Miscarriages of JusticeUK (MOJUK) 22 Berners St, Birmingham B19 2DR municado, without any judicial supervision, and were subject to mistreatment and torture”. Tele: 0121- 507 0844 Email: [email protected] Web: www.mojuk.org.uk The then director of MI5, Eliza Manningham-Buller, was said to have thrown out a number of MI6’s staff from her headquarters in Thames House when she discovered their involvement in the extraordi - MOJUK: Newsletter ‘Inside Out’ No 609 (17/11/2016) - Cost £1 nary rendition. When the CPS announced last June there would be no prosecution, it explained: “Officials from the UK did not physically detain, transfer or ill-treat the alleged victims directly, nor did the CPS Decision in Abdel Hakim Belhaj Rendition Case Faces Legal Challenge suspect have any connection to the initial physical detention of either man [Belhaj and Saadi] or their Owen Bowcott, Guardian : The decision by the director of public prosecutions not to charge a families.” But the statement added: “Following careful review, the CPS has concluded that there is suf - former MI6 official for the 2004 abduction and rendition of a Libyan dissident, Abdel Hakim Belhaj, ficient evidence to support the contention that the suspect had been in communication with individuals is to be challenged in court. Lawyers for the human rights organisation Reprieve, which repre - from the foreign countries responsible for the detention and transfer of the Belhaj and Saadi families; sents Belhaj and his family, have lodged a judicial review claim with the high court in London alleg - disclosed aspects of what was occurring to others within this country; and sought political authority for ing that Alison Saunders “erred in law” in declining to prosecute Sir Mark Allen, who was previ - some of his actions albeit not within a formal written process nor in detail which covered all his com - ously head of counter-terrorism at MI6. The 23-page claim and its appendix of secret documents munications and conduct.” Sue Hemming, the head of the CPS’s special crime and counter-terrorism – which record joint CIA-MI6 plans to extract Belhaj from Malaysia and forcibly remove him to the division, said at the time: “Following a thorough investigation, the CPS has decided that there is insuf - torture cells of Muammar Gaddafi’s regime – are the latest twist in a protracted legal saga. ficient evidence to charge the suspect with any criminal offence.” Allen has always denied any wrong - Reprieve alleges that Allen “did not obtain any proper or adequate political approval” for the ren - doing. The CPS declined to comment on the legal challenge to its decision not to prosecute. dition, which was arranged with the then Libyan intelligence chief, Moussa Koussa. The judicial review challenge was drafted by barristers Clare Montgomery QC, Ben Jaffey and Ireland: Darius Savickis Wins €17,225 Damages for Assault by Prison Officers Helen Law. It argues that Saunders misdirected herself about whether rendition amounts to mis - A three-judge Court of Appeal has awarded a convicted rapist €17,225 after he sued the State for conduct in public office. It is a “conduct crime” and not a “results crime”, the submission states. assault, negligence and breach of constitutional rights arising from an assault while he was a pris - “The crime is constituted by the misconduct itself rather than the results that follow from it.” The oner in Castlerea Prison. Overturning the finding of a High Court jury that had initially awarded the submission also claims that Allen’s “admitted failure to properly disclose conduct and involve - man €225, Mr Justice Gerard Hogan stated that it was “very difficult to avoid the conclusion that ment to superiors and ministers may itself amount to misconduct in the context of a ‘rendition’ some of the witnesses tendered by the State told lies… in the course of their evidence”. operation, even if the public officer was unaware of the operation before it took place”. Background: In May 2013, Mr Darius Savickis sued The State for assault, negligence and A lengthy police investigation into the rendition, codenamed Operation Lydd, was carried out breach of constitutional rights arising from an assault while he was a prisoner in Castlerea by Metropolitan detectives. Last month the mayor of London, Sadiq Khan, seemed to suggest Prison. In the High Court, the jury found that he had been assaulted by prison officers and the police had recommended that Allen should be charged. Answering questions in the London awarded him €4,500 in damages, reduced to €225 after finding 95% contributory negligence assembly about the inquiry, he said: “The Metropolitan police submitted a comprehensive file of on Mr Savickis’ part.Mr Savickis had been convicted of rape in February 2009 and was serv - evidence (in excess of 28,000 pages) to the Crown Prosecution Service seeking to demonstrate ing a six-year prison sentence when the assault took place in Castlerea Prison on 29th that the conduct of a British official amounted to misconduct in public office.” September 2009, resulting in Mr Savickis being taken to hospital.A prison officer confronted Mr Cori Cryder, who is Belhaj’s lawyer, said: “Prosecutors should never bend over backwards to pro - Savickis and placed his head in a headlock while Mr Savickis clung to the railings in an effort tect the powerful. But that is precisely what happened here. The CPS was so keen to excuse Sir to resist being moved towards the exercise yard. At that point perhaps four to five more prison Mark’s actions that they invented creative excuses for his conduct that aren’t a legal defence to the officers quickly arrived and prised Mr Savickis from the railings and totally subdued him. crimes he was accused of. “They have treated Sir Mark’s victims appallingly, calling the family’s Mr Savickis did not respond to the actions of the prison