Sarah Elliott QC successfully defends GP accused of sexually assaulting a staff member

19.10.17 | |

Sarah Elliott QC  was instructed to represent at trial a General Practitioner alleged to have committed a sexual assault on an employee in their place of work; Sarah’s client was acquitted by a jury within an hour.  Sarah was instructed by Kate Goold of Bindmans LLP.

 

At an early stage the GP was suspended from practice by the General Medical Council whilst the criminal allegations were investigated, although at a subsequent hearing was permitted to practise with conditions.  The acquittal will shortly lead to an application to practise unrestricted.

 

Sarah regularly represents professionals accused of criminal offences, in particular those working in healthcare, financial and other industries where they are also subject to the oversight of a professional regulator, and where consistency of counsel may be beneficial.  For more information please contact the criminal clerks on 020 7400 9088 or by email.

National law and policy on disclosure and use of conviction data unlawful.

18.10.17 | |

The Administrative Court (Lord Justice Fulford and Mr Justice Green) today handed down the judgment in R (R) v. National Police Chief’s Council and Secretary of State for Justice [2017] EWHC 2586 (Admin). In this important judgment about the right to privacy, the court concluded that the following were unlawful:

 

(1) The Statutory Instrument which means an applicant for specified jobs (such as a police constable) has to disclose a caution, and that she could be prejudiced by that caution;

 

(2) The national police policy as to whether a job should be refused to someone on the basis of a caution; and

 

(3) The decision to refuse the claimant a job in the police, on the ground that she had received a caution. 

 

Adam Straw represented the claimant, instructed by Richard Easton at Sonn McMillan Walker. 

 

The Claimant, ‘R’, received a reprimand when aged 13 on the ground that she helped some other girls shoplift a sarong from Primark. Later, she completed a degree in criminology, and wished to pursue a career working for the police. Her application was rejected solely on the basis of her reprimand. 

 

When a conviction becomes spent, it can normally no longer be relied on as a basis for refusing someone employment. The Rehabilitation of Offenders Act 1974 provides protections to a job applicant, and others, to ensure she is not prejudiced by a spent conviction or caution. However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 provides that, in the context of a number of jobs, including a police constable, those protections do not apply. That means a person may be required to disclose her convictions and cautions when applying for those jobs. 

 

The High Court concluded that the 1975 Order is incompatible with the right to a private life in article 8 ECHR. That was firstly because it is not ‘in accordance with the law’, and secondly because it is not 'necessary in a democratic society'. The interference in the claimant’s article 8 rights was severe, and there is no rational connection between the reprimand, and her preferred employment. 

 

The NPCC is responsible for a national policy regarding recruitment to the police. The policy says that if the applicant had one of a specified range of convictions or cautions (including for theft) she should be rejected unless there are exceptionally compelling circumstances. The High Court concluded that the policy is unlawful as it misstates the effect of legislative provisions. In addition, the policy is incompatible with article 8. That was because it contains a very powerful presumption against employing someone who had a prior reprimand, and means that there is no meaningful consideration and assessment of the factors that are relevant to article 8. Further, there are no safeguards in the policy which enable the applicant to appeal or review a decision to refuse her employment. The court concluded that the policy was neither in accordance with the law, nor necessary in a democratic society. 

 

Finally, the court concluded that the decision by the police to refuse the claimant employment on the basis of her prior reprimand was unlawful as it was in breach of article 8.   

 

Report on Brexit and Northern Ireland launches in European Parliament

Today, an independent legal report, written by Caoilfhionn Gallagher QC and Katherine O'Byrne of Doughty Street Chambers, is launched at an event in the European Parliament, Brussels. 

 

The report finds that, whilst 'Brexit' raises many questions of unparalleled complexity in political, legal and constitutional terms, the thorniest questions undoubtedly concern the potentially huge ramifications of Brexit for Northern Ireland and the Republic of Ireland.  The report summarises the unique combination of circumstances which mean that the potential adverse impact upon Northern Ireland is very great, including risking undermining the 1998 Good Friday Agreement. The Taoiseach, Leo Varadkar, stated on his first official visit to Northern Ireland that "every single aspect of life in Northern Ireland could be affected by Brexit" and he described it as "the challenge of this generation."

 

Today's launch takes place just weeks after the European Parliament voted (on 3 October) overwhelmingly in favour of a resolution which heavily criticised "the absence of any clear proposals" from the UK Government concerning Northern Ireland, stating that this "has seriously impeded the negotiations". The resolution also noted that, although the UK's position paper on Northern Ireland "fall short," the Prime Minister in her 22 September speech "excluded any physical infrastructure at the border, which presumes that the UK stays in the internal market and customs union or that Northern Ireland stays in some form in the internal market and customs union."

 

The report finds that Northern Ireland is a unique and special case, and that creative solutions are urgently required. The EU has historically been willing to agree a range of tailored, differentiated packages with other individual states or parts of states in order to reflect particular legal, political, historical, economic and / or geographical circumstances. A range of potential models is set out, to address the particular needs of and challenges concerning Northern Ireland.

 

The independent report was commissioned by the European United Left-Nordic Green Left (GUE/ NGL) group in the European Parliament. It is being launched publicly today in Brussels.

 

The full report is available to read here

 

Referral to the Grand Chamber of the European Court of Human rights in the case of Lekic v. Slovenia

On September 18, 2017, a panel of five judges of the European Court of Human Rights accepted the request submitted by Professor Andrea Saccucci that the case Lekic v. Slovenia be referred to the Grand Chamber pursuant to Article 43 ECHR. The judgment of February 17, 2017, in which a Chamber of the Fourth Section of the Court found no violation of the ECHR, will therefore be subject to a full review by the Grand Chamber as it raises “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”.

 

The case concerns compliance of Slovenian corporate legislation with the European Convention on Human Rights; namely with the right to property protected by Article 1 of Protocol No. 1 to the Convention, the right to a fair trial enshrined in Article 6 ECHR, and the right to an effective remedy guaranteed by Article 13 ECHR.

 

The Financial Operations of Companies Act (so-called FOCA), passed by the Slovenian Parliament in 1999, provided for the ex-officio erasure of all the companies that were presumed to be inactive. As a result of the erasure, the shareholders of the erased company became personally liable for all the debts incurred by the company irrespective of their actual role in the management of the company.

 

The measure of piercing the corporate veil affected more than 24,000 small and medium Slovenian enterprises (according to the data made available by the Slovenian Ministry of Economy) and triggered collective litigation before domestic Courts and before the European Court of Human Rights.

 

The application in Lekic v. Slovenia was the first of such cases to be examined and decided by the European Court of Human Rights. The panel’s decision to accept the request for referral to the Grand Chamber submitted by Professor Andrea Saccucci is great news in that it allows the Court to ponder the consistency of the Chamber’s ruling with the previous case-law on piercing the corporate veil and to address some issues that seemingly were not considered by the Chamber’s ruling.

Theo Huckle QC shortlisted in the Personal Injury Awards

16.10.17 | |

Theo Huckle QC has been shortlisted for Claimant Lawyer of the Year award in the Personal Injury Awards 2017. The awards are organised by Eclipse Proclaim Personal Injury Awards with the ceremony taking place on 29 November in Manchester. The awards seek to ‘highlight and celebrate the excellence of individuals and organisations across the personal injury sector.’ We wish Theo and all the nominees the best of luck at the awards. 

Validity (MDAC) Intervenes at European Court to uphold Right to Liberty

Aswini Weereratne QC and Sophy Miles act for Validity (MDAC) who have intervened in an important case before the  European Court of Human Rights, about article 5, forensic detention on the grounds of mental disorder and the right to the least restrictive alternative.  Read MDAC’s press release by clicking here.

Bar Human Rights Committee reports on Jungle demolition

The Bar Human Rights Committee has released its fact-finding report “Breakdown: the dismantling of the Calais “Jungle” and of the promises to its unaccompanied children”.  

 

BHRC chair, Kirsty Brimelow QC, and member, Jelia Sane, gained access to the Jungle during the demolition  operation which took place in October 2016 and witnessed first-hand the squalid conditions that residents, including lone children, had been exposed to for many years. They met with representatives from Doctors Without Borders, Save the Children and the United Nations High Commissioner for Human Rights, amongst others, and interviewed camp residents, including unaccompanied migrant children from Sudan and Eritrea. 

 

As documented in this report, the evidence collected by BHRC strongly suggests that in the rush to demolition, the British and French governments failed to take effective steps to safeguard the welfare of the estimated 1900 unaccompanied minors living in the camp, leaving many at risk.  Moreover, BHRC considers that the Home Office led ‘expedited’ process for the transfer of children to the UK under the Dublin III Regulation and the Dubs amendment was procedurally defective leading to unlawful decision-making. BHRC notes with concern that hundreds of children who underwent this process remain in France, one year on, and further condemns the decision by the British government to end the Dubs scheme. 

 

The treatment of, and conditions faced by,  the Jungle’s unaccompanied minors is in many ways symptomatic of the EU wide failure to protect unaccompanied child refugees and uphold the best interests of the child principle. This report seeks to contribute to the debate regarding what action can be taken to effectively protect what is one of the world’s most vulnerable populations, by examining the circumstances surrounding the dismantlement of the ‘Jungle’ and considering what lessons can be learnt. 

 

BHRC thanks Pippa Woodrow for her contribution to the drafting of this report.  

 

Read about this case here and here. 

 

Cannabis seed dealer discharged on all Counts in federal US extradition case

10.10.17 | |

At Westminster Magistrates’ Court on 30 August 2017 District Judge John Zani discharged UK-based international seed dealer, Gypsy Nirvana, following a federal extradition request brought by the US on 4 counts of conspiracy to produce, supply, and import cannabis into the US State of Maine, and money laundering the proceeds of sales. The US relied on a number of confidential witnesses and a YouTube video of Mr. Nirvana making an ‘activist’ speech at the Cannabis Cup in Amsterdam promising to sell seeds to US customers.
 

Mr. Nirvana had been arrested in July 2013 by Filipino immigration authorities at the behest of the US DEA and was held in a Philippine detention centre for more than 2 years while he appealed his detention to the Supreme Court.  He then contacted Richard Parry, a specialist in the law on drugs at Saunders Solicitors Ltd based in the City of London, who advised him to come back to the UK to fight extradition from here. He had already fought off an attempt to get him on a flight to the UK because it was scheduled to stop in Los Angeles, where he would have been arrested and incarcerated pursuant to the extant US warrant. He was facing a possible prison sentence of up to 20 years under US law.
 

Back in the UK, Mr. Parry instructed Ben Cooper to defend his extradition. Ben argued that no equivalent offence would have been committed in England had the conduct alleged been transposed to the jurisdiction of an English criminal court. The court accepted selling cannabis seeds is legal in the UK and accordingly ruled the conduct underlying all four counts failed to satisfy the dual criminality test. The court held the sale and supply of cannabis seeds did not of itself establish incitement or a conspiracy to be concerned in the production of cannabis. As the money laundering offences indicted were predicated on the alleged illegality of the seed sales Mr. Nirvana was discharged on all Counts.
 

The US now seeks to challenge this decision in the High Court and is seeking permission to appeal to the Administrative Court (Queen’s Bench Division).
 

Domestic media coverage of the case can be read here

Harriet Johnson secures acquittal for anti-fascist protester

09.10.17 | |

Harriet Johnson has secured the acquittal of an anti-fascist protester charged with directing violent clashes in Liverpool in February 2016.  Her client was alleged to have coordinated the actions of hundreds of anti-fascist protesters who turned out in response to a march by far-right groups, including North West Infidels and the now-banned National Action.  An investigation into the violence seized some 9,200 hours of video footage recorded on the day, parts of which the Crown claimed showed Harriet’s client inciting or encouraging violence towards the far-right protesters.  After a two-week trial at Liverpool Crown Court, Harriet’s client was unanimously acquitted by the jury.

 

Harriet Johnson was instructed by Robert Lizar Solicitors. For enquiries about instructing Harriet in similar matters, please contact her clerks here

Acquitted of attempted murder and GBH

09.10.17 | |

Liam Walker’s client, ‘MS’, was today acquitted following a week-long trial at Inner London Crown Court.

 

MS was charged with attempted murder and causing grievous bodily harm with intent. The Crown alleged that MS, along with his cousin LS, had stabbed the complainant repeatedly whilst attending his home. The complainant suffered multiple life-threatening injuries. LS, previously a co-defendant, pleaded guilty to the alleged joint enterprise after initially claiming the attack had been carried out in lawful self-defence.

 

Despite having accepted being at the scene at the time of the attack MS was acquitted of all charges against him

 

Liam Walker is regularly instructed in cases involving allegations of murder and attempted murder. Liam was instructed by Ed Jones of Hodge Jones and Allen Solicitors.


The case has been reported in the London press.

Lawyers accuse UK-backed Bahrain watchdogs over torture inquiry

The Bar Human Rights Committee has petitioned Bahrain for clemency in two death penalty cases- Mohamed Ramadan and Husain Moosa. Also, its Chair, Kirsty Brimelow QC has called upon the Foreign Office to intervene as it provided international law training to the institutions which are failing to investigate allegations that the confessions were extracted through torture. Kirsty Brimelow QC:

 

"The UK government has carried out international human rights training of the Special Investigation Unit in Bahrain. In these circumstances, it must have an enhanced duty to ensure the implementation of international human rights law. Words need to be reflected in action. There must be transparent investigation of this evidence of torture. Also, at minimum, the UK government should join the Bar Human Rights Committee's call for clemency to be applied to the death penalty cases. "

 

Read about this case in the press here

 

For more information and a link to the report, visit the Bar Human Rights Committee website here.

Joe Stone QC collapses rape indictment at Manchester crown court

06.10.17 | |

D was indicted with two counts alleging rape and attempted rape. Defence at trial was consent. A proactive defence with a detailed defence case statement triggered complex disclosure issues bearing on section 41 issues, bad character and disclosure of sensitive third party medical counselling and psychiatric records. Detailed written submissions led to the prosecution reviewing the case at the highest level and making a formal decision to offer no evidence. Joe Stone QC was privately instructed in R v D by Kimneri Patel at MPR solicitors, London 

Right to die case dismissed by High Court; Humanists UK support Noel Conway’s appeal

Noel Conway’s challenge to the law against assisted dying has this morning been dismissed by the High Court. Humanists UK member Noel suffers from motor neurone disease. He challenges the illegality of assisted dying for those who are terminally ill and have six months or fewer to live. His case was heard in July and this week the Divisional Court rejected it. Humanists UK, which intervened in the case in his support, has expressed its disappointment at the decision. Noel intends to appeal the decision, and Humanists UK will seek to intervene in any appeal.

 

Humanists UK has been represented in its intervention by Nancy Collins of Hodge Jones & Allen LLP alongside Caoilfhionn Gallagher QC and Graeme Hall, both of Doughty Street Chambers. Humanists UK made written and oral submissions.

 

More information is available from Humanists UK, here

Cleared of Murder and Manslaughter

05.10.17 | |

A 17 year old defendant (who cannot be named for legal reasons) was acquitted of murder and manslaughter at the Central Criminal Court on the 04/10/17 after a three week trial. The prosecution had alleged that D had been part of a joint enterprise attack on a 19 year old youth (Abdullahi Tarabi) in Northolt, North West London fatally stabbing the deceased in the abdomen. The prosecution relied upon cell site, forensic and CCTV evidence showing the actual attack taking place. There were also extensive disclosure issues relating to material from the Metropolitan Police Service Gang Matrix Unit. 

Joe Stone QC has a specialist defence practice involving a detailed understanding of joint enterprise law and gang rivalries in London and beyond. He led Michael Newport (Lamb Buildings) and was instructed by MB Law Solicitors (Hounslow).

Bar Council and Law Society heads urge foreign secretary to call for release of Andy Tsege

Andy Tsege is a British national who was abducted in Yemen by Ethiopian security agents and rendered to Ethiopia in June 2014.  He has been detained without access to a court in Ethiopia ever since, having been sentenced to death after a trial in his absence in 2009.  A campaigner for democracy and free elections, Mr Tsege is regarded by the Ethiopian government as an opponent of their regime.  Ben Cooper worked with the Law Society and Bar Council, briefing the leaders of those organisations, which has resulted in a joint letter from the Chair of the Bar Council and the President of the Law Society calling on Boris Johnson, the Foreign Secretary, to change his approach to the case, intervene more forcefully with the Ethiopian government and call for Mr Tsege's release.

 

In an article published by The Guardian, Ben is quoted as saying: "The foreign secretary has shown real disinterest in the flagrant ill-treatment of a British citizen over a long period of many months and years.  Boris’s defence of avoiding interfering with a foreign legal process rings hollow in the absence of any process whatsoever for three years following a brazen abduction and no access to a court. It is high time the minister got off the fence and shows he can roar for elementary justice."

 

Ben Cooper and Katherine O'Byrne are instructed by Maya Foa of Reprieve and Rosa Curling of Leigh Day. 

 

 

Emma Goodall’s client found not guilty of historic child cruelty offences

02.10.17 | |

Emma Goodall’s client was unanimously acquitted of eight counts of assault and child cruelty at the conclusion of a trial that lasted over two weeks. The allegations, which dated back almost forty years, were made by two of the defendant’s children and supported by her former husband who gave evidence against her. The trial was extremely emotive and was subject to daily reporting by the media.

 

Emma was instructed by Ann Rushton of Traymans Solicitors.

 

For coverage of the conclusion of the trial see: The Times & The Daily Mail 

Civil servant acquitted: three counts of rape

26.09.17 | |

O was found ‘Not Guilty’ of the three counts of rape on which he stood trial. 

 

O’s defence at trial, to all three counts, was consent. 

 

O’s defence case involved extensive preparation of legal argument on the point of evidence of O’s bad character. O’s counsel, Abigail Bright, successfully opposed the Crown’s application to admit evidence of O’s conviction for a violent robbery of a sex worker, in her home, of which O had previously been convicted after trial. O had been found guilty of robbery of hundreds of pounds and two mobile telephones from the sex worker, a jury having found that O had tied up his victim and had been stopped by police from fleeing the scene. 

 

Abigail Bright was instructed by Paris Theodorou, solicitor, Hodge, Jones & Allen LLP., Ptheodorou@hja.net, 020 7874 8594 

 

Abigail recently appeared at trial as defence counsel in allegations of knifepoint stranger rape involving the use of a knife. News coverage of this case can be found here.  

Nancy Hollander has been announced to speak at The Disappearing Trial - The rule of law in a world with more guilty pleas and fewer trials

26.09.17 | |

The event brings together leading lawyers from the UK and the US to discuss the growing reliance on trial waiver systems. Countries across the globe are finding new ways to persuade people to simply admit guilt and forego the right to a trial. In the US, 97% of federal cases are settled in this manner. In Brazil, they have gained prominence in Operation Car Wash. In England and Wales, changes introduced to sentencing guidelines last year are also encouraging earlier pleas. A distinguished panel will discuss the implications of trial waiver systems for the rule of law, and other criminal justice priorities such as efforts to tackle torture, corruption, the overuse of pre-trial detention.

 

To find out more about this event and to register, please visit the website

Life sentence appeal to be heard based upon retraction of evidence

Today, Edward Fitzgerald QC is presenting an appeal in Trinidad involving 10 people sentenced to death in 2001 who are now serving life sentences.

 

The appeal is based on new evidence where the key prosecution witness has retracted his trial evidence. In 2015, the key prosecution witness swore a statement saying he lied at trial. As a result of this, the matter was sent back to the Court of Appeal by the President of Trinidad and Tobago, Anthony Carmona, in 2014.

 

Submissions to the Justices of Appeal started last week and evidence is due to begin today. 

 

Read about this case in the press here.

LAG magazine reviews Female genital mutilation: Law and practice

25.09.17 | |

Cris McCurley praises an important work by a specialist in the field Zimran Samuel

 

Click here to read the full review. 

