R v THR

Following a trial before His Honour Judge Byrne and a jury in the Crown Court at Liverpool, the applicant was convicted of an offence of possession of an identity document with improper intention contrary to section 4(1) and (2) of the Identity Documents Act 2010. Her application for leave to appeal against conviction and sentence, and to adduce fresh evidence, was referred to the Court by the single Judge. We directed a rolled up hearing and heard the fresh evidence de bene esse. At the conclusion of the hearing we announced our decision to admit the fresh evidence, grant leave and allow the appeal against conviction. These are our reasons.

The applicant is of Kurdish origin and Turkish nationality. On the evening of 12 February 2023, then aged 38, she arrived at the ferry terminal at Birkenhead having travelled as a foot passenger from Belfast. She was a passenger in a vehicle being driven by a man when stopped by PC Moroney. She presented a false Polish identity document with a photograph of herself under the name Ewa Walter. PC Moroney’s evidence was that he asked her to confirm that her name was Ewa Walter a number of times before asking her to step out of the vehicle. When she was out of the vehicle she confessed that her name was not Ewa Walter and gave her true name and provided one or more genuine Turkish identity documents. When arrested and cautioned by PC Johnson she replied “I do not understand”.

She was taken to the Wirral Custody Suite and interviewed for a little over half an hour with a legal representative and a Polish interpreter present. She explained that she had been going to declare her true identity when she got here and revealed that she was subject to a sentence of 6 years and 3 months imprisonment in Turkey which was the subject of a pending appeal in the Supreme Court. This was for terrorism offences as a result of allegedly being a member of PKK and supporting Kurdish independence activities. The legal representative said that she was looking to claim political asylum and was fleeing Kurdistan (sic) as a political prisoner seeking to avoid a political sentence. She explained that she had travelled from Turkey in the hands of people smugglers who had brought her via Greece to Italy, thence to Dublin, and then on to Belfast where they had left her when she boarded the ferry. She said she had panicked in producing the Polish ID card and had been going to go to a police station to declare her true circumstances. She was then interviewed by police in relation to possible terrorist offences as a result of her revelation, and detained until her trial which took place in October 2023. She was sentenced to 18 months imprisonment on 25 October 2023 and has completed that sentence.

The applicant was represented by Morgan Has Solicitors Ltd (‘Morgan Has’), and at trial by counsel, Ms Deb. Morgan Has had produced a lengthy proof of evidence which detailed some of the persecution and serious trauma to which she said she and her family had been subjected in Turkey. This had been taken with the assistance of a paralegal in the firm who spoke Kurdish. The essential elements, with the psychological effects as related to Dr Kamara after her conviction (see below), were as follows.

The Defence case at trial was that there was no improper purpose in producing the Polish ID document; alternatively there was a defence under s. 31 of the Immigration and Asylum Act 1999, as amended by s37(5)(a) of the Nationality and Borders Act 2022, which provides as follows:

What is “reasonably practicable” for the purposes of making a claim for asylum in the United Kingdom under s. 31(1)(c) is an objective test, taking account of the defendant’s state of knowledge, intention and mind (R v Jaddi (Sina) [2012] EWCA Crim 2565 [29]). A similar approach is to be taken to what could reasonably be expected in relation to claiming asylum in a country of transit under s. 31(2).

The applicant gave evidence for almost all of the day on 24 October 2023 with a Turkish interpreter. The applicant spoke some English, having taught it to High School students in Turkey, and sometimes answered in English without waiting for interpretation. There was a short break of about 5 minutes in the morning and the afternoon. Her account of her intentions when arriving at Birkenhead and producing the Polish ID card in the name of Ewa Walter was a little confused but included assertions that she had picked out the document by mistake, and that she had not intended to use it to remain in the country by deception but was planning on going to the nearest police station to reveal her true circumstances.

The issues for the jury, so far as relevant to the grounds of appeal, were:

Ms Munro Kerr appeared on the applicant’s behalf before us. By the conclusion of her attractively presented argument, it had been refined into essentially three grounds each of which was said to undermine the safety of the conviction. The first was that the applicant’s mental health difficulties meant that reasonable adjustments ought to have been made in relation to her evidence, and the jury directed about the effect which her mental health might have had on her evidence and her actions at Birkenhead. This depended upon the admission of fresh evidence from Dr Stania Kamara, a consultant forensic psychiatrist, and from Mr Knight, a barrister. The second was based on a report of Marion Bouchetel to the effect that Kurds were at the time regularly returned to Turkey in breach of Greece’s obligations under the Refugee Convention, which related to the issue whether the applicant could reasonably have been expected to claim asylum in Greece when in transit. The third related to the issue of when she had claimed asylum in England and whether this was as soon as reasonably practicable after arrival. Singly and cumulatively, it was submitted, they rendered her trial unfair and undermined the safety of the conviction.

