Why is it wrong to overturn wrongful convictions, Mr Bone?

It is a pretty safe bet that whenever Peter Bone MP opines on the criminal justice system he is wrong. He has voted to lower the abortion limit to 12 weeks, to retain the criminal offence of blasphemy and to reintroduce the death penalty (although not for blasphemy). One of his typical interventions last year was to sponsor a bill which would have forced judges to pass lengthy prison sentences even when they knew that it would be unjust to do so.

In fairness to him, he is wrong about plenty of other things too. In 2010 he signed an Early Day Motion in support of homeopathy (Jeremy Corbyn and Diane Abbott were fellow signatories, as well as the completely barmy Conservative MP David Tredinnick, who believes in astrology).

Politically he has proved less than astute: he was a supporter of Conservative candidates standing down in favour of UKIP in some LibDem held seats, a proposal which, had it been taken up, would probably have deprived his own party of its majority at the 2015 election.

The publicity loving MP for Wellingborough has become annoyed recently about the fact that the Criminal Cases Review Commission, the independent body established to correct criminal miscarriages of justice, has been doing its job. It has helped wrongly convicted people to have their convictions quashed. The particular group that he is concerned about are refugees who have been wrongly convicted of possessing false travel documents. One would have thought that he would be happy about this: why would anyone want innocent people to stay in prison?

Over to Mr Bone:

“This is Alice in Wonderland. If you do this, you will undermine deterrence and encourage more and more people to come in by illegal routes. It will certainly increase the flow of people in the hands of the people traffickers – for an official body to be doing this is fundamentally wrong.”

It seems strange – indeed rather reminiscent of Alice in Wonderland – that Mr Bone thinks it is wrong to release innocent people from prison because it will “undermine deterrence”. On that basis we might as well dispense with justice altogether and simply lock up anyone who comes to Britain on a random basis in order to deter others from crossing the channel. It would not surprise me in the slightest if Mr Bone makes that suggestion in the near future.

It is particularly ironic that he should argue that the innocent should suffer as a deterrent to others. In 2014 he himself was wrongly accused of a £100,000 benefit fraud. The CPS looked at the evidence and decided there were no grounds to prosecute him. Applying his principle – the over-riding need to ensure deterrence – it would have been better if they had done so and achieved a wrongful conviction. 

According to the Telegraph story the CCRC has already helped more than 30 asylum-seekers to overturn their convictions and is considering a further 60 cases.

What has happened in these cases has been very unfortunate. Under the Identity Cards Act 2006, or its successor the Identity Documents Act 2010 it was (or is) an offence punishable by up to two years imprisonment to have a false identity document (such as a passport) in your possession.

However, because asylum seekers are very often unable to obtain legitimate travel documents, there is a defence available. Confusingly, it is not contained in the Act that creates the offence, but somewhere completely different, the Immigration and Asylum Act 1999.

S.31 of the 1999 Act provides:

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.

The reference to the “Refugee Convention” is to the 1951 UN Refugee Convention, which binds the United Kingdom under International law. Article 31 says:

“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened …, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

 

The effect of all of this is that if you are a refugee, and you travel on a false passport you do not commit an offence so long as:

(a) you have travelled “directly” from the country which you are fleeing; or,

(b) if you do stop in another country en route, you show that you could not be expected to clam refugee status in that country; and

(c) you claim asylum as soon as possible on your arrival.

The courts have had to concern themselves with what travelling “directly” means. That was decided in a 1999 case called Adimi. It does not mean that the refugee has to come straight from his country of origin to Britain with no stop in an intermediate country. Instead, he has an element of choice about where he claims asylum. He is allowed brief stopovers in intermediate countries, and “even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on.”

The principle is illustrated by one of the cases highlighted by the Telegraph, which appears to have annoyed Mr Bone. Amir Ghavami and Saeideh Afshar were an Iranian couple who had not even intended to claim asylum in Britain. They were passing through Britain trying to reach Canada, where they had relatives. Lord Justice Leveson described what had happened:

“They had left Iran about 4 months earlier and travelled, using their Iranian passports, to Thailand, entering that country with visitors’ visas. They remained in Thailand for about 2 months, where they met an agent who was paid $35,000 by Mr Ghavami’s father. From there, still using their Iranian passports, they flew to Tanzania in the company of the agent. On his instructions, they destroyed their Iranian passports en route and the agent provided them with the forged Austrian passports in order to enter Tanzania.

They stayed in Tanzania for 20 days, waiting for directions. They next accompanied the agent by bus to Kenya where they remained for a week, before flying to Spain. After a wait of 20 days in Madrid, they flew to Gatwick and took a coach to Heathrow in order to catch a connecting flight to Montreal, which was their ultimate destination.”

On their appeal there was no dispute that they were genuine refugees. and “although they spent two months in Thailand, 20 days in Tanzania, one week in Kenya and 20 days in Spain, the Crown [accepted] they were entitled to doubt whether they could reasonably have expected to be given protection in Thailand, Tanzania, Kenya or Spain.” In other words, at the appeal the prosecution did not even argue with the fact that for legal purposes they should be treated as having come “direct” from Iran.

The Telegraph report said that “the pair admitted they were free to claim asylum in Spain but had decided they did not want to live there because they do not speak Spanish.” No doubt Andrew Gilligan, who wrote the story, did not intend it, but that was in fact a misleading half-truth. Although there was a reference to “language difficulties” in Spain, the main reason for not claiming asylum there was that they believed what they had been told, namely that Spain would send them back to Iran.

“They said that while in Thailand, Tanzania and Kenya they were under the control of the agent and acting on his direction. In relation to their stay in Spain, they did not try to claim asylum both because they accepted what the agent had told them (viz. Spain would not accept them as refugees and would send them back to Iran) and because of language difficulties. In addition, Thailand is not a party to the Refugee Convention and Kenya is an unstable destination for refugees. In all the circumstances, the prosecution submits there were good reasons why the appellants might not have reasonably expected to be given protection in the countries through which they passed. Therefore, the prosecution concedes the defence under the s.31 was available to them.”

The only reason they had been convicted of the offence was that they had not been told by their lawyers that they had a defence, something that was again accepted by the prosecution, and described by the Court of Appeal as “surprising and disturbing.”

In this, and in other similar cases, what has sometimes happened is that no doubt hard-pressed defence solicitors and barristers have either not been aware of or have misunderstood the availability of the S.31 defence. That should not have happened and it does not reflect at all well on the lawyers concerned. All that can be said in their mitigation is that the law in this area is not straightforward, the defence is not contained in the Act which creates the offence, and it if you do not deal with such cases regularly it is a relatively easy mistake to make. Sadly, if your own lawyers have missed the fact that a defence is available, it is inconceivable that they will then advise you to appeal against the resultant conviction. Hence, the role of the Criminal Cases Review Commission in acting as a “long stop” to rectify wrongful convictions.

In the case in question the Court of Appeal went out of its way to acknowledge the role of the CCRC:

“… the court must also recognize the very real contribution made by the CCRC to this area of the law: we are indebted to it.”

There are large areas of the Criminal Justice System which don’t work very well. So it is extraordinary, if unsurprising, that Mr Bone should direct his criticism at a tiny part of the system that in these cases has actually worked exactly as it should.