Pepushi, R (on the application of) v Crown Prosecution Service

Factual and Procedural Background

The claimant, a national of the former Yugoslavia, was stopped by Immigration Officers at Heathrow Airport on 7 January 2004 while attempting to board a flight to Canada using a false Swedish passport. He was arrested and interviewed the following day, during which he stated he was fleeing danger in his home country due to involvement in illegal firearms seizures and intended to claim asylum in Canada. He had travelled through Italy and France using false passports, receiving the false Swedish passport while in Paris. The claimant had not claimed asylum in France or Italy, preferring Canada due to perceived softer immigration laws and safety concerns.

On 7 January 2004, the Crown Prosecution Service (CPS) decided to prosecute the claimant for using a false instrument under the Forgery and Counterfeiting Act 1981; a charge of attempting to obtain services by deception was initially brought but later discontinued. The claimant appeared before the Uxbridge Magistrates Court on 9 January 2004 and elected trial by jury on 22 January 2004, resulting in committal to the Crown Court with proceedings adjourned for preparation.

On 17 February 2004, the claimant sought leave to challenge the CPS decision to prosecute. A stay of prosecution was ordered pending determination. Permission was granted on 5 March 2004, and the stay continued until the hearing. On 2 April 2004, the court was asked to lift the stay as the claimant wished to plead guilty, having served custody time equivalent to the anticipated sentence. The court dismissed the application to challenge the prosecution on procedural and substantive grounds and lifted the stay.

Legal Issues Presented

1. Whether the enactment of section 31 of the Immigration and Asylum Act 1999 limits or excludes reliance on Article 31 of the Refugee Convention as previously decided in R v. Uxbridge Magistrates' Court and another, ex parte Adimi.
2. Whether the present application before the court was the proper procedure and forum to raise the issue in the criminal proceedings against the claimant.

Arguments of the Parties

Appellant's Arguments

• The claimant contended entitlement to protection under Article 31 of the Refugee Convention and that the prosecution should be stayed following the decision in Adimi.
• The claimant argued that section 31 of the 1999 Act did not affect the meaning or scope of Article 31 and that the legitimate expectation remained that refugees were entitled to the full protection of Article 31 as interpreted in Adimi.
• The claimant asserted that he fell within the protection of Article 31 on the facts presented.

Respondent's Arguments (CPS)

• The CPS submitted that section 31 of the 1999 Act, enacted after Adimi, delineated the domestic scope of the defence and excluded reliance on Article 31 beyond that scope.
• The CPS rejected the Home Office Asylum Policy Instruction's suggestion that Article 31 protection remains outside the scope of section 31, arguing it was misconceived and wrong in law.
• The CPS maintained that the prosecution was properly brought under domestic law and that no abuse of process arose.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining whether the claimant could rely on Article 31 of the Refugee Convention as interpreted in Adimi despite the enactment of section 31 of the Immigration and Asylum Act 1999. It acknowledged that Article 31 provides broad protection to refugees entering illegally but bona fide, including those using false documents, with certain conditions. The court accepted the interpretation of Article 31 in Adimi as correct but emphasized that the relevant question is the current domestic law, which is governed by section 31 of the 1999 Act.

The court noted that section 31, enacted shortly after Adimi, provides a narrower defence than Article 31, particularly by restricting the defence to specific offences and by requiring a claimant who stopped in an intermediate country to show they could not reasonably have expected protection there. The court held that section 31 must be applied as domestic law, even if it results in the UK being in breach of international obligations under the Convention.

It was further reasoned that international treaties are not self-executing and do not confer domestic rights unless incorporated by legislation, citing binding authorities. The court rejected the claimant's argument that legitimate expectation doctrine preserves the broader protection of Article 31 beyond section 31's terms, reasoning that Parliament’s express legislation precludes such an expectation in this context.

Regarding the procedural issue, the court held that the present application challenging the CPS prosecution decision was not the appropriate forum or procedure. Following the House of Lords decision in Kebilene, decisions to prosecute are generally not subject to judicial review except in exceptional circumstances, which were not present here. The proper course would have been to raise any defence in the criminal proceedings in the Crown Court or on appeal.

The court emphasized the importance of avoiding satellite litigation that delays criminal proceedings and discouraged the use of judicial review in such cases where alternative remedies exist.

Holding and Implications

The court DISMISSED the claimant's application to challenge the prosecution.

The direct effect of this decision is that the claimant must face prosecution under the terms of section 31 of the Immigration and Asylum Act 1999, which provides a narrower defence than Article 31 of the Refugee Convention as previously interpreted in Adimi. The court clarified that international treaty provisions do not override clear domestic legislation, even if this results in a breach of international obligations. Procedurally, the ruling reinforces the principle that challenges to prosecution decisions should generally be raised within the criminal trial process or by appeal, not by judicial review, except in exceptional cases. No new precedent was set beyond reaffirming established principles regarding treaty incorporation and prosecutorial decision challenges.