Scottish Court of Session Decisions

Saha v. Straw [2002] ScotCS 266 (25 September 2002)

OUTER HOUSE, COURT OF SESSION
P206/01	NOTE OF LORD WHEATLEY in Petition by DEBRAJIT KUMAR SAHA Petitioner; against THE RIGHT HONOURABLE JACK STRAW, MP for Judicial Review Respondent:   ________________

 

 

Act: Govier; Skene Edwards, W.S.

Alt: Lindsay; H. F. Macdiarmid

25 September 2002

1. This is an application by the petitioner for reduction of determinations of the Special Adjudicator and the Immigration Appeal Tribunal pronounced respectively in December 2000 and January 2001. The petitioner has apparently been detained at HM Prison Gateside since 26 January 2001.
2. At this first diet on 25 September 2002 counsel for the petitioner intimated that the petition could not proceed because the petitioner had not received a final decision from the Legal Aid Board on his application for legal aid. The case has had a lengthy history. The first order was made on 8 February 2001 and legal aid was applied for at that time. The application was refused in April 2001 and an application for review was also refused in May 2002. Subsequently, a second application for legal aid, based on a fresh opinion of counsel, was lodged on 31 October 2001. This application has been returned to the petitioner on four occasions for further information or for further formal requirements to be satisfied. In November 2001 the application was returned for further documentary evidence to be supplied. The application was returned to the Board on 11 January 2002. In June 2002 the Board returned the application for further financial information and this was supplied in July. On 1 August 2001 the application was returned for re-signing and re-dating and also apparently for further financial information. On 30 August 2001 the application was returned duly amended but the Board required again to return the application to the petitioner for re-signing and re-dating. There is no further information suggesting that the application has been returned to the Board. It was said that there was some difficulty in tracing the papers concerned with the petitioner's application in the offices of the Scottish Legal Aid Board. This may be because the application had never progressed sufficiently to be allocated a number. It did appear to be conceded by the petitioner's counsel that there had been no fault on the part of the Legal Aid Board. In response, counsel for the respondent submitted that the application had already been refused twice on the merits, and that it was the responsibility of the petitioner to see that the legal aid application was properly submitted. This clearly had not happened and this failure was the reason for the significant delay in the completion of the process of the legal aid application.
3. It was therefore necessary to decide whether or not further latitude should be allowed to the petitioner so that the procedure in respect of his application for legal aid could be completed. The balance which required to be struck was between giving any one seeking asylum the fullest opportunity within reason to be adequately represented on the one hand and the need to process such applications fairly and expeditiously on the other. In the present case, after the initial refusal of legal aid, it has taken the applicant nearly a year to submit what should be a straightforward application and that application is still not fully before the Legal Aid Board. In circumstances where it is not said that the Legal Aid Board are substantially responsible for the delays in this application, I concluded that the petitioner had failed to make out any reasonable case why further delay should be allowed. I therefore refused the motion to adjourn the first diet.
4. Thereafter, counsel for the petitioner withdrew from acting although the solicitors instructing him did not. The respondent's counsel moved to dismiss. There being no opposition to that motion, and no other course apparently open to the petitioner, I granted the respondents motion.