United Nations Security Council Adopts Resolution to Investigate ISIS Crimes in Iraq

21.09.17 | |

The United Nations Security Council today unanimously adopted a historic resolution establishing an international investigation to collect evidence of ISIS’ crimes in Iraq. This evidence can be used in trials against ISIS militants around the world.

 

Today’s resolution empowers the UN Secretary-General to establish an Investigative Team, led by a Special Adviser, with a mandate to collect evidence of acts that may amount to genocide, war crimes and crimes against humanity. The evidence is to be gathered “to the highest possible standards” for use in “fair and independent” criminal proceedings in courts that comply with international human rights law.

 

The resolution recognizes that ISIS’ crimes, including kidnapping, enslavement, human trafficking, rape, sexual slavery and the recruitment of child soldiers, are “part of the ideology and strategic objectives of [ISIS]” and that “holding [ISIS] members accountable, particularly those who bear the greatest responsibility … will further expose this”.

 

The UN has found that ISIS has committed genocide against the Yazidi people in Iraq and other atrocities against Shias, Christians, Sunnis, and other groups. Although the genocide against the Yazidis started over 3 years ago, no ISIS member has been put on trial for it and evidence is disappearing every day: mass graves are being contaminated, witnesses are becoming dispersed, documents lay uncollected and medical evidence is getting lost. This is why the Security Council’s action was so urgent and critical.

 

Amal Clooney is legal counsel to Yazidi victims of ISIS’ crimes, including UN Goodwill Ambassador Nadia Murad, and to Yazda, a non-governmental organization that supports the Yazidi minority. Ms Clooney has led the advocacy campaign for the establishment of a UN investigation on behalf of her clients, and for over a year has supported the UK government’s efforts to table a resolution before the Council for a vote.

 

In response to the passing of the resolution, Amal Clooney commented that: “This resolution is a victory for victims of ISIS who have fought for so long for justice. Through its unanimous vote today the UN has sent a strong message that ISIS can no longer commit genocide, crimes against humanity and war crimes with impunity.  And that victims may finally have their day in court.”

 

In addition Nadia Murad said: “On behalf of the victims of the Yazidi genocide and all victims of ISIS crimes, I would like to thank the UK, Iraq and all members of the Security Council. I would also like to thank so many people and organizations that have stood by us during this campaign. Justice is worth our time and even our lives and I am glad this work led to a fruitful result”. She continued: “I hope we can now move swiftly to create this team with a strong capacity and start exhuming mass graves and collect evidence. Although ISIS is being defeated on the ground, victims need justice in order to allow healing and reconciliation and we hope this resolution will mark the beginning of that process”.

 

Please click here and here for media coverage, and here for an op-ed written by Amal Clooney in The World Post.

 

 

 

مجلس الأمن التابع للأمم المتحدة يعتمد قرارا للتحقيق بجرائم "داعش" في العراق

 

اعتمد مجلس الدولي ، اليوم الخميس، قرارا تاريخيا بالاجماع، تحدد للمرة الاولى تحقيقا دوليا لجمع الادلة على الجرائم التي ارتكبتها "داعش" في العراق، وسوف يتم استخدام هذه الادلة في المحاكم ضد مسلحي "داعش" في كافة انحاء العالم.

 

هذا القرار يتيح لامين العام للامم المتحدة، بأنشاء فريق تحقيق دولي، يرأسه مستشار خاص، يكلف بجمع الادلة على أفعال قد ترقى الى حجم الابادة الجماعية،جرائم الحرب وجرائم ضد الانسانية. حيث ان الادلة ينبغي ان يتم جمعها وفق " اعلى المعايير الممكنة" لغرض استخدامها في الاجراءات الجنائية " العادلة والمستقلة" في كافة الدول التي تمثثل للقانون الدولي الانساني.

 

ويعترف القرار بان جرائم "داعش"، بما في ذلك الاختطاف، الاستعباد، الاتجار بالبشر،الاغتصاب، الاسترقاق الجنسي وتجنيد الاطفال، هي جزء من ايديولوجية واهداف استراتيجية قد رسمتها داعش، وهذه الجرائم تضع عناصر داعش امام القانون والمحاسبة، سيما اولئك الذين يتحملون المسؤولية الاكبر عن ارتكاب هذه الجرائم.

 

وقد كشفت الامم المتحدة ان "داعش" ارتكب ابادة جماعية ضد المجتمع الايزيدي في العراق وغيرها من الجرائم ضد ضد الشيعة ،المسحيين ،السنة والمجتمعات الاخرى، وبالرغم من ان الابادة الجماعية قد ارتكبت ضد الايزيدين منذ اكثر من ثلاث سنوات، الا انه لم يتم محاسبة او محاكمة اي عنصر في صفوف داعش، وتختفي الادلة والشواهد عن هذه الجرائم كل يوم وبمرور الزمن: فهناك المقابر الجماعية تم العبث بها، الشهود على الجرائم اصبحوا مشتتين حول العالم، الوثائق لم يتم جمعها، الادلة الطبية تضيع يوما بعد يوم. وهذا هو السبب في ضرورة تدخل مجلس الامن وبشكل ملح للغاية.

 

أمل كلوني، هي مستشارة قانونية للضحايا الايزيدين، بما فيهم سفيرة الامم المتحدة للنوايا الحسنة نادية مراد ويزدا التي هي منظمة غير حكومية تدعم المجتمع الايزيدي ، وقادت السيدة كلوني حملة دولية نيابة عن موكليها من اجل انشاء تحقيق من قبل الامم المتحدة، ودعمت منذ اكثر من عام جهود الحكومة البريطانية لتقديم القرار الى مجلس الامن الدولي والتصويت عليه.

 

في معرض ردها على صدور القرار , قالت أمل كلوني : ان هذا القرار هو انتصار لضحابا داعش الذين حاربوا لفترة طويلة من اجل تحقيق العدالة، وبهذا التصويث بالاجماع ارسلت الامم المتحدة رسالة قوية مفادها بان داعش لم تعد قادرة على ارتكاب الابادة الجماعية وجرائم حرب وجرائم ضد الانسانية دون ان يواجه العقاب، وفي نهاية المطاف سوف يكون هناك يوما للضحايا في المحكمة.

 

بالاضافة الى ذلك, قالت نادية مراد : نيابة عن ضحايا الابادة الجماعية الايزيدية وجميع ضحايا جرائم داعش، اود ان اشكر المملكة المتحدة والعراق وبلجيكا وجميع اعضاء مجلس الامن الدولي، وايضا اشكر الكثير من المنظمات والاشخاص الذين وقفوا معنا خلال هذه الحملة، فتحقيق العدالة تستحق ان تاخذ وقتنا وجهدنا وحتى حياتنا، وانا سعيدة باننا نقطف جزء من ثمار هذا الجهد اليوم

.

ناديا اضافت : أمل ان نتمكن من التحرك بسرعة لانشاء هذا الفريق بقدرة قوية والبدء باستخراج وتحليل المقابر الجماعية وجمع الادلة ودفن رفاة الضحايا. وعلى الرغم من هزيمة داعش على ارض الواقع, يحتاج الضحايا الى العدالة من اجل شفائهم من الصدمة التي اصابتهم, ونأمل ان يكون هذا القرار بداية لتلك العملية. 

 

 

EPA-EFE/JUSTIN LANE

New CEDAW General Recommendation on Violence Against Women

20.09.17 | |

The UN Committee on the Elimination of Discrimination against Women (CEDAW) has adopted a new General Recommendation (GR) on Violence against Women: GR35 on gender-based violence against women, updating general recommendation No. 19, available here.

 

GR35 updates GR 19 on this issue, which dates from 1992. CEDAW have acknowledged the landmark nature of GR 19, as well as the work of the UN Special Rapporteur on violence against women, its causes and consequences, and they state in GR35 that it was decided to mark the 25th anniversary of the adoption of GR19 by providing States parties with further guidance aimed at accelerating the elimination of gender-based violence against women.

 

In drafting GR 35, CEDAW was assisted by an Expert Group which met at the LSE Centre for Women, Peace and Security.  Doughty Street Chambers’ Keina Yoshida was a member of this expert group.
 

IBRAHIM HALAWA ACQUITTED OF ALL CHARGES IN EGYPT

 

Today Ibrahim Halawa, the 21-year-old Irishman arrested in Egypt in August 2013 and held in arbitrary pre-trial detention for over four years, has been acquitted of all charges by the Egyptian court in Cairo.  Ibrahim’s international legal team expresses great relief at this news and continues to stand in solidarity with Ibrahim and his family. 
 

 

Ibrahim was arrested when a child aged 17 during protests in Cairo, while sheltering in a mosque.  He was tried en masse with 493 other defendants.  No specific evidence to support the charges in Ibrahim’s case was ever presented, either in court or to his legal team.  During his time in detention in various prison facilities in Egypt, Ibrahim witnessed and was subjected to horrific human rights abuses and inhuman prison conditions, including violent physical abuse, overcrowding, humiliation and appalling lack of sanitation.

 

Throughout the four years of his detention, international human rights bodies have consistently called for Ibrahim’s release.  Following representations by his international legal team (barristers Caoilfhionn Gallagher QC, Katie O’Byrne and Mark Wassouf, and solicitor Darragh Mackin, KRW Law), a Joint Urgent Appeal from several United Nations bodies (the Special Rapporteurs on Torture, Counter-Terrorism, the Independence of Judges and Lawyers, and Summary Executions) and the Working Group on Arbitrary Detention was sent to the Government of Egypt on 14 August 2015.  In December 2015, the European Parliament voted overwhelmingly to recognise the human rights abuses to which Ibrahim was subjected and to call for Ibrahim’s immediate release and repatriation to Ireland. Ibrahim’s case was adjourned over thirty times by the Egyptian court.

 

A press release has now been issued jointly by KRW Law, Doughty Street Chambers and the family, available here

 

Further background is available from RTÉ and the Irish Independent.

 

Heather Williams QC will speak at ‘22 QCs speaking on the Hot Employment Law Issues of 2017 – 18’

Heather Williams QC will be speaking on the 5th October on the topic of “Who is disabled”.

For more information and to register visit the event website

 

 

Henrietta Hill QC will speak at “Mindfulness & Wellbeing in Practice” - Hosted by The Female Fraud Forum

The Female Fraud Forum invites you to their next event "Mindfulness & Wellbeing in Practice" on Wednesday 18th October 2017. 

Jonathan Cooper OBE and Quincy Whitaker will be speaking at the MBL Human Rights Conference 2017

This conference will cover a wide range of highly topical human rights law issues. It will include an up-to-the-minute assessment of the international landscape on human rights; the need to anticipate human rights protection in the UK post-Brexit, and, specifically, will it matter if the EU Charter of Fundamental Rights is no longer binding law in the UK?

 

For more information and to register visit the website

Heather Williams QC represents prominent anti-fracking campaigner challenging multinational firm Ineos in the High Court today

Heather Williams QC today represents environmental campaigner Joseph Boyd in his High Court challenge to the unprecedentedly wide-sweeping injunctions granted at an earlier ‘without notice’ hearing to Ineos, the largest owner of shale gas licenses in the UK.  Heather will argue that the injunctions are wrong in law and infringe rights guaranteed by Articles 10 and 11 of the European Convention on Human Rights in suppressing legitimate anti-fracking protest.  For further information see The Guardian here.  Heather is leading Blinne Ni Ghralaigh of Matrix Chambers and they are instructed by Rosa Curling of Leigh Day, solicitors, see here

Doughty Street Criminal Appeal Bulletin: The September Edition is out now including new Hong Kong case law section

08.09.17 | |

View the September issue here

Professor Nicolas Angelet and Emilie Gonin advised the Walloon region: Belgium asks the CJEU to rule on the CETA investment court

On 6 September 2017, the Deputy Prime Minister and Minister of Foreign affairs of Belgium announced that Belgium had filed a request for an opinion of the Court of Justice of the European Union (CJEU) on the compatibility of the investment court system in the EU-Canada Comprehensive Economic and Trade Agreement (CETA) with European law.   

 

Professor Nicolas Angelet, who recently joined Doughty Street as associate tenant, and Emilie Gonin advised the Walloon Region of Belgium, the driving force behind the request, on the initial draft of the request, which was then subject to negotiations between the Walloon Region and the Belgian Federal State.

 

The CJEU is now to opine on four key topics, namely whether the investment court system is compatible with:

1.      The CJEU’s exclusive jurisdiction to provide the final interpretation of the law of the European Union.  

2.      The non-discrimination principle and the practical effect requirement.    

3.      The right of access to the courts.

4.      The right to an independent and impartial judiciary.  This includes the conditions of remuneration and appointment of the members of the court as well as the provisions regarding court members’ potential conflicts of interest.

 

The decision of the CJEU will provide clarity on an issue that has given rise to controversy far beyond the legal community.  It will also have an impact on whether the investment court system will replace traditional investor state arbitration mechanisms in the future trade and investment treaties entered into by the European Union.   

 

A further report on this topic is available on the Global Arbitration Review (subscription only).

Emma Goodall secures an acquittal for her client charged with an offence under the Psychoactive Substances Act 2016

04.09.17 | |

Emma Goodall secures an acquittal for her client charged with an offence under the Psychoactive Substances Act 2016

 

Emma Goodall represented a client before the Southwark Crown Court defending a charge of possession of nitrous oxide, commonly referred to as laughing gas, with intent to supply. After the defence raised a point of law upon the construction of the Psychoactive Substance Act 2016, the case was reviewed and no further evidence was offered. The issue turned upon whether nitrous oxide fulfilled the definition of a medicinal product and was consequently exempted from prohibition under the 2016 Act.

 

Had the case proceeded to a full trial expert scientific evidence would have been called challenging whether the prosecution could prove that nitrous oxide was a psychoactive substance within the definition of the 2016 Act.

 

It subsequently transpired that before the Taunton Crown Court an application to dismiss succeeded where it was also submitted that nitrous oxide was exempted from the 2016 Act. Together these cases have attracted considerable media coverage and we now wait with interest to see what impact this argument may have on past and current prosecutions.

 

Read about this case in the media here and here

 

Emma was instructed by Mike Boyd and Mark Fanthorpe of EBR Attridge LLP Solicitors.

 

Charlotte Kilroy nominated for Human Rights and Public Law junior of the year

01.09.17 | |

We would like to congratulate Charlotte Kilroy nominated for Human Rights and Public Law junior of the year by the Bar Awards. The Bar Awards are run by Chambers and Partners and reflect notable achievements of individuals and sets over the past 18 months. The awards dinner will take place on 26th October in London. Charlotte is one of three juniors nominated in this category. All the award nominees can be seen by clicking here.   

Siobhan Grey QC has been announced to speak at the 30th Annual Global Trade Controls and Compliance conference in London.

31.08.17 | |

The event will involve lawyers and Industry figures from around the globe who will be discussing export controls, sanctions, and cyber-surveillance technology.

Sionahn Grey QC will be taking part in a panel discussion on what the impact of Brexit will be on export controls and sanctions. Siobhan will also be discussing recent enforcement cases in the UK.

For more information visit the conference website

Harriet Johnson achieves unanimous acquittal on all counts in murder trial

25.08.17 | |

After a seven-week trial, Harriet Johnson has achieved a unanimous acquittal on all counts for her client in a high-profile murder trial.  Kiroraj Yogarajah was one of three men and one youth facing alternative charges of murder, manslaughter, causing grievous bodily harm with intent, and causing grievous bodily harm.  Two of Mr. Yogarajah’s co-defendants were convicted of murder, and the other of causing grievous bodily harm with intent.

 

During the course of the trial, the Crown took the decision not to rely on a witness who gave evidence of a phone call made by Harriet’s client, which provided crucial exonerating evidence that supported his account.  After considering Harriet’s carefully drafted legal argument, however, the Crown ultimately acquiesced to her submission that it had a duty to call him, meaning his evidence went before the jury as part of the prosecution case.  

 

Coverage of the case can be found here.

 

Harriet was instructed by Pan Symeou and Noreen Kibria of Faradays Solicitors, and led by Jonathan Higgs QC

Jonathan Cooper interviewed by The Times on the future of diversity in the legal profession

The Brief, which is the in-depth legal features publication from the Law section of The Times newspaper, has been running a series of video interviews this week on diversity in the law.  In the final part of this series they interview Doughty Street barrister and well known human rights specialist Jonathan Cooper, who argues that, although the legal profession in Britain is at last very welcoming to LGBT lawyers, it is incumbent upon us to continue to push other countries to decriminalise homosexuality. 

 

You can watch the interview with Jonathan by clicking here, and the other interviews in the series can be accessed by clicking here.  

 

President of Upper Tribunal orders the SSHD to admit vulnerable teenage asylum seeker in Greece

In AR v SSHD the Upper Tribunal granted AR’s application for interim relief and ordered that the SSHD admit him to the UK. AR arrived in Greece as an unaccompanied 17 year old and claimed asylum. Under the Dublin III Regulation has the right to join his extensive family in the UK who are willing to take care of him. However, he had been trapped on the Greek Island of Lesvos for over 9 months without his case being transferred to the UK. In an important decision on interim relief the Tribunal found that the in view of the prospects of AR succeeding and the balance of convenience, the SSHD should admit the AR to the UK. 

 

Charlotte Kilroy and Michelle Knorr represent AR and are instructed by Christine Benson at the Migrants’ Law Project at Islington Law Centre. 

 

AR v SSHD is one of a series of successful cases brought on behalf of asylum seeking children in Europe separated from their families in the UK. 

Upper Tribunal finds refusal to grant a victim of trafficking Indefinite Leave to Remain is unlawful

21.08.17 | |


In R(FT) v SSHD [2017] UKUT 00331 Mrs Justice Cheema-Grubb and Upper Tribunal Judge Blum found that the SSHD’s refusal to grant FT, a recognised victim of trafficking, indefinite leave to remain (ILR) was unlawful. The case considers the SSHD’s policy on grants of leave to victims of trafficking on account of their personal circumstances. The Tribunal accepted that the SSHD’s misconduct in handling FT’s case, which had significantly undermined FT’s recovery and worsened his mental health, was a relevant factor in deciding the duration of leave granted. The judgment makes clear that a broad range of factors must be considered in determining whether a victim of trafficking’s personal circumstances are such that leave should be granted and, if so, for what duration. 

 

Michelle Knorr was counsel for FT instructed by Nina Rathbone-Pullen at Wilson Solicitors LLP.

A link to the judgment can be found here

IRAQ REQUESTS UN’S ASSISTANCE TO BRING ISIS TO JUSTICE

16.08.17 | |

The United Kingdom has today announced that it is working with Iraq on a resolution to be adopted by the United Nations Security Council establishing a mechanism to investigate and prosecute crimes committed by ISIS. This follows a letter sent by the Iraqi Foreign Minister Ibrahim Al-Jaafari to the UN last week seeking assistance in holding ISIS accountable for its crimes, and a similar request by the Iraqi Prime Minister Haider Al-Abadi issued before that.

Amal Clooney is counsel to Yazda, Nadia Murad and other Yazidi victims of ISIS’ genocide. She has repeatedly called on the United Nations Security Council to establish a mechanism to investigate and prosecute ISIS’ crimes in line with international standards. And she has urged the Government of Iraq on multiple occasions to send a letter to the United Nations that would trigger a Security Council vote.

Mrs Clooney welcomes Minister al-Jaafari’s letter as an important first step to bring ISIS to justice. And she congratulates the Government of the United Kingdom for its role in leading this initiative within the UN. Of course, this step is only meaningful if it is followed by prompt action by the Security Council to collect evidence of ISIS’ crimes so that it can be used in future prosecutions that respect international fair-trial standards. 

Nadia Murad, a Yazidi survivor and UN Goodwill Ambassador, noted: “I am very happy to receive this positive news just one day after the third anniversary of the massacres in Kocho. I am grateful to Iraqi Prime Minister Mr Abadi and to the United Kingdom for initiating the first step to establish an international mechanism to investigate ISIS and hold them accountable. Victims deserve a meaningful accountability mechanism in which they trust and I hope that the Security Council resolution will reflect that”. Mrs Clooney added that: “Yazidis and other ISIS victims want justice in a court of law, and they deserve nothing less. I hope that the Iraqi Government’s letter will mark the beginning of the end of impunity for genocide and other crimes that ISIS is committing in Iraq and around the world”.
 

