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Miscarriage of Justice: Wrongly Convicted Asylum Seekers and Trafficked Persons

Recently the Law Society Gazette ran an article by Yewa Holiday, a barrister and a case review manager at the Criminal Cases Review Commission (CCRC), which highlighted the plight of asylum seekers and refugees wrongly convicted after being advised to plead guilty to offences relating to their entry to the UK, as well as attempted exit from the UK.

Representatives in deportation cases will be familiar with the effect of conviction on these vulnerable individuals. Where a sentence is over 12 months then they would be subject to automatic deportation.  However, it is clear that in certain cases the conviction and deportation could have been avoided had lawyers representing them in their criminal trials, recognised and/or advised them on valid defences available to them.

The CCRC is seeking to review these possible miscarriages of justice and have had the convictions of four cases referred to them quashed in the last twelve months.  As the word spreads about the CCRC’s work, there have been several referrals.  They set out the common features of the cases they are dealing with, as follows:

  • entered the UK as asylum seekers/refugees;
  • were prosecuted for offences such as not having a passport;
  • were advised to plead guilty;
  • were not advised of potential defences; and
  • were sentenced to terms of imprisonment.

One of the cases they dealt with concerned a Somali refugee who arrived in the UK without a passport and was then convicted for failing to produce a passport contrary to section 2 of the Immigration and Asylum (Treatment of Claimants) Act 2004 (the 2004 Act). But there was no recognition of the fact that there has not been a passport issuing authority in Somalia since 1991, a fact which would have entitled him to rely on the defence of ‘reasonable excuse’ in the 2004 Act.

Another case involved two Cameroonians arrested trying to board a flight to Canada from Heathrow Airport. They pleaded guilty to the possession of false passports and attempting to obtain air services by deception and were sentenced to eight months’ imprisonment. They were recognised as refugees in 2007.  Under section 31 of the Immigration and Asylum Act 1999 (the 1999 Act), they would have had a defence based on article 31 of the Refugee Convention to a limited range of offences, including the possession of false passports.  Section 31 of the 1999 Act was enacted in response to the case of R v Uxbridge Magistrates Court and another ex parte Adimi [1999] EWHC Admin 765, which  held that the prosecution of asylum seekers for offences arising from the use of false documents or deception was unlawful where the prosecution had occurred without regard to the protection from the imposition of penalties contained in article 31 of the Refugee Convention.

On the other hand, the second offence they were charged with, attempting to obtain air services by deception, is not an offence found listed in section 31 of the 1999 Act. The Commission therefore argued in the alternative that the addition of this charge was an abuse of process, relying on the House of Lords decision in R v Asfaw [2008] UKHL 31.  The Law Society Gazette article provides greater detail in relation these defences.

The CCRC are also considering cases of those who were victims of human trafficking and have been convicted of an offence.  The features in cases involving these vulnerable individuals are that they are often compelled by their circumstances to commit an offence and/or forced to commit an offence. In both situations a defence is available to them, one of “duress” or “nexus of compulsion”. If the individual was not made aware of this defence, simply being advised instead to plead guilty, the CCRC are willing to review cases even if an individual has been removed, deported or left the UK voluntarily. Applications can be made from the country of residence.

In a case recently dealt with by the CCRC a seventeen year old who had been trafficked into the UK for prostitution pleaded guilty after she managed to escape her traffickers but was then arrested trying to leave the UK with a stolen British passport.  The CCRC, having considered her circumstances, referred the case up to the Crown Court, as there had been a failure to consider the fact that she acted under “nexus of compulsion” which is distinct from the defence of “duress”.  As a result her guilty plea was set aside by the Crown Court.

The introduction of automatic deportation meant that there was an increase seen in deportation orders on the basis of convictions of offences, as described above, where sentences were of twelve months or more.  Representatives should therefore be alert to the possibility of their clients being able to apply to the CCRC in relation to these convictions. If quashed this potentially renders the deportation order invalid.

Having spoken to Justin Hawkins from the CCRC, he confirmed that they were working with a number of agencies and organisations trying to ensure that those wrongly convicted were aware of their remedy to the CCRC, who would independently review their cases.  Mr. Hawkins confirmed that the CCRC were encouraging applications from vulnerable individuals in the groups identified above who think that they may be victims of these kinds of miscarriage of justice.  The procedure for applying is simple and the application forms can be found here or alternatively the CCRC can be contacted directly for further information.

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