The applicant was interviewed by Dr Kamara, over the course of three interviews between March and May 2025 lasting some 6 ½ hours in total. Dr Kamara had access to medical records since the applicant’s arrival in this country but not to any records when she was in Turkey. She produced a detailed report dated 23 July 2025, and a shorter addendum report dated 9 April 2026. She gave evidence to us at the hearing of the applications and was cross-examined by Mr Grant, who did not challenge her expertise.

The conclusions she reached can be summarised as follows. The applicant was and is suffering the symptoms of complex PTSD and depression which are consistent with her account of traumatic experiences suffered in Turkey as a result of persecution for her and her family’s Kurdish sympathies and activities. She was not feigning or malingering in her account of her symptoms. They were consistent with, and supported by, the diagnosis of complex PTSD made by the mental health review team, which would have included a consultant clinical psychiatrist, in February and March 2024 during the time when she was serving her sentence for the index offence; and by the medical records of her presentation and treatment since then. She was suffering those symptoms at the time of her trial, which were likely exacerbated by her experience of imprisonment awaiting trial. Her mental health conditions have a significant impact on her cognitive processing, memory, and comprehension. Particularly when she is distressed, these abilities become significantly impaired, making it difficult for her to listen, understand, and communicate clearly and coherently. That would be particularly acute in the courtroom setting of giving evidence and being cross-examined. Dr Kamara told us that these symptoms were apparent in the interviews she conducted with the applicant to an unusually high degree, even for sufferers of PTSD. Additionally, the trauma had likely interfered with the recording of traumatic events in her memory, leaving gaps in her episodic memory which in turn would make it more difficult to give a coherent timeline of events. The way in which she gave her evidence is consistent with, and supports, this diagnosis and opinion; Dr Kamara drew attention to numerous specific references in the transcript of her evidence which she said illustrated the effect of the PTSD on the way she gave her evidence and which, in Dr Kamara’s clinical opinion, illustrated the significant impairment of her ability to listen, understand and communicate clearly and coherently.

All this supported the applicant’s account to Dr Karama of her experience of giving evidence which was recorded in the following terms:

“117.

The appplicant recalled attending Liverpool Crown court to give evidence in October 2023. She found it difficult to work with the interpreter and had thought that the interpreter was not accurately translating what she wanted to say and so she had to interrupt the interpreter. She thought that the judge had not liked this and thought her rude and this made her even more anxious, as she had not wanted to upset the judge. Of the interpreter she said, “when I tried to speak, she would not repeat what I wanted,she was unable to say what I wanted”…

118.

She recalled that her solicitor was not present rather a barrister who she believed did not know enough about her case in order to be able to represent her properly. She also had not had sufficient time to speak to her barrister to share her story. She described feeling overwhelmed by matters and unable to calm herself down …

119.

Giving evidence “was a big, big challenge”. She could not recall how long she gave evidence for, but it felt like only a few minutes. She found it hard to concentrate and was overwhelmed by her emotions. During cross examination she was “accused of falsehoods” and described the judge “killing me”. I understood this to mean that she was so upset that they did not believe her account of events and to her and they would send her back to Turkey where she was sure she would be killed. This belief made her even more anxious, “I was so scared because they were killing me, they were killing me”.

120.

She found it difficult concentrate on the questions being asked as she was so overwhelmed by this fear. She thought that if she had been allowed to give information to her barrister she would have been better able to concentrate.

121.

She stood whilst giving evidence and felt very dizzy but did not report it as she as afraid that it would reflect badly on her. She also had stomach pains and felt nauseous throughout. She believed that the judge did not like her because she kept interrupting the interpreter and thought she would make things worse by saying anything. She had forgotten to ask to be allowed to take her prescribed medications, including her painkillers and Mebeverine which was prescribed for dizziness, to court.”

In Dr Kamara’s opinion, the applicant’s behaviour when presenting the false ID document was likely influenced by her complex PTSD and depressive disorder; at the least that is a possibility, which is consistent with, and supported by, the descriptions of her behaviour by the two police officers as well as her own account of her feelings on and after her arrival. Dr Kamara accurately summarised this evidence in the following terms:

“The arresting officer noted that she appeared upset and had difficulty understanding the situation. She reported feeling very nervous during the incident and struggled to understand the accent of the man questioning her, often responding affirmatively without fully understanding the questions. She explained that she panicked when stopped by the police and mistakenly presented the false Polish ID instead of her Turkish ID as intended. During her post-arrest interview, she stated that she did not comprehend what was happening. She described experiencing, during the post-arrest interview, somatic symptoms of anxiety consistent with a panic attack, including an increased heart rate, rapid breathing, headache, and a sensation of heavy

noise in her ears and head.”

