Solicitors Journal- Singled Out

Singled out
15 August 2011


Main Page Content:By Sophie Khan

The detention of children should always be the last resort – the courts should not treat young protestors differently, argues Sophie Khan

The detention of the young has always been a controversial issue, not just because of the impact that a custodial sentence will have on the young person but also because it shines a grim light on society as a whole in allowing the young to be locked up in this way.

The Lord Chancellor’s pledge to reduce the number of custodial sentences is yet to be seen, as many young adults are still incarcerated for their crime even when non-custodial sentences may have been more appropriate in the circumstances of some cases. There are between 2,000 to 3,000 children aged between ten and 17 in custody at any one time either under sentence or on remand in England and Wales, and there does not seem to be any effective steps being taken to reduce that number.

The recent student and anti-cut protests which saw mass arrests of young people across the country by officers from Operation Malone and Brontide have now resulted in protestors receiving custodial sentences. The first of the student protestors to be sentenced was 18-year-old schoolboy Edward Woollard, who was sentenced to 32 months in January 2011 and is serving his sentence at a youth offender’s institute. This month we have seen the custodial sentences of students Francis Fernie, 20, and Charlie Gilmour, 21, who were sentenced to 12 and 16 months respectively.

But is custody the right option when it comes to sentencing young protestors? The offence in many occasions is a one-off incident, out of character for the young person who before this time has never been in trouble with the law. Although ‘deterrent sentences’ have a part to play in reducing the level of crime, they should not be seen as a solution when sentencing a protestor as no sentence will stop protests from happening.

Instead of the ‘deterrent sentence’, the courts must recognise that a non-custodial sentence will also get the message across to the younger generation that their actions were not acceptable, and most importantly will give them that much deserved second chance.


The harsh penalty of a custodial sentence should be a last resort and is seen as the last resort when it comes to youth detention in other types of cases. The judgment by Lord Justice Toulson in the case of R (on the application of A) v Lewisham Youth Court (Defendant) & Director of Public Prosecutions (Interested Party) [2011] EWHC 1193 Admin reaffirms the stance that courts should take when sentencing the young. This case was a judicial review by the claimant of the decision to remand him in custody in prison, rather than secure accommodation following his arrest and charge for an offence of murder. It was held that: “Even for a child or young person charged with an offence as grave as murder, remand in prison establishment should be the last resort. It was impossible to believe that parliament could have intended prison to be mandatory, regardless of whether the defendant could be safely kept in more suitable accommodation.”

The case of R (on the application of Suppiah and Others) v Secretary of State for the Home Department [2011] EWHC 2 Admin, which concerned the detention of two families, Ms Suppiah and her two children and Ms Bello and her child, also recognised that the detention of children should be the last resort. The Yarl’s Wood family unit detention centre subsequently had to close as it was held that the detention of children in those circumstances was unlawful.

Although many of the protestors who are facing charges are not children, they are young, vulnerable adults and equal consideration needs to be given to their age if they are sentenced. This approach does not seem to have been followed in all occasions and instead there has been a disproportionate response by the court in opting for the custodial sentence above all else which needs to be addressed quickly.

There is no reason why young protesters should be singled out in this way, and we need to keep the last resort last if we are to give the young protestors equal treatment within the law.


Postscript:

Sophie Khan is a solicitor-advocate specialising in actions against the police and public law at GT Stewart. Contact: s.khan@gtstewart.co.uk

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On the Beat- Keeping the flame alive

Sophie Khan talks shop

12 August 2011 – Keeping the flame alive

Is this the summer of protests? It definitely looks that way, and with protests, marches and demonstrations being organised on a weekly basis, it is time the government listened to the voices of the protestors and recognised the real damage that their reforms will have on the ordinary person.

Last month we saw the march to ‘Defend the NHS’ on its 63rd birthday and the month before the national strike on 30 June called by the National Union of Teachers (NUT) and the Association of Teachers and Lecturers (ATL), supported by the Public and Commercial Services Union (PCS), which lead to the closure of many schools and disruption at some airports as the UK Border Agency staff also joined the picket line.

The silence by Francis Maude, minister for the Cabinet Office, following the strike was priceless as he had previously rubbished the strike and had accused the strikers to have “jumped the gun”. But it is his government that has jumped the gun, by pushing through austerity cuts without real consultation and not recognising the severe impact these reforms will have on hundreds of thousands of people. The controversial comments by Oliver Letwin, the coalition’s policy minister, at a meeting with his constituencies over the weekend, that he is to instil “some real discipline and some real fear” only goes to show that the government knows that they have a fight on their hands against the cuts and one that they may not win.

So the right to protest and strike against the cuts continues and with preparations being made in Manchester for the Tory conference in October. How is the government going to quell the air of resistance?

The scaremongering tactics to arrest non-violent protestors during protests included the ‘snatch and grab’ seen on 30 June of a young man outside Charing Cross train station. The reason why the young man was arrested is unknown but what is clear from the footage of the incident on Youtube is that a group of policeman forcibly removed him from where he was standing in the crowd and took him away from the area.

The rise of the pre-crime arrests of activists before royal weddings is another example and is a tactic that is used by the police to round up known activists regardless of whether a crime has been or will be committed. This new policy stems from the ‘thought’ of a possible crime rather than whether there is evidence that a crime is going to be committed and seems to be taken straight out of George Orwell’s novel 1984 where it was the job of the thought police to uncover and punish thoughtcrime. The newsletter published on 29 July 2011 by Project Griffin, a police initiative which assesses the threat of terrorism in the City of Westminster, adds further weight to the thoughtcrime, as one of their initiatives is to report any information relating to anarchists to your local police.

These policies and tactics will not deter the protest movement which continues to gain momentum, but these need to be fought with the same vigour and force as the protests themselves. If it can be shown that the police tactics used are questionable or illegal then those arrests need to be challenged by lawyers at an early stage. Now is the time to mobilise an ‘army of lawyers’ against the ‘army of police’ to counter these practices, and the Lawyers’ Activist Network is one step towards bringing together pro-protestor lawyers from across the country to provide crucial support to activists so that their right to protest is protected.



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