In this guest post, Prof Carolyn Hoyle, Director of the Centre for Criminology, builds on Yewa Holiday's earlier discussion of the criminal conviction of asylum seekers in Britain, focusing on the role of the Criminal Case Review Commission (CCRC) in referring such cases to the Court of Appeal. She is currently conducting research on the CCRC, details of which can be found here. Follow Carolyn on Twitter @CarolynHoyle1.

(Image: Johnny Greig Travel Photography/Alamy)
To enter the country with a false passport is a criminal offence. This is, of course, aimed at preventing illegal activity, including trafficking, as well as irregular immigration. However, there is a statutory defence: those who are fleeing persecution should not be prosecuted (Immigration and Asylum Act 1999, s. 31; and Immigration and Asylum (Treatment of Claimants) Act 2004, s. 2). There is now clear evidence that many men and women coming into the UK have been convicted without having been informed of this statutory defence. These vulnerable people have been failed by the UK Border Agency (UKBA), the police, their own defence lawyers, and by the Crown Prosecution Service (CPS). Represented by lawyers who seem to have been unaware of the statutory defence, they have been advised to plead guilty. Some could not have had a legal passport as they entered the country from jurisdictions―such as Eritrea and Somalia―not recognised as legitimate by the British government; others were trafficked across the border. Although their sentences are typically short, the convictions increase their vulnerability: one recent applicant, whose case was quashed by the Court of Appeal, was a qualified teacher who could not have continued with his profession with a conviction. Further, those whose sentence is over 12 months face automatic deportation.
 
Applications to the Criminal Cases Review Commission

Those cases that have been quashed by the Court of Appeal, and those waiting to be heard, have been referred to the Court by the Criminal Cases Review Commission (CCRC). I have spent the past two years conducting research into the CCRC, looking at how it exercises its discretionary powers in identifying and investigating possible miscarriages of justice cases for rehearing by the Court of Appeal. Focusing on six purposive samples―including wrongly convicted asylum seekers―the study brings together analysis of case files, interviews with decision makers, and observations of committee meetings to fully grasp the workings of the CCRC from a sociological perspective, and to understand how discretion operates at the individual and institutional level. But this is also a study of an organisation that is evolving, partly in response to criticisms of its performance but also in reaction to the types of applications it receives and the treatment of applicants by other agencies in the criminal justice process. One such group of applicants are those who consider themselves to have been wrongfully convicted of passport offences.

Established by the Criminal Appeal Act 1995 in the aftermath of high profile miscarriages of justice, the CCRC, a non-governmental body, reviews possible miscarriages of justice in England, Wales and Northern Ireland when applicants have exhausted other avenues of appeal. To decide on referral to the Court of Appeal, the CCRC draws on its own resources of some 41 Case Review Managers, four group leaders, one legal and one investigations advisor, and ten Commissioners (some part time) as well as the Chair. It can commission scientific and expert reports, require disclosure of evidence from public bodies, and instruct police services to carry out investigations. While it has powers and resources beyond those of appeal lawyers, these are not unlimited, and it has to screen out many cases early in the investigatory process if they are not thought to satisfy the ‘real possibility test.’ This test, established by the Criminal Appeal Act 1995, requires the Commission to be satisfied that there is a real possibility that the Court of Appeal will quash the trial verdict as ‘unsafe’ due to fresh argument or evidence not yet considered by the courts.

In the last few years, the CCRC has received over eighty applications from people who have been convicted of passport offences without being informed of their statutory defence. These cases clearly meet the ‘fresh argument’ requirement. It's therefore not surprising that following tenacious investigation by experienced Case Review Managers, including Yewa Holiday (whose article on the law pertaining to these cases appeared in this blog on Wednesday), 21 have been referred to the Court, and the convictions have been quashed in all of the cases referred to date.

While the CCRC recently benefitted from extra government funding, it is still operating on fewer resources than it needs, and that it has enjoyed in years past. However, despite this, the Commission is not content to simply react to applications from those who suspect their conviction to be unlawful; it wishes to discover and encourage applications from others who may be remain wrongly convicted. For an organisation that has been subject to sometimes vitriolic criticism for being risk averse, overly deferential to the Court of Appeal, and insufficiently proactive in its investigations, this would seem to be an interesting organisational shift.