End

العراق يطلب مساعدة الأمم المتحدة لجلب عناصر داعش الى العدالة 

أعلنت المملكة المتحدة ،اليوم،أنها تعمل مع العراق على تقديم مشروع قرار يتبناه مجلس الأمن الدولي التابع للأمم المتحدة بإنشاء آلية للتحقيق في الجرائم التي ارتكبتها تنظيم الدولة الإسلامية ومقاضاة مرتكبيها. ويأتي ذلك بعد رسالة بعث بها وزير الخارجية العراقي السيد ابراهيم الجعفري الى الامم المتحدة الاسبوع الماضي طالبا فيها المساعدة في محاسبة داعش على جرائمه وطلب مماثل من رئيس الوزراء العراقي السيد حيدر العبادي صدر قبل ذلك.

أمل كلوني, المستشارة القانونية لمنظمة يزدا ولنادية مراد وغيرها من ضحايا الأيزيديين الناجيين من الابادة التي ارتكبتها تنظيم داعش، دعت مرارا مجلس الأمن التابع للأمم المتحدة إلى إنشاء آلية للتحقيق في جرائم داعش ومحاكمتها وفقا للمعايير الدولية. وحثت حكومة العراق في مناسبات عديدة على توجيه رسالة إلى الأمم المتحدة من شأنها أن تؤدي إلى تصويت في مجلس الأمن.

وترحب السيدة كلوني برسالة وزير الخارجية العراقي السيد أبراهيم الجعفري كخطوة أولى مهمة لجلب داعش إلى العدالة وتهنئ حكومة المملكة المتحدة على دورها في قيادة هذه المبادرة داخل الأمم المتحدة. وبطبيعة الحال، فإن هذه الخطوة سوف تكون لها معنى فقط إذا ما اتبعت بإجراء عاجل من مجلس الأمن لجمع الأدلة على جرائم داعش بحيث يمكن استخدامها في الملاحقات القضائية في المرحلة المقبلة.

وقالت نادية مراد، وهي ناجية من الأبادة الايزيدية وسفيرة النوايا الحسنة لدى الأمم المتحدة: “إنني سعيد جدا بتلقي هذه الأنباء الإيجابية بعد يوم واحد فقط من الذكرى الثالثة لأبادة قريتي, كوجو. وإنني ممتنة لرئيس وزراء العراق السيد حيدر العبادي والمملكة المتحدة على البدء في الخطوة الأولى لإنشاء آلية دولية للتحقيق في جرائم داعش ومحاسبتهم. الضحايا  يستحقون آلية جادة للمساءلة ذات مغزى يثقون بها وآتمنى أن يعكس قرار مجلس الأمن ذلك “. 

وأضافت السيدة كلوني: “إن الأيزيدين وضحايا داعش الآخرين يريدون الوصول الى تحقيق العدالة ومثول مرتكبي الجرائم امام القانون، ولا يستحقون شيئا أقل من ذلك. وآمل أن تكون رسالة الحكومة العراقية بداية لنهاية الإفلات من العقاب على الإبادة الجماعية وغيرها من الجرائم التي ارتكبتها داعش في العراق وحول العالم “.

النهاية

 

Regaining Our Balance With Vulnerable Witnesses

11.08.17 | |

It is undeniably important that complainants alleging sexual offences are treated with consideration in the course of criminal proceedings, and we will rightly continue to see further research and development in the criminal justice system to promote this. It is equally undeniable, however, that there are times when the presumption of innocence can fall from view in the application and interpretation of rules and guidance that protect those making the allegations.

 

In R v SG [2017] EWCA Crim 617 the Court of Appeal (Simon LJ, Stuart-Smith J and The Recorder of Cardiff) considered a mid-trial decision by a Recorder to treat an eighteen-year-old complainant as vulnerable, and direct that the defence prepare written questions before cross-examination resumed the following day. Whilst the appeal was ultimately dismissed because the course adopted did not cause unfairness to the defendant and the convictions were safe, the Court’s summary and interpretation of current rules and guidance is likely to be of assistance to defence advocates in similar situations.

 

The discussion of the issues arising began with a strong and welcome reaffirmation of the prerogative of a defence advocate to test the prosecution evidence. Simon LJ observed (at paragraph 44) that it is wrong to characterise questions in cross-examination as being objectionable because they are ‘speculative’ or had not been foreshadowed in the Defence Statement. Where the defence case is a denial that an event or offence took place, the defence is entitled to test the truth and accuracy of prosecution evidence by questions which test their likelihood. Cross-examination of the ‘mechanics’ of how something happened may lead a jury to conclude that it did not happen, or may not have happened, in the way described by the witness. Such a challenge does not have to be specifically pre-figured in a Defence Statement.

 

His Lordship then went on to summarise the current provisions and guidance in relation to the treatment of vulnerable witnesses (see paragraphs 45 to 51).

 

Having done so, he noted that the complainant in the instant case had not been regarded as a vulnerable witness up to the point that cross-examination began, there had been no ground rules hearing, and she appeared to be a mature and articulate witness. Although a witness’s vulnerability may only become apparent when giving evidence, it is important for the court to hold a balance between the importance of a witness being able to give the best evidence they can without being harassed by the form or nature of the questioning and the potentially conflicting interest of a defendant in being able properly to challenge a witness’s account.

 

The Court also observed that whilst witnesses may find giving evidence in court (and reliving their experiences through their evidence) to be highly stressful, there may also be a reason for distress which might be said to favour the defence: a witness may have been caught out in a lie or may be apprehensive about being challenged in relation to an untruthful account given in evidence. ‘Importantly in the present context, a witness exhibiting signs of distress is not necessarily to be treated as a vulnerable witness’.

 

Even if a witness is vulnerable it does not follow that the only course is to direct the form of cross-examination – advocates will be aware of the danger of alienating the jury by inappropriate tone or content of questioning and have a professional duty to treat witnesses with proper consideration. ‘In the generality of cases courts should bear in mind the disadvantages to the defence in prescribing the form of questioning, not least because it may inhibit the development of cross-examination in response to a particular answer’.

 

This is a welcome recognition of the constraints that defence practitioners increasingly act under, whilst continuing to do the best for our clients and protecting their right to a fair trial.

 

Guilty plea guideline comes into force - will sex sentences increase?

11.08.17 | |

The sentencing council’s definitive guideline reduction for guilty plea came into force on 1st June 2017. If you were already thinking “Can sentences for sexual offending get any longer?” the answer may well be yes. The guideline supersedes all previous authorities, (for example, Caley [2013] 2 Cr.App.R(S) 305) and provides in terms that defendants will only normally be entitled to the one-third discount at the first hearing when an indication of plea is sought and recorded by the court. Which of course ordinarily is the Magistrates court.

 

While the idea itself is not new, the guideline now makes it very difficult for Crown Court Judges to justify giving a third discount at PTPH as many have been still prepared to do.

 

The exceptions to the rule make it clear that

 

“your client knows whether he did it not – you don’t need the text messages/medical evidence/ABE” before he enters a plea”

 

the approach of some crown Court Judges is acceptable – it is only if the evidence is necessary to understand whether the client is in fact and law guilty of the offence that allowing for a delay for evidence to be served and retaining full credit may be permissible.

 

Legal teams will need to be alive to this consideration when seeking out the third discount at PTPH. In cases where counsel are to be instructed seeking an opinion at the pre Crown Court stage is likely to be increasingly important. The reality of advice now has to be that the discount will be 25% at PTPH and that poses all sorts of problems in sex cases where you think there might be a guilty plea. Cases prepared for the Magistrates Court hearing (and any committal for sentence) may not provide the full evidential picture and defendants accused of sexual misdemeanours who are in fact guilty often need time -and quality legal advice - to be prepared to admit their guilt.  The timescale between charge, first appearance in the Magistrates and a potential committal for sentence date in the Crown Court is short with a very small window for assessing the evidence against a defendant

 

We suspect that that there might be some Crown Court Judges – the sort who wouldn’t dream of saying  ‘your client knows whether he did it or not’ who will feel concerned at the loss of their discretion  to give the full discount at PTPH in cases always destined for the Crown Court and who might make adjustments elsewhere in the sentence calculations as a result.

 

Latest case on guilty plea discount

 

R v Campbell [2017] EWCA Crim 272

 

12.5% discount for plea on the first day of trial (and subsequent failed attempt to withdraw it) too generous in offence of assault by penetration

 

More guidelines sex and young defendants

 

The definitive guideline sentencing children and young people is also now in force as of 1st June 2017. It contains both overarching principles and offence specific guidelines for sexual offences and robbery. The new sexual offences guideline applies to all those under 18 at the time of sentence regardless of the date of the offence.

 

Still on the subject of children and young people a section 15A has been inserted into the SOA 2003 making it an offence to have sexual communication with a child, thereby making the sending of sexual messages by adults to children under 16 for the purposes of sexual gratification an offence. As with other grooming offences, there is a need to prove that the defendant did not have reasonable belief that the child was 16 or over.

 

Cautionary tales

 

We’ve noticed lately some surprising comments turning up on the footage of ABE interviews. One recently had ‘Vulnerable witness interview’ superimposed over the screen throughout, and another came back from the editing suite with words “Section Removed” helpfully coming up on the screen every time there was an edit. It can only be a matter of time before one is subtitled “Victim’s interview”.

 

Sarah is widely recognised as one of the leading silks at the Bar specialising in defending sexual allegations. Sarah is available for advice for solicitors and their clients at all stages of proceedings from pre charge to post conviction Click here for more information and to contact her directly. 

Riot at your peril: Manslaughter sentences revisited?

Is it time for the Court of Appeal to revisit manslaughter sentences after Jogee? In Lord Hughes’s Supreme Court judgment in that case [2016 2 W.L.R. 681] the mental element for a secondary party to murder was raised from foresight to intent. Less commented upon was the Court’s accompanying decision about criminal liability for a fatality during public disorder when the secondary accused [“D2”] did not know, typically, that the principal had a knife. Before Jogee such an accused would be guilty of affray, violent disorder or whatever but not of any form of homicide. No longer; D2’s “intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession. The tendency which has developed .......to focus on what D2 knew of what weapon D1 was carrying can and should give way to an examination of whether D2 intended to assist in the crime charged” [98].

 

From now on defendants who are part of large fights will stand to be convicted of manslaughter if one of their group kills; what the Supreme Court gives with one hand it takes with the other. Yet the sentences suggested by the Court of Appeal in “manslaughter by stabbing” cases all proceed on the basis that the offender was either the knifeman or knew such a weapon was being carried [Bishop (2012) 1 Cr. App. R. (S.) 60 or Odegbune and Others (2013) EWCA Crim 711 to take two examples]. This could change; Lord Justice Gross gave leave to appeal sentence in recent days in a case in which the appellant pleaded to manslaughter on the basis he only became aware the principal was armed with a knife after the mass violence had begun yet the sentencing judge took a starting point of about 15 years, at the top of the knife-wielding manslaughter range.  The Court of Appeal now has the chance to reconsider the proper sentence range in these less culpable manslaughter cases. Might this be a rare example of the Court intervening to lower a range of sentences? We can but hope.

International Criminal Court must act on Yazidi atrocity

The third anniversary of the massacre of Yazidis at Mount Sinjar – now known to the community as the mountain of death – was last Thursday.

 

Images of a peaceful community trapped on a desolate mountain, unable to escape and awaiting death, targeted by Islamic State because of its ancient religion, are seared onto many memories. Thousands of men and older women were summarily killed. Younger women were captured and more than 3,000 remain captive, sexually enslaved and subjected daily to rape, sexual violence and torture. Boys have been forcibly converted and conscripted into Isis’s forces. More than 360,000 Yazidis were displaced.

 

The Global Justice Centre in New York and the human rights committee of the Bar Council of England and Wales recently lodged a legal submission with the prosecutor of the International Criminal Court, Fatou Bensouda. It argued that she has jurisdiction to open a preliminary examination into Isis’s acts of genocide and other grave crimes against the Yazidis.

 

The UN, the European parliament and the EU have declared that crimes against the Yazidis constitute genocide, but there has not been a single prosecution of an Isis fighter for genocide or crimes against humanity. States have clear obligations under international law to punish war crimes, crimes against humanity and genocide. While Germany has led the way in issuing arrest warrants, efforts to achieve justice are fragmented. Accountability is a patchwork, with terrorism prosecutions in domestic jurisdictions around the world, including in Iraq, and a handful of potential cases under universal jurisdiction in Germany.

 

An ad hoc or hybrid tribunal in Iraq has been suggested, as has a referral of Syria or Iraq to the International Criminal Court (ICC) and a specialised Isis court. However, the implementation of these remedies is unlikely because of a lack of willingness from or inability of the key states. Recent reports about a new Isis court in Iraq, which focuses solely on terrorism, raise serious human rights concerns over the rights and treatment of the accused and continued impunity for international crimes.

 

The Yazidi genocide demands an international law response in an international court. An appropriate legal solution is the exercise of jurisdiction by the ICC over foreign fighters from states party to the Rome Statute of International Criminal Court. This would include, according to best estimates, up to 15,000 fighters from at least 34 states.

 

The ICC has an opportunity to fulfil its core mandate to prosecute individuals for genocide and crimes against humanity and end impunity. There is a legal basis for the court to act, complementary to legal actions carried out by individual states. It should do so urgently. Otherwise, the ICC is in danger of appearing to turn its back on the mountain of death.

 

Kirsty Brimelow, QC, is the chairwoman of the Bar Council’s human rights committee and a tenant at Doughty Street Chambers in London; Akila Radhakrishnan is the legal director of the Global Justice Centre]

 

Read the original article here.

Rwandan genocide: High Court rules that extradition would breach Article 6 ECHR

In a landmark ruling following a six day appeal hearing at the High Court between November and December 2016, a Divisional Court has ruled that the extradition to Rwanda of five men in relation to the 1994 genocide would breach Article 6 ECHR. The judgment is available here.

 

In ruling in favour of the Respondents, the court (Irwin LJ and Foskett J) upheld the decision of Deputy Senior District Judge Emma Arbuthnot (now the Chief Magistrate of England and Wales) who, following the longest running extradition proceedings in Westminster Magistrates’ Court, discharged all five men from the extradition request in December 2016. The Divisional Court further held that, in two of the Respondents’ cases – Mutabaruka and Nteziryayo – extradition was statute barred by reason of double jeopardy.

 

The decision is the latest event in an eleven year battle on behalf of the Government of Rwanda to secure extradition of the men, who are alleged to have participated in the genocide. In 2006, the Government of Rwanda and the UK signed a Memorandum of Understanding which gave rise to the first set of extradition proceedings in 2007. At that time, national jurisdictions would not extradite genocide suspects to Rwanda to stand trial, following the practice of the International Criminal Tribunal for Rwanda (ICTR), which had refused to transfer genocide suspects to Rwanda to stand trial in all applications which had come before it (Munyakazi; Kanyarukiga; Hategekimana; Gatete; Kayishema). The common thread of the respective legal positions adopted by national jurisdictions and the ICTR was that the Rwandan state was not yet able to guarantee fair trial rights, and that there was serious difficulty regarding the availability and presentation of defence evidence, which included issues relating to witness intimidation and reprisals from state actors.  

 

At the conclusion of the first round of proceedings in 2008, the Secretary of State ordered that extradition should take place. All requested persons appealed to the High Court. In the decision of the High Court in 2009 (Brown and others v Government of Rwanda and another [2009] EWHC 770 (Admin)), Lord Justice Laws ruled that extradition would breach Article 6 ECHR because of the risks of witness intimidation and absence of judicial independence in Rwanda. The Court recorded the efforts made by Rwanda to rebuild its criminal justice system and to conform with international standards, but held that:

 

“...we have not forgotten the scale of the dreadful tribulations suffered in Rwanda in 1994. Nor have we ignored the real and substantial measures taken to establish a judicial system capable of delivering criminal justice to acceptable standards. But our duty is to apply an objective test – real risk of flagrant denial of justice. We certainly cannot sanction extradition as a means of encouraging the Rwandan authorities to redouble their efforts to achieve a justice system that guarantees due process. That might serve a political aspiration, but would amount to denial of legal principle.” [120]

 

Following a shift in the approach of the ICTR in 2009 with the ruling in Jean Uwinkindi (Case No. ICTR-2001-75-R11bis), in which the ICTR authorised the first transfer of a genocide suspect to Rwanda under Rule 11 bis, a number of national jurisdictions followed suit. The Government of Rwanda signed a second Memorandum of Understanding with the UK and launched the second round of extradition requests in 2013, arguing that there had been a ‘sea-change’ in the international legal community’s assessment of Rwanda’s ability to deliver fair trial rights to genocide suspects. The second extradition hearing started in April 2014.

 

Since then, the case has centred on the political regime in Rwanda, judicial independence, the provisions of Rwanda's Transfer Law, the independence of the judicial police, and the quality of defence representation in genocide and politically sensitive trials. The case has heard evidence from lay and expert witnesses across the world, including evidence from a range of political scientists and lawyers specialising in the Rwandan genocide, as well as anonymous genocide survivors. The Respondents relied upon evidence which tended to demonstrate the complicity of the Rwandan government in extra-judicial killings, disappearances and torture both inside and outside of Rwanda. This evidence included a number of Osman warnings given by British police to Rwandan individuals in the UK. The case was also considered by the United Kingdom Supreme Court in 2014 during an interlocutory judicial review relating to anonymous witness evidence: R (on the application of VB) v Westminster Magistrates’ Court [2014] EWHC   889 (Admin).  

 

In reaching the conclusion that, if extradited, there was a real risk that the Respondents would be subject to a flagrant denial of justice contrary to Article 6 ECHR, the Divisional Court held:

 

“If there is a real risk of a flagrant denial of justice, that means there is a real risk of the innocent being convicted. To extradite in the face of such a risk, even if motivated by a desire to repatriate the criminal process to the country where it should properly be conducted, would be no more and no less a wrong than it would be to permit a serious miscarriage of justice here.” [369]

 

The Court has invited the Government of Rwanda to consider whether it can, by way of a “final opportunity”, proffer any assurances that would meet the failings identified.

 

In Emmanual Nteziryayo and others v Government of Rwanda [2017] EWHC 1912 (Admin), Edward Fitzgerald QC and Kate O’Raghallaigh represented Celestin Ugirashebuja, instructed by Hallinan Blackburn Gittings and Nott. Tim Moloney QC represented Charles Munyaneza, instructed by O’Keefe’s Solicitors.

 

Man acquitted of murder of celebrity bodyguard following six week ‘cut throat’ murder trial

31.07.17 | |

Tim Moloney QC represented the acquitted defendant, instructed by Shreeta Gondhia of Edward Fail, Bradshaw and Waterson and leading Aisling Byrnes of 25 Bedford Row.

 

Read more about the case in the news here and here

French right to be forgotten case referred to European Court of Justice

Where a regulator in one EU country requires information to be removed from the internet, should that be given effect in that one country, across the EU or globally?

 

This is the question France’s Conseil d’Etat, the country’s highest administrative court, has referred to the EU Court of Justice to decide to resolve a dispute between Google and France’s data protection authority, la Commission nationale informatique et libertés (“CNIL”). The dispute concerns the extent of Google’s responsibility to remove information from the internet in relation to the controversial “right to be forgotten”.

 

In 2014, CNIL ordered Google to remove 21 links from the results of an internet search on the name of a French citizen who claimed a “right to be forgotten”: the right to have results removed that are embarrassing or out of date.  Google initially removed the links from its French search site (www.google.fr) and other European search sites.  Google then blocked the links from results returned to European users, even when using Google’s non-European sites, including www.google.com. Still, this was not enough.

 

CNIL demands that when it orders content to be “forgotten” from search results, this decision must be given effect worldwide. This means that the results must be made unavailable to all users internationally, regardless of where they are accessing internet search engines.  CNIL also imposed a huge fine on Google, of €100,000.