Dr Kamara’s opinion was that the applicant’s ability effectively to participate at trial was impaired, and that the following reasonable adjustments should have been considered: use of simple, jargon free, short questions, addressing one idea at a time especially when speaking on topics she finds distressing; allowing more time than usual for her response to questions, repeating and paraphrasing as necessary; anticipating emotional arousal and distress when speaking about past traumatic experiences and giving more time for questioning on these topics; provision of written information in an easy-read format preferably in Kurdish (ideally) or Turkish; explanation of the rules and procedures of court prior to her appearance with an easy-read written copy provided for reference as likely to forget during periods of distress; if appropriate, to be provided with a notebook so she can write down thoughts or any points she wishes to raise with counsel at the appropriate time; use of visual timelines to aid linear recall of dates, time and location of specific events; use of a Kurdish interpreter (her mother tongue is Kurdish; she speaks Turkish but acquired this as her second language and during states of distress, she is better able to communicate in Kurdish); brief frequent breaks, every 30-45 minutes or so, to allow her time to slow her thinking and calm her emotions; being reminded to use relaxation and breathing techniques as likely to forget during periods of distress; being allowed to stay seated when giving evidence and during cross-examination, as this could reduce the impact of dizziness and other somatic symptoms of anxiety; being allowed to be accompanied by someone for emotional support e.g. a befriender from Women for Refugee Women; the assistance of an intermediary to help identify the most effective means of communication and develop a plan tailored to her specific needs.

Dr Kamara’s opinion that her symptoms were likely exacerbated by her experience of imprisonment awaiting trial was supported by the fresh evidence in the form of a statement from Mr Knight, which the Crown did not challenge. He is a Kurdish speaking barrister with a particular interest in international humanitarian law who had spoken to the applicant on numerous occasions by phone when in custody awaiting trial and said that her presentation deteriorated over the course of the conversations; that by the time of her trial she appeared to find it difficult to pursue a single train of thought or remain on-topic; that she was tearful; and that she was finding it difficult to explain what she was trying to say, or listen to what he was trying to tell her.

Dr Kamara was reluctant, when cross-examined, to express any view as to whether what she could diagnose and appreciate from her clinical expertise would reasonably have been apparent to a lay person, such as the trial judge or the applicant’s legal representatives, from her presentation at or before the trial. In responses to McCook inquiries, Morgan Has and trial counsel said that they had not thought that she was suffering from mental health problems or that special measures were necessary; or that further investigation or commissioning of a psychiatric report was necessary.

Ms Munro Kerr made clear that her application did not depend upon any criticism or attribution of blame to those conducting her defence or to the trial judge; rather her argument was simply that what is now known reveals that reasonable adjustments were appropriate and that their absence, and the absence of appropriate directions about her mental health, has adversely affected the fairness of her trial. In this respect she relied on the following provisions addressing the treatment of vulnerable witnesses.

The Criminal Procedure Rules 2020 provide:

The Criminal Practice Directions 2023 provide as follows:

“Vulnerable people in the courts

6.1.1

The court is required to take ‘every reasonable step’ to encourage and facilitate the attendance of witnesses and to facilitate the participation of any person, including the accused. This includes enabling a witness or accused to give their best evidence, and enabling an accused to comprehend the proceedings. The pre-trial and trial process should, so far as necessary, be adapted to meet those ends.

6.1.2

Toolkits available through The Advocate's Gateway are a valuable resource. Advocates should consult and follow the relevant guidance whenever they prepare to question a young or otherwise vulnerable witness or accused. Judges should refer advocates to this material and use the toolkits themselves as an aid to case management.

6.1.3

‘Vulnerability’ may arise by reason of age, but also encompasses anyone who may not be able to participate effectively if reasonable steps are not taken to adapt the court process to their specific needs.

6.1.4

Where there is a vulnerable witness or accused, consideration must be given to holding a ‘ground rules hearing’ (GRH). The greater the level of vulnerability the more important it will be to hold such a hearing. A GRH is required in all trials involving an intermediary. The arrangements for the trial must be discussed between the judge or magistrate(s), advocates and intermediary before the witness gives evidence. The intermediary must be present for the GRH …

…

6.1.6

The judge must stop over-rigorous or repetitive cross-examination of a child or vulnerable witness/defendant. Intervention by the judge, magistrate(s) or intermediary (if any) is minimised if questioning, taking account of the individual’s vulnerability, is discussed in advance and ground rules are agreed and adhered to.

