Category Archives: Guest Blogs

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Hillsborough Inquest – a lawyer’s perspective (guest blog by Anna Morris)

Dedicated to the memory of the 96 victims of the Hillsborough Stadium disaster who died on 15 April 1989.

On 26th April 2016, I hugged two of my clients with elation after a jury of 6 women and 3 men set the record straight after 27 years about what happened at Hillsborough stadium on 15 April 1989. Moments later, they looked at each other and said, without missing a beat, “so, what do we do tomorrow?” They hadn’t dared to believe there could be a day when they would not have to fight for justice, to fight to clear the name of their loved one. This had been a life-defining fight for a generation of children, wives, parents and siblings of those 96 men, women, boys and girls.

The jury’s conclusions finally saw their families achieve something they recognise as justice. Much has rightly been reported about their tenacity, commitment and patience. But I want to say something about their humanity.

The families have endured the longest jury case in English legal history. 319 days of witnesses, evidence and submissions. For many of the families, attending Birchwood business park had become a full time job. Employers who asked, “haven’t you got over it yet?” had to be negotiated with, child-care had to be arranged, health problems had to be managed, life continued to be put on hold. But when they could be there, they were there. Sitting, listening. Waiting.

At the start of the process, many approached with caution after decades of being let down again and again by lawyers, judges and politicians. They had no reason to trust us, their lawyers but as they sat there in our conferences, polite but knotted tense with questions and anger, their thoughts were never just of themselves; “who will look after the jury?” “What about the survivors, who speaks for them?” “How do I find the man who helped our brother, I want to thank him?” We could only tell them, “we will try and get these answers for you. We hope we can”.

Most of the families had an encyclopedic knowledge of the papers disclosed as part of the Hillsborough Independent Panel. As their lawyers we had to be able to call up documents at the click of a finger to answer the broad and complex questions that troubled them. More than one set piece of witness examination conducted by our team of advocates was centered on a document recalled through the mists of time by one of our clients, tracked down in the 250,000 plus pages of disclosed material. In fact, one of my clients, when she presented 10 neatly typed pages of devastatingly precise and searching questions to Operation Resolve, the Coroner’s Investigation team, was (with only a hint of humour) offered a job as an investigator. We all had to be at our best. No one wanted to let these families down.

But on many occasions, it was our clients looking after us, using their 27 years of pain to help us navigate our way through the sea of changing emotions. From flasks of pea-whack soup served from the boot of a car, to cups of tea in their homes, we were shown such warmth and respect that it was truly humbling. I took great strength from one client who, when I asked her how she kept going through all the lies being told about her brother, about him being a drunken hooligan who caused his own death, she simply smiled broadly and answered, “eyes and teeth, eyes and teeth”. I have repeated that mantra many times since that day.

During the inquest I was the mother to one young boy and pregnant with a second. I was representing the family of boys who were 15 and 19 when they died and I was incredibly moved by the loss of so many young boys’ lives. I couldn’t imagine them just not coming home one day. One client, on the morning of her young son’s inquest, presented me with a bag full of hand knitted baby clothes specially made for my son. It absolutely floored me that this woman could even think about anyone else in the circumstances, let alone extend such deep kindness. I have a drawer full of beautiful blankets and clothes, made by those strong women of Liverpool. Nothing could make me prouder.

When my youngest son finally made his first trip to Birchwood, he was passed from mother to mother, bounced on knees and fussed over as if he was one of their own. It only struck me later, like a tidal wave, that I had been swapping teething, sleeping and feeding stories about children who would never grow old.

There are many small moments that made the Hillsborough Inquests more than just an inquiry into the circumstances into how 96 people died that day. Moments that might have started in the court room but resonated far wider. The pen portraits that painted the real pictures of 96 cherished loved ones who attended a football match and never came home with humour and dignity. The vigorous handshake in the corridor between a father and the off-duty Metropolitan Police Officer who pulled his son from the pen, the damp-eyed slap on the back for the fellow fan that carried someone’s brother on a stretcher and wished he could have done more. The sympathetic words for colleagues who also lost loved ones during the months of the inquests. The jurors who when discharged when court concluded that final time, were each hugged by the families, each thanked for their commitment. The families in their grace never left anyone un-thanked. I hope that those witnesses, relieved of their burden after 27 years were the lighter for it.

Every day of the inquest we shared tea and tears with those who traveled to that grey box on a business park. On the some of the most difficult days of evidence, the families would always be able to find a joke, a smile and a hug for each other. Willing each other on. Someone was always in charge of making sure there was milk for tea and the biscuit tin was always full.

They are the best in all of us. It could have been any of us in their shoes whose brother, father, sister or son went to that match. They have defied the state’s attempt to define them by gender, geography, class or type. We can all aspire to their dignity and strength. It has been a privilege to walk with them on a small part of their journey.