 

CNIL’s rationale is that failing to remove links with global effect creates an "absurd" situation where data that can’t be shown in Europe to protect a person’s right to be forgotten remains available globally, undermining their right. But the effect of CNIL’s decision is to enforce France’s right to be forgotten beyond its borders and in countries which don’t recognise the right, raising concerns about country-specific laws limiting what is available on the internet for everyone. Google is challenging the decision for this reason: the French approach creates a precedent for governments to force worldwide removal of content that is illegal in their country.

 

What happens to the internet when countries with sharply diverging definitions of acceptable and lawful online speech are able to enforce their standards globally by forcing Google to remove content elsewhere in the world? If permitted, the information available on the internet will have to comply with the world’s strictest legal restrictions.

 

This has serious implications for freedom of expression, particularly in the developing world. For this reason, 18 NGOs specialising in the defence of human rights and online freedom of expression in Africa, Asia, Latin America and Europe intervened in the Conseil d’Etat case with the assistance of Doughty Street International members Caoilfhionn Gallagher QC, Jude Bunting, Jennifer Robinson and associate Nani Jansen Reventlow, all of whom have expertise in freedom of expression law.  The NGOs’ intervention brief raised concern about the impact of CNIL’s decision on the many people across the world whose rights they protect and on their ability to do their work. The NGOs argued for the need to be able to rely on the free exchange of ideas and information online in order to carry out their important human rights work. The internet is of particular importance to those working in countries where restrictive laws limit the information available in the local media.

 

The decision follows a string of domestic decisions about the right to be forgotten in the Netherlands, Japan, France and Belgium which demonstrate the widely divergent approaches taken by different countries. This only highlights the danger of applying any one country’s laws beyond their borders and the difficulties of regulating cross-jurisdictional flows of information.

 

The intervention brief can be read here in French and English.

 

More details about Doughty Street’s International Media Defence Team is available here

Peter Carter QC and Kirsty Brimelow QC to speak at the JUSTICE Human Rights Law Conference 2017

One of the highlights of the human rights lawyer’s CPD calendar, JUSTICE Human Rights Law Conference 2017 offers a prime opportunity to update your legal knowledge and gain valuable insight into the human rights issues of the year. As ever, this year’s programme aims to ensure that delegates are equipped with the key legal and policy developments necessary to defend current human rights concerns.  

 

Peter Carter QC and Kirsty Brimelow QC will be presenting the Criminal justice and human rights update, chaired by  Professor Jackie Hodgson, University of Warwick.

 

For more information, visit the conference website.

 

Abigail Bright acts for ICAEW in successful case against incompetent accountant

19.07.17 | |

A tribunal of the Institute of Chartered Accountants in England & Wales Disciplinary Committee accepted Abigail Bright’s submissions that financial transactions in which Mr B (an ICAEW-registered Chartered Accountant) involved himself were such as to bring discredit on himself, the Institute and the profession of accountancy.  The case against Mr B involved allegations that he misrepresented investors as to the success of a company involved in dishonest financial conduct.

 

Jessica Sutherland-Mack, Legal Adviser at the ICAEW, instructed Abigail to advise the Institute and to present its case against Mr B before the tribunal.

 

The terms of complaint formulated by the ICAEW were that, contrary to Disciplinary Bye-law 4.1b, Mr B 'performed his professional work or the duties of his employment, or conducted his practice, inefficiently or incompetently to such an extent, or on such a number of occasions, as to bring discredit on himself, the Institute or the profession of accountancy'.

Paul Mason contributes to leading work on human rights and the media

19.07.17 | |

 

Routledge has announced the publication of a new volume of essays offering a comprehensive and contemporary survey of the key themes, approaches and debates in the field of media and human rights.  The Routledge Companion to Media and Human Rights is edited by Professor Howard Tumber,  City University and Professor Silvio Waisbord,  George Washington University, USA. 

 

Paul’s chapter, 'Prisoners, Human Rights and the Media' assesses the way in which prisoners’ rights are constructed by the mainstream media and examines the coverage of the European Court of Human Rights cases concerning prisoners’ right to vote in Italy and the UK. It argues that state agencies and elite news sources define for the public who the prisoner is, what rights they have, and what rights they do not.

 

 

Independent Inquiry into Child Sex Abuse continues its hearings – several Doughty Street barristers appearing

The Independent Inquiry into Child Sexual Abuse is continuing with its public hearings, which relate to alleged sexual abuse in the British child migration programmes. These were large-scale schemes where various institutions migrated thousands of children to countries across what was the British Empire.

 

Henrietta Hill QC is instructed as Counsel to the Inquiry, leading Mark Wassouf and Katie O’Byrne.  

 

Appearing on behalf of Core Participant the Child Migrants Trust are Aswini Weereratne QC and Keina Yoshida.

 

The Inquiry will hear live evidence this week from a number of witnesses from institutions involved in the child migration programmes including the Government, and expert witnesses. 

 

More information about the hearings can be found here.

 

You can also watch the proceedings which are being streamed live by clicking here.

 

Briefing note on the EU Withdrawal Bill with particular reference to the EU Charter

Jonathan Cooper OBE has prepared a briefing note on the EU Withdrawal Bill with particular reference to the EU Charter. The briefing note provides an introduction to why the EU Charter of Fundamental Rights needs to remain part of the UK’s legal arrangements post the UK’s exiting the European Union. 

 

The full briefing document can be read here

Caoilfhionn Gallagher QC appointed a Fellow of the Royal Society of Arts

Caoilfhionn Gallagher QC has been appointed a Fellow of the Royal Society of Arts (RSA), in light of her “outstanding commitment to enabling the Human Rights Act’s protections.”  The mission of the RSA is to enrich society through ideas and action.  Caoilfhionn was selected to join the RSA Fellowship due to her work on groundbreaking human rights test cases, acting for individual clients and NGOs, and for the Act for the Act campaign.

 

Caoilfhionn’s recent human rights cases include acting for disabled children, carers, victims and survivors of domestic violence and lone parents in a series of successful challenges to welfare cuts (the benefit cap and the ‘bedroom tax’); acting for bereaved families in the Hillsborough inquests and related civil proceedings; and acting for women and girls from Northern Ireland where abortion is criminalised in almost all circumstances.  She has particular expertise in children’s rights, women’s rights, freedom of expression and strategic litigation.

 

The Act for the Act campaign, run entirely by volunteers, was founded by Caoilfhionn, legal journalist Fiona Bawdon and Doughty Street Chambers Associate and Director of Liberty, Martha Spurrier.  They were inspired by seeing the importance of the Human Rights Act in their professional lives, and witnessing firsthand the vital protections it provides to people every day. They felt that, in the political, legal and media debate about the Human Rights Act, the most important voices were missing:  the everyday people and families who in times of great distress and difficulty suddenly needed the Human Rights Act.  This was the inspiration for a crowdfunded nationwide advertising campaign to tell some of these stories: on billboards; in tube stations; on the sides of buses; and on huge iconic advertising towers on the motorways into major cities.

 

RSA Fellows come from diverse backgrounds and professions.  Current RSA fellows include Judi Dench, Stephen Hawking, David Attenborough and Tim Berners-Lee.  Notable previous fellows include Marie Curie, Karl Marx and Charles Dickens. The Fellowship is now a global, interdisciplinary network of 28,000 people who support the RSA’s mission and have innovative ideas for achieving social change.

 

On receiving the fellowship, Caoilfhionn Gallagher QC said:

 

“It is a privilege to be invited to become a Fellow of the Royal Society of Arts. The RSA aims to address our most pressing social challenges through collaborative action and multi-disciplinary thinking. I can’t wait to get stuck in and work with other RSA fellows in creative ways to address threats to our hard-fought human rights protections at home – all the more important and urgent given Brexit plans.

The RSA’s global reach also brings unique opportunities and I plan to work with others to address two international issues of great concern to me: the imprisonment and gagging of journalists, and gender-based violence.”  

Divisional Court to hear ‘right to die’ case

Caoilfhionn Gallagher QC and Graeme Hall, instructed by Nancy Collins, partner at Hodge Jones and Allen, are representing Humanists UK in its intervention in the case of R (Noel Conway) v Secretary of State for Justice, being heard before a Divisional Court next week (17 – 20 July).

 

Mr Conway has motor neurone disease, a terminal and degenerative illness. He seeks a declaration that section 2(1) of the Suicide Act 1961 – which criminalises “complicity in another’s suicide” – is incompatible with his right to private and family life under Article 8 ECHR, and his right to freedom from discrimination under Article 14 ECHR. His case is about the impact of the current law on adults who are terminally ill and have less than six months to live, who wish to die, but as a result of disability cannot end their own lives unaided and need the assistance of others.

 

Humanists UK was given permission to intervene in the case in recognition of its expertise in relation to assisted dying, summarised here.  Humanists UK campaigns to legalise assisted dying across the UK.  It wholly supports Mr Conway’s case and seeks to build upon the arguments he advances.  Humanists UK’s Chief Executive Andrew Copson said in the press that the deliberate extension of suffering as a matter of public policy is “a stain on our humanity”.

 

More information is available from Hodge Jones and Allen, here, and from Humanists UK, here. Humanist UK’s intervention has been covered in politics.co.uk.  More background on Noel Conway’s legal fight is available from the Shropshire Humanist.

International Bar Association adopts Resolution on proliferation of armed drone strikes

13.07.17 | |

The International Bar Association’s Human Rights Institute (‘IBAHRI’) has adopted a Resolution on armed drone strikes in light of their increased use in warfare.

 

The IBAHRI’s press release summarises the resolution as follows:

 

  • In the Resolution, adopted on 25 May 2017, the IBAHRI expresses concern about the:
  • availability of drones that may spread armed conflict and encourage states to resort to lethal force and violate human rights;
  • lack of clarity and transparency as to the applicable legal framework governing drone strikes;
  • undermining of effective legal oversight and accountability;
  • secrecy surrounding the use of drones leading to the preclusion of appropriate investigations;
  • psychological harm reported to be suffered by those living within the regions in which drones regularly operate; and the lack of required infrastructure and/or access to the judicial system for victims of drone strikes to realise effective remedies.

 

Further, the Resolution states:

  • The use of drones must adhere to the current law governing the use of force: The accepted exceptions to the general prohibition against the threat or use force in Article 2(4) of the Charter of the United Nations are that force may be lawfully used only in cases where consent has been sought and granted from the legitimate government of a territorial state, or in proportionate self-defence, or with the authorisation of the UN Security Council.
  • Whether or not a drone strike occurs in the context of an armed conflict is crucial to assessing its lawfulness: International humanitarian law and international human rights law have different rules on when and how lethal force may be used. The level and type of force inherent in the use of armed drones will rarely, if ever, be lawful under the more protective international human rights law framework outside of armed conflict. It is therefore of utmost importance that the existence of an armed conflict is not lightly assumed. It must be objectively assessed, on the basis of factual circumstances prevailing at the material time.

 

An in depth Background Paper was published at the same time.

 

At the invitation of Dr Phillip Tahmindjis, IBAHRI Director, Graeme Hall contributed research to the Background Paper which formed the basis of the Resolution.

Supreme Court hears appeal in Robinson v Chief Constable of West Yorkshire considering again the Hill immunity and liability for the police in negligence.

In the latest development concerning the general rule that the police cannot be sued in negligence for activities concerning the investigation and suppression of crime, the UK Supreme Court (Lady Hale, Lord Mance, Lord Reed, Lord Hughes and Lord Hodge) hear the case of Mrs Robinson v Chief Constable of West Yorkshire. Mrs Robinson was an innocent bystander in her late 70s who was knocked over and severely injured when 2 policemen and suspected drug dealer collided with her when the police were attempting to effect the arrest of the latter. The Appeal will involve a consideration of the contours of the Supreme Court’s judgment in Michael v South Wales Police where by a majority the court declined to abolish the Hill rule, preferring instead to provide an alternative explanation premised upon the ordinary common law principle of non-liability for failing to control third parties.

 

The Supreme Court will thus examine a series of important issues which have not been settled by the Michael case: - Did Michael decide that the Hill rule only prevents claims based on a pure omission by the police to prevent damage caused by a failure to control a 3rd party criminal?  What is a pure omission and how is the law to differentiate it from a case like that of Mrs Robinson where the damage is caused directly by the police and the cause of action is based either on a careless positive act or a case consisting of careless acts and omissions?  What are the parameters of the control exception to the omissions principle?

 

Nicholas Bowen QC is Leading Counsel on behalf of Robinson with David Lemer and Duncan Fairgreave (1 Crown Office Row) Junior counsel. 

Rebecca Trowler QC successfully achieves acquittal of defendant charged with manslaughter and firearm possession.

Rebecca Trowler QC secures acquittal at the Old Bailey for 21 year old defendant with learning difficulties charged with manslaughter and possession of a firearm with intent to cause fear of violence. Charges were brought against L alleging a joint enterprise shooting to enforce a drugs debt. The case presented on L's behalf established that C and not L was the 'shooter' and focused upon the abusive relationship between the C and L and psychological evidence of L's extremely low intelligence and social functioning. L was found not guilty by a unanimous jury.

 

Rebecca was instructed by Amy Cox of Sonn Macmillan Walker leading SMW's in house advocate Sarrah Kerslake.

Theo Huckle QC and Christopher Johnson explore asbestos exposure guidance limits and the foreseeability of injury

10.07.17 | |

Practitioners should be aware of the current dispute as to the correctness and binding nature of Williams v Birmingham University on liability for low level exposures to asbestos in the 1970s, with a view to challenging that decision as conflicting with Maguire and or Jeromson, decisions which themselves (should have) bound the later Court of Appeal. In our view Williams and its progeny remain eminently challengeable... 

 

Read the full article here

Coroner calls for action in Dunkirk unaccompanied child migrant death

07.07.17 | |

At the inquest into the death of Mohammed Hassan, a 17 year old unaccompanied minor, the Coroner has called for action to prevent future deaths of child refugees.

 

Mohammed Hassan died as a result of clandestine travel from Dunkirk in April 2016.  He travelled on a lorry to the UK and was crushed under the lorry when it stopped in Oxford.  He had been detained four days previously by the UK Border Force in Dunkirk, who discharge UK immigration powers on French territory, having been found concealed in a lorry with five adults.  Documents produced as a result of an order made by the Coroner showed that Mohammed's detention in Dunkirk was not authorised in accordance with operating procedures.

 

The Oxfordshire Coroner will make a regulation 28 report regarding the prevention of future deaths in respect of Mohammed's detention.  The Coroner will report on the practice of UK immigration officers not asking unaccompanied minors who arrive in the UK control zone whether they wish to claim asylum, something that a child would be asked if found in the UK.  The Coroner expressed concern that the reason the question is not asked is that it would then trigger duties to assist in the asylum process.  The Coroner will also suggest that a leaflet be produced in foreign language translation that informs minors as to how they can procure legal advice and French social services' support.

 

Kate Beattie acted for Mohammed's family with Danny Friedman QC of Matrix Chambers, instructed by Jane Ryan of Bhatt Murphy solicitors.

 

Further news coverage

 

The Times

 

The Guardian

 

BBC

NEW BARRISTER TEAM TO LEAD DOUGHTY STREET CHAMBERS

We are delighted to announce the election of Tim Moloney QC and Fiona Murphy as Joint Deputy Heads of Doughty Street Chambers and co-chairs of our management board.   Tim has held this role alone since 2014.  We are particularly pleased that the role will now operate as a job-share reflecting our criminal and civil practice areas and our collaborative approach across all specialisms.  Fiona brings to the role the extensive experience she acquired before coming to the Bar, as a solicitor and a founding partner of Bhatt Murphy solicitors.   

 

Tim and Fiona will also remain in full-time practice, and continue to be supported by Mark Dembovsky, our Chief Executive.  Geoffrey Robertson QC and Edward Fitzgerald QC remain in post as Joint Heads of Chambers.

Rethinking Freedom of Thought for the 21st Century

06.07.17 | |

Freedom of thought is protected as an absolute right in international human rights law but has received little attention over the years either in the courts or in academic analysis, in part because of an assumption that our inner thoughts were beyond reach. Recent developments in technology, however, are increasingly providing new ways to access, alter and manipulate our thoughts in ways we had not previously dreamed possible. This article explores the way the technology we use in our daily lives could interfere with our freedom of thought and the potential impact of that on us as individuals and democratic societies. It argues that there is a pressing need to explore and define the scope of the right to freedom of thought in light of this new reality and to develop strong legal frameworks to protect our freedom of thought for the future.

 

Originally published in the latest edition of the EHRLR 3 [2017] 221-233 

 

The full article can be found on Westlaw.

 

David Bentley QC acts for client cleared of murder charge in Old Bailey

05.07.17 | |

On 4th July David Bentley QC acted for Chris Glancy who was accused of murder , manslaughter and possession of offensive weapon. Glancy’s case was he acted in self defence when he was in fear of an imminent attack.  Glancy along with another teenager was accused of murder near Trafalgar Square on December 27 2016. The jury cleared him of all charges following a two week trial at the Central Criminal Court.

 

David  was instructed by Lound Mulrenan Jefferies Solicitors and his junior was Look- Chih Wang.

 

AA v LBH [2017] UKUT 0241 (AAC)- Transport to school can be included in EHC Plans.

04.07.17 | |

Louise Price, instructed by Samantha Hale at Simpson Millar, appeared for a young child who has severe learning difficulties in an appeal to the Upper Tribunal. The appeal challenged a decision that the First-tier Tribunal had no jurisdiction to consider home to school transport and whether it should be included in an EHC Plan.

 

This decision in AA v LBH [2017] UKUT 0241 (AAC) demonstrates the limits of the decision in Staffordshire County Council v JM [2016] UKUT 0246 (AAC) in which it was held that home to school transport is not a special educational need nor can it be special educational provision. In AA the Upper Tribunal recognised the different statutory framework concerning the provision of transport that applied to children and young people and confirmed that there is no authority that states that as a matter of law, transport needs cannot constitute a special educational need and that measures to deal with them can never in any circumstances whatsoever be specified in the plan. This reaffirms paragraph 9.215 in the Code of Practice, which Staffordshire had suggested was wrong. 

Investment treaty tribunal corrects award 6 months after it was handed down

04.07.17 | |

 

First published on Lexis®PSL Arbitration on 28/06/2017

 

Arbitration analysis: Emilie Gonin, of Doughty Street Chambers, examines the reasons why the arbitral tribunal in Berkowitz v Costa Rica corrected its award more than six months after it was handed down.

 

Read the full article here

High Court rules rights of 16-year-old boy breached at HMYOI Feltham

 

This morning the High Court has ruled that the Secretary of State acted unlawfully in its treatment of a child, known as 'AB.'  He arrived at HMYOI Feltham in December 2016, and for 3 months after this he was locked alone in his cell for over 23 hours per day, and then for over 22 hours per day. Until the Howard League for Penal Reform issued these judicial review proceedings, he received no educational provision, despite being a child and in his GCSE year.  Since issue he received some limited educational provision but far below the statutory minimum required for a child of his age.


 

The case raises wider issues of concern about solitary confinement or isolation of children in Feltham and other YOIs. Evidence before the court indicated that use of ‘removal from association’ is widespread at Feltham, and raised serious concerns about the impact upon children of prolonged solitary confinement.


 

The use of isolation for children has been heavily criticised by expert bodies, both in the UK (such as the Children’s Commissioner) and internationally (such as the UN Committee on the Rights of the Child and the Council of Europe’s Committee for the Prevention of Torture). 


 

Today, Mr Justice Ouseley has ruled that AB's removal from association for over 4 months between December and April was unlawful, in breach of the YOI Rules and Article 8 ECHR.  He has also held that the failure to provide AB with at least 15 hours per week of education breached YOI Rule 38(2). The gravity of this was emphasised by the court – AB is a child, in his GCSE year, with special educational needs. It was no excuse that he was “troublesome” – the Secretary of State had an obligation to him which he failed to comply with. Declarations have been made about these failures. The Court however rejected a claim that his treatment breached Article 3 ECHR.


