The claimant was stopped when boarding a flight to Canada, having previously stopped in France and Italy. He bore a false Swedish passport, and intended to claim asylum in Canada. He now claimed the benefit of the article 31 (per Adimi), to defend a prosecution under the 1981 Act for using a false instrument.
Held: The scope of section 31 was less than article 31 of the Convention, which did not apply directly, but only through the section. The court should attempt to construe the section to give effect to the Convention, but if it could not, it had to apply the section. That was the case here. No legitimate expectation could arise in favour of the claimant. A decision to prosecute is not ordinarily subject to judicial review save in wholly exceptional circumstances.
Thomas LJ said: ‘In view of the frequency of applications seeking to challenge decisions to prosecute, we wish to make it clear . . that, save in wholly exceptional circumstances, applications in respect of pending prosecutions that seek to challenge the decision to prosecute should not be made to this court. The proper course to follow, as should have been followed in this case, is to take the point in accordance with the procedures of the Criminal Courts. In the Crown Court that would ordinarily be by way of defence in the Crown Court and if necessary on appeal to the Court of Appeal Criminal Division. The circumstances in which a challenge is made to the bringing of a prosecution should be very rare indeed as the speeches in Kebilene make clear.’
Judges:
Silber, Mr Justice Silber Lord Justice Thorpe
Citations:
[2004] EWHC 798 (Admin), Times 21-May-2004, [2004] INLR 638
Links:
Statutes:
Immigration and Asylum Act 1999 31, Convention and Protocol Status of Refugees 31, Forgery and Counterfeiting Act 1981
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited by:
Cited – Regina v Fraydon Navabi; Senait Tekie Embaye CACD 11-Nov-2005
The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Lists of cited by and citing cases may be incomplete.
Immigration, Crime
Updated: 10 June 2022; Ref: scu.196702