No one can now deny the success and the power of the families’ campaign for justice all these years. They are the reason that 96 verdicts of ‘accidental death’ were quashed. It is their demands that ensured the truth has now been heard. We should never be in doubt that this is the reason why families should be at the heart of the inquest system.

Anna Morris, May 2016


NOTES/LINKS

Hillsborough Independent Report: http://hillsborough.independent.gov.uk (disclosed materials and report)

Inquest Charity: http://www.inquest.org.uk/

Michael Mansfield: “Hillsborough families were my rock ” (Liverpool Echo)

A full if harrowing account of the evidence, the inquest and the outcome reported in the Guardian here.

Why the police “apology” was neither sincere or believable explained by Mark George QC. 

Call for a rebalance of the justice system and equality of arms at Inquest hearings (reported here in the Guardian May 2016)

Another Hillsborough Lawyer, Elkan Abrahamson, interviewed here in the Liverpool Echo.

And don’t miss this survivor’s account by Adrian Tempany. Powerful and moving.

About the author

Anna Morris is a barrister at Garden Court chambers. Anna’s practice focuses on criminal justice and civil liberties and encompasses criminal defence and appellate advice, inquests into deaths in custody, civil actions against the police and public law. A human rights specialist, Anna has extensive experience of successfully representing clients whose cases challenge public policy and promote civil liberties. Read full profile on Chambers website here.

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A Re-Appraisal of the Law on “Joint Enterprise” (guest blog by Greg Stewart)

This blog by Greg Stewart, criminal appeal specialist and head of GT Stewart solicitors, assesses the new Joint Enterprise landscape following the long-awaited Supreme Court Judgment in R v JOGEE

Introduction

Criminal lawyers have gone from an aridly dry January (1) to fabulous, celebratory wet February – even for such a well soaked profession. How often does our highest court declare that we have all been getting the law seriously wrong for over 30 years?! Even less often I would say than Government Ministers suddenly reverse their views on whistle blowers and protests from criminal defence lawyers. (2)

Of course the Supreme Court have sought to make it clear that the clarification made to the common law by R v Jogee and Rudduck v The Queen [2016] UKSC 8 & 7 is not “unprecedented”– it’s just that you, me, the bar including umpteen queen’s counsel, and the senior judiciary had been looking at the wrong precedents for more than three decades, or more accurately, overlooking the right ones. 

Indeed, a cynical jurist may just smell a political strain that is not unrelated to what is happening in other areas of criminal justice – we have a Justice “Ministry” (with all the evangelical zeal that implies)  that now lambasts it’s own civil servants for the failings of the prison system, allows the restocking of prison libraries and generally enlisting the values of the New Testament in place of the Old. In doing so there is belated recognition that over those 30 years the prison population has doubled. The proportion of young people incarcerated in this Country, despite recent reversals, remains scandalously high.

This judgment will go a long way to stopping the interminable waste of young people – disproportionately black – rotting in detention centres and prisons for year after year well beyond condign punishment or meaningful rehabilitation.

Joint Enterprise Law- a pre-Jogee history

For those of you who have not had a chance to study the judgement, the Supreme Court reviewed the evolution of the common law principles of joint enterprise (or common purpose) from the 19th century. It noted about then there was an important clarification away from the belief that it was sufficient that the conduct of the principal was a probable consequence of the common purpose, it had to be part of the common purpose. This identified the fundamental distinction: whilst a probable consequence was always going to be an important consideration for a jury when deciding what the common purpose of the defendants was, it was not sufficient on its own to fix criminal liability. The judgment highlights the important (but until now overlooked) line of authority from:-

R v Collison (1831) 4 Car & P 565 – an accomplice of an apple thief who attacked the landowner’s watchman with a bludgeon would only be guilty if that was part of the common purpose should resistance be encountered; 

R v Skeet (1866) 4 F & F 931 – poachers routinely carry weapons and it is necessary to find a common design or intention, beyond poaching, to kill or cause grievous bodily harm for homicide; 

R v Spraggett [1960] Crim LR 840 – a burglar’s conviction for the killing by his co-accomplice was not safe where the trial judge wrongly directed that a common intention to commit a burglary was the same as a common intention to commit violence;

 R V Reid [1976] 62 Cr App R 109 – the appellant was correctly convicted of manslaughter – not murder – when he attended the home of an army colonel in the early hours of the morning with others who were carrying weapons including firearms as the common purpose was clearly to cause harm even though he did not intend death or grievous bodily harm (though he might have been said to foresee it).

 However, in Chang Wing-Siu [1985] AC 168 the Privy Council extended the doctrine beyond this – three appellants had gone to the flat of a prostitute to rob her husband carrying knives which were in fact used to slash her and kill him. They complained about a direction at trial that they would be guilty if they contemplated a knife might be used with intent to commit serious bodily harm. They said the level of contemplation had to be more than 50%. The PC rightly rejected that argument but then went on to create a new form of “parasitic accessory liability” where “it turns on contemplation or, putting the same idea in other words, authorization, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight”.

