England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		4th November 2016

Friday 4^th November 2016

LORD JUSTICE GROSS: I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:

1. On the night of 3^rd October 2015 a large group of persons tried to enter the United Kingdom by walking through the Channel Tunnel from France to England. They broke down fences and barriers at the French side, threw stones at police officers and entered the tunnel. Immediate action was taken by the operators of the tunnel, Eurotunnel, to shut down the power supply and suspend rail traffic. The majority of those who had entered were stopped and sent back by the French police. The two applicants, however, succeeded in evading the French police and continued walking. They were later detected on CCTV and rail traffic was again suspended. They were finally detained by the English police when they were something over a kilometre away from the English entrance to the Channel Tunnel. They claimed asylum on the basis that each of them was a refugee from persecution and fear of death in his native Iran. The actions of the applicants and the others involved in entering the tunnel had caused considerable disruption and delay to both private vehicles and goods vehicles seeking to travel through the Channel Tunnel that night, and significant financial loss.
2. Both applicants were charged with an offence contrary to section 36 of the Malicious Damage Act 1861. That section, which is headed "Obstructing Engines or Carriages on Railways", provides as follows:

"Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed any engine or carriage using any railway, or shall aid or assist therein, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years."

3. The applicants originally entered not guilty pleas. It was indicated to the court that they would submit that the proceedings against them were an abuse of the process. That issue was to be argued before Her Honour Judge Williams in the Crown Court at Canterbury on 4^th April 2016. On 1^st April 2016, however, Her Honour Judge Williams gave her ruling in the case of R v Abdul Haroun, another man who had been involved in an attempt to enter the United Kingdom via the Channel Tunnel. It is common ground that Haroun raised identical issues to the cases of the applicants. The learned judge indicated that if she had allowed Haroun's applications, which were to dismiss the charge against him or to stay the proceedings against him as an abuse, then she would have made similar rulings in the cases of the applicants. She fairly indicated that that would be so, notwithstanding that the applicants had already entered their not guilty pleas without making any application to dismiss.
4. In the event, the learned judge dismissed Haroun's applications. In the light of the written ruling which she handed down, the applicants were unable to advance the defence which they wished to advance. In those circumstances they pleaded guilty to the count which we have described. They now seek leave to appeal on the basis that they only pleaded guilty because they were deprived of a defence by the judge's ruling in Haroun, which they contend was wrong in law. They also seek leave to appeal against their sentences of 14 months' imprisonment as manifestly excessive in length. Their applications have been referred to the full court by the Registrar.
5. We have been greatly assisted by the written and oral submissions of Mr Pawson-Pounds for the applicants and Mr Douglas-Jones for the respondent. We are grateful to both of them.
6. It is convenient to deal first with the argument that the charges under section 36 of the 1861 Act should have been dismissed. In her ruling in Haroun, Judge Williams held as follows. First, she rejected a submission that the evidence did not show any unlawful act. Secondly, she held that the offence under section 36 of the Act is a crime of basic intent and that the only mental element which the prosecution must prove is an intention to do the unlawful act. Thirdly, she rejected a submission that Haroun's actions of walking through the Channel Tunnel had not obstructed any engine or carriage using the railway, and that any obstruction was caused rather by the actions of Eurotunnel (the operators) in stopping rail traffic.
7. The applicants submit that the judge was wrong in that ruling and should have dismissed the charge against Haroun, and therefore the charges against the applicants, because the evidence was insufficient for a jury properly to convict. They argue in particular that the effect of the judge's ruling is to treat the offence under section 36 as an offence of strict liability, and that she wrongly failed to take into account the actions of a third party, namely Eurotunnel, in causing the delay to rail traffic.
8. In our judgment, the judge was correct in her ruling in Haroun for the following reasons. First, the applicants plainly entered the Channel Tunnel as trespassers. In our judgment, the civil tort of trespass is an unlawful act within the meaning of section 36 of the 1861 Act, even if it is not in itself also a crime. In any event, trespass in the Channel Tunnel is a crime. It is an offence contrary to byelaw 8(15) of the Channel Tunnel Byelaws, made pursuant to powers conferred on Eurotunnel by section 20 of the Channel Tunnel Act 1987.
9. Secondly, as long ago as 1870 in R v Hadfield (1870) LR 1 CCR 253, the court decided that no specific intent need be proved on a charge under section 36 of the 1861 Act. That section was to be contrasted with section 35 of the same Act, which created a more serious offence of unlawful and malicious obstruction of any engine or carriage using the railway. Blackburn J said:

