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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mohamed v R [2010] EWCA Crim 2400 (19 October 2010) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2010/2400.html Cite as: [2011] 1 Cr App Rep 35, [2010] EWCA Crim 2400, [2011] 1 Cr App R 35 |
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Neutral Citation Number: [2010] EWCA Crim 2400
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19/10/2010
Before :
LORD JUSTICE LEVESON
MR JUSTICE OWEN
and
MR JUSTICE FLAUX
Case No: 201002204 B1
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
His Honour Judge Hayward-Smtih Q.C.
T20097134
Between :
|
ABDALLA MOHAMED |
Appellant |
|
- and - |
|
|
THE QUEEN |
Respondent |
Case No: 201003034 D4
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
His Honour Judge George
T20097766
Between :
|
MV |
Appellant |
|
- and - |
|
|
THE QUEEN |
Respondent |
Case No: 20102435 C4
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
His Honour Judge Gratwicke
T20077265
Between :
|
RAHMA ABUKAR MOHAMED |
Appellant |
|
- and - |
|
|
THE QUEEN |
Respondent |
Case No: 20102498 D2
ON APPEAL FROM LEWES
His Honour Judge Rennie
T20097357
Between :
|
MOHSEN NOFALLAH |
Appellant |
|
- and - |
|
|
THE QUEEN |
Respondent |
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Ian Macdonald Q.C. and Ms Francesca Delany for MV
Mr Ian Macdonald Q.C. and Mr Daniel Bunting for Abdalla Mohamed and Nofallah
Mr Richard Thomas for Rahma Mohamed
Mr Anthony Arlidge Q.C. for the Crown
Hearing date : 28 September 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Leveson :
1.
Section 25(1) of the Identity Cards Act 2006 (“the 2006 Act”) provides
that it is an offence for a person with the requisite intention to have in his
possession or under his control an identity document that either to his
knowledge or belief is false, or to his knowledge or belief was improperly
obtained or that relates to someone else. The requisite intention is either to
use the document for establishing registrable facts about himself (not being
the person to whom it relates) or to allow or induce another to use it for a
similar purpose. The presentation of false documents on entry to the UK and for the purpose of obtaining entry is an obvious example of the vice
to which the
provision relates.
2. This offence is not, however, absolute. Pursuant to U.K. obligations under Article 31(1) of the Refugee Convention (“the Convention”), s. 31 of the Immigration and Asylum Act 1999 (“the 1999 Act”) provides a defence which (by section 31(3)(aa) of that Act) was specifically amended to apply to any offence or attempt to commit an offence under s 25(1) of the Identity Cards Act 2006 and is in these terms:
“(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 each of these appeals, which have no connection with each other save for the similarity of the facts which form the basis of the argument, the relevant applicant pleaded guilty to a breach of the 2006 Act offence and was sentenced to a term of imprisonment. It is now submitted that each was wrongly advised as to the law and could have mounted a defence in reliance upon s. 31 of the 1999 Act. Each has been referred to the full court by the Registrar; during the course of the hearing, we granted leave along with the relevant extension of time.
4. It is necessary, first, to analyse the general scope of the defence under the 1999 Act and, second, the basis upon which it is appropriate to allow a challenge to the safety of a conviction after an unequivocal plea of guilty which followed legal advice. We will then deal with the facts of the four specific cases.
The Defence
5. The background to the legislation is not unimportant. Article 1 of the Convention defines a refugee as a person who “owing to a 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(1) goes on:
“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.”
6.
It was only in Regina v.
Uxbridge Magistrates Court ex parte Adimi [2001] QB 667 that the circumstances of prosecuting for
documentary offences those who claimed asylum were first considered. Simon
Brown LJ considered the broad purpose of Article 31 and put the matter in this
way (at 677G):
“Self evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaking the law. In the course of argument, Newman J suggested the following formulation: where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum whether here or elsewhere, that conduct should be covered by Article 31.”
7. The response of the Government to this decision was to move an amendment to the Immigration and Asylum Bill then before Parliament. It was that amendment which became s. 31 of the 1999 Act although it is to be noted that the legislation contains two aspects that more narrowly define the position than that advanced by Simon Brown LJ namely, in subsection (1) the requirement that anyone claiming protection must have applied for asylum as soon as is reasonably practicable and in subsection (2) that a refugee who has stopped in another country outside the U.K. must show that he could not reasonably have been expected to have been given Convention protection in that other country.