 This novel development was confirmed by the House of Lords in R v Powell & English [1999] 1 AC 1 where Lord Hutton recognised the logical anomaly it created in that the principal who merely foresaw a possibility would not meet the mens rea of murder but the person who had not actually killed would. However, there were strong policy reasons in the area of criminal conduct for holding that to be the case. Lord Steyn agreed whilst Lord Mustill also did with more unease. In English’s case his appeal was successful as the knife produced by his co-accused was “fundamentally different” from the wooden post he had used in the joint attack on the police officer.

The Jogee Judgment

The Supreme Court acknowledged that the courts could make the doctrine more severe but only with caution especially for a secondary party. Five reasons swayed them: (1) they had the benefit of a much fuller analysis of important case law; (2) the common law is not working well in practice: (3) it is an important doctrine that has taken a wrong turn; (4) foresight is no more than evidence of intent and (5) it is not right that the liability of a secondary party is set lower than the principal. [paras 80-84]. From now on what matters is whether the accessory encouraged or assisted the crime committed by the principal. “Fundamental departure” is no longer a useful part of the doctrine but merely a consideration of what was foreseeable when weighing up evidential considerations.

Of course, the Supreme Court reminded us that a change in the law does not provide an automatic ground of appeal. And even where it can be argued that the doctrine was misapplied the Court of Appeal will only grant leave to appeal out of time if the applicant can demonstrate a “substantial injustice”. However, given the disparity between a determinate sentence for manslaughter and the mandatory sentence for murder that should not be an insurmountable obstacle – though it may result in a re-trial rather than an acquittal.          

 What stopped this injustice in the end was the relentless pushing of the lawyers. My client, 16 years old, of good character and 200 yards from the stabbing was refused a certified question by the Court of Appeal three years ago and after 18 months of waiting also denied admissibility by the European Court, so hats off to those who got there. But it would not have happened but for the irresistible weight of a liberal consensus that this was wrong. That consensus had built over the past 5 years thanks to interests groups. These were mainly the parents of young people serving life sentences. They found support from campaigners concerned with youth justice (JENGA and JFK being the most prominent) but it included many journalists (one being Melanie McFadyean at the Bureau of Investigative Journalism) and the media (Fran Robertson – who made Guilty by Association). Whilst there has been an important Law Commission report in 2007, it would have gathered dust, like most, but for the campaigning. That led to parliamentary engagement. In 2011 a Parliamentary Justice Committee started to take evidence from a wide spectrum of those involved including the victims’ families – and it was often the victims (or near victims) in the witness box and the “winning” group in the dock. A consensus grew that joint enterprise as applied to the accessories to a crime and especially murder, was a lottery which had to stop. (3) The lottery had many outlets. It often started with a wide prosecutorial discretion: what an individual lawyer considered foreseeable? Of course across the country different cultures developed and these would determine who got a ticket for this lottery or who got offered a public order charge or was not prosecuted at all. Once in court it depended on the discretion of the lawyers on both sides to advise defendants and victims to accept pleas or proceed with uncertain outcomes. Ultimately the judge was then left to tip toe through labyrinthine jury directions. Finally the burden on juries was huge – as was the consequences for those in the dock. Ultimately, it took our most senior lawyers to admit we had been getting it wrong (or had “taken a wrong turn”as they delicately put it)  In fact, it had been a devastating lurch to the right in the criminal law. It’s always political.

Who would have foreseen all this during the depressing days of January?!

Blog by Greg Stewart of GT Stewart, February 2016   

  
Editor’s Notes

1 Civil Rights Editor endured dry January to raise money for cancer relief and can be sponsored here!

2 The celebrations by criminal legal aid lawyers throughout February arose from this statement by Lord Chancellor Michael Gove, over-turning the disastrous, unfair contract tendering scheme introduced by his appallingly inept and hated predecessor Chris Grayling. Leading  law firm GT Stewart were one of the firms  taking legal action against the MoJ over the botched procurement, and welcomed the climbdown.

3 There were numerous calls for reform by lawyers for years (see eg this recent blog by Ronnie Manek)

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Community Advice Offer extended to More Courts

Guest blog by Joanne Thomas  (see author note below)

Introduction: “People in Court sometimes need more advice than just legal advice

Many of the people who come through magistrates’ court commit low-level offences and go on to commit them again and again without the underlying causes being tackled. Typically, the seriousness of offences means they receive fines or conditional discharges and therefore no support from statutory agencies. But very often they end up returning to court – 40% of fines go unpaid and a third of people receiving a conditional discharge reoffend within a year.

