Category Archives: Civil Rights

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)

Chris Grayling- the worst Lord Chancellor in history

Who is Chris Grayling?

Born on April Fools Day, Christopher Grayling MP (Conservative MP for Epsom) was the Justice Secretary and Lord Chancellor from October 2012 to May 2015.  He was the first non-lawyer to have served in that post.

This blog reviews Grayling’s tenure in office as Lord Chancellor.

Introduction and Overview

Overview  here (my TV interview about Grayling, Legal Aid and Magna Carta, via YouTube)

Joshua Rozenberg assessed Grayling’s likely legacy In the Law Society Gazette here (March 2015)

Grayling “just didn’t get it” – article in Gazette here  (November 2015)

Top ten things about which Grayling was wrong and why (Mirror, Nov 14)

Why “Failing Grayling” illustrates the worst aspects of Cameron’sGovernment  (by Nick Cohen in the Spectator, Dec 2014)
2014 review of a year in the life of Christopher Grayling (with links) as reported in the “Tuesday Truth” blog.

EXPENSES (pre-appointment)

Chris Grayling as an MP and certainly as Lord Chancellor purported to want to cut public expenditure. However, when it comes to his own public expenditure, Chris likes to get as much of it as he can. The extent of his guzzling was chronicled in the Telegraph expenses scandal  here (as shadow home secretary h3 claimed thousands of pounds to renovate a flat in central London – bought with a mortgage funded at taxpayers’ expense, even though his constituency home is less than 17 miles from the House of Commons)

Chris neeed a good secretary, so the taxpayer forked out for him to have a secretary (at an eye-watering 40k pa) . Luckily, someone was available for the job- no need to advertise! The ideal candidate? Step forward Mr Graylings wife- susan!

Years later, how Grayling get away with it, and whether he did in fact refund some of the money as he publicly pledged , remain shrouded in mystery (as explained by Ian Dunt in this article, Jan 2017)

Grayling and cuts to criminal legal aid

Grayling had supported, despite overwhelming opposition in the preceding “consultation, a new model for payment of criminal league aid solicitors known as Price Competitive Tendering, which was so flawed even the Mail on Sunday criticised it ( enjoy this  Downfall parody video with Grayling stabbed in back by MoS ) Legal Aid had already been cut to the bone, before Grayling set to work with cuts to all areas of legal aid.

Criminal Lawyers even went on “strike” (January 2014) Grayling did not back down, the LCCSA took legal action, and a year later (under Grayling’s successor) the Government caved in and the scheme was abandoned.

Government guidance in relation to the granting of legal aid for immigration cases was found to be unlawful (Dec 2014)

Meanwhile as more defendants were appearing unrepresented, even Magistrates started commenting on the “threat to Justice”   (full story and my quote in The Independent here) (January 2015) and more detail here (via the Bureau of Investigative Jouralism)

Grayling attracted criticism even on Tory blog  “Conservative Home”- see this demolition of Grayling’s Legal Aid Cuts (“damaging and unfair”,  Feb 2015)

Grayling and cuts to other areas of legal aid

The supposed “safety net” introduced for exceptional cases was revealed in this article  to be a failure (Daily Mirror 28/12/15)

Grayling repeatedly claimed that Legal Aid in the UK is “the most expensive in the World” -an inacuracy also repeated by the MoJ but demolished here

His LASPO Residency test was overturned in July 2016 (see here)

PRISONS CRISIS

Guardian article on rising suicide figures exposing prison crisis, and subsequent letters.

The Independent reports on Grayling callous indifference to rising suicide rate

An insider account of the “Highdown 11” (prison protesters against prison cuts all acquitted)

Lord Ramsbotham speaks out against Grayling over the prison suicide crisis.

Grayling makes Chief Prison Inspector reapply for his job.

Grayling dismisses huge increase in prison suicides as a “blip“.

Grayling’s legacy will be to have left prisons in a worse state than he found them.

After cancelling an effective rehabilitation course, Grayling was described as an “incompetent, short-sighted recidivist” (The Guardian, April 2015)

Grayling was criticised in a parting shot from the outgoing Prison Inspector here (the Indy, Jan 2016)
Prisoner Book Ban

Grayling’s book ban, and and the Howard League’s response

Authors use Chris Grayling as villain in response to the book ban.

