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

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=18825&c=3

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.



http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1

Citizen Khan - More unequal than others

More unequal than others
20 June 2011

Main Page Content:By Jon Robins, Sophie Khan

Lawyers behind the Commission of Inquiry into Legal Aid were well aware of the accusations of bias likely to be levied against them. As leftfield organisations opposing the legal aid budget cuts the Young Legal Aid Lawyers and the Haldane Society expected to be criticised for trying to pass off their inquiry as a piece of independent research.

What has come out of their series of hearings held in the Commons earlier this year undoubtedly reflects their existing wider social concerns: that the cuts will reduce access to justice for the vulnerable and that this, in itself, is bad for our definition of an effective justice system in a democratic society.

But their findings, published this week by Solicitors Journal in the Justice Gap series under the title Unequal before the law?, also evidence a unique, genuine attempt at bringing together in a non-political setting all interested parties holding differing views.

It is perhaps unfortunate that organisations in favour turned down the opportunity to send representatives to appear in person, preferring instead to send their comments in writing, refer the panel to previous position papers, or just not respond to the invitation.


Still, the findings shed new light on how legal aid has helped real people facing real difficulties, who would otherwise have been unable to bring or defend a case.

Two of the witnesses were at the launch event of the report last week. S, whose son had trouble at school and had been expelled several times, was only able to have him assessed following assistance by a legal aid lawyer. The result was that she was later able to secure a place in a SEN school.

The other witness, P, threatened with eviction after 47 years in the same property, was only able to stay in her home after two rounds of court proceedings. The first instance judge ruled in favour of her landlord but his decision was reversed on appeal. Importantly, her case showed that it was not only about the money and her ability to fund the case, but that without a lawyer able to take her case to appeal it would not have been possible to reveal that the first instance judge had made an error in applying the law.

Neither S nor P would be able to obtain legal aid if the proposed reforms go through, leaving S in a precarious financial situation, and P moving to a different neighbourhood where she doesn’t know anybody. Which raises a wider issue highlighted by several original witnesses and parliamentarians who joined in the debate held for the launch of the report. Legal aid, said Conservative Peer Lord Newton, cannot be looked at in isolation from other elements of the social concerns. The former social security minister said the proposed cuts would not give vulnerable people adequate protection. If a reform is to take place, he said, it must be in the context of broader parallel proposals. The availability of legal aid for welfare problems, for instance, should be considered in with the proposed welfare reform bill and localism bill. And Lord Bach, who hosted the event, said the proposed cuts were “economically illiterate”.

Access to justice not just about legal aid

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Ministers tell us in last November's green paper that access to justice is "the hallmark of a civil society". At the time of writing, ministers are putting the finishing touches to draft legislation that, unless there is an unexpected change of heart, will remove £350m from a £2.5bn scheme.


Access to justice, as it is embodied in the civil legal aid scheme, looks like it will be disregarded as a luxury we cannot afford.


Earlier this year MPs were given a series of powerful, often uncomfortable, reminders as to the important role of publicly funded legal help in our society. The event took place in the House of Commons on 2 February. It was organised by the Haldane Society of Socialist Lawyers and the Young Legal Aid Lawyers.


The Commission of Inquiry into Legal Aid was a unique event. The exclusive focus was about examining what kind of safety net our system of publicly funded law provides for the poor or vulnerable clients (usually both) who rely upon it.


A series of ordinary people - not lawyers - gave testimony before a distinguished panel of non-lawyers in a crowded committee room 10. The former Liberal Democrat MP Evan Harris, the canon of Westminster Abbey, the Reverend Nicholas Sagovsky, and Diana Holland, assistant general secretary of the trade union Unite, weighed up evidence they heard at the session as well as written submissions from the recipients of legal aid and experts. They listened and then questioned people such as 'EP', a mother of two and victim of domestic violence. She recounted the trauma of escaping a self-destructive and abusive relation ("I was just giving up on life. I did not have the energy or the will to try and sort myself out...")


They also heard from Zoe Kealey who talked frankly about the unbearably painful events that led up to her brother Darwin hanging himself in Wormwood Scrubs. Her family was represented by a legally aided lawyer at the inquest ("Without legal aid we'd have been left with a void of not knowing what happened to Darwin").


The event made a powerful point. Access to justice is not just about legal aid, nor is it about access to the courts and a competent lawyer. It is a much broader concept. It encompasses a recognition that central to any notion of a decent society is ensuring that legitimately held rights are protected and can, if needs be, be enforced in a court of law.


Unequal before the law? publishes the findings of the three panellists, nonpartisan and independent-minded experts who all have a long track record of promoting social justice. By their own account, they are relative strangers to the specifics of legal aid. It also collects the testimony they considered (both 'for' and 'against') and we hope that it serves as a useful introduction for people who want find out more about the role legal aid plays in our society.


