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Deport first, appeal later

This week the Supreme Court ruled that the government’s system for deporting foreign criminals before they have had a chance to appeal breaches their human rights. In a landmark case concerning two foreign national criminals, the court ruled that having to appeal from abroad denied the men an effective appeal.

‘Deport first, appeal later’ was introduced as part of the Immigration Act 2014. It removes a foreign criminal’s right to appeal in the UK unless they can show a ‘real risk of serious irreversible harm’ if they are deported to their country of origin. It was designed to reduce the number of offenders fighting deportation by using human rights grounds, especially the right to a private and family life. More than 1,100 foreign criminals have been removed from Britain under the system. It was a Conservative manifesto pledge.

The ruling, handed down by the deputy president of the supreme court, Lady Hale, and four other justices, said the system breached foreign criminals’ human right to an appeal as their ability to present their case from abroad was likely to be obstructed in a number of ways.

The case involved two men convicted of drug offences who had both served prison sentences. In both cases the home secretary (then Theresa May) issued certificates that their human rights claims were “clearly unfounded” under 94B of the Nationality, Immigration and Asylum Act 2002. This had the effect of ensuring that they could only appeal against their deportation after they had returned to Kenya and Jamaica.

The court ruling says that the financial and legal barriers to the men giving their evidence live on screen are almost insurmountable. The justices say the MoJ’s failure to provide facilities abroad to enable them to give evidence means they have been deported without any human rights-compliant system in place that enables them to conduct their appeal.

Leading counsel for one of the appellants said the ruling would halt the use of the power in the deportation of foreign national criminals. “The supreme court’s judgment will very heavily limit, if not entirely curtail, the home secretary’s use of the controversial ‘deport first, appeal later’ power for ‘foreign criminals’ who wish to challenge deportation decisions on the basis that deportation will infringe the right to family or private life. The court has made clear its disapproval of the routine use of such a power,” he said.

Clive Coleman, BBC legal affairs correspondent, writes that “the ruling is a hammer blow to the Home Office. Appeals will have to be ‘effective’ and that will often mean that they have to be conducted with the appellant in the UK. ‘Deport first, appeal later’ is damaged.

“Since December, in what amounts to a ‘remove first, appeal later’ policy, the process for certifying removal before appeal has been extended to other cases such as those brought by people who are not convicted criminals, but have overstayed their leave to remain here.” He adds that the decision “is likely to have significant implications for both the deportation of foreign offenders and the removal of others who are in the UK unlawfully.”

For the government, Immigration Minister Brandon Lewis said: “We are disappointed by the Supreme Court’s judgment and are carefully considering the implications.”

Saira Grant, chief executive of the Joint Council for the Welfare of Immigrants, welcomed the ruling and said: “The Supreme Court has accepted, as we warned from the beginning, that it is almost impossible to appeal from abroad. They have also upheld the rule of law by making it clear that the Home Secretary cannot simply avoid scrutiny by removing from the UK anybody who disagrees with her decision.“

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ECJ Date Retention Ruling Goes Against UK

The Investigatory Powers Act (IPA) overhauls laws governing how the state gathers and retains private communications or other forms of data to combat crime. Broadband and mobile phone providers are compelled to hold a year’s worth of communications data. Known by critics as the snoopers’ charter, there is serious concern about the number of agencies that will get access to the communications data and other privacy issues. Read the full story

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Investigatory Powers Act

Britain leads the world in the use of CCTV. As a result, surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy.

This was the very solid base for coalition home secretary Theresa May’s snooper’s charter bill four years ago which would have allowed GCHQ to conduct real-time surveillance of a person’s communications and their web usage. Downing Street initially brushed aside libertarian objections but then plans were put on hold after being condemned by MPs of all parties. Nick Clegg, then Deputy Prime Minister, announced that the contentious measures would only be published in draft form and would be subject to widespread consultation, concessions that could delay the proposals for at least a year. Read the full story

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Female genital mutilation (FGM)

Female genital mutilation (FGM) includes procedures that intentionally alter or injure female genital organs for non-medical reasons. It has no health benefits for girls and women and is internationally recognised as a violation of the human rights of girls and women.

An estimated 100 to 140 million girls and women worldwide are currently living with the consequences of FGM. It is mostly carried out on young girls at some time between infancy and age 15 years. In Africa an estimated 92 million girls from 10 years of age and above have undergone FGM. Procedures can cause severe bleeding and problems urinating, and later potential childbirth complications and newborn deaths.

