The Court of Appeal gave judgment on the 8th December in the case of Sadighour  EWCA Crim 2669.
There was no new law, but it provides an interesting look into what can generally be categorised as ‘due process’ and how to balance justice and finality.
Facts and Decision
Mr Sadighpour was an asylum seeker from Iran. He left Iran on 24th December 2011, claiming that he feared persecution by the ‘morality police’. He crossed the border to Turkey where he stayed for six days before flying (on a valid visa) to Tanzania where he stayed for a few days before flying to the UK via Zambia, arriving on 5th January this year, intending to travel to Canada to seek sanctuary.
He tried to leave the UK on a false passport, which was detected, and was arrested (Possession of a False Identity Document with intent).
He appeared before the Crown Court (as that offence is indictable only) on 20th January where he pleaded guilty and was sentenced to 12 months imprisonment.
The appeal was based on the fact that he was not advised that he had a defence (contained within s31 Immigration and Asylum Act 1999) to the charge based on his status as a refugee (or claimed refugee). This provides that where someone is a refugee (in that they fear for their safety in their home country) they should not be penalised for using false documents in order to leave their country and get to a place of safety. This is in place for obvious reasons – if you are being persecuted by your government, it is unlikely that they will give you a passport and permission to leave.
In the Court of Appeal it was accepted by the prosecution that Mr Sadighpour was not advised to the availability of this defence by his then lawyers. Because of that, he had no choice but to plead guilty (as he was clearly using the false passport).
The issue for the Court of Appeal therefore was whether the conviction is safe? The Court also accepted that he had not been advised of the defence that his account raised.
However, before allowing the appeal, the Court of Appeal stated (para 22) that they had to consider whether “there were good prospects of [the defence] succeeding”. They looked at all the evidence, including the fact that his asylum appeal was dismissed by the First-Tier Tribunal (a specialist immigration court) who did not believe his account. That was significant – it showed that there were issues with Mr Sadighpour’s credibility, and the court concluded that the prosecution in any criminal trial would also expose these problems and an appeal would fail. For that reason, the appeal would be dismissed.
The Court does not come up with any new legal principles. Whilst the application of s31(7) after an Immigration Tribunal appeal had not been considered previously, the fact that the burden would be on the asylum seeker to prove that he is a refugee is no surprise.
As the law gets ever more complicated, the number of people who plead guilty due to a misunderstanding of the law will rise. For example, everyone knows what theft is and a court will rightly look sceptically at someone who says that they didn’t know what theft was. However, as Parliament churns out an ever increasing number of criminal laws, with new and often obscure offences, does the old legal principle ‘ignorantia legis neminem excusat’(ignorance of the law is no excuse) have any role in current society?
The task of the Court of Appeal is a difficult one. The constitutional position is that the Court of Appeal does not determine guilt or innocence, but determines whether a verdict is ‘safe’. There are often things that go wrong with the criminal process, that could form an ‘error of law’. For that reason, it is understandable that the Court has a filter mechanism (what used to be called ‘the proviso’) that means that not every case where an error of law is found leads to a conviction being ‘unsafe’, and the appeal therefore succeeding.
In this case, the Court looked at the judgment of the First-Tier Tribunal that considered the immigration claim. That tribunal concluded that he was not a refugee. For this reason, the appeal would have to be dismissed. It could be said that although the Court stated that they had concluded the defence would not have succeeded, they actually meant should not have succeeded.
But compare the case of Wang  UKHL 9 where the House of Lords concluded that a Judge was not permitted to direct a jury to convict, irrespective of whether there was a valid defence or not. In that case, Mr Wang was found with two knives relating, he said, to his practice of Shaolin and was charged with possession of a bladed article. This offence is unusual in that it is for a defendant to prove that he is innocent, not the other way round. After hearing the evidence, the Judge decided that he had not put forward any evidence that could support a not guilty verdict and directed the jury to convict him.
The House of Lords concluded that a “Belief that the jury would probably, and rightly, have convicted does not in our judgment entitle us to consider this conviction to be other than unsafe when there were matters which could and should have been the subject of their consideration” (para 17) and said that “that there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty” (para 18).
What are the differences between the two cases? Obviously the fact that Mr Wang had a trial, but this would have been based on legal advice. Here, had Mr Sadighpour had a trial and the Judge concluded that there was no defence and therefore directed a guilty verdict, the appeal would have been allowed. Do the different situations justify different outcomes? A case after Wang, Caley-Knowles & Jones  EWCA Crim 1611, that dealt with appeals on the basis of Wang, lead to two convictions being quashed because of a direction to convict notwithstanding there being no doubt about their guilt – would Mr Sadighpour feel rightly aggrieved about the situation he finds himself in?
There are many other categories of situations that can fall into the ‘due process’ heading, this is just an example. All however deal with the situation where something has gone wrong (whether with the trial process or other matters) and the defendant has not had a fair trial (or at least not as fair a trial as he should have). Understandably lines have to be drawn, but it’s little consolation to say to someone that whilst “their trial was not fair, it was fair enough”, or, as an aggrieved defendant may hear it, “ok, it wasn’t a fair trial, but tough”.
In this case, is it right that someone who has been deprived of the opportunity of a jury verdict should win an appeal and re-trial if the Judge withdraws their defence, but not if their lawyer does? Where should you draw the line? Isn’t the right to a fair trial a vital right in a democracy? The Court of Appeal repeatedly say that they are not there to substitute their own views for a jury’s, which is right, but how can that be squared with a decision that whatever the issue was (evidence that shouldn’t have been admitted or whatever it may be) it would have been decided a particular way?
Ultimately, if a Court of Appeal is allowed to say in a case such as this that a jury would have had to convict, why should the Crown Court not be able to do the same and say that this defence won’t succeed so we will enter a verdict of guilty? Everyone, I think, would agree that that is not acceptable, but isn’t it exactly what the Court of Appeal has done to Mr Sadighpour?