Red Pepper » Law

Caught in the dragnet

admin — Thu, 24 May 2012 18:46:55 +0000

Detective Chief Inspector John McFarlane recently cited the ‘joint enterprise’ rule as a ‘deterrent’ to young people who ‘think they will not be prosecuted or go to prison just because they did not deliver the fatal blow’. This arcane legal doctrine effectively means that anyone who agrees to commit a crime with another becomes liable for everything that person does during the offence.
McFarlane was talking about the case of Zac Olumegbon. At the end of last year, the Old Bailey heard that within moments of being chased down by teenagers, Zac – just 15 years old – lay dying on his back in the garden of a house within yards of his school in West Norwood, south London. His killers, thought to be members of the GAS (Guns and Shanks) gang, were given long periods of detention for his killing. Zac was associated with another gang, TN1 (Trust No One).
According to McFarlane, ‘The law on “joint enterprise” is clear and unforgiving – if you are with the knifeman in a murder case you too could be found guilty and sent to prison.’
‘Unforgiving’, yes, but it appears to be anything but ‘clear’. There is growing concern at the way the notion of ‘joint enterprise’ is being deployed by prosecuting authorities and the courts – and it’s not just being used against gangs. Other targets have included, for example, anti-tax avoidance protesters from UK Uncut at a demo at Fortnum & Mason. Ten defendants have already been given six-month conditional discharges and ordered to pay £1,000 court costs after being found guilty of intent to intimidate staff and shoppers. The court held that the 10 were involved in a ‘joint enterprise’ and responsible for the actions of others in the store by their presence. The cases of a further 19 were due to be heard as Red Pepper went to press.
Not innocent but not murderers
Earlier this year, the justice select committee found joint enterprise ‘so confusing’ that it said legislation was necessary to ensure justice for both victims and defendants and to stop so many cases reaching the Court of Appeal.
The Prison Reform Trust, in its evidence to the committee, memorably damned ‘joint enterprise’ as serving as ‘a dragnet’ to bring individuals into the criminal justice system who ‘do not necessarily need to be there’. The Committee on the Reform of Joint Enterprise – a group comprising lawyers, academics and ‘otherwise concerned individuals and groups’ – told MPs that joint enterprise convictions resulted in ‘the labelling of individuals who – albeit not entirely innocent – cannot properly be called “murderers”.’
Gloria Morrison is active in the campaigning group JENGbA (Joint Enterprise Not Guilty by Association). She became involved as a result of the experience of her son’s best friend. Six years ago Kenneth Alexander was given a life sentence following a fatal stabbing. As a recent BBC Panorama programme examining the case put it, it was ‘Alexander’s role in ringing friends to call in reinforcements for a possible confrontation that provided the prosecution with his “joint enterprise”. That he knew some of his mates carried knives, even though he never did, was also a factor in his conviction.’
What about the deterrent effect? Surely such convictions send out a strong message to young people getting involved in gangs and carrying knives? ‘We are not talking about gangs,’ Morrison says. ‘We are talking about groups of young people who are together. The idea that this is to tackle gangs is a misunderstanding. This law is not working.’
As part of London against Injustice, Morrison put an advertisement in the prisoners’ newspaper Inside Time calling for prisoners convicted under joint enterprise to attend a meeting. She describes the response as ‘overwhelming’. ‘Some 275 prisoners have contacted us. We believe it is the tip of an iceberg.’
Of those 275 cases, at least 152 are from black and minority ethnic communities. ‘Overwhelmingly, our prisoners come from poor neighbourhoods and because of cuts to legal aid they have often been failed by poor legal representation,’ says Morrison. ‘We have people with absolutely no involvement with a crime – none – doing a life sentence.’
Joint Enterprise Not Guilty by Association: www.jointenterprise.co and blog at jengba.blogspot.co.uk

Right to speak: whistleblowers and the law

admin — Tue, 06 Dec 2011 18:51:10 +0000

‘Everyone knew,’ a veteran News of the World reporter told the New York Times in September 2010. ‘The office cat knew.’
There will, I suspect, be little sympathy out there for former NoW journalists. But at least one exception should be made for Sean Hoare, the former showbiz reporter and the first staffer to allege that Andy Coulson knew all about phone hacking. He was dismissed, supposedly because of his drink and drugs problems (previously part of the job description), and earlier this year found dead at his Watford home. We’re still not sure how he died.
Hoare told the New York Times about his own role in practising what the US paper termed ‘the dark arts’ (including hacking into the messages of celebrities like David and Victoria Beckham) because it was ‘unfair for the paper to pin the blame solely’ on the paper’s royal correspondent Clive Goodman.
One question screams out following the phone hacking scandal: why didn’t anyone other than brave Sean Hoare blow the whistle? Normally it is impossible to keep a journalist with a good story quiet and it’s hard to think of a more compelling one than this one. The determined complicity of reporters (many of them not practitioners of the dark arts) speaks volumes about the corporate culture of fear that pervaded at Wapping.
James Murdoch, in his address to NoW workers, said: ‘Wrongdoers turned a good newsroom bad and this was not fully understood or adequately pursued.’ His comment missed the point. As Shonali Routray of Public Concern at Work (PCAW) argued recently, it is the workplace culture that is to blame for encouraging staff to turn a blind eye. ‘What may mark the NoW staff apart from the staff working in companies where there were massive corporate collapses, such as Enron, WorldCom and Lehmans, is that they are working in the media.’
In the UK, the Public Interest Disclosure Act 1998 is supposed to safeguard the rights of whistleblowers. That legislation was introduced in response to disasters such as the Zeebrugge ferry sinking, the Piper Alpha oil rig blaze and the Clapham rail crash. According to PCAW, almost one in five calls to its helpline relate to workplace safety. Over the past decade employment tribunal claims relying on the 1998 Act have increased from 157 cases in its first year of operation to 1,761 cases in 2009 but some seven out of 10 are settled or withdrawn.
Workers contemplating blowing the whistle are understandably fearful of retaliation – and have to use internal procedures and disclose to their bosses first anyway. Earlier this year an inquiry found that Sharmila Chowdhury, a radiology manager at a London hospital, was unfairly sacked after alleging that her colleagues were wrongly claiming thousands of pounds of public money every month (an allegation that the doctors and hospital trust deny). According to a report in the Independent, Chowdhury, with a 27-year NHS career behind her, was ‘marched off the premises’ following an ‘unfounded counter-allegation of fraud made against her by a junior whom she had reported for breaching patient-safety procedures’.
In another case, the consultant paediatrician Dr Kim Holt repeatedly raised safety concerns with her Great Ormond Street managers following her experiences at a Haringey clinic where the abused toddler Peter Connelly, Baby P, was seen days before he died suffering more than 50 injuries. Dr Holt and her supporters insist that she has been put on ‘special leave’ since 2007 as punishment.
Then there was the nurse Margaret Haywood, struck off for going undercover to secretly film neglect of elderly patients at the Royal Sussex County Hospital in Brighton for BBC’s Panorama.
Confidentiality clauses in employment contracts militate to undermine legal rights (even if ‘gagging’ clauses in settlement agreements are unlawful). Shockingly, a joint investigation by the Bureau of Investigative Journalism and Channel 4 News last year revealed that at least 170 doctors in England and Wales signed settlement, or compromise, agreements with their trusts, and of 64 contracts reviewed some 55 (90 per cent) featured gagging clauses.
This shows that, if whistleblowers are sometimes crucial for the protection of public interests, the legal right to speak out must be actively defended.

