R v THR

For the statutory refugee defence, whether an asylum claim was made as soon as reasonably practicable is an objective question, assessed in light of the defendant’s knowledge, intention and mental state. The court must take reasonable steps to facilitate a vulnerable defendant’s participation, including suitable adjustments to questioning and procedure. Where mental-health impairment may have affected the defendant’s evidence or conduct relevant to guilt, the jury must take that impairment into account. Cogent fresh evidence about conditions in a transit country may materially affect the assessment of whether asylum could reasonably have been claimed there. The prosecution must present the defence case fairly. Failures in these respects may create a real risk of an unfair trial and render a conviction unsafe.

Following a trial at the Crown Court at Liverpool, the applicant was convicted of possessing a false identity document with improper intention and sentenced to 18 months’ imprisonment. She appealed against conviction and sentence and applied to adduce fresh evidence.

The fresh evidence concerned her complex post-traumatic stress disorder and depression, the effect of those conditions on her participation and evidence, the treatment of refugees by Greek authorities, and the date on which she had indicated an intention to claim asylum. The central questions were whether the evidence should be admitted and whether, cumulatively, the trial had been unfair or the conviction unsafe.

1. Disposition. The court admitted the fresh evidence, granted leave to appeal and allowed the appeal against conviction. The Crown did not seek a retrial, so no retrial was ordered. The application for leave to appeal against sentence did not require determination.
2. Fresh evidence and mental health. The evidence of Dr Kamara and Mr Knight was cogent and credible. It showed that the applicant’s complex PTSD and depression significantly affected her cognitive processing, memory, comprehension and ability to communicate, particularly when distressed. The evidence was not available at trial through any fault of hers. The interests of justice therefore required its admission under section 23(2) of the Criminal Appeal Act 1968.
3. The evidence established a real risk that the absence of reasonable adjustments had affected the fairness of the trial. Under the Criminal Procedure Rules 2020 and the Criminal Practice Directions 2023, the court must adapt the process to facilitate effective participation. There is no presumption that a defendant must have an intermediary, and appointment is not automatically mandatory. Other adjustments must nevertheless be considered. Had the applicant’s condition been known, the questioning approach would have required modification. The jury should also have been directed to consider whether her impairments affected her presentation and her conduct when producing the false document.
4. Transit-country evidence. Ms Bouchetel’s evidence that Greek state actors returned Turkish refugees was credible and potentially important to the issue under section 31(2) of the Immigration and Asylum Act 1999. In the unusual circumstances of the trial, the evidence might have influenced the jury’s assessment. The court did not suggest that evidence of this kind should normally be obtained or routinely admitted.
5. Timing of the asylum claim. The interview record showed that the applicant’s legal representative had indicated an intention to claim asylum on the evening of her arrival. The Crown accepted that it also had a duty to present this aspect of the case fairly. Overlooking the record gave the jury a materially different picture of the promptness issue and provided a further reason to doubt the safety of the conviction.
6. Those defects, considered cumulatively and principally in light of the fresh psychiatric evidence, created a real risk that the conviction was unsafe.

• Court of Appeal (Criminal Division): In [2026] EWCA Crim 742, the court admitted fresh evidence, granted leave and allowed the appeal against conviction. No retrial was sought.
• Crown Court at Liverpool: Following a trial before His Honour Judge Byrne and a jury, the applicant was convicted and sentenced to 18 months’ imprisonment on 25 October 2023.