England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		5 December 2013

THE LORD CHIEF JUSTICE:

1. This matter has been referred to the court by the Registrar under section 20 of the Criminal Appeal Act 1968.
2. The facts of the case are as follows. Just over nine years ago, on 13 November 2004, the two applicants, who came from the Ivory Coast, entered the shoe shop of a Mr Lagache in Melton Mowbray. They returned on 17 November 2004 and attempted to commit a common type of fraud which is a variant of the advance fee fraud, known as the "black money scam" or the "black dollar fraud". In essence, they told Mr Lagache that they had fled from the Ivory Coast because of war and that their luggage, including a bag containing their life savings, had been brought into the country through diplomatic channels. They spoke of buying a house. They produced an official looking document describing the process of converting US dollar bills that had been given a black coating as a means of disguise, hence the name "black dollar fraud". Pictures were shown of the conversion process which removed the coating. Mr Lagache was given a contact telephone number.
3. Over the following days there were a number of telephone calls and a visit, including one by a third man, during which attempts were made to get Mr Lagache to raise £3,000 to secure the release of the suitcase containing the disguised money. Mr Lagache had the good sense to contact the police. The two applicants were arrested when they returned to the store.
4. When they were interviewed they denied any intention to deceive.
5. However, on 11 March 2005, in the Crown Court at Leicester, both applicants pleaded guilty to a count of attempting to obtain property by deception. On 15 April 2005, they were sentenced by His Honour Judge Bray to seven months' imprisonment. They were then deported. The time for bringing any appeal would have expired 28 days after sentence was imposed by Judge Bray.
6. Over eight years later, in September 2013, this court received Notices of Appeal from the firm of Stephen Fidler & Co of 5 Dyers Buildings, London EC1N 2JT, in which applications were made for an extension of time (over eight years) and for leave to appeal against conviction.
7. The Advice and Grounds of Appeal read as follows:

"1. I have been instructed of late in relation to this matter about both [applicants]. I am in a position to provide correspondence that ultimately was sent to the Legal Services Ombudsman to try and obtain papers from [the original firm of solicitors] who were obstructive in providing papers to my firm. Eventually this matter was resolved because a threat of proceedings in the County Court was made.

2. The proceedings go back to 2005. An extension of time will have to be sought and is sought on the basis that these two men were deported, have very limited command of English. It is only as a result of a friend of theirs, Mr Illiffe in this country that their case is being taken up. I would respectfully submit that if there is merit - and I do suggest there is merit - then they should be given leave to appeal conviction.

3. I attach Crown Prosecution Service papers. Both of them should have been given advice in relation to a defence under the Refugee Convention, both of them asserting asylum from their home country. Of late the court will be aware that the Court of Appeal has allowed leave to be given, possibly out of time, where negligent advice has been given or wrong advice by the previous lawyers. This is a case where wrong advice was in fact given to both defendants as they both had possible defences available to them under the Refugee Convention.

4. I refer firstly to the statement of the interview of [the first applicant] and it will be seen at 8.08, the question, what is said in these terms during the conversation, male [sic] to your friend told me, they fled from the Ivory Coast in West Africa as a result of the war. This must have triggered in the mind of any lawyer that there was a possible defence under the Refugee Convention.

5. Insofar as [the second applicant] is concerned, the same solicitors acted. I am not sure whether it is the same counsel. I am told that he raised the same issue with his lawyers, as to why he came to this country.

6. In the circumstances, albeit briefly, I explain that both of these men should, although they are out of the country, have permission to appeal. Both of them should have been advised that there was a possible defence, and I invite the court, albeit exceptionally, in the light of what I have said to extend the time by some eight years.

7. I am also further instructed that if this court does not grant leave, to refer this matter to the Criminal Cases Review Commission, because it seems to me that this firm should have advised that there was a defence available of duress effectively under the Refugee Convention, which is now of course being encapsulated in law.

8. I advise accordingly.

GROUNDS OF APPEAL

(i) Both appellants appeal on the basis that the advice given by [the original solicitors] to plead guilty was incorrect, negligent, and failed to advise that there was a possible defence under the Refugee Convention, and accordingly extension of time and leave to appeal is sought."

8. The matter was considered by the Registrar. He entered into correspondence with Mr Fidler of Stephen Fidler & Co. He received a number of highly unsatisfactory answers. The Registrar therefore decided to refer the matter to this court so that it could consider whether to exercise its powers under section 20 of the Act. As soon as the date of this hearing was fixed the firm withdrew. We are today told by the advocate from Stephen Fidler & Co that it was for reasons unconnected with the court's decision to deal with the case that Messrs Stephen Fidler & Co withdrew from the case.
9. We have no hesitation in summarily refusing the applications under s.20. The point under section 31 of the Immigration and Asylum Act 1999, which refers to the Refugee Convention, is unarguable, as is accepted before us today. We are told that Mr Fidler decided to bring this appeal on the basis that he had "misread" the section and had relied on some authorities.
10. We do not accept that any lawyer who has any degree of competence could possibly have come to that conclusion.
11. Secondly - and we have the gravest concern in this respect - each of the applicants was advised on the basis of a scheme promulgated by the Legal Aid Agency under which £300 may be spent in giving legal advice in respect of an application of this kind on a self certified basis. That is a total of £600. We are told by the advocate who appears today for Stephen Fidler that, although a Legal Aid form had been completed, the bill has not actually been submitted.
12. It must be appreciated that an application for leave to appeal of this kind is an abuse of the process of this court. No competent lawyer could conceivably have thought that the section had any application to the facts that we have set out. It seems to us that this matter must be referred in the first instance to the Solicitors Regulatory Authority for them to look at, with the degree of urgency that this court expects in cases of this kind. It will be for them to consider the full circumstances of whether there may be some explanation as to how a competent lawyer could possibly have reached such a view. We can presently see none. They will also be able to look at the broader grounds of what has happened.
13. We are equally concerned with the position of the self-certification. We therefore intend to refer the firm of Stephen Fidler & Co for immediate consideration by the Legal Aid Agency. These are hard times for legal aid. Many members of the profession have had their fees reduced and have to work for much less. It is, in our view, incumbent on all solicitors to exercise the most scrupulous degree of care and integrity when operating this scheme, if indeed this scheme should be applicable to further applications to this court. We would invite the Legal Aid Agency to review the operation of this scheme. Money is short, and it should not be wasted on abusive applications of this kind.
14. There is a further public interest. This case has had to be considered by the Office of the Registrar. Work has had to be carried out on it, correspondence entered into, and this court has had to sit today to deal with it. That has caused yet further significant expenditure which, in the ultimate analysis, must be funded by the Ministry of Justice. It is not simply the cost to the Legal Aid Authorities, it is the cost to the system as a whole which diminishes monies that would otherwise be available to pay members of the profession.
15. This court relies on the integrity, honesty and competence of practitioners. It is, therefore, a matter of very considerable urgency that both the Solicitors Regulatory Authority and the Legal Aid Agency review the shocking circumstances of this case.
16. Accordingly, we exercise our powers under section 20 of the Criminal Appeal Act 1968 and we summarily refuse these applications as frivolous and vexatious as they are unarguable. We hope that it will be made very clear to all members of the legal profession who seek to exercise self-certification under the Legal Aid Scheme that this court will scrutinise with great care all such applications to ensure that there is no further abuse of the kind that has occurred in this case.
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