Identity Cards Act 2006 prosecutions and victims of trafficking  

Practitioner note on Identity Cards Act 2006 prosecutions and victims of trafficking

The author recently dealt with a similar case, a youth charged with using a false passport to gain entry to the U.K. The charge was under section 25(1) of the Identity Cards Act 2006. Following arrest she had initially been advised that she had no defence to the charges and pleaded guilty. However following new advice she successfully applied to vacate the guilty plea and the case was listed for trial. The prosecution eventually discontinued the case following submissions that it was unfair to continue with the prosecution of her because of the circumstances of her fleeing from Somalia. It was also argued that she had a valid defence under the Immigration and Asylum Act 1999 and a further defence of duress of circumstances.

There are an increasing number of prosecutions under the Identity Cards Act 2006 coming through our local courts and it important to be aware of the above representations that can be made. Criminal law specialists need to be fully conversant with the specific defence that is available under the Immigration and Asylum Act 1999 section 31(1) and Article 31(1) of the Refugee Convention.

(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—
(a) presented himself to the authorities in the United Kingdom without delay;
(b) showed good cause for his illegal entry or presence; and
(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

(3) In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under—
(a) Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);
[(aa) section 25(1) or (5) of the Identity Cards Act 2006;]
(b) section 24A of the 1971 Act (deception); or
(c) section 26(1)(d) of the 1971 Act (falsification of documents).

(4) In Scotland, the offences to which this section applies are those—
(a) of fraud,
(b) of uttering a forged document,
[(ba) under section 25(1) or (5) of the Identity Cards Act 2006,]
(c) under section 24A of the 1971 Act (deception), or
(d) under section 26(1)(d) of the 1971 Act (falsification of documents), and any attempt to commit any of those offences.

The defence to charges under the Identity Cards Act 2006 can also rely upon the upon the judgement of Simon Brown, LJ; Newman J in Adimi, R (on the application of) v Uxbridge Magistrates Court & Anor [2000] 3 WLR 434, [1999] Imm AR 560, [2001] QB 667, [1999] EWHC Admin 765, [1999] 4 All ER 520 (29 July 1999) judgment where it was held that:-

"the self-evident purpose of article 31(1), broadly construed in the light of the Convention as a whole, was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching domestic law; that where illegal entry, use of false documents or delay could be attributed to a bona fide desire to seek asylum, whether in the United Kingdom or elsewhere, that conduct should be covered by article 31(1); that the requirements to come directly and to present himself without delay did not preclude a refugee from exercising some element of choice as to where and when he claimed asylum and the exercise of such choice was not to be characterised as forum shopping; and that, accordingly, neither a short term stopover en route to such intended sanctuary, nor a failure to present his claim immediately upon arrival, should justify a refugee's forfeiting the protection of article 31 where good cause was made out. "

Simon Brown LJ deals in the course of his judgement with the issues of “coming directly,” “presenting themselves without delay,” and “good cause”.

The defendant is also entitled to rely upon the defence of duress of circumstances. The defence of duress of circumstances is concerned with the situation where the defendant acts to avert a threat of death or serious physical injury to himself (or to another person for whom he is, or for whom he is made by the situation, responsible), whether from another person or from a natural cause. Where such a defence is open to the defendant on his / her account of the facts, it should be left to the jury with a direction to determine: (1) whether the defendant was, or might have been, impelled to act as she did because, as a result of what she reasonably believed to be the situation, she had good cause to fear that otherwise death or serious physical injury would result; and (2) if so, whether a sober person of reasonable firmness, sharing the characteristics of the defendant, would have responded to the situation by acting as the defendant did. If both questions are answered affirmatively, the defence of duress of circumstances is established.

Commentary by Andy Fitzpatrick , Garden Court North Chambers

27/10/2008