After the anger: how do we respond to the riots?

admin — Fri, 14 Oct 2011 19:10:09 +0000

Whose voices were we hearing in the recent riots?
Let’s make a distinction between the spark that set the riots off and the fuel that made that spark into a fire and then a bonfire.
There’s a petrol-on-the-road environment in the UK, caused by years of police harassment and brutality against what the government would term the ‘underclass’, what I would say are the socially excluded.
The police have often acted as if they are above the law and a number of high profile cases have highlighted this fact, the shooting of Mark Duggan being the most recent. There is a growing sense that there is no justice for the socially excluded, particularly when it comes to police brutality.
I remember seeing an interview on YouTube with a couple of rioters. One of them said, ‘I’ve been waiting years for this because I need to fight back.’
The fuel is what then piled on top of that spark and allowed it to burn. This comes from generations of poverty, hopelessness, and the daily numbness of long-term unemployment. People with lots of good ideas but no way to action them.
I can see how easy it would be to be drawn into an environment where hustling and looting seems like a viable option. I believe in principled nonviolence, but along the way, if my mate had got shot by the police and I felt that there was no justice, I would have thought it a good idea to burn a police car rather than go through a fruitless accountability process.
I am older and wiser now. I am not judging though – I wouldn’t dare do that, because when I was 16 I was angry too and I didn’t have the head that I have now.
I would like to see a shift to nonviolent strategies – for example, mass blockading. We must use collective security and nonviolence as our guiding principles and leave the violence to the police and film them when they do it. The power of numbers becomes more effective with nonviolence because even your nan could support that!
How similar or different are these riots to those on Luton’s Marsh Farm estate in the 1990s?
The spark at Marsh Farm was a few years of constant aggro between the kids and the police, which led to an explosion over a particular incident of police brutality. About 50 kids responded by burning two cars.
I went down to the front of the estate and asked them what was going on. I told them to go as the police would be here soon. They said, ‘Mate, that’s what we want!’
So the spark was the same. The difference is that it has got a lot worse today, because the gap between the haves and the have‑nots has widened.
How do we respond to the riots?
The decent thing to do is to listen: to take these voices seriously instead of using weapons of mass distraction, which is what the mainstream media has been doing. They want to distract from the root cause – they want to say, ‘This isn’t a voice from the voiceless, this is just pure criminality.’ We can’t let this voice be suppressed again because when it comes back next time it will come back even louder. This suppression will also amplify the feeling of no justice.
Look at the convictions. One which stood out for me was Steven Craven from Salford. He got 12 months in jail because he had bought a TV that someone had looted in the riots. His local MP Hazel Blears used £1,700 of taxpayers’ money to buy two massive TVs – and nothing has happened to her. The hypocrisy is stunning.
We must identify and empathise with those people who feel that there is no justice.
Can you describe what you’ve collectively achieved through this approach?
From 1995 onwards we proved that youth diversion works better than police oppression. We stopped the Marsh Farm riot by putting on a dance just outside Luton. We wanted to divert the energy and say, c’mon, let’s dance, then let’s talk, and then let’s build.
On Marsh Farm we’ve been baking a loaf – and we’ve managed to secure the dough for it. We have one of the biggest community-owned centres in the country, called Futures House, right in the heart of our estate, running as a social enterprise. Any revenue it generates will go back into the community rather than into someone’s pocket.
The yeast to that loaf is the people elements of it, achieved through participatory democracy and hands-on community governance.
There was a motocross club formed, engaging kids who were on ASBOs. They democratically drew up their own set of rules and codes of conduct. There was a written accord that anti-social behaviour outside the club would result in a self-suspension.
That approach not only prevented some of that anti-social behaviour but gave responsibility to the kids. It was so successful in diverting these kids away from the destructive stuff. This cost just £5,000 of government funding.
If you compare it to the costs associated with the penal route, it is far more cost effective and beneficial.
How would you sum up the lessons of what you have done with Marsh Farm Futures House?
We have faced an amazing array of technical, legal, bureaucratic and cultural obstacles, not to mention powerful vested interests. You’ve got the top-down culture that believes that we are here to be tended to. Ministers and officials talk about ‘capacity building’ as if it’s something they can do for us. I call it ‘capacity releasing’ because it’s in us already. We just need the right environment and freedoms.
Our approach takes the money and gives it directly to the community, giving people the skills they need. You learn by doing.
If you’re cutting grass, go cut some grass – let’s not have another seminar about it where someone is being paid £600 a day to tell me about time management and all the rest of the training modules they waste money on. This is also a powerful way to challenge the dependency mindset that goes along with it.
What kind of relationship with the government would you ideally want?
If I could pass a single law that I would think would make a difference it would be this: ‘If thou can produce locally, thou must produce locally.’ This ‘big is beautiful’ culture needs to be radically overhauled.
In the war there was the campaign to Dig for Victory, where everybody was given the means to grow vegetables. We need something similar: localise for victory, localise for survival, small is beautiful.
This will lead to conflicts with monopolies in the private sector. The government needs to take sides and say sorry to the big providers in favour of local production. I can’t see any government having the courage to confront these issues, though, so it needs to be fought for from the grassroots.
I want the government to free up the resources in a way that’s transparent and in local hands. We need a government that will sit down with us, look at the way this could be done safely and properly, and then step back to let it grow.

