England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23 January 2013

LORD JUSTICE JACKSON:

1. This judgment is in four parts, namely: Part 1 Introduction; Part 2 the Facts; Part 3 the Criminal Proceedings; Part 4 The appeal to the Court of Appeal.

Part 1. Introduction

2. This is an appeal against conviction in a case concerning the use of a false passport. The central issue is whether the appellant had a defence based upon the proposition that he was a refugee entitled to asylum in this country.
3. The international treaty which governs the status and treatment of refugees, is the Convention Relating to the Status of Refugees made at Geneva in 1951. This is generally referred to as the "Refugee Convention". Article 1A of the Refugee Convention provides:

"For the purposes of the present Convention, the term 'refugee' shall apply to any person who:

...

(2)... owing to 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 of the Refugee Convention 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."

5. In this judgment we shall refer to the Identity Documents Act 2010 as "the 2010 Act". Section 4 of the 2010 Act provides:

"It is an offence for a person ("P") with an improper intention to have in P's possession or under P's control—

(a) an identity document that is false and that P knows or believes to be false,

...

(2) Each of the following is an improper intention—

(a) the intention of using the document for establishing personal information about P;

...

(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 10 years or a fine (or both)."

We shall refer to the Immigration and Asylum Act 1999 as "the 1999 Act". Section 31 of the 1999 Act gives effect, in our domestic law, to the requirements of Article 31 of the Refugee Convention. Section 31 of the 1999 Act provides:

"(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

(b) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

...

(3)In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under —

...

(aa) section 4 or 6 of the Identity Documents Act 2010."

6. Having set out the relevant statutory provisions, we must now turn to the facts.

Part 2: The Facts

7. The appellant is a Jamaican national. In 2000 the appellant came to live in the UK and he remained in this country for nine years. On 28 April 2008 at Swindon Crown Court the appellant was convicted of conspiring to supply a controlled drug. He was sentenced to four years imprisonment. Whilst the appellant was serving that sentence the Secretary of State made a deportation order against him. The appellant's appeal against that order was unsuccessful. He was duly deported to Jamaica on 8 September 2009.
8. The appellant lived in Jamaica for two years and then, for reasons which are in dispute, he returned to the UK. The appellant arrived at Manchester Airport on 5 September 2011 carrying a British passport in the name of Marland Alexander Sinclair. This passport was a forgery. The appellant's photograph and other details had been inserted into the bio-data page. This forged passport gave the impression that the appellant was a UK passport holder named Marland Alexander Sinclair.
9. Fortunately the immigration officers suspected that something was amiss. They interviewed the appellant. At first he assured the officers that his name was indeed Marland Alexander Sinclair and that he was returning to England after a holiday abroad. Under further questioning, however, the appellant admitted the truth, namely that he was Fabian Augustus Evans.
10. The appellant did not make any claim for asylum at this stage. Two days later, however, the appellant did make a claim for asylum. The basis of the appellant's claim was that while he had been living in Jamaica, between September 2009 and September 2011, a criminal gang called the Stone Crusher gang had targeted him. The appellant had good reason to fear that the gang would kill him if he returned to Jamaica. The appellant maintained that he was a member of a particular social group within the meaning of Article 1A(2) of the Refugee Convention.
11. The Immigration Service duly started to process the appellant's asylum claim. Because of the backlog of work at the UK Border Agency, that processing is not yet complete. In the meantime the authorities took the view that the appellant had committed a criminal offence by entering this country with a forged passport. Accordingly criminal proceedings followed.

Part 3: The Criminal Proceedings

12. The appellant was charged with the offence of possessing false identity documents with improper intent, contrary to section 4(1)(a) of the 2010 Act. The particulars alleged were that on 5 September 2011 the appellant had in his possession, or under his control, an identity document, namely a British passport, that was false and that he knew or believed to be false with the intention of using it for establishing personal information about himself. The appellant pleaded not guilty to that charge. In May 2012 he stood trial at Manchester Crown Court before HHJ Geake and a jury.
13. From the outset of the trial the appellant admitted the facts, which were alleged in the indictment. He accepted that he entered the UK using a false passport and in breach of a deportation order. He admitted that he knew that the passport was false. The appellant asserted, however, that he had a good defence under Article 31 of the Refugee Convention and section 31 of the 1999 Act. The appellant contended that he was entitled to asylum in the UK under the Refugee Convention. The basis of this claim was that he had a well-founded fear of persecution in Jamaica by reason of his membership of a particular social group.
14. The prosecution duly called their evidence as to what had happened at Manchester Airport. None of that was really in dispute. The defence then called their evidence in support of the defence under section 31 of the 1999 Act. There were two defence witnesses, namely the defendant and an expert witness. The defendant gave factual evidence as to his experiences in Jamaica. The defendant's evidence as to his experiences in Jamaica were summarised by the judge in his summing-up as follows:

