Days before the end of last term, the High Court (sitting as a Divisional Court) heard two Hamid referrals in extradition cases. In a lengthy judgment, Turner v High Court of Dublin, Ireland [2024] EWHC 3294 (Admin), the Court admonished the conduct of three practitioners. One case was a fair application of the Hamid jurisdiction whilst the other was harsh. This article will consider Hamid, the cases and finish with some takeaways for practitioners.
The Hamid jurisdiction
Hamid originates from R (Hamid) v SSHD [2012] EWHC 3070 (Admin). This jurisdiction, in which the Court acts as investigator, prosecutor, jury and executioner, originally sought to discipline errant legal representatives who made “Hail Mary” applications to injunct removal in immigration cases. In the Court’s view, many of these were either unarguable and/or contained misleading or incomplete information.Typically, an application was received a day before a removal flight in which newly instructed lawyers “parroted” their client and failed to comply with the duty of candour.
A Hamid “procedure” considers if the lawyers should be referred to their professional regulators for disciplinary investigation. The judge presiding over a case in which professional conduct matters arise records as much in a court order. The case is then passed to the judge who presides over the relevant thematic jurisdiction who sends a “show cause” letter to the lawyer. This requires a response, normally in the form of a witness statement, addressing matters of concern in full candour.
In some cases, the matter is listed in open court. A practitioner must attend, and the Court decides whether to refer him/her to his/her regulator, i.e. the Bar Standards Board or the Solicitors Regulation Authority. Even if the Court declines to do so, a practitioner receives a very public flogging. Suffice to say that any referral to a professional regulator will normally result in disciplinary proceedings.
As explained in R (Sathivel) v SSHD [2018] EWHC 913 (Admin); [2018] 4 WLR 89, the Hamid jurisdiction is exercised where “the behaviour of lawyers whose conduct of litigation falls below the minimum professional and ethical standards which must be demanded of all lawyers appearing before the Courts” (§4). In immigration and asylum claims, “there is also a substantial cohort of lawyers who consider that litigation is a tactic or strategy that can be used to delay and deter removal proceedings” (§7). The Court observed that these practitioners often do not hold Legal Aid franchises and charge vulnerable clients thousands of pounds to make hopeless applications. These tend to be prepared by unqualified persons on “templates” with limited instructions and without the casefile. Importantly, the regulated lawyer does not consider if the applications are “proper” to make (§§9-11). Its operation in immigration cases is extensive: see R (Butt) v SSHD [2014] EWHC 264 (Admin), R (Akram) v SSHD [2015] EWHC 1359 (Admin) to name but a few.
Hamid is not strictly limited to immigration cases, however. Gubarev & Anr v Orbis Business Intelligence Limited & Anr [2020] EWHC 2167 (QB); [2020] 4 WLR 122 concerns two partners who failed to comply with an obligation to prevent broadcast of a court hearing in a libel case. R (Wingfield) v Canterbury City Council & Anr [2020] EWCA Civ 1588; [2021] 1 WLR 2863 concerns a second meritless application to reopen an appeal in a planning case.
The cases in detail
In the first case, the requested person, who was in receipt of Legal Aid, challenged his extradition on private life rights (of which his mental health formed part). He was remanded in custody and the first listing of the extradition hearing was vacated to enable further preparation of his case. There was delay in instructing a psychiatrist. As a result, the psychiatrist could not examine the requested person until after the second listing of the extradition hearing. On the day of the extradition hearing, the requested person instructed counsel notto apply for an adjournment. The case was heard, and his extradition was ordered. The psychiatrist’s report was produced afterwards and an application for permission to appeal was made, together with an application to rely on the report as “fresh evidence”. On appeal, the requested person advanced a fresh ground against extradition, oppression due to a mental condition (s. 25 EA 2003) as well as private life rights.
