Pepushi, R (on the application of) v Crown Prosecution Service

Where Parliament has enacted a specific criminal defence to give domestic effect to an international obligation, the statutory wording governs the defence available in domestic courts. A treaty does not itself confer domestic rights, and legitimate expectation cannot extend protection beyond the scope Parliament has expressly provided. Courts should interpret the statute consistently with the treaty where possible, but must apply clear statutory language even if the result places the United Kingdom in breach of its international obligations. A challenge to a prosecutorial decision concerning a pending Crown Court trial should ordinarily be raised in the criminal proceedings, not by judicial review. Such applications are permissible only in wholly exceptional circumstances.

The claimant, a national of the former Yugoslavia, was prosecuted after using a false Swedish passport at Heathrow Airport while intending to travel to Canada and claim asylum. He relied on Article 31 of the Convention relating to the Status of Refugees and on the interpretation adopted in R v Uxbridge Magistrates’ Court and another, ex parte Adimi, [1999] EWHC Admin 765; [2001] QB 667.

After Parliament enacted section 31 of the Immigration and Asylum Act 1999, the claimant sought judicial review of the CPS decision to prosecute. The issues were whether the wider protection of Article 31 remained available despite section 31, and whether judicial review was the proper procedure and forum for raising the issue after committal to the Crown Court.

1. Statutory defence. The court followed the interpretation of Article 31 adopted in Adimi, considering it rightly decided. That interpretation was not altered for the purposes of the United Kingdom’s international obligations. The relevant domestic question was different: Parliament had enacted section 31 of the Immigration and Asylum Act 1999, using language narrower than Article 31 as interpreted in Adimi.
2. International treaties do not form part of domestic law unless incorporated by legislation. Parliament may enact legislation reflecting a treaty, but the statute, not the treaty, is the source of domestic rights. Courts should adopt a treaty-consistent construction where the statutory language permits it. Where Parliament has chosen clear and narrower wording, the courts must apply the statute even if that places the United Kingdom in breach of its international obligations.
3. Section 31 therefore defined the claimant’s available defence. The words “only if” in subsection (2) restricted protection where a refugee had stopped in another country. The court had no power to apply the wider approach in Article 31 directly. There was likewise no legitimate expectation of protection beyond section 31, since that would circumvent the statutory scheme. The CPS was required to apply domestic law, and maintaining the prosecution was not an abuse of process.
4. Procedure and forum. Following Kebilene, a decision to prosecute is not ordinarily amenable to judicial review, absent dishonesty, bad faith or exceptional circumstances. The claimant’s case concerned a prosecution committed to the Crown Court, where the defence could be raised and, if necessary, pursued on appeal. Judicial review was therefore inappropriate.
5. The application was dismissed, the stay was lifted, and the court stated that applications challenging pending prosecutions should be made only in wholly exceptional circumstances.

The judgment describes no prior appellate decision in this litigation. The claimant had been committed by the magistrates to the Crown Court before applying for judicial review.