"...he says that he comes originally from Montego Bay in Jamaica; he came to this country in 2000 to visit family on a visitor visa, stayed here for 9 or 10 years until he was sent back to Jamaica in September 2009. When he got back he tried to find somewhere to live. He asked his uncle at first but there were troubles in Jamaica. He lived with his uncle for a few months, got a job with his cousin at the car wash and it was there he said that a guy came asking about his background, saying he had to start paying his dues. "They thought I had money because I'd come from the UK. They were saying: 'If you haven't got money, you've got to do things for us.'" He came to know that this was a gang, a notorious gang in the area. There was talk of guns, jobs, prostitution, extortion, protection, murder and torture, and he heard about the Stone Crusher gang.

He refused to co-operate with them, they tried to bully him, they showed him guns, they kicked his door in. He did report to the police but nothing was done about any of it. Eventually, when his wife came across [from Jamaica] for them to get married in December 2009 at the reception two car loads of guys came along threatening and he headed them off by promising to deal with them after the wedding was over, but he never got round to doing that. He started lying low, keeping himself scarce, moving around from place to place, sleeping rough. He went to the police, he said, three times, but he could not trust anybody, and then came this final traumatic incident which he described in the witness box, of his cousin being shot and he himself managing to get away.

He gave us the graphic description, you remember, the police not turning up, he was waiting for a couple of hours and left before the police arrived. He took no further part in the inquiry. He got messages thereafter that he was next, he was the next target and so in due course he approached this man Tony and in due course got himself this passport and a ticket to England and flew into Manchester on the day we talked about."

16. The second defence witness was Dr David Howard, a lecturer in Sustainable Urban Development at Oxford University. Dr Howard had researched the contemporary societies of the Caribbean and Latin America. The judge's summary of Dr Howard's evidence in the summing-up is as follows:

"Dr Howard ... told us yesterday that the gangs like the Stone Crusher gang may well target anybody who crosses their path, people such as businessmen who have money who can be leaned on for extortion or protection money, even wealthy returners to Jamaica from overseas, retired people, retiring perhaps with a body of capital to take back to Jamaica; but even all of these potential criminal targets for the gangs are, if you think about it, no more than general potential victims of crime."

No criticism is made of the accuracy of the judge's summary of the evidence given by the various witnesses.

18. At the conclusion of the evidence there was a discussion between the judge and counsel in the absence of the jury in relation to the proposed defence under section 31. Having heard argument the judge ruled that on the evidence before the court the appellant could not bring himself within the definition of refugee in Article 1A of the Refugee Convention. The persecution which the appellant feared was not caused by his membership of a "particular social group", nor was it referable to any of the other matters set out in Article 1A(2) of the Refugee Convention.
19. The appellant did not accept the judge's ruling and he declined to change his plea to guilty. In those circumstances the jury returned to court, counsel made their closing speeches and the judge then summed up. In the course of his summing-up the judge stated that the ingredients of the offence were admitted and that the only issue was the appellant's defence under section 31 of the 1999 Act. The judge also directed the jury in clear terms(at page 8 of the transcript) that as a matter of law this defence could not succeed because there was no basis for the assertion that the appellant was a refugee.
20. Perhaps unsurprisingly, in view of the terms of the summing-up, the jury unanimously returned a verdict of guilty. The judge sentenced the appellant to a term of two years imprisonment.
21. The appellant is aggrieved by his conviction and, in particular by the rejection of his defence under section 31 of the 1999 Act. Accordingly he appeals to the Court of Appeal.

Part 4: The appeal to the Court of Appeal

There are two grounds of appeal. They are as follows. First, it is said that the judge wrongly directed the jury that the appellant had no defence under section 31 of the Immigration and Asylum Act 1999 because there was nothing to support the defence argument that the appellant was part of a "particular social group" within the meaning of the Refugee Convention. Secondly, it is said that the judge misdirected the jury on the burden and standard of proof as regards the issue of whether the appellant was, or was not, a refugee for the purposes of section 31 of the 1999 Act.

