Jaddi, R. v

A conviction following a guilty plea may be quashed where the plea resulted from incorrect legal advice and an available statutory defence had sufficient prospects of success to show clear injustice. Under section 31 of the Immigration and Asylum Act 1999, a genuine refugee who is merely in transit through a third country may still rely on the defence. Whether an asylum claim was made as soon as was reasonably practicable is a fact-sensitive, objective question for the jury. The defendant’s knowledge, intention and state of mind are relevant. A person arriving at a major United Kingdom airport will ordinarily be expected to identify himself promptly to immigration officials, but that is not an inflexible rule.

The appellant pleaded guilty at Lewes Crown Court to possessing forged French identity documents with improper intention. He said that he was an Iranian national fleeing persecution and intended to make a fresh asylum claim in the United Kingdom. Before pleading guilty, he was advised that the statutory defence in section 31 of the Immigration and Asylum Act 1999 was unavailable because he had spent several days in Italy.

He appealed against conviction, contending that the advice was wrong. The issues were whether his Italian stopover necessarily prevented reliance on section 31, whether he had claimed asylum as soon as was reasonably practicable after arrival at Gatwick, and whether the erroneous advice justified setting aside his guilty pleas.

1. Appeal allowed. The convictions were quashed because the appellant had received advice that the section 31 defence was simply unavailable, whereas it had sufficient prospects of success to warrant trial. The guilty pleas therefore fell within the limited jurisdiction identified in R v Boal.

2. The stay in Italy was not necessarily fatal. Applying R v Asfaw, a refugee who is genuinely in transit through a third country does not necessarily lose the protection reflected in section 31. The appellant could therefore contend that his few days in Italy did not amount to a relevant stop for section 31(2). The court did not decide whether that contention would ultimately succeed.

3. Section 31(1)(c) raises a separate question. Whether an asylum claim was made as soon as was reasonably practicable is an objective question of fact for the jury. The jury must nevertheless consider the defendant’s knowledge, intention and state of mind, and establish what occurred at immigration control. A traveller arriving at a major airport and in the hands of immigration officials will in most cases have no good reason to delay identifying himself, although circumstances may make later disclosure reasonable.

4. The evidence about the appellant’s actions at Gatwick was uncertain and had never been tested because of his pleas. The defence was not bound to succeed. A retrial was therefore required rather than an acquittal. He was to be arraigned on a fresh indictment within two months, at a convenient Crown Court on the South Eastern Circuit.

• Court of Appeal (Criminal Division) Allowed the appeal, quashed the convictions and directed a retrial: [2012] EWCA Crim 2565.
• Lewes Crown Court The appellant pleaded guilty to possessing identity documents with improper intention and was convicted.