Rex -v- Philip Shiner

CriminalCrown CourtSentencing Remarks

Southwark Crown Court

10 December 2024

Before:

HHJ Christopher Hehir

Between:

Rex

-v-

Philip Shiner

Sentencing remarks

  1. I have to sentence you for three offences of fraud by failing to disclose information, to which you pleaded guilty on 30th September 2024. You did so on foot of a Goodyear indication, in other words an indication from the Court as to the maximum sentence that would be imposed were guilty pleas to be entered at that stage in the proceedings.
  2. You committed these offences a long time ago now, in 2007. You were then a successful and well-regarded solicitor, and the principal of your own law firm, Public Interest Lawyers [PIL].
  3. You had an established interest in human rights law, and you had already done an appreciable amount of work in respect of events arising out of the presence of the British Army in Iraq, following the invasion of that country by US & British forces in 2003.
  4. On 14th March 2004, a military engagement, which was to become known as the Battle of Danny Boy, occurred in southern Iraq. It began with British soldiers from the Argyll & Sutherland Highlanders being ambushed by Iraqi insurgents, largely members of a group known as the Mahdi Army. A fierce battle ensured, during which many insurgents were killed. In addition, nine were taken prisoner. There were no British fatalities, although a small number of soldiers were wounded
  5. Unusually British soldiers removed the bodies of twenty of the slain insurgents from the battlefield. They did so in order to ascertain if an individual believed to be implicated in the murder of six British military policemen the previous year was among the dead.
  6. This led to rumours and allegations that not all of those twenty had in fact died in battle, but rather had been killed by British forces after their capture: if that had happened, it would have been a war crime. There were also allegations of ill- treatment and indeed torture of the detainees.
  7. You came to act for, among others, a man called Khuder Al-Sweady, whose nephew was one of those killed in the Battle of Danny Boy. You brought judicial review proceedings against the Secretary of State for Defence, in a bid to secure an independent inquiry into what had happened, on human rights grounds. The barristers you instructed on that application included Rabinder Singh QC [now Singh LJ] and Michael Fordham QC [now Fordham J].
  8. The proceedings were ultimately stayed because the Secretary of State agreed to set up such an inquiry. The judgment of the Administrative Court is reported as The Queen (on the Application of Al-Sweady & others) v the Secretary of State for Defence [2009] EWHC 2387 (Admin). It was delivered by Scott Baker LJ who concluded by saying “We cannot part with this case without paying tribute to the claimants’ legal advisers who although greatly outnumbered by the Secretary of State’s legal team have persisted with their requests for disclosure skilfully and with commendable determination.”
  9. Following the judicial review proceedings a retired High Court judge, Sir Thayne Forbes, was appointed to conduct the Al-Sweady Inquiry. It sat for a total of 169 days over some five years, and its report was published in December 2014. As its length indicates, the Inquiry carefully considered a great deal of evidence.
  10. While Sir Thayne Forbes found that there had been a degree of ill-treatment of those detained after the battle, he firmly and unequivocally concluded that the most serious allegations made, of murder, torture and mutilation, were entirely baseless, and that many of them were the product of what he described as “deliberate and calculated lies.”
  11. I stress that the offences you have admitted have nothing whatsoever to do with what transpired in the course of the Al-Sweady Inquiry, or during the Administrative Court hearing which ultimately led to that Inquiry.
  12. Rather, your offending relates to your conduct when applying for public funding to bring those judicial review proceedings. In thoroughly dishonest fashion you failed to disclose to the Legal Services Commission [the predecessor of the Legal Aid Agency] that you had breached two fundamental principles of practice. Firstly, you had got your Iraqi clients by using a fixer, a man called Mazin Younis, to engage in cold-calling. Secondly you had paid him referral fees.
  13. Cold-calling and the paying of referral fees are activities which solicitors are strictly prohibited from engaging in. You knew that perfectly well, and you also knew that the Legal Services Commission would not fund the judicial review if they knew that cold calling had gone on and that referral fees had been paid.
  14. As a result of your failure to reveal these matters, PIL secured nearly £200,000 of public funding to bring the judicial review proceedings. Not all of that money went to you personally by any means: much of it would have been gone on disbursements such as counsel’s fees.
