QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE SILBER
| THE QUEEN (on the application of GJOVALIN PEPUSHI)
|- and -
|CROWN PROSECUTION SERVICE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Perry and Simon Ray (instructed by the Crown Prosecution Service) for the Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Thomas:
i) Whether the enactment of s.31 of the Immigration and Asylum Act 1999 (the 1999 Act) leaves any scope for reliance on Article 31 of the Convention relating to the Status of Refugees (the Convention) in the manner decided by this Court in R v. Uxbridge Magistrates' Court and another, ex parte Adimi  EWHC Admin 765,  QB 667.
ii) Whether this application before this Court is the proper means and forum in which to raise the issue in the criminal proceedings brought against the claimant.
The factual background
i) The claimant, a national of the former Yugoslavia, was stopped by Immigration Officers at Heathrow Airport on 7 January 2004 when attempting to board an Air Canada flight for Canada using a false Swedish passport. He was arrested.
ii) On 8 January 2004 he was interviewed. During the interview he stated that he was from the former Yugoslavia; that his life was in danger in that country owing to his involvement in the seizure of illegal firearms. It was his intention to travel to Canada and claim asylum there.
iii) He gave details of his journey. He said he had left Serbia on 21 December 2003 and travelled to Italy using a false German passport. He then travelled to France. He stayed in Paris for about 16 days from either 22 or 23 December 2003 until 7 January 2004. Whilst he was there, he received, in the post, the false Swedish passport. This had been arranged by an agent in the former Yugoslavia to whom he had paid €9000.
iv) On 7 January 2004 he travelled to the UK and used the false Swedish passport to gain entry at Heathrow. Using the same passport, he checked in for the Air Canada flight that same day. It was his intention to claim asylum in Canada, as he thought that the immigration laws were softer there. It had not been his intention to claim asylum in the UK.
v) He said that he had not claimed asylum in France or Italy because he had been told that Canada was better and that European immigration laws were getting tougher; furthermore Italy was too close to the former Yugoslavia and he did not feel safe there.
vi) During his police interview, the claimant claimed asylum in the UK as he had been intercepted; his explanation was: "anything but going back to Yugoslavia. I mean if England doesn't want me then you can go and take me to France again you know."
vii) On the 7 January 2004 the defendants, the Crown Prosecution Service, (CPS) decided to prosecute him for the offence of Using a False Instrument contrary to ss. 3 and 6 of the Forgery and Counterfeiting Act 1981; he was charged additionally with an offence of Attempting to Obtain Services by Deception, pursuant to s. 1(1) of the Criminal Attempts Act 1981, but the CPS subsequently discontinued that charge.
viii) The claimant appeared before the Uxbridge Magistrates Court on 9 January 2004. On 22 January 2004, the claimant elected trial by jury and was therefore committed by the Magistrates for trial at the Crown Court; the criminal proceedings were then adjourned until 19 February 2004 for the preparation of committal bundles.
ix) The claimant brought this application on 17 February 2004 seeking leave to challenge the decision of the CPS to prosecute him. On 18 February 2004, McCombe J ordered that the prosecution be stayed until the hearing of the application for permission.
x) Permission was granted on 5 March 2004 by Richards J and the stay was continued until the hearing of the application.
xi) At the conclusion of the argument on 2 April 2004, we were asked to lift the stay, because the claimant had been advised that he had already spent a period in custody equivalent to that to which he would be sentenced on a plea of guilty; he therefore wished to plead guilty and to ask the Magistrates to reconsider their decision to hear the matter and sentence him.
xii) We gave our decision dismissing the application on the basis that the procedure and venue were not appropriate and that the claimant's defence was confined to that set out in s.31 of the 1999 Act. We lifted the stay. We indicated that we would give our reasons in writing.
(1) Article 31 and s. 31
(a) The history
"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.-'"
"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; or who, not having a nationality and being outside the country of his former habitual residence… is unable or, owing to such fear, is unwilling to return to it…"
"What then was the broad purpose sought to be achieved by Article 31? Self-evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law…That Article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt. Nor is it disputed that Article 31's protection can apply equally to those using false documents as to those (characteristically the refugees of earlier times) who enter a country clandestinely. There are, however, within the text of the article certain expressed limitations upon its scope and these clearly require consideration. To enjoy protection the refugee must (a) have come directly from the country of his persecution, (b) present himself to the authorities without delay, and (c) show good cause for his illegal entry or presence."
"I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on) and whether the refugee sought or found there protection de jure or de facto from the persecution they were fleeing".