officer in an aggressive manner; he did not views ‘irrelevant’ and refusing to address a single page of the reams of evidence [given] to police. attempt to strike out at the prison officer and did no more than cling to the railing. It was clearly evident They’ve even threatened to pursue the family for legal costs when the family have offered to drop in the CCTV footage that as he was being subdued by the prison officers using control and restraints all cases for just an official apology and pocket change. Should you ever find yourself on the wrong (C & R) techniques, he was struck three to four times by a particular prisoner officer with punches to side of the law, it seems, it very much helps if you come from the top of MI6.” the chest.Mr Savickis was subsequently brought to Roscommon County Hospital later evening and MI6 involvement in the rendition was confirmed after the collapse of Gaddafi regime in 2011 when the medical and nursing notes on admission showed bruising on his face and forehead, trauma injury fax messages from Allen to Koussa were discovered in Tripoli that suggested a “joint penetration oper - to his chest and traces of blood in his urine – consistent with “a blunt blow to the patient.” ations” be conducted against the Libyan Islamic Fighting Group, of which the exiled Belhaj was a promi - Mr Savickis subsequently commenced proceedings for damages for assault, negligence and nent member. Barely two weeks after the abduction of Belhaj – along with his pregnant wife, Fatima breach of constitutional rights.In summary, the jury found that although Mr Savickis had been assault - Boudchar – Allen was present in Libya, it is claimed, when the then UK prime minister, Tony Blair, met ed, he was guilty of 95% contributory negligence. The jury also found that the State authorities had Gaddafi in his tent. The legal claim says that while Belhaj and another rendered suspect, Sami al- been negligent in the manner in which they had provided training for staff in control and restrain tech - Saadi, were in Libyan detention, “the UK security and intelligence services sought and obtained access niques. All other claims were rejected by the jury.The jury ultimately awarded Mr Savickis the sum of to them and interrogated them in circumstances where it was obvious they were being held incom - €225 – representing a gross award of €4,500 reduced by 95%. The Court of appeal upheld the jury’s conclusions that the State authorities were entitled to suite using her own discretion. The force decided that the Custody Sergeant should face use appropriate force against Mr Savickis once he had refused to obey a lawful direction from management action in the form of advice from a senior officer, including a focus on the Alcohol the prison officer; and that the use of the C & R techniques was appropriate, but that these tech - and Drugs section of the Custody Detention Policy. niques had been applied in a negligent fashion due to inadequate training. Justice Hogan was As part of the IPCC’s independent investigation a doctor’s report stated that as Mr Yafai did satisfied that the excessive force used in the circumstances must be understood as amounting not appear on CCTV to be under the influence of drugs while being booked into custody, any to a finding (clearly supported by both the CCTV evidence and the relevant medical evidence) medical intervention would likely have consisted of observation and therefore would probably that Mr Savickis was unlawfully struck three or four times by a prison officer while he was sub - not have changed the outcome. The IPCC investigator’s conclusions included a recommen - ject to a C & R restraint. Justice Hogan considered that the jury’s award of damages in respect dation to the force that observation levels should be detailed in custody record risk assess - of the negligent use of the C & R techniques could not be disturbed, but that the jury’s finding of ments, which did not happen in Mr Yafai’s case. 95% contributory negligence was disproportionate. The jury’s award of a gross figure of €4,450 IPCC Commissioner, Derrick Campbell, said: “I would again send my condolences to Mr damages in respect of this assault was manifestly inadequate, and should be substituted by an Yafai’s family at this difficult time for them. This was a case where a young man died follow - award of €10,000. Setting aside the finding of contributory negligence in its entirety, Justice ing contact with the police so it was important for us to conduct a thorough independent inves - Hogan stated that, while it was clear that the principles of contributory negligence provided for in tigation, which we have done. “Although it appears little could have been done that would have s. 34(1) of the Civil Liability Act 1961 can apply to an intentional tort such as assault, there was prevented Mr Yafai’s death our investigation highlighted some important lessons and has also no basis at all for the jury’s finding that there had been contributory negligence on the part of Mr brought sharply into focus the duty of care and responsibility officers have to people in their Savickis so far as the assault was concerned. Contrary to the jury’s finding, Justice Hogan found custody.” The IPCC’s investigation, following a referral from West Midlands Police, examined Mr Savickis’ case to be one which called for an award of €5,000 exemplary damages for breach Mr Yafai’s arrest and detention and the care and treatment he received while detained. It con - of constitutional rights – as per the principles articulated by the Supreme Court in Conway v. Irish sidered medical evidence, CCTV footage and accounts from officers and other witnesses. National Teachers Organisation [1991] 2 IR 305. Conclusion: Allowing the appeal to the extent indicated in the judgment, Justice Hogan set aside the original sum of €225 and awarded Mr