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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> YY v R. [2016] EWCA Crim 18 (26 February 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/18.html Cite as: [2016] EWCA Crim 18

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT LEWES
His Honour Judge Tain (T20117111)
AND ON APPEAL FROM THE CROWN COURT AT ISLEWORTH
Miss Recorder Glynn Q.C. (T20070799)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/02/2016

Sir Brian Leveson P :

1. Once again, it is necessary to analyse the safety of convictions arising from prosecutions for passport and document related offences which lead to guilty pleas by those who, at the time or subsequently, seek asylum or other humanitarian protection. Thus, on 11 September 2008, in the Crown Court at Isleworth before Miss Recorder Glynn Q.C., Ayad Nori pleaded guilty to entering the United Kingdom without a passport contrary to s. 2(1) and (9) of the Asylum and Immigration (Treatment of Claimants) Act 2004. He was sentenced to 12 weeks imprisonment suspended for 12 months with a residence requirement. Similarly, on 26 April 2011, in the Crown Court at Lewes before His Honour Judge Tain, YY (to whom we grant anonymity) pleaded guilty to the offence of possession of false identity documents without reasonable excuse contrary to s. 6 of the Identity Documents Act 2010. He was sentenced to 6 months imprisonment.
2. Neither sought to appeal to the Court of Appeal (Criminal Division) either in time or thereafter; seven years have passed since Nori's conviction and over four years since YY's conviction. Instead, both applied to the Criminal Cases Review Commission ("CCRC") and both convictions have been referred to this court pursuant to the provisions of s. 9 of the Criminal Appeal Act 1995: we return to this aspect of the cases below. In any event, in both cases, it is contended that the men could have relied upon statutory defences of which they were unaware and not appropriately advised. We shall turn to the individual facts of the appeals having first rehearsed the law in relation to appeals following unequivocal pleas of guilty.
3. In R v Mohamed Abdalla, R v V(M), R v Mohamed (Rahma Abukar), R v Nofallah [2011] 1 Cr App R 35; [2010] EWCA Crim 2400 ("R v MA"), this court held that there is an obligation on those representing defendants charged with an offences under the Identity Cards Act 2006 (now to be found in the Identity Documents Act 2010) to advise them of the existence of a possible defence based not on any provision in that Act but on s. 31 of the Immigration and Asylum Act 1999; similar issues arise in relation to the offences and defences contained in s. 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004.
4. In relation to the former legislation, the court did so in the following terms (at [10]-[13] and [56]):

"10. The upshot […] is that it is open to anyone charged with an offence under s.25(1) of the 2006 Act to adduce sufficient material to raise an issue that he or she is a refugee and entitled to the protection of s.31 of the 1999 Act whereupon the burden of disproving that defence will fall upon the prosecution: see R. v Makuwa [2006] EWCA Crim 175; [2006] 2 Cr. App. R. 11 (p.184). It is thus critical that those advising defendants charged with such an offence make clear the parameters of the defence (including the limitations and potential difficulties) so that the defendant can make an informed choice whether or not to seek to advance it.

11. There is no doubt that this court can entertain an application for leave to appeal against conviction on the grounds that a tendered guilty plea was a nullity. The limited basis of that jurisdiction was explained in R. v Evans [2009] EWCA Crim 2243) by Thomas L.J. in these terms (at [52]):

"The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial 'is actually no trial at all' (see the opinion of Lord Atkinson in Crane v DPP [1921] 2 AC 299 at 330) or where there has been 'some irregularity in procedure which prevents the trial ever having been validly commenced' (see the opinion of Lord Diplock in Rose (1982) 75 Cr App R 322 at 336."

12. The test for a plea to be held a nullity was elaborated (per Scott Baker L.J. in R. v Saik [2004] EWCA Crim 2936) as requiring the facts to be so strong as to demonstrate that there is no true acknowledgment of guilt with the advice going to the heart of the plea so that it was not "a free plea". It is, however, important not to water down the underlying concept of the jurisdiction so as to bring nullity into play purely on the basis of advice alleged to be wrong. For those circumstances, there remains a basis on which this court can intervene which is firmly grounded in the safety of the conviction. Thus, in R. v Lee (Bruce) (1984) 79 Cr. App. R. 108, the approach was articulated by Ackner L.J. in this way at 113:

"The fact that Lee was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although these factors highly relevant to whether the convictions, or any of them, were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications."