 

AB is represented by the Howard League for Penal Reform and Dan Squires QC. The Equality and Human Rights Commission intervened in the case, represented by Caoilfhionn Gallagher QC and Hayley Douglas.

 

The judgment is available here.

 

A statement by Rebecca Hilsenrath, CEO of the Equality and Human Rights Commission, is available here

 

Coverage of the ruling is available from the BBC

 

Cleared of Murder, Manslaughter , Attempted Murder, Section 18 GBH and Section 20 GBH

28.06.17 | |

A 16 year old defendant was cleared of all charges after a 6 week trial at the Central Criminal Court. A multi-handed case involving three sixteen year defendants and two sixteen year old complainants.  The case involved a detailed understanding of knife crime - wound mechanics, tracking and angles of penetration  - and how to mount a complex defence in dealing with issues posed by the gang culture in London. The defendant was alleged to be part of a joint enterprise armed knife attack on two other youths (DK and AT) in Dagenham, East London.  Anonymity applications, special measures for young defendants on grave charges, admissibility arguments on prison letters inter-defendants and special directions based on slow motion CCTV evidence were a feature of the trial. Joe has published research in Archbold News in several of these areas and is a recognised defence specialist in high-profile homicide allegations.  Joe Stone QC led Ellis Sareen (Foundry Chambers) and was instructed by Seema Parikh from MPR Solicitors. 

Crown Prosecution Service announcement on Hillsborough Disaster

The Crown Prosecution Service (CPS) has today announced criminal charges against six individuals in connection with the Hillsborough Disaster. The CPS full statement can be found here.

 

Members of chambers who acted on behalf of the bereaved families at the new inquests:  Heather Williams QC, Caoilfhionn Gallagher QC, Henrietta Hill QC, Fiona Murphy, Nick Brown, Jesse Nicholls and Paula Sparks.  Nick Toms was instructed on behalf of another interested party.  

 

Members of chambers acting in the ongoing Hillsborough Victims’ Misfeasance Litigation: Alison Gerry, Heather Williams QC, Caoilfhionn Gallagher QC, Nick Brown and Fiona Murphy.

Opening of extradition proceedings adjourned until circa the year 2050

This month, the Senior District Judge and Chief Magistrate of England and Wales, Emma Arbuthnot, sitting at the Westminster Magistrates’ Court, acceded to the application and submissions of Danilo Restivo that the opening of Italian extradition proceedings in his case should be adjourned until circa the year 2050. That year marks the earliest release date of the Requested Person, an Italian national, who is now aged forty-five.

 

Danilo Restivo was arrested on an Italian European Arrest Warrant in December 2015. 

 

Edward Fitzgerald, Q.C., Abigail Bright and Emma Scott were instructed for Danilo Restivo by Giovanna Fiorentino, Lansbury Worthington, and appeared at the substantive hearing.        

 

Submissions made this month for Danilo Restivo refined earlier arguments deployed against the Government of Italy, represented by the Crown Prosecution Service. The focus of the extradition proceedings was the statutory power conferred by section 36C of the Extradition Act 2002. Section 36C expressly empowers the Court to order that any extradition order should not be carried out until a sentence imposed in the UK has been served in full. 

 

Mr Restivo’s submissions all flowed from the fact that he is at present subject to a sentence of life imprisonment with a minimum tariff of forty years. That sentence arose after Mr Restivo’s conviction by a jury sitting at Winchester Crown Court, on 29th June 2011, for the murder of Heather Barnett, a murder committed in this country. The sentencing judge passed a whole life order. In September 2012, that sentence was found to have been wrong in principle and was set aside. A sentence of life imprisonment with a minimum period of forty years’ imprisonment was substituted by the Court of Appeal on 21st November 2012 by a special constitution of the Court of Appeal, Criminal Division, Lord Judge CJ, Hallett, Hughes, Leveson, Rafferty LJJ, reported as [2013] Q.B. 979. Mr Restivo’s appeal is reported by the learned editors of Archbold at 5-87 as establishing the principle in law that ‘the entitlement of a judge to make findings that offences have been committed other than those charged in the indictment (e.g. overt acts committed in the course of a conspiracy) does not extend to reaching a non-jury verdict about allegations put before the jury by way of similar fact evidence, unless, perhaps, the jury must have been satisfied that they were proved, or the defendant has been convicted of them in the past.’

 

Edward Fitzgerald Q.C. and Abigail Bright appeared at that appeal for Mr Restivo as referral appellate counsel, instructed by Giovanna Fiorentino, Lansbury Worthington.

 

The sentence Mr Restivo is now serving in the UK predates the conviction and sentence in Italy, in 2013, that resulted in the imposition of a sentence of thirty years’ imprisonment for conviction after trial of the murder of Elisa Claps, aged sixteen, committed in Potenza, Italy. Elisa Claps disappeared in September 1993. The trial in Italy is reported here.

 

Mr Restivo’s submission was that, as a matter of principle and as a matter of policy, the sentence of life imprisonment with a minimum term of forty years’ imprisonment, imposed in this country, should be served in full before any order for his extradition is carried out. Further: no extradition hearing should take place until the prospect of an extradition order being carried out in the near future is a realistic outcome of any extradition hearing.

 

In the light of the background history and these principles Mr Restivo submitted as follows:-

 

i. The extradition proceedings should be stayed as an abuse of process. That is because it is premature to determine at this present time the issues that would arise at an extradition hearing (including lapse of time, human rights and any medical issues under s.25). Until extradition can take place within a reasonable time if it is ordered, statutory issues of that nature cannot properly be dealt with. Moreover, for the reasons of principle set out above, it would be wrong in principle to give effect to any order of extradition until Mr Restivo has completed his sentence in the UK. So, at present, any extradition hearing would be an exercise in futility;

 

ii. Alternatively, the proceedings should simply be adjourned from time to time pursuant to section 8B(2) until there is a realistic prospect of the Court making an effective order for extradition and directing that it should be carried out. This would mean a succession of six-monthly adjournments until such time as the case can be realistically adjudicated and an effective order for extradition made. Given the length of Mr Restivo’s sentence here in England, the adjournments are likely to continue for many, many years;

 

iii. Further, or in the alternative, it was submitted that the Court should, in any event, make an order pursuant to section 36C(2) that the ‘the extradition order not be carried out until the person (Mr Restivo) is released from detention pursuant to the sentence’ which he is now serving in the UK. The reason why the extradition order should not be carried out until he has concluded his sentence in the UK is that the principle of legality and the rule of law requires that the sentence imposed by our courts should be served in full before effect is given to any order for extradition to a foreign country to serve a sentence imposed in that country.

 

These points were developed, in oral submissions. 

 

Mr Restivo submitted it would be unfair for the extradition proceedings to be opened now because Mr Restivo cannot now predict or anticipate what arguments, based on lapse of time, the human rights position in Italy, or his own health, would arise many, many years down the line when actual extradition becomes a realistic prospect. It was submitted that those issues are by definition issues that should be determined when there is a real prospect that extradition will take place in the near future. It is known that there have been times when extradition to Italy has been refused because of the conditions in some Italian prisons breach Article 3 (see the case of Badre). That is a matter that needs to be determined when actual extradition in the near future is a real prospect and when the actual destination prison can be predicted. Similarly, issues of the passage of time and any health grounds that render extradition unjust or oppressive need to be determined at the time that extradition is imminent.

 

Moreover, the extradition scheme itself contemplates that an extradition order is to be given effect within ten days of the order being made or an appeal being determined. If an extradition order is made without any realistic prospect of it being fulfilled in the near future, then this subverts the statutory scheme.  

 

Repeated adjournments avoid the injustice of holding a premature extradition hearing now, at a time when extradition cannot realistically be carried out in the foreseeable future or for a very long time.

 

Whilst a deportation order has been made by the Secretary of State, which is the subject of an appeal at present, the deportation order itself could not lawfully be carried out until Mr Restivo has concluded at least the minimum sentence imposed by the court – i.e. the period of forty years’ imprisonment specified as a relevant part of his sentence for the purposes of retribution and deterrence.

 

It was submitted that, even if the extradition hearing were to proceed, and extradition were to be ordered, the Court would be invited to make an order pursuant to section 36(2)C that the extradition order should ‘not be carried out’ until Mr Restivo has served the relevant part of his sentence (i.e. forty years’ imprisonment). The reasons for that are:

 

i. As a matter of principle, the English sentence should take precedence. It is a fundamental part of the rule of law that a sentence imposed by an English court should be served in full unless the prisoner is released pursuant to the exercise of some statutory power or some recognised prerogative power. There is no express power to override the sentence of the English court for the purposes of extradition. By contrast there are express statutory powers to order the temporary transfer of a prisoner provided for under different legislative provisions.

 

ii. Further, or the alternative, there are reasons of policy and justice why the greater sentence imposed by the English courts after an earlier conviction should be served in full before Mr Restivo is extradited to serve the later and lesser sentence imposed by the Italian courts in respect of which his extradition is sought. At the conclusion of his sentence in the UK, when he has served that sentence it would be an appropriate time to consider what should happen in respect of the later Italian sentence and whether it would appropriate for him to be extradited to serve that sentence consecutively to the sentence he would by then have served in the UK for an offence that was in fact later in time.

 

iii. It would be irrational, unjust and contrary to the rule of law for an English court not to give priority to the earlier and greater sentence imposed by the English courts.

 

Edward Fitzgerald, Q.C. is ranked 1st in Extradition in Chambers and Partners and has been described as “a true intellectual giant – a top-class extradition and appellate lawyer”.

 

Edward’s Practice Manager, Harriet Massie, can be contacted on h.massie@doughtystreet.co.uk

 

Instructed counsel and Solicitors continue to represent Danilo Restivo. The right to legal aid of requested persons in extradition proceedings was observed by the President of the Queen's Bench Division and Mr Justice Haddon-Cave in Stopyra [2012] EWHC 1787 (Admin) [at para. 32]. The Court referred to the right to legal representation and had regard to the Framework Decision which provides, by Article 11(2), ‘A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.’

 

Tribunal finds Secretary of State acted unlawfully and orders admission of 5 unaccompanied children from the Calais “Jungle” to join family members in the UK


In a series of judgments handed down between 24 May 2017 and 6 June 2017 the Upper Tribunal has ordered the Secretary of State for the Home Department to admit 5 children to the UK, where the children have sought to reunite with their family members. The children were formerly living in the Calais “Jungle" and were in the group of approximately 2000 unaccompanied children, many of whom had family in the UK, who were assessed for transfer to the UK to join UK-based family members following the Jungle’s demolition in October 2016. The Tribunal finds that the “expedited process", in which UK officials travelled to France to assess the family reunification cases of these unaccompanied children was in law a Dublin III process. Since the decisions taken in respect of these children  lacked essential procedural safeguards provided for under the Dublin III Regulation, the European Convention on Human Rights and the common law, designed to protect the rights and interests of the children, and failed to consider key criteria, including the rights of children to join wider family members than siblings,parents, aunts or uncles, they were unlawful. 


In the lead judgment in the case of R (AM & OA) v SSHD the President of the Upper Tribunal, Mr Justice McCloskey, and Upper Tribunal Judge Allen, said as follows:

 

"The expedited process in the group of five cases to which this challenge belongs was beset with procedural deficiencies and shortcomings and egregious unfairness….  The acid question is whether these procedural irregularities can be excused on the basis of the humanitarian challenge and the need for expedition. These are the two factors on which the Secretary of State relies. These must be recognised as important considerations and we readily acknowledge the major challenge the two Governments concerned faced. However, we consider that the exercise of balancing them with all the other factors summarised below results in a resounding negative answer to the question posed.  Fundamentally, there was far too much at stake for these isolated and vulnerable children to warrant any other answer.”

 

The Tribunal also held, that contrary to the submissions of the SSHD, the children should not be denied a remedy in view of the fact that they could start again in the formal Dublin family reunion process. 

 

The implications of the judgments are that hundreds of vulnerable unaccompanied asylum seeking children who were assessed in that process may have unlawfully been denied the right to family reunion.

 

The 5 cases are: R(AM & OA) v SSHD; R(SASA) v SSHD; R(MHA & SHA) v SSHD; R (KIA & RAMM) v SSHD; R(SS) v SSHD. Read the lead judgment AM 

 

Please click here for a Safe Passage UK Press Release on this and other challenges to the post-Jungle demolition “expedited process”: 

 

Charlotte Kilroy and Michelle Knorr were instructed by Sonal Ghelani at The Migrants’ Law Project at Islington Law Centre and Mark Scott of Bhatt Murphy Solicitors in the cases of AM, SASA, MHA & SHA and KIA & RAMM. 

Paul Taylor challenged the 2007 murder conviction of Gary Robinson based on fresh expert evidence of CCTV analysis.

22.06.17 | |

High Court Rules that applying the reduced benefit cap to lone parents with children under two is unlawful

Today, the High Court has ruled that the application of the benefit cap to lone parents with children under two is unlawful because of its discriminatory impact upon both the children and their parents. The judicial review challenge, brought by four lone parent families, concerned the reduced benefit cap introduced by the Welfare Reform and Work Act 2016. The revised benefit cap drastically reduced housing benefits, leaving lone parent families across the country unable to afford basic life necessities to care for their children. Mr Justice Collins has ruled that the application of the revised benefit cap to lone parents with children under two amounts to unlawful discrimination and that “real damage” is being caused to the Claimants and families like theirs across the country. Upon considering the impact of the benefit cap, Mr Justice Collins concluded that “real misery is being caused to no good purpose.”

The challenge was brought by four lone parent families for whom the reduced benefit cap has, or will have, severe effects. They are all lone parents with children under the age of two, and their dependent children (one of the Claimants was at the time of the hearing a lone parent who was heavily pregnant, and she now has a newborn baby). Two of the families had become homeless because of domestic violence.  As a result of their caring responsibilities and the cost of childcare, they were unable to work the required minimum 16 hours per week to escape the cap. As a result, their benefits were cut which left each of the Claimants with a stark choice between rent and food and other essential items and unable to provide basic necessities for their children.

The Secretary of State recognises that lone parents of very young children under two should not be expected to work. Free childcare hours for low income families start only when children reach the age of two. However, no exemption to the benefit cap was made for this group.  The Claimants argued that the Secretary of State’s failure to exempt them from the benefit cap has a profound impact upon them and their children, which is discriminatory and unlawful, in breach of Article 14 ECHR.  Doughty Street’s Caoilfhionn Gallagher QC is on the Claimants’ legal team, along with Ian Wise QC and Michael Armitage, Monckton Chambers.  They are instructed by Rebekah Carrier, Hopkin Murray Beskine.  Jennifer Robinson has been providing support and assistance to the legal team.


The judicial review challenge was supported by expert homelessness charity, Shelter, represented by Doughty Street’s Martin Westgate QC, along with Shu Shin Lu and Connor Johnson, Garden Court Chambers.  They are instructed by Freshfields Bruckhaus Deringer LLP.

In his judgment, Mr Justice Collins emphasised the damaging impact of the benefit cap in terms of child poverty (at [29]):

“Those in need of welfare benefits fall within the poorest families with children. It seems that some 3.7 million children live in poverty and, as must be obvious, the cap cannot but exacerbate this. The need for alternative benefits to make up shortfalls is hardly conducive to the desire to incentivise work and so not provide benefits. There is powerful evidence that very young children are particularly sensitive to environmental influences. Poverty can have a very damaging effect on children under the age of five.”

In reaching his conclusion, Mr Justice Collins found (at [42]):

“…the cap is capable of real damage to such as the claimants. They are not workshy but find it, because of the care difficulties, impossible to comply with the work requirement. Most lone parents with children under two are not the sort of households the cap was intended to cover... Real misery is being caused to no good purpose.”
 

A full High Court judgement is available here

Hopkin Murray Beskine’s press release is available here 

High Court halts extraditions to Romania due to degrading prison conditions

20.06.17 | |

The Divisional Court (Irwin LJ and Collins J) has handed down judgment in the conjoined appeals of Grecu v Romania and Bagarea v Romania. The Court has suspended the appellants’ extraditions to Romania on the basis that there is a real risk that they would be detained in overcrowded prison conditions, contrary to Article 3 of the European Convention on Human Rights, which safeguards against inhuman and degrading treatment.

 

The Court accepted the appellants argument that an assurance from the Romanian Justice Ministry that they would be detained in conditions with at least 2m2 of floor space did not comply with the jurisprudence of the European Court of Human Rights, which requires at least 3m2 of floor space throughout the course of incarceration.

 

The Court has given Romania a period of 4 weeks to consider the judgment before giving a final Order. The Court’s decision can be found here.

 

Graeme Hall represented Mr Bagarea, led by Jonathan Hall QC, and instructed by Harry Grayson from Shaw Graham Kersh Solicitors.

 

His Honour Peter Thornton QC Knighted in The Queen’s 2017 Birthday Honours

19.06.17 |
|

Chambers congratulates His Honour Peter Thornton QC on being awarded a knighthood in HM The Queen's Birthday Honours for 2017.  A founder member of Doughty Street Chambers, Peter became a Senior Circuit Judge sitting at the Central Criminal Court (Old Bailey) in 2007 after a distinguished career at the Bar, during which he appeared in criminal trials and appeals in the UK, Bermuda, the Isle of Man, and elsewhere.  He also appeared pro bono in numerous appeals to the Privy Council against the death penalty.  In addition to his work at the Bar he was a trustee of the Howard League for Penal Reform and Chair of the National Council of Civil Liberties (now known as Liberty). 

 

Peter was appointed to the new position of Chief Coroner of England and Wales in 2012, and during his tenure he implemented the significant reforms put in place by the Coroners and Justice Act 2009.  

 

We are delighted to learn that his lifelong contribution to advancing justice has been recognised in this way.  Congratulations Sir Peter!

“Different times, different mores”: Mandatory time limits in death penalty appeals ruled unlawful

16.06.17 | |

In a judgment handed down this week, the Privy Council in Lovelace v The Queen has held its previous decision in Pollard v The Queen [1995] 1 WLR 159 should no longer be followed. In Pollard, the Board had regarded as lawful the provision in section 48(2) of the Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act limiting to two weeks the time to appeal in a case where the death penalty had been passed and providing for no discretion for the court to extend time. This provision applied in almost identical terms across the Eastern Caribbean and originated from historic British legislation at a time when executions were expected to be carried out within a matter of weeks after sentence.  In Lovelace, Lord Kerr revisited the Board’s decision in Pollard, noting “different times, different mores”. He concluded that the constitutional provisions securing protection of the law rendered unlawful a rigid and inflexible time limit for appealing. Mr Lovelace was represented by Paul Bowen QC and Richard Thomas, instructed by Simons Muirhead and Burton.

 

Read the judgement here and the press release from the Death Penalty Project here.

 

Dr Ashwani Kumar joins Doughty Street as an associate tenant

15.06.17 |
|

We are delighted to announce that Dr Ashwani Kumar, one of India’s leading jurists, is joining us as an associate tenant. Dr Kumar is a distinguished advocate and at the age of 34 was the youngest designated Senior Counsel to the Supreme Court of India. He subsequently spent many years in politics. He served as a member of the upper house of the Indian Parliament for 14 years and occupied various Cabinet posts, including Minister for Law and Justice. He recently retired from politics and returned to private practice. His second book, “Hope in a Challenged Democracy – An Indian Narrative”, was published earlier this year. Dr Kumar has a broad practice including commercial work, arbitration, public law and human rights. 

Supreme Court split on landmark Northern Ireland abortion rights case

The Supreme Court has divided, three votes to two, over the question of whether women who live in Northern Ireland and travel to England to access abortion services should be entitled to free abortions provided by the NHS.  All five Supreme Court judges have ruled that the current situation discriminates against women resident in Northern Ireland, but they have disagreed over whether that discrimination is justified. 