8.
The decision in Adimi was subsequently affirmed
by the House of Lords in Regina v
Asfaw [2008] 1 AC 1061 which concluded
(per Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Carswell, Lord
Rodger of Earlsferry and Lord Mance dissenting) that the Convention (and the
amendment to the 1999 Act) was to be given a purposive construction consistent
with its humanitarian aims. It was thus sufficient to include protection of
refugees from the imposition of criminal penalties for infractions of the law
reasonably or necessarily committed in the course of their flight from
persecution, even if they had made a short term stopover in an intermediate
country on route to the country of intended refuge.
9.
Although the full scope of s. 31 of the 1999 Act
was not determined by Afsaw, Lord Bingham did make clear that in order
to satisfy the requirement of s. 31(1)(c) the claim for asylum must be made as
soon as was reasonably possible (which did not necessarily mean at the earliest
possible moment: see para. 16). Second, the fact that a refugee had stopped in
a third country in transit was not necessarily fatal: he affirmed the
observations of Simon Brown LJ in Adimi (at page 678) that refugees had
some choice as to where they might properly claim asylum and that the main
touchstones by which exclusion from protection should be judged were the length
of the stay in the intermediate country, the reasons for delaying there and
whether or not the refugee sought or found protection de jure or de facto from
the persecution from which he or she was seeking to escape: see also R. v
MMH [2008] EWCA Crim 3117 at paras 14-15.
10.
The upshot of this analysis is that it is open to
anyone charged with an offence under s. 25(1) of the 2006 Act to adduce
sufficient material to raise an issue that he or she is a refugee and entitled
to the protection of s. 31 of the 1999 Act whereupon the burden of disproving
that defence will fall upon the prosecution: see R v
Makuwa
[2006] EWCA Crim 175. It is thus critical that those advising
defendants charged with such an offence make clear the parameters of the
defence (including the limitations and potential difficulties) so that the
defendant can make an informed choice whether or not to seek to advance it. We
now turn to consider the consequence if such advice is not given.
Failure to Advise
11.
There is no doubt that this Court can entertain an
application for leave to appeal against conviction on the grounds that a tendered
guilty plea was a nullity. The limited basis of that jurisdiction was
explained in R v
Evans
[2009] EWCA Crim 2243) by Thomas LJ in these
terms (at para. 52):
“The applicable general principle is that such a writ will be
granted where the proceedings are a nullity, that is to say where a purported
trial “is actually no trial at all” (see the opinion of Lord Atkinson in Crane
v
DPP [1921] 2 AC 299 at 330) or where there has been “some irregularity in
procedure which prevents the trial ever having been
validly
commenced” (see the
opinion of Lord Diplock in Rose (1982) 75 Cr App R 322 at 336.”
12.
The test for a plea to be held a nullity was
elaborated (per Scott Baker LJ in R v
Saik [2004] EWCA Crim 2936) as
requiring the facts to be so strong as to demonstrate that there is no true
acknowledgment of guilt with the advice going to the heart of the plea so that
it was not “a free plea”. It is, however, important not to water down the
underlying concept of the jurisdiction so as to bring nullity into play purely
on the basis of advice alleged to be wrong. For those circumstances, there
remains a basis on which this Court can intervene which is firmly grounded in
the safety of the conviction. Thus, in R
v
Lee (Bruce) (1984) 79 Cr App
R 108, the approach was articulated by Ackner LJ in this way:
“The fact that [Lee] was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although factors highly relevant to whether the convictions or any of them were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications.”
13.
This alternative approach was adopted in R v
Boal (1992) 95 Cr App R 272 which concerned the failure to challenge what
was held to be the erroneous assumption that an assistant general manager at a
bookshop, responsible for the shop during a week in which the manager was
absent, was a manager within s 23(1) of the Fire Precautions Act 1971. In
quashing the conviction that followed guilty pleas based on that assumption
(observing that the appellant “was deprived of what was in all likelihood a
good defence in law”), Simon Brown LJ also made clear the additional hurdle
that had to be overcome when he said (at 278):
“This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often.”