“Strange and absurd” -Court Judgement on Grayling and the book ban.

Picture: demo against book ban outside Pentonville prison:


Having lost on his prison- book-ban, Grayling delays implementation and is described as “stealing Christmas“.

A short Video of the book ban demo outside Pentonville prison, March 2014

Grayling and Human Rights

The sad truth is, Grayling doesn’t actually understand Human Rights, and even the Daily Mail had to correct him- see this article.

Grayling’s views on workfare and making employees work for free here (New Statesman 2012)

GRAYLING AND THE MOJ
Man wrongly imprisoned for 17 years persued for costs by MOJ

Under Grayling’s tenure, there were record levels of absenteeism as MoJ staff were sick with stress and mental health issues (as reported here)

Grayling gets MOJ “flogging expertise to Saudi floggers” -selling legal services to Saudi Arabia and other repressive regimes. (As set out by David Hencke, Jan 2015)

The MOJ “deal” with the Saudi regime represents a clear conflict of intetest as set out by Jack of Kent in his informative argument. Gove has done his best to extricate the MOJ from Grayling’s toxic legacy -update here.

The commercial arm also managed to make a £1million loss! Detail here
Grayling and Magna Carta

BACKGROUND:- this website has info about Magna Carta, it’s historical significance then and now, why we should celebrate it and how the Government has hypocritically hijacked the anniversary.

Nothing but lip-service, is all we can expect from this Lord Chancellor

Grayling is a hypocrite with his MOJ event to commemorate Magna Carta (argues Peter Oborne) – don’t jump on the bandwagon!

Robin Murray spells out the hypocrisy and called for a boycott of Grayling’s Magna Carta event.

More here on why principled lawyers would not attend.

Frank Magennis in the Justice Gap described this as an unfolding of British Justice (published Feb 2015)

In the 800th anniversary of Magna Carts (see below) a RELAY FOR RIGHTS saw demonstrators walk from Runnymede to Westminster to protest against Christopher Grayling and his preposterous, hypocritical “Great” Legal Summit. This led to a public Impeachment for the man masquerading as Lord Chancellor.
See also this article on Grayling and Magna Carta in the New Statesman (Feb 2015) by Anthony Barnett.

Grayling and the Probation Service

Grayling was accused of no less than murdering the probation service

Grayling’s privatisation has led to job losses and failure (article in the Independent December 2015)

Damming assessment of Grayling’s botched partial privatisation by MPs in 2018 here https://www.theguardian.com/society/2018/jun/22/part-privatisation-of-probation-sector-is-a-mess-mps-say?CMP=Share_iOSApp_Other

Grayling and Judicial Review

JR bill falls apart after grayling admits misleading Commons

The Lord Chancellor lost yet another judicial review in October. This time it was over his decision to make mesothelioma sufferers pay up to 25 per cent of their compensation for legal and insurance costs should they win their case. Giving his judgment in the High Court, Mr Justice Williams said: “No reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty. This is not a case in which the procedural failure was minor or technical in nature.”

Grayling in his own words

in this article we find out what Grayling thinks , with critical analysis.

Grayling as Lord Chancellor

Former Tory MP, barrister and blogger Jerry Hayes described Grayling as “a shit that has to be flushed after the election”

Matthew Norman, writing in the Independent, (Jan 2015) asks “what in Sanity’s name is Chris Grayling doing in the job of Lord Chancellor?”

Minutes of Grayling’s appearance as Lord Chancellor before the Justice Select Committee here. Note the admission to Jeremy Corbyn that cuts are “ideological” (Q200)

Grayling on Twitter
You can find out more about Mr Grayling by searching #FailingGrayling

Musical Grayling

Check out the chris Grayling playlist

Freedom of Information

Naturally Grayling is not a fan (source:Guido)

Lord Chancellor Grayling In Retrospect

Has there ever been a more incompetent minister than Grayling? Answer in this article in Huffington Post

Unfavourable comparison with his successor here in the Spectator.

Lord Pannick described Grayling’s performance as “notable only for his attempts to restrict judicial reviews and human rights, his failure to protect the judiciary against criticism from his colleagues and the reduction of legal aid to a bare minimum.”