13. This alternative approach was adopted in R. v Boal (1992) 95 Cr. App. R. 272 which concerned the failure to challenge what was held to be the erroneous assumption that an assistant general manager at a bookshop, responsible for the shop during a week in which the manager was absent, was a manager within s.23(1) of the Fire Precautions Act 1971 . In quashing the conviction that followed guilty pleas based on that assumption (observing that the appellant "was deprived of what was in all likelihood a good defence in law"), Simon Brown L.J. also made clear the additional hurdle that had to be overcome when he said at 278:

"This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often."

[…]

56. These cases are characterised by allegations that those advising illegal entrants to this country have simply failed to ensure that the scope of the potential defences to an allegation of breach of s.25 of the 2006 Act have fully been explored. If the circumstances and instructions generate the possibility of mounting a defence under s.31 of the 1999 Act, there is simply no excuse for a failure to do so and, at the same time, properly to note both the instructions received and the advice given. If these steps are taken, cases such as the four with which the court has just dealt will not recur and considerable public expense (both in the imprisonment of those convicted and in the pursuit of an appeal which will involve evidence and waiver of privilege) will be avoided."

5. In R v Ali Reza Sadighpour [2012] EWCA Crim 2669, the Court of Appeal further held that if the appellant's case has reached the stage of the First-tier Tribunal (Immigration and Asylum Chamber) and if the latter's decision is available, it is appropriate for the Court of Appeal to assess the prospects of an asylum defence succeeding by reference to the tribunal's findings. It did so in these terms (at [35]-[36]):

"35. We are therefore satisfied that it is appropriate to have regard to the Tribunal's decision in assessing the Appellant's prospects under Section 31 on any retrial. After all, the Tribunal is a properly constituted judicial body. Its members have particular specialist experience in dealing with matters pertaining to immigration and asylum. The Appellant was able to deploy his full arguments and call relevant witnesses. The evidence was fully tested. Both parties made their respective submissions, and a fully reasoned judgment was reached.

36. As already stated, paragraph 31(7) provides if the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is taken not to be a refugee unless he shows that he is."

6. Distilling these passages from R v MA and Sadighpour, in R v Mateta [2013] EWCA Crim 1372, [2014] 1 WLR 1516, [2013] 2 Cr App R 35, the court summarised the main elements of an accused's entitlement to advice on the s. 31 defence as follows (at [24]):

"i) There is an obligation on those representing defendants charged with an offence of possession of an identity document with improper intention to advise them of the existence of a possible section 31 defence if the circumstances and instructions generate the possibility of mounting this defence, and they should explain its parameters (R v MA [10]).

ii) The advisers should properly note the instructions received and the advice given (R v MA [56]).

iii) If an accused's representatives failed to advise him about the availability of this defence, on an appeal to the Court of Appeal Criminal Division the court will assess whether the defence would "quite probably" have succeeded (R v MA [13]).

iv) It is appropriate for the Court of Appeal to assess the prospects of an asylum defence succeeding by reference to the findings of the First Tier Tribunal (Immigration and Asylum Chamber), if available (Sadighpour) [35])."

7. These principles are equally applicable to advice on whether a defendant charged with an offence under section 2 of the 2004 Act also has a defence under that section; the complication in relation to s. 31 was that the defence was not identified in the statute which created the defence and, on occasion, had been overlooked.