The Female Genital Mutilation Act 2003 makes it illegal to practice FGM in the UK. It also makes it illegal to take girls who are British nationals or permanent residents of the UK abroad for FGM, whether or not it is lawful in that country, and to aid, abet, counsel or procure the carrying out of FGM abroad. It provides for a penalty of up to 14 years in prison. Five years ago I posted a blog on the subject. The first paragraph read: “Schools are out, and the long summer break is the time when many girls – the estimate is 500 to 2000 – will fly, unsuspecting, to Africa, the Middle East and parts of the Far East, ostensibly for a holiday, but in fact to be circumcised.” Schools are out again.

More than 20,000 girls a year are thought to be at risk of FGM in the UK. Medical groups, trade unions and human rights organisations estimate that there are 66,000 victims of the practice in England and Wales.

Last week the Health and Social Care Information Centre published figures for the twelve months 2015/2016. There were 5,702 newly recorded cases of FGM reported, and 8,656 total attendances where FGM was identified or a procedure for FGM was undertaken. More than half of all cases relate to women and girls from London NHS Commissioning Region – 52 per cent of newly recorded cases and 58 per cent of total attendances.

106 girls under 18 at the time of their first attendance were reported, comprising 2 per cent of all newly recorded cases. 87 per cent of women with a known pregnancy status were pregnant at the point of attendance. 90 per cent of women and girls with a known country of birth were born in an Eastern, Northern or Western African country, and 6 per cent were born in Asia.

Somalia in Eastern Africa accounts for more than one third of all newly recorded women and girls with a known country of birth (37 per cent). Other countries with a large volume of cases include Eritrea in Eastern Africa, the Sudan in Northern Africa and Nigeria and the Gambia in Western Africa. 43 newly recorded cases of FGM involved women and girls reported to have been born in the United Kingdom.

The most frequent age range at which the FGM was carried out was between 5 and 9 years old, involving 43 per cent of cases where the age was known. In 18 newly recorded cases, the FGM was reported to have been undertaken in the United Kingdom, including 11 women and girls who were also reported to have been born in the UK.

The Royal College of Nursing said more had to be done to end the practice, which has been illegal in the UK since 1985. Carmel Bagness, the RCN’s professional lead for midwifery and women’s health, said: “What these statistics show is that there is still a lot of work to do to eradicate this abuse. A lot has been achieved in the past few years, but these efforts must continue for as long as there are still women and girls subjected to this criminal abuse.”

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Justice denied

Transform Justice is a national charity campaigning for a fairer, more humane, more open and effective justice system. It was set up in 2012 by Penelope Gibbs, a former magistrate who had worked for five years to reduce child and youth imprisonment in the UK.

A new report, Justice Denied, produced by Transform Justice, suggests that a combination of legal aid cuts, complex bureaucracy and inadequate support and information for defendants have led to a surge in people appearing in court without a lawyer. Now all this is not new, but what this report does is to examine in detail the effect on the justice system as a result of slashing legal aid.

Penelope Gibbs described the rise in unrepresented defendants as a “travesty”, and warned that justice was in danger of being denied to some on modest incomes who did not qualify for legal aid. “People who are denied legal aid are often not wealthy. They get little information to prepare for court and are thrust into an adversarial and complex process which even those who are represented find hard to follow. No wonder they end up pleading guilty when in fact they have a reasonable defence, or getting a longer sentence.”

There are no official figures for the number of unrepresented defendants in magistrates courts. But this report cites a wealth of evidence, including a survey by the Magistrates Association, official data from the MoJ, freedom of information responses, an online poll of lawyers, surveys of prosecutors, judges and magistrates and fieldwork carried out at courts – as proof that more people are appearing in court without legal representation.

“I have prosecuted trials against unrepresented defendants. It is a complete sham and a pale imitation of justice”, a prosecutor reported. Another prosecutor said: “The magistrate probably thinks if [someone] is stupid enough to represent himself he’s probably guilty… Going unrepresented certainly hinders any defendant, without a shadow of a doubt.” A third prosecutor said “I could count on the fingers of one hand how many have actually understood the charges.”

The report states: “Interviewees had witnessed unrepresented defendants not understanding what they were charged with, pleading guilty when they would have been advised not to, and vice versa, messing up the cross-examination of witnesses, and getting tougher sentences because they did not know how to mitigate.”

One prosecutor suggested that sometimes unrepresented defendants do not realise the strength of their case and “are bullied by the clerks and bench into pleading guilty.” A magistrate was also concerned: “They are told by the clerk if you plead guilty at the earliest opportunity the court will be more lenient than if you plead not guilty and are found guilty in the long run, so it’s a bit of a game of poker in this respect, and I think…that’s wrong.”

The report found that the impact on court staff, judges and advocates of dealing with unrepresented defendants is immense – cases are taking longer, and explanation skills and patience are being tested. A magistrate said: “You definitely take it slower because you want to ensure they understand what’s being said…You always have to keep on repeating to them what they are meant to be doing – they forget.”