Grayling Brexit

After the May 2015 election, Grayling let it be known that he would be very happy to stay on as Lord Chancellor. He was promptly demoted by Cameron to “Leader of the House”. The New Statesman asked “Is Grayling the most incometent Minister?” (article December 2015) “It’s often said that all political careers end in failure, it just seems that Grayling’s seems to be failing before it has ended…”

For many months we heard nothing about Grayling. Then it emerged he had been granted permission to campaign in favour of Britain leaving the EU in the forthcoming referendum, and he became a self appointed leader of Brexit. Grayling’s support for “out” caused celebrations in the “in ” camp, as Grayling (a “sheep in sheep’s clothing”) proved that he has “yet to discover an argument he has consciously been on the right side of” (read the full sketch by John Crace 14/01/16) However, as we now know, the Country did vote to Brexit, although few have cited Grayling and his support as having been an influential factor in that.

One of his first speeches in the cause showed his “humorous side” as described in this article 50 shades of Grayling (Political sketch by Patrick Kidd, Times, January 2016)

Post MOJ: Grayling as Leader of the House

We didn’t hear much of or about Grayling after his demotion from Lord Chancellor, other than his legacy being unravelled and overturned by his successor, and his Brexit campaign (above). However, never one to be on the right side of an argument, he  sought to with-hold details of MPs dodgey expenses and arrests (as outlined here in the Daily Mirror (Feb 2016)

From Jail to Rail: Grayling as Transport Secretary

Grayling was appointed transport secretary in Theresa May’s new cabinet (July 2016)

Two weeks later there were 16 hour delays in traffic jams leading to Dover…

He combined his newfound interest in Brexiting and Transport with an important intervention in Public Life-railway platforms. Mr Grayling is however wrong even about the Brexit dividend to station platforms as explained here

Meanwhile, as controversy mounts over heathrow expansion and HS2, Chris struggles to find any relief for the long-suffering commuters reliant on failing Southern Rail. He is then “offered a new job by a Village without an idiot”, according the satirical website NewsThump here

in December 2016 there are calls for his resignation even from Tory MPs (see this BBC News item)

In 2017 Grayling supported Heathrow expansion, and Monarch Airways went bust.

In October 2017 Grayling attending the launch of the new hybrid train between Bristol and London. A service that not only arrived into Paddington 45 minutes late after the train broke down while switching from diesel to electricity, but whose air conditioning had failed, drenching dozens of passengers with water.

As for Brexit, he says that everything will be fine because “British farmers will grow more”, a comment so facile it is beautifully eviscerated in this must-read demolition of Grayling’s ignorance  which describes him as “the wilfully ignorant, insouciantly callous former Justice Secretary who took a sledgehammer to the legal aid and prison systems” (independent)

He also appeared before the Transport Select Committee, in a shambolic performance that was beautifully captured in this sketch  (worth reading in full- concludes with “while there was a refreshing honesty to his incompetence, there really didn’t seem to be any part of his brief that Grayling fully grasped. He was dangerously deluded about what had gone on on his watch and complacent about the here and now

Grayling’s short tenure as Conservative party chair

On 08 January 2018 in Theresa May’s botched cabinet re-shuffle, Conservative HQ tweeted congratulations to Grayling on a post that he had not in fact been given, as described here https://www.standard.co.uk/news/politics/chris-grayling-named-as-new-tory-party-chairman-in-now-deleted-tweet-in-cabinet-reshuffle-blunder-a3734531.html

That it took nearly half a minute to realise the mistake was a surprise: most people don’t need nearly that much time to work out that Grayling is invariably the wrong person for any job.

More transport shambles

Grayling was trending again on twitter (and not in a good way) in June 2018 after ongoing train cancellations and timetable shambles. Chris was supposed to meet MPs but had to cancel some meetings after he didn’t timetable them properly (I’m not making this up) and then gave a statement in the house where he said that those responsible should resign.

“It’s completely unacceptable to have someone operationally in control and not taking responsibility,” Failing Grayling declared hysterically. At that moment, satire died. (Full sketch by John Grace here, and here is a further extract: If you were writing a new series of The Thick of It, you’d hesitate to create a character like Chris Grayling for fear no one would believe in him. Even in the current cabinet, a confederacy of dunces where the sole qualifications for membership are being a bit dim and entirely incompetent, the transport secretary is a class apart.