14. It is against that background of law that we now examine the facts of the four cases which were argued before us.
R
v
Abdalla Mohamed
17.
Again, it is necessary to summarise the nature of this appellant’s
case. During a screening interview with immigration officers which took place
on the day of his arrival, the appellant claimed that he had flown from Mogadishu Airport in the company of an agent pursuant to arrangements made by his father,
who had paid 3,000 Euros. They had flown for three hours to another airport
where people spoke Arabic. They had stayed there for one and a half days, not
leaving the airport. He had then caught a second flight that very
day but was
unable to say how long that flight had taken, other than he believed that it
had lasted longer than the first flight. He could not confirm whether they had
stopped anywhere else before landing at Stansted, but said that it was possible
they had done so.
19.
For the purposes of the criminal proceedings, the appellant was
represented by Mr Richard Conley, a solicitor advocate and partner in Taylor
Haldane Barlex LLP. The appellant asserted that he had not received advice
about the possibility of mounting a defence under s. 31 of the 1999 Act and
waived privilege. In a response dated 18 June 2010, Mr Conley said that he was
able to say with confidence that he would have advised the appellant about the
statutory defence because at the time that he represented the appellant, he was
also briefed to represent another defendant who had come from Iran to the UK
via
another EU country whom Mr Conley had advised about the availability of the
defence and who was proposing to run it at trial. He said that it was
inconceivable that having researched the availability of that defence for that
other client he would not have advised the appellant as to the existence of the
defence. In order to resolve this issue, the Court heard the evidence of both
the appellant and Mr Conley de bene esse.
20.
The appellant’s evidence about the court hearing and events surrounding
it was somewhat vague.
He appeared to have no clear recollection, even of
whether he was being asked to plead guilty or not guilty. Although he claimed
that he was told by the lawyer to plead guilty, he said that he could not
remember any discussion about the availability of a defence.
24.
Mr Conley was asked whether there were difficulties in explaining,
through an interpreter, the complex concepts that this defence involved. He
explained that he had experience, from many cases, of Somali interpreters
appointed by the Court. Some were very
good and others not so good. With a
competent interpreter, it was possible to be confident of the defendant
understanding the concepts; with a less competent interpreter, it would be
necessary to work harder to ensure the defendant understood.
27.
Even if we had concluded that no advice had been given, we would still
have concluded that the plea of guilty should not be set aside. There was no
reasonable prospect of a defence under section 31 succeeding, given the facts
of the appellant’s case as they emerged in the screening interview and to an
extent in cross-examination: (i) he was extremely vague
about the journey from
Mogadishu and in particular where he had come from when he entered the UK,
notwithstanding that he was being interviewed on the same day as he had flown
into the country and that he had never been on an aeroplane before, so that he
might have been expected to have a greater interest in where he was going; (ii)
he had said that hopefully his family would travel to Ethiopia the following
week and did not explain why he could not have also gone there or suggest that he
would not have been safe in Ethiopia: (iii) he had no specific desire to go to
the UK but just to any European country and (iv) he had in fact come into the
UK on a flight from Italy and given his inability to say whether the flight had
stopped somewhere else after leaving the airport where he had spent one and a
half days, a jury would in all probability have concluded that that time had
been spent in Italy. Against that background, we consider that section 31(2)
would have presented real difficulties standing in way of any defence under
section 31(1).
R
v
MV
29.
MV (wrongly indicted as MW) is an Iranian national. On 7 August 2009 he
arrived at Liverpool John
Lennon airport from Reus in Spain. At immigration control he presented a false Bulgarian passport in the name of Stanimirov.
He was arrested and in due course charged with an offence under section 25 of
the 2006 Act. On 7 September 2009 he appeared in the Crown Court at Liverpool where he pleaded guilty to possession of a false identity document with intent
and was sentenced to 12 months imprisonment. He now seeks to appeal this
conviction on the grounds that he was not advised of the possibility of a
defence under section 31 of the 1999 Act and that accordingly his plea was not
a proper admission of guilt.
31.