In applying to admit “fresh evidence”, an application must address the test in Fenyvesi (see Three Hungarian Judicial Authorities v Fenyvesi & Anr [2009] EWHC 231 (Admin); [2009] 4 All ER 324). This requires a witness statement about why the evidence was not available at first instance or could not have been obtained with reasonable diligence (§32).
Permission was granted on the papers. Thornton J believed that there had been an explanation of why the report was not produced at first instance. Given that the admissibility of evidence is a “rule of decision” under s. 27 EA 2003 (see Zabolotnyi v the Mateszala District Court [2021] UKSC 14; [2021] 1 WLR 2569, §57), she left the question about whether to receive the report to the appeal hearing.
At that hearing, Turner v Ireland [2024] EWHC 1526 (Admin), Holgate J criticised inaccuracies in the application notice. He found that some of its assertions were “plainly careless and possibly reckless” (§39). He was concerned about non-disclosure of the requested person’s instruction not to apply for an adjournment on the day of the extradition hearing to receive the psychiatric report which, in his view, made the application to rely on fresh evidence unarguable (§§41-45). After promulgating judgment, he referred the case to another High Court judge. Two sets of “show cause” letters were sent to counsel and the solicitor (§§57-58, Hamid judgment). Three sets of witness statements were served in response (§§60-62, Hamid judgment).
In the second case, a requested person sought to appeal an order for his extradition under s. 26 EA 2003; permission was refused on the papers by a High Court judge and, again, at an oral renewal hearing before a different High Court judge. His barrister, who had represented him throughout the extradition case, then issued an application for judicial review against the requesting judicial authority and the National Crime Agency. Its purpose was to review the first instance extradition judgment on the same grounds as the statutory appeal. The claim form did not reference the previous unsuccessful proceedings (although it was issued on the same email chain). Nor did the barrister address the judicial review time limit (in this case, “promptly” and “in any event within three months” – CPR 54.5), nor enclose a bundle, nor the required fee.
The Administrative Court Office observed these deficiencies and required information about whether the barrister was authorised to conduct litigation in England and Wales. A few days later, the requested person made an identical application for judicial review encompassing counsel’s grounds. This stated that the requested person was dissatisfied with the result of his case following appellate proceedings and wished for it to be reviewed again.
Swift J referred the case to the Hamid jurisdiction. In the “show cause” letter, it was observed that the barrister appeared to “knowingly” issue “a hopeless and abusive claim, long out of time, in order to frustrate the extradition of [his] client” (§74). Various questions were asked. These included if the barrister was entitled to conduct litigation. The responses received were partial. They indicated that the barrister thought that his client’s case was hopeless but had acted on instruction and had received a separate fee for making the injunction application (§§77-83).
The result
Unsurprisingly, the Court referred the second case to the Bar Standards Board. The barrister had made an application which he knew was hopeless to thwart removal. He did not appreciate that his duty to the Court meant that he could not make hopeless applications even if that is what his client instructed (see CD1 & Rules C4-C6 of the BSB Handbook). His application was abusive since the client had exhausted the appeal route in EA 2003 and judicial review is inapposite where there is an alternative remedy (see paragraph 6.3.3.2 of the Administrative Court Guide 2024). Moreover, the practitioner conducted litigation without authorisation, received remuneration for an application which was bound to fail, and did not inform the Administrative Court Office of previous proceedings. The Court considered that there was a “troubling lack of knowledge […] of the regulatory framework within which the profession of which he is part operates and of the obligations contained in the BSB Handbook” (§85v)).
Equally unsurprisingly, the Court did not refer the first case to the Bar Standards Board or the Solicitors Regulation Authority. Both practitioners provided full and frank information to the Court. They “accepted the criticisms of them, both are highly apologetic[,] and both have unblemished professional records” (§66). The Court accepted that the errors were “careless” and remarked that the “experience has been salutary for them” (ibid.)
Takeaways
There is little to say about the second case. It is an orthodox application of the Hamid jurisdiction. The judicial review application was abusive.