"Section 36 deals with an offence much less serious than that mentioned in section 35. The offence, under section 36, is the unlawfully obstructing a train, not in obstructing it unlawfully with a malicious intent, as required by section 35."

It follows, in our judgment, that it would be sufficient to prove that the applicants did an unlawful act, namely, to enter and walk through the Channel Tunnel when they had no lawful right to do so, and knew at the time that they were entering and walking through the Channel Tunnel.

10. Thirdly, there can, in our view, be no doubt that the initial suspension of rail traffic was caused by the action of all of those, including the applicants, who entered the Tunnel; and the later suspension of rail traffic was caused by the action of the applicants in continuing to walk through the Tunnel. Although they did not themselves turn off the power supply or instruct train drivers not to enter the tunnel, their actions led directly and naturally to those consequences. As the judge pointed out, Eurotunnel would have been in breach of their duty of care, which extends to trespassers, if they had continued to allow trains to run through the tunnel when they knew that unauthorised persons were making their way through it on foot. That interruption of rail traffic was, equally plainly, an obstruction of a number of engines and carriages.
11. These common sense conclusions are, in our view, confirmed by old authorities. In Hadfield, to which we have referred, it was held that delaying trains was "as much an obstruction as if a log of wood had been placed across the rails". Blackburn J described the circumstances in Hadfield, which were that a drunken man had unlawfully changed the signals, and said this:

"The natural result of this would be to stop the train, and to cause derangement of the whole machinery of the railway. If this is the natural result of the prisoner's act, is it not causing a train to be obstructed? There is nothing in section 36 to shew that the obstruction must be a physical one. It is sufficient if a train is in fact obstructed."

12. Similarly, in the later case of R v Hardy (1871) LR 1 CCR 278, it was held again that the word "obstruct" is not limited to a physical obstruction.
13. It follows that, in our judgment, the judge was unarguably correct to refuse Haroun's application to dismiss. The evidence available to the prosecution was plainly sufficient to prove the offence with which he and these applicants were charged.
14. We turn to the submissions relating to abuse of process. They start with the 1951 UN Convention Relating to the Status of Refugees, which Lord Bingham, in his speech in R v Afsaw [2008] UKHL 31, [2008] 1 AC 1061, described as having three broad humanitarian aims. The third of those aims, he said at [9] of his speech, was

"to protect refugees from the imposition of criminal penalties for breaches of the law reasonably or necessarily committed in the course of flight from persecution or threatened persecution. It was recognised in 1950, and has since become even clearer, that those fleeing from persecution or threatened persecution in countries where persecution of minorities is practised, may have to resort to deceptions of various kinds (possession and use of false papers, forgery, misrepresentation, etc.) in order to make good their escape."

15. Effect was given to that third aim by Article 31 of the Convention. This article, headed "Refugees unlawfully in the country of refuge", provides as follows:

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

(2) The contracting states shall not apply to the movements of such refugees restrictions, other than those which are necessary, and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The contracting states shall allow such refugees a reasonable period and all the necessarily facilities to obtain admission into another country."

16. The Convention has not been fully incorporated into the law of England and Wales. It has been incorporated only to the extent set out in section 31 of the Immigration and Asylum Act 1999. That section, headed "Defences based on Article 31(1) of the Refugee Convention", provides as follows:

"(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

(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.

(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 –

(a) Part 1 of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);

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

(b) section 24A of the 1971 Act (deception); or

(c) section 26(1)(d) of the 1971 Act (falsification of documents)."

