The Queen (on the Application) of Simon Ebunji Andukwa v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Mr Justice Stewart |
| Judgment Date | 28 November 2014 |
| Neutral Citation | [2014] EWHC 3988 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1523/2014 |
| Date | 28 November 2014 |
[2014] EWHC 3988 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Mr Justice Stewart
Case No: CO/1523/2014
Edward Fitzgerald QC and Michelle Knorr (instructed by Wilson Solicitors LLP) for the Applicant.
James Strachan QC and Mathew Gullick (instructed by the Treasury Solicitor) for the Respondent.
Hearing date: 11 November 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
1. On 26 October 2006 the applicant pleaded guilty to an offence of possession of a false identity card with intent and was sentenced on that day in the Crown Court to a term of six months' imprisonment. Some years later it was identified that he all along may have had a good defence under s.31 of the Immigration and Asylum Act 1999: a point not appreciated by anyone at the time. The Court of Appeal, on a reference by the Criminal Cases Review Commission (“CCRC”) agreed. It found, by judgment delivered on 30 July 2013, that “quite probably” such a defence, had only it been raised at the time, would have succeeded. It quashed the conviction. No retrial was sought or ordered.
2. The applicant, by application lodged on 9 August 2013, sought compensation. He relied, and relies, on s.133 of the Criminal Justice Act 1988 for that purpose. By a decision letter dated 25 October 2013 and then by further decision letter dated 6 January 2014 the Secretary of State for Justice refused his application. The applicant now challenges that refusal by judicial review proceedings.
3. The principal, although not only, issue raised in these judicial review proceedings is by reference to the application of s.133 of the 1988 Act to the circumstances of this case: in particular, and putting it in a short-hand way, whether the late appreciation that the applicant all along had a potentially complete defence to the charge is to be regarded as a “new or newly discovered fact” for the purposes of the section. If it is so to be regarded, there is then a question as to whether the decision of 6 January 2014 was flawed.
Background facts
4. The background facts can be relatively shortly stated.
5. The applicant is a national of Cameroon. On 29 September 2006 he was stopped at Manchester Airport attempting to board a flight to Canada. He was in possession of a passport in someone else's name. On arrest he claimed asylum. In interview he said that it had been necessary to leave Cameroon because of his fear of persecution on account of his political activities. He was a member of the SCNC, a political grouping that promoted the rights of the English speaking minority in Cameroon. With the assistance of agents, paid by his mother, he was helped to leave the country. The agents provided all the documents. He had travelled with an agent to Heathrow, flying via Nairobi airport (which he had not left). He arrived at Heathrow in the early hours of 28/29 September 2006. He was taken to a house in London where he stayed the night. He was then driven, with another agent, to Manchester Airport for a flight to Canada. He had been provided with a further passport in someone else's name. He was told that Canada was to be his final destination and that he was to apply for asylum there.
6. The version of events which he gave at the time accorded with what he was subsequently to say, in amplified form, in various witness statements.
7. Experienced and reputable solicitors acted for the applicant in the criminal proceedings; and counsel also appeared on his behalf in the Crown Court at plea and sentence. In his (undated) Proof of Evidence prepared in the course of the criminal proceedings the applicant had given a full account of all that happened. As to what happened in Cameroon he gave clear details of interrogation, torture and abuse because of his political affiliations. He described in detail how his mother arranged for his departure. He further described in detail the circumstances of his travel to Heathrow and then in due course to Manchester.
8. At no stage was the applicant advised that he might have any defence to the charge of possessing a false identity document with intent contrary to s.25(1) of the Identity Cards Act 2006. The solicitors' attendance note of the hearing in the Magistrates' court, where the intention to plead guilty was indicated and the matter committed to the Crown Court, makes no reference to any advice on any defence, whether under s.31 of the 1999 Act or at all.
9. In the Crown Court a Pre-Sentence Report dated 23 October 2006 was available. That report also included reference to the applicant's account of having been persecuted in Cameroon and his fleeing the country for that reason. His version of events as to his journey – which was said to concur with that contained in the prosecution case summary – was also set out. Presumably, although we have seen no transcript, those facts would have been summarised by the prosecution to the judge in the Crown Court at the sentencing hearing on 26 October 2006 and also deployed, as appropriate, by counsel in mitigation. There was no appeal thereafter.
10. Neither counsel nor solicitors, when subsequently approached by the CCRC, had any direct recollection of events. The solicitors provided their file, which contained no reference to s.31 of the 1999 Act. In a subsequent letter to the CCRC from the solicitors, however, it was suggested that such a defence would not have been available in the circumstances of the case as recounted by the applicant.
11. In due course, the applicant's claim for asylum was rejected by the Home Office on 8 June 2007. There was an appeal. By determination promulgated on 7 December 2007 the appeal was allowed by the Asylum and Immigration Tribunal. The judge accepted the applicant's evidence as persuasive and credible. It was accepted that he had been a political activist in Cameroon, that he had experienced “persecutory ill-treatment” whilst detained and interrogated there, and that there was a real and well-founded risk of further persecution if he were returned to Cameroon. The appeal was allowed both on asylum and on human rights grounds. Subsequently he has been granted indefinite leave to remain.
12. The applicant is a man of some education: he was a biology teacher in Cameroon. He had, and has had since, no previous convictions of any kind. He is currently in work. The fact of this criminal conviction has not only been very upsetting to him but also has been irksome and has had consequences: for example, preventing him from travelling to the United States of America to visit relatives.
13. At all events, the matter eventually was referred to the CCRC. On 5 April 2013 it in turn referred the matter to the Court of Appeal. It did so on the footing that no defence under s.31 of the 1999 Act had been raised at the time when it could and should have been; and that there was a real possibility that the Court of Appeal would take the view that a s.31 defence would probably have succeeded.
14. The Court of Appeal in the event did take that view. It (Leveson LJ, Fulford LJ and Spencer J) heard the case with other linked cases. The judgment is reported: see R v Mateta [2014] 1 WLR 1516, [2013] EWCA Crim 1372. In each case the appeal was allowed. There is a very helpful exposition of the relevant principles relating to the application of s.31 of the 1999 Act. The court also confirmed the obligation on those representing defendants charged with possession of false identity documents to advise on the possibility of a s.31 defence. It dealt with the specific position of the applicant at paragraphs 34–39 of the judgment. It was held in the case of the applicant that “although…there were a number of complex factual issues” the court was, in the light of the Crown's approach and the circumstances, prepared to accept that such a defence “would quite probably have succeeded” and that “a clear injustice has been done”. The appeal was allowed. No retrial was sought.
The claim for compensation and the judicial review proceedings
15. The applicant personally made his claim for compensation for wrongful conviction on 9 August 2013.
16. That application was rejected by the Secretary of State for Justice by decision letter dated 25 October 2013. It was stated that the applicant failed to meet the statutory test for compensation under s.133 of the Criminal Justice Act 1988. It was said that the conviction had not been reversed on the ground of any new or newly discovered fact: rather it had been reversed on the ground that a s.31 defence had been available but he had not been advised of that.
17. Solicitors then were instructed. Reference was now made to the Supreme Court decision in Adams (which I discuss below). In the light of the correspondence, a further decision letter was issued by the Secretary of State for Justice, dated 6 January 2014. This was said in the second paragraph:
“It appears that your client's conviction was overturned on the basis of the existence of a defence arising out of your client's immigration status. Having reconsidered your client's application we now accept that this may be capable of constituting a ‘new fact’ for the purpose of section 133 on which the conviction was reversed.”
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