22. We consider it is logical to deal with the two grounds in that order, even though in their submissions today counsel argued the two grounds in reverse order. We start, therefore, with what we have classified as the first ground of appeal. The crucial authority on which Mr Ian MacDonald QC, for the appellant, and Mr John McGuinness QC, for the respondent, rely is Shah and Islam v Secretary of State for the Home Department [1999] 2 AC 629. In that case the applicants I and S, who were both citizens of Pakistan, but were otherwise unconnected with each other, suffered violence in their country of origin after their husbands had falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as visitors for six months. Both applicants subsequently applied for asylum on the ground that having been abandoned by their husbands, lacking any other male protection and condemned by the local community for sexual misconduct, they feared that if they were returned to Pakistan they would suffer persecution in the form of physical and emotional abuse. They would be ostracised and unprotected by the authorities. Indeed they might even be liable to death by stoning in accordance with Pakistani Sharia law.
23. The Secretary of State for the Home Department refused the applications on the grounds that the applicants were not members of a "particular social group" within the meaning of Article 1A(2) of the Refugee Convention. The Secretary of State's decision was subject to reconsideration in a series of tribunal and court decisions. Ultimately the applicants succeeded in the House of Lords. The House of Lords held that women in Pakistan constituted a particular social group because they were discriminated against as a group in matters of fundamental human rights, and the state gave them no protection because they were perceived as not being entitled to the same human rights as men.
24. Two members of the House of Lords, namely Lord Steyn and Lord Hutton, also considered that the appellants belonged to a particular social group which could be more narrowly defined. This group was defined by the unifying characteristics of gender, of being suspected of adultery, and of lacking protection from the state and public authorities.
25. It was common ground, and it was accepted by the House of Lords, that it was a general principle that there could only be a "particular social group" if the group existed independently of the persecution. However, the House of Lords rejected the view that the group had to be cohesive. The majority of the House of Lords approved the following analysis of Article 1A(2) given by the Board of Immigration Appeals in the USA in In re Acosta [1985] 19 I & N 2011:

"We find the well-established doctrine of ejusdem generis, meaning literally, 'of the same kind,' to be most helpful in construing the phrase 'membership in a particular social group.' That doctrine holds that general words used in an enumeration with specific words should be construed in a manner consistent with the specific words... The other grounds of persecution in the Act and the Protocol listed in association with 'membership in a particular social group' are 'persecution on account of 'race', 'religion,''nationality' and 'political opinion.' Each of these grounds describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not to be required to be changed...

Thus, the other four grounds of persecution enumerated in the Act and the Protocol restrict refugee status to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution. Applying the doctrine of ejusdem generis, we interpret the phrase 'persecution on account of membership in a particular social group' to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, colour or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis... By construing 'persecution on account of membership in a particular social group' in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution."

After citing that passage Lord Steyn said this at pages 642 to 643:

"I am satisfied that for the reasons given in Acosta's case the restrictive interpretation of 'particular social group' by reference to an element of cohesiveness is not justified. In 1951 the draftsman of article 1A(2) of the Convention explicitly listed the most apparent forms of discrimination then known, namely the large groups covered by race, religion, and political opinion. It would have been remarkable if the draftsman had overlooked other forms of discrimination. After all, in 1948 the Universal Declaration had condemned discrimination on the grounds of colour and sex. Accordingly, the draftsman of the Convention provided that membership of a particular social group would be a further category. It is not 'an all-encompassing residual category:' Hathaway, The Law of Refugee Status, p 159. Loyalty to the text requires that one should take into account that there is a limitation involved in the words 'particular social group.' What is not justified is to introduce into that formulation an additional restriction of cohesiveness. To do so would be contrary to the ejusdem generis approach so cogently stated in Acosta's case."

26. We will not read out the other passages cited by counsel, although we have them well in mind. The issue for this court is whether there was any basis for the appellant's assertion that his feared persecution was because of his membership of a particular social group.
27. Mr MacDonald in his submissions today said that the group to which the appellant belongs could be defined as follows: "A group of migrants of Jamaican origin returning to Jamaica after having been resident in the USA, Canada or UK."

As an alternative, he offered the following definition of the particular social group to which the appellant belonged: "People who have been removed or deported from the USA, Canada or UK back to Jamaica." The second group, as defined by Mr MacDonald, is really a subgroup of the much wider first group, and we must consider both of those two definitions.

