Case No: 201600986 C5

Neutral Citation Number: [2017] EWCA Crim 4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
MR RECORDER BARTLE QC
T20077337
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/01/2017
Before:

LORD JUSTICE TREACY
MR JUSTICE LEWIS
and
MR JUSTIC EDIS

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Between :

	MEHMET ORDU	Appellant	
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	THE CROWN	Respondent	

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Andrew Johnson (assigned by the Registrar) for the Applicant
Ben Doulas-Jones (instructed by the CPS) for the Respondent

Hearing date: 18/01/17

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Judgment
MR JUSTICE EDIS:
1.	On the 23rd October 2007 the applicant pleaded guilty to an offence of possessing identity documents with intent contrary to s.25(1), (2) and (6) of the Identity Cards Act 2006.  He was sentenced on the same day to 9 months’ imprisonment.  He now applies for an extension of time of 8 years and 3 months in which to apply for leave to appeal against conviction.  The application has been referred to the full court by the Registrar.
The legal context of the prosecution
2.	s. 25 of the ICA 2006 has long since been repealed and replaced by a similar offence created by the Identity Documents Act 2010.  As then in force the relevant parts of s.25 of the 2006 Act read as follows:-
25 Possession of false identity documents etc.
(1) It is an offence for a person with the requisite intention to have in his possession or under his control–
(a) an identity document that is false and that he knows or believes to be false;
(b) an identity document that was improperly obtained and that he knows or believes to have been improperly obtained; or
(c) an identity document that relates to someone else.
(2) The requisite intention for the purposes of subsection (1) is–
(a) the intention of using the document for establishing registrable facts about himself; or
(b) the intention of allowing or inducing another to use it for establishing, ascertaining or verifying registrable facts about himself or about any other person (with the exception, in the case of a document within paragraph (c) of that subsection, of the individual to whom it relates).
3.	A defence was created by s.31 of the Immigration and Asylum Act 1999 which was in the following terms (so far as relevant) at the material time
31.— Defences based on Article 31(1) of the Refugee Convention.
(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—
(a) presented himself to the authorities in the United Kingdom without delay;
(b) showed good cause for his illegal entry or presence; and
(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.
(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.
		………
(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.
(8) A person who—
(a) was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but
(b) at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),
may apply to the Criminal Cases Review Commission with a view to his case being referred to the Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.
4.	The IAA 1999 came into force in November 1999 following a decision of the Divisional Court in R v. Uxbridge Magistrates Court ex p. Adimi [2001] QB 667, which had been decided on 29th July 1999.  s.31was an attempt to comply with the treaty obligations of the United Kingdom under Article 31(1) of the Refugee Convention and was introduced by amendment to the Bill which became the Act because of the decision in Adimi.  Until that date UK law criminal law did not comply with the treaty obligations of the UK, and the introduction of s.31 was an attempt by Parliament to rectify the position.  It was not, at least initially, successful because the plain words of s.31(2) appeared to remove the defence from those who had stopped over in a safe country while travelling, while Article 31 affords such people protection.  That being so, s.31 as so construed failed to comply fully with the treaty obligation.
5.	It was commonly the case that refugees would pass through countries on their way to the place where they intended to claim asylum and the Act appeared to say that any such stop would negate the defence where it took place in a country which could reasonably have been expected to give the refugee protection under the Refugee Convention.  This would expose many genuine refugees to criminal liability where they had simply passed through other countries in transit before passing through, or ending up in the United Kingdom.