The panellists findings speak for themselves. They are:


Legal aid is vital to protecting the rights of vulnerable people.

Legal aid is vital to upholding the rule of law.

Legal aid is essential to holding the state to account.

Cutting legal aid is a false economy.

A holistic approach is needed in providing legal aid.

Cuts to legal aid will drive out committed lawyers.

Cutting legal aid is not a fair or effective way to reduce unnecessary litigation.


Jon Robins is a freelance journalist and director of legal research company Jures. He is also Justice Gap series editor


Citizen Khan

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With lobbying patently unsuccessful at making the government change its mind over legal aid, citizens have only one option: take to the streets, says Sophie Khan


There is a lot to be said when 90 per cent of the responses to the consultation on legal aid disagree with the proposals. But for some reason that does not make any difference to the government. They will not heed the 'warning' signs that have been waved in their faces by the young, old and the ugly and will now plough away as they did with the cuts to the public sector. The changes to scope will go ahead and the legal aid budget will be slashed.


So, what does this mean in real terms? To me it will mark the beginning, unfortunately, of the end of 'legal aid' as we know it. The fourth basic right that we have in this country will be torn from us and, no doubt about it, it will leave the vulnerable and those less well off at the mercy of abuse and injustice. The pro bono sector will not - it doesn't matter how much Mr Djanogly and Lord Goldsmith wish and pray - pick up where legal aid ends. The pro bono caseworkers will not have the relevant expertise to advise the public and without that a vast majority of the public will be left to fight their own corners in and out of the courts. The heavy powers will reap the rewards of the cuts as their actions are more likely to go unchallenged and should they be challenged they will storm down with hell-fire style lawyers who will not take any prisoners. Without lawyers like me to counter-balance that authority and take them to task, the long-standing civil liberties and rights that we all enjoy will slowly be eroded.


But maybe that is the ultimate plan. If there are no rights, there are no protests. Let's join forces with the protest movement and change that so that the right to protest lives on.


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

Unequal before the law?

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Unequal before the law? The future of legal aid is edited by Jon Robins and published by Solicitors Journal in the Justice Gap series.


You can download an electronic copy free of charge at www.solicitorsjournal.com/justicegap

or purchase a hard copy at www.solicitorsjournal.com/bookshop

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=18571&c=3

Counterfire-Sophie Khan on Defend the Right to Protest

http://www.counterfire.org/index.php/blogs/146-infinite-thought/12523-sophie-khan-on-defend-the-right-to-protest

Twitter

http://twitter.com/#!/khan_sophie

Guardian -Comment is Free

Police reform bill ends accountability

Without a dedicated regulatory body, the chance of transparent adjudication into complaints against the police will be lost



Sophie Khan guardian.co.uk, Friday 8 April 2011 11.28 BST Article history

Thankfully, last month's anti-cuts march in central London did not lead to the kind of police brutality witnessed during earlier demonstrations. The IPCC received 111 complaints in connection with the student protests in November and December 2010. Nonetheless, UK Uncut protesters say the police "tricked" them during their occupation of Fortnum and Mason, giving them assurances that they would be able to leave the shop without interference and subsequently arresting them as they left. Should any of the campaigners choose to file a complaint about their treatment, the current structure of recording and handling complaints against the police will ensure it is recorded so that grievances can be identified and lessons learned. But will that still be the case if the police reform and social responsibility bill comes into force in May next year? I suspect not.


The bill, which is making its way through parliament, will bring the most radical change to the police complaints procedure we have seen since the reforms that followed the death of Stephen Lawrence. The Police Reform Act 2002, which replaced the much-criticised Police Complaints Authority with the Independent Police Complaints Commission, has in recent years been the gatekeeper to all complaints against the police and the only body to which complainants can appeal following local and supervised investigations by the police's professional standards departments. But that will no longer be the case from May 2012. The safeguards that were put in place by the publication of the IPCC's statutory guidance in April 2010 will be removed and an unregulated system of police complaints will result.


Schedule 14 of the bill at paragraph 8 (5) will give police forces unfettered discretion in determining which complaints they wish to record and – although, as exists today, there will be an appeal process to the IPCC for non-recording – one suspects the police will put up a fight when their authority is challenged.


But the most shocking and controversial aspect of the bill will be the loss of the independent appeal to the IPCC following a local or supervised investigation. This important element of the complaints procedure, although it does not uphold all appeals, does ensure that a fresh review of the complaint is carried out. Where the appeal is upheld, a reinvestigation is ordered.


