In the Media

?Hundreds? of miscarriage of justice claims over legal advice failings

PUBLISHED June 13, 2012

Thursday 14 June 2012 by Eduardo Reyes

Hundreds of asylum seekers and refugees convicted of immigration-related offences such as failure to produce a passport may have been the victims of miscarriages of justice, the Gazette can reveal.

Failings in legal advice are central to each case. The Criminal Cases Review Commission (CCRC), which reviews cases where a wrongful conviction is possible, has written to the Crown Prosecution Service expressing concerns after identifying common elements in 11 cases referred to the Court of Appeal.

Of the 11 cases referred, 10 were quashed, and the remaining case has yet to be heard. In each case, defendants were not adequately advised by lawyers of defences such as 'reasonable excuse' for being unable to provide a genuine passport.

Several of the cases involve Somali nationals. The UK government does not recognise Somali passports and the country has not had a passport-issuing office since 1991.

Where such defences were not considered, the CCRC told the Gazette there had been a failure by both prosecutors and defence lawyers.

CCRC chairman Richard Foster said the number of similar cases 'could be substantial'.

CCRC barrister Yewa Holiday said the cases had important common features: defendants were not informed of defences available to them, all had been advised to plead guilty and all had received custodial sentences. 'Prosecutions for these types of offences appear to take place without adequate advice by lawyers, who may not be familiar with the intersection of crime and international law,' she said.

As a result, Holiday said, 'applicants can receive substantial injustice'.

The CCRC has written to the CPS and expects to meet officials in the coming weeks. It has also contacted agencies and organisations that have contact with possible victims of a miscarriage, urging them to apply to the CCRC to have their cases reviewed.

The CPS has already had to change its approach to some cases. In the light of two cases referred to the Court of Appeal in 2006 and 2007, Thet and Mohammed and Osman, the CPS told the Gazette that detailed legal guidance had been issued to prosecutors explaining 'reasonable excuse' and the range of possible defences. Prosecutors were instructed to consider offering no evidence in similar cases.

A CPS spokesperson said: 'It is incumbent upon solicitors representing defendants to establish whether there might be a statutory defence to a charge or a ground of appeal.' She added that the CPS relies on information provided to it by the UK Border Agency when determining if there is a defence involving the status of the country from which the defendant may have travelled.