6.	This problem was addressed in a number of cases in the UK.
i)	In R (Pepushi) v. Crown Prosecution Service [2004] EWHC 798 (Admin) the Divisional Court dismissed an application to quash a decision to prosecute a person who claimed to be a refugee and who had stopped over in safe countries before arriving in the UK on the way to Canada where he wished to claim asylum.  It held that on its true construction he was deprived of the s.31 defence by the stopovers and that judicial review of the decision to prosecute was not the appropriate remedy for any failure by the UK to comply with its treaty obligations.  It was held that the point should be taken in the trial court, presumably by seeking a stay on the ground of abuse of process.
ii)	In R v. Afsaw [2006] EWCA Crim 707 decided on 21st March 2006 the Court of Appeal considered a case where a defendant had been acquitted by the jury of an offence contrary to s.3 of the Forgery and Counterfeiting Act 1981 because she successfully advanced the s.31 defence.  It was accepted by the Crown that the defence was available to her in circumstances where she had been in the UK for a short time changing flights and was detained as she was trying to board her flight out to the country where she wished to claim asylum.  She had entered the UK because she did not stay on airside while in the airport, but only minimally.  She had however pleaded guilty to a second count of attempting to obtain services by deception.  The trial judge ruled that the s.31 defence was not available to that count and she then pleaded guilty.  On appeal she contended that it was an abuse of process to include that offence on the indictment in order to deprive her of her s.31 defence, in breach of Article 31 of the Refugee Convention.  The Court of Appeal did not rule on that issue but dismissed the appeal and allowed an appeal against sentence, substituting an absolute discharge for the prison sentence imposed below. 
iii)	The House of Lords in R v. Asfaw [2008] UKHL 31; [2008] 1 AC 1061 handed down its decision on appeal from the Court of Appeal on 21st May 2008.  The Crown had changed its case and now contended that the s.31 defence was not available in respect of either of the offences on the indictment because it did not extend to persons trying to leave the country as opposed to try to enter it or remain here.  The House decided that s.31 of the IAA 1999 should be read so that it provided immunity, if the other conditions are fulfilled, from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution even after a short stopover in transit.  This changed the law as it had previously been understood and explained in Pepushi.  
7.	The history of the development of the law in this area since 2008 is extensively analysed by the CACD in R. v Kamalanathan [2010] EWCA Crim 1335, R v. AM and other cases [2010] EWCA Crim 2400; [2011] 1 Cr. App. R. 35, and R v. Mateta and other cases [2013] EWCA Crim 1372; [2013] 2 Cr App R 35.  It is quite unnecessary for us to repeat that account of the development and current state of the law.   We will return to the significance of these decisions later in this judgment. 
8.	The Asfaw decision post-dated the conviction in the present case, but was decided while the applicant was subject to the 9 month sentence imposed the previous October.  He had probably been released from it by that date.  It was decided a few weeks before his successful appeal to the Asylum and Immigration Tribunal which was heard on 25th July 2008.  His application for asylum was granted as a result of that appeal.  The applicant was represented in the course of those proceedings but it appears that he did not discover at that time that the law had been changed in a way which could be practically important to him, if, for example, he had breached the terms of his licence or if on any future application for UK nationality the conviction were to count against him.  Neither of these things happened.  In the end his applications for Indefinite Leave to Remain and UK nationality were granted by the Secretary of State in 2015 and it was in the course of those applications, it appears, that the applicant first discovered that he may have been wrongly convicted as the law came to be understood after his case was dealt with.
This application
9.	This application was issued by the applicant then acting in person and was stamped in the Court of Appeal Office on 29th February 2016.  It relies on the decision in Mateta, which was decided on 13th July 2013.  It applies for an extension of time, and when asked to explain the passage of 8 years and 3 months between conviction and the application the applicant wrote to the Court of Appeal and said
“I can confirm that the reason why I have appealed out of time against the conviction was because I was not aware that I could have challenged the conviction and that the conviction was unsafe.  I just followed advise from my then solicitors and pleaded guilty as advised.  I did not know that I could have raised a defence as I genuinely was fleeing from persecution and had no choice but to come to the United Kingdom in the manner in which I did.”
10.	In his original grounds the applicant asserted that he had not been properly represented at trial because he had passed through Germany without even realising that he had done so.  He was under the control of an agent and boarded the flight from Germany to the UK because he was told to do so.  He asserted that his travel was all in the course of making his journey away from persecution.
