England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
Before HHJ MATTHEW
T20120931

		11/04/2013

Lord Justice Toulson:

1. Robel Asmeron pleaded guilty at Isleworth Crown Court on 12 November 2012 to entering into the United Kingdom without a passport, contrary to section 2(1) and (9) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The particulars of the offence were that on 5 July 2012 at a leave or asylum interview he failed to have with him an immigration document which was in force and satisfactorily established his identity and nationality or citizenship. He pleaded guilty after the trial judge, HHJ Matthews, acceded to an application made by the prosecution at the outset of the trial for a ruling that he had no defence to the charge. The judge passed a sentence of 8 months' imprisonment, which he later varied under the slip rule to a sentence of 5 months' imprisonment.
2. The matter came before this court on an application for permission to appeal against conviction and sentence, which the registrar referred to the full court. At the conclusion of the hearing we granted permission to appeal, allowed the appeal and quashed the conviction, stating that we would give our reasons in writing.
3. On 5 July 2012 the appellant arrived at Heathrow Airport on a flight from Khartoum and claimed refugee status. He said that he did not have a passport because he had given it to a businessman to arrange his flight. An asylum screening interview was conducted on the following day by a Border Agency official. In summary, the appellant's account was that he had come from Eritrea to the UK via Sudan. He fled Eritrea to avoid onerous and excessive military service and feared that if he were returned to Eritrea he would be at risk of persecution. He travelled to Khartoum illegally but had a valid Eritrean passport with him. In Khartoum he paid an agent for his flight to the UK. He gave the agent his passport because the agent asked for it. The agent gave him a different passport to use when checking in and boarding, but he did not retain it. He explained what happened as follows:

"Q. What document did you use to board the plane?

A. The one he gave me.

Q. Do you know what passport it was?

A. No I don't.

Q. What colour was it?

A. A shade of blue.

Q. Did you hold it, use it for check in?

A. I didn't get much of a chance to look at it except for when boarding and checking in."

4. The officer conducting the interview did not ask further questions about what happened to the false passport, and it is unclear from the interview whether the passport was handed back to the agent prior to departure in Khartoum or on arrival in the UK.
5. Before the trial the appellant's solicitors served on the prosecution a report by Professor Kibreab, an expert on the subject of Eritrea and Eritrean refugees.
6. The prosecution responded in a letter dated 22 October 2012:

"I write in respect of your proposed defence expert, Professor Kibreab.

The Crown takes the view that the report of Professor Kibreab is not relevant to the case and to the defendant's defence. We take the view that the admissibility of Professor Kibreab's report should be decided by way of preliminary argument prior to the trial. In our view, such argument should be decided on the morning of the trial listing by the trial judge.

The Crown appreciates the practical aspects of calling a professional witness such as Professor Kibreab. In these circumstances, and to save expense and inconvenience, the Crown will agree that if the learned judge rules that the evidence of Professor Kibreab is relevant then this evidence may be given in a format not requiring the attendance of Professor Kibreab."

7. In his lengthy report Professor Kibreab dealt principally with the risks which the appellant would face on return to Eritrea, concluding that as a draft evader and failed asylum seeker he would be likely to face imminent risk of persecution upon return to Eritrea. At the end of the report he made these comments about the handling of the appellant's passport:

"13.0 The extent to which an individual "traveller" can challenge an agent about arrangements for the trip.

13.1 Although I cannot be certain about every case, in the majority of cases the agents who smuggle people are connected to a chain of criminal transnational networks.

13.2 In comparison to smugglers, the individual that buys their services is often in a very vulnerable position and therefore his or her possibility to challenge the decision of the smuggler is either minimal or non-existent.

13.3 Mr Asmeron's claim that he had a limited or no say in the matter of handling the passport is consistent with what goes on in the dark world of human traffickers and smugglers."

8. Counsel for the appellant anticipated that there would be argument before the trial began about the admissibility of Professor Kibreab's evidence. He did not anticipate that the prosecution would go further and would ask the judge to rule at the outset that the appellant had no defence.
9. Section 2 of the 2004 Act provides, so far as material as follows:

"(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which—

(a) is in force, and

(b) satisfactorily establishes his identity and nationality or citizenship.

…

(4) It is a defence for a person charged with an offence under subsection (1)—

(a) to prove that he is an EEA national,

(b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,

(c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),

(d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or

(e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.

…

(7) For the purposes of subsections (4) to (6)—

(a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was—

(i) for a reasonable cause, or

(ii) beyond the control of the person charged with the offence, and

(b) in paragraph (a)(i) "reasonable cause" does not include the purpose of—

(i) delaying the handling or resolution of a claim or application or the taking of a decision,

(ii) increasing the chances of success of a claim or application, or

(iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice."

