Davis, R. v

Where an application for an extension of time and leave to appeal is wholly unarguable, the Court of Appeal may exercise its power under Criminal Appeal Act 1968 section 20 to refuse it summarily as frivolous and vexatious. An asserted defence under the Refugee Convention must have a tenable basis in the relevant statutory provision and the facts. An appeal founded on a plainly inapplicable provision may amount to an abuse of the court’s process.

In 2005, the two applicants pleaded guilty at Leicester Crown Court to attempting to obtain property by deception. They had attempted a "black money" fraud against a shopkeeper and were sentenced to seven months’ imprisonment before being deported.

More than eight years after the time for appeal had expired, solicitors lodged applications for an extension of time and leave to appeal against conviction. They contended that the applicants had received negligent advice because they had not been advised of a possible defence under the Refugee Convention, said to arise through section 31 of the Immigration and Asylum Act 1999.

The Registrar referred the matter to the Court of Appeal under section 20 of the Criminal Appeal Act 1968. The central issue was whether the applications disclosed any arguable basis for reopening the convictions.

1. The court summarily refused both applications under section 20 of the Criminal Appeal Act 1968. They were frivolous, vexatious and wholly unarguable.

2. The proposed reliance on section 31 of the Immigration and Asylum Act 1999, which concerned the Refugee Convention, had no possible application to the facts. The applicants’ assertion that they had fled conflict in the Ivory Coast did not provide an arguable defence to their attempted deception of the shopkeeper. The advocate accepted that point before the court.

3. The court held that no lawyer with an appropriate degree of competence could reasonably have concluded that the provision supplied a defence. The application was therefore an abuse of the court’s process.

4. Because the applications had been advanced under a self-certification legal-aid scheme, the court directed that the circumstances be referred urgently to the Solicitors Regulation Authority and the Legal Aid Agency. It stressed that practitioners must exercise scrupulous care and integrity when using such a scheme, and that abusive applications waste both legal-aid and court resources.

• Court of Appeal (Criminal Division): following a referral by the Registrar under section 20 of the Criminal Appeal Act 1968, summarily refused the applications for an extension of time and leave to appeal against conviction.

• Crown Court at Leicester: on 11 March 2005 the applicants pleaded guilty to attempting to obtain property by deception; on 15 April 2005 they were each sentenced to seven months’ imprisonment.