11.	In amended grounds settled on behalf of the applicant, Mr. Johnson criticises the advice given by counsel who represented the applicant in 2007, but does so by reference to the decisions post-dating the decision of the House of Lords in Asfaw to which we have referred above.  In argument before us no attack was made on that advice as having been wrong in the light of the law as it was then generally understood.  On analysis, therefore, this application is advanced as a “change of law” case where the law as stated in Pepushi was correctly applied by counsel but subsequently stated differently by the House of Lords in Asfaw.  Counsel who then appeared gave no advice about the availability of a s.31 defence because he decided that the time spent in Germany precluded that defence by reason of s.31(2) and there was no prospect of persuading a court that the applicant had reasonable grounds for believing that he would not be protected in Germany if he had applied for asylum there.  This is what counsel has explained to this court in his helpful response to the waiver of privilege and his recollection is confirmed by his brief, which survives and by a letter from his instructing solicitors to the applicant after sentence.  s.31 was never mentioned to the applicant.  
12.	No issue about the factual basis of the s.31 defence now arises.  The applicant arrived in the UK on 12th October 2007 on a flight from Germany.  He had attempted to use a false passport to enter the country, but was detained because the immigration officer suspected that the passport was not genuine.  After that had happened, he disclosed his true name and date of birth and made a claim for asylum.  His case was heard in the Crown Court very soon after that, on 23rd October 2007, and before his asylum claim was determined.  The Asylum and Immigration Tribunal allowed the applicant’s appeal against the Secretary of State’s refusal of the asylum claim on 25th July 2008 and found that he would suffer from acts of persecution or serious harm from actors of persecution if returned to Turkey and was therefore a refugee.  The facts on which this decision was based were, of course, all known to the applicant at the time of his Crown Court appearance and available to be deployed in his defence.  He would probably have been able to establish that he was a refugee, especially if the trial had taken place after his appeal was allowed when the burden of proving that he was not a refugee would have fallen on the Crown, see s.31(7) IAA 1999.  However, he had arrived from Germany and Germany is and was a signatory to all relevant conventions and was therefore a place where the appellant could reasonably have been expected to give protection under the refugee convention. 
13.	Counsel’s instructions in his brief were clear on the purpose of the travel to Germany.  The applicant was fleeing from persecution and travelled to Germany by train as advised by an agent to whom he had paid a substantial sum of money.  He travelled with a man who supplied the false passport.  In Germany he was assisted by friends and bought an airline ticket to travel to the UK.  The instructions said that his intention was to join his brother and other relatives in this country.  
14.	The solicitors’ letter after conviction and sentence says that the applicant had confirmed to counsel on the day of the hearing through an interpreter that he had presented the false passport on arrival in the UK.  Counsel then advised that he had no defence to the charge and would have to plead guilty. 
The Crown’s response
15.	Mr. Douglas-Jones on behalf of the Crown has taken a moderate and helpful approach to this appeal.  He accepts that the s.31 defence was available to the applicant, and that this was apparent after the decision of the House of Lords in Asfaw.  He raises the issue of the test for the grant of an extension of time in “change of law” cases, as recently expounded by this court in R v. Johnson and others [2016] EWCA Crim 1613, and invites us to consider whether that test is satisfied in this case.  If so, and the extension of time is granted, he says that the Respondent would
i)	Concede that with the benefit of the further interpretation of s.31(2) in Kamalanathan, AM, and Mateta the applicant should have been afforded advice giving him the opportunity of deploying a s.31 defence;
ii)	Concede that the s.31 defence might well have succeeded;
iii)	Consider its position as to the merits of the substantive appeal, in the light of the basis of the leave decision, acknowledging that the safety of a conviction is always a matter for the CACD.
16.	This stance is referred to by Mr. Douglas-Jones as a “conditional concession concerning safety” in a subsequent document.  We take it as a strong indication that if the extension of time is granted, the appeal will not be opposed.
