R (Pepushi) v DPP

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date11 May 2004
Neutral Citation[2004] EWHC 798 (Admin)
Date11 May 2004
[2004] EWHC 798 (Admin)

Administrative Court

Lord Justice Thomas and Mr Justice Silber

R (on the Application of Gjovalin Pepushi)
and
Crown Prosecution Service

Representation:

Andrew Nicol QC and John Walsh instructed by J R Hobbs, for the Claimant;

David Perry and Simon Ray instructed by the Crown Prosecution Service, for the Defendant.

Cases referred to in the judgment:

Attorney-General v Guardian Newspapers Ltd (No 2)ELR [1990] 1 AC 109

Hussain v Secretary of State for the Home Department and OthersUNK [2001] EWHC 555 (Admin)

Rayner (Mincing Lane) Ltd v Department of Trade and IndustryELR [1990] 2 AC 418

R v Bedwellty Justices ex parte WilliamsELR [1997] AC 225

R v Director of Public Prosecutions ex parte CUNK [1995] 1 Cr App R 136

R v Director of Public Prosecutions ex parte KebileneELR [2000] 2 AC 326

R v Lyons and othersUNKELR [2002] UKHL 44; [2003] 1 AC 976

R v Secretary of State for the Home Department ex parte SivakumaranELR [1988] AC 958; [1998] Imm AR 147

R v Uxbridge Magistrates Court and another ex parte Adimi, Sorani and Kaziu [1999] Imm AR 560; [1999] INLR 490

Re McKerrUNKWLR [2004] UKHL 12; [2004] 1 WLR 807

R (on the application of European Roma Rights Centre and others) v Immigration Officer, Prague AirportUNK [2003] EWCA Civ 666; [2003] INLR 374

R (on the application of Pretty) v Director of Public ProsecutionsUNKELR [2001] UKHL 61; [2002] 1 AC 800

R (on the application of Rusbridger) v Attorney GeneralUNKELR [2003] UKHL 38; [2004] 1 AC 357

Legislation judicially considered:

Immigration and Asylum Act 1999, s 31

Supreme Court Act 1981, s 29(3)

Article 31 of the Refugee Convention — scope of protection following enactment of s 31 of the Immigration and Asylum Act 1999 — scope of s 31 —‘Adimi’ rightly decided but not applicable — whether judicial review was an appropriate means of challenge to a decision to prosecute

The Claimant, a national of the former Yugoslavia, was stopped by immigration officers at Heathrow Airport when attempting to board a flight to Canada using a false Swedish passport. He was arrested, and when interviewed stated that he wished to claim asylum in the UK. He had stopped en route to the UK first in Italy and then in France. A decision was made by the Crown Prosecution Service (‘CPS’) to prosecute him for the offence of using a false instrument contrary to ss 3 and 6 of the Forgery and Counterfeiting Act 1981. The Claimant was committed for trial to the Crown Court. Permission to apply for judicial review of the decision of the CPS to prosecute was granted, together with a stay on the prosecution pending the hearing of the application.

The Claimant argued that he was entitled to protection under Article 31 of the Refugee Convention and that, following the decision in R v Uxbridge Magistrates Court ex parte Adimi, Sorani and KaziuELR [1999] EWHC 765 (Admin), [2001] QB 667 (‘Adimi’), the prosecution against him should be discontinued. The CPS contention was that as a result of s 31 of the Immigration and Asylum Act 1999 (‘the 1999 Act’), enacted shortly after Adimi, the Claimant's defence was limited to the terms of the statute and he could no longer rely on Article 31 of the Refugee Convention. The Claimant, it was accepted, could not bring himself within the defence provided by s 31, as he had stopped in another country en route to the UK, and he could not show, as provided by s 31 (2), that this was a country in which he could not reasonably have sought protection under the Refugee Convention. In contrast, under Article 31, as interpreted in Adimi, a brief stopover would not have caused him to forfeit protection.

Held, dismissing the appeal:

(1) the Claimant's defence was limited to that set out in s 31 of the 1999 Act: it was not open to him to rely on Article 31 as interpreted by Adimi; Adimi had recognised that, despite the ratification by the UK of the Refugee Convention, the executive and Parliament had failed to honour the obligation it imposed, as a matter of international law, to ensure that domestic criminal law did not impose penalties in the circumstances set out in Article 31; the appropriate remedy identified by the court in Adimi was not based on recognition of the incorporation of the Refugee Convention in international law, but on the basis that the ratification of the Refugee Convention created a legitimate expectation that its provisions would be followed; in giving effect to its obligations, Parliament had chosen language which was narrower in scope than Article 31; international treaties did not form part of English law and English courts had no jurisdiction to apply them; there was only a strong presumption in favour of interpreting English law which did not place the UK in breach of its international obligations (paras 15–19 and 27–33);

(2) s 31 did not cover the entire scope of the application of Article 31: it did not cover, for example, offences other than those specified; where Article 31 applied, its meaning and scope remained as defined in Adimi (paras 21–26);

(3) no legitimate expectation remained that the Claimant would be entitled to the wider scope of the protection offered by Article 31; to allow a legitimate expectation of protection other than that which Parliament had provided would be indirectly to circumvent the scope of domestic law (para 37);

(4) the application for a judicial review before the Court was not an appropriate means of challenge and was not made to the appropriate forum; a decision to prosecute was, in the test laid down in R v Director of Public Prosecutions ex parte KebileneELR [2000] 2 AC 326, not ordinarily amenable, in the absence of dishonesty or mala fides, to judicial review; judicial review was only appropriate where the challenge was to a decision on these issues by the magistrates' court or to a decision not to prosecute; if an alternative remedy was available, judicial review should not be pursued (paras 45–50).

Judgment

Lord Justice Thomas:

[1] This application (on which this judgment is the judgment of the Court) raises two points of principle:

  1. 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 AdimiELR [1999] EWHC Admin 765, [2001] QB 667.

  2. 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

[2] The facts can be briefly stated.

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.’

  7. 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.

  8. 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.

  9. 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.

  10. x) Permission was granted on 5 March 2004 by Richards J and the stay was continued until the hearing of the application.

  11. 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...

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