To say that Failing Grayling has more than his fair share of bad days is a category error. Because that implies he has the occasional good one. He doesn’t. Every day is a desperate, losing struggle against the chaos caused by his own hopelessness. But even for a man who has turned his failure into a monumental work of performance art, Monday hit a new low. Or, as Grayling might see it, a total triumph. The moment he formally achieved the coveted status of the idiot’s idiot.

 

The Times has this to say

Chris Grayling used the publicly owned French railway as an example of how bad a UK nationalised railway would be…yet we pay the French rail to run private UK services and UK fares can be 4x more expensive for similar journeys.

Prison Books: Helping to Turn over a New leaf

The decision earlier this year by Justice Secretary Michael Gove to lift the ban on family and friends sending books to prisoners was welcome

Anybody who describes prison as a “holiday camp” has either never been to prison, or never been on holiday- the reality of contemporary incarceration is boredom from enforced idleness, interspersed with occasional violence (assaults are rife) but little support for rehabilitation programmes or tackling prevalent issues of mental health. Cuts to staffing levels have overlapped with a rapidly rising prison population. Recent reports by the Prison Inspectorate have been damming.

Books do not in themselves provide a panacea, but they are a good start. They provide education, help literacy and personal development, and broaden the mind.

The book ban introduced by Gove’s predecessor Chris Grayling was a vindictive, unjustified act.

The purpose of prison is punishment and rehabilitation- the first is implicit in the removal of liberty by being locked up, the second currently not achieved by draconian policies that fail to tackle the root causes of offending behaviour. In Nelson Mandela’s moving autobiography “Long Walk to Freedom”, he writes of the value and importance of books to him through his long period of imprisonment. Everyone but Grayling could see the value of books within prison.

In March last year I joined a demonstration against the book ban outside Pentonville prison organised by the Howard League for Penal Reform, and supported by authors including the Poet Laureate. See a short video clip here.

The reversal came initially as a result of a successful Judicial Review brought by solicitor Samuel Genen and counsel (all acting pro-bono) -read more about that here. The High Court ruled the policy was unlawful. Gove then confirmed in July the complete relaxation of the unfair and arbitrary rules Grayling introduced. That is a victory- unlawful policies do not always lead to policy reversal -look at the vexed issue of prisoner voting.

Now we no longer have a book ban, and we now longer have Grayling despoiling the office of Lord Chancellor. So what of his successor?

Gove has said that “the most useful thing we can do is make sure prisoners are usefully employed, and improve literacy, numeracy and work skills”. Will he act or are these just “words”?

I would suggest the most useful thing Gove could do would be to reduce the prison population by crime prevention and successful rehabilitation, and reducing the numbers imprisoned for pointless short sentences for non-violent crime.  This in turn would save money, which could be redeployed to properly fund the Justice system. Government cuts to Legal aid have put our Justice system at risk. The spending cuts were ideological, deferring costs elsewhere in the system.

Grayling was a wrecker, who for what he hoped would gain him short term popularity damaged both the Criminal Justice system and an effective penal system.

Gove has a long way to go to fix these problems, but reversing the book ban was a good start.

Published on International Literacy Day, 08 september 2015

An earlier version of this article was published here in the Islington Tribune in July this year

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


#WriteAPoemAboutTories

Twitter- sized poems about justice for #NationalPoetryDay:-

I want to set on fire
Grayling the mendacious liar
He cut legal aid
For the low paid
While his expenses got ever higher

Tories ban Human Rights
They are despicable shites
Time for you and me
To leave UK PLC
Will the last 1 please turn out the lights?

It’s harder than it looks
Being tough on crooks
But poor Chris grayling
Was certainly failing
In banning prisoners books

Its hard I must confess
to compose a poem in 140 or less
Christopher Grayling
rhymes with Failing
and to be perfectly blunt
he’s a bit of a

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

Grayling Day- the Save Legal Aid Demo 07/03/14

The demonstration on 07 March 2014 in support of Legal Aid in Old Palace Yard, Westminster (outside Houses of Parliament) was possibly the largest gathering of protesting Legal Aid Criminal Lawyers and Supporters ever assembled, and became known as “Grayling Day”, after the man responsible for the cuts, MP Chris Grayling.

