R v AUS

Where a defendant pleaded guilty without being advised of a statutory defence which would probably have succeeded, the omission may amount to a clear injustice. The Court of Appeal may extend time, grant leave and quash the conviction, even after many years, where refusal would cause significant injustice. The section 31 defence under the Immigration and Asylum Act 1999 can apply to a refugee who used false documents during flight from persecution and made short stopovers in other countries. An extension of time is governed by the interests of justice, balancing finality and administration against the justice of the case and the individual’s liberty.

The applicant, a Somali national, pleaded guilty in 2010 at the Crown Court at Chelmsford to possessing a false identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006, and was sentenced to 12 months’ imprisonment. She later obtained refugee status and instructed specialist criminal solicitors, who advised her that section 31 of the Immigration and Asylum Act 1999 might provide a defence. She applied, out of time, for leave to appeal, relying on fresh evidence under section 23 of the Criminal Appeal Act 1968 and asserting that she had not been advised of the defence. The respondent ultimately did not oppose the application. The central issues were whether time should be extended, whether leave should be granted, and whether the conviction should be quashed.

1. Disposition. The court received the fresh evidence, granted the extension of time and leave to appeal, allowed the appeal and quashed the conviction.
2. The parties’ agreement did not determine the application. The court independently assessed the outcome. At the time of the guilty plea, the applicant had supplied sufficient evidence to raise refugee status, so the prosecution bore the criminal burden of proving that she was not a refugee. She could probably have established the remaining section 31 requirements, including the effect of her stopovers, prompt presentation to the UK authorities and good cause for using a false identity document.
3. Legal representatives advising defendants charged with possession of an identity document with intent are under a duty to advise them of a possible section 31 defence. The defendant must thereby be enabled to make an informed decision whether to advance it.
4. Under R v Boal [1992] QB 591, reaffirmed in R v Tredget [2022] EWCA Crim 108, intervention after a guilty plea is confined to exceptional cases where the defence would quite probably have succeeded and a clear injustice has resulted.
5. The very long delay did not prevent relief. The question was whether an extension was in the interests of justice, taking account of finality, other litigants, resources and administration, together with the justice of the case and the individual’s liberty. Refusal would cause significant injustice.

• Court of Appeal (Criminal Division): The court granted an extension of time, received fresh evidence, granted leave to appeal, allowed the appeal and quashed the conviction.
• Crown Court at Chelmsford: The applicant pleaded guilty in 2010 to possessing a false identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006, and received 12 months’ imprisonment.