Lords accepted a proposition which derives from the judgment of Simon Brown LJ in R v Uxbridge Magistrates' Court ex parte Adimi [2001] QB 667 at 687. That was an observation to the effect that in order to give effect to the Convention it is necessary not to punish those who are merely in transit in a third country or, in Mrs Asfaw's case, in this country. A person who is genuinely in transit does not, on the authority of Asfaw, lose the protection of the Convention and thus of section 31.
17. Adimi, it is necessary to remind ourselves, was a decision made before section 31 and its statutory defence came into existence. Indeed the statutory defence came into existence very largely because of the decision in Adimi. It follows that Adimi could not provide any decision on the construction of section 31 as eventually enacted, but Asfaw could and did.
18. The defendant's instructions appear to have been, in this respect consistently, that he had not claimed asylum in either of the other two countries and particularly in Italy because he was bent on claiming asylum here. He said that he was bent on claiming asylum here because his agent had advised him that since he had been here before and had made a claim here before that is what he ought to do. We are unable to see that the fact that he had that advice in his agent is determinative, but that certainly was his case. We observe also that the Secretary of State appears to be processing the claim which the defendant has made to asylum in this country and does not appear to be asserting that he ought to be returned to Italy under the terms of the Dublin Convention.
19. It may at first sight appear a little surprising that the explicit terms of section 31(2) may not catch defendants such as this one, if they have passed for some days through another country in which they could reasonably have expected the same approach to be given to an asylum claim as would be given to it here. But we are, we think, compelled by Asfaw to conclude that it is possible that the defendant could have advanced the section 31 defence despite the few days stopover in Italy. We do not say whether it would have succeeded or not, but we think it had sufficient prospects of success for it to be right for us to have regard to it and to provide him with a reason for quashing his conviction.
20. The second hurdle is different. As we have said, section 31(1(c) requires for the statutory defence that a defendant made his claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. Mr Robinson for the Crown contends that the defendant transparently failed to do so. Finding himself successfully at Gatwick Airport in the presence of the uniformed officials of Her Majesty's Customs and the immigration officers, the defendant did not announce his claim to asylum. Instead, says Mr Robinson, he produced first one and then a second false document and, says Mr Robinson, the clear inference is that what he was trying to do was to get into the country and disappear.
21. There appears to be, to us, the limited penumbra of uncertainty to which we referred earlier about precisely what happened at the immigration control and because of the defendant's plea of guilty it was never investigated. The statement of the immigration officer contains two propositions. One a global one and one on the face of it a particularisation of it. The global one is that the defendant approached her desk and handed her the French passport and the French identity card. However, she goes on to say that she examined the passport, that she suspected that it was false because it did not scan on her machine and that she told the defendant that, whereupon he produced the identity card. Thereafter she says that she asked him where he had come from and he replied, truthfully, Bologna. At that stage she said because she was not satisfied that he should be admitted formally, she issued him with the necessary Home Office form advising him that he was being detained. If that is right he had omitted any claim to asylum not only on first arrival at passport control but also when his passport failed and instead chose to provide a second forged document.
22. He, however, in a statement which it has to be said has only been made since the proceedings in the Crown Court, gives a slightly different account. He says that the officer tried to scan his passport and that it would not scan. He says that he remembers her then going off to check with a colleague, but more importantly he says that when she came back with her colleague, the colleague asked him his nationality and he said both that he was Iranian and that he was here to claim asylum. On the face of it, that does not explain the tendering of the identity card, because in the ordinary way one would only tender the passport and one would only get to tendering the identity card if there was something wrong with the passport.
23. There is further doubt about it because according to the solicitor who represented him at the Crown Court, he had enquired of the defendant whether he had identified himself as an asylum seeker to the officers at Gatwick. He had done that not so much because he was investigating the application of section 31(1(c), as because he wondered whether if the defendant had made it clear from the outset that he was an asylum seeker he had ever had the necessary dishonest intention in respect of the use of the false documents. But whatever the reason for the enquiry, the answer that he had had from the defendant, he says, was that the defendant had handed the passport and identity card to the immigration officer, who had asked "What is your nationality?", and then he had said who he was and that he was here to claim asylum. So he told the solicitor that he handed both the passport and the card and on the face of it one would have thought they must have been handed in sequentially rather than together, as the officer says. But there is doubt about all of that and it has never been investigated.
24. The defendant also says through Mr Halim that he always intended to go to Croydon where he knew the immigration authorities had their offices which deal with asylum and that is where he was going. Further, says Mr Halim, there was no sign up at Gatwick to say that asylum seekers must identify themselves immediately. Accordingly the defendant was, says Mr Halim, bound to succeed in the statutory defence because he had not failed to make his claim for asylum as soon as was reasonably practicable. It is apparent that by the time this defendant got to Gatwick there was not, on his own account, any question of him going to any other country. This was the place he says where he wished to claim asylum.
25. The plain purpose of article 31 of the Convention and of section 31 which derives from it is to avoid criminalising genuine asylum seekers simply because they use false documents to get themselves to the place where they can make their asylum claim. Everybody understands that if you are fleeing from persecution you may very well be unable to travel on your own passport. However, the purpose of article 31 and section 31 is not to enable such a person to gain entry to the safe country of his choice unrestricted and there to live illegally and make his asylum claim when he feels like it. Still less is it to enable him to live illegally until he is caught and then make his asylum claim.