YY

8. This appellant, who is an Iranian national, presented himself to an immigration desk at Gatwick airport on 11 February 2011, together with an Israeli passport in the name of Levi Samir. When the immigration officer challenged him as to whether that passport was genuine, he admitted that it was false, that he was Iranian, and that he wished to seek asylum in the UK. He was arrested.
9. At his screening interview the following day, he told the interviewing immigration officers of his true identity and said that he had fled Iran because his life was in danger because he had committed adultery. He had fled from Iran to Iraq on his own passport and had used an agent who directed him and controlled his movements and documentation. He had travelled from Iraq to Turkey and then flew to a destination that he did not know from where he was collected and transported by road to the airport (in France) from which he flew to the United Kingdom.
10. On 13 February 2011, the appellant was interviewed by police in the presence of an interpreter and a duty solicitor: he responded to all questions by making no comment. He did so, on advice, on the basis that it would not assist his asylum claim to provide the police with a different account to that advanced in the screening interview. The duty solicitor has stated (without contradiction by Mr Richard Thomas who now appears for the appellant), that his instructions were that he left Iran solely because he had committed adultery and feared that he would come to harm. He also admitted to his solicitors that he had lied to the authorities about his movements and circumstances.
11. The appellant was initially charged with an offence of possession of a false passport with intent contrary to s. 4 of the Identity Documents Act 2010 which required proof of improper intention to use the passport to establish personal information about himself. Given his behaviour at passport control (admitting his true identity), the solicitor advised that he should successfully maintain a defence to that charge. The solicitor was, however, conscious (correctly) that he could not maintain an arguable defence under s. 31 of the Immigration and Asylum Act 1981 on the basis that he was not a refugee. On 25 February 2011, the appellant appeared before the Crown Court but did not enter a plea. There then followed correspondence between the solicitors and the Crown Prosecution Service ("CPS") ventilating this issue.
12. On 6 April 2011, the appellant was re-interviewed by immigration officers by way of an asylum interview. He stated that he married a girlfriend of his choice and that they had been forced apart by her family and had ultimately divorced. She had re-married but they had met again and been involved in an affair. Her husband had discovered this and he had made a complaint causing the authorities to search for him. During a search, the authorities had found a leaflet about conversion from Islam to Christianity. These factors taken together, the appellant believed that his life was in real danger.
13. On 26 April 2011, the appellant appeared before the Crown Court at Lewes sitting in Brighton. Prior to the hearing, submissions had successfully been made to the prosecutor that he did not have an improper intent to use the passport as would be necessary for an offence under s. 4. The result was that the indictment was amended to add the lesser count of possession of a false passport without reasonable excuse contrary to s. 6 of the 2010 Act. The solicitor explains:

"That was the case plan explained to [YY] at the preliminary hearing with the help of an interpreter, and although I saw him before the hearing without an interpreter, it was not new ground and I was completely satisfied that [YY] understood his position."

14. The appellant then pleaded guilty to that offence. The solicitor went on to make it clear that at no time during the prosecution did his client mention Christianity and his sur place conversion after its conclusion could not have a bearing on the conduct of the case. With an interpreter after the hearing, neither doubt nor misgiving was expressed about either the appellant's representation or the outcome of the case.
15. Thereafter, in a further asylum interview on 2 June 2011, the appellant restated he would have problems if he returned to Iran and would be executed for committing adultery (his family had received a court summons in Iran). He added that the Iranian authorities had found material on converting from Islam to Christianity and added that he had wished to convert to Christianity before he left Iran. The authorities had also found CDs containing anti-government material, including in regard to a demonstration held on 29 December 2009. The material was discovered in what now totalled five separate searches of the appellant's family home. In his last interview on 25 April 2013, the appellant stated that he had been introduced to Christianity by an American neighbour in Iran. However, it appears from the asylum decision made by the Secretary of State for the Home Department ("SSHD") that he had not yet contacted the local priest. The appellant was granted asylum by the home office on 7 May 2013.
16. Therefore, irrespective of whether the appellant had in fact considered converting to Christianity while in Iran and, if so, whether this amounted to a reason for his persecution, the evidence shows that at no stage during the criminal proceedings did the appellant give instructions to this effect to the solicitors representing him. The criminal case proceeded on the basis that he fled Iran because he had committed adultery.
17. The difficulty with that proposition is contained within ME Iran CG [2003] UKIAT 166, in which the Immigration Appeal Tribunal held that Iranian male adulterers were not members of a "particular social group" for the purpose of the Refugee Convention. In that case, the appellant had had an adulterous relationship with a woman and argued, for that reason, he was part of a particular social group. However, the Immigration Appeal Tribunal reasoned (at [11]):

"… the principal factors relied upon to identify him as a particular social group amounted to no more than those which defined his persecution. He was persecuted because he was an adulterer who had transgressed Iranian law. The argument for a particular social group in this case is wholly circular."

18. In the light of the authorities, notwithstanding the reason proffered by the CCRC for the reference to the court, for good reason, it is not argued that this defence was not considered or that there was the possibility of mounting a defence under s. 31 of the 1999 Act. Rather, it is submitted that there was inadequate advice as to the prospect of his mounting a reasonable excuse pursuant to s. 6 of the 2010 Act on the basis that evidence might be available as to the risks faced by male adulterers in Iran. As to that defence, the solicitor accepts that explicit advice on this issue was not provided but goes on:

"Given that he was not in law a refugee and given that he knew full well that the passport he had travelled on through many safe states in Europe was not genuine, he had raised no good cause for having it in his possession and no such advice was required."