Deportation, Discrimination Citizenship Rights for Children Born Out of Wedlock.” Savickis €17,225 in damages. Seosamh Gráinséir for Irish Legal News Jo Moore, UK Human Rights Blog: In Jamaica in 1985, a baby was born to British father and a Jamaican mother. The child’s parents never married, and at the age of four he moved to the Terrence Bennett - Another Police Taser Death BBC News UK with his father. Under the law in force at the time, as an ‘illegitimate’ child, he did not auto - A man who died after police in Wiltshire fired a Taser at him has been named by the police matically acquire British citizenship. If his mother had been the British parent, if his parents watchdog. The Independent Police Complaints Commission (IPCC), said Terrence Bennett, 44, had ever married each other, or if an application had been made while he was a child, he died when a Taser was deployed and "he was restrained" by officers at an address in would have become a British citizen. But he did not. Warminster. Officers had been responding to reports of a man who had harmed himself and was Two decades pass and the Secretary of State attempts to deport that individual, Mr threatening to harm others on 27 October. The IPCC is investigating. A spokesman for the com - Johnson, following a string of very serious offences. He appeals on the ground that deporta - mission said it was looking to establish the "exact nature of contact" between Mr Bennett and the tion would be unlawful discrimination. If only his parents had been married, he would be a cit - police before his death. "During police interaction with Mr Bennett, Taser was deployed and he izen and not be liable for removal. The Supreme Court agreed. It held that there was no justi - was restrained. A knife was recovered from the scene," he said. "A post mortem has taken place, fication for someone in his position being liable to deportation simply through being born out and we await the pathologist's report." of wedlock, which was an accident of birth over which a child has no control. The Court also declared that a “good character” requirement for acquiring citizenship which applied only to IPCC Findings After Death of Mark Yafai Detained By West Midlands Police illegitimate children was unlawfully discriminatory and incompatible with the Convention. This The IPCC has completed its investigation into circumstances surrounding the death of Mark Yafai judgment represents a further step towards equal rights for children born out of wedlock. who took cocaine and later became ill following his arrest by West Midlands Police. Mr Yafai, aged 27 From nobody’s child to equal recognition : As any history enthusiast (or Game of Thrones fan) will and from Birmingham, was taken into custody at Coventry Central Police Station at around 4.30am know, children born out of wedlock have long been treated less favourably than their legitimate coun - on July 1, 2015, after his arrest in connection with a disturbance. After becoming unwell he was taken terparts. At common law, babies born out of wedlock were considered filius nullius, or “nobody’s to hospital just after 6.30am and died there a short time later. An inquest which concluded at Coventry child”, with no property or other succession rights. Gradually the law recognised the relationship Crown Court yesterday (Monday, 31 October) gave the cause of death as drug related. between a child and their mother, but the paternal relationship was of little consequence until the The force agreed with the conclusions of the IPCC’s investigation and determined that the Family Law Reform Act 1969 which recognised the status of illegitimate children for the purposes of Custody Sergeant who booked in Mr Yafai had a case to answer for misconduct for failing to passing down property. Illegitimate children remained on unequal footing as far as nationality was ensure he was medically examined after he divulged that he had taken the drug. In accor - concerned, though. The British Nationality Act 1981 gave citizenship to a child born out of the coun - dance with policy the officer should also have placed him on a higher level of observation – try whose father or mother was a British citizen, but provided that “the relationship of a father and although more regular checks were in fact carried out by another officer in the custody child shall be taken to exist only between a man and any legitimate child born to him”. 2 3 The Family Law Reform Act 1987 aimed to remove discrimination between children born Convention, is clearly unfounded. That depends upon (1) whether it is sufficiently within the in and out of wedlock, but did not apply to the 1981 Act. Equality in citizenship status was final - ambit of article 8 of the Convention to bring into play the prohibition of discrimination in the enjoy - ly enshrined in law by the Nationality, Immigration and Asylum Act 2002 which amended the ment of the Convention rights in article 14; (2) whether the discrimination had a “one off effect” 1981 Act, so that “father” meant a person who could prove paternity, with no question of mar - at birth or whether it has continuing consequences which may amount to a present violation of ital status. But that amendment only applied to children born on or after 1 July 2006. From the Convention rights; and (3) whether such discriminatory effect can be justified.” 1987, the Secretary of State had adopted a policy of granting citizenship to minors whose Baroness Hale delivered the single judgment . The Court considered a series of Strasbourg unmarried fathers were British citizens as long as they applied, and – if the child was over 16 decisions on Article 8 and citizenship and noted that private life has been held to include social – as long as they were of good character. The Immigration Act 2014 now puts that policy into identity and biological relationships. A denial of citizenship has an important effect on these law, and entitles children with a British citizen father to acquire citizenship on application. But matters, and so falls sufficiently within the ambit of Article 8 to trigger the application of Article the good character requirement remains. 