Legal looting: the Swiss banks deal

admin — Thu, 13 Oct 2011 19:33:12 +0000

No one knows quite how much money is hidden in tax havens, but there is good reason to think that one third or more of the world’s dirty money is in Switzerland. This includes at least £125 billion of UK money. In the past few years the European Union and the UK have made real progress in getting access to data on funds held there, both officially through the EU savings tax directive and unofficially through stolen data. The US has made so much progress in similar ways that it was widely thought by the beginning of 2010 that Swiss banking secrecy – the deliberate construct designed by the Swiss to help people evade the taxes they owe in their home states – might at last be broken for good.
But then the Swiss fought back. In 2010 the powerful Swiss Bankers’ Association suggested a deal that would undermine the EU and US initiatives. Their gall was extraordinary. The offer was that they would act as tax collectors for other countries in exchange for anonymity on behalf of their customers. In other words, they’d pay some cash now in exchange for keeping banking secrecy.
At first the world looked on, bemused by such an offer from those who had to date put all their effort into aiding tax evasion. But two countries bit the offered cherry. One was Germany – although it looks highly unlikely that its deal with Switzerland will get parliamentary approval. That leaves the UK alone as a likely participant in the arrangement.
The upfront advantage of the deal is easy to see. The Swiss bankers, in effect admitting that they know which of their clients have evaded tax, have agreed to pay over between 19 and 34 per cent of the balances on those accounts to supposedly clear past tax liabilities. From 2013, moreover, they have agreed to deduct tax at rates of up to 48 per cent from interest, dividends and capital gains paid into these accounts where the taxpayer refuses to allow them to disclose details of the income in question to HM Revenue and Customs.
The advantage for George Osborne may be a few billion now, but the implications are disastrous. The clear message that this deal sends out is that criminality pays. Tax evasion is a criminal act. So is facilitating it. And yet this deal guarantees that the UK will not now prosecute those Swiss bankers who facilitated the crime – which must be good news for Tory trade minister Lord Green, who was formerly both chairman of HSBC and its Swiss private bank.
More than that, the deal guarantees the Swiss that the UK will no longer buy data stolen from their banks that provides the names and addresses of those committing this crime, so guaranteeing them anonymity. And the UK has also agreed that it will never investigate more than 500 cases a year of UK citizens evading tax through Switzerland – even though it is known that tens of thousands are likely to have done so – which puts an effective limit on the operation of justice in the UK to appease Swiss bankers who facilitated criminal behaviour.
As for the UK-based people who committed these crimes, the deal guarantees them anonymity for good – and therefore immunity from prosecution even though it is clear from the amount of money that will now be paid that their crimes involved enormous sums. Indeed, I have estimated that the tax that should be paid if all was settled with the normal levels of interest and penalties would be around £25 billion – at least five times what Osborne is likely to get from the deal.
The result is that many tax criminals will pay no more than 20 per cent of the tax and penalties they owe to have their affairs ‘regularised’ – the quaint way this deal terms the arrangement of whitewashing their calculated long-term criminality.
Compare that with the treatment of this summer’s rioters. I don’t excuse criminality, but these acts were by young people, caught in the spur of the moment who in most cases no doubt acted in ways they might subsequently have regretted. Their acts are not being forgiven. Their moments of folly are being exceptionally harshly punished when the hardened tax criminals are being forgiven.
No wonder Osborne and his party have been coy about this news. Because for a party of supposed law and order the Swiss tax deal reveals the truth: the Tories still believe that there should be one law for the rich and another for the poor, and that only the little people need pay tax.

Salford riots: ‘We need to show a better way’