19. It is clear that the appellant's solicitor was familiar with the law in this area and, reverting to the observations of Simon Brown LJ in Boal, we are far from clear that "some possible line of defence" was overlooked. Even if it was, however, for the reasons advanced by his solicitor in relation to his possession of the passport in this country, we are not able to conclude that the defence would quite probably have succeeded let alone that a clear injustice has been done.
20. For good reason, the ground on which this case was referred by the CCRC has not been pursued and, in the circumstances, we decline to give leave to argue that the prospects of succeeding in a defence based on s. 6 of the 2010 Act (which the CCRC did not consider). This appeal, therefore, is dismissed.

Ayad Nori

21. On 20 October 2007, this appellant arrived at Heathrow airport with wife and two daughters and promptly told an immigration officer that that he did not have a passport. He identified himself as an Iraqi national and claimed asylum.
22. In a screening interview that afternoon, the appellant stated that he had left Iraq on 15 September 2007, because his life was in danger. He travelled by car to Syria with his family where he remained until 1 or 5 October 2007, when they flew to Ankara, Turkey; for this journey, the appellant and his family used their genuine Iraqi passports although he explained that he was required to hand over these passports to the agent when they arrived in Ankara. The family then stayed in a flat in Turkey until they were taken by car to another flat some five or six hours away (which may or may not have been in Turkey). He explained that he did not claim asylum in Turkey because Turkey does not accept Iraqi asylum seekers and he had agreed with the agent that they would be brought to the UK. The appellant further explained that the family flew to the UK on passports given to them by the agent saying that he did not know whether they were the family's genuine Iraqi passports or false passports: they were taken by the agent after check-in and were not in the family's possession on landing at Heathrow.
23. That evening, the Chief Immigration Officer on duty considered the appellant's interview, particularly with regard to the suspected commission by him of an offence contrary to s. 2(1) of the 2004 Act. He decided that the appellant did not have a "reasonable excuse" within the meaning of s. 2(4)(c) of the 2004 Act for presenting himself at Passport Control without a passport. The next day, on 21 October 2007, the appellant was arrested and was interviewed under caution when he repeated that his genuine passport had been seized by the agent, who had commanded "don't ask questions. [D]o as I tell you". He also repeated that the agent had taken back the passports he had handed the appellant and his family before boarding.
24. Following the interview, the appellant was charged with an offence contrary to s. 2(1) of the 2004 Act. Later that same evening, the Chief Immigration Officer on duty further interviewed the appellant under caution through an interpreter. The main thrust of what the appellant said was again that the agent would not have helped the family if they had not handed back to him the passports, the agent instructing the appellant to "obey" him. Further, returning to Iraq would mean death for him and his family at the hands of the Almehdi Army.
25. On 11 December 2007, the appellant was interviewed by the Home Office in connection with his asylum claim. This claim was rejected by the Home Office on 4 January 2008: significant aspects of the appellant's evidence were rejected on the ground that they lacked plausibility, were uncorroborated or contradicted by the evidence of the appellant's wife. The appellant was instead granted humanitarian protection on the basis that he would face a real risk of suffering serious harm if returned from the UK.
26. In regard to the criminal proceedings, on 2 January 2008, there was a plea and case management hearing at Isleworth Crown Court; on 20 May 2008 (after the appellant's solicitors had invited the CPS to review to discontinue the prosecution on public interest grounds), the case was listed for mention and it was then ordered that, by 6 June 2008, a defence statement be lodged. There was thus ample time for instructions to be taken. In the event, the defence statement read:

"A. The nature of the accused defence in relation to the Count:

The accused did not have an immigration document because the agent who facilitated his passage to the UK took the passport from him under duress.

B. The accused takes issue with the prosecution in relation to the following matters:

The accused vehemently denies the allegations against him.

The agent forced him to give up his passport and he had no choice but to give up his travel documents.

C. The reason why the accused takes issue with the prosecution about this matter is that the allegation is untrue."

27. On 11 September 2008, while represented by the same barrister who had appeared for him at the initial arraignment, the appellant pleaded guilty and sentence was adjourned for a pre-sentence report. The writer of the report recorded that the appellant had said that he had used his genuine Iraqi passport to fly from Turkey to the UK and then handed that passport over to the agent whom he had paid to arrange the journey because he was frightened. The report went on:

"He could not explain why, if that was the case, he did not use it and purchase his own air tickets, once in Syria, as opposed to paying another an extortionate amount. During his interview, I was not totally convinced by Mr Nori's explanation with regards to events surrounding his arrival in the UK. I am of the view that the [Appellant] was fully aware of the consequences of entering the UK without a passport."

