R v Ismail Omar Musa

For an out-of-time criminal appeal based on a change in law, faithful application of the law then in force does not by itself justify relief. The applicant must show good reason for the delay and substantial injustice if an extension and leave are refused. The continuing impact of the conviction is highly material. A guilty plea is treated as a nullity only exceptionally, where the overlooked defence would quite probably have succeeded and a clear injustice resulted. The statutory refugee defence requires proof of refugee status and, after refusal of an asylum claim, the defendant bears that burden on the balance of probabilities. A stop in another country is not automatically fatal, but the statutory protection condition must be met where engaged. Fresh evidence cannot justify an appeal if it cannot afford a successful ground.

The applicant pleaded guilty in the Crown Court at Manchester, Minshull Street, to possession of an identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006. He sought an extension of about ten years and five months and leave to appeal, arguing that he had been wrongly advised because counsel had not advised him about the section 31 defence under the Immigration and Asylum Act 1999.

He relied on fresh expert evidence concerning torture, mental health and conditions in Somalia. His earlier asylum claim had been rejected, and a later First-tier Tribunal decision allowed his appeal on humanitarian and human rights grounds but did not find him to be a refugee. The central issues were whether the guilty plea was a nullity, whether the defence would probably have succeeded, and whether refusing an extension would cause substantial injustice.

1. Change in law and delay. The court treated the application as one based on a change in law. Applying the principle in R v Jogee [2016] UKSC 8, faithful application of the law as it stood at the time does not by itself justify an out-of-time appeal. The applicant had to show good reason for the very long delay and substantial injustice if an extension and leave were refused. The court also applied R v Ordu [2017] EWCA Crim 4, treating the continuing impact of the conviction as highly material.
2. Section 31 defence. The court applied the staged approach explained in R v Mateta [2013] EWCA Crim 1372, [2014] 1 WLR 1516. The defence applies only to a refugee. Because the applicant’s asylum claim had been refused, he bore the legal burden under section 31(7) of the Immigration and Asylum Act 1999 to prove on the balance of probabilities that he was a refugee. The findings of the immigration judge and later specialist tribunal gave no realistic prospect of satisfying that burden. The proposed expert evidence did not alter that conclusion.
3. Even if the applicant had been a refugee, his transit through Belgium engaged section 31(2). He would have had to show that he could not reasonably have expected protection under the Refugee Convention there. The material before the court did not suggest that he could make that showing. The later decision in R v Asfaw [2008] UKHL 31 meant that a short transit stop was not necessarily fatal, but it did not remove the statutory requirement where it applied.
4. Guilty plea and substantial injustice. Under the principle in R v Boal [1992] QB 591, as explained in R v Mateta, intervention is exceptional where a defendant pleads guilty. The applicant had to show that the defence would quite probably have succeeded and that a clear injustice had resulted. Counsel could not be criticised for advising on the law as it then stood, and the defence had no realistic prospect of success. Independently, substantial injustice was not shown: the applicant had remained in the United Kingdom following later immigration proceedings, and the deportation consequences arose from his unchallenged 2011 conviction rather than this conviction.
5. The court declined to receive the expert reports as fresh evidence under section 23 of the Criminal Appeal Act 1968. Although they might have met other statutory criteria, they could not afford a successful ground of appeal. The applications for an extension of time and leave to appeal were refused.

1. Court of Appeal (Criminal Division): refused the application for an extension of time and leave to appeal, and declined to receive the proposed fresh evidence, in [2024] EWCA Crim 307.
2. Crown Court at Manchester, Minshull Street: the applicant pleaded guilty to possession of an identity document with intent and was sentenced to ten months’ imprisonment.