R Sharif Sanjari v The Crown Court at Birmingham
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd |
| Judgment Date | 15 July 2015 |
| Neutral Citation | [2015] EWHC 2037 (Admin) |
| Docket Number | Case No: CO/783/2015 |
| Date | 15 July 2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 2037 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
Mr Justice Haddon Cave
Case No: CO/783/2015
Adam Tear (Higher Court Advocate employed by Duncan Lewis) for the claimant
Hearing date: 25 June 2015
Lord Thomas of Cwmgiedd, CJ:
This is the judgment of the court.
Introduction
This renewed application for permission to bring judicial review raises important issues regarding applications to judges of the Crown Court to transfer representation orders and the revocation of legal representation orders by the Court.
The circumstances in which the Court may order a change of provider are carefully laid down by the provisions of regulation 14 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 614 of 2013) (the Regulations) which we set out at paragraph 33 below. The rationale behind the legislation is clear and designed to further the interests of justice:
i) Defendants in criminal proceedings cannot be permitted unnecessarily to delay and complicate proceedings by the device of changing their representatives. A judge must, in the light of general experience, always be astute to guard against this risk which has significantly increased in recent years.
ii) It is particularly important in the overall interests of justice to encourage lawyers to give realistic advice to defendants in criminal proceedings. Lawyers of integrity invariably do so. A defendant's unhappiness or disagreement with such advice is not a ground which ordinarily will permit the transfer of the representation order.
iii) Legal aid resources are limited. They must not to be wasted in unnecessary transfers of legal instructions from one lawyer to another. It is self-evident that the effect of any waste of resources is to disadvantage other defendants in the criminal justice system and the lawyers who represent them. In addition, judges must, in the current state of the market for legal services, also be astute to the risk that some will try to induce a defendant to change his solicitor for commercial reasons and therefore be astute to the conflicts of interest that might arise.
Judges of the Crown Court are already heavily burdened. They are entitled to expect that solicitors making such applications will act with the highest standards of objectivity and integrity. It is evident, however, that the judges of the Crown Court must, for the reasons we have given, subject applications for transfers to rigorous and searching scrutiny.
The application to the Recorder of Birmingham and the refusal of permission by the single judge
In the application, the claimant seeks permission to bring judicial review proceedings challenging the decision by the Recorder of Birmingham, HHJ Melbourne Inman QC, on 2 December 2014 in which he refused to permit the legal representation order granted to the claimant to be transferred to Duncan Lewis, a large firm of solicitors with offices in locations across England and in Cardiff, and ultimately had to revoke the claimant's representation order.
Permission was refused on paper by the single judge, McGowan J, on 31 March 2015, who held that the Recorder of Birmingham was entitled to reach the conclusions he did on the merits of the claimant's repeated applications to transfer his legal representation to new solicitors and there were no grounds to support the contention that his decisions were either unreasonable or irrational. In the course of her reasons for refusing permission, McGowan J made the following observation:
"Although a defendant in criminal proceedings is entitled to legal aid, subject to satisfying the relevant criteria, that is not a right to change solicitors and counsel at will. Nor does a defendant have a greater "choice" dependant on the seriousness of any sanction he faces."
Jurisdiction
The issue of jurisdiction to bring these judicial review proceedings was not drawn to the attention of McGowan J (as was the clear duty of those representing the claimant).
S. 29(3) of the Supreme Court Act 1981 excludes matters relating to trial on indictment from the purview of judicial review:
"(3) In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting and quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court." (emphasis added)
The approach to this provision is set out in the judgment of Lord Bridge of Harwich in Smalley [1985] AC 622 and the judgment of Lord Slynn in Ashton [1994] 1 AC 9. A number of decisions of this court have held that decisions by a Crown Court judge regarding representation and legal aid are regarded as matters relating to trial on indictment. In R (Wellington) v. Isleworth Crown Court [1993] 1 WLR 713 the Divisional Court held that a decision by a Crown Court judge to revoke an order discharging a legal aid certification was an exercise of "its jurisdiction in matters relating to trial on indictment" within s.29 of the Supreme Court Act 1981; see also R v Chichester Crown Court, ex p Abodunrin 79 Cr App R 293 and the more recent decisions in R (Faithful) v Crown Court at Ipswich [2007] EWHC 2763 (Admin) and R (CPS) v Croydon Crown Court [2015] EWHC 1739 (Admin).