admin — Thu, 13 Oct 2011 19:17:02 +0000

A lot of people are still nervous in Salford. And angry. Some older residents who live in the tower blocks and tightly-packed terraces surrounding Salford Precinct, where the riots finally flared after three nights of national unrest, remain frightened of collecting their pensions from the shops.
Four weeks on from the riots, a community committee meeting at the nearby Emmanuel church opens up its speakers’ panel of ‘service providers’ – police, the council and so on – to questions from the floor. Up for discussion is the extension of a dispersal order enabling police to break up groups of more than two youths if thought to be anti-social and the creation for ten weeks of a football space near the precinct.
Some in attendance are not happy. For one thing, the zone covered by the dispersal order does not go far enough for their liking. ‘We had hundreds running riot through the streets, not even wearing balaclavas,’ says one woman.
Operational practicalities won’t allow it, replies the man from Greater Manchester Police, explaining that ‘the problem with expanding a dispersal area is: where do you stop? Usually you’re against the order,’ he adds. ‘Now you want us to extend it.’
One panel member praises how effectively different public agencies have worked together in the aftermath of the riots, and wins unanimous applause from the room. But after the meeting some criticise the reliance on ad hoc remedies to cure public ills. ‘We don’t need ten-week projects for the youths. We’ve had them for years. What we need in Salford is continuity of services,’ says Anne Cosgrave, former chair of the Nursery Street Tenants and Residents Association.
Her point is echoed by a member of Salford’s youth service. ‘When you’re working with young people . . . it takes time to build up that relationship of trust.’ Funding for longer-term provision is increasingly thin on the ground and decisions over where to place it are often dictated by the council hierarchy.
Salford’s neighbourhood forums provide one of the few mechanisms through which communities may set their own priorities. The forums allow residents to allocate small pots of funding through devolved budgets – though despite the government’s talk of ‘local empowerment’ much of their funding has been axed. Through them communities can take some small steps to deal collectively with issues such as directing provision for their young as an alternative to punitive measures.
The youth service worker notes how, prior to the riots, in one inner-city community ‘the residents . . . decided that they didn’t want a dispersal order. That said a lot to me about how they felt about their young people – it is quite a close community in that particular area.’
The forums’ inclusive nature should not be overstated. Divisions between young and old remain and few under the age of 20 attend their meetings. Thirty per cent of young people are out of work in Manchester and Salford, and troubling divides within communities can result. ‘When there isn’t work you don’t get crossover with young people and adults,’ explains the youth service worker. ‘If they have no inter-generational relationships, then that’s a problem. We need to be doing things where older and younger people are meeting together.’
Working class communities have come under extraordinary stresses over the past 30 years. Alan Turner, a youth worker who works with young offenders in Manchester, points out how ‘you see some great examples’ of communal action to improve areas, such as the creation of community gardens in streets protected by alley gates. But too often ‘it fades out once the money isn’t there. Residents are meant to run it themselves but it’s trying to mend the bits of society that have been smashed to smithereens.’
Worries about gaining a criminal record can seem remote for those who never expect to have a job. Turner says the people who participated in the riots ‘didn’t think of the consequences for themselves because they don’t see a future life. It’s not just services that have been taken away, but aspiration.’
Though few could ‘articulate why they got involved if asked off the cuff’, Turner cautions against denouncing their motives as ‘mindless criminality’, pointing out that what may seem like careless nihilism is often a survival mechanism. ‘Some are in criminal life and gangs, and they went to show they’re not afraid to other gangs. Some were inquisitive, and went to see what was going on and got sucked in. We need to show a better way.’

Ritz justice

admin — Tue, 13 Sep 2011 21:47:23 +0000

‘Access to justice is the hallmark of a civil society,’ the coalition government tells us in its recent green paper on legal aid. It is an assertion that is rendered immediately meaningless by the subsequent Legal Aid, Sentencing and Punishment of Offenders Bill, published in June. If the legislation goes through in its proposed form, it will represent a wrecking ball released in the direction of the system of publicly funded law that was conceived of as an essential pillar of our welfare state more than 60 years ago.
The government wants to scrap publicly funded advice for what’s known as social welfare law – that’s advice on debt, benefits, employment, family (unless it involves domestic violence) and housing advice (unless someone is left homeless). It’s a shocking attack on the poor and vulnerable.
In the run up to the publication of the bill, there has been the usual run of scare stories about legal aid paying for billionaire business tycoons such as Asil Nadir, or those deemed to be unworthy of legal aid such as squatters. Yes, there are inefficiencies in the system and there might even be some excess – but it is a massively unfair caricature to suggest it doesn’t reach the most marginalised in our society.
A recent study from the Legal Services Research Centre drew on 831 interviews of people at Leicester, Hull, Gateshead, Derby and Portsmouth community legal advice centres, which are mainly funded through the legal aid budget and local authority money. The study showed a grim representation of a desperately vulnerable sector of our society. Almost one third claimed to have a serious illness; more than four out of 10 suffered stress, depression or mental health problems; almost a third had no academic qualifications; and most had household incomes of under £15,000.
Roger Smith, director of the human rights group Justice, called the proposals ‘the economic cleansing of the civil courts … Courts and lawyers will be only for the rich. The poor will make do as best they can with no legal aid and cheap, privatised mediation. There will be no equal justice for all – only those with money.’ He’s right.
The lack of understanding of ministers as to the role of access to justice in our society is shocking. To take but one example, the justice ministry appears to be proposing scrapping the automatic right to legal representation for suspects detained in police stations. If you are banged up today you are automatically entitled to free advice from a solicitor paid courtesy of the legal aid scheme.
It was PACE, or the Police and Criminal Evidence Act 1984, that introduced the universal right to representation by a solicitor at a police station. That landmark legislation was introduced as a result of bitter lessons being learnt from a succession of miscarriages of justice in the 1970s and 1980s where suspects weren’t given advice in the police station.
The right to legal advice in a police station is a fundamental cornerstone of our criminal justice system. Ministers didn’t even consult on scrapping it. The government’s plan is to means test suspects before they qualify for public funds. A civil servant will decide whether you can afford your own lawyer.
Most experts think the government will drop the proposal on two grounds. First, it is totally impractical to means test someone at 4am, especially if they are exhausted, drunk or off their head on drugs as some will inevitably be (unless of course they have brought in their wage slips, proof of welfare benefits entitlement and so on). And second, it is probably against the law.
Only last October the supreme court ruled that Scotland could no longer get away with not having a statutory right for legal advice at police stations. The EU has just published a directive on the right to legal advice and representation at police stations (the French bolstered their right to legal advice in custody last year).
‘In England, justice is open to all – like the Ritz,’ quipped the supreme court justice, Lady Hale. Courts are and should be a last resort, she said, ‘but they should be a last resort which is accessible to all, rich and poor alike.’ Justice is a right, not a privilege.