The South West model

In South West England, action is taken to stop this revolving door via CASS (http://cassplus.org/). CASS is a service that has been running for almost ten years and provides support to people coming to court in Plymouth, Truro and Bodmin. It is open to anyone – defendants, but also victims, witnesses and family members. There are very few limits on the kind of help that the service will provide. While there are some mainstays – namely drug and alcohol treatment referrals, information about community mental health care, practical support with debts or benefits – CASS has helped clients across with a huge range of issues. See our recent evaluation of this service here

The Community Advice Service at Highbury

Inspired by this work, we at the Centre for Justice Innovation worked with partners from the North London Local Justice Area over 18 months to see whether we could set up something similar at Highbury Corner Magistrates’ Court. The result is the Community Advice service, which has been delivered by RCJ Advice Bureau (http://www.rcjadvice.org.uk/) from the court since January 2015. Attending court can be confusing and intimidating, so the service works to identify those in need of immediate help, engaging the majority through proactive targeting in court rooms and public areas, as well as receiving referrals from solicitors, court staff and probation. The people seen present with a range of difficulties, with the most common being housing, benefits and debt, and mental health.  

Community Advice is currently delivered by a paid coordinator and team of CAB-trained volunteers. It provides immediate help and advice with practical issues such as benefit claims, debt and housing, as well as offering emotional support. It also helps people find out about and access long-term support services in the community such as alcohol treatment, mental health services and supported housing.

But most importantly of all, the service needs to know if it is making a difference to those using it. The team follows up with everyone who agrees to this for up to six months to check on their progress and see if they need any more support. The outcomes being reported are very positive, with 60% of people contacted at six months saying their issues have been resolved. Additionally, at two weeks, a third reported their issues were either resolved or better, rising to almost two thirds two months after using the service. A third of people using the service had visited the referrals that had been made by the service after two weeks, and this increased to 80% by two months. The majority of people at all stages of follow-up reported a high levels of helpfulness from the services to which they had been referred.  


Could More be Done?

With such positive outcomes, the question remains as to why this kind of service is not more prevalent. Pulling together the right partners and identifying funding can be challenging, but tackling the underlying problems that lead people to commit crime not only helps the individual but can also help the criminal justice system to meet its aims as well as being better for society overall. 

Conclusion

We remain keen to identify and work with other courts to recognise the benefits of services such as this and where appropriate to develop similar initiatives that respond to the needs of the people who continue to come through their courts time and again. 

The author

Joanne Thomas is Innovative Practice Manager at the Centre for Justice Innovation, a research and development charity which works towards a British justice system that reduces crime and in which all of our people can place their trust.

  
 

David Wilson:- 1014-or the Long Prehistory of Magna Carta

Guest Blog by David Wilson (Director, TV Series Producer)Reproduced with his kind permission, this article was first published on David’s website here.

1014-or the long prehistory of Magna Carta 

This year with many books and exhibitions we remember the 800th anniversary of Magna Carta. That’s terrific, but however important the events of 1215, as it turned out, don’t imagine that they were only, or even the first time an English king had been wrestled to the conference table by his subjects.
We should perhaps have been celebrating two years ago – and the anniversary would have been millennial. 1014 saw the penultimate crisis in the disastrous reign of Aethelred the ‘Unready’ [978-1016]. Son of the great Edgar, whose prestige dominated the British isles and glowed throughout Europe, this ‘badly-advised’ [unraed in old English, hence ‘unready’] monarch brought his Kingdom to destruction by a mixture of willful politics and military failure. Assailed by renewed attacks from Denmark, latterly led by the Danish king Swein Forkbeard, in the winter of 1013 Aethelred lost control of the country altogether, and was forced to seek refuge with his brother-in-law Duke Richard of Normandy. As he clambered aboard the longship which took him to Rouen, Aethelred may have thought the disaster final. But suddenly, at the moment of triumph, Sweyn Forkbeard died. For the English there was a last opportunity to restore the situation and they took it. Sweyn’s Danish army were for enthroning his young son Canute, but somehow, all pulling together, the English elite resisted, as the Anglo-Saxon Chronicle relates:

‘The fleet all chose Canute for king; whereupon advised all the counsellors of England, clergy and laity, that they should send after King Aethelred; saying, that no sovereign was dearer to them than their natural lord, if he would govern them better than he did before. Then sent the king hither his son Edward, with his messengers; who had orders to greet all his people, saying that he would be their faithful lord – would better each of those things that they disliked — and that each of the things should be forgiven which had been either done or said against him; provided they all unanimously, without treachery, turned to him. Then was full friendship established, in word and in deed and in compact, on either side. And every Danish king they proclaimed an outlaw for ever from England. Then came King Aethelred home, in Lent, to his own people; and he was gladly received by them all.’