The first case is more troubling, however. Whilst the main takeaway is straightforward – the fact that the client had instructed his lawyers not to apply for an adjournment to receive the medical report should have been disclosed to the High Court or, at the very least, the High Court should have been left with a false impression – there are several issues of note:
- Criticisms of case preparation. While this might not have been the main reason for the Hamid referral (although information provided to the Court should have been accurate), the broad criticisms of how the case was prepared are somewhat unfounded. The “timeline” at first instance means that it is often difficult to assemble evidence within a matter of months. Applications for Legal Aid, a Certificate for Counsel and prior authority for a disbursement take time and often require engagement with the Legal Aid Agency and judiciary. It is frequently difficult to identify a professional who will provide a report at Legal Aid rates. It is challenging to arrange assessments where clients are remanded in custody. Getting into and out of Wandsworth Prison has become more difficult over the last year. Further, the way in which criminal Legal Aid is remunerated means that practitioners cannot prepare each case as if there were a small “army” of lawyers and paralegals preparing every aspect.
- Clients with mental health difficulties. Even if the lawyers should not have given the High Court “a false impression” about the requested person’s instruction at the extradition hearing, it is perfectly possible that the medical evidence indicated that he was more vulnerable than previously believed or cast doubt upon his ability to make a meaningful decision on advice. This is particularly important as Fenyvesi contains a “human rights safety valve” which means that where Convention rights are engaged, the “fresh evidence” test may be applied more liberally. In this case, the psychiatric report provided a significant underpinning to the requested person’s case and a basis for challenge under s. 25 EA 2003.
- Admissibility of fresh evidence on appeal. The Court emphasised the need to address why evidence was not available at first instance, including the “reasonable diligence” test. Counsel and solicitors may need to consider whether they should withdraw from a case if their case preparation could be criticised. This could lead to applications of the McCook principle (from R v McCook [2014] EWCA Crim 734; [2016] 2 Cr App R 30 regarding the conduct of previous lawyers during trials on indictment) to extradition cases which would be unfortunate given that the cases are argued by a small and collegiate bar. It would divert appeals away from looking at the substance of a case toward its conduct at first instance. To-date, in most extradition cases, the High Court has focussed on substance and “fresh evidence” is considered de bene esse. This approach is pragmatic and works well in practice.
- Applications for adjournments in the Magistrates’ Court. The corollary to point 3 is that there will be more applications for adjournments at Westminster as practitioners seek to avoid falling foul of a strict application of Fenyvesi. Currently, the judiciary at Westminster navigates a difficult balance between executing extradition requests in accordance with international treaties (Crim PR 50.2) and ensuring a requested person can advance his or her case properly. There is a three-to-four-month wait for a “single slot” extradition hearing. The “real” delay in most extradition cases occurs in the High Court where permission decisions languish for months, sometimes years. Increasing the backlog of cases with more adjournments would be unfortunate. Moreover, Olah v Regional Court in Plzen, Czech Republic [2008] EWHC 2701 (Admin) informs that refusals to grant adjournments can be judicially reviewed. To-date, this jurisdiction has been used sparingly (see Ben’s article). It would be a pity if there were more frequent challenges to case management decisions.
- Arguability emphasised. The Court held: “[T]he fact that there is a statutory right to seek permission to appeal does not mean that practitioners can put forward cases that are not properly arguable, whether at the initial stage or in the context of a renewed application for permission” (§67). This suggests a new focus on the strength of arguments presented at permission stage and renewal hearings. It indicates that there may be Hamid referrals if practitioners present cases deemed “unarguable” – which is the permission test itself (Crim 50.17(4)(b)). The strength of an argument involves an exercise of professional judgment. Most practitioners can recount cases in which they are surprised to have received permission to appeal orsurprisednotto have received such permission. The use of Hamid to weed out unmeritorious permission applications would be a move in the wrong direction. The power the Court wields as investigator, prosecutor, factfinder and sentencer means that it should be reserved for truly abusive applications.
Stefan Hyman
9BR Chambers