 

The case was brought by a young woman and her mother, known only as A and B, who are UK citizens who live in Northern Ireland.  In 2012, A, then aged 15, fell pregnant. Unable to access abortion services in Northern Ireland, she travelled to Manchester with her mother, B, and used the services of a private clinic, at a total cost of £900 (including travel).  As a low income family, this was a huge sum to raise and they were only able to travel thanks to financial support from the charity Abortion Support Network.  The abortion was delayed due to the need to raise money and make travel arrangements, meaning that A’s pregnancy had progressed further and the abortion was more physically invasive and distressing than it would have been when A first learned of her pregnancy and decided to have a termination.

 

The Secretary of State for Health accepts that it is within his power to arrange for abortion services to be provided to women from Northern Ireland through the NHS in England but he has refused to exercise that power.  A and B brought proceedings for judicial review, claiming that his refusal was unlawful.  The claim was dismissed by the High Court and the Court of Appeal dismissed the appeal.  The Supreme Court has now upheld that outcome and refused A and B’s appeal, by the narrowest of margins, but their reasoning is very different to the lower courts.  

 

Three Judges (Lord Wilson, Lord Reed and Lord Hughes) have ruled that, on balance, although there has been discrimination against A and B, the discrimination is justified within the scheme of devolved health services, with Northern Ireland, England, Scotland and Wales each being responsible for providing free health services within their own countries.  However Lord Kerr and Lady Hale, the two most senior members of the Court, have disagreed, giving powerful dissenting judgments.  They have both ruled that it is the Secretary of State for Health’s duty to ensure that UK citizens present in England, but ordinarily resident in Northern Ireland, who require access to abortion services should be provided with such services free of charge through the NHS.  They have found that the current policy unjustifiably breaches women’s rights under Article 14 (freedom from discrimination) when considered with Article 8 (right to private and family life) of the European Convention on Human Rights (ECHR).

 

Lord Kerr said (at paragraph 50):

 

“A woman from Northern Ireland visiting England who suffers an acute attack of appendicitis will have, if it proves necessary, her appendix removed in a National Health Service hospital, without charge.  The same woman, if she travels to England in order to obtain an abortion must pay for that procedure.  How can this be right?  The answer is that it cannot be, and is not, right.”

 

Four Doughty Street barristers acted in this landmark case.  Caoilfhionn Gallagher QC acts for the Appellants A and B, along with Stephen Cragg QC (Monckton Chambers), instructed by Angela Jackman and Hannah Manson, Simpson Millar.  Jude Bunting, along with Helen Mountfield QC (Matrix Chambers) and instructed by Richard Stein, Leigh Day, acts for five specialist NGOs who intervened in the case: Alliance for Choice, British Pregnancy Advisory Service, Birthrights, Family Planning Association, Abortion Support Network.  Heather Williams QC and Kate Beattie, instructed by Janet Farrell, Bhatt Murphy, acted for the British Humanist Association (now known as Humanists UK).

 

The Appellants’ solicitor, Angela Jackman, has confirmed that A and B now plan to exercise their right to take the case to the European Court of Human Rights, as soon as possible, now that the case has been heard by all the domestic courts. In addition, A and B’s solicitors will be writing to the Secretary of State for Health, Jeremy Hunt, this week to ask him once more to reverse the discriminatory policy that prevents women from Northern Ireland obtaining an abortion on the NHS in England.  Although the Supreme Court has split 3:2 on the question of whether he must take this step, they have unanimously recognised that he has a power to do so.  That is a power which A and B and the interveners now call on him to exercise, to stop other women - and in particular low income women – from Northern Ireland going through what A has gone through.
 

The Supreme Court judgment is available here and the Supreme Court Press Summary is available here.

The Appellants’ solicitors have issued a press release, available here Other press releases from British Pregnancy Advisory ServiceHumanists UK and Birthrights 

Application for confiscation of £462,775.36 resisted - order to pay £168,000

An order was made for K to pay a confiscation order of £168,000 - 36% of the amount for which a financial prosecuting authority had applied in its application (£462,775.36). 

 

The defence had served and filed evidence to show that the contested confiscation order should be made for £161,209.09 plus a further sum to reflect unattributed funds - 96% of the amount ultimately ordered. 

 

There was no benefit from particular criminal conduct. The question was whether the Crown could prove benefit from general criminal conduct. There are four assumptions in the statute of which three applied in this case: those relating to transfers, expenditure and property held since the date of conviction. Where a defendant elects to contest confiscation proceedings, the burden is on him to displace the assumption or to show that there would be a serious risk of injustice if a judge were to act on that assumption. 

 

The learned judge, HHJ MacDonald Q.C., agree with the analysis of defence counsel and observed that the applicant financial prosecuting authority had significantly revised its position in the course of what was a five-hour contested POCA hearing. The learned judge observed that the Crown had made substantial modifications to its case in the course of the contested hearing. ‘[…] In their closing written submissions, the Crown further modified their case. They conceded that the interested party, the wife, owned half of the matrimonial home. They abandoned from benefit calculation all the property held by the defendant.’  

 

The defence cross-examined the financial investigative officer on whom the applicant prosecuting authority relied to present the prosecution case. The defence called three witnesses to give evidence on oath to rebut the various types of statutory assumption on which the prosecution relied in order to demonstrate that several rental properties in the defendant’s own name were clean properties. The defence submitted that bank loans for the balance of monies owing on properties were not serviced with monies resulting from general criminal conduct. It was successfully argued that all that such servicing merely functioned as protection of the defendant's investment. The learned judge agreed with the defence that there would be a serious risk of injustice, per the statutory test, if he concluded that the defendant’s investments had significantly grown in value. 

 

A third party, the defendant’s wife, who was represented, submitted that the defendant, convicted of rape, had abused and duped her such that she had, unknowingly, acted against her own financial interests and had had concealed from her various financial assets. Those submissions by the third party were challenged and resisted by the defendant as baseless and false. 

 

The defendant was multiply convicted. The defence made submissions on how the Court should direct itself regarding those convictions in its assessment of the defendant’s evidence on oath in confiscation proceedings - credibility and reliability. 

 

Erim Mushtaq and Abigail Bright were instructed as referral counsel in the confiscation proceedings by solicitors for K.  

No evidence offered against Siobhan Grey QC’s client in historic rape case – June 2017. R v PR

07.06.17 | |

Siobhan Grey QC defended in a case involving seven counts of historic rape and sexual assault at Newcastle Crown Court. After three days of disclosure issues the Crown offered no evidence. The allegations dated back to 2004 and involved repeated sexual violence by the defendant on his partner over a two year period.

 

Siobhan Grey QC was instructed by Kyles solicitors

 

 

 

David Hislop QC represents Julie Wadsworth

06.06.17 | |

 

David Hislop QC is currently representing Julie Wadsworth a former BBC presenter in a high profile historical sex trial where her and her co-presenter husband face five charges of outraging public decency and 11 charges of indecent assault upon children under the age of 16 years. Speeches have just finished and the case is currently being summed up. The Jury is expected to retire to consider their verdicts tomorrow. The jury has already returned one verdict of not guilty on one indecent assault charge following a successful legal submission by David Hislop QC: View recent media coverage here.

Paul Taylor is quoted in Inside Time: CCRC article about Randox testing and the potential impact on criminal appeals:

31.05.17 | |

‘Donald Trump-inspired grope’: military dismissal and sex offender registration avoided after sexual assault conviction

31.05.17 | |

A, a senior aircraft man, after conviction for sexual assault, avoided both dismissal from the RAF and requirement to registration as a sex offender. 

 

A was convicted at a courts martial. The Military Tribunal Board comprised a Crown Court judge and three RAF service personnel. The Board observed that conviction for sexual assault always means that dismissal is the first consideration for a sentencing Board. 

 

The threshold for registration pursuant to the Sexual Offences Act 2003 for a sexual assault on an adult victim is a period of imprisonment, a twelve-month community sentence, or 112 days in detention. 

 

The Court also refused the prosecution’s application for a service compensation order. 

 

The facts were opened for sentence against A as follows. " 'A' drank in a Rothschild bar. He talked to a fellow serviceman about then US President candidate, Donald Trump. In jest, a bet was made with 'A' that, if he grabbed "a girl by the pussy", he would have free drinks bought for him."

 

Abigail Bright was instructed by Alice Dodd, solicitor, business defence and regulatory law, Cartwright King, alice.dodd@cartwrightking.co.uk

 

Two European arrest warrants discharged to protect the interests of children

25.05.17 | |

 

This week Graeme Hall has successfully defended two European arrest warrant requests; both decisions vindicating the interests of children.

 

District Judge Bayne discharged M, a mother of two, from a Cypriot European arrest warrant seeking her surrender for alleged involvement in a criminal gang which conspired to steal rental cars worth 70,000 EUR. Having considered extensive expert evidence from an adult psychologist, child psychologist, Cypriot legal expert and a trafficking expert, M successfully argued that extradition would disproportionately impact her rights to family life.

 

M was represented by Graeme Hall, instructed by Katy Smart, Sonn Macmillan Walker Solicitors.

 

 

District Judge Baraitser discharged P from a Slovakian European arrest warrant seeking to enforce a 9 month sentence for burglary. Despite finding P to be a fugitive, the judge concluded that the impact of separation on his profoundly disabled son would breach the child’s rights to family life.

 

P was represented by Graeme Hall, instructed by Fadi Daoud, Lawrence and Co Solicitors.

Supreme Court rules provision of approved premises discriminatory

 

The Supreme Court has ruled that the sparse provision of "approved premises” (formerly known as probation hostels) for women as compared to men is discriminatory. This is a really important decision and potentially paves the way for other discrimination challenges in relation to the way that women are treated in the criminal justice and prison systems.  

 

Henrietta Hill QC and Ruth Brander were instructed by Clifford Chance LLP, intervening on behalf of the Howard League for Penal Reform.

 

Read the Howard League press release.

Read the Supreme Court judgement.

Read the Supreme Court press summary.

Jesse Nicholls nominated as a finalist for the Legal Aid Barrister of the Year award

19.05.17 | |

 

Doughty Street Chambers is proud to congratulate Jesse Nicholls on being nominated as a finalist for the Legal Aid Barrister of the Year Award. The award is part of the 2017 Legal Aid Lawyer of the Year (LALY) awards which are taking place on 5th July in Central London. The LALY awards are a celebration of the achievements and dedication of access to justice lawyers and barristers.

 

Jesse encompasses Doughty Street Chambers’ commitment to the vital importance of legal aid work, access to justice, and the importance of legal aid in holding the State to account and vindicating the rights of those who suffer at the State’s hands. Specialising in public law, human rights, inquests and civil actions against public authorities, Jesse is a tenacious advocate for bereaved families whose loved ones have died in State custody, victims of police abuses of power and those unlawfully detained by the Home Office in immigration detention. Jesse works closely with a number of campaigning organisations, including INQUEST and Medical Justice, and is the co-chair of the Police Action Lawyers Group.

 

Significant cases in which Jesse has acted in the past 12 months include:

  • The inquests into the Hillsborough Disaster, which concluded that the 96 innocent victims had been unlawfully killed. The inquest jury returned a series of damning findings of State failure;
  • Jesse has acted for bereaved families in a number of inquests into the preventable self-inflicted deaths of vulnerable prisoners. In the recent inquest into the death of Daniel Dunkley at HMP Woodhill, the jury concluded that staff had grossly failed to provide Daniel with the basic care he obviously required, and that the failure by prison management to make changes following multiple previous deaths at the prison had directly contributed to Daniel’s death;
  • Jesse has acted in a number of judicial review claims challenging the adequacy of State investigations into controversial and high-profile deaths, seeking the prosecution of those responsible and defending the importance of open and transparent public hearings into such deaths. These cases have included R (Hicks) v Inner North London Senior Coroner [2016] EWHC 1726 (Admin), R (Oliver) v Director of Public Prosecutions [2016] EWHC 1771 (Admin) and Secretary of State for the Home Department v HM Senior Coroner for Surrey [2016] EWHC 3001 (Admin) (for INQUEST). Jesse is currently representing INQUEST in the ongoing judicial review into the high-rate of self-inflicted deaths at HMP Woodhill over the past three years, and he also acts for the sister of David Clapson, a Diabetic who died following the imposition of benefit sanctions by the DWP, in her efforts to secure a proper investigation into the circumstances of David’s death;
  • Jesse has represented a number of victims of the police’s failure to investigate rape and serious sexual assaults, and the police’s unlawful disclosure of highly confidential information about victims of domestic abuse to their abusers.

 

Read the official LALY Press Release here.

British citizen goes home from death row in the DRC

18.05.17 | |

 

Joshua French, a dual British/Norwegian citizen, has been released from death row in the Democratic Republic of Congo. Mr French had been suffering from severe health problems and was released on humanitarian grounds. He has now returned home to Norway.

 

Mr French and his companion Tjostolv Moland were twice sentenced to death in 2009 and 2010 following convictions for numerous offences, including murder and espionage, charges which both men denied. The proceedings took place in military tribunals and were marred by serious flaws.

 

In 2014 Mr Moland was found dead in their shared prison cell. Despite a post-mortem examination citing suicide as the cause of death, Mr French was convicted of Mr Moland’s murder. Since then his health has deteriorated significantly.

 

Joe Middleton has been working on this case, instructed by the Death Penalty Project, since 2009, when the UK Foreign and Commonwealth Office sought pro bono legal assistance for Mr French. Responding to the news, he said:

 

“In recent times Joshua’s health has been so bad that we were extremely concerned about the likely outcome, so this news comes as a huge relief for all of us. The Government of the DRC is to be commended for finding a humanitarian solution for this difficult and notorious case.

 

Joshua’s release is the result of years of perseverance and hard work between his legal teams in the UK, Norway and the DRC, Reprieve, the FCO, the British Embassy in the DRC and of course the Norwegian Foreign Ministry. Dr Marc Lyall did a particularly great job with his recent visit to the Congo and helping with a succession of reports and interventions. And Joshua’s mother has been a pillar of strength, spending time with him in the DRC and trying to find ways to move the process along. Now that he’s back in Norway, Joshua will undoubtedly get the help and treatment that he desperately needs”.

 

Joe Middleton was instructed by Saul Lehrfreund, Co-Executive Director of the Death Penalty Project. He was assisted in the early stages by Ben Silverstone and more recently by Emilie Gonin. Amanda Clift-Matthews, In-House Counsel at the Death Penalty Project, has also worked on the case.

Harriet Johnson achieves half-time success in child abuse trial

18.05.17 | |

 

Harriet Johnson has achieved an acquittal for her client and his co-defendant in a sensitive case following a successful submission on a point of law.  Harriet’s client and his partner were charged with cruelty to a two-year-old child.  At the close of the prosecution case Harriet made a submission of no case to answer on the grounds that where it was clear the crime had been committed by one of the two defendants, but there was no evidence as to who was responsible, and no basis for an inference of joint enterprise, both ought to be acquitted.  She relied on a line of authorities involving cruelty to children where death had resulted, and distinguished cases where joint responsibility had been found in cases specifically relating to child cruelty. Allowing the submission, the Judge asked to retain his copy of Harriet’s skeleton argument, which he called “a model of its kind”.

 

Harriet Johnson was instructed by Caroline Liggins of Hodge Jones and Allen.

What are the rules on influencing elections?

17.05.17 | |

 

What are the rules on influencing elections?

 

 

Rules of law control the financial activities of political parties and other campaigners at major elections and referendums. What are those rules? What happens when those rules are not followed? What regulation exists to ensure compliance with those rules? Rules and guidance apply to discrete categories (sometimes those categories can overlap) of persons who associate with one another for the purpose of seeking to influence the outcome of referendums and elections. Those categories cover political parties, candidates (and their agents), and non-party campaigners. Functions of the UK Electoral Commission, an independent body with statutory functions, include keeping and monitoring the registers of political parties in Great Britain and Northern Ireland. The Electoral Commission has statutory responsibility to oversee elections and to regulate political finance in the UK. How does it do that?

 


What has the press recently reported about supposed influencing of elections?

 

On 3rd May 2017, Mrs Theresa May was reported in The Financial Times as having accused leading lights among European Union institutions of threatening the United Kingdom – and seeking to influence the election called for June 2017. The FT reported that Mrs May had, in terms, made the accusation that Eurocrats sought to interfere with, by influencing, the outcome of the UK election in June. ‘Theresa May has accused “European politicians and officials” of threatening Britain and trying to sabotage her attempt to win the general election in an apparently deliberate move to stoke Brexit tensions with Brussels.’

 

Mrs May said this, speaking on the steps of Number Ten:

 

In the past few days we have seen just how tough these talks are likely to be. Britain’s negotiating position in Europe has been misrepresented in the continental press. The European commission’s negotiating stance has hardened. Threats against Britain have been issued by European politicians and officials. All of these acts have been deliberately timed to affect the result of the general election that will take place on 8 June.
 

The point is that the issue of unfair – and unlawful – influencing of elections may take several forms, all of which do not warrant investigation for possible legal action. Allegations of improper influencing of elections will vary – from the specific, credible and evidence-based to those more generally (perhaps improbably) stated. The UK Electoral Commission is concerned with undue influence prior to and at elections. The Electoral Commission is unlikely to inquire into whether there is substance to Mrs May’s claims. Whilst the Electoral Commission might well be interested in allegations about non-specific persons or groups seeking to exercise EU-based influence, presumably operating overseas, the Commission’s interest would depend if donations or loans (say, from foreign donors or foreign companies channelling donations through subsidiary UK companies) were what founded the allegation. Mrs May has not said or suggested this. The Committee on Standards in Public Life has previously recommended that, to prevent donations and loans from foreign companies (a policy intention underlying electoral laws), it should be necessary for a subsidiary to show that it was carrying on a genuine business within the UK and was generating income here sufficient to fund any donation. That recommendation has yet to be given teeth and bite in law. Lack of specificity to Mrs May’s stated fears do not prompt or require action to be taken by the Electoral Commission. In any event, the Commission’s statutory remit is to regulate political finance in the UK as that bears on the plurality and health of political debate.

 

Lobby groups: what are the rules?

 

Essentially, the Electoral Commission’s regulation of lobby groups is directed at permissible and impressible donors and lenders. The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 came into force on 19th September 2014. Its short-hand title is ‘the Lobbying Act 2014’. The 2014 Act significantly widened the types of organisation that are eligible to register as a non-party campaigner at an election. Campaigners spending more than a certain amount on general campaigning must register with the Electoral Commission. There are rules on campaigning. The mischief targeted by those rules is to do with spending and donations that (in the view of the Electoral Commission, on a prima facie case analysis) do or may unduly influence an election. The Electoral Commission exercises control over, and monitors, the fairness and balance of influence asserted by groups before and during an election. Who can make and accept donations, for the purpose of campaigning? Who can make and accept loans, for the purpose of campaigning? These rules govern two types of non-party campaigns: local campaigns and general campaigns. Non-party campaigners are individuals or organisations that campaign prior to and during elections, whilst not standing as political parties or candidates. Such individuals or organisations are known, for the purposes of electoral law, as ‘third parties’. Local campaigns are non-party campaigns acting for or against a candidate or candidates: their activities are focused in a particular constituency, ward or other electoral area. General campaigns are non-party campaigns for or against a political party or particular categories of candidates. These campaigns may (but need not) include campaigns on policies or issues closely associated with a particular party or category of candidates.

 

Campaigners required to register with the Electoral Commission must record their campaign spending. It is essential that such campaigners record all donations they have received as contribution toward spending on campaigning. Campaigners so required to register must ensure to send this information to the Electoral Commission in a so-called ‘spending return’, after the election has concluded by way of declared outcome. The Electoral Commission publishes recognised third party spending returns online, on an open access source webpage. This ensures there is transparency about campaign spending at elections. The webpage is frequently viewed by journalists and others who monitor and report on the financing of electoral campaigns. 

 

 

Media groups: what are the rules?

 

Media groups often want to track and to publish general trends in the electorate.
 

Many want to find and influence potential voters.
 