Here for the first time we can see that conditions are being imposed on the king in return for the throne. The situation must have been not unlike that at Runnymede, more than two hundred years later. This was a king whose political and military failure had made him vulnerable to demands from his subjects.
What those demands were we can surmise from a sermon preached at the time by Wulfstan, Archbishop of York which has become famous as the Sermon of ‘the Wolf’ to the English. It was probably given in the presence of King Aethelred and his council, and it indicates the kind of issues that were exercising them: injustice, excessive taxes and treason.
‘the rights of freemen are taken away and the rights of slaves are restricted and charitable obligations are curtailed. Free men may not keep their independence, nor go where they wish, nor deal with their property just as they desire…

Nothing has prospered now for a long time either at home or abroad, but there has been military devastation and hunger, burning and bloodshed in nearly every district time and again… And excessive taxes have afflicted us…’
Experts think that the wording of the Chronicle is copied from a writ or document which Aethelred issued, which would have detailed the agreement. Eleventh-century writs were letters sent by the King to his governors in the shires, often specifically to be read out in the Shire court; such writs always began with ‘The King greets his people…’ as in the Chronicle. Usually the extent to whiuch kingship relies on the consent of the governed is concealed beneath the rhetoric of royal power. Here, that consent is made public. In the context of the, for this period, unusual sophistication of the English monarchy, working as it did through shire and hundred [district] assemblies, this is even more revealing. In administering the shires, the king’s officials relied, as we have seen, on the empanelment of juries, that is the participation of his subjects in their government. It seems that both at this subordinate level and at the highest reaches of politics, the English felt they had rights, that, as in the forests of Germany centuries before, sovereignty emanated, not just from above, from God, but also to some extent from below, from the people.
 Constitutional encounters of this kind happened elsewhere in Europe at roughly this time, but what makes 1014 special for us is that the agreement comes at the beginning of a continuing series of such deals which would govern the development of the English state down to our own times. Four years later, after Canute had eventually defeated Aethelred’s successor, he found himself making a similar agreement in Oxford, which he was to reiterate in two celebrated ‘Letters to the English’ in 1019 and 1027. King Edward the Confessor [the Edward in fact who crossed from Normandy to begin the negotiations in 1014] inherited this dispensation, and reconfirmed it publicly in 1065. The way he ruled was explicitly the basis of the regime of his Norman successors. That was made clear in the Charter issued by Henry I at his Coronation in 1100, which itself in turn became the basis of the restoration of order by Henry II after the ‘anarchy’ of King Stephen’s reign. Henry I’s Coronation Charter was also instrumental in the negotiations before Magna Carta. Thence, by way of Magna Carta itself, we reach Simon de Montfort, the ‘comune of England’ and the beginnings of Parliament. 

There was nothing inevitable about this, as there was nothing inevitable, indeed, about the survival of England as unified kingdom, but the fact remains that English constitutional history descends in a direct line, not unlike the monarchy itself, from those tense discussions in the aftermath of Danish disaster.
David Wilson 2015

Legal Workers Trade Union

Legal Workers’ Trade Union (guest blog by Arthur Kendrick)

Why is there a need for a legal workers union?

 Unity 

There are thousands of solicitors, barristers, legal executives, paralegals and legal administrative staff in the UK. We need one voice. Organisations like the CLSA and the LCCSA have done amazing work in fighting the cuts and organising the workforce, but fundamentally, we need one organisation that can speak for us all. We need the Legal Workers Trade Union.

 In the last week we have seen how our divided profession has allowed the government to press on with its agenda of crippling cuts to legal aid. Without a central body to stand for our common interests as legal aid practitioners, this slash and burn government will continue to divide and rule.

 Experience

 It took our profession hundreds of years to go on strike and we’ve learned a number of valuable lessons (not least which handbag to wear…), but it’s difficult to know how to minimise the collateral damage to our clients. The Legal Workers Trade Union, as a part of Unite the Union, will be able to draw on decades of experience that will help us maximise the impact of any action we take and make sure that impact is felt by those responsible.

 Working conditions

It has been only three years since LASPO, but more than thirty since Legal Aid rates have increased. Very few industries have put up with such a savage attack on pay and working conditions. With the next cut due in a matter of days, working conditions across the legal aid industry will continue to fall. We need someone in our corner.

The Legal Workers Trade Union is a movement for fair and sustainable working conditions for all employees on an equal basis across the legal sector. Too many vastly talented individuals are leaving legal aid work, and too many are fearful to enter. Still more are putting up with a gradual erosion of their working conditions, thinking there is no alternative. The LWTU will help provide independent, experienced assistance in any employer/employee negotiations and help protect your rights.

 Who can join?

 LWTU is not just for the legally qualified; our membership includes students, trainees, and pupil barristers, as well as interns and volunteers, personal assistants, legal administrative staff, paralegals, solicitors, barristers and judges.

 Why join?

 We are stronger together. Quite apart from the huge importance of a strong, central voice for the industry, workers stand to benefit in a variety of ways from union membership.

 Workers in unions tend to earn more, receive more training and have better job security. Membership of a union also gives you access to the professional assistance that can help you negotiate better employment terms, like longer paternity/maternity leave or holiday entitlement.