The Issue 
17.	The issue for us, therefore, is whether to grant the extension of time sought.  If we do, it will be for us to consider whether the conviction is safe, but in the light of the approach taken by the Crown and the decision of the Asylum and Immigration Tribunal it is likely that if leave is given, the appeal will succeed, because the s.31 defence (if advanced) would probably have succeeded.  We approach the question of leave on that basis.
The proper approach to extensions of time in change of law cases
18.	The test for the extension of time was explained by the Lord Chief Justice in Johnson and others at paragraphs [10]-[23].  This explanation followed a passage in the Supreme Court judgment in Jogee [2016] UKSC 8 and is a definitive statement of the law which we must apply.  The Supreme Court cited with approval the long line of authority from this court including Mitchell (1977) 65 Cr App R 185, 189 in which Geoffrey Lane LJ said this
“It should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction. 
…..
If we were to refuse him the extension of time in which to appeal against conviction, we should be keeping him in prison, so to speak, when we as a Court were convinced that he had not committed an offence. That again is not an attractive proposition, and it is one from which this Court resiles. This seems to us therefore to be the very rare case where the Court should exercise its undoubted discretion to allow the extension of time and grant leave to appeal against conviction. We wish to make it clear, however, that this is not to be taken as an invitation to all and sundry who have been convicted of this type of offence to present applications to this Court for leave to appeal out of time, because they will not be greeted with very much enthusiasm.”
19.	The first part of this citation was cited with approval in Jogee and the second part in Johnson at [20].  The second passage contains one example of the kind of consideration which may lead to the grant of an extension of time in a change of law case.  If it had sufficed that Mitchell had been wrongly convicted as the law was by then understood, it would not have mattered whether he was in prison or not, but it plainly did matter.
20.	For the reasons explained in Johnson at [18] and [19] there are powerful reasons why convictions properly returned under the law as it was understood at the time of conviction should not be set aside simply on that ground.  This is why it is for the applicant for exceptional leave to appeal out of time to demonstrate that a substantial injustice would be done by refusing that application.  As Mitchell makes clear, the continuing impact of a wrongful conviction on an application will be highly material in determining whether its continuation involves a substantial injustice.  What follows in Johnson at [21] must be read with that in mind.  This paragraph reads
“In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct. It is not, however, in our view, material to consider the length of time that has elapsed. If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice.”
21.	That paragraph expressly contemplates a situation with which the court in Johnson was concerned, namely people who had been convicted of murder having voluntarily decided to commit some other crime jointly with the principal offender, “crime A”.  It is identifying the factors relevant to determining whether a substantial injustice would occur if leave were refused in that class of case and, no doubt, murder cases generally.  In that situation it is unnecessary to consider what the continuing impact of the conviction on the applicant is, or how long ago it occurred.  This is because they had all been convicted of murder and were subject to life sentences.  In many cases they were still detained, but even if they had been released the impact of a life sentence is highly significant.  If that sentence had been imposed on someone who was not guilty of murder this would clearly be a substantial injustice and that would be so whenever the sentence had been imposed.  Those applicants were all therefore in the situation of Mitchell which is why that citation appears in paragraph [20] of Johnson.  It was not necessary for the court to consider what approach might be required in a case where the sentence had long since been served and where the success or failure of the application could have no practical consequences.
22.	For these reasons we investigated the current impact of the conviction on Mr. Ordu with Mr. Johnson.  Mr. Johnson could not argue that the quashing of the conviction in this case would make any practical difference to Mr. Ordu at all.  He was released from his sentence in 2008 and the licence period expired in the same year.  He has now been granted indefinite leave to remain in the UK and UK nationality.  Apart from the stigma of having suffered conviction and the unpleasant experience of serving 4½ months in a prison nearly 10 years ago there are no continuing consequences of this conviction.  Because the term was more than 6 months but less than 30 months the conviction became spent at the end of 48 months following the end of the sentence, including any licence period, see s. 5(2) of the Rehabilitation of Offenders Act 1974.
