THR, R. v (Rev1)

Factual and Procedural Background

The Applicant was tried before Judge Byrne and a jury in the Crown Court and convicted of possession of an identity document with improper intention contrary to section 4(1) and (2) of the Identity Documents Act 2010. The Applicant, a Kurdish-origin Turkish national, arrived at a ferry terminal on 12 February 2023 after irregular travel and was found in possession of a false Polish identity document. She admitted her true identity at the roadside and produced genuine Turkish identity documents. She was interviewed at a custody suite with an interpreter and legal representative present, disclosed a prior sentence in Turkey for terrorism-related offences and an intention to claim asylum, and was subsequently detained, tried in October 2023, sentenced to 18 months' imprisonment on 25 October 2023, and has since completed that sentence.

The Applicant's trial was conducted with defence representation from Company B and counsel. After conviction, the Applicant sought leave to appeal against conviction and sentence and to adduce fresh evidence. The single judge referred the application to the Court of Appeal. The Court directed a rolled-up hearing, heard fresh evidence de bene esse, admitted that evidence, granted leave and allowed the appeal against conviction. This summary records the reasons given by the Court.

Legal Issues Presented

1. Whether the absence of reasonable adjustments and the lack of directions to the jury about the Applicant's mental health rendered the trial unfair and the conviction unsafe.
2. Whether fresh evidence concerning a practice of Greek authorities returning refugees to Turkey undermined the assessment that the Applicant could reasonably have sought protection in Greece during transit.
3. Whether the Applicant made a claim for asylum in the United Kingdom as soon as was reasonably practicable after arrival, such that she could avail herself of the statutory defence in s.31 of the Immigration and Asylum Act 1999 (as amended).

Arguments of the Parties

Applicant's Arguments

• The Applicant relied on three refined grounds: (a) that her complex PTSD and depression required reasonable adjustments at trial and jury directions about the effect of her mental health on evidence and actions; (b) that fresh evidence about returns from Greece undermined the jury's assessment on whether she could reasonably have sought asylum in Greece; and (c) that evidence showed she made an asylum claim promptly on arrival, undermining the prosecution case on the s.31 defence.
• The Applicant sought admission of fresh expert evidence (a forensic psychiatrist and a barrister's statement) and a report about Greek practice; cumulatively these matters were said to render the trial unfair and the conviction unsafe.

Respondent's Arguments

• The Respondent did not challenge the Applicant's expert's qualifications. The Crown accepted the fresh evidence was admissible and did not seek a retrial once the appeal was allowed.
• The Crown accepted oversight had occurred in relation to the record indicating an intention to claim asylum on the evening of arrival and apologised for that omission.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed three principal matters and their cumulative effect on the safety of the conviction.

1. Admission of fresh psychiatric and ancillary evidence: The Court accepted fresh evidence from Attorney Kamara (consultant forensic psychiatrist) and Attorney Knight (barrister) that the Applicant suffers complex PTSD and depression, with significant effects on cognitive processing, memory, comprehension and communication, particularly under distress. The evidence included medical records, the Applicant's account of trial experience, trial transcript excerpts and contemporaneous observations by officers. The expert identified specific reasonable adjustments that should have been considered (simplified questioning, breaks, written aids, Kurdish interpreter, intermediary, seating, etc.). The Court found the fresh evidence cogent, credible and that it was not available at trial through any fault of the Applicant. Applying the statutory gatekeeping test (s.23(2) Criminal Appeal Act 1968), the Court held the evidence should be admitted.
2. Impact on fairness: Given the expert evidence, the Court concluded that the absence of reasonable adjustments and the lack of any suitable jury direction about how the Applicant's impairments might affect her presentation created a real risk the trial was unfair and the conviction unsafe. The Court noted that trial counsel and defence representatives had not recognised the need for adjustments at the time, and that certain exchanges in cross-examination had indicated the possibility of mental health issues.
3. Evidence regarding returns from Greece: The Court admitted into evidence a report by Attorney Bouchetel concerning practices of returns by Greek authorities to Turkey. The report was unchallenged by the Crown and, in the particular circumstances of how the trial dealt with the issue (including the trial judge's indication that judicial notice could be taken of signatory status to the Refugee Convention), the Court found the fresh evidence could have materially affected the jury on the issue whether the Applicant could reasonably have been expected to seek protection in Greece. That admission further undermined the safety of the conviction.
4. Timing of asylum claim: The Court found that the prosecution and defence had overlooked that the Applicant's legal representative had indicated at interview on the evening of arrival an intention to claim asylum and that the Home Office treated that date as the date of claim. The Crown accepted the oversight. Had the jury been properly informed that an indication of asylum claim had been made on arrival, the factual picture on the s.31 defence would have been materially different.
5. Conclusion on safety: Taking the three matters together, and principally the psychiatric evidence, the Court concluded the conviction was unsafe. The Court also noted the Crown did not seek a retrial.

Holding and Implications

The appeal against conviction was allowed and the conviction was quashed.

Implications: The direct effect is that the Applicant's conviction is overturned and, as the Crown did not seek a retrial, no retrial will follow. The Court did not address the application for leave to appeal against sentence. The Court emphasised that the decision does not establish a general rule that similar fresh evidence will always be admitted; rather admission was justified by the particular facts of this case and the impact on the safety of the conviction.