The demo raised the profile of the fight against Legal aid cuts. Guardian report here

Legal Aid Playlist here.   Highlights in this short film on YouTube

The Fight to Save Legal Aid

Justice Secretary Chris Grayling (a butcher posturing as Lord Chancellor) introduced further cuts to Legal Aid which threatened to destroy the ability of firms or individual lawyers to properly represent clients if reliant on legal aid.
The demo was not about Lawyers livelihoods. This was about equal access to justice for all, not just those who can afford to pay privately. No action was taken to stop wealthy defendants getting Legal Aid because their assets are “restrained” so they can’t use them to pay legal fees (as Martin Bentham  pointed out here)
I had the privilege of compering the demo, organised by LCCSA and the Justice Alliance, supported by revolting lawyers, inspirational speakers, MPs, and an effigy of Grayling. Many Legal Aid Lawyers were not working on the first ever full “strike” (day of action.) Concerns about the justice system were the theme. (BBC coverage here)

A full list of speakers with a summary of their contributions HERE.

I had previously blogged about a Legal Aid day of action in the New Year, (January 2014) but this demo was the first ever full-day National day of Action (aka a strike) by Criminal Lawyers.

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Footnote

Sadly, a year later the fight was ongoing, and we were back again.

We  kept fighting until Grayling had his day. Chris Grayling was demoted after the election, and replaced by Michael Gove,, who was in turn replaced by Liz Truss and two further changes.

Now, with disclosure issues, further funding problems, and a prison crisis, perhaps it is time to once more gear up to fight, campaign, demonstrate and if necessary take action once again.

Not Magna Carta: Grayling’s Legal Summit

2015 marked the 800th anniversary of the signing of Magna Carta, where we should have celebrated the cherished ideals of Equality before the Law, right to a jury trial, and the principle that  Justice should not be for sale. Instead, the Government, with it’s legally illiterate Lord Chancellor Chris Grayling, held (on February 23rd) an invite only “Legal Summit” with tickets priced at £1500 per head.
It has been said , “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.” (Anatole France, see here for more on equality before the law)
But only the rich could afford to attend Grayling’s fat-cat jamboree, hypocritically masquerading as a Magna Carta celebration. Some invited to speak chose to boycott the event.
Many with integrity indicated their opposition, and set out why as recoreded in this blog

I attended the alternative “Not the Great Law Summit”  protest, demonstrating outside the official event. A write-up is here in the Justice Gap.

Speakers included  Maxine Peake (Pictured below), Debora Coles from Inquest,  Marcia Rigg, Karl Turner MP, Andy Worthington and  Jon Black (President of LCCSA)


There was an impeachment hearing for “King John” Christopher Grayling. 

There was also a walk from Runnymede to Westminster over the weekend of 21st-23rd February (“Relay for Rights“)

 

Anyone who would like to learn more about the issues raised in this blog, may like to look at the website of the Justice Alliance www.justiceallianceuk.wordpress.com
You can also catch up on events as they happened on Twitter using hashtags  #RelayforRights and #NotGLS2015

Notes

1 Check out this excellent article in the New Statesman by Anthony Barnett (founding editor of Open Democracy) who spoke at the start of the March at Runnymede, and joined the walk and demo. 

2 This Article in the Islington Tribune features Ruth Hayes of Islington Law Centre, who also spoke at the Runnymeade gathering and joined both walk and demo. My letter in the same paper is here

 

The Impeachment of “King John” Christopher Grayling

0n 21st February 2015 the Justice Alliance met in Runnymede and set out for Westminster as part of a JA event called Relay for Rights.

This finished on 23rd February with the “NOT THE GREAT LEGAL SUMMIT” In Westminster.

This was organised as a direct response to the hypocritical “Great” Legal Summit, which in the name of Magna Carta, was being used to promote the kind of law that in fact has no resemblance to the principles still celebrated from that historic document.

At the alternative event, on the inspiration of Justice Alliance member Rhona Friedman, I was asked to seek impeachment of the Justice Secretary Chris Grayling by asking the assembled crowd to vote on “articles of impeachment” .

