R v AUS
[2024] EWCA Crim 322
R v Ismail Omar Musa
16 January 2024
[2024] EWCA Crim 307
Court of Appeal
Musa was convicted in 2008 but argued he wasn't properly advised on a defence. The court said even if he had been, he likely still wouldn't have won because he wasn't a refugee according to previous court decisions. They refused his late appeal.
Key Facts
- •Ismail Omar Musa pleaded guilty in 2008 to possession of an identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006.
- •He was sentenced to ten months' imprisonment.
- •He applied for an extension of time to appeal his conviction, claiming he was wrongly advised to plead guilty and that a section 31 defence under the Immigration and Asylum Act 1999 was available.
- •His asylum claims in the UK and Norway were refused.
- •He was subsequently convicted of a similar offence in 2011.
- •In 2019, a First-tier Tribunal allowed his asylum appeal on humanitarian and human rights grounds, but not on refugee status.
- •He sought to adduce fresh evidence (expert reports) to support his appeal.
- •The appeal was based on a change in the law regarding the section 31 defence following R v Asfaw [2008] UKHL 31.
Legal Principles
Section 31 defence under the Immigration and Asylum Act 1999: A refugee can claim this defence if they meet specific conditions, including showing they couldn't reasonably expect protection in any transit countries.
Immigration and Asylum Act 1999, section 31
Extension of time to appeal: An extension of time may be granted if substantial injustice would result from the refusal. A change in the law is a significant factor.
Criminal Appeal Act 1968, section 23; R v Jogee [2016] UKSC 8; R v Ordu [2017] EWCA Crim 4
Unsafe Conviction: A guilty plea can be considered a nullity if the defendant was not properly advised about available defences, leading to a clear injustice. This requires showing the defence would likely have succeeded.
R v Boal [1992] QB 591; R v Tredget [2022] EWCA Crim 108; R v Mateta [2013] EWCA Crim 1372
Burden of proof for Section 31 defence: The defendant must initially raise the issue of refugee status, and the prosecution must disprove it. If the Secretary of State refused asylum, the defendant must prove refugee status on a balance of probabilities.
R v Mateta [2013] EWCA Crim 1372
Section 31 defence does not apply to those with only humanitarian protection.
R v Elemi [2022] EWCA Crim 1428
Outcomes
Applications for an extension of time and leave to appeal were refused.
The applicant failed to demonstrate substantial injustice would result from the refusal. His later successful asylum claim mitigated the impact of the 2008 conviction. The evidence did not support the likelihood of a successful section 31 defence given prior findings against his refugee status.