28. The appellant said that he did not believe that he had told the author of the report that which was reported, the problem probably arising as an issue of communication and the CCRC expresses itself satisfied that the apparent inconsistency did not detract from the credibility of his account and that it would have been unreasonable to have expected the appellant not to comply with the agent's instructions. Without expressing our conclusion with the same conviction (on the basis that we have not heard evidence although, of course, neither had the CCRC), we recognise that a jury might have accepted that factual analysis.
29. At the centre of this case is the fact that the appellant pleaded guilty. It is not, perhaps, surprising that seven years later, the barrister has no recollection of the case and was unable to find his own records (only data stored on the solicitors' computer being available). Similarly, the CCRC record:

"Mr Nori does not recall what advice he was given by his representatives at the police station and the Magistrates' Court. When asked about the advice afforded to him during the Crown Court proceedings, [he] was initially reticent about giving information because he was concerned about "getting people into trouble". He subsequently confirmed that he was advised to plead guilty because he had, in fact, entered the UK without a passport …. Mr Nori is unable to recall whether he was ever advised of the statutory defence i.e. whether he had a reasonable excuse for not having his Iraqi passport in his possession when he arrived in the UK."

30. In the light of the defence statement, the CCRC concluded that it was reasonable to conclude that the defence advanced was one of duress and that if the appellant had been properly advised of the statutory defence and of what they describe as the "enhanced credibility" of the fact of his being granted humanitarian protection, he would not have pleaded guilty. On that basis, it is said that there is a real possibility that this court will conclude that the defence would 'quite probably' have succeeded and that a clear injustice has been done.
31. In fact, Mr Taimour Lay on behalf of this appellant, goes further. He submits that the grant of humanitarian protection strengthened his account that he had fled to the UK in fear of his life and had good cause to follow the agent's instructions in using and handing back a passport. That submission is based on the argument that to have declined to do so would have been to risk safe passage for himself and his family.
32. Mr Douglas-Jones for the Crown argues that this submission is flawed. The offence is directed both to asylum seekers and genuine refugees as well as those intending to enter illegally: see the analysis in Weng and Wang [2006] 1 Cr App R (S) 97 [7-8]. He recognised that the appellant could have sought to avail himself of the defence under s. 2(4)(c) of the Act but points to the fact that para. 2 of the defence statement ("he had no choice but to give up the travel documents") was not limited by the earlier reference to duress and might suggest that the lawyers representing the appellant interpreted the statutory defence too broadly. Nevertheless, he entered an unequivocal plea of guilty.
33. In the circumstances, Mr Douglas-Jones submits that the defence was prima facie neither overlooked nor, as a result, was the plea a nullity. This factual matrix is different to that identified in cases such as AM and Mateta, not least because of the terms of the defence case statement. In the circumstances, it is argued that it cannot be said that the defence would quite probably have succeeded or that a clear injustice had been done.
34. As for the enhanced credibility afforded by the humanitarian protection, Mr Douglas-Jones suggests that it is of note that the Home Office did not concede that the claim was to be believed and rejected both the asylum claim and other significant aspects of his account (contradicted by that of his wife). Had the case gone to trial, however, the fact of humanitarian protection would have been capable of being evidenced; the opinions of the Home Office would not. On the other hand, he is correct to observe that the Home Office decision does not have the status of a determination of the First Tier Tribunal.
35. We turn to the fact that the writer of the pre-sentence report noted that the appellant could not explain why, if that was the case, he did not use the family passports to purchase their own air tickets, either out of Syria or out of Turkey, or why he was prepared to pay a very substantial amount of money to an agent. Although Mr Lay sought to address this point in his skeleton argument by reference to what he said would have been the practice of the Entry Clearance Officer, these questions were not satisfactorily addressed in evidence by the CCRC, the appellant or in any other way.
36. In the light of the foregoing, whether or not the appellant could have mounted a defence, we are not prepared to accept was not considered. Furthermore, on the evidence, we feel unable to conclude that, if he could have done, it was a defence of such strength as to negate the unequivocal plea of guilty, or one that would quite probably have succeeded. Thus, neither can we say that a clear injustice has been done. In the circumstances, this appeal is also dismissed.
37. That is not to say that we do not have considerable sympathy for this appellant (and, indeed, YY). Whether or not they brought themselves within the strict rules which cover those who seek refuge in this country and whether or not they behaved appropriately in connection with their approach to the immigration authorities, care needs to be taken not to stigmatise them in the same way that might be appropriate for others who evade the immigration laws. There are, of course, degrees of criminality and it is appropriate for the authorities to have regard to the underlying merit of the cases which those in the position of these appellants seek to advance and not to focus to an excessive extent on the manner in which they entered the country either to their detriment or the detriment of their families.

