Public Law Solicitors

The Criminal Cases Review Commission (CCRC) is the statutory body set up in 1997 to investigate alleged miscarriages of justice in England Wales and Northern Ireland.

The CCRC has the power to send a case back to the Court of Appeal if it concludes that there is a real possibility that the court will overturn the conviction or cut the sentence.

Recently, the CCRC has received criticism for “helping” asylum seekers by quashing convictions for illegal entry into Britain. Asylum seekers can commit an offence illegally entering into Britain in a numbers of grounds. Some of the most common offences are as follows:

1) Under Section 2(1) of the 2004 Act

A person commits an offence if, at a leave or asylum interview, he does not have with him an immigration document which is in force and satisfactorily established his identity and nationality or citizenship.

2) Under Section 2(7) of the 2004 Act.

A person commits an offence when he/she deliberately destroys or disposes of an identity document, unless there was a reasonable cause for the act.

Further to the above, in December 2015, the Law Society published a practice note on statutory defenses available to asylum seekers charged with document offences. At present, these defenses are held under Section 31 of the Immigration and Asylum Act 1999. This Act states that asylum seekers illegally entering Britain can claim a defence where they:

1. Came directly to the UK from a country where his or her life or freedom was threatened (within the meaning of the Refugee convention;
2. Had good cause for his illegal entry or presence in the UK;
3. Presented him or herself to the UK authorities without delay;
4. Made a claim for asylum as soon as reasonably practicable after arrival in the UK;
5. If the asylum seeker stopped in another country outside the UK the defence will only apply if the refugee can demonstrate that he could not reasonably have been expected to be given protection under the Refugee Convention in that country.

The purpose of “re-highlighting” the above by the Law Society is as follows:

“The Criminal Cases Review Commission (CCRC) has since 2012 referred over 30 separate cases to the relevant appeal court including eight to the Court of Appeal (Criminal Division).”

Further to this the Law society has highlighted a “common” trend to the referrals made to the Court of Appeal. These have been where the defendant:
• “arrived in (or sought to transit through) the UK and claimed asylum or refugee status after being stopped by immigration official
• was charged with an offence for arriving without a valid passport
• was advised that they did not have a defense, and
• pleaded guilty, subsequently receiving a custodial sentence.”

Basically, the CCRC has been forced to refer these cases because the defendants were not notified of, nor afforded the opportunity, to raise any defense either under section 31 of the Immigration and Asylum Act 1999 or under section 2 of the Asylum and Immigration Act 2004. Further to this, it highlights that the following precedents have not been followed, as defendants have not been able to provide a defense as per the above provisions, and thus the CCRC has had to intervene on their behalf:

• Khalif and Isleworth Crown Court [2015] EQHC 917 (Admin)
• R v Mohammed and Osman [2007] EWCA Crim 2332
• R v Uxbridge Magistrates Court & another, Ex Parte Adimi [1999] EWHC Admin 765

Despite, simply attempting to remind legal practitioners of the potential defenses the CCRC has received a high level of criticism for its actions. Some tabloids referring to it as:

“ “an unprecedented publicity campaign encouraging hundreds of migrants to challenge criminal convictions related to their entry, such as fraud or using false passports.” (1) “

Further to this, the CCRC is criticised for “fast-track(ing) dozens of asylum-seeker cases, making up a large proportion of its workload”, and “sidelining” British citizens. It is reported that “almost a third of the people who the CCRC helped overturn their convictions last year were asylum-seekers”.

Peter Bone, Conservative MP for Wellingborough has also criticised the CCRC because this process:

“Undermine(s) deterrence and encourage more and more people to come in by illegal routes...”

Another stance, we could take on this issue is that regardless of the practical implications it was necessary to raise this issue to the attention of the legal community because our Immigration legal system has not afforded the correct protection or upheld the rights of vulnerable individuals seeking to enter the UK, and this has resulted in asylum seekers been effectively “punished” by a legal system unfairly (as there are valid defences available) and on a growing basis. It would probably be agreed, by anyone reading this article, that as a result of this the internal system at the CCRC has been “clogged” up. However, others would consider this matter further and conclude that the CCRC has taken the only action it can (other than to ignore unlawful convictions been made) by “advertising” the issue to alert practitioners of the defences to encourage avoidance of the problem, and to hopefully afford other applications (aside from asylum) the opportunity to access justice. As Mr Foster, a former foreign office diplomat, succinctly stated the present system’s standards are at present “not what one would expect from a ‘gold standard’ justice system.”

Article Notes

(1):The Telegraph:Revealed: Government body helps asylum seekers quash convictions for illegal entry to Britain
About the Author

Helen Cummings, the author of this article, currently works as a caseworker/trainee within the Public Law Department/ Immigration team. Helen has worked in a Public Law departments for the past three years, and completed her LPC in 2013. Prior to her employment at Duncan Lewis she assisted in some notable cases, such as: R (Wood and Turley) v Leeds City Council [2014] EWHC 2598 (Admin), R (English Bridge Union) v Sport England and others [2015] EWHC 2875, and KOLAKOVIC v. MALTA (Application no. 76392/12).

Helen completed her undergraduate law degree in 2011, in which she achieved an upper second class (2:1) with honours. In 2013 she completed her Legal Practice Course, whilst working part time.”