 Perhaps most importantly, as a member of the LWTU you will be part of the fight for fairness and equality across the industry. Even if you are lucky enough to work in a positive and progressive workplace, your membership will help empower the paralegal on less than minimum wage, the legal executive working an eighty-hour week, or the barrister earning £50 (and often much less) to spend their Saturday morning at the Magistrates’ Court.

 How to Join

 You can join Unite online at:

 https://www.unitetheunion.org/join-unite/

 If you have any other questions, please don’t hesitate to tweet us @Legal_TU, email us on legaltradeunion@gmail.com or take a look at our website https://legaltradeunion.wordpress.com/

We look forward to hearing from you!

 

The Football Banning Order (guest blog by Amanda Jacks of FSF)

This blog is by Amanda Jacks of the  Football Supporters Federation

What do paedophiles, terrorists and football supporters have in common? 

 The State has the power to remove their passports and in the case of supporters, they can do so in two different ways: either by application on conviction of a football related offence or by a civil application made by a Police Chief Constable to a magistrates court. 

 In both cases the surrender comes under the terms and conditions of a Football Banning Order (FBO) and occur when either the supporters’ club or country play abroad. Ahead of last year’s World Cup, passports had to be handed over to police some ten days ahead of the tournament and, regardless of how far England progressed, would be kept until it was over. It’s been calculated that if your team are in a European competition and England are playing qualifiers or friendlies, you could be without your passport for 90 days in a year. Whether you’ve ever followed club or country, outside of these shores is immaterial, it’s a blanket condition. Ahead of the recent Ireland v England friendly played in Dublin, not only did those serving FBOs have to surrender their passports, they also had to report to their local police station the morning of the match – just so the police could be doubly sure they hadn’t managed to sneak out the country.

An FBO can impose severe restrictions on movement preventing you from being within a certain radius of a football stadium (upto 5 miles) or in some cases prevent you using the rail network. Given a court has to be satisfied that granting an application for an FBO will contribute towards the reduction of football related violence, you’d be forgiven for thinking that applications on conviction are only made if a supporter has been found guilty of violent disorder or affray but it’s our experience that the police/CPS will submit an application regardless of the offence with which the supporter has been charged and whether or not they’ve got a criminal record, let alone previous convictions for football related offences. In one of the more questionable cases we’ve been involved in, a supporter was charged with missile throwing after chucking his fancy dress trousers in the air. He had a clean record yet would have faced an FBO application had he been convicted but thanks to vigorous efforts by his solicitor the charge was dropped.

 When it comes to civil applications, the Police may present evidence to the Court upto ten years old in the hope that the court will be persuaded that granting the application will prevent individuals from causing or contributing to disorder. The supporters may not necessarily have a criminal conviction. I’ve attended court on several occasions to observe proceedings and the strength of the evidence varies. In some cases, the police are able to present strong cases, including CCTV footage of fans being involved or in close proximity to disorder but in just as many cases, the applications are based on little more than association with other ‘risk’ fans and ejections from stadiums for breaking ground regulations. In fact, some of the applications beg the question why individuals haven’t been arrested and charged with a criminal offence.

When supporters are served with a civil application approach us for advice, the one thing they all have in common is the account they give when the police turn up at their doorstep with legal papers. I’ve been told time and time again that the police tell fans not to bother taking legal advice, it’ll be too costly, they won’t get legal aid, if they contest the application, it’ll cost them thousands, or the original application for a three year ban will become a five year ban. Thankfully, this “advice” isn’t always adhered to and fans contact us and are advised – free of charge – on the merit of contesting the application.

It’s a frequent boast by the authorities that FBOs have transformed the behaviour of the English fan both here abroad and played a major part in the more or less complete reduction of ugly scenes that so tarnished the reputation of our supporters. However, there are three notable academics in the field of football policing and legislation (Messrs Pearson, Stott and James) and if you read their work – all freely available online – it paints a somewhat different picture. None of them say that FBOs haven’t played their part but the true picture takes into account many other factors, primarily policing, conditions and the changing demographic of fans. They will also argue that the effectiveness of the banning order has never been properly measured.  

For whatever reason, the narrative of the authorities that banning orders work in preventing ‘hooliganism’ (let alone the draconian implications of serving a ban) is very rarely challenged by the media or even those who champion civil liberties meaning there is little scrutiny in their application. It’s also the case, again as I’ve witnessed, that the judiciary doesn’t always apply the proper tests when considering applications for Football Banning Orders. Thankfully the FSF are able to rely on an excellent legal team who will give initial advice free of charge; we can’t though prevent football fans being subjected to the same reach of the state as terrorists and paedophiles.  

