Mohamed v R

A refugee charged with a false identity-document offence may rely on the defence in section 31 of the Immigration and Asylum Act 1999. The provision is construed purposively, but its express requirements must be met. A transit stop in another country is not necessarily fatal; the relevant considerations include its duration and purpose and whether Convention protection could reasonably have been expected there.

Once sufficient material raises the defence, the prosecution must disprove it. A guilty plea following inadequate advice is not automatically a nullity. The Court may nevertheless quash an unsafe conviction where the unadvised defence would probably have succeeded and a clear injustice results. Lawyers must explain both the availability and the limits of the statutory defence.

This conjoined appeal concerned four unconnected defendants who had pleaded guilty in Crown Courts to offences involving false or other persons’ identity documents under section 25 of the Identity Cards Act 2006. Each contended that legal advisers had failed to advise on the refugee defence in section 31 of the Immigration and Asylum Act 1999.

The central issues were the scope of that defence, particularly where the defendant had travelled through third countries, and when a conviction following a guilty plea is unsafe because a potentially successful defence was not explored. The Court considered each defendant’s instructions, travel, asylum account and advice received.

1. The appeals of MV, Rahma Abukar Mohamed and Mohsen Nofallah were allowed and their convictions were quashed. Abdalla Mohamed’s appeal was dismissed.

2. Section 31 of the Immigration and Asylum Act 1999 gives effect to the humanitarian purpose of Article 31(1) of the Refugee Convention. Following R v Asfaw [2008] 1 AC 1061, it protects refugees from penalties for offences reasonably or necessarily committed in flight from persecution, subject to the statutory conditions. A short transit stop does not necessarily prevent a person from having come directly. The material considerations include the length and reasons for the stay and whether protection was sought or found, de jure or de facto.

3. A defendant need only adduce sufficient material to raise refugee status and entitlement to section 31 protection. The prosecution then bears the burden of disproving the defence. Advisers to a person charged under section 25(1) of the Identity Cards Act 2006 must explain the defence, including its limitations, so that the person can make an informed choice.

4. The nullity jurisdiction is confined to a plea which was not a true and free acknowledgement of guilt. However, even where that threshold is not met, a guilty plea does not prevent the Court from quashing an unsafe conviction. Exceptionally, intervention is justified where the overlooked defence would quite probably have succeeded and a clear injustice has occurred.

5. Abdalla Mohamed had received appropriate advice. In any event, his vague account of the journey, likely time in Italy and inability to explain why protection could not have been sought in Ethiopia meant that section 31(2) presented real obstacles. His conviction was safe. MV had substantial prospects of proving refugee status and satisfying the statutory conditions: Turkey was not shown to be safe, Syria was not a Convention state, and his Spanish transit was only three hours. Rahma Abukar Mohamed had not been advised of the defence and had a good prospect of establishing that her three days in Holland, while under an agent’s control, did not defeat it. Nofallah’s later political account gave him a potential defence; a jury could accept that he had been confined in Greece and had made only a short-term stopover.

The Court stressed that, where instructions raise the possibility of section 31 protection, there is no excuse for failing to investigate it and to record both the instructions and advice.

• Court of Appeal (Criminal Division) — In [2010] EWCA Crim 2400, allowed the appeals of MV, Rahma Abukar Mohamed and Mohsen Nofallah and quashed their convictions. It dismissed Abdalla Mohamed’s appeal.
• Crown Court at Chelmsford — Abdalla Mohamed pleaded guilty on 7 May 2009 to an offence under section 25(1) of the Identity Cards Act 2006 and received 11½ months’ imprisonment.
• Crown Court at Liverpool — MV pleaded guilty on 7 September 2009 to possession of a false identity document with intent and received 12 months’ imprisonment.
• Crown Court at Chelmsford — Rahma Abukar Mohamed pleaded guilty on 21 August 2007 to two identity-document offences and received concurrent sentences of 15 months and three months.
• Crown Court at Lewes — Mohsen Nofallah pleaded guilty on 21 August 2009 to a section 25 offence and received eight months’ imprisonment.