10. The only document falling within section 2(1) which the appellant ever had (i.e. a valid immigration document which satisfactorily established his identity and nationality) was his Eritrean passport, which he handed over to the agent in Khartoum. The appellant's defence was that he had a reasonable excuse for not being in possession of that document on his arrival in the UK and accordingly had a defence under section 2(4)(c).
11. In his ruling the judge set out the relevant statutory provisions and summarised the facts as they appeared from the prosecution witness statements. He made no reference to the expert's report. He quoted the following questions and answers from the screening interview:

"Q. Why didn't you bring your passport to the UK?

A. The agent kept it as there was a third party involved and a payment to be made. I was under the control of the agent.

Q. Why did you do what the agent told you?

A. Because I don't have any past experience of these things.

Q. Did they threaten you?

A. He warned me to strictly follow his instructions.

Q. What would happen?

A. I don't know, because of my lack of awareness I followed his instructions."

12. The judge continued:

"It wasn't suggested by the defendant at any stage that his failure to bring the passport with him was because, for example, he was frightened of the consequences, he did leave the passport with the agent, or indeed for any other reason which might demonstrate that it was unreasonable to expect you not to comply with the agent's instructions or the agents of the third party.

He simply stated that his failure to bring the passport with him or to retain his Eritrean passport was a direct result of his complying with the agent's instructions which the section that I have already recited, namely 2(7)(b)(iii) does not constitute a reasonable cause and in my judgment, it follows that the defendant has not discharged the evidential burden on him of showing reasonable cause or reasonable excuse as set out in section 2(4)(c)

…

Accordingly, as invited to do, in my judgment, there is no defence to this charge. "

13. The prosecution was wrong to ask the judge to rule as he did, and the judge was wrong to do so, for a number of reasons.
14. First, the judge was wrong to rule that "there is no defence to this charge" before the case had even begun. A defendant's counsel may sometimes ask the judge at the outset of a trial to give a ruling whether on certain facts a particular defence would be open to the defendant, or to indicate how the judge would propose to direct the jury in relation to that issue, with a view to giving advice to the defendant about his plea. However, that was not the situation in this case. The proper time for the judge to have considered how to direct the jury in relation to a defence under section 2(4)(c) would have been after the evidence had been given.
15. Secondly, if the evidence had been as foreshadowed in the material which was before the court, it would have been wrong in principle for the judge to have ruled as a matter of law that the appellant had no available defence. The question whether the evidence was sufficient to persuade the jury on the balance of probability that he had a reasonable excuse for not being in possession of his Eritrean passport would have been a matter for the jury to decide. Even if the judge had been satisfied that no reasonable jury could have resolved that issue in the appellant's favour, he would still have been wrong to have withdrawn the defence under section 2(4)(c) from the jury. That would have been to usurp the jury's function.
16. "Reasonable excuse" is an ordinary expression requiring an evaluative judgment to be made by the jury. What may constitute a "reasonable excuse" is qualified by the provisions of section 2(7), but it is for the jury to apply those qualifications, where relevant, to the facts as they find them. So, in the present case, it would have been for the jury to decide whether it was unreasonable to expect the appellant not to follow the agent's instructions to hand over his passport to the agent in Khartoum.
17. Various cases were cited where parallel questions have arisen in the context of other statutory offences to which a "lawful excuse" or "good reason" may be available as a defence (whether for the prosecution to disprove or for the defendant to establish).
18. In Kelleher [2003] EWCA Crim 3525 the appellant smashed a statue of Lady Thatcher which was on loan from the House of Commons to the Corporation of London Art Collection. He was charged with an offence under section 1 of the Criminal Damage Act 1971, which begins with the words "A person who without lawful excuse destroys or damages any property belonging to another…" It was argued on the appellant's behalf that he had a lawful excuse, because he was seeking to draw attention to his strongly and sincerely felt concerns that the policies of the United Kingdom and certain other Western countries were leading the world towards its destruction. The court held that the trial judge was right to direct the jury that the appellant's explanation of his conduct did not fall within the reach of what was capable of being a lawful excuse within the meaning of the statute, but that the judge had been wrong to go on to direct a verdict of guilty. That was obviously an extreme case, and one can readily understand that it cannot have been Parliament's intention that a desire to make a political point, and attract publicity for it, should afford a lawful excuse for the deliberate destruction of another person's property.
19. Kelleher was approved by the House of Lords in Wang [2005] 2 Cr App R 8 at [14]. Wang also shows the exceptional nature of Kelleher. In Wang the appellant was charged with two counts of having an article with a blade in a public place, contrary to section 139(1) of the Criminal Justice Act 1988. Under that section it is a defence for a person to prove that he had "good reason" for having the article with him. The appellant was found in the street in possession of a martial arts sword and a small knife. His evidence at the trial was that he was a Buddhist who practised a martial art connected with his religion. On the day in question he was on his way to his solicitors and had taken the sword and knife with him, because he did not like to leave them at the place where he was staying. The trial judge ruled that the "good reason" defence was not available to him and directed the jury to return guilty verdicts. His conviction was quashed by the House of Lords.
20. The House of Lords recognised, as was common ground, that a judge may withdraw a defence from the consideration of the jury if "there is no evidence whatever to support it", but drew a distinction between that situation and one where there is evidence before the jury in support of the defence, albeit that no reasonable jury properly directed could reach any other conclusion than that the defendant was guilty. In drawing that distinction the court followed the decision of the majority of the House of Lords in DPP v Stonehouse [1978] AC 55. Lord Bingham at [13] referred to the rationale of the majority opinions in Stonehouse as being "that no matter how inescapable a judge may consider a conclusion to be, in the sense that any other conclusion would be perverse, it remains his duty to leave the decision to the jury and not to dictate what that verdict should be." Applying that approach to the facts of Wang, Lord Bingham said at [17]:

