An article by the CCRC.

 

The Criminal Cases Review Commission has over the last few years referred for appeal a significant number of cases where people fleeing persecution in various trouble spots around the world have been convicted for arriving in the UK without proper travel documents.

We have sent more than 40 such cases for appeal on the basis that British law deliberately provides specific protection from prosecution for people in such unenviable circumstances.

In almost all of the cases we have referred, a central issue has been that the subjects were wrongly advised by publicly-funded lawyers to plead guilty to offences for which they had a legitimate defence. The convictions have been quashed in all but three of the referred cases heard so far; in almost all, the appeals were unopposed by the prosecution. (More detail about the cases and issues can be found here).

The cases of YY (who was granted anonymity by the Court of Appeal) and Ayad Mohammed Nori are two of only three such Commission cases where the appeal has been dismissed. The Court’s judgment in R v YY and Nori [2016] EWCA Crim18 not only sets out the reasons why their convictions were not quashed, but it also makes clear that the issues raised by such cases are now properly understood and the method of identifying bona fide examples is properly appreciated.  This is thanks largely to the Commission’s numerous referrals, and a number of similar cases reaching the courts directly through the work of a handful of solicitors firms.

As a result the Court’s own Criminal Appeal Office can now deal with cases where the individuals concerned still have their appeal rights intact. This then leaves the Commission free to focus on those cases where only it can help because conventional appeal rights have been exhausted; where appeal rights remain but where there are exceptional circumstances that mean the Commission should review the case anyway, or, in the case of convictions following an unequivocal guilty plea in the magistrates’ court, where appeal rights do not exist at all.

The change is something that the Commission has anticipated for some time. It is to be welcomed as it shows that the understanding of the issues raised by these cases, and the status of those that succeed at appeal as concerning wrongful convictions, is now well established.

Unfortunately, a similar appreciation has not been much in evidence in some media coverage of these matters.  In January an article in The Sunday Telegraph about the work of the CCRC in asylum and immigration case entitled “Row over legal help for asylum seekers…” left much to be desired.  Not only was it completely inaccurate it managed to miss the real issue entirely.

The article claimed that by helping more than 30 asylum seekers to overturn their convictions the Commission allowed many of them to receive refugee status and stop in the UK.  This is nonsense.  Of those 30 cases all but two had already been granted leave to remain before we referred their cases, many within weeks of their Home Office interviews, an indication that the authorities found them entirely credible.

Parliament has passed laws to prevent people entering this country illegally using, for example, forged documents. But Parliament has also decided that where someone is a genuine refugee, genuinely fleeing persecution, they should have a statutory defence from prosecution simply for not having the right paperwork.  This is precisely what these cases are all about. So far from the overturning of their convictions supporting their asylum claims, the very fact that they had already been recognised by the British government as genuine refugees was one of the strong arguments in favour of their convictions being quashed.  The Sunday Telegraph got it entirely the wrong way round.

The Sunday Telegraph article claimed that asylum seeker cases “now make up a large part of its (i.e. the Commission’s) workload”.  Again this is nonsense.  As of December 2015 the Commission had 816 cases under review of which 21 were asylum cases; less than 3%. Hardly “a large part of our workload” even allowing for journalistic hyperbole.

The Sunday Telegraph article implies criticism of ourselves in areas in which we have had no involvement whatsoever.  It refers to the Sudanese man who “was granted refugee status in Britain, despite facing criminal charges for walking through the channel…. although prosecutors last week said they were considering dropping charges”.  At the time the article was written the man had not been charged with, let alone convicted of anything, so not surprisingly he had not had any dealings with this Commission which deals only with cases post conviction.  Perhaps we are expected to believe that fleeing to this country and risking being crushed to death by an express train, Abdul Rahman Haroun was thinking that, were he to survive, and were he to be convicted of obstructing a railway after his 31 mile trek, all would be well because he could apply to the CCRC to have his case reviewed and that this would undermine deterrence and “lead to thousands more arrivals”, presumably also through the channel tunnel.  In the immortal words of John McEnroe, “You cannot be serious”!

