R v Ismail Omar Musa
[2024] EWCA Crim 307
R v AUS
13 March 2024
[2024] EWCA Crim 322
Court of Appeal
A refugee was wrongly convicted because her lawyer didn't tell her about a defence that would have likely worked. The court fixed this mistake, even though it happened over 12 years ago, because it was a serious injustice.
Key Facts
- •AUS (applicant), a Somali national, pleaded guilty in 2010 to possessing a false identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006.
- •She was sentenced to 12 months' imprisonment.
- •She was not advised of the section 31 defence under the Immigration and Asylum Act 1999.
- •She applied for an extension of time (over 12 years) to appeal her conviction.
- •The application was unopposed by the respondent.
- •AUS entered the UK carrying a false Dutch ID card obtained from an agent after fleeing Somalia due to domestic abuse and civil unrest.
- •AUS claimed asylum upon arrival but faced numerous unsuccessful appeals and claims between 2010 and 2018.
- •Medical evidence from 2018 and 2020 supported her account of ill-treatment and diagnosed severe mental health issues impacting her previous statements.
- •In 2021, her asylum appeal was successful, and she was granted refugee status.
- •AUS's current solicitors advised her of the section 31 defence only after she was granted refugee status.
Legal Principles
Section 31 defence under the Immigration and Asylum Act 1999: A refugee charged with an offence can use this defence if they can show they met specific conditions related to their entry into the UK and asylum claim.
Immigration and Asylum Act 1999, section 31
R v Asfaw [2008] UKHL 31 changed the legal interpretation of section 31, clarifying that the defence may apply even after short stopovers during a flight from persecution.
R v Asfaw [2008] UKHL 31
Legal representatives have a duty to advise defendants of potential section 31 defences.
R v Mateta [2013] EWCA Crim 1372
The court will exceptionally intervene in a guilty plea if a defence would likely have succeeded, resulting in a clear injustice (R v Boal principle).
R v Boal [1992] QB 591
Extensions of time to appeal are granted only with good reason and to avoid significant injustice (R v Hughes principle). The interests of justice include the finality of judgments, efficient resource use, and individual liberty.
R v Hughes [2009] EWCA Crim 841; R v Thorsby [2015] EWCA Crim 1
For convictions based on the law at the time, exceptional leave to appeal out of time requires showing substantial injustice. Failure to advise on existing law is sufficient to show significant injustice.
R v Jogee [2016] UKSC 8; R v Abdulahi [2021] EWCA Crim 1629
Outcomes
The court granted an extension of time to appeal.
The applicant was not properly advised of the section 31 defence, which would likely have succeeded, causing significant injustice.
Leave to appeal was granted.
The applicant suffered a clear injustice due to lack of proper legal advice.
The appeal was allowed.
The applicant's conviction was quashed.