Application for leave to appeal against conviction and substantive appeal allowed for refugee who was not advised of relevant defence in 2009

Wednesday 25 October 2017

Shahida Begum was instructed by GT Stewart Solicitors to represent YH in an appeal against conviction.

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YH pleaded guilty to possession of a false identification document in 2009. He approached the Criminal Cases Review Commission in 2014. They concluded there was a real possibility the conviction could be overturned but did not refer the case to the Court of Appeal as YH had not exhausted his rights of appeal.

An appeal against conviction out of time was then made in 2016. The Crown Prosecution Service (CPS) objected to leave being granted as although YH was not advised about the relevant defences by his previous legal representatives as he ought to have been, the ‘substantial injustice test’ that applies to cases where there has been a ‘change of law’ should apply. The Court of Appeal held there was no rationale for extending the 'substantial injustice' test to cases where there had been no change in law, the mischief was the erroneous advice regarding the law at the time. Anonymity was also granted, consistent with the practice followed in the immigration courts.

Shahida Begum is a member of the Garden Court Chambers Crime and Criminal Appeals Team.

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