Shabani, Re

A conviction based on a guilty plea should be quashed where incompetent legal advice deprived a defendant of an arguable statutory defence which had a realistic prospect of success. In determining whether a refugee remained in flight for the purposes of section 31(2) of the Immigration and Asylum Act 1999, a stay in a third country requires an assessment of whether the available evidence could support the conclusion that the journey was still in the course of flight.

The appellant, an Iranian national, pleaded guilty at Lewes Crown Court to possessing a false identity document contrary to section 25(1)(a) of the Identity Cards Act 2006. He was sentenced to 12 months’ imprisonment and made subject to deportation.

After the First-tier Tribunal found that he faced a risk of persecution in Iran and granted him asylum, the Criminal Cases Review Commission referred his conviction to the Court of Appeal. The appeal concerned whether inadequate advice had deprived him of a defence under section 31 of the Immigration and Asylum Act 1999, including whether his eleven-day stay in Spain remained part of his flight.

1. The appeal was allowed and the conviction was quashed. The appellant had received incompetent advice from both the duty solicitor and the solicitor who advised him before his guilty plea. That advice failed to identify, or properly explain, the potential refugee defence.

2. Applying the principles in R v Mateta and Others [2013] EWCA Crim 1372, the court held that, if properly advised about the Refugee Convention and section 31 of the Immigration and Asylum Act 1999, the appellant would have had an arguable defence with a realistic prospect of success.

3. The evidence accepted by the First-tier Tribunal could have supported a jury finding that the appellant faced persecution because of his political activities in Iran. It also gave rise to a reasonable prospect that a jury would find that his eleven days in Spain were still spent in the course of flight for the purposes of section 31(2).

4. The court referred both solicitors to the Solicitors Regulation Authority. Their failures had caused the appellant to spend time unnecessarily in prison, and the court considered that the advice fell plainly below the required standard of competence.

• Court of Appeal (Criminal Division) — on a reference by the Criminal Cases Review Commission, allowed the appeal and quashed the conviction: [2015] EWCA Crim 1924.
• Lewes Crown Court — the appellant pleaded guilty to possession of a false identity document, was sentenced to 12 months’ imprisonment, and was made subject to deportation.