The court that likes to say, “no”

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Friday last saw the publication of judgment by the Court of Appeal Criminal Division (CACD) in the case of R v Ordu. In 2007, Mr Ordu entered the UK via Germany using a false passport. He was prosecuted under the now defunct Identity Cards Act 2006 for possessing false identity documents with intent.

Section 31 of the Immigration and Asylum Act 1999 was in force at the time (and indeed is still in force, although it has been amended); it creates a defence for refugees fleeing persecution. It was supposed to bring the law into compliance with the UK’s treaty obligations arising from the Refugee Convention. Section 31 was badly drafted because it barred people who had stopped over in another safe country on their way to the UK from relying on the defence; however, the Convention specifically required the UK (and other signatories) to extend the defence to such people. Despite this glaring conflict the law at the time of Mr Ordu’s case appeared to be settled and the section 31 defence was not open to anybody who had made a stopover on their way to the UK (R v Pepushi). Because of this, the barrister representing Mr Ordu did not advise him about the existence of the section 31 defence. Mr Ordu was therefore advised to plead guilty, which he did and was immediately sentenced to 9 months’ imprisonment.

However, the law was not settled – the Court of Appeal even has a phrase for this sort of thing: “the law as it was then understood”, which in my book is usually code for: “that time when we got the law wrong” – because in 2008 along came Ms Afsaw who was an Ethiopian national who had been imprisoned, tortured and raped in Ethiopia on account of her alleged support for student activism. Her father had also been persecuted and died in police custody. She was arrested attempting to leave the UK for Canada. It was accepted by the Crown that she was a refugee fleeing persecution and that she had used the UK to make a stopover on her continuing journey. The case ended up in the House of Lords where their Lordships held that section 31 should be read as providing immunity for a refugee attempting to leave the UK as part of their “continuing course of flight from persecution”. This effectively changed the law as it had been following Pepushi.

Mr Ordu was seemingly unaware that all this was going on. He served his prison sentence, was released and at some point, shortly before the 29 February 2016, I know not how, Mr Ordu became aware that the law had changed. He then filed his notice of appeal along with an application for leave to appeal out of time – effectively asking the Court of Appeal for an extension of the time to appeal by eight years and three months. In his appeal notice, Mr Ordu cited the case of R v Mateta. This is one of a number of cases in which advocates failed to advise clients about the availability of the section 31 defence. For a time this seems to have been a very common mistake – I don’t know why. The first time I defended one of these, I took what some seem to find a novel step of opening a law text book and reading up on the law – section 31 was clearly explained and short of having a big red popup finger on the relevant pages I do not know how it could have been any clearer. But there you have it.

The Court of Appeal registrar appointed a barrister to act for Mr Ordu and the appeal was refined to one arguing effectively that a change in the law rendered the original conviction unsafe.

In deciding this appeal the Court of Upholding Criminal Convictions Court of Appeal, first had to decide whether to grant the extension of time for Mr Ordu’s appeal. They recognised, at paragraph 17, that if the section 31 defence had been open to Mr Ordu he would probably have been acquitted and thus if the extension of time were granted his appeal would probably be successful:

“The issue for us, therefore, is whether to grant the extension of time sought.  If we do,

it will be for us to consider whether the conviction is safe, but in the light of the

approach taken by the Crown and the decision of the Asylum and Immigration

Tribunal it is likely that if leave is given, the appeal will succeed, because the s.31

defence (if advanced) would probably have succeeded.  We approach the question of

leave on that basis.”

So, let’s take stock. We have an appellant who has been wrongfully convicted of an offence. He has served a prison sentence for that offence and now has a criminal record as a result of that conviction. True it’s now a spent conviction but it will nonetheless show up on any enhanced criminal record check he might have to submit for employment and, should he wish to travel abroad, it may well hinder his ability to do so in future. What do we think the Court of Appeal is going to do next? Let’s find out.

It doesn’t start off well for Mr Ordu. Paragraph 18 quotes this from the case of R v Mitchell:

“It should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”

To translate into everyday English, it means, “just because we judges got the law wrong in the past does not mean we will, or should, intervene to put right the injustices caused by our “misconception of the law.” Mr Mitchell did get his additional time because he was imprisoned at the time and the Court of Appeal accepted that he was innocent of the allegation against him, but if you care to read the full text you’ll see they only just allowed his extra time despite knowing he was an innocent man in prison for a crime he didn’t commit! The reasoning was that Mr Mitchell was subject to a continuing and substantial injustice. By implication therefore, we now have two types of injustice recognised by the Court of Appeal – “substantial” (those that matter) and, presumably, “insubstantial” (those which the Court just doesn’t care about).

Their Lordships immediately decided that Mr Ordu’s case was in the category of “injustices they don’t care about” cases where there is no ongoing substantial injustice. This is because Mr Ordu has served his sentence and his licence period. His conviction is now spent and he is now a UK citizen. On that basis they refused his application for leave to appeal out of time saying that he has lived through the adverse consequences of the wrongful conviction (an interesting way to describe being imprisoned for a crime you didn’t commit) and that overturning the conviction would have no impact upon his life today. I would think that having your name and reputation wrongly tarred with a conviction for being the sort of chap who goes around using fake ID documents for no legitimate reason would be a big deal – it certainly would be for me.

While the court has undoubtedly applied the substantial injustice test correctly, this case highlights how the criminal justice system is weighted against those who find themselves in the dock.

Let us imagine an allegation of rape from 50 years ago (I’ve dealt with a case of that age and they are very difficult to defend) – who in the Court of Appeal will say that such cases should not be allowed to proceed to trial merely because the “adverse consequences” to the victim are now firmly in the past? Hint: none of them. This means that a defendant can be prosecuted for a non-summary offence at any time but cannot appeal any injustice arising unless that injustice is serious.

Why the substantial injustice test has arisen makes little sense in a properly functioning justice system. If somebody is clearly innocent of an offence, as the Court of Appeal accepts Mr Ordu is, then any properly functioning justice system should be seeking to do justice and quash the conviction. If it is not interested in justice, then it is not a justice system at all.

I’ve been told that the argument for the test is that allowing anybody to appeal just because they’ve been wrongfully convicted would open the floodgates. This is a bad argument unless you are accepting that there are so many mistakes made by the Crown Court that the Court of Appeal would not be able to cope with the tsunami of appeals that would flow from any lowering of the dam that is the substantial injustice test. I’m not sure that is an argument their Lordships wish to make.

I would tentatively suggest that a key reason for the development of the substantial injustice test is that we do not have a properly functioning justice system. It’s a bit like my first car, an Austin Mini Estate (in bright orange - or Vermillion as Mini preferred to call it). It looks good when it’s all cleaned up and the light is shining off its chrome bumpers just right. It work - most of the time - but occasionally it goes disastrously wrong and leaves you stranded in the rain (with a leaky driver’s side window). Nobody wants other people to think their car is a heap of junk so we keep them clean, polished nicely and hope the light hits it just right. Same with our justice system really.