Ordu v R

A correction in the judicial understanding of the law does not, without more, justify an exceptional extension of time to appeal against conviction. The applicant must show that refusing leave would cause substantial injustice, not merely that the conviction would now be unsafe. The strength of the proposed appeal, the continuing effect of the conviction, other relevant conduct, and any delay after discovering the possible appeal may be material.

The test for setting aside a guilty-plea conviction is distinct. A probable clear injustice on the merits does not itself establish substantial injustice for the purpose of a very late application. Where a conviction is spent and has no practical continuing consequences, refusal of an extension will ordinarily cause no substantial injustice.

The applicant pleaded guilty in the Crown Court at Chelmsford in October 2007 to possessing identity documents with intent, contrary to section 25 of the Identity Cards Act 2006, and received nine months’ imprisonment.

He had travelled to the United Kingdom through Germany while fleeing persecution and claimed asylum when detained using a false passport. His asylum appeal later succeeded. Following the House of Lords’ later construction of the refugee defence in section 31 of the Immigration and Asylum Act 1999, he applied in February 2016 for an extension of time, eight years and three months after conviction, to seek leave to appeal.

The Crown accepted that the statutory defence might well have succeeded and that the conviction would probably be unsafe if an extension were granted. The central issue was whether the applicant had nevertheless shown the substantial injustice required for an exceptional, change-of-law extension of time.

1. Application refused. The court declined to extend time for an application for leave to appeal against conviction. It accepted that, if an extension were granted, the section 31 defence under the Immigration and Asylum Act 1999 would probably have succeeded and the conviction would probably be unsafe.

2. The governing test was that stated in R v Johnson and others [2016] EWCA Crim 1613, following R v Jogee [2016] UKSC 8. A change in the understanding of the law does not itself warrant an extension. The applicant must demonstrate that refusal would cause substantial injustice. The probable merits of the appeal are important, but the continuing practical effect of the conviction is also highly material.

3. The court distinguished the test in R v Boal for quashing a guilty-plea conviction as unsafe under section 2(1) of the Criminal Appeal Act 1968. That test concerns clear injustice and safety. The exceptional extension test requires more: an unsafe conviction alone cannot automatically justify leave many years out of time.

4. The relevant legal change occurred when the House of Lords decided R v Asfaw [2008] UKHL 31, not when later Court of Appeal decisions gave guidance on the operation of section 31. The unreasoned extensions granted in R v AM and other cases and R v Mateta and other cases did not authoritatively determine the exceptional-extension issue, particularly because they pre-dated Jogee and Johnson and others.

5. The applicant had served his sentence and licence period in 2008. His conviction was spent under section 5(2) of the Rehabilitation of Offenders Act 1974, and he had since obtained indefinite leave to remain and British nationality. Quashing the conviction would make no practical difference to his life. Section 31(8) of the 1999 Act created a route to the CCRC for pre-commencement convictions; it did not displace the ordinary appellate rules for later convictions. No substantial injustice would result from refusal.

• Court of Appeal (Criminal Division): refused the applicant an exceptional extension of time to seek leave to appeal against conviction in [2017] EWCA Crim 4.
• Crown Court at Chelmsford: following a guilty plea, convicted the applicant of possessing identity documents with intent and sentenced him to nine months’ imprisonment on 23 October 2007.