…

Intermediaries

6.2.1

Intermediaries facilitate communication with witnesses and defendants who have communication needs. Their primary function is to improve the quality of evidence and aid understanding between the court, the advocates and the witness or defendant.

…

Intermediaries for defendants

6.2.4

The court may direct the appointment of an intermediary to assist a defendant in reliance on its inherent powers. There is however no presumption that a defendant will be so assisted and, even where an intermediary has the potential to improve the trial process, appointment is not mandatory. The court must adapt the trial process to address a defendant’s communication needs.

6.2.5

Other measures designed to accommodate the needs of a vulnerable defendant will also need to be considered, whether or not an intermediary is appointed.

6.2.6

The court may exercise its inherent powers to direct appointment of an intermediary to assist a defendant when giving evidence of for the entire trial. Terms of appointment are for the court.”

The Advocate’s Gateway toolkit “Planning to question someone with a Suspected (or diagnosed) mental health disorder” (May 2023) provides guidance for effective questioning of such defendants and witnesses. It notes that triggers can include “questioning or feeling ‘interrogated’; feeling trapped; feeling of not being listened to or believed; loss of control or choices, feeling excluded from decision making; feeling of being pushed, rushed or hushed.” It states that “People with disordered thinking find it hard to keep a logical order to their ideas and their thoughts and speech may be jumbled and disconnected, giving the impression that they lack credibility. Recounting the experience of events may also reawaken or intensify feelings of fear and distress, and an advocate should be prepared for this possibility during questioning.”

The Equal Treatment Bench Book, February 2021 with April 2023 revisions, provides (p 49):

“124.

Criminal cases vary greatly in their factual complexity and legal and procedural difficulty. In many cases, competent representation, various adaptations and good trial management can overcome any difficulties. However, the court must appoint an intermediary to facilitate the defendant’s effective participation in the trial where:

•Their ability is likely to be diminished by reason of age (if under 18), mental

disorder, significant impairment of intelligence and social functioning, or

physical disability or disorder.

•The appointment is necessary to facilitate effective participation.

125.

If it is clear that all other adaptations to the trial process will not ensure that the defendant can effectively participate in the trial, an intermediary must be appointed. Otherwise, the defendant will not have had a fair trial.”

We found Dr Kamara to be an impressive witness. She was suitably measured, and recognised the limitations inherent in the absence of records from Turkey and her reliance on the applicant’s account of events. Nevertheless she was confident that her conclusions were justified based on the objective evidence drawn from her own observation of the applicant in interviewing her, the medical records of her diagnosis and subsequent presentation following her imprisonment after sentence, the transcript of the way she gave her evidence, the evidence of the officers who saw her on the evening in question, and trial counsel’s description of her in the McCook response which was that she “presented as emotional, nervous and anxious” when she first attended, and that following her evidence she was highly emotional whilst the jury were considering their verdicts.

We should also mention two further passages in the transcript which suggest that, at the time Mr Grant was cross-examining the applicant, he suspected that mental health difficulties might be affecting her evidence. At one point he asked: “Now I am saying this with a great deal of respect to you. Do you have any mental health problems?” When asked by Mr Justice Linden in the course of the hearing before us whether the question was prompted by there appearing to be something amiss in the applicant’s mental health, Mr Grant confirmed that that was something which had occurred to him. Later on in the cross-examination he said to the applicant: “Let us just pause for a moment then. No need to panic.” When asked whether that was because she appeared to be panicking, Mr Grant said that it was merely rhetorical comment, designed to induce a pause, which we found difficult to understand; but he then said that it might have been prompted by the manner in which the applicant was responding, a manner he was not used to encountering in cross-examination.

Ms Munro Kerr did not criticise Mr Grant for his manner of cross-examination, which was firm and at times rigorous and persistent in a way which would not have been inappropriate with a dishonest and evasive witness. We too make no criticism of him. However had it been known that the applicant was suffering from the mental health difficulties Dr Kamara identifies, a different approach would have been required, making a number (though not necessarily all) of the reasonable adjustments appropriate for vulnerable witnesses which Dr Kamara identified. Depending on the effectiveness of those adjustments, consideration would have needed to be given to whether the jury should be directed to consider whether those impairments impacted on the applicant’s presentation as a witness. In any event the jury would have been required to be directed that they should take into account such impairments in considering the issue of whether she was seeking to use the false ID document for an improper purpose on the evening in question.

