Court of Appeal criticises firms’ handling of immigration defendants
In two judgments delivered in October, the court of appeal highlighted deficiencies on the part of both prosecutors and defence practitioners when handling cases involving immigration defendants. The cases show just how important it is to secure high-quality defence solicitors if facing immigration-related charges. Latitude Law has worked on several cases with Olliers Solicitors in Manchester, whose details can be found at http://www.olliers.com
The first, R v Mohamed and others [2010] EWCA Crim 2400, concerns four convictions for holding improperly obtained identity documents with intent to use them, for example, in seeking to enter the UK, contrary to s25(1) Identity Cards Act 2006. In all cases, solicitors for the defendants were said to have failed to advise on the availability of the statutory defence to this and other immigration offences under s31 Immigration and Asylum Act 1999. That is, on the ground that the defendant was a genuine refugee who effectively had no choice but to use false documents.
The court entertained these appeals on the basis that inadequate defence advice had rendered each guilty plea in the court below a nullity, citing R v Evans [2009] EWCA Crim 2243. It took the unusual step of naming defence firms involved in the flawed trials. In the case of Mohamed, the solicitor advocate representing the appellant was cross-examined in court, and was found to have considered (although not raised) the s31 defence. In the other appeals, defence solicitors failed to consider s31 at all, and were criticised for their failures. The judgment ends:
The second case, LM and others v R [2010] EWCA Crim 2327, concerned five women, victims of trafficking into the UK, whose prosecutions for prostitution and document offences were said to be contrary to CPS guidance on the impact of Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005.
The successful appeals against conviction of LM, DG and MB highlight the need on all sides to be alive to the Convention and related guidance both at the outset of and during a case; here, a basis of plea was arrived at which, said Lord Justice Hughes, ought to have led to the CPS discontinuing, or applying for a stay of proceedings. The defendants’ solicitors did nothing to point this out to prosecutors.
In the appeal of Tabot the court noted that the defendant’s solicitors had failed to advise their client about the application of Article 26 of the trafficking convention; however, on the evidence, this woman’s claim to have been trafficked to the UK was not credible, and so her conviction stood. In the final case of Tijani, the defence solicitor had been alive to the convention, and had properly advised – again due to credibility issues – against an application to discontinue.
In relation to referral to trafficking identification agencies, the court put the responsibility of defence lawyers as follows:
“32...Where a defendant has solicitors acting for her, it seems to us, however, that unless there is something unusual about the case the obligation of the police is met by reminding the solicitors of the availability of the identification agencies. It does not appear to us desirable that the police should be required to refer such persons against their own opposition, informed by legal advice. The situation of an unrepresented defendant may well be different.”