Amanda.jacks@fsf.org.uk / 07703 519555

Modern Slavery Act – a synopsis (Guest Blog by Ben Ticehurst)

The following is a guest blog by solicitor Ben Ticehurst of  E.M.M. Solicitors  


The Modern Slavery Act 2015

 

The Modern Slavery Bill received Royal Assent on the 26th March 2015. Following the announcement of Royal Assent, Unicef Director David Bull said:

The passing of the Modern Slavery Bill into law is an historic moment in the fight against modern slavery and human trafficking. Unicef UK is proud that the UK has committed to stamping out these horrific crimes and, in particular, to protecting vulnerable children.

http://blogs.unicef.org.uk/2015/03/26/modern-slavery-bill-becomes-law-unicef-uk-statement/

Why the need for new legislation?

The Global Slavery Index 2014 reported that over 35 million people are trapped in slavery across the world today. Modern slavery takes multiple forms including forced labour and human trafficking, and is found across the economic sphere in domestic servitude, the sex trade, on farms, building sites and in factories. Many are working in terrible conditions for extremely long hours, for little or no pay, and are vulnerable to verbal and physical abuse. 

http://www.globalslaveryindex.org/

The National Crime Agency suggests that the number of victims of trafficking in the UK rose by 22 per cent from 2012 to 2013 and these numbers are continually on the rise globally as well.

http://www.nationalcrimeagency.gov.uk/news/news-listings/452-nca-human-trafficking-report-reveals-22-rise-in-potential-victims

In the UK, around 60% of children rescued from trafficking have gone missing from social services. Those working as foreign domestic workers on a tied visa (about 15,000 each year), meaning that they are tied to one employer for the duration of their stay, are unable to leave their houses unaccompanied or find alternative jobs to escape abusive employers without becoming criminalised. 

Until now, there were three pieces of legislation on slavery and trafficking that are scattered, impractical and therefore difficult to use. As a result, there were only 8 convictions of human trafficking in the UK in 2011. There have been calls for the law was to be on the side of victims of slavery and trafficking and so the new Modern Slavery Bill, has been hugely welcomed as it is pivotal to ensuring victims of abuse are found, cared for and receive justice for crimes committed against them.

A Home Office spokesperson recently said the bill was 

an historic opportunity to get legislation on the statute books that will , for the very first time, address slavery and trafficking in the 21st Century”

Summary of the Act

http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0098/15098.pdf

The Modern Slavery Act brings together current offences of trafficking and slavery, introduces tougher sentences (up to a maximum of life imprisonment) for traffickers, and creates an independent anti-slavery commissioner, likely to be a former police officer. It contains provisions for seizing traffickers’ assets and allows for confiscation proceedings (section 7) under the Proceeds of Crime act 2002 (POCA 2002). It also allows for the channelling of traffickers money towards victims, by way of compensation payments (section 9).

It is hoped the Act will provide greater protection for victims and improve the prospects for prosecuting perpetrators

The Act includes provision to defend those that have been forced to commit crimes as victims of slavery or exploitation (section 45). This includes a defence for child victims against prosecution for crimes committed directly as a consequence of their trafficking.

The provisions to protect children are continued in that Section 48 creates ‘Child Trafficking Advocates’ who will support and represent any child that has been the victim of human trafficking. The Act also sets out a ‘presumption about age’ (section 51) which means that where is it unclear as to the age of the victim and they could be under 18 years of age then they will be treated as under 18 until it is know otherwise.

The Act will also make a development in relation to corporate responsibility and accountability in an attempt to improve transparency in supply chains (section 54). This will require companies to make a statement detailing the steps they have taken to ensure that slavery and human trafficking is not taking place within the company or supply chains, or that no such actions have been taken. This step follows the USA, Brazil and Australia who have already made efforts to address modern slavery in supply chains.

Observations

There have ben some criticisms of the Bill in that it concentrates on enforcement and prosecution of traffickers as opposed to focusing more on victim protection.

Former conservative MP Anthony Steen has said: 

the prime minister said he wants to drive slavery out of Britain; I am convinced he is committed to doing something about it, but you are not going to catch traffickers unless you have evidence, and you are not going to have any evidence unless you support the victims. The reason why we have so few convictions in Britain is that police scare the living daylights out of victims.”

Barrister Parosha Chandran has commented that the section of the bill that deals with transparency in supply chains does not extend to wholly owned subsidiaries of UK companies abroad. 

She has stated that 

“…the modern slavery bill represents a huge step forward in the development of corporate accountability. Yet we will never really begin to tackle modern slavery unless we ensure that the supply chains of all our companies, whether doing business in the UK or overseas, are not tainted by trafficking, exploitation or abuse.

http://www.theguardian.com/global-development/2015/mar/24/loophole-modern-slavery-bill-transparency-supply-chain-abuses

Andrew Wallis, chief executive of Unseen, a charity that works with the survivors of trafficking and modern slavery, was more inclined to be positive. 

Whilst no legislation is ever perfect it must now be matched by a concerted and collaborative effort to put the provisions of this law into full effect”.

