The Court of Appeal was wrong to refuse to hear the appeal of a man it believed to be innocent.

Last Friday the Court of Appeal refused to allow a Mr Mehmet Ordu to appeal against his conviction. Nothing very unusual about that. Every year hundreds of would-be appellants are refused leave to appeal. The peculiar thing about this case, though, is that everyone involved – Mr Ordu himself of course, but also the prosecution and most remarkably the three judges who heard his case, all accept that he was in all probability innocent of an offence for which he has now served a 9 month sentence. The judges nevertheless decided that there would be “no injustice” in allowing his wrongful conviction to stand. Most people might think that a wrongful conviction demands a remedy, and the obvious remedy – even if nothing else can be done – is to quash the conviction. The Court of Appeal thought that there was no injustice in leaving a wrongful conviction in place. It was a very bad decision.

First a little background.

Over the years prosecutions of people for using false passports to enter the United Kingdom have been a fertile source of successful appeals.

The problem has been this: how should the law treat people who arrive on false identity documents, or with no identity documents, when they are refugees from persecution? On the one hand, of course, passports and other identity documents are vital to the control of immigration and in keeping undesirables out of the country. There is an obvious public interest in strict rules about passports and, in punishing those who break the rules severely so as to deter others who might be tempted to use documents to which they are not entitled.

On the other hand, if someone is genuinely fleeing from persecution in their homeland it is quite likely that that very persecution will make it impossible for them to obtain a genuine passport. The only way for such people to flee may be to leave, and to enter the UK, either without any documents or using false documents.

In international law the problem is recognised by Article 31 of the 1951 UN Convention on Refugees, paragraph 1 of which provides:

“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.”

As a signatory to the Convention, Britain is obliged under international law not to punish refugees who qualify for its protection.

The Convention, though, does not have direct legal force in domestic UK law. In 1999 the High Court ruled in R v. Uxbridge Magistrates ex parte Adimi [1999] EWHC Admin 765 that the absence of a domestic law “refugees defence” to identity card offences placed Britain in breach of its international law obligations.

As a result S.31 (1) of the the Immigration and Asylum Act 1999 was passed. (It is an odd, and no doubt unintended, coincidence that S.31 of the Act is based upon Article 31 of the Convention). It created a statutory defence. In essence, if a defendant could show that he was a refugee and had presented himself to the authorities in good time, he now had a defence to a charge of using a false identity document. Unfortunately, although the essence of the defence may have been clear, the detail of its operation was less so. Of particular significance is that S.31 (2) appeared to deny the defence to anyone who on their way to Britain had stopped in transit in a safe country and failed to claim asylum there:

“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.”

However, this restriction on the use of the defence turned out to be not quite as onerous as it might appear on its face. The courts interpreted the requirement to claim asylum in the first available country as not applying to those who merely stopped in another safe country while passing through (see eg Asfaw [2008] UKHL 31 ] [2008] 1 AC 1061).

Many criminal lawyers, putting it bluntly, know little about immigration law, and partly as a result they have sometimes given incorrect advice to plead guilty when in fact defences have been available. This is not the place to go into detail about the law: the person you need for that is Dan Bunting, one of the editors of the UK Criminal Law Blog and someone whose name crops up a lot in appeals in this area.

Mr Ordu was a Turkish national who fled to Britain in 2007. It is now no longer in dispute that he was genuinely fleeing from persecution. He won his case in the Immigration Tribunal. He paid money to middle-men, and travelled to Germany by train. From there he took a flight to Britain. His false passport was detected on his entry into the UK, and he was prosecuted. His defence counsel, reading S.31 literally and advising him on the law as he then understood it, told him he had no defence. He thought the defence wasn’t available because he could have claimed asylum in Germany, albeit that he was merely passing through Germany en route to the UK.

One should not be too hard on the barrister for that advice: he gave it before the House of Lords had “clarified” (some might use the word “changed”) the law, making it clear that short stopovers in transit did not prevent refugees from availing themselves of the S.31 defence. Indeed, many criminal lawyers appear to have been unaware of the defence itself, let alone the subtleties of it, for several years thereafter. But although it wasn’t really his lawyer’s fault, the fact remains that the advice was wrong.

Anyway, Mr Ordu followed the advice, pleaded guilty and was sentenced to 9 months imprisonment. After his release he was eventually granted indefinite leave to remain, and in 2015 he was granted UK citizenship. All’s well that end’s well, one might conclude, except that he has served a 9 month sentence (4 ½ months of which was behind bars), for a crime of which he was in fact innocent. It was an unjustified blot on his otherwise good name, albeit one that by 2015 was a “spent conviction” for most purposes.

