‘Revealed: Government body helps asylum seekers quash convictions for illegal entry to Britain’, thundered the headline in the Sunday Telegraph yesterday. Behind this headline was the story that the Criminal Cases Review Commission (CCRC) had ‘helped more than 30 asylum-seekers to overturn their convictions – something which has allowed many of them to receive refugee status and stay in the UK’. These relate to the failure of defence lawyers to advise defendants of the existence and effect of the s31 defence.
The concern seemed to be that the CCRC was publicising this issue, and encouraging more people who may be effected by this to come forward and have their cases (re)considered. Several MPs expressed concern about this.
Peter Bone, the MP for Wellingborough and never knowingly underquoted, was quick to wade in :
‘This is Alice in Wonderland. If you do this, you will undermine deterrence and encourage more and more people to come in by illegal routes. It will certainly increase the flow of people in the hands of the people traffickers – for an official body to be doing this is fundamentally wrong. There appears to be an extraordinary discrimination between the treatment of asylum-seekers and British applicants. This is something the Government needs to look at.’
It seems to me that this is misconceived.
The idea that people are currently sitting in Syria and deciding which country to claim asylum in are reading the Law Reports to see the UK’s interpretation of the Refugee Convention is laughable. And, without wishing to denigrate the Telegraph, I suspect that their circulation in Damascus is limited.
There is really nothing to suggest that prosecutorial policy and the behaviour of the CCRC will have any impact whatsoever on the numbers of people arriving in the UK.
It is also not accurate to say that these cases have been fast-tracked through the system – they may move through the system quicker, but that is in part because they are at heart a relatively simple issue compared to many, with a very limited amount of investigation. A further factor is that many of them are conceded by the prosecution.
The CCRC do normally require someone to have made an appeal to the Court of Appeal before going to the CCRC. This is not a fixed rule, and in these cases the appeals would often be many years out of time, which is the sort of case that the CCRC would normally take on.
Where there may be more of an argument is to do with allocation of resources. As is well known, the CCRC is hugely under-resourced, Is it right that people who are now out of prison are dealt with before those who are still inside?
In an ideal world, the answer is simple – give the CCRC more resources so that they are able to deal with all the cases that are in front of them. Of course, it’s not an ideal world, so how do we make best use of the resources available? Before looking at that, it is noteworthy that neither Mr Bone, nor any other MPs, have been calling for more funding for the CCRC.
It is important to remember that just because someone is no longer in prison, does not mean that the effects of the conviction are no longer being felt. All of the appellants that I have been aware of were of good character, and the conviction was a significant obstacle in obtaining employment.
But on top of that, there is no reason that these cases cannot run in tandem with others. It is not simply a case of a caseworker ploughing through a set of papers and making a decision. There are enquiries to be made, and delays whilst the outcome of reports etc are awaited. It is not clear that only dealing with those people in custody is the most efficient use of time and resources.
It is not the case that asylum seekers are prioritised over ‘domestic’ people who have been released from custody. The CCRC regularly review cases where people have been released from prison, sometimes many decades later, and there is a published policy as to how they prioritise cases. There is no need to target asylum seekers as a group in criticising the CCRC here, if you want to prioritise those in custody to the exclusion of others then so be it, but that should apply to everyone, whatever their immigration status. As it stands, this looks more like a cheap shot in the campaign against ‘out of control’ immigration, rather than a plea for justice.
Dan is a barrister at 2 Dr Johnson's Buildings practicing mainly in criminal and immigration law. You can follow him on Twitter (@danbunting)