Background
THR, a 38-year-old Kurdish woman of Turkish nationality, arrived at the Birkenhead ferry terminal on 12 February 2023 after an irregular journey through Greece, Italy, and Ireland facilitated by people smugglers. She presented a false Polish identity document to a border officer before confessing her true identity and producing genuine Turkish documents. She later disclosed that she held a 6-year-3-month sentence in Turkey for terrorism-related offences arising from Kurdish cultural and political activities, and that her family had engaged agents to help her flee further persecution.
She was tried at the Crown Court at Liverpool before HHJ Byrne on a charge of possessing an identity document with improper intention contrary to s.4(1) and (2) of the Identity Documents Act 2010. Her defence rested on two grounds: that she lacked improper purpose, and that she was protected by the s.31 refugee defence under the Immigration and Asylum Act 1999 (as amended), which shields refugees who present themselves to UK authorities without delay, show good cause for irregular entry, and claim asylum as soon as reasonably practicable. The jury convicted her and she was sentenced to 18 months’ imprisonment, which she completed before pursuing her appeal.
Post-conviction, a consultant forensic psychiatrist, Dr Stania Kamara, conducted six and a half hours of interviews with THR and reviewed available medical records. Dr Kamara concluded that THR had been suffering from complex PTSD and depression at the time of trial — conditions she found to a degree unusual even among PTSD sufferers — which significantly impaired her ability to listen, understand, and communicate coherently, particularly under cross-examination. No special measures, intermediary, ground rules hearing, or jury direction addressing her vulnerability had been provided at trial.
The Court’s Holding
The Court of Appeal (Lord Justice Popplewell, Mr Justice Linden, and Mrs Justice Brunner) admitted the fresh psychiatric evidence of Dr Kamara and a witness statement from Mr Knight (a Kurdish-speaking barrister who had observed THR’s deteriorating presentation in custody), and allowed the appeal, quashing the conviction as unsafe. The principal ground was that the absence of reasonable adjustments for a defendant with diagnosed complex PTSD and depression — and the absence of any jury direction on the effect of those conditions both on the quality of her evidence and on her conduct at Birkenhead — gave rise to a real risk of an unfair trial.
The Court also admitted a report from Ms Bouchetel documenting the practice of Greek authorities returning refugees to Turkey without investigating their asylum claims at the relevant time. It found that the trial judge’s indication that judicial notice of Greece’s status as a Refugee Convention signatory entitled the Crown to challenge THR’s claim on this issue — without independent supporting evidence — likely left the jury with a misleading impression that the relevant element of the s.31 defence could not be made out. This further undermined the safety of the conviction.
A third ground was that both prosecution and defence had failed to draw the jury’s attention to the fact that THR’s legal representative had indicated an intention to claim asylum on her behalf at the very first interview on the evening of arrest — the date the Home Office itself treated as her asylum claim date. The issue had instead been put to the jury on the basis that no claim was made until June or July 2023, which materially misrepresented that element of the s.31 defence. The Crown conceded it shared responsibility for the oversight and did not seek a retrial.
Key Takeaways
- A defendant with complex PTSD whose mental health difficulties were not apparent to lay observers at trial may nonetheless establish on appeal that the absence of reasonable adjustments and appropriate jury directions rendered the trial unfair and the conviction unsafe.
- Under the Criminal Procedure Rules 2020 and Criminal Practice Directions 2023, courts must take every reasonable step to facilitate the effective participation of vulnerable defendants, including considering intermediaries, ground rules hearings, and tailored jury directions — obligations that are not discharged merely because the vulnerability was not flagged by the parties at the time.
- The s.31 refugee defence requires careful attention to what a defendant could reasonably be expected to have known or done in countries of transit: factual evidence of systemic non-compliance with Refugee Convention obligations (such as refoulement practices in Greece) is capable of being admitted as fresh evidence where it would have had an important influence on a key issue at trial.
- Both prosecution and defence bear a duty to ensure that the jury is accurately presented with all material evidence bearing on a statutory defence; an error on the asylum-claim timing issue, shared by both sides, was a further independent basis for finding the conviction unsafe.
Why It Matters
This decision reinforces that the duty to identify and accommodate vulnerable defendants does not rest solely on the parties: courts retain an independent obligation under the Criminal Procedure Rules and Practice Directions to probe vulnerability and implement appropriate adjustments, even where trial counsel and the judge were unaware of the underlying diagnosis. Practitioners instructed in cases involving asylum seekers or others with trauma histories should consider early psychiatric assessment as a matter of course, given the heightened risk that complex PTSD — which can impair memory, coherence, and communication in ways that mimic evasiveness — will go unrecognised without expert input.
The case also clarifies that the s.31 refugee defence must be assessed against the real-world conditions in transit countries, not merely their formal treaty obligations. The Court’s willingness to admit expert evidence of Greece’s refoulement practices signals that country-conditions evidence will be relevant to whether asylum could reasonably have been sought in transit, and should be gathered proactively rather than left to be challenged without evidential rebuttal at trial.