26. The destination country is, as it seems to us, plainly entitled to take the stance which the judge in this case echoed when he was sentencing the defendant. That is that it is necessary to protect its borders and to know who is passing through them. In very general terms, it seems to us that 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. Moreover, from the point of view of sensible immigration control, that makes sense. It is a great deal more difficult to discern whether a claim to be a refugee is genuine if it is not made until some time later and especially if it is only made when it is forced on the claimant by discovery that he is living illegally.
27. Mr Halim's submission however is that the combination of Asfaw with Adimi is to preclude that approach to section 31. We respectfully disagree. It is correct to say that in Adimi Simon Brown LJ expressly rejected the submission made in that case that Mr Adimi failed to come within article 31 of the Convention because he had not made his claim at arrivals but only some time a little later. Adimi however is a decision on the Convention and not on the terms of section 31 which are and were presented to Parliament as intentionally a little narrower. Moreover, Adimi is a decision of the Divisional Court and not binding on this court. It is also true that the passage in Simon Brown LJ's judgment to which we have just referred was quoted without qualification by Lord Bingham in his speech in Asfaw at paragraph 16. But of course the point did not arise in Asfaw for decision and there is no such reference in the other speeches. Moreover, Lord Bingham makes clear in paragraph 24 that when section 31 was introduced into Parliament it was a deliberately narrower definition in some respects than the terms of article 31 and one of the respects in which it is narrower is the specific requirement of section 31(1)(c) which we are now addressing. Is there nevertheless plain principle to be derived from the proposition as enunciated by Simon Brown LJ in Adimi? It seems to us that the principle is limited. In reaching the conclusion that he did there, Simon Brown LJ referred to the practical necessities encountered by refugees and particularly to the work of Mr Grahl-Madsen, the Status of Refugees in International Law [1972] 2 page 219. He observed, citing that work, that a person crossing a frontier illegally may have good reason for not giving himself up at the nearest frontier control point. He may be perfectly reasonable in finding his way to the capital or another major city.
28. We entirely agree that there may be situations in which it is perfectly reasonable to act in that way. That may especially be so if the traveller genuinely believes that he would be simply sent back immediately or if he arrives on a remote beach and simply has to find his way somewhere. He is not, one would anticipate, normally to be criticised for not having found the police station that is nearest. But the situation described by Grahl-Madsen and endorsed by Simon Brown LJ and by Lord Bingham is quite a long way away from the situation of a traveller who is arriving at an English major airport and is in the hands of officials.
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. Accordingly, in the Crown court it is a question for the jury. 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. It will also need to establish precisely what happened. For the reasons which we have explained, we do not think the facts in this case are sufficiently clear and no jury has ever applied its mind to the question of whether this defendant made his claim for asylum as soon as was reasonably practicable or not.
30. Beyond attempting to express the general considerations which we have, it is not for us to decide that question. We confine ourselves to saying that, as it seems to us, for the reasons which we have endeavoured to give, 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. Whether that applies to this defendant or not remains to be decided. The point has never been investigated and nor has the transit question where his case is rather stronger. We are satisfied that there was a defence under section 31(2) which was available to him to advance and which was not advanced because of the conscientious but in the end over summary advice which he received. For those reasons, the conviction must be quashed.
31. We have asked Mr Halim what should happen in the event that he succeeds to that extent. His submission is that the defence was bound to succeed. If that was so there would be no occasion for a retrial, but we do not agree that it is so, for the reasons which we have endeavoured to give. Accordingly, the right order is to quash the conviction but direct a retrial.
32. Where was he tried Mr Halim? Can you remind us.
33. MR ROBINSON: Lewes Crown Court, my Lord.
34. THE VICE PRESIDENT: There is no reason why it should not go back to Lewes. Is Lewes the ordinary place for these cases?
35. MR ROBINSON: Yes.
36. THE VICE PRESIDENT: Mr Halim, there is no reason why it should not go back to that court, is there?
37. MR HALIM: Canterbury is the better Crown Court.
38. THE VICE PRESIDENT: Why?
39. MR HALIM: Only because he is in Canterbury Prison at the moment.
40. THE VICE PRESIDENT: He can be tried at either of those Crown Courts or any other convenient Crown Court according to the direction of the Presiding Judges of the South Eastern Circuit. He must be arraigned on a fresh indictment containing the two counts to which he previously pleaded guilty and that must happen within two months, unless there is further order by this court. In the meantime I suppose he is in custody, Mr Halim?
41. MR HALIM: Yes, he is approaching the end of that sentence.
42. THE VICE PRESIDENT: Quite. Do you have any application that you ought to make, or not? Sentence has gone, you see.
43. MR HALIM: My Lord, my concern is not to place this appellant in any further position -- I have not taken instructions. I did not expect --
44. THE VICE PRESIDENT: The best thing is for us simply to say that any application for bail, if he is advised to make one, should be made to the Crown Court.
45. MR HALIM: Yes.
46. THE VICE PRESIDENT: He must not languish for long in prison if he has already spent a long time there.
47. MR HALIM: My Lord, perhaps the onus does fall upon me to make an application for bail given the quashing of the conviction.
48. THE VICE PRESIDENT: I suspect that you will not have at the moment any alternative address or conditions to suggest. He would be much better off making it to the Crown Court when you have.
49. MR HALIM: I only thought it might be prudent on the basis that if any decision is to be reached in principle then it might be made --
50. THE VICE PRESIDENT: I think the most we can say is that the application should be made to the Crown Court. We have no doubt that the Crown Court will be very much alive to the time that he has spent in custody. It will also need to investigate what the alternative is and what practical arrangements can be made to ensure that he remains on hand.
51. MR HALIM: Very well, my Lord.
52. THE VICE PRESIDENT: Mr Halim, thank you very much for extremely helpful submissions.