My reading of the bill suggests these concerns have not been identified or taken on board and will become commonplace under an unregulated police complaints procedure, which is already open to abuse by the police. It is highly unlikely that investigations into complaints made by protestors such as Jody McIntyre, who was pulled out of his wheelchair and dragged across the road by a Metropolitan police officer during a student protest in December, would even be recorded in the future.


The powers that will be meted out to the chief officer as provided by paragraph 22 of schedule 14 are neither welcomed nor sought by the public. Once the bill is enacted it will end the only real opportunity for a transparent adjudication into complaints against the police, other than civil claims brought in court.


These reforms are in stark contrast to the home secretary's proposals to make the police service more accountable to local people. Without an external body to regulate the complaints, where is the accountability? The lazy provisions of the bill at paragraph 7 of the schedule state that the local policing body (the police and crime commissioners or the mayor's office for policing and crime) may direct the chief officers to take such steps as the local policing body thinks appropriate in order for chief officers to comply with their obligations. However, these provisions do not go far enough, especially as the local policing body will not have the power of an ombudsman.


Without the presence of a dedicated regulatory body for the police, many abuses will go unchallenged. The only viable option available against the chief officers would be to bring judicial review proceedings to challenge their decision. But with legal aid cuts on there way, will that avenue be open? We may see a return to a pre-Macpherson style landscape in policing, where the rights of the public and the protestor went unrecognised and the words "police" and "accountability" would not even appear in the same sentence.

http://www.guardian.co.uk/commentisfree/libertycentral/2011/apr/08/police-reform-bill-accountability

Solicitors Journal - Siren Call

Siren call
18 April 2011


Content:By Sophie Khan

The police reform bill threatens the future of an accountable and transparent police complaints procedure, argues Sophie Khan

The recent wave of demonstrations has renewed focus on the importance of the Independent Police Complaints Commission’s role. The current structure for recording these complaints requires that all are recorded so that grievances can be identified and lessons learned. But will that be the case in the future once the police reform and social responsibility bill is brought into force on 3 May 2012?

The bill, which at present is making its way through parliament, will bring with it the most radical change to the police complaints procedure that we have seen since its reformation following the death of Stephen Lawrence.

The Police Reform Act 2002, which created the Independent Police Complaints Commission (IPCC) in the wake of the highly criticised Police Complaints Authority, has been the gatekeeper to all claims against the police for several years. It is the only appeal body following local and supervised investigations by the police’s professional standards departments.

But under the new bill that will no longer be the case. The safeguards that had been put in place by the publication of the IPCC’s statutory guidance in April 2010 will be removed and an unregulated system of police complaints will emerge.


Open to abuse

Schedule 14 of the bill at paragraph 8(5) will give police forces an unfettered discretion in determining which complaints they wish to record and, although there will be an appeal process to the IPCC as exists today for non-recording, there is a sense that the police will put up a fight when their authority is challenged. As far as I can tell from the bill, these concerns have not been identified and will become a common theme of an unregulated police complaints procedure which is already open to abuse by the police.


It is highly unlikely that investigations into complaints made by protestors such as Jody McIntyre, who was seen pulled out of his wheelchair and dragged across the road by a Metropolitan Police officer during a student protest in December, would even be recorded in the future. But the most shocking aspect of the bill will be the loss of the independent appeal to the IPCC following a local or supervised investigation. This important aspect of the complaints procedure does not uphold all appeals, but does ensure that a fresh review of the complaint is carried out and where the appeal is upheld a re-investigation directed.

A new and unequivocal power will be meted out to the chief officer as provided by paragraph 22 of schedule 14 which is neither welcomed nor sought by the public. If enacted, the bill will end the only real opportunity for a transparent adjudication into complaints against the police other than civil claims brought at court.

These reforms are in stark contrast to the proposals that had been set down by the home secretary Theresa May to make the police service more accountable to local people. Without an external body to regulate the complaints, where is the accountability?


Not far enough

The lazy provisions of the bill at paragraph 7 of the schedule state that the local policing body, being the Police and Crime Commissioners or the Mayor’s Office for Policing and Crime, may direct the chief officers to take such steps as the local policing body thinks appropriate in order for chief officers to comply with their obligations. However, I believe these provisions will not go far enough to address this issue, especially as the local policing body will not have the power of an ombudsman.

Without the presence of a dedicated regulatory body for the police it is clear that a vacuum of power will emerge and many abuses will go unchallenged. The only viable option available against the chief officers would be to bring judicial review proceedings to challenge their decision. But, with legal aid cuts on the way, will that avenue be open? We may see a return to a pre-Macpherson style landscape in policing, where the rights of the public and the protestor are not recognised and police accountability is nowhere to be seen.


Postscript:

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

http://www.solicitorsjournal.com/story.asp?storycode=18235&encCode=5011339861BC7112233JTBS737226611&eclipse_action=getsession