Category Archives: Law

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)

Duty Solicitors Unite-don’t break the link! Guest Blog by Bev Hockley

Introduction by Greg Foxsmith

Criminal Legal Aid Lawyers of certain experience can apply to become duty solicitors.

Duty Solicitors can represent people needing legal advice in criminal courts who have not instructed their own solicitors, and do so in rotation via a published rota administered via the Legal Aid Authority.

The scheme was devised to provide solicitors for clients, not clients for solicitors, but in recent years the rotas became overloaded with providers, many of whom were not actually representing clients, but allowing their slots to be covered by others (sometimes for remuneration). These non-attendees have become known as “ghosts.”

The MoJ and LAA will soon be considering how to allocate duty “slots” when the new rotas are published, and how to tackle ghosts.

In this blog freelance solicitor Bev Hockley says what she thinks about long -standing proposals by the “Big Firms Group*” to “break the link” between duty solicitors and the slots allocated to them on the duty rotas. (This proposal would mean that duty slots are allocated not to solicitors, but in blocks to firms.) The following is her answer:-

Ghosts’ have flourished in plain sight as named Duty Solicitors on rotas for years.

‘Breaking the link’ by replacing Duty Solicitors slots in firms names will only serve to perpetuate this problem by providing ‘Ghosts’ with additional protection from detection.

We have successfully challenged the implementation of Contracting Duty Solicitor work by asserting it would drive down the quality of fundamental front line services at the police station and magistrates court.

‘Breaking the link’ would rapidly evaporate this achievement and facilitate every ambition the Contracting proposals set out to accomplish.

The prestige of PIN numbers would become meaningless.

Every firm would have the tempting opportunity to replace highly experienced DS, employees and consultants alike, with inexperienced bargain-basement representation.

The provision of quality services can only be preserved by maintaining the link between named and appointed DS on rotas.

For those representing the profession in current crucial post Contract negotiations, the last bastion of guardianship must be to protect this link with the same tenacity which defeated the ill-fated Contracting proposals.

Postscript

Keeping the link is important to all duty solicitors, not just freelancers! Solicitors in London who want to contribute to the debate should consider joining the LCCSA, a representative body with a democratically elected committee. In addition, Freelancers may want to attend a meeting for Freelance Solicitors at the Queens Head in Kings Cross on Monday 15th February at 6pm, or contact Theresa Hendrickx by texting 07949243949 for more information on the Freelancers Association mailing list.

Bev Hockley, 12/02/2016

Bev Hockey trained at Hickman and Rose and has represented clients both as an employee and consultant at the police station and magistrate’s court for nearly 20 years. Bev is currently a consultant with Edward Fail Bradshaw and Waterson

Don’t break the chain!

* The Big Firms Group” (or BFG) is an unelected body set up to represent the interests of “big firms” with a Criminal Legal Aid contract. There has been a doubt for some time as to whether they are a unified body and who exactly they speak for. It may only be a small number of firms with other firms historically under the BFG umbrella not wholly in support of recent positions. However, what is clear is that spokespeople for the BFG lobbied the MoJ in support of consolidation (and were supporters of the disastrous “two-tier” contracting) and appear to still be recognised as a “representative body” by the MoJ, despite apparently having no clear mandate or constitution.

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.

Community Advice at Highbury Corner Magistrates Court

Community Advice offered in Court

A new court-based Advice Service at Highbury Court is most welcome!

See also this blog by Joanne Thomas

The Magistrates Court is not somewhere people associate with receiving advice, other than the occasional finger-wagging lecture from a Justice of the Peace, usually warning of the consequences of not complying with their instructions. Yet the vast majority of people who pass through their doors are clearly in need of advice and help in tackling the kinds of problem that brought them to Court in the first place.

Homelessness, mental health, unemployment, poverty, debt, alcoholism, drug addiction, illiteracy, overcrowded accomodation, domestic violence, the Courts often see some of the poorest and most vulnerable members of our society.

Of course the Probation service can sometimes help, but are suffering from funding restraints as well as outsourcing, and Community Orders are increasingly targetted at punishment rather than rehabilitaion.