According to the witness statement, the appellant was born in Abhar, a
city in the North West of Iran. He married in October 1998 and has a son born
in August 1999. His wife and son are still in Iran. In June 2009 he became
involved in demonstrations against the Iranian government. On 15 June he
travelled by bus to Tehran with a number of friends and relations. They joined
a demonstration; but he became separated from the group, and was subjected to
physical violence
at the hands of what he described as soldiers. He was taken
into custody and was detained for 16 days during which he was interrogated and
subjected to torture. It is not necessary for present purposes to
particularise the treatment that he claims to have suffered at the hands of the
authorities.
32.
He was able to escape with outside assistance arranged, he thinks, by
his father and an uncle. The arrangements involved his being supplied with a
drink containing soap that provoked symptoms indicative of illness with the
consequence that he was transferred to hospital from which he was able to escape.
Arrangements had been made for him to be taken to Turkey in the back of a
lorry. The agent who accompanied him on the journey provided him with an
Iranian passport, and after arrival in Ankara arranged for the passport to be
endorsed with a visa
for Syria. He then travelled to Syria by air and on arrival was taken to a flat where he stayed for a week. He was then taken by
the agent to an airport from which he flew to Spain. He was in transit in Spain for about three hours, during which he did not leave the airport. He was then given
the Bulgarian passport the subject of the charge, and was told that he would be
on his own when he arrived in the United Kingdom. Up until that point he had
been told to follow the agent, and to do what he said at all times.
33.
A witness statement from an immigration officer on duty at Liverpool
John
Lennon airport on 7 August 2009 states that he was approached by the
appellant who handed him the Bulgarian passport which the officer immediately
recognised as a forgery. The appellant gave his name and date of birth. He
also gave his nationality as Iranian and told the officer “… that he had
problems in Iran.” In the course of the screening interview carried out on the
same day he was asked the standard question as to why, if he had stayed in a
country or countries before arriving in the United Kingdom, he had not applied
for asylum before arriving in the UK. His answer is recorded in the following
terms:
“Turkey and Iran are hand in hand. There is nowhere safe in Turkey and my father asked to take me to a safe country.”
34.
On 8 August 2009, when charged with the offence, the appellant was
represented by a duty solicitor, Graham Polson of Canter Levin and Berg. Mr
Polson also represented him on his appearance at the Liverpool City
Magistrates’ Court two days later when he gave him advice as to his plea. In
his witness statement, dated 21 May 2010, Mr Polson states in terms that at no
time did he advise the appellant on the statutory defence under section 31.
Having pleaded guilty at the Magistrates Court, the appellant was committed to
the Liverpool Crown Court for sentence where he was represented by Mr Brendon
Carville of counsel. In his note to the Registrar, Mr Carville says that he
took the view
that there had been a bona fide plea before the Magistrates, and,
further, that the statutory defence under section 31 did not apply as the
appellant had not come directly to this country from Iran. Thus, although Mr
Carville addressed his mind to the issue, his note is consistent with the
appellant’s evidence that even when he appeared in the Crown Court, he was not,
in fact, given advice as to section 31.
R v.
Rahma
Abukar Mohamed
40. On 9 August 2007, at Stansted airport, Rahma Bukar Mohamed (then aged 32) entered the UK on a flight from Eindhoven. She approached an immigration officer saying that she had arrived from Holland and presenting a genuine UK Convention travel document along with a UK asylum registration card in the name Ayni Abdalla. The officer noticed that the photograph was not that of the appellant; when questioned she revealed her correct name and age. She then claimed asylum. On the following day, the appellant was arrested and, after interview, charged with two offences each of possession of a false instrument under s. 25(1) and 25(5) of the 2006 Act.
41. On 21 August 2007, at a preliminary hearing in the Crown Court at Chelmsford, the appellant pleaded guilty to both offences and was sentenced by His Honour Judge Gratwicke to 15 months and 3 months imprisonment respectively, the sentences to run concurrently. She now also seeks leave to appeal her conviction (and an extension of time within which to do so) on the basis that she was not advised of the possibility of mounting a defence under s. 31 of the 1999 Act.
42.