"Provided that the respondents henceforth recognise the true reach of Article 31 as we are declaring it to be and put in place procedures to ensure that those entitled to its protection (i.e. travellers recognisable as refugees whether or not they have actually claimed asylum) are not prosecuted, at any rate to conviction, for offences committed in their quest for refugee status, I am inclined to conclude that, even without enacting a substantive defence under English law, the abuse of process jurisdiction is able to provide for a sufficient safety net for those wrongly prosecuted."
"By the time of these applicants' prosecutions, at the latest, it seems to me that refugees generally had become entitled to the benefit of Article 31 in accordance with the developing doctrine of legitimate expectations."
"1. The protection contemplated by Article 31 is, if afforded, in the nature of a pardon or grant of immunity from suit. Such relief lies with the executive to grant and is not within the class of immunity granted by the Director of Public Prosecutions.
2. A legitimate expectation that the executive will consider whether to afford protection requires no request from the refugee for the duty upon the Secretary of State to consider the position to arise. He should do so whenever the facts disclosed to him give rise to an arguable case for consideration.
3. His decision will be capable of challenge by judicial review, but if the protection is not accorded, subject only to any defence of necessity or duress, the refugee can only raise facts in mitigation
6. The court will be required, probably in rare cases, to consider whether an arguable case for Article 31 is available, where the refugee asserts a claim for protection which the Secretary of State had no cause to consider. If no credible case is made out the court will be entitled to reject the application and refuse a stay pending a determination by the Secretary of State"
"(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 I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);
(b) section 24A of the 1971 Act (deception); or
(c) section 26(1)(d) of the 1971 Act (falsification of documents).
(5) A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.
(6) 'Refugee' has the same meaning as it has for the purposes of the Refugee Convention.
(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.
(8) A person who -
(a) was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but
(b) at no time during the proceedings for that offence argued that he had a defence based on Article 31(1)
may apply to the Criminal Cases Review Commission with a view to his case being referred to Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time. "
(b) The position after the enactment of s.31: the relevance of the decision on the first issue in Adimi
i) S. 31 of the 1999 Act had not affected the meaning of Article 31.
ii) Adimi was correctly decided and should be followed.
iii) There remained the legitimate expectation that a refugee would be entitled to the full scope of the protection of Article 31 interpreted in the way declared by this court in Adimi.
iv) The Claimant was on his account of events entitled to the protection set out in Article 31.
"In respect of all other offences, the defence in s. 31 is not available. In relation to those offences, refugees are entitled to Article 31 protection in accordance with legitimate expectations."
This statement was expressly repudiated on behalf of the CPS who submitted it was misconceived and wrong in law.
"as a matter of constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they could enjoy in domestic law without the interpretation of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."
The second is a passage in the speech of Lord Hoffman in R v Lyons  UKHL 44:
"… it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them: JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry. Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation as Lord Goff of Chieveley said in Attorney-General v Guardian Newspapers Ltd (No.2)  1 AC 109, 283:
'I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention]'
"But for the present purposes the important words are "when I am free to do so". The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not."
"...in contradistinction, for example, to the European Convention on Human Rights, the [Refugee] Convention with which we are concerned is not and never has been part of the domestic law, save that in this particular respect Parliament has now enacted section 31. That being so, it seems to me that this court and, more to the point, the CPS in deciding whether to continue the prosecution is necessarily obliged to have regard to the terms of the statute as laying down authoritatively the nature of this country's obligations under Article 31."
(c) Legitimate expectations: the relevance of the second issue in Adimi
(2) The appropriate procedure and forum
" In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court. "
"I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review. And I would further rule that the present case falls on the wrong side of that line. While the passing of the Human Rights Act 1998 marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts are concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal. The effect of the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings. Such satellite litigation should rarely be permitted in our criminal justice system. In my view the Divisional Court should have dismissed the applicants' application."
"In the opposite case, namely a decision not to prosecute, judicial review is available: see Reg. v. Director of Public Prosecutions, Ex parte C.  1 Cr. App. R. 136. That is, however, a wholly different situation because in such a case there is no other remedy. Counsel for the Respondents also relied on Reg. v. Bedwellty Justices, Ex parte Williams  A.C. 225 where the House of Lords quashed a Magistrates Court's decision to commit a defendant on inadmissible evidence. A Magistrates' Court is, however, an inferior court. The present case involves a decision by the DPP in respect of a trial pending in the Crown Court which is a superior court"