The fresh evidence of Dr Kamara and Mr Knight is cogent and credible. It is not through any fault on the applicant’s part that such evidence was not available at trial. The interests of justice therefore required us to admit this fresh evidence having particular regard to the matters identified in section 23(2) of the Criminal Appeal Act 1968. It means that the absence of reasonable adjustments, and absence of any suitable direction to the jury, gives rise to a real risk that the trial was unfair and that the conviction was for these reasons unsafe.

Ms Bouchetel provided a detailed report about the practice of Greek state actors returning Turkish refugees crossing the (mainly river) border between the countries at around the time in question. She did so from her own experience working in the area, and from publicly available material. The Crown did not require her to attend for cross-examination and did not challenge her expertise or evidence.

The evidence takes on a particular significance in the light of the way in which the issue of whether the applicant could reasonably have been expected to claim asylum in Greece was dealt with at the trial. In cross-examination the applicant said that the reason she did not claim asylum in Greece was because she knew that Greece returned refugees to Turkey without investigation of their asylum claims and it was a fear of this which led her not to claim asylum in Greece. When she did so Mr Grant asked sceptically, “So the Greek authorities, a country that is a member of the European Union, would hand you back to the Turkish authorities; that is what you are telling this jury?”. She replied that she had seen it and suggested that Mr Grant should check the news. When she said at a later stage that that she had not claimed asylum in Italy either because she feared she would be sent back to Turkey, Mr Grant said; “Yes, you keep on saying this, but you have not produced any evidence to suggest they would turn you back, have you?” This would have been seen as reference to Greece as well as Italy. Following an intervention by Ms Deb, the judge said that there were burdens on the defence in relation to this ingredient of the statutory defence and that he would take judicial notice of the fact that Italy and Greece were both signatories to the UN Convention on Refugees, so that that “he (i.e. Mr Grant) is entitled to put this to her.” That very likely left the jury with the impression that in the absence of independent supportive evidence of a practice in Greece, it was impossible for the applicant to make out the ingredient of her defence that that she could not reasonably have been expected to have claimed asylum in Greece, and that for that reason alone the defence could not succeed.

In those rather unusual circumstances the evidence of Ms Bouchetel is of considerable importance to that element of the defence. It is credible evidence which might have had an important influence on what was one important issue in the case. Again the interests of justice mean that we should admit the evidence having regard to the particular matters to which regard is required to be had by s. 23(2). Taking that evidence into account it affords further reason to doubt the safety of the conviction.

We should emphasise that we are not suggesting that evidence of this kind ought normally to be obtained or that it will routinely be admitted at trial; nor that if obtained after the event it will routinely be admitted as fresh evidence. We do so in this case because of the rather unusual circumstances in which the applicant’s specific evidence on the point was dealt with and because it contributes to the overall conclusion that the safety of the conviction is undermined.

The applicant’s evidence when cross-examined about when she had first claimed asylum was rather confused and did not involve any reference to what happened at the interview on the evening on which she arrived in Birkenhead. The issue was left to the jury on the basis that she had not claimed asylum until at least June or July. The judge said:

“… Finally, she must prove that she made a claim for asylum as soon as was reasonably practicable after her arrival here. Now, as soon as reasonably practicable is not the same as the very first possible moment, but time does start to run from the moment that she arrived in the UK on 12th February this year. Now in evidence [the applicant] said that she did make an asylum application. She had two appointments in June or July, but they were cancelled and she was told on 24th August that her application had been received. She did then to go on to appear to blame her own solicitors for any delay that was caused, but she also added this, "In court I learned that I do not have an application." Make of that what you will, whether you consider that she has made a claim and has done so as soon as was reasonably practicable are matters for you.”

In fact her legal representative had indicated an intention to claim asylum at the first interview on the evening of 12 February 2023. That is the date on which the Home Office treated her as having claimed asylum when determining her claim. It appears that both the defence legal team and Mr Grant simply overlooked this aspect of the record of interview, which was in evidence. This involved an element of fault on both sides. The McCook responses from trial counsel and Morgan Has did not provide any explanation. Before us Mr Grant readily accepted that that the Crown also bore a duty to present this aspect of the case fairly and apologised for his oversight. Had the issue whether the applicant had claimed asylum been presented to the jury on the basis that it was agreed that she had indicated such an intention shortly after her arrest on the evening in question, through her legal representative, that would have put a very different complexion on that aspect of the defence. This provides further reason for doubting the safety of the conviction.

For these three reasons taken together, but principally by reason of the fresh evidence of Dr Kamara, we concluded that the conviction was unsafe. Mr Grant confirmed that the Crown do not seek a retrial and we do not need to address the application for leave to appeal against sentence.