Post by Mai Sato and Carolyn Hoyle. Mai is Lecturer of Criminal Law/Criminology at the University of Reading and Carolyn is Professor of Criminology at the University of Oxford. This blog post provides a summary of the arguments they developed in an article recently published with Criminal Law Review. This is the second instalment of Border Criminologies’ themed posts on wrongful convictions of asylum seekers organized by Ana Aliverti.

Mr B, a Somali national, fled Somalia after he and his family had been detained by a militia group and tortured. His father and brothers had been murdered, his wife, and sisters raped; only he escaped with the assistance of a relative who bribed officials at various borders. His relative secured the services of an Agent who was paid to get Mr B into the UK. At Gatwick airport, he was detained for entering the UK without appropriate documentation (a valid passport). He had pled guilty at trial, on the advice of his legal representative, and was convicted in 2007. While he told the immigration officer that he had been unable to secure appropriate documentation in Somalia, as it has not had a passport-issuing authority since 1991, he was told that he should have claimed asylum in one of the other countries he had passed through on his way to the UK, such as Greece, even though he had not known this and had not left the airport in any of them. He was advised to plead guilty as he has been ‘country-hopping’. While in custody he was threatened with deportation back to Somalia.

Photo: Neil Hall
Mr B, like a great many others in similar circumstances over the past decade, applied to the Criminal Cases Review Commission (CCRC) in the hope that his case might be referred back to the Court of Appeal. Those who believe they have been wrongly convicted, and have exhausted other avenues of appeal, can apply to the CCRC to have their case reviewed, as a measure of last resort. In most cases, for this to happen, there must be a new argument or evidence not raised at trial or on appeal that presents a realistic chance that the appeal court would overturn the conviction. The CCRC is the only body with the power to refer cases back to the appeal court for a re-hearing and a final decision on whether a conviction should be upheld or quashed.

In Mr B’s case, the CCRC referred the case back to the Court, arguing that he is a refugee who was prosecuted in circumstances that deprived him of any defence, when he had a reasonable prospect of success under s31 Immigration and Asylum Act 1999 which provides a statutory defence against a list of identity- and immigration-related offences relevant to refugees and asylum seekers. It argued that the legal advice given to him was incorrect and had such a bearing on his wrongful conviction that there was a real possibility the Court of Appeal would regard his conviction as a nullity. And indeed they did. They quashed his conviction as they did another 31 of the 43 similar convictions referred back to the Court by Spring 2016.

A new article published this month in the Criminal Law Review considers the CCRC’s handling of applications from refugees and asylum seekers who claim to have been wrongly convicted of entering the UK illegally. These cases commonly relate to people who could not obtain travel documents lawfully and were erroneously advised by defence lawyers that they should plead guilty (as also discussed by Yewa Holiday’s and Ana Aliverti’s blog posts on Border Criminologies). While many asylum seekers and refugees have found relief by applying to the CCRC, this has come after years of suffering among this vulnerable population.

Had defence lawyers been aware of the statutory defences available, many wrongful convictions of asylum seekers and refugees could have been prevented. However, these are not the only people responsible. These convictions of asylum seekers demonstrate a wider organisational bias influencing decision-making across all criminal justice agencies. The UK Border Agency (now Border Force), tasked with "cracking down" on abuse of immigration rules, relied on criminal law instead of dealing with migrants administratively. The Crown Prosecution Service (CPS) proceeded with prosecutions where there was no case to answer, and defence lawyers failed to advise their clients of their defence under s.31 of the Immigration and Asylum Act 1999 and s.2 of the Asylum and Immigration (Treatment of Claimants. Etc.) Act 2004. In turn, the courts wrongly convicted refugees and asylum seekers, causing further harm to people who had fled intolerable living conditions in their country of origin.

When asylum cases first reached the CCRC, it also erred by rejecting some of these early applications. The CCRC – along with other criminal justice agencies – may have been influenced by what Tversky and Kahneman called the "reference point bias". During decision-making, certain information ("anchors") can sometimes dominate judgements. An "anchor" can frame what is relevant to consider and what solutions are worth considering. The existence of guilty pleas or the political and legislative discourse that portrayed migrants as undeserving since the late 1990s may have operated as anchors, leading those responsible for screening to miss these unsafe convictions until they were identified as a distinct category of cases.

The wrongful convictions of asylum seekers and refugees also reflect, to some extent, a shift in society towards what David Garland has called the Culture of Control —the increased public desire for more punitive measures responded to by the expansion of formal social control. The widespread political and public desire to control and criminalise migration, and the portrayal of migrants as deviant, may have operated as "anchors", leading criminal justice agencies to overlook their statutory protection and move from a "due process model" to a "crime control model" in such cases. In other words, alongside the failure of defence lawyers, a host of other agencies were operating within a culture of "crimmigration" anchoring.

When it became aware that there were more than just a handful of cases and that the sheer numbers of similar unsafe convictions reflected systemic failings, the CCRC adopted an – for them unusual - initiative of communicating directly and critically with criminal justice and related agencies about the failings in ‘asylum cases’. While the number of such applications is now declining – as prosecutors in particular become better aware of the defences in law – there remain a steady trickle of applications, suggesting only partial success in holding the criminal justice system to account. The CCRC has received criticism from some who believe it should not focus its limited resources on ‘less serious’ cases, particularly those arising from guilty pleas in the magistrates’ courts. In our view, the CCRC was right to speak up and remind agencies about the protection asylum seekers and refugees are entitled to under the 1951 Refugee Convention. Convictions in the English courts of those fleeing abuse and persecution should shame us all and the CCRC should be applauded for its strong intervention in these cases.

Note: The article forms part of the larger project ‘Last Resorts: Decisions and Discretion at the Criminal Cases Review Commission of decision making within the Criminal Cases Review Commission’. Our project sought to understand how the CCRC exercises its discretionary powers in deciding whether to refer possible wrongful convictions to the Court of Appeal. It focused on six ‘purposive’ sample of cases: contemporary sexual assault cases; historical, institutional abuse cases; cases that turn on expert evidence; passport/asylum cases; cases that have involved investigation by a police force (Section 19, Criminal Appeal Act 1995); and Court of Appeal directed cases (Section 15, Criminal Appeal Act 1995). We are currently writing up our findings and we plan to publish a book at the end of 2017. The article was made possible by the University of Oxford John Fell Fund "The CCRC’s Response to Wrongfully Convicted Asylum Seekers", 2015 (project number: BAD08360) and the Leverhulme Trust Research Project Grant "Last Resorts: Decisions and Discretion at the Criminal Cases Review Commission", 2013–2015. The full article is available to download from Westlaw: Sato, M., Hoyle, C., and Speechley, N-E., (2017) ‘Wrongful convictions of refugees and asylum seekers: responses by the Criminal Cases Review Commission’, Criminal Law Review, Issue 2, pp.106-122.

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How to cite this blog post (Harvard style)

Sato, M. and Hoyle, C. (2017) New Article: Criminal Cases Review Commission’s Response to Wrongful Convictions of Refugees and Asylum Seekers. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/03/new-article (Accessed [date]).