The convictions of four asylum seekers for driving small boats across the Channel have been found unsafe by the court of appeal in a ruling that identified systemic failings in such prosecutions.
The three judges in the case said the convictions “must be quashed in due course”. Three of the men who appealed had their convictions quashed on Tuesday; a fourth man’s appeal is pending as the Crown Prosecution Service is seeking a retrial of his case.
All four men were convicted after being filmed driving dinghies bringing asylum seekers across the Channel.
But the judges said that in order to secure convictions in cases of this kind, the prosecution must prove that the person accused of driving the boat “knew or had reasonable cause to believe that his act was assisting entry or attempted entry into the United Kingdom without leave”.
The men were all appealing against convictions they received at Canterbury crown court for assisting unlawful immigration by piloting small boats across the Channel.
Lord Justice Edis, Mrs Justice May and Mr Justice Blake heard the case.
They said in their ruling: “We invited the Crown Prosecution Service to help us on how it came about that the law was misunderstood when investigating, charging and prosecuting these cases.”
New CPS guidance about this kind of case was welcomed in the judgment.
The judgment states that criminal investigations and subsequent prosecutions were launched without careful analysis of the law and appropriate guidance to those conducting interviews, taking charging decisions and presenting cases to courts.
“It appears also that the judges in the small number of courts where these cases are tried and defence practitioners followed the flawed view of the law which developed without conducting analysis of their own resulting in an erroneous shared approach. Although this is obviously less than ideal, allocating blame is less important than sorting out the consequences,” the ruling states.
All four who were convicted helped steer the boats they were travelling in, were intercepted by Border Force vessels, escorted to shore and then taken to the Kent Intake Unit for the initial processing of their asylum claims.
The four men whose convictions were found to be unsafe are: Samyar Ahmadii Bani, 38, from Iran, who was convicted in November 2019 and sentenced to six years in prison; Mohamoud al Anzi, 55, from Kuwait, who was convicted in February 2021 and sentenced to three years and nine months; Fariboz Taher Rakei, 60, from Iran, who was convicted in March 2021 and sentenced to four years and six months; and Ghodratallah Donyamali Zadeh, 37, from Iran, the only person to plead guilty, who was sentenced to two years in October 2020.
The CPS is seeking a retrial in Rakei’s case. Seven other cases raising similar issues are due to be heard by the court in January.
Tuesday’s ruling is the latest in a series of blows to the government, with the new nationality and borders bill ramping up penalties for those accused of steering dinghies across the Channel.
The home secretary has suffered a series of defeats in the high court this year. They include: having to make payments to trafficking victims who had financial support removed at the start of the pandemic; being required to provide a grant of leave to remain for trafficking victims; and having to give protections for people in immigration detention who have HIV.
Ben Stuttard, a solicitor at Commons who represented Zadeh, welcomed the ruling. “Pending cases before the crown court will no doubt be reviewed by prosecuting authorities and some cases may be discontinued. Mr Zadeh and others have served prison sentences in appalling conditions for a crime they did not commit and were denied the opportunity to fairly defend.”
Karen Doyle, a founding member of Movement for Justice, also welcomed the judgment. “This judgment makes clear that seeking asylum is not a crime. 然而, several asylum seekers still face trial in 2022 and several are still in prison.”
A CPS spokesperson said: “We won’t hesitate to prosecute those suspected of immigration offences if our legal test for a prosecution is met and [the offences are] against the law as it currently stands.
“Since prosecuting these cases, new judgments have clarified a very complicated section of law. In the summer we published revised guidance – taking into account recent judgments – about prosecuting those who exploit and profit from the desperation of others or put lives at risk through controlling or piloting overcrowded small boats across the busiest shipping channel in the world or confining them in lorries.”