Justice as rough as ever

admin — Mon, 18 Jul 2011 05:16:27 +0000

Some 18 months ago, a man walked into the office of Birmingham-based lawyer Maslen Merchant. He had just pleaded guilty to a serious sexual offence against a child. ‘He told me that he wasn’t guilty but had been bullied into pleading guilty by his lawyers,’ says Maslen. Apparently, the man was told that if he was convicted he would get life (‘the same sentence you get for murder’). Petrified, he agreed to go with the lesser offence.
‘It took me about five minutes to have serious concerns that he had a learning disability. His difficulty with speech was a clue,’ Maslen recalls, adding that the ‘real clincher’ was that the man ‘took three attempts to sign his own name’.
That man has since been acquitted after a new defence team led by Maslen commissioned reports from a psychologist and psychiatrist placing him in the bottom 0.3 per cent of the population in terms of IQ, indicating that he was both highly suggestible and suffering a severe learning disability.
It has been two decades since the release of the Birmingham Six – Paddy Hill, Hugh Callaghan, Richard McIlkenny, Gerry Hunter, Billy Power and Johnny Walker – sent shockwaves through the criminal justice landscape. They had been in prison for 16 years.
Their release eventually led to the creation of the Criminal Cases Review Commission (CCRC) 13 years ago as the independent body to investigate miscarriages of justice. Since then, though, such miscarriages seem to have dropped off the radar. The issue has been consigned to some distant Life on Mars past.
The media, which did so much spadework on the issue in the 1970s and 1980s, through, for example, the BBC’s Rough Justice, has given up. The broadcaster pulled the plug on Rough Justice after 25 years in 2007. Michael Jackson, chief executive of Channel 4, dismissed Trial and Error, which also investigated miscarriages, as a ‘bit 1980s’.
Sadly, while miscarriages of justice might have gone out of fashion, they haven’t gone away. The CCRC is deluged by close to 1,000 new applications every year, and rejects 96 per cent. There is growing disquiet about its lack of action (see Red Pepper, Feb/Mar 2010).
Maslen reckons many miscarriages of justice are down to shoddy work done by defence lawyers struggling under the commercial realities of running a high-volume business on a diminishing legal aid budget.
He wonders what the lawyers who advised his client with learning disabilities were playing at. ‘How couldn’t they see he was vulnerable? Why put him under such pressure? Why even mention murder?’ The answer, according to the lawyer, is that putting in the extra work – for example, obtaining medical reports – was such an inconvenience that it was simply not cost-effective. ‘This was a business decision. It was a gross miscarriage of justice.’
Meanwhile, Gareth Peirce, the veteran campaigning lawyer who represented the Birmingham Six, talks of the creation of ‘a new suspect community’ of young Muslims.
That view chimes with the experience of Maslen, who has specialised in miscarriages of justice for 20 years. ‘In the 1970s it almost became an arrestable offence to be Irish in a city centre in England. In the 1980s and 1990s people were arrested for being black in a built up area. Since 9/11 it seems that sufficient suspicion is raised for an arrest if you have a beard and appear to be Muslim.’
Against this backdrop there is growing concern about the CCRC. Veteran campaigning journalist Bob Woffinden has gone so far as to damn the commission as ‘an experiment that failed’. He reckons the CCRC can only take credit for taking seven ‘major cases’ to appeal since 2005. He argues that many notorious cases are left to languish.
The commission has been spared the ‘bonfire of the quangos’, though it faces cuts, but Woffinden argues it exists only to serve as a ‘fig leaf’ for the system. That’s a minority view, though. The CCRC needs to be ‘supported and expanded’, argues Michael Mansfield QC, who has been associated with the overturning of numerous notorious cases from the Birmingham Six to Barry George.
Mansfield urges its critics not to play into the hands of those who would see it consigned to history. ‘There is a strong reactionary lobby that should not be underestimated,’ he says, ‘which embraces the doctrine “prison works” and regards prisoners as almost sub-human, meriting few facilities and, heaven forbid, the right to vote.’

Big Society brings little aid

admin — Sun, 22 May 2011 19:00:30 +0000

Bolton Citizens Advice Bureau is on the frontline of the credit crunch. During the past year, its advisers helped 14,000 people. It is one of the larger in the network of 394 bureaux, which last year advised 2.1 million people nationwide.

A sense of their diversity can be obtained from one random day in January, when 63 people were advised at Bolton. According to the notes made by advisers, they included: a family with two children under the age of four years old who lost their benefits (‘haven’t been able to afford to feed themselves’); a 24-year-old father of two, refused paternity leave and threatened with the sack after his partner suffered a stillbirth with no one to look after the children (partner is ‘currently unable to do so due to pregnancy-related health problems’); an asylum seeker with two children (‘no food and nowhere for her or her children to sleep’); and a young mum, 21 weeks pregnant, who, with her partner, was struggling to pay bills and was ‘very concerned about the baby’s health. Is there anything else they can claim or do?’

Citizens Advice runs on a volunteer army. Of its 28,500 workers, 21,500 are volunteers. It is ‘an absolutely vital part of the “big society”’, David Cameron has said. Yet his government’s proposals will ‘decimate’ Bolton CAB, reckons chief executive Barry Lyons. According to Citizens Advice, more than half of the bureaux it surveyed reckon that the government’s plans ‘pose a real risk’ to their continued operation.

Bolton is an illustration of what’s happening. Two-thirds of its income comes from legal aid. Ministers look determined to slash the £2.1 billion legal aid scheme by £350 million. They are currently consulting on their green paper. Many of the cuts (£279 million) are directed at civil and family advice. This represents a 50 per cent cut in civil legal aid services to the public. And it’s not just legal aid funding that Bolton CAB stands to lose. It has been told to expect a significant cut in its local authority funding (another 15 per cent of its income).

Two-thirds of Bolton CAB’s clients are there because they have debt or welfare benefits problems. Ministers want such cases to be removed from legal aid, dismissing them as ‘generally not of sufficiently high importance to warrant funding’. That shows a shocking disregard for legal aid’s demographic. According to the government’s own impact assessment, legal aid recipients are ‘amongst the most disadvantaged in society … 97 per cent of legal aid recipients were in the bottom two income quintiles with almost 80 per cent in the bottom.’

According to Bolton CAB, out of the 63 people it saw on that one day in January, around ten might receive help if the government’s proposals go ahead. This column is about the experiences of some of the ordinary people who will be affected by that decision.