“Many have contributed to the process of drafting this legislation and we have arrived at an

Act that the UK can and should be proud of. There is and always will be more to be done

but it was crucial that this legislation reached the statute books before this parliament ended

so that we have a good foundation upon which to build.”

http://www.unseenuk.org/uploads/20150326125647668.pdf


Unrepresented Defendants (guest blog by Penelope Gibbs)

This blog is by Penelope Gibbs of TRANSFORM JUSTICE

Transform Justice was set up in 2012 by Penelope Gibbs, a former magistrate who had worked (successfully) to reduce child and youth imprisonment in the UK. The charity aims to help create a better justice system in the UK.

Please complete the survey at end of article, and forward to other practitioners
The mysterious increase in defendants without lawyers in the criminal courts 
People are slightly mystified why numbers of unrepresented litigants in the criminal courts seem to be rising.  Everyone expects numbers to rise steeply if the government succeeds in bringing in proposed changes to the way legal aid lawyers are paid.  Then there are likely to be legal aid deserts where no solicitor is willing to work for legal aid rates. But numbers have already started to rise according to a survey from the Magistrates’ Association (http://www.magistrates-association.org.uk/wp-content/uploads/2015/01/01-Survey-on-litigants-in-person-and-unrepresented-defendants-13-January-2015.pdf).  This suggested one in five of those in 1st listed bail, “Narey”, courts were unrepresented, as were 14% of those on bail hearings, 23% of those being sentenced and 22% of those in criminal trials.  If scaled up countrywide, these would represent thousands of defendants.  No-one knows why these defendants are unrepresented since the criteria for legal aid have not changed for several years. Some people may be ineligible for legal aid either because their crime is serious enough, or because they do not meet the, quite low, means test. But Transform Justice is looking for more information about those struggling to defend themselves in the criminal courts. If you are a criminal solicitor or barrister, or someone who works in the courts in another capacity, please fill in this short survey https://www.surveymonkey.com/s/WBJ3VVY
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Drug Driving (guest blog by Tim Huestis)

Drug Driving


This blog is by Tim Huestis of Shearman Bowen and Co.

 

As of 2 March 2015 new drug driving laws come into effect.  Drug driving is prohibited by a new s5A Road Traffic Act 1988.

Drivers can be subjected to a roadside ‘drugalyser’ test that can detect the presence of cannabis and cocaine in a driver’s saliva.  Drivers can also be subjected to a field impairment test.  

A failure of either roadside test can lead to an arrest whereby a suspect is taken to a police station to undergo a blood or urine test.  The blood or urine test will test for 8 illegal drugs: cocaine, cannabis, ketamine, LSD, methylamphetamine, heroin, benzoylecgonine, and MDMA. 

It is also now illegal to drive with certain prescription drugs, however the legal limits have been set above normal doses and drivers who take their medication in accordance with the advice of their doctor should fall below the limits. 

Drivers convicted of drug driving face imprisonment (up to 26 weeks currently as a summary only offence, although 51 weeks allowable if the legislation increasing Magistrates sentencing powers comes into effect) together with disqualification, level 5 fine and anywhere between 3-11 points.

 

Certain procedural aspects surrounding the enforcement of drug driving laws remain unclear.  Indeed, Greater Manchester Police have issued a statement confirming that they will not be prosecuting suspected drug drivers until the new laws and procedures have been scrutinised by the Courts.

There will inevitably be legal challenges to the procedures, practice and evidence, and myself and the Shearman Bowen team look forward to putting the legislation under rigorous scrutiny.

Tim Huestis, Solicitor, Shearman Bowen & Co.

2nd March 2015

Thanks Tim!

Notes

1 Official guidance on Govt. Website www.gov.uk/drug-driving-law 

2 Drugs playlist 

3 The legislative amendments to the Road Traffic Acts were enacted by SI 733 (publ. March 2015)

Likely Defences

Not the driver, exclusion of evidence under s78 PACE following alleged  breaches of police powers, testing carried out incorrectly, false positives, post driving consumption (the drug equivalent of “hip flask defenc even”, defective testing devices, prescription drugs or other lawful reason (expert evidence needed)

Light Out

GUEST BLOG: The Big Picture

“The lamps are going out all over Europe; we shall not see them lit again in our life-time”
– Sir Edward Grey – British Foreign Secretary 1905 to 1916

Part of 14-18 NOW, WW1 Centenary Art Commissions, LIGHTS OUT invited artists to create large-scale, site-specific artworks at locations across the UK.
In a dramatic UK-wide event LIGHTS OUT was an invitation to turn off lights on 4th August, leaving on a single light or candle for this shared moment of reflection.  Find Out More here: www.1418now.org.uk

 The Big Picture provide virtual candles and other digital resources to mark the occasion. They have video loops of candles and lamps to play back on your tv, laptop or mobile .

This is a part of The Big Picture – a pan-European video installation designed to creatively commemorate the 100 year anniversary of the First World War.

You can view all their resources at www.thebigpicture.org.uk/resources