  15. In failing to disclose the improper conduct in which you and your firm had engaged, you breached the considerable trust reposed in solicitors, who are officers of the Court and expected to conduct themselves with the utmost propriety at all times.
  16. Your offending is so serious that only a custodial sentence is appropriate. I have already indicated to you that I will suspend that sentence. There is considerable public interest in your case, and I must explain why I am taking this course.
  17. A number of factors have persuaded me that the interests of justice do not call for you to go straight to prison.
  18. Firstly, as I have already mentioned, your offending took place a very long time ago now, and you have not reoffended since. I do not consider that the long delay in these matters coming to court can be laid at your door.
  19. Secondly, in 2017 the Solicitors Disciplinary Tribunal found you guilty of multiple charges of professional misconduct, most of which you admitted. Those charges in part reflected the conduct which brings you before this court, but they went wider than that. You were struck off as a solicitor, an outcome which you did not contest, and you were ordered to pay over £700,000 in costs. As a consequence you were subsequently made bankrupt.
  20. Putting it shortly, you have already suffered professional and personal ruin, and I do not consider it necessary to add to that by sending you straight to prison.
  21. Thirdly, although your conduct was thoroughly dishonest, I do not consider that you were primarily motivated by financial gain. I am fortified in that conclusion by the character references I have received, sone of them from people of considerable distinction in their respective fields. What I think happened is that you allowed your enthusiasm for your clients’ cases to get the better of your professional and personal judgment.
  22. Fourthly you are now 67 years of age and not in the best of health.
  23. For the sake of completeness I should say that your guilty pleas allow you a degree of mitigation, but not a substantial one; they came very late in the day indeed, and after a jury had been sworn to try you. I should also say that your previous good character does not in itself provide much mitigation, given the breach of trust your offending involved. On the other hand you are in my judgment someone who is most unlikely ever to find himself before a criminal court again.
  24. There is a Definitive Sentencing Guideline in relation to offences of Fraud. The Overarching Guideline on the Imposition of Community and Custodial Sentences is also relevant in your case.
  25. For the purposes of the Fraud Guideline this is a High Culpability Case, given that your offending involved the abuse of a position of trust.
  26. As to the level of loss involved, I proceed on the basis that it does not exceed the amounts actually paid out by the Legal Services Commission in respect of the judicial review proceedings, which as I have said is in the region of £200,000. Mr Thomas KC on your behalf suggests that the appropriate figure is in fact only in the region of £90,000, which he submits better reflects what is indicted.
  27. The higher figure would put the case in Harm Category 2 for the purposes of the Guideline, and the lower figure would put it in Category 3.
  28. The starting point if Harm is at Category 2 is 5 years’ custody, [based on a loss of
    £300,000] and the range is 3-6 years custody. If Harm is Category 3 the starting point [based on a loss of £50,000] would be 3 years’ custody and the range 18 months – 4 years.
  29. Whichever Harm category is adopted, I consider than the various matters I have set out provide you with sufficient mitigation to bring the sentence to a length capable of suspension. In the alternative, if my sentence in fact involves a departure from the Definitive Guideline, I consider that to be in the interests of justice.
  30. The sentence I impose on each of counts 1-3 concurrently is one of two years’ imprisonment suspended for two years. I have carefully considered whether I should follow the recommendation in the pre-sentence report and include a rehabilitation activity requirement as part of the suspended sentence order. In all the circumstances, and in particular the fact that so many years have elapsed since you offended, I do not consider it necessary to do so. Given your personal circumstances, as explored in that pre-sentence report, no other requirements would be appropriate
  31. You better than most will understand what a suspended sentence order means. Provided you do not reoffend within the next two years that will be an end of the matter and you will not go to prison. If however you do reoffend during that period, this sentence will inevitably be activated.
  32. As confiscation proceedings have been instituted, I make no financial orders. In that context I make it clear that my conclusions today as to loss are not an indication as to how the Court will assess the issue of benefit in those proceedings.

HHJ Christopher Hehir
10th December 2024

Further information

Find out more about sentencing