When I visited Bolton earlier this year, I met ‘Joe’, a 48-year-old former roofer who arrived, as many do, with a shopping bag full of unopened correspondence. ‘I’m worried about the bailiffs,’ he told debt adviser Tracey. His debts – a court fine for unpaid car insurance (£415), an outstanding TV licence payment (£94) – totalled less than £1,000, but they were causing him huge anxiety. He had been in hospital at the weekend having suffered a second heart attack. Eight months previously, a shoulder injury stopped him from working. He was diagnosed with depression, put on medication, signed off sick and in October had his first heart attack. He was right to be anxious. Both the court fine and TV licence are ‘priority debts’ and, as Tracey explained: ‘Creditors don’t tend to mess around.’

Don’t panic, Tracey assured Joe. In less than 20 minutes she sorted out the fine repayment and reinstated a lapsed TV licensing payment scheme over the phone. Joe’s relief was obvious. ‘It’s the stress. The littlest thing just becomes the biggest thing when you feel like this.’ How did it feel to have these problems sorted out? ‘It couldn’t be more important. I can’t afford anything. I can’t afford to pay for advice.’ Citizens Advice reckons that for every £1 that the state invests in its legal help scheme ‘the state potentially saves £8.80’.

Commons testimony

A couple of weeks after Bolton, I was at the House of Commons at an extraordinary event organised by the Haldane Society of Socialist Lawyers and the Young Legal Aid Lawyers and chaired by Michael Mansfield. A series of ordinary people, as well as expert witnesses, gave ‘testimony’ before a distinguished panel of non-lawyers on the value of publicly-funded law.
A woman (‘EP’) told the panel – former Lib Dem MP Evan Harris, the canon of Westminster Abbey, the reverend professor Nicholas Sagovsky and Diana Holland of Unite – how her life and that of her partner and father of their child spiralled out of control as abuse and addiction took grip.

‘Over the next year things were awful. Child protection was working with me and my husband but, because of his drug addiction and my alcohol addiction, we were getting worse. I was so miserable,’ she said. Her husband was a City banker and enjoyed ‘quite a party lifestyle’, complete with a cocaine habit by the time they married in 2002.

He was (in her words) ‘older, very domineering and controlling’ and she was ‘naïve’. EP became withdrawn, spending all her time with their baby daughter. She began to drink heavily. ‘I was just giving up on life. I did not have the energy or the will to try and sort myself out.’

As the marriage fell apart, there was violence on both sides and the police were called. Social services became involved and proceedings to take their daughter into care began. At this point EP realised she need to escape an abusive relationship and approached solicitors. Did she have the money to pay for legal advice? asked Rev Sagovsky. ‘No,’ EP replied. ‘My husband had control of our finances.’

It was one of three testimonies dealing with relationship breakdown. This is significant because ministers propose in its green paper to scrap legal aid for family cases. Ministers insist it will be retained where there is domestic violence. However, there’s a catch. The definition in the green paper is ‘ongoing risk of physical harm’ – and even then it only applies in prescribed circumstances, such as where there is a protective order. As the support group Rights of Women points out, ‘Psychological, financial and emotional abuse are all serious forms of “domestic violence” that can have devastating long-term consequences.’

EP wouldn’t have received legal aid under the government’s proposals. What would that have meant? ‘I probably would have lost both my children and may well still have been an alcoholic and in a violent relationship,’ she said.
As it is, EP hasn’t had a drink for three years, while her husband sorted himself and now lives in Singapore. The couple have ‘an amicable relationship for the sake of the children’.

Both EP and Joe were the lucky beneficiaries of state‑supported advice which, if the government pushes on with its cuts, will be a thing of the past. The justice gap is about to get a lot wider.