Her account, set out in her screening interview and
amplified in a witness statement, can be shortly summarised. The militia in Somalia had shot her in 2000 due to her ethnicity and in 2004 she was threatened with rape
(although a neighbour intervened and prevented the attack); in May 2007, she
was assaulted by the militia and suffered a dislocated arm; she feared she
might be killed. Thus, leaving her husband and children but accompanied by an
agent who had been paid US $3,000, she had left Somalia and travelled by lorry
to various
African countries. She then flew to Holland arriving on 6 August:
she did not know where she was and only knew that she was on her way to the UK (which was her destination of choice because she knew that members of her clan were
here). She was subsequently taken to the airport and provided with the
documents she later presented to the immigration authorities at Stansted. In her
witness statement, she put the matter in this way:
“When I arrived in Holland, I did not even know that I was in Europe; only that I was on my way to the UK .... I was frightened that I would be abandoned if I did not do what the agent had told me to do.
The agent took me to some friends of his in Holland who we stayed with for three days. During these days I did not speak to the other people at all. I felt extremely frightened and alone. I did not ask the people about Holland ... It did not occur to me to claim asylum at this point. I would not have known where to go or who to speak to. All I knew is that I had to do what the agent said and that he was going to take me to the UK and that I should stay with him at all times.”
43.
Conditions in Somalia and the likely persecution of
Ms Mohamed’s sect have been confirmed by Professor Lewis,
an acknowledged
expert upon life in Somalia; he also confirmed the cultural background that
explained her obedience to each and every instruction issued by the male agent.
It is pertinent to add that, although initially refused asylum, Ms Mohamed was
successful on appeal and has now been granted leave to remain for five years in
the UK as a refugee.
44. She maintained that she was advised by her representatives to plead guilty and was not told that she had or may have a defence. There is no evidence from the lawyer who apparently represented the appellant when she was interviewed but, on her first appearance in the Magistrates Court after charge, the duty solicitor, then Mr Gary Ryan of Buxton Ryan, appeared on her behalf. After the appropriate waiver of privilege, he has made it clear that his firm had not previously represented her and that his advice on that occasion was limited to the procedural issues. He did not provide Ms Mohamed with any advice as to plea but instructed counsel to appear on her behalf. Mr Rio Pahlavanpour of counsel has written to the effect that he “advised fully as to the elements of the offence, including the requisite intention contained in subsection 2 of section 25” and that it was on this basis that she was advised to enter a plea of guilty. Although the point in issue was flagged, counsel did not address the possibility of mounting a defence under s. 31 and has not since done so.
45. In the light of the absence of contrary evidence and the circumstances, Mr Arlidge QC does not challenge the proposition that this appellant was not advised of the potential defence open to her and accepts that she had a good prospect of successfully establishing that she came directly and that, in any event, it was reasonable for her not to claim asylum in Holland. Thus, he does not oppose this application or the appeal.
46. Mr Thomas, who appeared for Ms Mohamed in this Court, was content to approach the appeal on the basis that these convictions were unsafe. We agree with both counsel. In the circumstances, the appeal is allowed and the convictions are quashed.
R.
v.
Mohsen Nofallah
47. On 2 August 2009, this appellant arrived at Gatwick airport having arrived on a flight from Athens. He handed the immigration official a Danish passport in the name of Soren Howell but made no response to questions put to him, save eventually to nod when asked if he was Iranian. The passport was found to be counterfeit with a substituted biodata page. He was arrested and, on 21 August 2009, appeared in the Crown Court at Lewes before His Honour Judge Rennie where he pleaded guilty to a contravention of s 25 of the 2006 Act. He was sentenced to 8 months imprisonment. He now seeks leave to appeal his conviction and an extension of time on the grounds that he was not advised of a potential defence under s. 31 of the 1999 Act and could successfully have relied upon it.
48.
The appellant’s various
accounts to the authorities
have not been entirely consistent in that they have developed although it is
clear that, either to the immigration authorities or the police, he claimed
asylum. In his screening interview, he explained that he had been arrested and
accused of embezzlement; because he could not prove that he was innocent, he
was sentenced to two years imprisonment but bailed pending appeal; as a result,
he had to escape. He later explained to his criminal solicitor, Mr Anthony
Eden of Frame Smith & Co. that he had been employed as a bank manager and,
in that capacity, granted a loan which had been approved by his superiors: the
loan had later been found to have been obtained using false documents. When
the borrower defaulted, he was prosecuted to conviction and, after five years,
his appeal failed and not only ordered to serve the sentence but also ordered
to pay compensation. He feared that if he went to prison he would never be
released until the money was paid and could have faced execution. Thus he
fled. The handwritten note of his instructions goes on:
“Nothing to do with political problems.”
