R v Asfaw [2008] UKHL 31, [2008] All ER (D) 274 (May)
House of Lords
Lord Bingham, Lord Hope, Lord Rodger, Lord Carswell and Lord Mance
21 May 2008
Offences committed by refugees which are protected by Art 31 of the 1951 United Nations Convention relating to the Status of Refugees (the Refugee Convention) but which are not reflected in s 31 of the Immigration and Asylum Act 1999 (IAA 1999) cannot be read into that section, although their prosecution may constitute an abuse of process, if the defendant has already been acquitted under s 31 of another offence arising out of the same facts.
Edward Fitzgerald QC, Raza Husain and Richard Thomas (instructed by Moss & Co) for the defendant.
Clare Montgomery QC and Julian Knowles (instructed by the Crown Prosecution Service) for the prosecution.
The defendant was an Ethiopian national. She attempted to travel from that country to the to claim asylum. She arrived at Heathrow airport in the in February 2005 and passed through immigration control. She then checked in for a flight to using a fake passport, and was arrested before boarding the aircraft. She indicated that she wished to claim asylum and, in April 2007, was formally recognised by the home secretary as a refugee.
She was charged with two counts: (i) using a false instrument with intent, contrary to s 3 of the Forgery and Counterfeiting Act 1981, concerning the Italian passport; and (ii) attempting to obtain services (the air transport services from the airline) by falsely representing that she was authorised to use the passport, contrary to s 1(1) of the Criminal Attempts Act 1981 (CAA 1981). She was acquitted by the jury in relation to count one, having raised the statutory defence which afforded protection to refugees charged with that offence, pursuant to IAA 1999, s 31. The provision did not extend to the offence charged by count two, since CAA 1981, s 1(1) was not one of the offences covered by IAA 1999, s 31(3).
The defendant unsuccessfully sought a ruling from the judge that she could rely upon Art 31 of the Refugee Convention (upon which the statutory defence was based) by way of a defence to count two, and consequently she pleaded guilty to attempting to obtain services by deception. She was sentenced to nine months’ imprisonment, and appealed against both conviction and sentence. The Court of Appeal dismissed the appeal against conviction, but ruled that she be absolutely discharged. The defendant appealed to the House of Lords.
LORD BINGHAM:
The offence in count two, although within Art 31, was not listed expressly in s 31(3). The defendant sought to address that disparity by submitting that the Convention had been incorporated into domestic law. It was however plain that the Convention as a whole had never been formally incorporated or given effect in domestic law. There could on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation. The defendant sought to assert that she had a legitimate expectation that the would honour its obligation under Art 31 of the Convention. But she could not, at the relevant time, have had any legitimate expectation of being treated otherwise than in accordance with IAA 1999. Nor could the criminal defence of necessity be stretched to cover the instant case.
The defendant also submitted that it was an abuse of the criminal process to prosecute her to conviction under count two. It was not an abuse to prefer charges under both counts, since the prosecution was entitled to question whether the appellant was a refugee, and if she was not neither the article nor the section could avail her. It was true that the two counts related to identical conduct and the second count served no obvious purpose, but the court could ensure, on conviction, that no disproportionate penalty was inflicted. If, however, the second count was included in the indictment in order to prevent the defendant from relying on the defence which s 31 would otherwise provide, there would be strong grounds for contending that that was an abuse of process. It was not at all clear what legitimate purpose was sought to be served by including the second count, and it had to be questioned whether there was any legitimate purpose.
Risk of injustice
There was a clear risk of injustice in the instant case if the jury were to acquit on count one but convict on count two.
If the jury had acquitted the defendant on count one, the stay on prosecuting count two should have been maintained. If the jury convicted the defendant on count one, rejecting her s 31 defence, there would have been no objection in principle to further prosecution of count two.
But the defendant would be likely in that situation to have pleaded guilty (as she did in response to the judge’s ruling), and the question would arise whether further prosecution of count two could be justified: given that the judge had power to sentence the appellant to imprisonment for 10 years on count one, it could scarcely be suggested that his powers of punishment were inadequate to reflect the appellant’s culpability.
The Court of Appeal expressed its concern by allowing the appeal against sentence and ordering that the defendant be absolutely discharged. But it was an abuse of process in the circumstances to prosecute her to conviction. Count two being factually indistinguishable from count one, she should not have been convicted at all. The appeal would therefore be allowed and the conviction quashed.
Lord Hope and Lord Carswell delivered concurring opinions and Lord Rodger and Lord Mance dissented.
