Shortly after Christmas in 2009, a young woman from Somalia flew into Stanstead and claimed asylum. She had just turned 18. As later accepted by the Home Office, she had experienced severe depredations in her home country. This included her rape at the age of six in the presence of her disabled mother, and the murder of both of her parents. She fled Somalia in 2008, initially to Yemen, where she spent the next year. She was eventually able to fly to Europe with the help of an agent, who provided a British passport to facilitate her entry into the UK.

After claiming asylum, the young woman from Somalia was prosecuted for possession of an identity document which did not belong to her.

Welcome to Britain

When refugees flee persecution, it is rare that they will have the correct paperwork. It will sometimes be the case that individuals have to forge documents in order to enter a country of safety, or pay someone (often an agent) to supply a document that does not belong to them.

Unsurprisingly, being in possession of a document that does not belong to you, with the intention of using it to establish your own identity, is illegal. In fact, it is punishable by up to 10 years in prison by s.4 Identity Documents Act 2010, and before this under s.25(1) Identity Cards Act 2006.

However, the law also recognises that those fleeing persecution may have to resort to deceptions such as possession and use of false papers in order to make good their escape. Article 31 of the 1951 Refugee Convention prohibits contracting states from imposing penalties for illegal entrance. Presumably with a nod to the framers of the Convention (or otherwise a massive coincidence), s.31(1) Immigration Asylum Act 1999 puts this defence into practice:

It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he

i) presented himself to the authorities in the United Kingdom without delay;

ii) showed good cause for his illegal entry or presence; and

iii) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

In a series of cases in recent years, it has emerged that refugees have been wrongly prosecuted and wrongly convicted despite having an arguably defence under section 31 or under a Supreme Court case called R v Asfaw [2008] UKHL 31. Prosecutors have acted improperly and defence lawyers incompetently and the courts have been very critical of these failings.

Miscarriage of Justice: Wrongly Convicted Asylum Seekers and Trafficked Persons

Wrongful convictions of refugees overturned

Solicitors who failed to advise refugee of defence to illegal prosecution referred to SRA

‘We have strict statutes and most biting laws’

The Crown Prosecution Service took the decision in late December 2009 that it would be in the public interest to prosecute this young woman for possession of a British passport that was not hers. At this early stage, it does not appear that the s.31 defence was considered.

Following a review of the case by a different prosecutor in February, the s.31 defence was raised as a possibility, but dismissed on the basis that the Defendant had not come directly from the country of persecution (Somalia), having spent a year in Yemen.

A few more months passed before another prosecutor at the CPS researched how straightforward it would have actually been for the Defendant to claim asylum in Yemen – not very, apparently –  and had come to the view in early June 2010 that it would not be in the public interest to pursue prosecution.

On 10 June, a grant of asylum was made. The following day the CPS offered no evidence at a Crown Court for mention hearing and the young Somali woman was found not guilty. She walked free after 5 months on remand.

Later that same year, aggrieved by her treatment, she issued proceedings against the Crown Prosecution Service, suing for damages.

Fair, fearless and effective?

Last week, almost 7 years after she brought her claim, the Supreme Court handed down judgment in SXH (Appellant) v The Crown Prosecution Service (Respondent) [2017] UKSC 30. The Supreme Court upheld the decisions of the High Court, and the Court of Appeal, unanimously finding that the claimant had no right to damages.

The main argument that appears to have been advanced in support of the case against the CPS is that their initial decision to prosecute was in breach of the claimant’s rights under Article 8 ECHR. This is given very short shrift by the Supreme Court, as it appears to have been by the Court of Appeal and the High Court before that, all of whom find that a decision to prosecute is not capable of engaging the right to private and family life.

Attempts by instructing counsel to introduce arguments during the hearing, in particular that the ongoing conduct of the CPS – not simply the initial decision to prosecute – should be reviewed by the court were batted away. There is a slight suggestion in the judgment, given by Lord Toulson, that a more appropriate remedy may have lain in argument that the conduct (and the prolonged detention) was in breach of Article 5, although as the case was not argued on this basis he does not elaborate.

The best the Supreme Court can do is offer expressions of sadness and regret. As Lord Kerr concludes in his concurring judgment [48]:

I reach the decision that the appellant must fail in her appeal with regret. This woman, in her short life, has had to endure experiences of the most horrific nature. … It is not in the least surprising that she had resort to the subterfuge of false papers in order to secure the measure of safety which she believed that this country would afford her. It is sad that her terrible circumstances were compounded by her incarceration at a time when she was vulnerable and defenceless.

These words are no compensation.