AM and Mateta
23.	We now turn to the fact that appeals have been allowed in two decisions of this court each of which considered a number of cases which were similar to the present case, and to each other.  On the face of it, the requirement of justice that like cases should be treated alike would suggest that this application should be allowed.
24.	It is, however, the case that the Court of Appeal in these two cases did not apply the substantial injustice case which we are required to apply.  In three of the four cases in Mateta there had been referrals by the CCRC which made the application for exceptional leave unnecessary by the time the case reached the Court of Appeal.  The cases in AM were appeals.  The applications for leave and, in two cases it would appear, for extensions of time were referred to the full court by the registrar and granted during the hearing.  The judgment on the appeals does not give reasons for the grant of extensions of time, and applies the proper test for appeals following guilty pleas, namely that identified in R v. Boal (1992) 95 Cr. App. R. 272; [1992] Q.B. 591; [1992] 2 W.L.R. 890 CA.  An appellant who seeks to set aside a conviction following a plea of guilty must show a clear injustice by demonstrating that he was deprived of a defence which would probably have succeeded.
25.	In Mateta, it was the case of Mateta itself which required an extension of time because it was not a CCRC referral.  His extension was granted by the full court at paragraph [1] but the court did not give reasons.  Again, the cases were all decided applying the Boal test, rather than the substantial injustice case.
26.	Whether there is a difference as a matter of language between the terms “clear injustice” and “substantial injustice” is unclear and probably not a profitable subject for analysis.  They are not terms contained in a statute, but describe a means of determining the safety of a conviction in the first case and an exercise of a judicial discretion in the second case.  There is an obvious difference between the two exercises which give rise to the two tests.  When considering whether to quash on appeal a conviction following a plea of guilty, the court is simply considering whether it is safe, see Criminal Appeal Act 1968, s.2(1).  Generally, a conviction following a plea of guilty is a very safe kind of conviction and an attack on the advice or thought process which led to it will not result in a lack of safety unless it satisfies the Boal test.  By that stage all the considerations which result in the time limit for bringing appeals, which is 28 days, and in a special test for extensions of time in change of law cases will have been overcome and the court is simply focussing on the safety of the conviction.  It is obvious that the substantial injustice test is different from that and involves considerations additional to the safety of the conviction, in other words it requires the applicant to demonstrate more than that his conviction is unsafe.  This is clear from Johnson at [23].   This implies that in most cases the applicant will have shown that his conviction was unsafe if he has satisfied the “substantial injustice” test, but he will also have established, perhaps by reference to the circumstances since conviction, not only that it is unsafe but also that a substantial injustice would be done if it were not quashed.   It does not matter to the safety of a conviction whether an applicant is, as in Mitchell, still serving a sentence but it does make a difference to whether exceptional leave to appeal should be granted out of time.  In short, the tests are described by ostensibly similar verbal formulations but they are different things.
27.	The Court of Appeal in AM and Mateta did not give reasons for the grant of the three extensions of time specifically referred to in those two judgments.  It may be that the importance of the substantial injustice test has become more apparent since those decisions and it may also be that that the arguments on behalf of the Crown were different.  Certainly, those courts did not have the benefit of the decisions of the Supreme Court in Jogee and the Court of Appeal in Johnson.  For those reasons we do not consider that those decisions are authoritative in deciding whether an exceptional extension for leave to appeal should be granted in this case.  The decisions by which we are bound are those of the Supreme Court in Jogee and the Court of Appeal in Johnson.