The position of the CCRC

38. Before leaving the case, it is appropriate to say something of the role of the CCRC. In Mateta, the court recognised (at [57]) the very real contribution made by the CCRC to this area of the law. It may be that these comment has been taken as an encouragement to the CCRC, given the increased number of referrals which concern asylum seekers convicted of identity document offences. We were told that the CCRC advertise for such cases and (as is the case in both these references) will pursue them irrespective of the fact that the case has not previously been before the Court of Appeal on the basis that there are exceptional circumstances. In that regard, it is to be noted that s. 13(1) of the Criminal Appeal Act 1995 specifically provides that a reference shall not be made unless "(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused". That is subject to s. 13(2) of the Act which is in terms (inter alia):

"Nothing in subsection (1)…(c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify it."

39. Cases referred by the CCRC in which there had been no previous appeal (as in these two cases) include R v Zondo [2014] EWCA Crim 1501, R v Sadeghi [2014] EWCA Crim 2933 and R v Shabani [2015] EWCA Crim 1924. On the other hand, the jurisprudence in this area was developed in cases which were pursued through the traditional route of the Court of Appeal: see R v Asfaw [2008] 1 AC 1061, R v Kamalanathan [2010] EWCA Crim 1335, R v Ali Rezi Sadighpour 2012] EWCA Crim 2669 and R v Jaddi [2012] EWCA Crim 2565.
40. The result of the jurisprudence of the court is that, these days, the Registrar regularly refers cases to the full court where cases of this type have been lodged. The Registrar is more than able to require waiver of privilege (which was necessary in one of the cases in this appeal notwithstanding the intervention of the CCRC) and delay can be avoided: see R v Sadiqi & Misini [2014] EWCA Crim 2479, R v Ghorbani [2015] EWCA Crim 275 and R v NH [2015] EWCA Crim 649. Where the process of the court is being abused, a referral under s. 20 of the Criminal Appeal Act 1968 is also possible: see R v Davis & Thabangu [2013] EWCA Crim 2424.
41. This list of cases is not intended to be exhaustive but it is an indication that if the exceptional procedure available to the CCRC is being deployed as a matter of routine as the CCRC takes on cases that can be referred directly to the Court of Appeal, resources are not being deployed as efficiently as possible. More important, detailed consideration of other cases of alleged miscarriage of justice (which have previously exhausted all rights of appeal) is being delayed while these cases are being subject to detailed analysis when they could go directly to the Court of Appeal where they will be processed efficiently by the Criminal Appeal Office.
42. We recognize that appeals from the magistrates court to the Crown Court after a plea of guilty have to be processed through the CCRC because of the constraints placed on the Crown Court (sitting on appeal) in relation to unequivocal pleas of guilty: see s. 108(1) of the Magistrates' Court Act 1980 and decisions such as R v McNally 38 Cr App R 90 and S v Recorder of Manchester [1971]. Thus, in these circumstances, the Crown Court is limited to a consideration of matters apparent to the magistrates and, if a plea was equivocal, bound to remit: see s. 48(2) of the Senior Courts Act 1981. A reference by the CCRC in relation to a conviction by the magistrates, however, requires the case to be treated for all purposes as an appeal against conviction "whether or not he pleaded guilty": see s. 11(2) of the Criminal Appeal Act 1995. Thus, the intervention of the CCRC is essential.
43. That is not, however, the case in the Court of Appeal. In the circumstances, we would encourage the CCRC to review the criteria which are used to justify exceptional reasons for investigating and referring when there has been no prior appeal. It may be that when apprised of these cases (whether as a result of campaigns to reduce miscarriages of justice or otherwise), a triage system can be adopted which investigates only those cases that have been to the Court of Appeal or are appeals from the magistrates court. Those cases which have not exhausted rights of appeal to the Court of Appeal can be passed on to the Criminal Appeal Office for examination and, if appropriate, referral.
44. None of this is to be taken as a criticism of the CCRC. Rather, it is an attempt to ensure that those cases in which there is no available means of redress other than through the CCRC are investigated and dealt with as expeditiously as possible. That may not be possible (or could be less possible) if other cases which could have been passed directly to the Criminal Appeal Office are themselves taking time and effort to investigate and process.
45. Needless to say, this point of principle has not affected the court's consideration of these particular appeals although in the circumstances which we have outlined, both are dismissed.