Persons or groups seeking to influence the process and outcome of an election now have technical means to analyse extremely large and varied datasets. These can include traditional datasets – such as the electoral register maintained by the Electoral Commission. Other information which people have made publicly accessible includes information posted on Facebook, Twitter and other social media. Research and profiling carried out, or commissioned, by political parties typically makes use of analytical tools that combine population profiling using these traditional and other datasets. Whatever the interest, such use of information is subject to the Data Protection Act 1998 (as amended) if it involves data from which living individuals can be identified. Unless data is sanitised or anonymised, use of data carries the risk of tending to identify individuals.

The Information Commissioner’s Office (‘the ICO’) has published guidance on political campaigning. The guidance, which covers both organised, commercial (and mainstream or other) press and broadcasters and some (depending on the type of association) so-called ‘citizen journalists.’ The guidance to media groups covers the law on privacy, data protection and the Data Protection Act, and the regulation of private and electronic communications. At paragraph 6 of the guidance, the ICO advise, in answer to the question ‘Why comply?’:
 

The actions of a political campaign come under close scrutiny from the public and the media. It is not just in an organisation’s interests to act lawfully, but it should also show respect for the privacy of the individuals it seeks to represent, by treating them fairly. Treating individuals fairly includes using their information only in a way they would expect, while respecting any preferences they have expressed about not receiving direct marketing (subject to the right of a political party, referendum campaigner or candidate to send a Freepost mailing at a particular election or referendum).
 

Marketing by electronic email is a particular nettle that the ICO keenly grasps.
 

The ICO guidance reiterates the legal obligations now familiar to most organisations: the activities and conduct of organisations must comply, communicating with individuals by electronic mail, with the Data Protection Act 1998 (as amended) and the Privacy and Electronic Communication (EC Directive) Regulations 2003 (‘PECR’). A broad, purposive and inclusionary approach is taken to the definition of ‘electronic mail’. It includes email, text message, social media, video message and voicemail. Organisations must have an individual’s specific consent to communicate with them by electronic mail. In all such communications, an organisation must identify itself. It must provide an effective correspondence address that can be contacted by individuals, so that objections to such mail can be registered. Individuals must be able to so state that further communications are unwelcome and should not be made. Where an organisation has collected email addresses or mobile phone numbers whilst involved in previous campaigns, local or national, prior consent is required to hold and also to use those contact details. Organisations state, upon request, the basis on which those contact details were collected originally. These are prior conditions to lawful use of such information by an organisation that seeks to use those contact details to promote subsequent campaigns by electronic mail including text messages and emails.

 

 

Breaking the election silence: cross-border reporting of election day polls


Last week, as French voters went to the polls to choose their new president, the usual 32-hour period of enforced electoral silence fell throughout the Republic.  In France, just as in the UK, candidates and their supporters are banned from campaigning, and the media is forbidden from reporting results, or even estimates of results such as opinion polls or exit polls, or from carrying campaigners’ statements.  The period is set at 32 hours – from midnight on Friday to 8pm on Sunday, the day of the election itself – in order to accommodate early voting in French overseas territories. 

 

As usual, however, francophone Swiss and Belgian media with websites available in France began reporting the results of  election day exit polls well before lunch; polls which suggested (with a high degree of accuracy as it turns out) that voters were backing centrist Emmanuel Macron by a strong margin over far-right candidate Marine Le Pen.  ‘Polls show French backing Macron,’ reported the Associated Press, at a time when millions had yet to cast their votes, based on multiple polls cited by Swiss newspaper La Tribune de Geneve and Belgium's RTBF and Le Soir.  In fact messages, many cryptic, referring to the results of those polls were already circulating widely on social media within France, often with the hashtag #RadioLondres, a nod to the London-based radio station of the French resistance during World War II and its famed coded messages, and also the title of a French internet-based media outlet targeted at young people between the ages of 15 and 26. Individuals and media organisations sharing these polls on election day can in theory be fined up to €75,000 pursuant to the 1977 legislation that creates the offence, although there are no reports of any prosecutions.  CNBC has also reported that, whilst there was little discussion in the French media of the content of the nine gigabyte dump of documents claiming to have been hacked from the Macron campaign (put online on Friday night), given the election silence rules, those Le Pen supporters and others who couldn’t resist sharing the leaked emails on social media during election weekend were also flouting the law.


Election Silence

Many countries operate a period of election silence when polls are open, preventing the publication of pre-election opinion and exit polls.  In some countries the period starts shortly before the election: for example, it kicks in 24 hours beforehand in Singapore (called a “cooling off” day) and from 14.00 the day before in Ireland.

 

In a 2003 study, Article 19 described the rationale for such bans as follows:

 

“Media coverage of such information can, at times, be controversial. This is particularly true of polls and projections commissioned or conducted by a source that is not impartial. Furthermore, polls may be subject to manipulation at many levels: in the choice of questions, the choice of sample, the time that the questions are asked, and so on. It is often perceived, therefore, that polls and projections may have a distorting effect on the vote, rather than simply reflecting public sentiments.”

 

Election silences are controversial, with many considering enforced reporting bans on polls to be patronising, anti-democratic and an unjustified interference with freedom of expression. Academic Chris Game, for example, argues that, “used properly, opinion polls help inform and enhance our democratic choice... Ban the publication of these reputable polls and you’ll be left with the internet-transmitted findings of the disreputable ones.”  Other critics argue that such media blackouts are pointless, as information may be published abroad yet become available to domestic audiences via the internet and social media, as has been happening so vividly in France.

 

Duration of the Election Silence

A particularly controversial issue which crops up repeatedly internationally is the timeframe over which a prohibition applies and whether this is a necessary and proportionate interference with freedom of expression.  In both Canada and France far longer bans were in place until they were struck down by the courts.  In 1998, the Canadian Supreme Court in Thomson Newspapers Co. v. Canada (Attorney General) [1998] 1 SCR 877 held that a 72-hour ban on the publication of opinion survey results prior to elections violated freedom of expression as protected by the Canadian Charter of Rights and Freedoms, and could not be justified as necessary to protect the integrity of the electoral process (a more targeted election day ban followed the ruling).  Similarly, in 2001 France’s Court de Cassation ruled that the French 1977 law in its original incarnation which banned the publication and broadcasting of opinion polls for seven days preceding each of the two rounds of voting in the country’s national elections breached Article 10 of the European Convention on Human Rights; and the French Senate the following year concluded that the week-long ban not only violated the media’s rights, but also the public’s right to receive information, as it permitted the media to rely on poll results to inform their reporting, but to keep the basis of that reporting – the poll results themselves – secret from the public.

 

UK Rules

In the UK, the Representation of the People Act 1983, section 66A (in force since March 2000) provides that it is a criminal offence to publish exit polls: “(1) No person shall, in the case of an election to which this section applies, publish before the poll is closed (a) any statement relating to the way in which voters have voted at the election where that statement is (or might reasonably be taken to be) based on information given by voters after they have voted, or (b) any forecast as to the result of the election which is (or might reasonably be taken to be) based on information so given” (s. 66(1)).  ‘Forecast’ and ‘publish’ are broadly defined by s. 66(4).  This section applies to any parliamentary election and any local government election (s. 66(2)), but not to referendums; and it applies both to polls focused on voting in a particular constituency or ward, and to voting patterns nationally. 

 

Under the Communications Act 2003, Ofcom has a statutory duty to ensure special impartiality requirements are observed, particularly during elections and referendums.  These requirements are reflected in Section 6 of the Broadcasting Code.  For election day itself,   Rule 6.4 provides that, “Discussion and analysis of election and referendum issues must finish when the poll opens.”  This refers to the opening of physical polling stations; the same rule does not apply to postal voting.  Rule 6.5 bars broadcasters from publishing the results of any opinion poll on polling day itself until the poll closes (unlike s. 66A, this extends to referendums as well as to national elections).   

 

Ofcom has in recent years found a number of breaches of Rule 6.4.  For example, during the Brexit referendum in June 2016, when the polls were open (between 21.00 and 22.00), Fox News aired two news items on Your World with Neil Cavuto.  The pieces included commentary on the likelihood of a vote to leave the EU; issues debated during the campaign, such as immigration; and how an exit from the EU could potentially benefit British trade relationships with the rest of the world.  It included statements such as:

 

“I mean we are governed by a bunch of bureaucrats that don’t speak English in a funny place called The Hague, which makes no sense at all, and it tells Britain what to do, it takes British money, it doesn’t send much of if it back – it’s a very unfair one-way street when you begin to dig into it and the biggest thing of course is that all of this is all a disguise over the immigration issue”.

 

“Politicians, moronic celebrities who don’t know anything about trade imbalances, they are waiting on this, the media – the BBC is like a running ad for Remain, and it goes on and on so that is a lot for the Brexit, British exit crowd to really fight up against.”

 

“Well the last polls had it neck and neck, fifty-fifty, nothing between the two but the bookies, the people who are taking money and placing bets say its 84% likely that the UK will vote to remain so that could be wrong, but that’s an indication so far…”.

 

Fox News’s defence was that:

  • This was legitimate, balanced coverage of the referendum and it was not “advocating a particular position on the vote” (a stance which was unsustainable given the transcripts);
  • Due regard must be given to the right to freedom of expression; and
  • This edition of the programme was aimed at an American audience and was timed to coincide with the closing of the US stock market at 16.00 EST.

 

Ofcom rejected this and found Fox News to be in breach of Rule 6.4.  This was relatively straightforward, as, although Fox News is a channel originating in the USA, it is broadcast on the digital satellite platform and licensed by Ofcom in the UK.  Similarly, in 2014 Ofcom found that RT (formerly Russia Today) had breached Section 6 of the Code when it broadcast a news item dealing with election issues (including references to UKIP taking a “narrow lead” in final opinion polls) after European Parliament polls had opened.  RT is a channel produced in Russia, but in the UK it broadcasts on satellite and digital terrestrial platforms, with the licence held by TV Novosti.  The breach was accepted to be inadvertent, and we note that there was no suggestion of a s. 66A prosecution. 

It will be interesting to observe how rule 6.4 of the Ofcom Code and section 66A of the 1983 Act hold up during the forthcoming UK elections on 8 June. We note the contrast in attitudes towards laws of this nature on the two sides of the Channel. In France the law is widely flouted by individual social media users with considerable assistance from media outlets in neighbouring states, and there seems little appetite for enforcement. In the UK Ofcom has taken relatively minor breaches of the code quite seriously, and we are not aware of any concerted social media campaign aimed at distributing poll data on election day comparable to #RadioLondres in France.

Recognising youth justice as a specialism - the Youth Justice Summit 2017

16.05.17 | |

On Friday 12 May, leading practitioners and professionals working in the criminal justice system came together for the inaugural Youth Justice Summit, organised by the Youth Justice Legal Centre (YJLC).

 

Doughty Street Chambers supported the event and was well represented on the day: Edward Fitzgerald QC was one of the keynote speakers, Caoilfhionn Gallagher QC and Tunde Okewale led breakout sessions, and Daniella Waddoup was honoured with the ‘Rising Star’ award which recognised her work to improve the protection of children’s rights in the youth justice system.

 

The resounding message from the summit was that the representation of children and young people in the criminal justice system is a specialism. The particular vulnerabilities of children, and the serious consequences for those who find themselves charged with a criminal offence, make it even more important that the lawyers who represent them and the judges who hear their cases have the necessary skill and expertise. As Mr Justice William Davis, Judicial Lead for Youth Justice, observed in his introduction, how we treat these children is critical: “get it wrong and the damage is huge, for them and for us. Get it right and the benefits are immense.”

 

Whilst steps have been made toward recognising youth justice as a specialist area of practice, for example the recent publication by the Bar Standards Board of the Youth Proceedings Competences, HHJ Nicholas Hilliard QC, Recorder of London, noted in his keynote address that the challenge is ensuring that the materials and standards which do exist are consistently applied by all participants. He stressed that “constant vigilance is needed”.

 

Perhaps the starkest illustration of this emerged from the fascinating panel discussion with Edward Fitzgerald QC and Henry Blaxland QC, chaired by Professor Kathryn Hollingsworth. It has been 24 years since the trial of Robert Thompson and Jon Venables and 18 years since the pivotal ruling of the ECtHR in T v United Kingdom which found that they did not receive a fair trial. Edward Fitzgerald QC represented Jon Venables before the High Court, Court of Appeal, House of Lords and finally at Strasbourg. He reflected on the case and provided a unique insight into the strategy his legal team deployed to challenge the trial procedure, which focussed on the concept of effective participation. He recalled the lasting image of two small heads just visible above the dock and argued that to take as the starting point the position for an adult defendant, and then simply make modifications, is the wrong approach.

 

However, fast forward 18 years and Henry Blaxland QC is acting in a forthcoming appeal against conviction in which 5 young people aged between 14 and 18 were tried in the dock, despite the practice direction issued after T v United Kingdom which specifies that all participants should be on the same level and young defendants should sit in a place where they can easily communicate with their lawyer.

 

Both cases highlight the fundamental role that lawyers and judges have to play in ensuring children’s effective participation and guaranteeing that their rights are upheld. With this in mind, the breakout sessions running throughout the day were designed to be practical and provided practitioners with specialist skills, knowledge and strategies that they can utilise when representing children.

 

Drawing the summit to a close, YJLC Director Kate Aubrey-Johnson urged all delegates to take up the mantle and join YJLC in changing the perception of youth justice work. Thanks to an incredibly insightful and inspiring conference, we went away better informed and better equipped to do so.

Defending Guantanamo, terrorism and national security cases in post 9/11 America

 

 

Doughty Street Chambers hosted a talk on defending Guantanamo and terrorism cases in post 9/11America with Lieutenant Colonel Jon S. Jackson, the U.S. Army's Deputy Chief Defense Counsel for Military Commissions, which provided counsel, solicitors, academics and advocacy groups a unique and critical perspective on defending these cases in the US.  

 

Jackson has served as lead defence counsel for Mustafa Ahmed Al-Hawsawi (one of five men charged in the attacks of 9/11), as well as Majid Khan and Omar Khadr before the military commissions at Guantanamo Bay, Cuba. He has been involved with numerous high profile cases and investigations including the Walter Reed Scandal, the Pat Tillman Investigation, Abu Ghraib and most recently the WikiLeaks case.  

 

Having worked as a military defence counsel on Guantanamo cases through three separate administrations – Bush, Obama and now Trump – Jackson provided a fascinating insight into how the law and procedure has developed over time and the political context of each development.

 

A passionate advocate for equal protection under the US Constitution and for the closure of Guantanamo, Jackson spoke frankly about the difficulties of defending Guantanamo clients as military defence counsel, particularly in building trust with clients while wearing the same uniform as those who were responsible for their capture and torture. He was particularly critical discussing the procedures and practices of the military commissions, which raise serious due process concerns and impeded his ability to properly defend his clients. Jackson explained how his work has involved defending clients alongside civilian counsel, including lawyers from the Center for Constitutional Rights (CCR), and how the defence of their clients often required public advocacy and media engagement in order to achieve their clients’ release.  

 

Jackson also mentioned the military trial of WikiLeaks’ alleged source, Chelsea Manning, my work representing Wikileaks with co-counsel from the Center for Constitutional Rights at her trial, the disproportionate nature of her sentence, and the work of our Doughty Street International colleague, Nancy Hollander, which led to Obama commuting the sentence. Chelsea will be released this week.

 

His talk sparked a rich comparative conversation about terrorism trials in the UK and US with key members of Doughty Street Chambers' crime team, including Tim Moloney QCJoel Bennathan QC, David Bentley QC, Peter Carter QC and Steven Powles. The discussion ranged from criminal procedure rules regarding the admissibility of certain forms of evidence, including hearsay, surveillance and evidence obtained through the use of torture, sentencing guidelines and practices, and detention practices in prisons housing those convicted of terrorism offences in light of recent discussions here in the UK.

 

Jackson has given a TED talk on the use of torture, in full military uniform, speaking forcefully about why torture is illegal, it does not work and should never be employed. His talk with us at Doughty Street Chambers picked up on these themes. Based on his extensive experience, Jackson emphasised his view that from both legal and operational perspectives, using  torture makes no sense for the US – or for any government.

An open letter from the Criminal Bar Association

 

Today Francis Fitzgibbon QC, Chair of the Criminal Bar Association (CBA) together with the Vice-Chair of the CBA, Angela Rafferty QC, has sent an open letter on behalf of the Criminal Bar Association to politicians and others to emphasise how badly the criminal justice system has been neglected by successive governments. The post 9 June administration must take urgent remedial action.

 

Read the full letter.

Coroner reports on failings in school anaphylaxis death

12.05.17 | |

Sam Jacobs acted for the family of 14-year-old Nasar Ahmed, who died after eating a meal he was allergic to while at school. His mother accused the staff of failing in their duty of care for her son. The case has been reported in the BBC today.

Sam was instructed by Lochlinn Parker of ITN Solicitors.

Daniella Waddoup honoured with Rising Star in Youth Justice award

12.05.17 | |

 

At today's inaugural Youth Justice Legal Centre Youth Justice Summit, two stars in the field were recognised: 'established practitioner' Mark Ashford of TV Edwards, and 'Rising Star' Daniella Waddoup of Doughty Street Chambers.

 

Daniella was praised for her commitment to representing vulnerable young people; being on the Doughty Street team representing Just for Kids Law in the Supreme Court in the Jogee case; and for founding Project EPIC, which offers special educational needs advice to children in prison.  Presenting her with the award, Kate Aubrey-Johnson called her "fearless and compassionate" and a "hero" in the field.

 

The YJLC Youth Justice Champion Awards seek to recognise lawyers who are committed and passionate about youth justice. The two recipients of these Awards stand out as being dedicated and fearless in the representation of children and young people. Both recipients through their work have driven up standards in youth justice law and improved the protection of children's rights in the youth justice system.

 

Kate Aubrey-Johnson, Just for Kids Law with Daniella Waddoup, Doughty Street Chambers

Russia: homophobia under the spotlight at Theatre Delicatessen and 5Pound5 Theatre

12.05.17 | |

On 12-13 May 2017, Theatre Delicatessen and 5Pound5 Theatre host two short plays by Leon Fleming and directed by Scott Le Crass which respond to the state-sponsored homophobic crack-down in Russia, including the arrest and torture of over a hundred gay men in Chechnya.
 

The plays, ‘Boris got bu**ered’ and ‘Ramazanland is Freedomland’ were both written by Leon Fleming to highlight the adoption of a federal law outlawing so-called gay propaganda and disturbing accounts of the abduction and torture of gay men in Chechnya purely because of their sexuality.
 

The play runs from 12-13 May 2017 at 7:30 p.m. The performances on Saturday, 13 May 2017 will be followed by a panel discussion on gay rights in Russia, with Malcolm Hawkes of Doughty Street Chambers and Peter Tatchell.
 

The event is to raise funds for the work of Amnesty International UK.
 

Full details and tickets are available here

No Criminal Charges for Tory MPs - The (Battle) Bus Has Left The Station

10.05.17 | |


The bus has left the station, it seems.  This morning’s announcement by the CPS of the DPP’s decision not to prefer charges will come as great relief to those Conservative Party MPs and officials who were subject to investigation over the party’s spending during the 2015 general election campaign.  Although we are told one file, relating to Craig Mackinlay (the MP for Thanet South) remains under consideration, and so perhaps the battle over the battle bus is not quite parked just yet.

 

In one sense, though, the DPP’s decision comes as no surprise; prosecution of those candidates or election agents for allegedly exceeding electoral spending limits would have been controversial, and not as simple as the press might have us believe.  The evidential burden was a very high one, and the CPS said that whilst the Conservative Party’s returns may have been inaccurate, there was insufficient evidence to prove that any candidate or agent was dishonest. 

 

Had charges been brought, what legal issues would have been likely to arise?

 

Labelling Expenses Incorrectly

The general allegation was that the labelling of expenses as national rather than local spending (in relation to activity such as dispatching busloads of activists to key seats) allowed those fighting for election to achieve a financial advantage over his or her opponents. The ceiling for national expenditure is £100,000 as opposed to £7,150 for local expenditure (plus 5p or 7p per electoral register entry, depending on whether it is a county or borough constituency).  In other words, the complaint is that those guilty of “mislabelling” were able to achieve less than a level playing field with the hope of securing a better electoral advantage.