Often solicitors defending at these Courts try to plug the gap in the lack of advice available, but apart from constraints on time and money have to be careful not to blur the professional boundary between lawyer and client, as well as acknowledging that we are not trained counsellors or social workers, lacking the resources and knowledge to advice on the areas that need addressing outside the immediacy of legal representation. Often lawyers do not even know where to direct clients who need help in other areas.

All this has changed with this exciting project at Highbury Corner Magistrates Court.From January of this year, the project has been offering help and advice from a small room accessed from the same waiting area as the Courtrooms on the first floor. And as there is plenty of waiting at Court, there is time for the people who desperately need help and advice to talk about their problems and receive practical help and guidance.

Last week I popped in to see how they were getting on. I was impressed by the set-up and those running it, but more so by the verifiable results they could demonstrate, and the numerous cases they could describe showing practical examples of problem-solving for clients.

The community Advice is run by Royal Courts of Justice Advice Bureau incorporating Islington Citizens Advice. It follows a longer running pilot project in Plymouth. Since opening they have helped hundreds of court users with issues such as homelessness, debts, housing, family, mental health, benefits, alcohol and drug related issues.

I met Jess, a volunteer (working there one day a week) and Ross, the co-ordinator for the project who told me:-

“We work with people who are using the court and their families to give advice and help them to find out about and access support services in the community. We also provide immediate help with practical issues and offer emotional support. We are independent of the judicial process. We operate independently from other agencies in the court. The service is delivered primarily by a team of 10 volunteers and one paid staff (co-ordinator) and focuses mainly on those who are not working with probation, though we are open to all” .

Ross provided numerous case studies. I attach an edited version of one below.

I later spoke to Joanne Thomas from the Centre for Justice Innovation who proudly told me the Advice Service at Highbury was “doing an incedible job”. Joanne has previously written about the project here.

Conclusion

For too long the criminal justice system has been used to punish criminal acts, without addressing the causes of crime, even where the perpetrators are crying out for help. Judges, like lawyers, are not social workers, and have to uphold the law. But if we are to avoid the “revolving door” syndrome, and break the cycle of recidivism, then taking an opportunity to tackle root causes with practical help, is not only humane and just, it is likely to prove a cost-effective way to reduce crime

Case Study

Paul (not his real name) was 35 years old and homeless when he attended court because of drug offences. He had a large number of previous convictions and his relationship had broken down. He was suffering severe financial hardship, receiving no income and owing money to a number of people on top of the court fines he had just received. He was also suffering from drug and alcohol dependence that was affecting his mental health. In addition, he had lost his birth certificate and wanted help to apply for a CSCS card.

Paul was empowered to make his own decisions about what to do, assisted in applying for jobseekers allowance, and referred him to a number of services for his mental health, drug and alcohol use and homelessness. He was also guided on applying for his CSCS card and birth certificate as well as helped to access support for his debts.

There were Follow up appointments. He is now in receipt of jobseekers allowance and is managing to pay his priority debt (his court fines) as well as sorting out his other debts. He has received his CSCS card and is looking for work in construction, and has received his birth certificate. He is also receiving counselling for his mental health.

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

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

Pledge For Justice

The following pledge can be signed by any PPC in the 2016 Election if they care about Justice and support Legal Aid

LEGAL AID PLEDGE For a just and fair society

The most recent You-Gov poll on access to justice found that 84% of people said legal aid and a fair trial were fundamental rights. I agree!

If elected as an MP I pledge that :-

1. I will seek to ensure that the principle of access to justice for all will be upheld and protected

2. I will ensure that the integrity of an independent justice system is maintained and promoted

3. I will not support any further cuts to the legal aid budget in the next Parliament

4. I will support a review of access to justice within the first year of a new parliament to consider the effect of cumulative cuts and changes to legal aid funding.

Signed:-

Name:-

Constituency

Notes

1 The Vote For Justice campaign was first organised by the LCCSA, for the 2015 election, and backed by Justice Campaigners and Legal Aid Supporters. It is non-Party Political, but campaigners will actively promote candidates of any party who sign (for example in Haringey at the last election, we supported Catherine West who signed the pledge, unseating incumbent Lynne Featherstone who did not)

2 See Here for covering letter inviting PPCs to sign the Justice Pledge.

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