Further, the Commission has received a fair amount of criticism for failing in its public duty to feed back into the criminal process systemic learning from its review of cases. Given that the Commission learns a great deal about what goes wrong in the system, on account of its unique access to the various decisions made in constructing cases for the trial courts, it is better placed than other agencies to develop systemic learning and keep the system honest. The current Chair of the Commission, Richard Foster, is aware that the CCRC has not always fully achieved this goal and is keen to develop a more effective and accountable feedback system. These cases have presented the Commission with the opportunity to do this, an opportunity that it seems to welcome. The CCRC has run various articles in the legal practitioner journals and contacted those charities that support immigrants to try to inform defence lawyers and others about these cases in order to prevent further such prosecutions. Mr Foster recently raised the matter with Parliament, but the question remains: who is responsible for ensuring that others, who have not yet sought review of their cases, who are likely ignorant of any defence, get access to justice?

Where does responsibility lie?

Richard Foster believes that while the number of asylum cases coming to the attention of the CCRC has risen dramatically over the past year, there may be hundreds more wrongly convicted people who have not benefited from their statutory defence. He's not content to merely react to those who find their way into the CCRC, but is trying to seek out more cases. However, the Commission doesn't have the resources or the jurisdiction to do this alone. In the past, when specific individual cases or groups of cases have alerted the CCRC to systemic failings that are likely to affect many other cases, it has engaged successfully with the CPS to find and refer back to the Court of Appeal similar cases. Two obvious examples are the DNA cases following the quashing of Sean Hodgson’s conviction for murder and the ‘shaken baby’ cases following the Court’s decision to overturn Sally Clark’s conviction for murder. But the CCRC’s recent efforts to create systemic momentum in the asylum cases seem not yet to be bearing fruit.

The Commission has written to all the relevant agencies, such as the UKBA, the defence Bar and solicitors’ regulatory authorities, and of course the CPS, in order to identify further possible cases and facilitate systemic learning. Mr Foster has met with the former Director of Public Prosecutions (DPP), Kier Starmer, and more recently with the current DPP, Alison Saunders, to try to persuade them that the CPS needs to review all such cases from the past few years, and identify those that might be wrongfully convicted. While the CPS has made it clear that this would not be an easy task, due to its own resource limitations and the difficulties of identifying such cases on their computerized databases, it hasn't refused to help.

This raises an important question: who is accountable and who should take responsibility for these wrongly convicted asylum seekers?

Although it is true that defence lawyers should be held to account and where possible identify those cases where they provided the wrong advice, it seems to me that the main organisation with both responsibility and resources to try to prevent further cases, as well as identify those convicted who have not yet sought help from the CCRC, must be the CPS. This is the state prosecuting authority, the organisation that took the decision to prosecute in cases where a proper understanding of the law should not have led to a prosecution, which could of course be considered an abuse of process. Surely it has the primary responsibility for putting this right?

It will be interesting to watch how this issue plays out across these various organisations, and to see if the CCRC really is becoming more proactive as an organisation and more committed to engaging with the rest of the system. The research that I'm currently conducting at the CCRC (with Dr Mai Sato) should―in time―provide some answers to these questions. But meanwhile there are an unknown number of foreign men and women in our prisons who should not be there, and someone needs to resolve this matter soon.

For further reading on the prosecution of asylum seekers, please see the following Border Criminologies blog posts: Yewa Holiday's A Place of Greater Safety: The Prosecution of Refugees for Passport Offences and Ana Aliverti's UK Court of Appeal Quashes Convictions for Document Fraud against Asylum Seekers.

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How to cite this blog post (Harvard style):

Hoyle, C. (2014) Wrongly Convicted Asylum Seekers: Whose Responsibility? Available at: http://bordercriminologies.law.ox.ac.uk/wrongly-convicted/ (Accessed [date]).