Shabani

Citation – Shabani [2015] EWCA Crim 1924

Date – 22^nd July 2015

Keywords – Conviction, false passport, s31, guilty plea

Overview – Conviction for a false passport quashed where inadequate advice given. Police Station Representative and the Crown Court advocate were referred to the SRA due to the nature of the advice given.

Summary –AS, an Iranian national, left Iran due to being wanted for his political activities. Came to the UK via Turkey (not stated how long) and Spain (11 days). Subsequently refused asylum, but appeal allowed by the First Tier Tribunal.

The duty solicitor in interview did not offer any advice on the defence, and although the Crown Court advocate was aware of the defence ‘he wholly failed to give [AS] proper advice‘. As a result the Appellant pleaded guilty.

On a CCRC reference, the appeal was allowed, the Court concluding “The issue in this case would have been whether the time that the appellant spent in Spain was time spent in the course of the flight. In our judgment, having looked at the facts and been taken to the evidence that was available, there was plainly a reasonable prospect of him persuading a jury that he was in the course of flight“

At the end, in relation to the advice given, the Court said

1. 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.
2. 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.
3. 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.

Comment –

(1) The conclusion on the appeal is uncontentious (perhaps unsurprisingly so as the Crown conceded the appeal).

(2)  The main interest in the case will relate to the referral of the duty solicitor and the Crown Court advocate to the SRA due to the lack or inadequacy of the advice given.

Judges – LCJ, Nicol & Stuart-Smith JJ