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

Solicitors Journal Blog -On the Beat

On the beat

6 April 2011

Sophie Khan talks shop April 6 - Speak now, or forever hold your truth

The tough new security measures that have been proposed by the Home Secretary to “help [the police] to do their work” on the day of the Royal Wedding will signal the beginning of a policy that will be used to interference with the right to protest beyond the 29 April. Once these proposals will come into force it will be difficult to stop the police abusing the powers that they have been given as we have previously witnessed with the disproportionate use of section 44 stop and search power against protestors. The new proposals will go as far as using ‘football-style’ banning orders for ‘known hooligans’ and the power to forcibly remove head and face wear at a protest. But what the new proposals do not set out is who will be classified as a ‘known hooligan’ and what rights they will have to challenge their classification? Without knowing the answers to these questions it is likely that many protestors could be subjected to an unacceptable interference will their right to protest. The police, in my opinion, are using this opportunity to redefine the landscape in which to protest and restrict this fundamental liberty which will see even more protesters classed as criminals. The new Metropolitan Police team, Operation Brontide, set up following the anti-cut demonstrations is a definite move by the police to crackdown on the right to protest, especially as it is hot on the heels of Operation Malone, which led to an unprecedented level of arrests of students across the country. But with many of these arrests now concluding in no further action have the men behind Malone taken advantage of the situation? I feel that they have and the distress that they have caused in criminalising the younger generation while they themselves ‘live the good life’ now needs to be scrutinised so that the same mistakes are not made again. The damage and distrust that has been then created by their actions should not be underestimated and the news that 138 UK Uncut protestors have been charged with aggravated trespass over their sit-in at Fortnum & Mason on 26 March galvanises feelings among protestors that the law is being used and abused to fit ulterior motives. If this is the case the police run the risk of discrediting their own investigations and opening up a chapter in policing that I felt was dead and buried. The right to protest will live on whether the police like it or not as many, like myself will not let this cornerstone of our liberty be extinguished without a fight.



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

Young Lawyer (Spring Issue)- Fight for your Right

Fight for your right
20 March 2011




When he was spotted pinching a policeman's hat during the siege of Millbank Tower, 22-year-old law student Bryan Simpson became instant tabloid fodder for the 'irresponsible' end of the student protests. So how come the likes of Michael Mansfield QC, Tony Benn and Noam Chomsky are among the 1,000-strong signatories to a campaign set up in his honour? We speak to the Strathclyde student and one of the Defend the Right to Protest team about keeping the police in check


“I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back”

Although my involvement remained peaceful throughout the occupation of Millbank Tower, I found myself painted as the ‘Scottish leader of the violent mob’ by the media.

When I returned to Glasgow I was hounded by tabloid journalists, who also harassed my parents and my grandad.

I was arrested two weeks later at my home in Glasgow at 6am by five metropolitan police officers on suspicion of violent disorder.

I was put in handcuffs and left to watch as they raided my flat for evidence, before being taken on a three hour car journey over the border to Cumbria. Once there I was subjected to more than eight hours of questioning. The only evidence they seemed to have about my "violent disorder" were newspaper clippings and BBC news footage which showed me shouting to the crowd "tory scum, here we come" – the chant of the day!

I was eventually released at around 7pm and was told to my personal belongings and my phone had been seized for evidence gathering purposes.

I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back.

My experience is in no way an exception. Dawn raids, usually used in drug and terrorism cases, are increasingly used by the Metropolitan Police in its policing of protests. I believe the primary objective of such a tactic is intimidation.

The difficulty with much of the law deployed in the context of public protests is that it is vague, which makes it relatively easy for the police to arrest people and relatively difficult for demonstrators to know when they have crossed the line.

It is highly possible that only a minority of the students arrested in connection with the recent student demonstrations will be charged, let alone convicted. More to the point, it is likely that those students who have had access to quality legal advice and who defend their actions will fair better in the end.

Bryan Simpson is a law student at Strathclyde University


The recent wave of student demonstrations has led to the arrest of at least 225 students following the launch of Operation Malone by Scotland Yard

Not all have been charged, but those who have face accusations ranging from breach of the peace to violent disorder. Some of these offences carry lengthy sentences – in the case of criminal damage it can be up to ten years imprisonment.


It is important for lawyers to see these charges in the wider context of the right to protest. As a means of expression, protests cannot be detached from the rights of freedom of expression. The European Court of Human Rights has taken this approach and recognises the value that public protest plays in any functioning democracy. As recent events in the Middle East have shown, sometimes the streets can be the most legitimate form of expression.

The risk is that in a climate where there has been an increasing overlap with the criminal law, antisocial behaviour law and antiterrorist legislation, the right to protest is trumped or marginalised by competing interests such as the protection of property rights, maintenance of public order or prevention of personal injury.

The law of protest is governed by negative rights. Every stage of holding a public protest has prescriptions. Notice must usually be given to qualify the demo as ‘lawful’. Certain words and gestures that can incur criminal liability must be avoided.

The threat of lengthy sentences loom over the crowd, with deterrence being the explicit rational.

This is not an environment conducive to greater public discussion. The protestor who is made to “face the full force of the law”, as David Cameron proclaimed after the occupation of Millbank Tower, is in a rather precarious legal position.

As those privileged few with direct access to the courts, lawyers are crucial to a culture where public protest is treated as a form of political expression worth protecting rather than something worth penalising or repressing.

The team is calling for all protesters who were arrested during the student demos to get in touch.

Fiona McPhail is a trainee solicitor based in Glasgow and a co-founder of the Defend the Right to Protest campaign. For more information visit www.defendbryansimpson.org


“There does not seem to be any debate about whether the police are in fact taking liberties. In my opinion, they are”

Operation Malone has resulted in vast and unnecessary arrests of students, many of whom have never been in contact with the police before and are being criminalised simply for exercising their right to protest.

There does not seem to be any debate in the public domain about whether the police are in fact taking liberties in the excessive use of their powers against the students. In my opinion, they are. Steps need to be taken now against this growing obsession of the men behind Malone to brandish a whole generation as ‘fair game’ trouble makers.

There must be an adequate response from both criminal and civil liberties lawyers against this unprecedented action by the police to stamp out all public descent. We as lawyers have to ensure rights are protected not just on the streets but also in court. When we fight in their corner we must remember that we are fighting for their freedoms and their future.

Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart Solicitors. Check out her blogs for us at http://www.solicitorsjournal.com/

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=18000&c=1