Neutral Citation Number: [2008] EWCA Crim 1761
No. 2007/05804/D3
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  11  July  2008

B e f o r e:

LORD  JUSTICE  RICHARDS

MR  JUSTICE  SILBER

and

SIR  CHRISTOPHER  HOLLAND
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R E G I N A

- v -

OSAMA  EL  HUDAREY
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Miss F Arshad appeared on behalf of the Appellant

Miss N Sharma appeared on behalf of the Crown
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J U D G M E N T

LORD JUSTICE RICHARDS: 
1.  On 22 March 2006, at Isleworth Crown Court, before Mr Recorder Lucas, the appellant pleaded guilty on re-arraignment to an offence contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004.  He was sentenced to a conditional discharge for 12 months.  His plea was entered on a written basis which is now said to have disclosed a defence to the charge such that he should not have been convicted on that plea.  An extension of time and leave to appeal have been granted by the single judge.  The appeal is not opposed by the Crown.

2.  The facts are these.  The appellant, a Libyan national, entered the United Kingdom on 19 October 2004 as an asylum seeker.  He obtained a false passport in his home country.  While on the flight here he destroyed that false passport, believing that it would be a more serious offence to arrive in this country with a false passport than with no documents at all.  When he arrived here he immediately claimed asylum and indicated that he had no identification documents on his person.

3.  He was arrested and interviewed the following day by immigration officers.  In interview he stated that he had boarded the plane with a false passport.  He had torn it up during the flight and flushed it down the toilet.  He said initially that he had previously owned a genuine passport but that the Libyan authorities took it from him.  Later he confirmed that his passport was at home.  He said that he had fled from his own country because his life was in extreme danger.  He said that when he arrived in the United Kingdom he held up a piece of paper with the word "REFUGEE" upon it.  He apologised for causing inconvenience.

4.  The appellant's basis of plea, which was set out in a written document, the content of which was accepted by the Crown and which was signed by prosecuting counsel as well as by defence counsel, was in these terms:

".... due to persecution in Libya [the appellant] felt unable to travel to the UK with his own genuine passport.  He left Libya on a false document to prevent his apprehension in Libya as he made to leave the country.

That false document was destroyed en route to the UK as the [appellant] wrongly believed that he would be committing an offence to arrive in the UK with a false passport."

5.  The relevant provisions of the 2004 Act have been considered in detail by this court presided over by the Lord Chief Justice in Soe Thet v Director of Public Prosecutions [2006] EWHC 2701 (Admin), and also by the Court of Appeal, Criminal Division, presided over by the President of the Queen's Bench Division in R v Mohammed [2007] EWCA Crim 2332.  We can therefore deal with the matter in summary form.

6.  Subsection (1) of section 2 provides: 

"A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which --

(a)	is in force, and

(b)	satisfactorily establishes his identity and nationality or citizenship."

It was held in Soe Thet that the reference here and in the other provisions to which we will refer is to a genuine immigration document.  Subsection (3) provides:

"But a person does not commit an offence under subsection (1) .... if --

(a)	the interview .... takes place after the person has entered the United Kingdom, and

(b)	within the period of three days beginning with the date of the interview the person provides .... 	a document of the kind referred to in that subsection [a genuine immigration document that relates to the immigrant and is in force]."

Subsection (4) provides, so far as relevant:

"It is a defence for a person charged with an offence under subsection (1) --

....

(c)	to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1) [a genuine immigration document]."

Subsection (6) provides:

"Where the charge .... relates to an interview which takes place after the defendant has entered the United Kingdom --

(a)	subsection (4)(c) shall not apply, but

(b)	it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document [a genuine immigration document] in accordance with subsection (3)."

As explained in Soe Thet, the purpose of subsection (6) is that where the interview take place after entry into this country the offence is not committed by not being in possession of the document when the interview takes place, but by failing to provide the document within three days of the interview.  Subsection (6) adapts the defence of subsection (4)(c) to that situation.  In each case, therefore, the substance of the matter is that it is a defence to prove that the offender had a reasonable excuse for not producing a genuine immigration document.  

7.  In Soe Thet the appellant, a Burmese national, entered the United Kingdom on a false passport supplied by a facilitator, which he handed back to the facilitator as instructed.  He did not produce a genuine passport either at his asylum interview or thereafter.  He had been unable to obtain a genuine passport in Burma as he was a former political prisoner.  On those facts he was found to have a reasonable excuse for not providing a genuine immigration document.  The defence in Soe Thet appears to have been under subsection (6).