"The nature and extent of the appellant's religious motivation had been the subject of evidence. The appellant's evidence of not wanting to leave the weapons at home with no one to look after them may well have given rise to nuances (to adopt the language of Lord Keith in Stonehouse) not recognised by the judicial mind. These were pre-eminently matters for evaluation by the jury."

21. The prosecution relied on a more recent decision of this court in Clancy (2012) EWCA Crim 8 [2012] 2 Cr App R 7. This was another case of a prosecution under section 139(1) of the Criminal Justice Act 1988 for having a bladed article in a public place. Unfortunately the court was not referred in that case to the decision of the House of Lords in Wang. Moore Bick LJ said at [20]:

"The authorities…establish that the expression "good reason" is not one that calls for judicial explanation, being an ordinary phrase in common use. In those circumstances it would be wrong for judges to hedge it around with rules of law designed to limit its scope or meaning. In some cases the court may be justified in ruling that certain facts are incapable of constituting a good reason, but it should be slow to do so. Such a course can be justified only if a finding that a good reason existed would be perverse. Normally, therefore, judges should simply direct the jury that, having found the facts, including, if appropriate, the facts as to the accused's state of mind, they should decide whether they amount to a good reason. No further elaboration is required…The distinction between what does amount to a good reason (a matter for the jury) and what is capable of amounting to a good reason (a matter for the judge) was explained in the case of Bown [2003] EWCA Crim 1989, [2004] 1 Cr App R 13, but we would reiterate the observation made in that case that the court should be very slow to rule that a particular state of facts cannot as a matter of law constitute a good reason." (Original emphasis)

22. The prosecution relied on that passage for the statement suggesting that a trial judge may properly rule that facts are incapable of constituting a good reason if a finding that a good reason existed would be perverse. That suggestion must, with respect, be treated as per incuriam, because it is contrary to Wang, which was not cited in Clancy. The fact that a defence might be considered hopeless on the merits is not a good reason for a judge to withdraw it from the jury. The court can only rule that the explanation advanced by a defendant is incapable in law of amounting to a good reason or a reasonable excuse if it can properly be said, on the true construction of the Act, that it would be inconsistent with the essential nature and purpose of the offence for the defendant's explanation to be capable of amounting to a defence. Kelleher is a good example. In the present case it could not be said that it would be contrary to the manifest purpose of the statute for the appellant's explanation to be regarded by the jury as a reasonable excuse.
23. Thirdly, there would in any event have been no perversity in a jury concluding on the material before the court that a defence under section 2(4)(c) was made out. More particularly, a jury might well have concluded that it was unreasonable to expect the appellant not to hand over his Eritrean passport to the agent in Khartoum, when the agent asked for it. The uncontradicted evidence in the expert's report suggested that the appellant would have been in real danger on return to that country. To get out of Sudan to the UK, he needed the assistance of an agent. A jury may well have concluded that in those circumstances he would have had little option but to do as the agent told him, as was the opinion of the expert witness.
24. Mr Sareen in his submissions accepted, rightly in our view, that a jury might have found the appellant's conduct in that respect to be reasonable, but he submitted that a defence would only have been available to the appellant if he could establish, also, that he had a reasonable excuse for not producing the false passport on which he travelled to the UK. That was not the basis of the judge's ruling and the argument is fallacious. The defence under section 2(4)(c) contains no such qualification. As Lord Phillips CJ held in Soe Thet v DPP [2006] EWHC 2701(Admin) at [20], that defence applies where the immigrant has a reasonable excuse for not possessing an immigration document of the kind specified in subsection (1), i.e. a genuine document referring to the immigrant that is in force. The defence provided by subsection 4(c) is unrelated to any false document on which the immigrant may have travelled. The other paragraphs of subsection (4) create alternative defences, as is plain from the word "or" at the end of paragraph (d). Production of a false immigration document may provide a separate defence under section 2(4)(d), but non-production of such a document does not vitiate a defence available under subsection 4(c).
25. For all those reasons it would not be just for the appellant's conviction to stand.