28. We do not see any basis either in logic or on the evidence before the crown court for saying that either of those collections of individuals was a particular social group within the meaning of Article 1A(2) of the Refugee Convention. Dr Howard's evidence does not support that proposition. What Dr Howard demonstrated was that wealthy people were targeted by gangs in Jamaica. Those wealthy people would include older persons who had earned money overseas and were retiring to Jamaica. There was no evidence that returnees to Jamaica as a group, or persons deported to Jamaica as a subgroup, were specifically targeted by gangs. Neither of the groups identified by Mr MacDonald has any of the essential characteristics of a particular social group as discussed in Shah and Islam. If, and in so far as, any individual members of the two groups defined by Mr MacDonald were persecuted, such persecution was not related to any common or immutable characteristic of the group.
29. The appellant was not a wealthy person. He was not targeted for his wealth when he returned to Jamaica in 2009. On the contrary, on the appellant's evidence, his assertion that he had no money was accepted by the gang members. If the appellant's evidence is accepted, he was one of very many people in Jamaica who were bullied by criminal gangs and required to co-operate with them. The fact (if established) that the appellant was bullied by criminals and not protected by the police is deplorable. That fact, however, does not and cannot make him a refugee. There was no evidence whatsoever before the jury that the appellant feared persecution "for reasons of ... membership of a particular social group" within the meaning of Article 1A(2) of the Refugee Convention.
30. In those circumstances, on the evidence before the jury, there was no possible basis for classifying the appellant as a refugee. The judge rightly directed the jury that the defence under section 31 could not succeed.
31. Mr MacDonald submits that the question whether someone is a refugee is exclusively a question for the Secretary of State. In support of this submission he relies upon the decision of the House of Lords in Bugdaycay v Secretary of State for the Home Dept [1987] 1 AC 514. Mr MacDonald draws our attention, in particular, to the passage in the speech of Lord Bridge at page 531.
32. We agree that in a conventional asylum claim the primary decision is taken by the Secretary of State. Thereafter the courts and tribunals will only interfere with that decision if the Secretary of State fell into one or more errors of law. In the present litigation, however, the question whether the appellant was a refugee was one element of the defence which he wished to advance. It was inescapable that the Crown Court had to address the issue. It could not be assumed without inquiry or evidence, that the appellant was a refugee simply because he had made a claim for asylum.
33. For all of these reasons we have come to the conclusion that the first ground of appeal is unsustainable and we reject that ground of appeal.
34. We turn now to the second ground of appeal, which is that the judge misdirected the jury as to the burden and standard of proof. The judge directed the jury that in relation to the defence under section 31 the burden of proof was on the defendant. The defendant had to establish the matters set out in section 31 (1)(a), (b) and (c) on balance of probabilities. In relation to the matters set out in subparagraphs (a), (b) and (c) that direction was correct. On the other hand, in relation to the issue whether the appellant was a refugee, once that issue had been raised by the defence the burden was on the prosecution. It was for the prosecution to prove, to the criminal standard, that the appellant was not a refugee(see the Court of Appeal's decision in R v Makuwa [2006] EWCA Crim 175 at paragraph 26).
35. There is force in Mr MacDonald's submission that in relation to the refugee issue the judge did not clearly direct the jury that the burden was on the prosecution to prove that the appellant was not a refugee. On the other hand, this was the very issue which the judge had withdrawn from the jury.
36. The judge in his summing-up was in a difficult position. The ingredients of the offence were all admitted. Furthermore the judge had already ruled correctly that the only suggested defence was not open to the appellant on the evidence which had been called. Nevertheless, it was not permissible for the judge to direct the jury to return a verdict of guilty for the reasons set out in Archbold(2013 edition) at paragraph 4-489.
37. In those circumstances the judge delivered an entirely sensible summing-up explaining what the issues in the case were, and explaining why, as a matter of law, the defence under section 31 could not succeed. We do not regard that summing-up as defective.
38. Finally, in our view, this is a case in which the provisions of section 2 of the Criminal Appeal Act 1968 are apposite. The Court of Appeal shall only allow an appeal against conviction if the court considers that the conviction was unsafe. In this case the facts comprising the alleged offence were all admitted and the only suggested defence was not open to the appellant as a matter of law. In those circumstances the conviction cannot possibly be regarded as unsafe. This appeal is dismissed.