 

This, in short, was the complaint and doubtless if charges had followed it would have been the substance of any prosecution opening to a Jury (or Judge alone if summary jurisdiction). The Judge or Jury would have also doubtless been told that this is electoral fraud and that the public perception of such fraud undermines democracy and weakens the United Kingdom’s strong tradition of free and fair elections.

 

The Issues – Far from Clear Cut

Party campaign spending at elections is regulated under the Political Parties Elections and Referendums Act 2000 (PPERA). There are two types of spending by and on behalf of parties at elections: party campaign spending and candidate spending, the former loosely termed “national” and the latter “local”, and different rules apply to both. It is perhaps this simplistic shorthand that creates a misconception that the differentiation between the two is easily discerned. This is not always the case and doubtless the DPP recognised this.

 

Party campaign spending is authorised to promote the party and its policies generally. For example, national newspaper adverts for the party, or leaflets explaining party policy. It also includes spending on promoting candidates at elections where the party nominates a list of candidates for a region, rather than individual candidates for local areas.

 

By contrast, candidate spending is when a candidate authorises campaigning to promote them at an election. For example, leaflets, billboard advertising, websites and campaign staff costs.

 

It is not difficult to see that there may be very many situations where the spending on certain activities may be very much a mixture of both, and the question then becomes what is the dominant purpose of those activities, and where is the line drawn between the two types of expenditure.

 

The Possible Charges & Potential Defences

Under Section 76(2) Representation of People Act 1983 any candidate or election agent who—

“(a) incurred, or authorised the incurring of, the election expenses, and

 

(b) knew or ought reasonably to have known that the expenses would be incurred in excess of that maximum amount, shall be guilty of an illegal practice.”

 

(2)That maximum amount is—

(a) for a candidate at a [F6 parliamentary general election, being an election]—

(i) in a county constituency, [F7 £7,150] together with an additional [F8 7p] for every entry in the register of electors F9. . . and

(ii) in a borough constituency, [F10 £7,150] together with an additional [F11 5p] for every entry in the register of electors F12. . .[F13 (aa)for a candidate at a parliamentary by-election, £100,000;]”

 

To be found guilty of an offence the person charged must be proved to have incurred or authorised the incurring of the election expense, and to have known (or they ought reasonably to have known) that the expenses would be incurred in excess of that maximum permitted amount. The test, then, is a high one and where the line between the two types of expenses is “not clear cut” or “blurred”, juries and judges may well have found themselves troubled in trying to unpick this.  The decision of the DPP not to prefer charges no doubt recognised this.

 

Within 35 days after a general election, the election agent must make a true return of all expenses incurred by or on behalf of the candidate (section 81). The return must be supported by a declaration by the candidate stating that they have examined it and that ‘to the best of my knowledge and belief it is a complete and correct return as required by law’ (section 82 and schedule 3).

 

By section 82(6): ‘If a candidate or election agent knowingly makes the declaration required by this section falsely, he shall be guilty of a corrupt practice’.  The offence under section 82(6) is far more serious than that under section 76(2), the former being an “illegal practice” the latter being a “corrupt practice”. To be guilty of an offence under section 82(6) the candidate or election agent must be proved to knowingly have been dishonest by making a false declaration. It follows that where there is a declaration that is proved to be in fact false, to be guilty the candidate or election agent must be proved to have known (or ought reasonably to have known) that the expenses would be incurred in excess of that maximum amount. If they reasonably believed otherwise, this would be a defence - both to charges under section 76, and those under section 82(6). It follows that where the “local” expenses ceiling has been exceeded, but only because they reasonably believed the expense incurred was in fact a “national” one, that would be a complete defence.

 

In addition to the above defences there is a very limited statutory defence or excuse. Under section 86 RPA 1983 a candidate or election agent may apply to the High Court, Election Court or County Court if he or she has an authorised excuse for the error or false statement contained within the declaration or return. The ambit of the authorised excuse is limited to illness, absence or misconduct of others, or inadvertence related to the said circumstances.

 

So whilst the press and opponents of the Conservative Party would have had us believe that the prosecution and conviction of those who faced investigation was clear cut, a deeper analysis demonstrates that this was not necessarily so, and the decision of the DPP announced today is an understandable one.

PRESS RELEASE: Ms Poshteh loses her appeal but “highly restrictive approach adopted in Puhlhofer … no longer necessary or appropriate.”

 

Poshteh v. Royal Borough of Kensington and Chelsea [2017] UKSC 36

 

Ms Poshteh loses her appeal but “highly restrictive approach adopted in Puhlhofer … no longer necessary or appropriate.”

Lords Neuberger, Lord Clarke, Lord Reed, Lord Carnwath and Lord Hughes

 

Today, the Appellant, Ms Poshteh, lost her appeal to the Supreme Court. Lord Carnwath, giving the only judgment of the Court, decided to uphold the reviewing officer’s decision that the property Ms Poshteh was offered was suitable for her and that it was reasonable for her to accept it. 

 

Understandably, Ms Poshteh is devastated by the decision of the Supreme Court.  It is common ground that she suffers from post-traumatic stress disorder, depression and anxiety as a result of the torture she suffered whilst a political prisoner in Iran. The reviewing officer also accepted that as a result of her PTSD the Appellant suffered an involuntary reaction when she visited the property in the form of a panic attack and that this was why she subsequently refused it.  Nevertheless, he concluded that the property was suitable for Ms Poshteh because it was not “objectively … reminiscent” of a prison cell, despite a prominent round window in the living room (see the photo below).  The medical evidence submitted by Ms Poshteh as to the psychiatric effects of being reminded of her experiences in Iran fell to be discounted for the same reason.  The Supreme Court has confirmed that these reasons were adequate and the decision therefore lawful.

 

 

Ms Poshteh has said this about the decision:

“I have waited many years for an end to my case. I don’t understand the decision and I am scared for my future. If I don’t have help from the council with finding a home, I will struggle to look after my son. I am too upset to think clearly and to say any more today.”

 

In the course of his judgment Lord Carnwath agreed with the Appellant that “recourse to the highly restrictive approach adopted 30 years ago in the Puhlhofer case (R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484) is no longer necessary or appropriate.”

 

The Court also decided to affirm the ratio of its decision in Ali v. Birmingham City Council [2010] 2 AC 39, namely that a decision made pursuant to the homelessness provisions contained in Part VII of the Housing Act 1996 is not a determination of a “civil right” for the purposes of Article 6 ECHR, despite the European Court of Human Right (ECtHR) having reached the contrary view in Ali v. United Kingdom [2016] 63 EHRR 20.

 

As regards the applicability of Article 6, the Supreme Court concluded that a decision of a chamber of the ECtHR was not a sufficient reason to depart from its unanimous conclusion in Ali v. Birmingham City Council.  The Appellant is therefore considering applying for her case to be decided by a Grand Chamber of the ECtHR.  

 

Martin Westgate QC and Jamie Burton of Doughty Street Chambers were instructed by Hansen Palomares Solicitors.

 

 

Note to editors

Persons who are homeless, eligible for assistance (i.e. they have leave to remain in the UK), have a priority need (i.e. they are “vulnerable” as a result of mental or physical ill-health or because they have dependent children) and are not “homeless intentionally” (i.e. they are homeless through no fault of their own) are entitled to be offered accommodation by their local housing authority (s.193 Housing Act 1996).

 

Offered accommodation must be suitable (s.206). In order to be suitable the accommodation must be suitable in terms of size and arrangement, having regard to the applicant’s individual circumstances, including their mental and physical health.  It is also necessary for it to be reasonable for the applicant to accept the property, to be judged on what the applicant knew about the property at the time it was offered: see Slater v. Lewisham LBC [2006] EWCA Civ 394 mentioned in the judgment at [5]:

 

“In judging whether it was unreasonable to refuse such an offer, the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears and then taking account of those individual aspects, the subjective factors, ask whether it is reasonable, an objective test, for the applicant to accept. The test is whether a right-thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation.”

 

Local authorities are entitled to operate a “one offer” policy whereby applicants who refuse one offer of suitable accommodation will not be made another offer of accommodation even if it means they will remain homeless (s.193(5)-(7)).

 

The Appellant, Ms Poshteh, is a refugee and the sole carer of her son.  She was a political prisoner in Iran and subjected to torture before she escaped to the UK. As a result she suffers from PTSD and depression with associated anxiety and panic attacks. 

 

Ms Poshteh was accepted as being a genuine refugee and given leave to remain in the UK. She was also accepted by the Respondent local authority (RBKC) as being unintentionally homeless, eligible for assistance and in priority need for accommodation.  She was let temporary accommodation for her and her son. 

 

In 2012 the RBKC attempted to move Ms Poshteh to alternative permanent accommodation.  She was very happy to be offered the accommodation but when she visited it a prominent round window in the living room reminded Ms Poshteh of the window in the Iranian prison cell where she was tortured.  She had a panic attack as a result.  

 

Ms Poshteh refused the property because it reminded her of the torture she suffered in Iran and exacerbated her PTSD. She was worried that she would not be able to look after her son if she had to live there. Ms Poshteh’s treating physicians confirmed that if exposed to inciting stressors, like a room which reminded her of a prison cell, her mental health would deteriorate.

 

RBKC’s officer accepted that Ms Poshteh has PTSD and was genuine in her account of what happened when she viewed the property.  He also accepted that properties that reminded the Appellant of her time in prison would be unsuitable for her.  However, he concluded that as the living room in the property did not objectively resemble a prison cell it was suitable for Ms Poshteh and reasonable for her accept it.  Therefore as she had refused the property, which was long ago relet to another homeless family, RBKC no longer had any obligation to assist her in finding accommodation.

 

Ms Poshteh appealed unsuccessfully on the basis that it was not the objective nature of the property that mattered, but what the actual effect of the property would be on her if she lived there. Unfortunately, her mental illness meant she could not avoid being reminded by the property of her experiences in Iran, even if other people did not consider the resemblance to be as she experienced it.

 

For more information please contact:

Christian Hansen of Hansen Palomares on chansen@hansenpalomares.co.uk or 0207 640 4600;

Doughty Steet Chambers on e.donaghey@doughtystreet.co.uk or 0207 404 1313.

High Court allows judicial review of Youth Court’s decision to determine a defendant’s age

 

A Divisional Court has quashed the decision of a Youth Court to determine a defendant's age in criminal proceedings. The decision has procedural implications for the approach of criminal courts where a dispute arises as to a defendant's age, and is of particular significance in the context of age-disputed defendants in the youth justice system.

 

Pursuant to s.99(1) of the Children and Young Persons Act 1933, the Youth Court is empowered to 'deem' a defendant's age for the purpose of criminal proceedings. Similar provisions exist in relation to the role of the Secretary of State under s.164(1) of the Powers of Criminal Courts (Sentencing) Act 2000 and s.150 Magistrates' Court Act 1980. In this case, the Claimant had appeared before a bench of lay magistrates in relation to first appearance for four either-way offences. He presented to the court as an unaccompanied child of Algerian ethnicity. He did not speak English. He had been treated as child by the police under PACE 1984 and had been assessed by the Youth Offending Team as suitable for a referral order. His date of birth made him sixteen years of age.  

 

Upon seeing the Claimant in the dock of court, the magistrates disputed that the Claimant was a child on the basis of his physical appearance. Without permitting the Claimant an adjournment to produce his birth certificate and without making a referral to the Local Authority (who otherwise owed the claimant a duty to accommodate under s.20 of the Children Act 1989), the magistrates determined that the Claimant was an adult, declined summary jurisdiction and sent his case for trial to the Crown Court under s.51 of the Crime and Disorder Act 1998. Thereafter, the Claimant was remanded in custody (as an adult) to a local men's prison. As a direct result of the magistrates' decision to deem him an adult, the Claimant could not be remanded to local authority accommodation pursuant to the LASPO youth remand framework, and was thereby unable to benefit from the welfare obligations that he would have been owed under LASPO and the duties that he was already owed under the Children Act 1989.  

 

The Claimant issued urgent judicial review proceedings and was granted anonymity. On his behalf, it was argued that the magistrates' approach was procedurally unfair and contrary to the settled law and guidance of the High Court and Court of Appeal in both the community care and criminal justice context. The Claimant also relied on the principles articulated in the United Nations Convention on the Rights of the Child, and Articles 6 and 8 ECHR. The Claimant relied in particular on the cases of R v Steed (1990) 12 CR.App.R.(S.) 230; R v L and others [2013] EWCA Crim 991 and R (B) v Merton LBC [2003] EWHC 1689 (Admin). Common to the principles of age assessment across the crime and community care contexts,  is the principle that an age assessment cannot be conducted on the basis of a person's physical appearance. In addition, the Claimant argued that his case raised the continuing problem identified by the High Court in R (on behalf of W) v Leeds Crown Court [2011] EWHC, namely, that the Crown Court has no power to remit a case to the Youth Court in the event that a defendant is subsequently accepted to be a child.

 

In quashing the decision of the magistrates to deem the Claimant an adult and the consequent decisions to send the case for trial and to remand the Claimant in custody, the Divisional Court, per Irwin LJ, held that there was "no doubt" that the magistrates in this case had acted inappropriately and that, where a "real dispute" arises as to a defendant's age, "the proper course is to make directions for an age assessment to be conducted".

 

In R (on the application of M) v Hammersmith Youth Court, Kate O'Raghallaigh was instructed by Ms. Perveen Hill of Hodge, Jones & Allen Solicitors, with Ms. Jennifer Twite of Just for Kids Law intervening. 

Secretaries of States’ appeal dismissed by The Court of Appeal

03.05.17 | |

The Court of Appeal have dismissed the Secretaries of States’ appeal against declarations granted in the courts below that the revised scheme of disclosure of criminal records is incompatible with the Claimants Article 8 ECHR rights.

 

Following the decision of the Court of Appeal in 2013 in the case of R (T) v Chief Constable of Greater Manchester Police and others (and upheld in the Supreme Court in 2014) that the then wholly indiscriminatory disclosure scheme for criminal convictions and cautions under Part V of the Police Act 1997 was incompatible with Article 8, the government introduced a revised scheme in 2013 which enabled certain convictions and cautions to be ‘filtered’ from disclosure. 

Under the new scheme however the three cases under appeal were all subject to mandatory disclosure of convictions and cautions:  in P’s case because the scheme provided for automatic disclosure where there was more than one conviction;  in G’s case the serious offence rule mandated disclosure of a reprimand imposed when he was 12 for behaviour accepted to be consensual childhood sexual experimentation and which bore no relation to risk;  in W’s case the serious offence rule mandated disclosure of his past conviction for ABH notwithstanding  he received a conditional discharge by way of a disposal.

The Court of Appeal upheld the decisions of the Divisional Court and Administrative Courts in P and  G, and allowed W’s appeal.  The Court held that the scheme was not in accordance with law because in the cases under consideration there was no mechanism by which the proportionality of the disclosure could be assessed, taking into account lapse of time, circumstances of offence, and disposal.  Further the operation of the multiple conviction rule and serious offence rules in the three cases were disproportionate, and otherwise than as is necessary in a democratic society.     

A case from Northern Ireland (Gallagher) also concerning the multiple conviction rule is to be heard by the Supreme Court in October and its is likely that the Government’s further appeal in these cases will be linked with that.

 

Copy of the judgment can be found here.

 

Mother cleared of baby abuse

28.04.17 | |

Katy Thorne represented a young mother in Reading Crown Court who was accused of being responsible for 13 broken bones of her 11-week old baby.  The Crown alleged that she was the perpetrator and that her partner had either colluded or taken part in the abuse.  In a retrial, the jury unanimously acquitted Katy’s client, her partner having previously been convicted of causing the injury.  Katy is a specialist in cases involving complex medical evidence. Katy was instructed by Lesley-Anne Perry of Wells Burcombe Solicitors. 

Government increases Dubs numbers before Help Refugees legal challenge

The Home Office has today announced that it is increasing the number of unaccompanied refugee children to be admitted to the United Kingdom from Europe under the Dubs Amendment from 350 to 480.   

 

In a written statement made on 26 April 2016 the Minister of State for Immigration, Robert Goodwill, announced that the initial figure given by the Government was incorrect because a pledge from one region to take 130 children had been missed.

 

The Government’s announcement that it will increase the number by over a third comes before the High Court hears Help Refugees’ legal challenge to the consultation process by which the Government determined the number of children to be admitted.

 

Help Refugees are represented in their legal challenge by Laura Dubinsky leading Rowena Moffatt and Alex Gask of Doughty Street Chambers and Edward Craven of Matrix Chambers, instructed by Leigh Day Solicitors.

 

The AIRE Centre, a third party intervener in the case, is represented by Caoilfhionn Gallagher QC leading Katie O' Byrne and assisted by Jennifer Robinson, also of Doughty Street Chambers, instructed by Freshfields Bruckhaus Deringer. 

 

Josephine Naughton, one of the founders of Help Refugees said “We welcome this increase in the Dubs number. Without the scrutiny and disclosure that our litigation forced upon the Home Office, the Home Office’s extraordinary error – missing 130 places for children when it only allocated 350 in total - would not have come to light. We think that this is far from the only flaw in the consultation process. We continue to push for the reopening of the consultation process and further revision of the number of these extremely vulnerable children to be admitted.”

 

Rosa Curling, from Leigh Day Solicitors said: “Help Refugees is challenging the Government’s consultation as inadequate and the specified number as arbitrary.  This is an important victory in our legal case and a vindication of our criticisms of the Government’s approach.  We believe that this very serious error is symptomatic of a deeply flawed consultation process.”

Emily Martin completes Virgin London Marathon as first ever PAS marathon runner

26.04.17 |
|

Emily, an assistant team leader in our Crime department, completed the Virgin London Marathon in 5 hours and 46 minutes raising a current total of £3,556.65 for Prisoners’ Advice Service. The Prisoner’s Advice Service is a charity which offers free legal advice and support to prisoners in England and Wales. This was the charities first ever London marathon running space since it was founded in 1991.

 

On behalf of PAS, Emily would like to thank you all for the huge amount of support you have given and your generosity.PAS have also thanked you on their website.

 

Emily’s fundraising page is currently still live so if you haven’t already sponsored her and would like to, please follow the link

Important Constitutional Challenge of Life Sentences in Trinidad

Today, Edward Fitzgerald QC and Ruth Brander are presenting an appeal for prisoners facing life sentences and imprisonment for 'natural life' in Trinidad. They are seeking to challenge those prison terms on the grounds they were unfairly set by the executive and no differentiation was made between differing culpability. They will argue sentences of this kind should not have been imposed without review. 
 

This is an important constitutional challenge in which the fate of many in Trinidad will turn. 


Edward and Ruth are working with Death Penalty Project. The hearing will continue until tomorrow. 

JUSTICE launches latest Working Party report: Increasing judicial diversity

26.04.17 |
|


JUSTICE, who are an all-party reform and human rights organisation launched their new working report last night in London. The report exploring the structural barriers faced by women, people from visible ethnic minorities and those from less advantaged socio-economic backgrounds in reaching the bench.  The report explains why diversity is a vital constitutional issue, calls for systemic changes to increase accountability and improve recruitment processes, and proposes more inclusive routes to the senior bench. Geoffrey Robertson QC is a member of the working group and  Doughty Street Chambers welcomes the report.


A full copy of the report can be accessed here

« Back to listing

About cookies on our website

Following a revised EU directive on website cookies, each company based, or doing business, in the EU is required to notify users about the cookies used on their website.

Our site uses cookies to improve your experience of certain areas of the site and to allow the use of specific functionality like social media page sharing. You may delete and block all cookies from this site, but as a result parts of the site may not work as intended.

To find out more about what cookies are, which cookies we use on this website and how to delete and block cookies, please see our Which cookies we use page.

Click on the button below to accept the use of cookies on this website (this will prevent the dialogue box from appearing on future visits)