The Articles put to the crowd, and their responses, are recorded below:-

 

                                                 ARTICLES OF IMPEACHMENT 

 

                                    The People

                                      V

                     King John Christopher Grayling”

 

SummaryOne Resolution consisting of four articles of impeachment. 

The articles will be debated and voted on individually

 

Introduction

 

The original King John  had ruled using the principle of “force and will”, taking executive and sometimes arbitrary decisions, justified on the basis that a king was above the law.

800 years later, Chris Grayling, a man posturing as Lord Chancellor, takes executive and arbitrary decisions, and by seeking to remove the rights to Judicial Review attempts to place himself above the Law. 

Article 1   MISLEADING PARLIAMENT AND THE PEOPLE

 

As Secretary of State, King John Christopher Grayling provided false and misleading evidence to the House of Commons regarding Judicial Review Reform, having either knowingly lied in order to try to get his bill past the Commons or fundamentally misunderstanding his own legislation.

 

The Secretary of State further provided false and misleading evidence to the Commons about probation privatisation projects in that G4S and Serco confirmed they had been granted new government work during a period when Grayling had told MPs that contracts would not be awarded   Remember SERCO are the robber barons who claimed for supervising the dead!  

 

TO THIS ARTICLE DO YOU THE PEOPLE FIND THAT KING JOHN CHRISTOPHER GRAYLING HAS MISLED THE COMMONS AND THE PEOPLE?

 The People voted AYE 

 

 Article 2       OBSTRUCTION OF JUSTICE 

 

The Secretary of State has obstructed and diminished Justice by :

 

Reducing the number of people who took mental health cases from 42,000 to 523 in one year 

 

-Removing legal aid from family cases so that 2/3 of people face court alone 

 

Pricing peoplout of Employment Tribunals so that unfair employees know that they can sack their staff unlawfully 

 

Banning books in prisons until Court Action forced  him to stop 

 

Creating a two tier criminal justice

 

 TO THIS ARTICLE DO YOU THE PEOPLE FIND THAT KING JOHN CHRISTOPHER GRAYLING HAS OBSTRUCTED JUSTICE?

The people voted AYE 

 


 

 Article 3       ABUSE OF POWER

 

The Secretary of State misused and abused his office and impaired the administration of justice, in that

 

1. He forced through a privatisation of  Probation Service with no proper impact-assessment and at great risk
2. He has brought the Ministry of Justice into disrepute by “Flogging to the floggers” (contracting with the selling of legal services to Saudi Arabia, which has despotic judicial and barbaric punishment systems)
3. Whilst holding the title of Justice Secretary, he has practiced,supported and embodied INJUSTICE, and has been defeated repeatedly in the Courts.

 

TO THIS ARTICLE DO YOU THE PEOPLE FIND THAT KING JOHN CHRISTOPHER GRAYLING HAS ABUSED THE POWER VESTED IN HIM?

The people voted AYE

 

ARTICLE FOUR -ABUSE OF OATH OF OFFICE

 

AS Lord Chancellor King John Grayling is charged with upholding the Rule of Law  We the people have by the above articles found him guilty of misleading Parliament , obstructing justice and abuse of power.

 Do you the people therefore think he has properly discharged his constitutional duty in accordance with his oath of office to ensure the provision of services  for the efficient and effective support of the courts?

 TO THIS ARTICLE DO YOU THE PEOPLE FIND THAT KING JOHN CHRISTOPHER GRAYLING HAS ABUSED HIS OATH OF OFFICE-HOW SAY YOU, AYE OR NO?

The People voted AYE

Lastly do we the people on this fake anniversary of the Great Charter find him to be an Upholder OF THE RULE OF LAW?  AYE OR NO ? 

The People voted No

  

KING JOHN GRAYLING WAS DULY IMPEACHED- SO SAID WE ALL!

He was then conveyed, in stocks, amidst a jeering crowd,  to the “Great Legal Summit” , wherapon the Crowd did chant “Failing Grayling -out, out, out!”

But alas, he stayed in, and the will of the people once again was overborne.

800 years after it was sealed, people still remember the Magna Carta.

Grayling, if recalled in history at all, will be remembered about as fondly as his medieval predessor, the hated King John.