Toxic state

admin — Tue, 01 Feb 2011 15:41:20 +0000

On 8 January 2003, the British media splashed the news that anti-terror police had raided an al-Qaeda ‘factory of death’ – a shabby north London flat reported to contain a panoply of bomb-making and poison-making equipment. ‘IT’S HERE,’ screamed the Daily Mirror’s front page headline: ‘Deadly terror poison found in Britain.’ The rest of the Mirror page was taken up with a map of Britain covered by a skull and crossbones. ‘The danger is present and real and with us now,’ announced prime minister Tony Blair the same day.
The reverberations of the ‘ricin find’ went far beyond the UK. On 5 February, in a speech to the UN security council, US secretary of state Colin Powell cited the London ricin plot as proof of a ‘sinister nexus’ between al-Qaeda and Iraq. For added dramatic effect, Powell held up a vial of white powder as he spoke. A few weeks later, the first American bombs dropped on Baghdad.
What Powell did not know was that, despite the lurid headlines, no ricin – or poisons or explosives of any kind – were actually recovered from the London raid.
When anti-terror police burst into the flat in north London, they were followed soon after by government scientists from Porton Down, who conducted toxicity tests on a range of items found at the site. Most tests immediately showed negative: no evidence of toxins. The findings for a pestle and mortar were potentially more interesting, as they gave a weak positive reaction for proteins, which could have indicated the presence of ricin – although further testing would be needed to be sure. Once back at Porton Down, the items were subject to a battery of more sophisticated tests, all of which came back negative: no ricin.
Porton Down immediately passed the initial false positive result to the police (who were almost certainly the source of the leak to the media). However, for reasons which have never been explained, it took the laboratory nearly three months to tell the authorities that there was no ricin. It was to be 2005 before the truth was finally made public at the Old Bailey.
As the trial opened in September 2004, five Algerian men stood in the dock, charged with conspiracy to murder and the lesser charge of conspiracy to cause a public nuisance. Earlier charges of manufacturing a chemical weapon had been dropped.
During cross-examination, a Porton Down scientist confirmed that it had been known within a few days of the raids that no ricin had been found. The revelation clearly came as a shock to the jury and also caused consternation among the defence barristers: one QC leapt to his feet and waved the Daily Mirror ‘IT’S HERE’ front page around to emphasise his outrage.
The revelation was largely ignored, however, by most of the newspapers that earlier had devoted pages and pages of coverage to the raid on the supposed Al-Qaeda death factory.
As a result, the myth of the ‘ricin terror cell’ endures. It is the plot that never was, but also the plot that never dies – even among those who should know better. In 2006, the then chancellor Gordon Brown referred to the ‘ricin chemical plot’ in a speech about fighting global terrorism. In his 2009 autobiography, the former Metropolitan Police commissioner Sir Ian Blair cites it as one of the ‘major cases’ he had to deal with.
After a six month trial and nearly a month of deliberating, the exhausted-looking jury finally delivered their verdicts. Four of the men – Mouloud Sihali, David Khalef, Sidali Feddag and Mustapha Taleb – were acquitted of all charges; the fifth, Kamel Bourgass (who was already serving a life sentence for murdering a police officer), was convicted of conspiracy to cause a public nuisance.
The verdicts came as a crushing disappointment to the authorities. A string of acquittals and one conviction on the lesser charge were not much to show for a trial that had cost an estimated £20 million, and had been seized on as proof that a tough ‘war on terror’ stance was both necessary and effective.
For the acquitted defendants, it was the vindication they had not dared hope for. After many months in Belmarsh, and having had the threat of a 30-year sentence hanging over them, they were suddenly released and began to get on with their lives.
The men’s relative peace was to be short-lived. At the conclusion of the trial, then home secretary Charles Clarke, in a clear rejection of the jury’s verdict, had warned he would be keeping ‘a very close eye’ on the men being released. He was soon to prove as good as his word. Within weeks, deportation proceedings were begun against Feddag, Sihali and Khalef, on ‘national security’ grounds, relying largely on evidence that had been discredited at the trial. If returned to Algeria, the men faced the very real risk of torture from a government with a notorious record on human rights.
With the threat of deportation hanging over them, the men were kept on immigration bail, and had to report to the police station regularly. Worse was soon to follow.
On 7 July 2005, suicide bombers attacked London’s transport system, killing 52 and injuring and maiming scores of others. Soon afterwards, prime minister Tony Blair announced that ‘the rules of the game are changing’. Mouloud Sihali and Mustapha Taleb were soon to find out just how much the rules had changed.
On 15 September, Sihali and Taleb were woken in the early hours as armed police stormed into their homes to arrest them as threats to national security. With the Stockwell shooting fresh in his mind, Sihali was convinced he was going to be shot, and held up his hands screaming: ‘I didn’t do anything!’ He was pinned to the floor by five officers with such force that his knee was permanently damaged. Over in north London, Taleb was thrown to the floor face down, while officers stood on his hands. He was so terrified, he vomited.
Later the same day, Charles Clarke announced a package of tough anti-terror measures, including plans for 90-day detention without trial for terrorist suspects. The home secretary denied the arrests and announcement had been orchestrated.
After four months in Belmarsh, Sihali and Taleb were released on stringent control-order style conditions. They were tagged and curfewed for up to 20 hours a day. During the period when they were allowed outside, their movements were restricted to an area of about a square mile. They were banned from using the internet or having a mobile phone and had to report daily to the police. Their homes were searched several times a week by immigration officials who would turn up without warning and go through all their belongings. Any visitors had to be vetted and approved by the home office. Unsurprisingly, the pair’s mental and physical health rapidly deteriorated.
Sihali was eventually cleared of being a threat to national security in May 2007 – although he still faces the threat of deportation. For Taleb, the nightmare continues. He remains on control order conditions, even though he has never been charged with any offence or even questioned by police. He is isolated, forced to live in an area where he knows no one, and where the nearest shop is a 40-minute walk away. As he waits for his case to reach the European Court of Human Rights, he is kept barely sane by a regime of prescription drugs and occasional visits from a handful of Home Office approved visitors.
Taleb has little else to do with his days other than reflect on his current situation. Others, too, would do well to reflect on their role in this shameful case – not just politicians, but also the media. It is an interesting question whether the so-called ricin plot would ever have reached trial were it not for the distorting influence of those emotive and highly misleading press reports about the factory of death. Without the panic sparked by unquestioning reports that ricin had been found, might the prosecution have made a different assessment of the strength of the evidence against the defendants at the outset?
As Mark Twain famously said, a lie can be halfway around the world before the truth has got its boots on. The ricin hare – set running by the leaking of one false positive test result – has proved remarkably difficult to stop; and continues to trample on the lives of those caught up in the case.

