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Solicitors who failed to advise refugee of defence to illegal prosecution referred to SRA

In yet another example of a refugee who was not properly advised on his defence to a prosecution for illegal entry, Shabani, Re [2015] EWCA Crim 1924 (22 July 2015), the Lord Chief Justice has overturned the conviction but this time has also referred the solicitors responsible for investigation by the Solicitors Regulation Authority.

The refugee was sentenced to 12 months in prison and presumably spent 6 months actually in prison. The Lord Chief Justice is very unimpressed:

14. There is, however, one serious matter. As a result of the incompetent advice given by the duty solicitor, and more seriously by the solicitor who represented the appellant when he was before the Crown Court, the appellant spent time unnecessarily in prison. It has led to the cost of his detention in prison, the investigation by the Criminal Cases Review Commission, and the appearance of two counsel before us today.

15. It is unacceptable that such advice was given which plainly did not pass a standard of competence. It seems to us that people in the position of this appellant, and the system as a whole, are entitled to expect that those who advise in circumstances such as this should be familiar with the law. There can be little excuse for a failure to understand the law and advise properly. We therefore consider that this is a case where we should refer both the duty solicitor and the solicitor who represented the appellant at the hearing to the Solicitors Regulatory Authority for them to consider whether any proper sanction is to be taken against them.

16. The criminal justice system cannot afford the kind of incompetence that was displayed in this case; nor can we as a nation afford to have lawyers who act so incompetently that someone wrongly spends a considerable amount of time in prison. We have not named the advisers because to do so would be to pre-judge the decision of the Solicitors Regulatory Authority. But if the Solicitors Regulatory Authority find, after they have had a chance properly to investigate the matter, that they breached the levels of competence required, they will be named on that occasion.

Perhaps because the lawyers responsible are not immigration lawyers or perhaps not from an ethnic minority, they are not named by the Court, unlike in the Hamid cases. Although the case is referred to the SRA for “investigation” the Court has without doubt prejudged the outcome of that investigation, going even further in impinging on the role of the regulator than in the Hamid cases.

The judgment was originally given orally by the judge in court in July but was only published last Friday. Counsel Dan Bunting, who is acting in many of these cases, warns that this is not the last of these cases:

If interested in these issues, do check out Dan’s excellent microsite on Immigration Offences which includes a detailed factsheet on the section 31 defence for asylum seekers.

Call me naive, but the judgment does cause me to wonder how the Crown Prosecution Service lawyers responsible for prosecuting this and similar case are completely off the hook. Surely they acted in breach of their own guidance and are more responsible for the conviction than the allegedly incompetent defence lawyers? The State seems to be getting away very lightly for its abusive and unlawful prosecutions of refugees.

For previous coverage of this issue on Free Movement see:

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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