Mr Eden then advised that there was no defence and instructed counsel accordingly.
49. By the time that the appellant appeared in the Crown Court, his instructions were more extensive. It was explained to Judge Rennie that, with his daughter, the appellant had been on a demonstration against the recently disputed elections in Iran, his photograph had been taken and he had been identified by the intelligence services. It was further put that he believed that the two issues (the embezzlement and the identification by the intelligence services) were “inextricably linked”. In later statements for the purposes of his claim to asylum, he elaborated further and also explained that the authorities had raided his house in his absence and his wife had three times been detained and interrogated.
50.
The appellant’s claim for asylum was originally
rejected. On appeal, the Immigration Judge focused on the appellant’s
involvement with his daughteer in the political demonstration (in which he said
that both used and was treated with violence);
he found the appellant a
credible witness who would be at risk if he was returned to Iran; the appeal was successful both on asylum and Article 3 ECHR grounds. It does not appear that
the allegation of embezzlement and the conviction was ever mentioned: not only
is there no mention of it but the Immigration Judge specifically emphasised
that the appellant was a middle aged man with “a good future ahead of him in Iran if he had not become involved in this demonstration”.
51. As for his travel out of Iran, he has consistently explained that he left Iran on 1 July in a lorry (paying the equivalent of between 7,000 and 8,000 Euros); he remained in the lorry for 25 days, the lorry driver offering to drop him off anywhere that was suitable. He ended up in Athens (not applying for asylum in intermediate countries because he did not know where he was and could not speak the language), spent two weeks locked in a flat in Athens and then flew to the UK.
52. Section 31 of the 1999 Act applies only in the case of a refugee (which, using the definition within Article 1 of the Refugee Convention defines a refugee as set out in paragraph 5 above). If the appellant was simply seeking to avoid the consequences of his criminal conviction (specifically disavowing ‘political problems’), it is difficult to see on what basis he would qualify. In those circumstances, we reject any suggestion that he was not properly advised by his solicitors. What was later to emerge before the Immigration Judge cannot affect the advice given on the basis of the instructions which Mr Eden then received.
53. By the time counsel was instructed, however, the position was slightly different in that the political dimension surrounding the investigation was part of the appellant’s instructions and was advanced in mitigation to the judge. The appellant having waived privilege, Leesha Whawell of counsel was asked about her advice to the appellant. In a candid letter to this Court, she agreed with the advice of counsel now advising the appellant that he had what was, potentially, a good defence; she accepted full responsibility for failing to advise him of it. Had it not been for the additional material placed before the Crown Court, we would have wanted to investigate that concession (and its consistency with the instructions from solicitors) in rather greater detail.
54.
Having regard to the circumstances, however, we do
not seek to do so but are prepared to accept it at face value.
We also accept
that he satisfies the criteria under s. 31(1) of the 1999 Act subject only to
the exception in s 31(2) and whether he came directly or could reasonably have
been expected to claim asylum in Greece. Only because of the
very favourable
impression that this appellant made upon the Immigration Judge (putting to one
side that the judge does not appear to have known about the embezzlement
conviction), we are not prepared to conclude that the defence would have failed
and that a jury would not have been entitled to accept his account that he had
been locked in a flat in Athens and conclude that he had done no more than
engaged in a “short term stopover” within the meaning of that phrase as
explained in Adimi.
55. Not without some hesitation, we are prepared to conclude that this appellant’s conviction is unsafe and is quashed.
Concluding Remarks
56. These cases are characterised by allegations that those advising illegal entrants to this country have simply failed to ensure that the scope of the potential defences to an allegation of breach of s. 25 of the 2006 Act have fully been explored. If the circumstances and instructions generate the possibility of mounting a defence under s. 31 of the 1999 Act, there is simply no excuse for a failure to do so and, at the same time, properly to note both the instructions received and the advice given. If these steps are taken, cases such as the four with which the Court has just dealt, will not recur and considerable public expense (both in the imprisonment of those convicted and in the pursuit of an appeal which will involve evidence and waiver of privilege) will be avoided.