Falling down the justice gap

admin — Sun, 12 Dec 2010 19:35:03 +0000

It’s difficult to conceive of a section of society more vulnerable, more in need of ‘access to justice’, than children separated from their parents seeking refuge in the UK, thousands of miles from home. This was one reason why the shock closure of Refugee and Migrant Justice at the start of the summer was such a wake-up call to campaigners about the grim times ahead for legal aid.
RMJ, formerly the Refugee Legal Centre, was Britain’s largest single provider of specialist immigration advice, employing 336 people in 13 offices across the UK. It was forced to close its doors on 10,000 asylum seekers, including 900 children who had arrived by themselves in the UK, mainly from Afghanistan, Iraq and Somalia. It had an excellent record of achieving results for its clients, who often had their cases mishandled by private firms of immigration solicitors. But three years ago, the Legal Services Commission (LSC), which runs legal aid in England and Wales, changed the way it pays so that, instead of receiving regular instalments, the likes of RMJ are only paid when a case is concluded. RMJ claimed that it was forced to close because it ran out of cash, despite being owed £1.8 million by the government.
This sorry story reveals much about the precariousness of the threadbare safety net of legal aid provided by a mix of privately-run law firms, citizens advice bureaux, law centres and advice clinics. It also illustrates the vital lifeline that is ‘legal aid’ and what it means when that safety net fails. Three-quarters of asylum seekers are turned down by the Home Office, but one quarter of the cases that go to appeal are overturned by an independent tribunal. If our criminal justice system had that kind of failure rate, it would be a national scandal.
Picking up the cases
So what happened to RMJ’s ex-clients, many of who would, in the words of former RMJ caseworker Andrew Jones, face ‘a return to torture and persecution’? A ministerial statement declared that the new government was ‘confident’ that there was ‘widespread provision of legal advice in this area’ to pick up the cases. The justice secretary Ken Clarke was unsympathetic and said that RMJ’s problems were of its own making. He told MPs that ‘every other organisation’ had coped with legal aid changes.
Six months down the line, though, caseworkers at other agencies report that they have seen only a small number of those who were being represented by RMJ. Maurice Wren, director of Asylum Aid, says that RMJ was ‘a bulwark against the erosion of asylum and refugee rights’. ‘We took on as many RMJ clients as we could, prioritising those with the most critical needs, including children and trafficking victims,’ he says, ‘but we could only pick up a tiny fraction of the 10,000 files that RMJ estimated needed attention.’
Andrew Jones fears that his former clients have been lost in the system. ‘We were told that their files would be transferred to other providers without the client having any say in where their files went. The government assumed that it would be OK for those clients just to be sent a letter by the new providers at some point. They assumed that their cases would just be picked up seamlessly,’ he says. That assumption was ‘complete rubbish. It was outrageous. Everyone was just totally stunned.’
Rights mechanism
Currently, we spend £2.1 billion on legal aid in England and Wales. In the October spending review, ministers announced they want to slash £350 million from an already impoverished scheme. Most people would accept that central to any notion of a decent democratic society is that we not only have basic rights and protections, but that those rights should be capable of being enforced. Legal aid provides a mechanism for people to go about enforcing those rights.
The Attlee government introduced our present system of legal aid in 1949. Its architects decreed that state funding shouldn’t be restricted to people ‘normally classed as poor’ but should also include those of ‘small or moderate means’. But eligibility for legal aid dropped from 80 per cent of the population in Attlee’s day to around two-thirds by the mid-1980s. The steepest decline was under New Labour, which capped the legal aid budget in 1999. That capping created a crisis in the system because Labour also combined the civil and criminal budgets. So social welfare law – that is, welfare benefits, immigration, employment, housing, discrimination – has been effectively smothered by a spiralling criminal budget. Fewer than one in three of us now qualify for help.
The coalition government’s cuts could (depending on how they fall) deliver the deathblow for the civil scheme. We will find out more when ministers release the promised green paper flagged up in the spending review, but the finances of legal practices dependent on public-funded law are so precarious that the smallest of shocks to the system can have a terminal effect, as seen with RMJ. A 2008 survey by the Law Centres Federation revealed that almost one in five of the then 54 law centres lived with the threat of closure and almost half were in serious debt.
This is not to suggest that there isn’t or hasn’t been waste. In the 1980s solicitors were fleecing the system through what was known as ‘green form’ fraud, and some of our learned friends at the criminal Bar have been making £1 million-plus a year from the legal aid fund. Often it can seem that legal aid is run for the benefit of lawyers (indeed, until 1988 the Law Society used to run the scheme).
But while there are legal aid fat cats, there aren’t many of them. A recent survey by the National Audit Office found that 16 per cent of legal aid providers made zero profit and another 14 per cent made 5 per cent or less profit. The legal services market is undergoing a radical liberalisation programme under the Legal Services Act 2007. From next October non-lawyers will be able to run law firms and this will see major retailers such as the Co-op and banks such as the Halifax moving into the field. Inevitably those law firms still doing legal aid work will start jettisoning loss-making legal aid practices as they feel the pressure of the competition.
Market-driven
Legal aid has been reviewed countless times in the recent past. Lord Carter of Coles, following a 2007 review, argued for a ‘market-driven economy’ in the system. This meant two things: the introduction of competitive tendering between providers and moving from hourly rates to fixed fees.
It’s hard to argue against fixed fees, provided they are set at the right level and there are reasonable escape clauses for exceptional cases. The single payment for the kind of asylum case that RMJ did is £459, whether it takes one or ten hours. But fixed fees incentivise hard-pressed practitioners – and the downright dodgy – to cut corners (you only get paid as much for an hour as you do for ten). At the same time, they penalise those diligent advisers (like RMJ) committed to securing access to justice for vulnerable clients. For RMJ, income per client over their last two years fell by 46 per cent as a result of fixed fees. Not everyone was struggling, though. A Legal Services Commission (LSC) response to a Freedom of Information request found that almost one third (29 per cent) of asylum legal providers were ‘making massive profits’ from the new scheme.
The recent implementation of the second element of the Carter reforms – competitive tendering – descended into farce over the summer with a series of legal challenges as law firms took the LSC to court. The Carter vision was for fewer, larger providers delivering economies of scale. The apparent crudeness of the tender system whereby firms had to bid for civil legal aid contracts has shocked a broad collection of firms and advice agencies.
The LSC received an excruciating drubbing at the hands of the High Court when the Birmingham-based housing specialist, the Community Law Partnership (CLP), challenged its loss of a contract. The CLP argued that the LSC’s scoring was irrational because it rewarded firms that took more appeals to the upper tribunal and penalised those who were more successful in the lower tribunal. Mr Justice Collins in the High Court questioned the LSC rationale on the grounds that surely that was the point (i.e. to prevent cases going to appeal)? It was ‘a dreadful decision’, the judge said.
Shortly afterwards the High Court dismissed the LSC’s family tender entirely as ‘unfair, unlawful and irrational’ following a Law Society-backed challenge. The results would have seen a 40 per cent reduction in the number of offices carrying out family legal aid work (from 2,470 to 1,300), prompting fears of ‘legal aid advice deserts’. Worryingly, some of the most expert firms and lawyers had lost out in the tender. They included Solace Women’s Aid (the amalgamation of Camden, Enfield and Islington Women’s Aid) and the family law specialists Dawson Cornwell, both of which failed to get contracts. Anne-Marie Hutchinson at Dawson Cornwell is well‑known for defending hundreds of women and young girls from being trapped in violent forced marriages. She has been consistently recognised as a pioneer in a difficult area of law (an OBE in 2002, inaugural Unicef child rights lawyer, legal aid lawyer of the year in 2004), but not by the Legal Services Commission.
The legal aid sector was already demoralised and over-stretched before the spending review. Now it will take an even bigger fight to save the service.