We should note by way of clarification that the references in that citation to the 1971 Act are references to the Immigration Act of that year.

17. It will be seen that the list of offences set out in section 31(3) is limited to certain offences which, broadly speaking, relate to false identification documents. In Asfaw the House of Lords rejected a submission that, despite the limited list of offences to which section 31(3) applies, Article 31 should be applied more generally by way of defence. At [29] Lord Bingham said:

"It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law. While, therefore, one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can, on well-known authority, be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation."

18. The applicants, of course, were not charged with an offence listed in section 31(3) of the 1999 Act. They submit, however, that that is not the end of the matter. They submit, and we accept, that it is no bar to reliance on Article 31 that the applicants' refugee status had not yet been determined at the time of their appearance before the Crown Court. For that uncontroversial submission the applicants are able to rely on R v Uxbridge Magistrates' Court, ex parte Adimi [2001] QB 667, and the CPS protocol for dealing with nature of this nature. They go on to submit, more controversially, that a deliberate decision was made to charge the applicants with an offence for which no section 31 defence was available, instead of the more obvious charge which would have been an offence relating to identity documents. Mr Pawson-Pounds relies on the decision in Asfaw, that in the circumstances of that case it had been an abuse of the process to charge an offence for which no defence under section 31 of the 1999 Act was available.
19. Her Honour Judge Williams rejected a similar argument. At paragraphs 31 to 32 of her ruling in Haroun she concluded as follows:

"31. Whilst I accept that Asfaw is authority for the proposition that just because an offence is not one to which the defence contained in section 31 of the Immigration and Asylum Act 1999 applies, that does not preclude the protection contained in Article 31 of the UN Convention from acting as a bar to prosecution. Asfaw was specifically considering the position of transiting defendants. In my judgment, Asfaw is not authority for the proposition that where a defendant who is a bona fide refugee would not be entitled successfully to rely upon the defence in section 31 of the Immigration and Asylum Act 1999, then they are automatically entitled to the residual protection afforded by Article 31 of the UN Convention, where they are charged with an offence to which the section 31 defence does not apply and which relates in some way to their entry into the UK or their attempt to seek asylum in the UK or elsewhere. In my judgment it must depend upon what the offence is that is alleged against the person and the facts of the particular case.

32. It is plain to my mind that each case and each offence has to be considered on a case-by-case basis. In deciding whether any particular alleged offence falls within the scope of Article 31 of the UN Convention, the court must be mindful of the need to apply a purposive construction to the wording of the Article, consistent with the third of three broad humanitarian aims of the Refugee Convention identified by Lord Bingham in Asfaw, namely protecting 'refugees from the imposition of criminal penalties for breaches of the law reasonably or necessarily committed in the course of flight from persecution or threatened persecution.' It must also be mindful of the formulation of the broad purpose of Article 31 as stated by Simon-Brown LJ in Adimi as being 'to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law.'

The learned judge went on at [36] to conclude in the following terms:

"36. In my judgment, the offence with which the defendant is currently charged does not, on the facts of this case, fall within the scope of the residual protection afforded by Article 31 of the UN Convention. It does, in my judgment, represent an escalation in the level of crime involved in securing illegal entry, when compared to the documentary and deception offences encountered in earlier cases, by reason of the threat to life and safety which it created and which the prosecution authorities are entitled to seek to discourage by means of prosecution. While I understand that, for someone in the defendant's circumstances, there was perhaps no 'easy' way to effect illegal entry into the UK, that did not, in my judgment, enable the defendant to choose to enter the UK in the manner in which he did and thereafter to evade criminal liability by reliance on Article 31 of the United Nations Convention."

