Nazarian, Njdik

Njdik Nazarian was convicted in April 1996 of possession of a false instrument with intent to use it as genuine and attempting to obtain services by deception. Mr Nazarian received a sentence of two months’ imprisonment.

The CCRC received an application for review of the conviction in October 2002.

Mr Nazarian had been arrested at Heathrow Airport attempting to board a flight to Canada with a false passport.

The application to the CCRC was based on the proposition that the convictions should not be upheld by virtue of the application of both treaty obligation (Article 31 of the Refugee Convention 1951) and section 31 of the Immigration and Asylum Act 1999.

Mr Nazarian was prosecuted and convicted prior to the commencement of section 31 of the 1999 Act. He was also prosecuted and convicted before the High Court had determined that, as a matter of common law, individuals claiming to be refugees had a legitimate expectation of receiving the protection which, under Article 31, the State was bound to afford them, and that a prosecution which took no account of Article 31 was an abuse of process.

In deciding that there was a real possibility that the Crown Court would not uphold Mr Nazarian’s convictions, the CCRC reasoned:

· The offences were committed by Mr Nazarian in circumstances relating to his quest for asylum.

· As a matter of common law, the prosecution denied him his legitimate expectation that the State would afford him the protection provided by Article 31 of the Convention, namely that, as a refugee, he would not be penalised on account of his illegal entry into, or presence in, the United Kingdom.

· The prosecution was accordingly an abuse of process.

·Although section 31 of the 1999 Act allows retrospective application of the statutory defence in an appeal following a reference by the CCRC, Mr Nazarian did not come within the ambit of the statutory defence because he did not present himself to the authorities without delay and attempting to obtain services by deception was not one of the offences specified for the purposes of section 31.

Section 31 could not however be interpreted so as retrospectively to override the rights which Mr Nazarian enjoyed at common law.

It was clear from the events that occurred from Mr Nazarian’s arrest to his sentencing that his lawyers, the prosecution (including the police), and the court were aware that he was an asylum seeker.

However, neither the defence nor the prosecution adverted to Article 31.

The CCRC referred the conviction in June 2005 on the grounds that the prosecution was an abuse of process having regard to the breach of Mr Nazarian’s legitimate expectations, which arose at common law, that he would enjoy the protection of Article 31 throughout his quest to claim asylum in Canada.

The Crown Court quashed the conviction in October 2005.