 

 

 

Grayling Day Demo -Speakers for Justice

The following speakers spoke up for Justice at The Grayling Day demo in Westminster on 07/03/14

1 Paul Harris
A former president of LCCSA, Paul opened the proceedings with a rousing address. He said the cuts would result in a two-tier system – one for those with money and one for those without.
2 Alistair Webster QC
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A Lib Dem peer but speaking as a lawyer he reminded us of their Party Policy of supporting Legal aid, but commented adversely on their failure in government to speak out against Grayling’s cuts, concluding “The politicians may have failed Justice. We will not.”

3 Laura Janes
Laura, representing The Howard League for Penal Reform dealt with how Chris Grayling has removed most prison law work from criminal legal aid.
4 Sir Ivan Lawrence QC
Sir Ivan (criminal barrister for over 50 years, and was a Tory MP for over 20 years) said he was ashamed of this Government. “We will bring the Criminal justice system to a halt to save it- that’s why we are here
5 Ian Lawrence (NAPO)
Representing the Probation Service, also under attack by Grayling,

6 Paddy Hill

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Paddy reminded us what is at stake. “There will be many more miscarriages of Justice like the Birmingham 6 if legal aid is cut to this level.” An article about Paddy’s speech, with a clip in which he brands the MOJ the “Ministry of Injustice” is here.

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7 Sir Anthony Hooper
Retired Court of Appeal Judge, Sir Anthony reminded us  eloquently:-“For some 60 years everyone has had the right to equal access to Justice. This Government is destroying that right”
8 Francis Neckles
Francis was rightly acquitted at trial, preserving his good character, thanks to good representation by his Legal Aid lawyer. “Chris Grayling says he can’t afford to fund legal aid- Francis Neckles says we can’t afford NOT to
9 Shami Chakrabarti

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Representing Liberty, Chakrabarti made a powerful speech linking Legal Aid with freedom.

10 Dave Rowntree
Dave is drummer with Blur and was also a solicitor with Kingsley Napley.
He spoke about the Magna Carta, which was signed 800 years ago next year, and clause 40 – “To no one will we sell, to no one deny or delay right or justice.”
11 Nigel Lithman QC
Representing the CBA, he had been invited to speak to demonstrate the unity between bar and solicitors in fighting the cuts. Three weeks later, Lithman struck a “deal ” with the MoJ, having met them secretly and without solicitors representatives being consulted. He was subsequently been appointed a Circuit  Judge. Relations between the criminal bar and solicitors reached an all-time low point following Lithman’s actions, but have improved enormously under subsequent and present CBA leadership.
12 Janis Sharp
Janis is Mum to Gary McKinnon, and led a courageous (and ultimately successful) fight against his extradition. She knows the value of legal aid, and  can be seen in the YouTube film below (incorrectly subtitled as Janis McKinnon- apologies Janis)
13 Bill Waddington
Bill was chair of CLSA, and after a two year gap is back as chair, continuing the fight.
14 Noela Claye
Speaking with the support of the charity Women against Rape WAR, Noela brought a victims perspective, and showed that ultimately this demo was not just about fees or careers, it was also about victims, clients, and justice.
Noela spoke on camera in the short film of the start of the demo (link below)

Hanna Evans
Hanna was a new tenant and rising star at 23 Essex St. Chambers. Read more (and hear her speech) at #Just4Justice demo here.
15 Sadiq Khan
A former lawyer in a legal aid practice,  Labour MP and shadow Lord Chancellor (as he then was) said he opposed Grayling’s cuts. When asked  to give an unequivocal commitment to reverse them if in office however he declined. In the run-up to the election campaign, he  combined his portfolio responsibility with the role of Labour lead for attacking the Green Party (who had made a commitment  to restore legal aid funding) and left the justice portfolio in favour of visits to Brighton rallying the Labour troops in an unsuccessful attempt to unseat Green MP Caroline Lucas. After the election, he successfully campaigned for London Mayor.
16 Matt Foot
Matt, one of the founder members of the Justice alliance summed up the rally, before leading a march to the Ministry of (In)Justice.

NOTES

Short summary of the event by film-maker Ed Stradling with speaker clips here on Youtube

Another short film of the start of the demo here (Thanks to Matt Tiller)

Excellent commentary and photos of “Grayling Day” here (courtesy of Legal Aid Watch)

Photos of demo, all speakers, thanks to Luca Nieve, here