The Sunday Telegraph stated that  the Commission “has waived its normal rules which insist that people seeking its help must first attempt to appeal through the courts” implying that we had wrongly given a particular group – refuges – special treatment.  And the facts?  Around one third of these cases were magistrates’ court convictions.    In such cases, and where the applicant has pleaded guilty, there is no avenue of appeal other than through this Commission.  So in these cases we were not “waiving the normal rules” we were offering these people what was literally the only avenue of appeal open to them.  With Crown court convictions, it is true that there is a normal avenue of appeal and it is true that we would normally expect applicants to have exhausted this avenue first.  However, the Commission is required by law to consider, in all applications to it, whether exceptional circumstances apply.  And after reviewing the first few asylum applications we decided that exceptional circumstances did apply to this class of cases.  Our reasons were:

a)  asylum seekers are an especially vulnerable group of applicants;

b)  there was growing evidence of systemic failures in the way applicants were being wrongly advised by incompetent lawyers and these systemic failures required a systemic response; and

c)  the potential damage to the criminal justice system in terms of loss            of confidence and the waste of public money was considerable.

We think these were good and proper reasons for acting as we did and we stand by them.

By way of illustration, cases the Commission has referred include Syrian refugees fleeing in fear of their lives, journalists facing persecution for exposing corruption, victims of rape and torture and individuals facing persecution  for their religious beliefs or sexuality (such as being Christian or being gay).  Should this Commission not be interesting itself in such cases?

The Sunday Telegraph cites the case of Ghavami and Afshar (Iranian refugees) and says we and the courts have interpreted the law “generously”.  As every first year law student knows interpretation of the law is for the courts.  All this Commission can and should do is apply the law as interpreted by the courts to the cases before it.  Moreover in this particular case the Crown (i.e. the prosecution) itself accepted that the appellants had not been advised as they should have been.

The court said: “….it is both surprising and disturbing that neither solicitors nor counsel appear to have been aware of the law and we repeat that this situation should not recur in the future….”

There is quite a difference between interpreting the law “generously” and pointing out that the lawyers involved appear not to have known what the law was.

Given its desire to quote cases it is a pity that The Sunday Telegraph did not mention the case of Shabani, a recent Commission referral, where the Lord Chief Justice himself said:

“As a result of the incompetent advice given by the duty solicitor, and more seriously by the solicitor who represented the appellant when he was before the Crown Court, the appellant spent time unnecessarily in prison. It has led to the cost of his detention in prison, the investigation by the Criminal Cases Review Commission, and the appearance of two counsel before us today. It is unacceptable that such advice was given which plainly did not pass a standard of competence.  It seems to us that people in the position of this appellant, and the system as a whole, are entitled to expect that those who advise in circumstances such as this should be familiar with the law.  There can be little excuse for a failure to understand the law and advise poorly.  We therefore consider that this is a case where we should refer both the duty solicitor and the solicitor who represented the appellant at the hearing to the Solicitors Regulatory Authority for them to consider whether any proper sanction is to be taken against them. The criminal justice system cannot afford the kind of incompetence that was displayed in this case; nor can we as a nation afford to have lawyers who act so incompetently that someone wrongly spends a considerable amount of time in prison.” 

Wouldn’t it have made more sense for the Sunday Telegraph to have written about this worrying systemic failure?  A widespread lack of awareness of the law by lawyers who should have known better, who gave bad advice and who were paid for their incompetence out of public funds; of people not being appropriately advised of defences available to them and as a result being incorrectly advised to plead guilty.

These are serious failures by lawyers and the legal system and we make no apologies for making a fuss about them.  Identifying and rectifying miscarriages is, after all, our job.

What these cases are really about is the rule of law.  The law is – or should be – the same for everyone.  Asylum seekers who have been granted asylum are not entitled to special treatment by virtue of their refugee status.  But they are entitled to fair treatment and this includes being properly advised by those paid to advise them out of public funds and being able to seek redress when things go wrong.  There are countries where people get different treatment at law depending on class, race, religious belief, wealth, immigration status or whatever.  Happily, Britain is not one of them.

Finally, The Sunday Telegraph mentions that the CCRC’s Chairman also chairs the Refugee Council of Great Britain which, as its name implies campaigns on behalf of refugees.  The implication is clear.  As a matter of record the CCRC’s Chairman has played no part in any decision making in asylum cases either in regard to decision making in individual cases or in decisions about how to handle these cases as a class.  He recused himself from involvement precisely to avoid any risk of conflict of interest given his other role as Chairman of the Refugee Council.