Asmeron v R.

A trial judge may withdraw a statutory defence from the jury only where there is no evidence capable in law of supporting it. A defence must not be withdrawn merely because the judge considers it hopeless or because a contrary finding would be perverse. Ordinary expressions such as reasonable excuse require the jury’s evaluative judgment, subject to any statutory qualifications.

Under section 2(4)(c) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, the defence concerns a reasonable excuse for lacking a valid document establishing identity and nationality. It is separate from the alternative defence concerning production of a false immigration document.

The appellant pleaded guilty at Isleworth Crown Court to entering the United Kingdom without a passport, contrary to section 2 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. He had claimed asylum on arrival from Sudan and said that he had handed his valid Eritrean passport to an agent arranging his journey.

Before trial, the prosecution successfully invited the judge to rule that no defence was available. The appellant then pleaded guilty and received five months’ imprisonment, reduced under the slip rule from eight months. His proposed expert evidence addressed the vulnerability of persons using smugglers and the limited ability to challenge their instructions.

The appeal concerned whether the reasonable-excuse defence under section 2(4)(c) should have been left to the jury, and whether the appellant also had to explain the non-production of a false passport used during the journey.

1. Appeal allowed. The conviction was quashed. The prosecution should not have sought, and the judge should not have made, a ruling before the trial began that no defence was available. The proper occasion to consider directions on the statutory defence was after the evidence had been heard.

2. A judge may withdraw a defence from the jury only where there is no evidence whatever capable of supporting it, or where the explanation is legally incapable of amounting to the defence on the true construction and purpose of the statute. A defence cannot be withdrawn because the judge considers that a favourable verdict would be perverse. That would usurp the jury’s function. This approach followed Wang [2005] 2 Cr App R 8 and the majority reasoning in DPP v Stonehouse [1978] AC 55. Kelleher [2003] EWCA Crim 3525 illustrated the exceptional case where an explanation is legally incapable of providing an excuse.

3. Reasonable excuse is an ordinary expression requiring the jury’s evaluative judgment. The qualifications in section 2(7) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 were likewise for the jury to apply to the facts found. On the available material, a jury could reasonably find that it was unreasonable to expect the appellant not to comply with the agent’s instruction to hand over his passport.

4. The suggestion in Clancy (2012) EWCA Crim 8 that a judge could withdraw a good-reason defence where a favourable finding would be perverse was per incuriam because Wang had not been cited. It was contrary to Wang.

5. Following Soe Thet v DPP [2006] EWHC 2701(Admin), the section 2(4)(c) defence concerned the absence of a genuine, valid identity document. It did not require the appellant also to establish a reasonable excuse for failing to produce a false passport. Section 2(4)(d) created a distinct alternative defence.

• Court of Appeal (Criminal Division): allowed the appeal and quashed the conviction: [2013] EWCA Crim 435.
• Isleworth Crown Court: after ruling before trial that no defence was available, the judge accepted the appellant’s guilty plea and imposed imprisonment, later reduced from eight to five months under the slip rule.