In 2015 Mr Ordu finally realised that the advice which he had received at his criminal trial had been wrong. Perhaps he should have realised it earlier, although it is not entirely clear why he should have been expected to pick up on complex rules of immigration law that regularly escaped the notice even of qualified lawyers. He realised that he ought to have pleaded not guilty, and he would then have had an excellent chance of being acquitted. Someone who has pleaded guilty is still allowed to appeal against conviction, so long as he can show “a clear injustice by demonstrating that he was deprived of a defence which would probably have succeeded.”

There was by now no real dispute about the facts: he was a genuine refugee and he had not received advice on the S.31 defence. Thanks to the intervention of the Criminal Cases Review Commission many other appellants in a similar position have had their cases referred to the Court of Appeal and have had their convictions quashed.

Even the Crown seemed sympathetic. Prosecuting counsel Mr Douglas-Jones took (as the Court of Appeal noted) “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 ….” This was the heaviest of heavy hints that, if the substantive appeal was to be heard the Crown would not oppose it.

Thus the only real hurdle Mr Ordu had to overcome was to obtain leave to appeal out of time. The rules require that an appeal against conviction should normally be lodged within 28 days of conviction, although there is provision for that period to be extended if there is a good reason. In practice, where an appeal seems meritorious, and often even where it seems merely “arguable,” the Court of Appeal generally grants the necessary extension of time even when years have passed. It’s not quite a formality but (certainly in my experience) nor is it usually any impediment where the grounds of appeal are strong. In this case they clearly were strong grounds for, as the Court itself observed:

“… 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.”

What is more, following a line of authority featuring the well-known case of Jogee [2016] UKSC 8, the Court set out this principle from the recent case of Johnson and others [2016] EWCA Crim 1613 :

“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.”

So far so good. But then it turned out that the apparently clear principle that it is irrelevant whether the injustice occurred a long or a short time ago is not so clear after all. “Ah”, said the judges (and I paraphrase only a little unfairly), “that principle is all well and good in murder cases. It doesn’t apply in all cases though.  Goodness me no. If it did we might have to allow, or at least hear, endless appeals from heaven knows when.  That would open up an appalling vista.”

In Mr Ordu’s case the court decided that it was very material to consider the length of time that has elapsed since he was convicted.

The Court noted that years had passed since he had pleaded guilty. It accepted that Mr Ordu was not responsible for much of that delay, although it made the somewhat harsh observation that having learnt some time in 2015 that he might have grounds to appeal, his actual application to appeal was not lodged until February 29^th 2016. And it decided that even though he had an appeal that was soundly based in law, that was not opposed by the prosecution, and that the Court itself thought would be likely to succeed, the just and proper result was that he should be denied the necessary extension of time that would enable it to be heard at all. To put it another way, the Court decided that the justice of the case required it to leave a patently wrongful conviction in place.

It is a bizarre decision. There was no injustice, the court said, because:

“… he has now lived through all the adverse consequences [of] 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 ….”

With the very greatest of respect it should not be for the Court of Appeal to decide that a wrongful conviction should stand merely because it all took place “a long time ago.” Mr Ordu, by now a fine and upstanding British citizen, should be  entitled to have his record wiped clean of a conviction which should never have got there in the first place; and he should also be entitled to a public acknowledgement that he ought never to have been sent to prison. Some might even say – although there is no suggestion that Mr Ordu is among them – that having locked him up for 4 ½ months for a crime that everyone now agrees he did not commit, the proper and decent thing for the state to do would be to pay him something by way of compensation, but if it is not going to do that the very least it should do is acknowledge his innocence.

There are of course many people who have suffered far worse injustices in the criminal justice system than Mr Ordu. His was a short sentence and if the Court of Appeal is to be believed he is a resilient man who has put the matter behind him as far as he is able. “Unpleasant memories” are no doubt a great deal easier to deal with than the unpleasant present endured by those locked up for year after interminable year following wrongful conviction.

What is striking about his case is not so much the injustice done to Mr Ordu but the almost casual insouciance with which the Court of Appeal has used the technicality of a time limit to ensure that he is denied justice. He was probably wrongfully convicted, says the court, but because it all took place such a long time ago there is no injustice in not doing anything about it.

The Court seems almost to have introduced a new test that would-be appellants need to satisfy before their out-of-time appeals can be heard. It is not enough to show that a conviction is unsafe (a difficult enough thing in itself): you now have also to show that quashing the conviction “will make some real difference” to your life.

It would be nice to think that Mr Ordu could reverse this very poor decision by appealing to the Supreme Court. He cannot. Since he was denied even permission to appeal to the Court of Appeal, he has no right even to petition the Supreme Court. His only remedy now will be an application to the Criminal Cases Review Commission. I hope they take up his case.