Conclusion
28.	We do not accept that the change of law in this case occurred as recently as the decisions in R. v Kamalanathan [2010] EWCA Crim 1335, R v. AM and other cases [2010] EWCA Crim 2400; [2011] 1 Cr. App. R. 35, and R v. Mateta and other cases [2013] EWCA Crim 1372; [2013] 2 Cr App R 35.  Those cases give helpful and clear guidance about the operation of the s.31 defence, but they all follow the change in the construction of s.31 which occurred in Asfaw in the House of Lords.  That is why there are expressions of regret about the quality of the legal advice received in the cases under consideration.  If the decisions in AM and Mateta changed the law it would be very unfair to criticise the lawyers for failing to anticipate the changes and advise accordingly.  It is precisely because they did not change the law that the criticisms were made.  Kamalanathan clarified the nature of the jury’s task in a s.31 stopover case by declaring that the issue was one of fact and identifying certain features of the case which might assist the jury in deciding whether a stopover was part of the journey or not.  This was not a change in principle.
29.	It is an oddity that no-one informed the applicant between May and August 2008 while his appeal was pending in the Asylum and Immigration Tribunal that the law had changed in his favour.  The applicant was mixing with his own lawyers and we have seen from the date of a medical report and a psychological report that they were active on his behalf in June 2008.  Nevertheless, we accept that he did not know at that stage that he could challenge his conviction.  That means that he lost the opportunity to challenge it while it was still having some potential impact on him.  This was perhaps unfortunate but in no way the fault of the prosecution or any other state agency.
30.	We accept that Mr. Ordu did not appreciate until some time in 2015 that the law had changed in his favour, as Mr. Johnson told us.  This means that he delayed before lodging his application for longer than 28 days after he learnt of that, because his application was stamped on 29th February 2016.  In other cases the court would require detailed chronological evidence to determine whether the substantial injustice test had been met because it is reasonable for the court to take into account delay by the applicant in deciding that question.  If the conviction really is causing substantial injustice it is reasonable to expect the applicant to proceed promptly as soon as he knows he can.  “Prompt” in this context means within 28 days.  We have not thought it necessary to require evidence of this kind in this case because on the basis on which we have resolved it.
31.	Mr. Johnson made a submission based on s.31(8) of the IAA 1999.  This provides that a person convicted before the coming into force of that Act who had not relied on Article 31 in his defence could apply to the CCRC for a reference of his case to the Court of Appeal Criminal Division.  He submits that the lack of any time limit in this provision suggests that Parliament regards the s.31 defence as being of particular importance and that it should be made available to those who have the protection of Article 31 of the Refugee Convention without any time limits being applied against them.  We do not accept this submission for the following reasons:-
i)	S.31(8) is designed to provide a remedy to those who were affected by a serious failure by the UK legislature to give effect to the Treaty Obligations of the UK.  That failure came to end in November 1999 when the IAA 1999 came into effect, at least once it was properly construed by the House of Lords in 2008 in Afsaw.  Once the appropriate legal machinery is in place there is nothing unjust or inconsistent with the Treaty Obligation in requiring those who wish to bring appeal proceedings to do so in accordance with the rules which govern all other appellants and which are accessible and compatible with the interests of justice.
ii)	The provision only enables the application to be made to the CCRC.  It says nothing about how the CCRC should decide it, or about how the Court of Appeal should approach any reference or any application made without the intervention of the CCRC.  In the absence of any specific statutory provision affecting the issue, this court is bound to apply the law as explained in Johnson.
32.	We therefore turn to apply the substantial injustice test in this case.  We are prepared to do so, as we have said, on the basis that if we grant the extension the conviction will probably be found to be unsafe.  The Boal test is probably met.  However, this cannot be enough otherwise all appeals against convictions following a guilty plea would be granted extensions of time if they were likely to succeed.  That is not the test.
33.	We refuse to grant the necessary extension of time in this case.  It is a very long extension and this is not, for the most part, the fault of the applicant.  However, it means that he has now lived through all the adverse consequences and the conviction and emerged to a happier, more settled and safe life in the United Kingdom.  The conviction and sentence is now a long time ago and quashing the conviction will not remedy the unpleasant memories which are now its only legacy.  On the information before us, quashing the conviction would actually make no real difference to the applicant’s life at all, and in those circumstances it is impossible to say that a substantial injustice will occur if this appeal is not allowed to proceed.