R v Mirahessari & Or

Section 36 of the Malicious Damage Act 1861 creates an offence of basic intent. It is enough to prove that a defendant deliberately committed an unlawful act which directly and naturally caused railway traffic to be stopped. An obstruction need not be physical.

Article 31 of the 1951 UN Convention Relating to the Status of Refugees does not provide a general domestic defence beyond the limited statutory defence in section 31 of the Immigration and Asylum Act 1999. Residual protection against prosecution depends on the particular offence and facts. It does not extend to dangerous conduct which goes materially beyond document or deception offences and is not reasonably or necessarily committed in flight from persecution.

The applicants entered the Channel Tunnel on foot with a large group attempting to enter the United Kingdom from France. Rail traffic was suspended because persons, including the applicants, were in the tunnel. They claimed asylum and were charged under section 36 of the Malicious Damage Act 1861.

Following Her Honour Judge Williams’s ruling in the factually related case of R v Abdul Haroun, which rejected proposed arguments on the elements of the offence and abuse of process, the applicants pleaded guilty. They were each sentenced to 14 months’ imprisonment. They sought leave to appeal against conviction and sentence, contending that the charge should have been dismissed or stayed because of Article 31 of the Refugee Convention, and that the sentences were manifestly excessive.

1. The applications for leave to appeal against conviction and sentence were refused. There was no arguable basis to challenge the convictions, and the sentences were not manifestly excessive.

2. Under section 36 of the Malicious Damage Act 1861, civil trespass was an unlawful act even if it were not also criminal. In this setting, trespass was additionally an offence under the Channel Tunnel Byelaws. Section 36 is an offence of basic intent. The prosecution needed to prove an intention to do the unlawful act, namely entering and walking in the tunnel without lawful right, and knowledge of doing so. It did not need to prove a specific or malicious intent: R v Hadfield (1870) LR 1 CCR 253.

3. The applicants’ conduct directly and naturally caused the suspension of rail traffic. Eurotunnel’s safety response did not break that causal connection. The railway operator would have breached its duty of care, including to trespassers, had it allowed trains to continue when people were on foot in the tunnel. Stopping trains was an obstruction of engines and carriages. Neither section 36 nor the authorities required a physical obstruction: R v Hadfield and R v Hardy (1871) LR 1 CCR 278.

4. Article 31 of the 1951 UN Convention Relating to the Status of Refugees had been incorporated only to the extent enacted in section 31 of the Immigration and Asylum Act 1999. Following R v Afsaw [2008] UKHL 31, the court held that the limited offences in section 31(3) could not be enlarged into a general domestic defence.

5. Residual Article 31 protection could not make this proper charge an abuse of process. The issue depends on the nature of the offence and the facts. The protection concerns breaches reasonably or necessarily committed in flight from persecution. Unlike the coterminous false-passport counts in R v Afsaw, this was dangerous conduct which obstructed railway traffic, affected many travellers and substantially escalated the criminality involved in entry. It was therefore open to the Crown to prosecute.

6. Although the 14-month terms were stiff and at the upper end of the proper range, the severe disruption, delay and financial loss entitled the sentencing judge to treat each offence as serious. The terms were not manifestly excessive.

• Court of Appeal (Criminal Division): The applicants’ applications for leave to appeal against conviction and sentence were refused.

• Crown Court at Canterbury: Following the ruling of Her Honour Judge Williams in R v Abdul Haroun on identical proposed defences, the applicants pleaded guilty to an offence under section 36 of the Malicious Damage Act 1861. Each was sentenced to 14 months’ imprisonment.