Does it save money? Not according to one prosecutor: “It makes the whole system more expensive, because more hearings are required and longer time is needed to explain the system.” The absence of a cost benefit analysis means we don’t know for certain.

In one example given to the charity behind the report an unrepresented defendant remained silent during his appearance via video link from a police station. Only after he had been sent to prison did it emerge that he was deaf. Is that justice?

The full text of the report can be found at:

http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-APRIL_Singles.pdf

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Discriminatory residence test for legal aid summarily thrown out

Our blog on Monday said that the Supreme Court would begin hearing arguments in a case challenging the government’s Legal Aid residence test that day. Remarkably by Monday evening the case was resolved.

The Supreme Court has taken what is believed to be the unprecedented step of allowing an appeal halfway through a two-day hearing. The bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice.

The government had been seeking to introduce the residence test via secondary legislation. The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which brought the case, said that this is outside the government’s powers and also discriminatory under human rights laws.

As reported in the ‘Gazette’ a brief statement by the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

On Tuesday the court confirmed on its website that the hearing ‘has now concluded’. Full written reasons for its decision ‘will follow in due course’.

Law Society chief executive Catherine Dixon said: “This judgment goes some way in reaffirming the philosophy behind legal aid, which is that everyone should have the ability to get expert legal advice and representation to defend their legal rights.

“The court has upheld the vital principle that government must act within the scope of its powers and particular scrutiny must be given where equality before the law is being threatened.”

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, said: “Right now though, it is clear that the Supreme Court believed rationing British justice using delegated legislation was repugnant to British law and it was willing to act decisively to stop that happening.” Should the government want to introduce a residence test in the future, Halford said it would have to propose primary legislation with the residence test in it.

Such a swift ruling is a humiliating setback for the MoJ. Reversals were a regular matter for the previous unlamented justice secretary Grayling, but Gove has had the sense to abandon many unpopular measures introduced by his predecessor. He has blotted his copybook by allying himself with this now thrown out policy. He intended to proceed with plans to introduce the scheme this summer.

A Ministry of Justice spokesperson said: “We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.”

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The impact of legal aid cuts

The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean “litigants in person (LiPS) achieve worse outcomes compared with their represented counterparts.”

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Some lost their jobs due to the pressure, while others got into debt due to court issues, including paying for photocopying and travelling to and from court.

Meanwhile, seven in 10 reported they might ‘think twice’ about taking a case to court themselves if they could not afford a lawyer.

The charity said it was only after people had been through the process of going to the family court that they realised the value of having a lawyer, with 70% saying that instructing a professional would have benefited their court experience. The lack of professional support has also placed intolerable pressure on the court system.

Gillian Guy, chief executive of Citizens Advice, said: “For people representing themselves in the family courts, whether in a divorce case or to keep the legal right to see their children, the workload to prepare can be unmanageable. In extreme cases people are quitting their job so they have the time to do research before going to court.

“The stress of making your case against qualified barristers and navigating complex court processes without the right guidance can make existing mental and physical health problems worse.”

In January the lord chief justice, Lord Thomas of Cwmgiedd, delivered a warning about the legal aid situation in England and Wales. “Our system of justice has become unaffordable to most,” he said. “In consequence, there has been a considerable increase of litigants in person for whom our current court system is not really designed.”

Three years after the government scrapped legal aid across much of civil law, more ‘advice deserts’ are emerging in the sectors that remain in scope. Several parts of England and Wales now have inadequate housing law cover which could give rise to potential conflicts of interest. A number of areas have no cover at all.

According to the ‘Gazette’ the Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

From the usual spokesperson for the Legal Aid Agency we learn that the ’vast majority’ of England and Wales have access to LAA-funded housing advice. “We constantly monitor the situation across the country and we are actively seeking new providers in two areas,” the spokesperson said. “Legal aid is a vital part of our justice system but we must ensure it is sustainable and fair for those who need it, those who provide services and for the taxpayer, who pays for it.”

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Legal aid residence test to be challenged

Today, the Supreme Court will begin hearing arguments in a case challenging the government’s Legal Aid residence test.

The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which is bringing the case, says that this is outside the government’s powers and also discriminatory under human rights laws.

The Ministry of Justice (MoJ) has argued that only those who have an established link to the UK should be entitled to legal aid, which is a scarce and costly resource that must be rationed.

Seven justices will hear arguments in a case which insists that no minister has the power to impose such discriminatory regulations and that the residence test, which has yet to be implemented, is unlawful. The supreme court had originally planned to hear the case later this year, but it has been brought forward following justice secretary Michael Gove’s indication that he planned to begin applying the residence test from this summer.

