R B and Another v Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 20 December 2012 |
| Neutral Citation | [2012] EWHC 3770 (Admin) |
| Docket Number | CO/11272/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2012 |
[2012] EWHC 3770 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
President of the Queen's Bench Division
(Sir John Thomas)
Mr Justice Cranston
CO/11272/2012
CO/11205/2012
&
&
THE PRESIDENT:
The issue
Today there are two cases before this court which we will refer to by the initials "B" and "J". As will become apparent when we set out the facts, there were, in essence, two explanations for what had happened in these cases. The first explanation is that the lawyers concerned were competent in the area of immigration law, but put forward applications to the court which, being competent practitioners, they must have appreciated were applications supported by arguments that were nonsensical. The other explanation was that those lawyers putting forward these applications were not competent in the area of the law and put forward applications in ignorance of the law that showed the lawyers were incompetent. As a result of the hearing before us, it is clear that both cases fall within the second category, in that arguments that were nonsensical were put forward to the court by lawyers who did not have the degree of competence that is essential to practice in immigration law.
The duty to the court
I say that by way of introduction because it is important to realise that advocates and litigators owe a duty to the court. That is a longstanding part of our law but it is reflected in section 188 of the Legal Services Act 2007, which provides, at subsection 2:
"(2) The person to whom the section applies has a duty to the court in question to act with independence in the interests of justice.
"(3) That duty, and the duty to comply with relevant conduct rules imposed on the person by section 176(1), override any obligations which the person may have (otherwise than under the criminal law) if they are inconsistent with them."
The duty of the advocate to the court has been set out in a number of authorities. Perhaps most pithily, it is put by Lord Denning MR in Rondel v Worsley [1967] 1 QB 443 at 502, where he says of a lawyer:
"He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that is fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court."
In more prosaic terms, those duties are set out in the respective rules of conduct of both of the solicitors and barristers profession. The duties of an advocate are also referred to in the decision of the Privy Counsel in Harley v McDonald [2001] UKPC 18, [2001] 2 AC 678, particularly at paragraphs 55 and following.
The observance of the duty to the court and the requirement of competence
It is important in cases involving asylum and immigration, where the court offers a very generous service, both out of hours and in the speed of its decision making, that lawyers put at the forefront of their consideration two things: one, only to undertake cases where they have a proper knowledge of the law to be able to put forward competent arguments and, secondly, to bear in mind always the paramount duty to the court which I have just summarised.
In these two cases, it seems clear to me, on what has been said, that the duty to the court was overlooked but, more seriously, there was a lack of professional competence. Apologies have been made by counsel and solicitors who acted in the case of B. In the case of J, the solicitor-advocate who made the application, and the partner of the firm which had recently employed him, also put forward an apology to the court. I will not now name any of the solicitors or advocates concerned, but I intend briefly to set out the facts as illustrative of what happened in these cases, which must never happen again, and of the importance in this field of law of the observance of the duties to which I have referred.
The case of B
It was his case that he had arrived in the United Kingdom from Bangladesh in 1997. The Secretary of State contended he had only arrived in this country in 2009. In any event, he was apprehended on 24 June 2011. His claim to remain was rejected by the Secretary of State. The appeal was heard by Immigration Judge Finch, who rejected it on 1 August 2011. Permission to appeal was refused. The judgment dealt completely, in every way in which the claim could be put, including the time of his entry and, secondly,...
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