Upper Tribunal (Immigration and asylum chamber), 2008-05-14, [2008] UKAIT 36 (JC (double jeopardy: Art 10 CL))
| Jurisdiction | UK Non-devolved |
| Judge | Mr G Warr, Dr T Okitikpi, Mrs J Gleeson |
| Status | Reported |
| Date | 14 May 2008 |
| Published date | 19 May 2008 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 21 January 2008 |
| Subject Matter | double jeopardy: Art 10 CL |
| Appeal Number | [2008] UKAIT 36 |
JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036
|
Asylum and Immigration Tribunal |
THE IMMIGRATION ACTS
|
Heard at Field House |
|
On 21-23 January 2008 |
Before
Senior Immigration Judge Warr
Senior Immigration Judge Gleeson
Dr T Okitikpi, non-legal member
Between
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr Alastair Mackenzie, Counsel,
instructed by A J Paterson, solicitors
For the Respondent: Ms Samantha Broadfoot, Counsel,
instructed by Treasury Solicitors
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There is a risk of prosecution or reprosecution under Articles 7 and 10 of the Chinese Criminal Law for overseas offenders returned to China. However, the use of those provisions is discretionary and extremely rare. Absent particular aggravating factors, the risk falls well below the level required to engage international protection under the Refugee Convention, the ECHR, or humanitarian protection. The risk of prosecution or reprosecution will be a question of fact in individual cases but is more likely where (a) there has been a substantial amount of adverse publicity within China about a case; (b) the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas; (c) the offence is unusually serious. Generally, snakehead cases do not have the significance they have in the West and are regarded as ordinary (but serious) crimes requiring no special treatment;(d) political factors may increase the likelihood of prosecution or reprosecution; and (e) the Chinese Government is also particularly concerned about corruption of Chinese officialdom.
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Prosecution under Article 7 or 10 is a fresh prosecution. The discretion to prosecute is exercised in the light of the opinion of the Chinese authorities as to whether the foreign jurisdiction dealt properly, and without undue leniency, with the offence. It can no longer be said that there is no information available on the use of that power: the Chinacourt database of cases and the NPC website guidance are maintained directly by the Chinese Government and provides guidance for judges and lawyers on the use of these powers.
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The burden of proof does not shift to the Secretary of State in double jeopardy cases. The Court of Appeal decision in Adam v Secretary of State for the Home Department [2003] EWCA Civ 265 is not authority for such a proposition, particularly where the decision to re-prosecute is discretionary.
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In the light of our findings above, the decisions in WC (no risk of double punishment) China [2004] UKIAT 00253 and SC (double jeopardy – WC considered) China CG [2006] UKAIT 00007 are no longer factually accurate and SC should no longer be treated as country guidance.
Contents
|
Description |
Page |
|
Introduction and conclusions on first stage reconsideration setting out the material error of law. |
3 |
|
The issues. |
8 |
|
The appellant's case, including consideration of the appellant's evidence and that of his sister |
9 |
|
Provisions of Articles 7 and 10 of the Chinese Criminal Law 1997 (overseas offences provisions) and sources of online case reports in China. |
16 |
|
Country expert reports from: A. Professor Jerome Cohen B. Professor Michael Palmer C. Dr Mei Lin Gechlik, D. Dr Michael Dillon (including oral evidence) E. Dr Jackie Sheehan (including oral evidence) and F. Professor Fu Hualing (including oral evidence) . |
17 21 26 29 36 41 |
|
Documents 1. The Foreign and Commonwealth Office letter of 15 August 2005 (‘double jeopardy’ letter) 2. The arrest warrant and the Foreign and Commonwealth Office response 3. 2007 Country of Origin Information Report on China |
49
49 51 |
|
Respondent’s submissions on the appellant's case and the background evidence (Miss Broadfoot) |
52 |
|
Appellant’s submissions on the appellant’s case and the background evidence (Mr Mackenzie) |
58 |
|
Overseas offences prosecutions (including reprosecutions) in China Removal of Chinese snakehead defendants (some convicted with the appellant and some for factually similar offences) |
64 67 |
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General conclusions on the background evidence and expert reports, as assessed, when set against the issues identified. 1. WC and SC 2. Double jeopardy: assessing the experts and their evidence 3. In what circumstances will reprosecution occur? 4. Prison conditions |
67
67 69 73 75 |
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Summary of findings. |
76 |
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Application of the general conclusions to the appellant's case and decision. |
79 |
|
s.72 certificate decision |
79 |
|
Credibility and findings of fact |
80 |
|
Paragraph 364 of the Immigration Rules (HC 395 (as amended)) |
81 |
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Double jeopardy and Article 10 re-prosecution |
81 |
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Conclusions on the continuing applicability of existing cases. |
82 |
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Funding decision |
82 |
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Appendix of documents considered. |
83 |
DETERMINATION AND REASONS
Introduction
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This is the reconsideration, with permission granted to the appellant, of the determination of the Tribunal notified on 30 August 2006 dismissing his appeal against notice of liability to deport to the People's Republic of China (PRC) and the Secretary of State's decision to refuse refugee recognition, humanitarian protection or leave to remain on human rights grounds. The Secretary of State seeks to deport the appellant, on the ground that deportation is conducive to the public good. The appellant is a Chinese national. Paragraph 364 of HC 395 (as amended) is the applicable provision:
“364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority....
380. A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention.”
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In this case, the sentence was 14 years, of which the appellant served seven before being released on licence. He was given an opportunity to demonstrate that he could rebut the presumption that he was a danger to the community of the United Kingdom, as set out in s.72(6). His rights of appeal against the sentence were exhausted by the time the deportation decision was made.
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The appellant’s solicitors, A J Paterson, responded, contending that the appellant was entitled to a substantive consideration of his asylum application before deportation could properly be contemplated. He remained deeply aggrieved about his conviction and he was still in prison. The letter quoted at length from the report of the appellant’s Probation Officer, Ms Ludgam, on 24 April 2005, which is still the most recent assessment of the risk of reoffending before the Tribunal today. The report indicated that the appellant had pursued his education during his sentence...
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