The issue on jurisdiction was drawn to the attention of the legal representatives of the claimant by the Administrative Court Office. It was, therefore, addressed by Mr Adam Tear, the higher court advocate employed by Duncan Lewis in his submissions to us on behalf of the claimant. He contended that we should reconsider the decisions to which we have referred; that there was no intelligible purpose in restricting the right to review decisions in respect of representation orders or other matters in relation to legal aid, as it would be far better to permit challenges to be made to decisions on legal aid as soon as they were made rather than to await the outcome of the proceedings that had been heard on the basis of the decision made by the trial judge as to legal aid. This course was open to this court as confiscation proceedings were no longer part of the sentence: s. 13(4) of POCA provided that a court must leave the confiscation order out of account in deciding the appropriate sentence
We did not find the arguments remotely persuasive. We see no basis on which the cases can be distinguished: confiscation proceedings are decisions about sentence. Moreover, there are the important public policy reasons why decisions of this kind in the course of proceedings in the Crown Court cannot be challenged in this court but must await the decision of the Court of Appeal Criminal Division on any appeal after the hearing of the trial and confiscation proceedings in the Crown Court. However as we did not have the benefit of adversarial argument, it is not necessary to base our decision on a lack of jurisdiction, in circumstances where we have reached a clear conclusion on the merits of the application on which we heard full argument on the assumption that there was jurisdiction.
The offence committed by the claimant
On 30 October 2012, the claimant was arrested with two others on suspicion of drug trafficking. It was alleged by the prosecution that the claimant and his co-conspirators were caught red-handed taking delivery of 65 boxes at Tilbury Docks thought and intended by them to contain 1.3 tons of cannabis shipped from Jamaica to Tilbury via Amsterdam. The authorities had intercepted the shipment at Amsterdam and removed the cannabis and replaced it with sand and bricks. The boxes containing the cannabis were part of a larger shipment of vegetables but each box that had contained the cannabis was marked with a blue 'X'. The claimant worked for a company involved in importing vegetables from the Caribbean. The claimant and his co-conspirators were arrested after being observed separating out the 65 boxes bearing the blue 'X' and loading them into a separate van.
On 31 January 2014, the claimant was convicted of conspiracy to import and supply cannabis following a trial at Birmingham Crown Court before HHJ Burbidge. His co-defendants were acquitted. On 14 March 2014, the claimant was sentenced to 8 years 6 months imprisonment. The claimant was represented at the trial and sentence by counsel and solicitors (Messrs Rahman Ravelli).
The POCA proceedings
On 14 March 2014, in the Crown Court at Birmingham, HHJ Burbidge made an order under s.18 of the Proceeds of Crime Act 2002 (" POCA") for the provision of Financial Information and set a timetable for the proceedings. On 19 June 2014, a s.16 Statement of Information was served alleging that the claimant had benefited from his criminal conduct to the extent of £1,603,510.65. Under s.139 (4) of the Powers of Criminal Courts (Sentencing) Act 2000, therefore, the claimant may be sentenced to a term of imprisonment of up to 10 years in default of payment. The Statement of Information asserted that the claimant had large amounts of unexplained cash passing through his various accounts ( viz.£15,409.22 in his Bank of Scotland Accounts, £45,975.00 and £75,030.00 in his Barclays Accounts), as well as numerous other unexplained payments.
The claimant has appealed against conviction and expressed his intention to challenge the POCA proceedings.
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