20. The applicants argue that the judge was wrong. Mr Pawson-Pounds frankly and fairly acknowledges that a written submission that there had been a deliberate decision to charge an offence which would not provide the applicants with a statutory defence was an overstatement. But, he says, the circumstances in which this offence was committed could be covered by a different charge which would come within Article 31 of the Convention, and in those circumstances it was an abuse of the process to charge the applicants with this offence.
21. We are unable to accept the submission. Mr Pawson-Pounds realistically acknowledges that he is inviting the court to go beyond Asfaw. In effect, as it seems to us, he invites the court to find that it may be an abuse of the process for the Crown Prosecution Service to lay a charge which is perfectly proper in itself, if it can be said that the alleged offence was committed in circumstances where it was a reasonable and necessary act by a person in the course of flight from persecution who can seek to bring himself within Article 31.
22. It is important to note that the facts and circumstances in Asfaw were very different. The defendant in that case had been charged with two offences. One charge alleged an offence which was listed in section 31(3) of the 1999 Act. The other charge alleged an offence of a kind not so listed. She pleaded guilty to the latter charge on the basis of a judicial ruling that she had no defence to it. She pleaded not guilty to the former charge and was acquitted by a jury. The important factual feature of the case is that both the counts related to the defendant's attempts to board an aircraft using a false passport. It was held that the second count served no obvious purpose and was an abuse of the process. As Mr Douglas-Jones emphasised in his oral submissions to us, that was a situation of what may be described as coterminous charges. One can well understand why the conclusion was reached that it was an abuse to charge both offences.
23. In the present case the circumstances are very different. We agree with the judge's conclusion about them. We do not find it possible to equate the present case with a situation such as obtained in Asfaw. The applicants' criminality here was very different in character from that of an asylum seeker who resorts to committing an identity documents offence in seeking to enter or pass through this country. The applicants were not only trying to enter the United Kingdom either with false documents or with no documents, they went substantially further than that: they were trying to enter the United Kingdom in a dangerous manner which obstructed railway traffic through the Channel Tunnel. They began that attempt as part of a large group of persons who forced their way into the tunnel against the attempts of the French officials and police to prevent them doing so. The applicants' actions directly affected very many persons whose rail travel was cancelled or heavily delayed. There was, as we have held, ample evidence to justify the charges under section 36 of the 1861 Act. It is entirely understandable that the CPS should regard that as an appropriate charge in the serious circumstances of this case. As is conceded, there is no basis for the written submission that there had been a deliberate decision by the prosecution to avoid a charge of a kind listed in section 31(3) of the 1999 Act.
24. The judge was, in our judgment, fully entitled to reach her conclusion that the conduct involved on the part of these applicants, like that of Mr Haroun, could not be said to be reasonable and necessary in the course of seeking refuge from persecution. We refer again to the way in which the learned judge expressed her conclusion at paragraph 36 of her ruling.
25. We therefore reject as unarguable the submissions based on abuse of process. It follows that there is no arguable ground of appeal against conviction.
26. We turn, finally, to the applications for leave to appeal against the sentences of 14 months' imprisonment. The applicant Payam Mirahessari is now 26 years old. The applicant Farein Vahdani is 21 (although he was only 20 at the time of the offence). Both men are of previous good character. We are prepared to accept for the purposes of this appeal that they were genuinely seeking asylum. The judge indicated that she was giving full credit for their guilty pleas, late though they were, because of the particular circumstances in which they were entered. It follows, as Mr Pawson-Pounds rightly submits, that the learned judge must have taken a starting point for sentence of 21 months' imprisonment. Counsel understandably emphasises that, whilst the applicants' conduct caused severe disruption and delay to rail services in the Channel Tunnel and significant financial loss, it did not cause any physical damage. Mr Pawson-Pounds submits that the starting point of 21 months was very close to the maximum of two years' imprisonment for the offence, and he invites us to conclude that the learned judge must, therefore, have given insufficient weight to the mitigating features of the offence and the personal mitigation available to the offenders.
27. We have reflected on these points; but we have no doubt that the learned judge was entitled to regard the offence committed by each of the applicants as a serious example of its kind. The sentences may certainly be said to be stiff, and it may well be that they came at the upper end of the range properly open to the learned judge. But in our judgment it cannot be argued that they were manifestly excessive in length.
28. For those reasons, notwithstanding Mr Pawson-Pounds' efforts on the applicants' behalf, their applications for leave are all refused.