The case has already been before the courts. In 2014, the high court struck down the regulation on the grounds that the then justice secretary, Chris Grayling, did not have the power to introduce it by means of secondary legislation. It also concluded that the residence test was excessively discriminatory.

In a unanimous decision, three senior judges declared the draft regulations then before parliament could not be enacted by means of secondary legislation. They also upheld a complaint on a second ground as part of the judicial review, that it would not be legitimate to discriminate against non-residents solely on the grounds of saving money.

The judgment was a severe setback for the then justice secretary, Chris Grayling, and the way he was introducing wide-ranging changes without primary legislation.

However, last November the court of appeal overturned that judgment, concluding that the earlier ruling placed unjustifiable restraints on the government’s ability to control the legal aid budget. Exemptions to the residence test have had to be made for members of the armed forces serving overseas, children under one year old and asylum seekers.

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, is quoted in the ‘Guardian’ as saying: “In this country, we are rightly proud we have a legal system which, whilst not perfect, seeks to ensure that anyone can enforce important legal rights and enter the courtroom on an equal footing to their opponents….The [justice secretary’s] proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it. We will ask the court to make a definitive ruling that the test is repugnant to British law.”

The ‘Guardian’ also reports that the children’s commissioner for England has intervened in the litigation in support of the PLP’s appeal, as has the solicitors’ professional body, the Law Society.

The case will be decided by seven justices – Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – because of its constitutional importance.

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Review of legal aid for people trafficking victims

The Lord Chancellor has agreed to conduct an urgent review of legal aid provisions for people bringing compensation claims against their traffickers.

LASPO made legal aid available for victims of trafficking to bring compensation claims against those who exploited them, for example as employment matters. However, when LASPO came into force, the Legal Aid Agency (LAA) didn’t include such claims within a mainstream contract category, instead bundling them into the “miscellaneous” category along with around 20 other types of case. Read the full story

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The vexed question of access to justice

In a wide ranging speech to the Northern Ireland Assembly’s justice committee last week, Lord Neuberger, President of the Supreme Court, addressed what he called “the vexed question of access to justice in an age of austerity.”

The increased cost and complexity of litigation coupled with the shrinking of legal aid means that access to justice is “very much at risk,” he said.

In his view “Challenges and difficulties are also opportunities. But we have to face the fact that we are in something of a perfect storm. Legal services are increasingly very expensive and increasingly unaffordable to ordinary people. At the same time, government money to support the courts and legal aid is in very short supply.”

“There are a number of reasons why legal services are expensive,” he said. “First, UK lawyers (like UK judges) are of outstanding quality in global terms, and quality and cost are closely connected. Secondly, in this electronic age, litigation and legal advice involve a great deal of potentially relevant documentation to be collated and considered, and there is a plethora of reported legal cases for legal advisers and judges to consider. Thirdly, reflecting society’s attitude more generally, we are increasingly concerned with due process, which means that the trial process is increasingly expensive.”

Steps are being taken in England and Wales in the form of streamlining and tightening up litigation procedures generally. This enables judges to control costs and hearing times more proactively, increasing the types and size of claims which can be heard in the small claims court and those where only fixed costs are recoverable from the loser. “I understand that the Bar of England and Wales are investigating the possibility of introducing a streamlined system of litigating smaller claims, which is also good news,” he said.

“At the same time, the Government is proposing to make available a large sum of money to overhaul both the physical and the electronic infrastructure of the courts. There will be fewer but larger and more modern court buildings throughout the UK, and the antiquated and fissiparous IT systems in the courts will be replaced by a modern system,” he added.

Neuberger’s speech, which ranged from IT strategy to the question of judicial activism, also defended his recent statement that the UK does not have a constitution. However he admitted that the Supreme Court had inevitably assumed a more visible constitutional role than its predecessor, the Appellate Committee of the House of Lords.

Comparing the UK and European style of common law judgments he said in the UK an appeal court is a number of judges “who happen to be sitting in the same tribunal: hence every judge is free to give a full judgment of their own. The European system only has one judgment to read in every case, but their judgments are not infrequently internally inconsistent, and occasionally evade the legal question actually raised in order to arrive at a mutually acceptable product.”

He concluded: “The multiplicity of judgments you can get in our system can be confusing and tedious, but, whatever else may be said about it, our system produces more entertaining and stylish judgments.”

A more forthright view of Lord Neuberger’s speech is contained in an anonymous contribution to the ‘Law Gazette’:

“I’m afraid m’lud that access to justice is not ‘very much at risk’. It has been utterly trashed. It is a dead parrot. We used to be something other societies looked up. Now our systems of justice are approaching Banana Republic status. The terrifying thing about it has been both the speed and comprehensive nature of its destruction across all areas of law.

And after all this we STILL have the zealots in the Government and MoJ who continue to issue guff about needing to make further savings.”

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