Shabani, Re [2015] EWCA Crim 1924

[2015] EWCA Crim 1924Case No 2014/05589/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Date Wednesday 22 nd July 2015
Between
R E G I N ACrown
The Law Courts
High Street
Lewes
East Sussex
BN7 1YB
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
MR JUSTICE NICOL
and
MR JUSTICE STUART-SMITH
__________________
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ALI SHABANI__________________(Transcript of the Handed Down Judgment ofWordWave International LimitedTrading as DTI165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)__________________Mr D Bunting appeared for AppellantMr B Douglas-Jones appeared for Crown____________________JudgmentTHE LORD CHIEF JUSTICE:
[1]This appeal comes before the court as a reference by the Criminal Cases Review Commission in respect of the appellant's conviction at Lewes Crown Court before Miss Recorder Chalmers. The conviction arises out of a conviction on the appellant's plea of guilty to possession of false identity documents, contrary to section 25(1)(a) of the Identity Cards Act 2006.[2]The basis of the appeal is that those who advised the appellant failed to give any, or any proper, advice in relation to the defence which commonly arises in such cases in relation to those who are fleeing from other countries.[3]The background can be shortly stated, as can the law. The law is to be found in the decision of this court given by Leveson LJ (as he then was) in R v Mateta and Others [2013] EWCA Crim 1372.[4]The appellant was a citizen of Iran. He engaged in various activities there which plainly would have given rise to the question of whether he had been involved in political activities. It is unnecessary to set out the detail. He left Iran in circumstances where it was plain on his account of matters that he would be arrested for the activities in which he had been engaged. He travelled via Turkey to Spain and then to London Gatwick. He told the immigration officers of his visit to Turkey, and he said that he had been in another country. It is clear from the facts that have now emerged that he had been in Spain for eleven days. On arrival at Gatwick on 19th January he was stopped by an immigration officer and his passport (a Lithuanian passport) was examined. Although it was in his name and contained his photograph, it was obviously a false passport. He was interrogated and enquiries were made by the immigration officer.[5]As will be obvious from that account, he was advised by a duty solicitor. We do not name the duty solicitor, but his competence was such that he did not even appreciate that there might be any defence to someone in those circumstances.[6]On 4th February 2011, in the Crown Court at Lewes, the appellant pleaded guilty to possession of a false identity document, as we have set out. It appears that at least the person who advised him on that occasion knew of the defence, but he wholly failed to give the appellant proper advice. As a result, the appellant pleaded guilty and was sentenced to 12 months' imprisonment. An order was made that he was subject to deportation, pursuant to the Borders Act 2007.[7]His case was referred to the First Tier Tribunal Immigration and Asylum Chamber. In a judgment, which we have, the Tribunal very carefully considered all the evidence and concluded that the appellant had been at risk of persecution in Iran and that he left Iran because he was wanted in connection with a criminal offence for conducting his political activities. He had also converted to Christianity after arrival in the United Kingdom. It was concluded that he would have been at risk and that therefore it would not be right to remove him. In consequence, he was granted asylum and given five years leave to remain in the United Kingdom.[8]In November 2012 the appellant took his case to the Criminal Cases Review Commission which, with their usual thoroughness, examined it and referred the matter to this court on 1st December 2014.[9]It is plain that if the appellant had been advised properly in relation to the appropriate article of the Refugee Convention 1951 and section 31 of the Immigration and Asylum Act 1999 he would have had an arguable defence with a realistic prospect of success before this court. Evidence would have been needed in relation to the political activities and the risk of persecution that he suffered, and there would have had to be evidence as to whether, under section 31(2) he was still in flight.[10]We have looked carefully at the evidence in relation to both of the issues. It is plain in relation to the question as to whether he was at risk of persecution for his political activities that the evidence that was before the First Tier Tribunal, and which was accepted by the judge of the Tribunal, would have given rise to a defence with a reasonable prospect of success before the jury.[11]As regards the issue under section 31(2), it provides:
"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."
[12]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.[13]In the result, therefore, it is clear that the Reference by the Criminal Cases Review Commission set forth a very powerful case as to why this court should review the matter. We have been greatly assisted this morning by Mr Bunting, who has appeared on behalf of the appellant, and Mr Douglas-Jones who has appeared on behalf of the Crown. Mr Douglas-Jones has accepted that in the circumstances which we have briefly outlined, and applying the principles set out in Mateta, that this is a case where we should plainly allow the appeal and quash the conviction.[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. _____________________________

Cited in 1 later judgment