R v Koshi Pitshou Mateta and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] EWCA Crim 1372 |
| Docket Number | Case No: 201300512 C4; 201303174 C2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 30 July 2013 |
[2013] EWCA Crim 1372
Lord Justice Leveson
Lord Justice Fulford
and
Mr Justice Spencer
Case No: 201300512 C4; 201303174 C2
201303176 C2; 201301678 B5; 201301837 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT
ISLEWORTH (Judge McGregor-Johnson) T20097247
(Judge Lowen) T20127215
LEWES (Judge Richard Brown) T20077602
MANCHESTER (Judge Foster Q.C.) T20067856
Royal Courts of Justice
Strand, London, WC2A 2LL
R. Thomas for Mateta, Bashir and Andukwa
D. Bunting for Ghavami and Afshar
J. McGuinness Q.C. and B Douglas-Jones for the Crown
Introduction
Four of the present cases are before the court by way of a reference from the Criminal Cases Review Commission ("CCRC") and one application for leave to appeal has been referred by the Registrar of Criminal Appeals: we grant that applicant the necessary extension of time and leave to appeal. In each case, the same issue arises and because other similar cases are being pursued by way of application or appeal, it is appropriate to review the law and practice, thereby providing some guidance for the future.
In short, each of the appellants, when entering or leaving the United Kingdom, attempted to rely on a false passport or a false travel document issued under the 1951 Convention Relating to the Status of Refugees ("a Geneva passport"), in that the passport or travel document was a forgery or it related to a different person. They all pleaded guilty to an offence of possession of an identity document with improper intention, either contrary to s. 25(1) Identity Cards Act 2006 or s. 4 Identity Documents Act 2010 (the latter replacing s. 25 in similar but not identical terms).
The issue can be stated simply and concerns the approach to be taken by the Court of Appeal when a defendant, following incorrect legal advice, has pleaded guilty to an offence under s. 25 or s. 4 if a defence under s. 31 Immigration and Asylum Act 1999 ("the Act") was or may have been available to him or her.
The Crown does not resist the suggestion that the convictions in the cases of Koshi Mateta, Simon Andukwa, Yasin Bashir, Amir Ghavami and Saeideh Afshar should be quashed. Following further analysis of the position, an appeal by Herve Tchiengang, although referred by the Criminal Cases Review Commission, was abandoned on notice prior to the hearing.
The law
The terms of the offence in its earlier and present form are as follows. The differences in wording between the two sections are immaterial for the purposes of this appeal. For the sake of completeness, we set out both.
Section 25(1) Identity Cards Act 2006
Possession of false identity documents etc
(1) It is an offence for a person with the requisite intention to have in his possession or under his control-
(a) an identity document that is false and that he knows or believes to be false;
(b) an identity document that was improperly obtained and that he knows or believes to have been improperly obtained; or
(c) an identity document that relates to someone else.
(2) The requisite intention for the purposes of subsection (1) is —
(a) the intention of using the document for establishing registrable facts about himself; or
(b) the intention of allowing or inducing another to use it for establishing, ascertaining or verifying registrable facts about himself or about any other person (with the exception, in the case of a document within paragraph (c) of that subsection, of the individual to whom it relates).
Section 4 Identity Documents Act 2010
Possession of false identity documents etc with improper intention
(1) It is an offence for a person ("P") with an improper intention to have in P's possession or under P's control —
(a) an identity document that is false and that P knows or believes to be false,
(b) an identity document that was improperly obtained and that P knows or believes to have been improperly obtained, or
(c) an identity document that relates to someone else.
(2) Each of the following is an improper intention —
(a) the intention of using the document for establishing personal information about P;
(b) the intention of allowing or inducing another to use it for establishing, ascertaining or verifying personal information about P or anyone else.
As for possible defences to these offences, the background is to be found in Article 31 of the 1951 Convention and of the 1967 Protocol Relating to the Status of Refugees in which the United Nations addressed the need for a defence to illegal entry or presence by refugees in the aftermath of the Second World War. Under the heading "Refugees unlawfully in the country of refuge" it provided (at para. 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 authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. …"
The Court of Appeal considered the evolution of this defence as applied in the United Kingdom in R v Mohamed Abdalla, R v V(M), R v Mohamed (Rahma Abukar), R v Nofallah [2011] 1 Cr App R 35; [2010] EWCA Crim 2400 (" R v MA"). The judgment of the court makes it clear:
"6. It was only in R. v Uxbridge Magistrates' Court Ex p. Adimi [2001] Q.B. 667 that the circumstances of prosecuting for documentary offences those who claimed asylum were first considered. Simon Brown L.J. considered the broad purpose of art.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 breaching 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 L.J. namely, in subs.(1) the requirement that anyone claiming protection must have applied for asylum as soon as is reasonably practicable, and in subs.(2) that a refugee who has stopped in another country outside the United Kingdom must show that he could not reasonably have been expected to have been given Convention protection in that other country.
The amended text of s. 31 of the Immigration and Asylum Act 1999, as relevant to the present cases, provides defences based on Article 31(1) of the Refugee Convention 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—…
(aa) section 4 or 6 of the Identity Documents Act 2010; …
(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. …
(10) The Secretary of State may by order amend—
(a) subsection (3), or
(b) subsection (4),
by adding offences to those for the time being listed there.
(11) Before making an order under subsection (10)(b), the Secretary of State must consult the Scottish Ministers."
How does this defence operate? In R v Makuwa [2006] 2 Cr App R 11; [2006] EWCA Crim 175, this court rehearsed the general proposition that when a defendant raises a defence under section 31, he must provide sufficient evidence in support of his claim for refugee status to raise the issue, but thereafter the prosecution bears the burden of proving — to the criminal standard — that the defendant was not a refugee [26]. The definition of refugee is to be found in Article 1 of the Refugee Convention, namely a person who has left his own country "owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".
However, if an application by the defendant for asylum has been refused by the Secretary of State, then in those circumstances pursuant to section 31(7)...
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