8.  Miss Arshad on behalf of the appellant submits that the present case is on all fours with Soe Thet and that the defence of reasonable excuse is equally clearly made out on the basis of plea entered by the appellant.  Owing to persecution in Libya he felt unable to travel with his own genuine passport.  He left Libya on a false document to prevent his apprehension in Libya as he made to leave the country.  Those matters, it is said, were accepted by the prosecution.  It follows that the basis upon which the appellant entered his plea disclosed a defence to the charge and the plea should not have been accepted.  The conviction is therefore unsafe.

9.  In our judgment those submissions are in substance correct.  As it seems to us, this case falls within subsection (4)(c) since the interview with the appellant appears to have taken place before he passed through border control, rather than under subsection (6) which relates to a situation where an offender is interviewed after he has entered the United Kingdom.  In that respect this case differs factually from Soe Thet, but that does not affect the principle because, as we have indicated, the substance of the defence is the same under subsection (4)(c) as under subsection (6).  Just as the appellant in Soe Thet had a reasonable excuse, so in our view the appellant in this case had a reasonable excuse on the undisputed facts.  That was apparent from the basis of plea and meant that the plea should not have been accepted and the appellant should not have been convicted.  The correctness of that is accepted by the Crown, represented before us today by Miss Sharma.  It was previously accepted in writing by Miss Thompson who appeared for the Crown before the Recorder.  She stated in terms that she had erred in her understanding of the relevant section.  That error resulted in her agreeing the written basis of plea.  She was not in a position to demur from the opinion expressed by counsel for the appellant.  It follows, she said, that she had been unable properly to assist the Recorder in the manner expected of her as prosecution counsel.  That is an expression of regret very properly made.

10.  It follows from what we have said that this appeal succeeds and that the conviction is quashed.  Miss Sharma has informed the court that she is instructed to apply for an order for a retrial of the appellant on this count.  We are very surprised that any such instruction should have been given to her.  We note that this case took a very long time from when charges were brought to when the matter was resolved.  There were no less than thirteen hearings.  We note, too, that the matter was resolved by a conditional discharge, which makes it all the more surprising that the Crown should be seeking to pursue the appellant further at this stage.  Most importantly, however, it seems to us to be clearly contrary to the interests of justice to allow the Crown to go back on the express acceptance at the time of the plea of the matters that formed the basis of that plea.  That acceptance was recorded in a document signed by prosecuting counsel at the time.  The fact is that on the position accepted at that time the appellant was not guilty of the offence charged.  It would plainly be wrong to require him now to face trial simply because the implications of the position accepted at the time have become clear to the prosecution and the prosecution want to go back on what they did accept at the time.

11.  Accordingly, we refuse to order a retrial.  No more need be said about this appeal.

MISS ARSHAD:  My Lord, there is one application for the costs of those instructing me.  I make the application somewhat tentatively, but I make it for this reason.  The matter was referred to those instructing me by Mr El Hudarey's immigration solicitors because there was concern that he had been advised by his original solicitors that he had no appeal, even after the decision in Soe Thet had been handed down.  The new solicitors took on the matter, but of course legal aid even for appeal rested with the previous solicitors and it has not been transferred to those instructing me.  They have carried out the work so far on a pro bono basis, but I am instructed to make an application for their costs from central funds up to the court instructing me.  I, of course, am instructed under a representation order.

LORD JUSTICE RICHARDS:  Yes, and the representation order was limited to counsel only?

MISS ARSHAD:  Counsel only, as is usual in appeal matters.  But, of course, the normal course would be that the original legal representation order for the solicitors would cover them for some of the work up to counsel being instructed to advise on appeal.  That has not happened in the present case.

LORD JUSTICE RICHARDS:  You are saying that this would run from the time when they were instructed post-conviction --

MISS ARSHAD:  Yes.

LORD JUSTICE RICHARDS:  -- to the time when you were instructed under the representation order?

MISS ARSHAD:  I think that would be right, my Lord, because that would be the usual position in criminal matters.  That is my understanding.

LORD JUSTICE RICHARDS:  Is this a matter on which you can give the court any assistance, Miss Sharma?

MISS SHARMA:  My Lord, no.

LORD JUSTICE RICHARDS:  Thank you.

(The court conferred)

LORD JUSTICE RICHARDS:  No, Miss Arshad, we refuse your application.