14. Mr Johnson had failed before the Court of Appeal ([2016] EWCA Civ 22), who held that Foreign criminals and deportation: A British citizen cannot be deported. Non-citizens like Mr Johnson denial of citizenship at the time of his birth was not a violation of the Convention. Further, the who have been imprisoned for 12 months or over are “foreign criminals” whose deportation is deemed Court of Appeal considered that denial had been a “one off” event which occurred at birth with to be conductive to the public good (section 32(4) UK Borders Act 2007). The Secretary of State must no continuing effect. The Supreme Court disagreed; the denial currently and directly affected make a deportation order in respect of foreign criminals. However, deportation must not be effected if Mr Johnson, notably by rendering him liable for deportation. On the issue of discrimination, it an exception applies. Mr Johnson relied on s.33(2): “Exception 1 is where removal of the foreign crim - was well-established by Strasbourg case law that birth outside of wedlock is a “status” for the inal in pursuance of the deportation order would breach (a) a person’s Convention rights…” purposes of Article 14 (see Marckx v Belgium (1979) 2 EHRR 330). Moreover, it is one of the In August 2008, Mr Johnson was sentenced to nine years in prison for manslaughter. The “suspect grounds”, where “very weighty reasons” are required before discrimination on that Secretary of State subsequently served notice that he was liable for automatic deportation as a basis can be lawful. The final question was justification. Could the Secretary of State justify foreign criminal. He appealed, and the First Tier Tribunal found that while he enjoyed a private deporting those whose parents never married, where people in the same situation with mar - and family life in the UK, his deportation was nonetheless proportionate and lawful. However, it ried parents would not be liable for deportation? The Supreme Court answered in the nega - remitted to the Secretary of State the question of whether deportation was unlawfully discrimi - tive: “That is a present distinction which is based solely on the accident of birth outside wed - natory, given that the Claimant would not have been a foreign national if he had not been born lock, for which the appellant is not responsible, and no justification has been suggested for it.” out of wedlock. The Secretary of State decided that the order was not unlawfully discriminatory, Deportation in this situation would be unlawfully discriminatory. As such, Mr Johnson’s claim and refused to revoke it. She also certified his claim as “clearly unfounded”, meaning that Mr was not “clearly unfounded”, and the Secretary of State’s certification was quashed. His Johnson had no right to appeal the decision within the UK (per s.94 of the 2012 Act). The High appeal against deportation will inevitably succeed. Court proceedings which led to this judgment were concerned with those two decisions. The Good Character Requirement: Baroness Hale then considered the issue of citizenship Mr Johnson’s Challenge: The changes to citizenship law discussed above were of no help to applications. Individuals born before July 2006 to an unmarried British father can now apply for Mr Johnson. He was born before 1 July 2006, and his father had never applied for citizenship on British citizenship. Section 65 of the 2014 Act gives them a right to be registered as citizens when his behalf, even though it would have almost certainly been granted under the policy at the time. they do so. However, if they are a “young person or adult”, there is an additional hurdle at While it is open to him to apply as an adult, he is obviously no longer of good character, so his Schedule 9, section 70: the applicant must be of good character. The difference in treatment is application would be refused. He cannot become a British citizen. Mr Johnson instead fought the obvious. Those born to married parents, parents who later marry or a British citizen mother are deportation decision by relying on his right to a private and family life (Article 8 of the Convention) automatically and unconditionally entitled to citizenship. Due to a lack of justification, as identi - and to protection from discrimination in his enjoyment of that right (Article 14). fied above, that discrimination must be unlawful. So what should be done? Counsel for Mr The Supreme Court’s Decision: The question before the Supreme Court was simple enough: was Johnson argued that the 2002 Act should have retrospective effect, automatically turning the ille - Mr Johnson’s appeal against deportation “clearly unfounded”, as the Secretary of State had decid - gitimate children of British fathers into British citizens. This would do away with any question of ed? The Secretary of State argued that she had no option but to treat Mr Johnson as a “foreign crim - applying for citizenship and proving character. The Supreme Court disagreed. It was reasonable inal”, and therefore to order his deportation. Her decision could not be unlawful under the Human for an individual born out of wedlock to have to apply for citizenship if he wanted it. But to require Rights Act 1998, she argued, because the UK Borders Act 2007 required her to make the order. him to pass a “good character test” to be registered sets him apart from children born to married Section 6(2) of the 1998 Act provides that an action taken to give effect to primary legislation is not parents and that discrimination is unjustified. Accordingly, and although it was not necessary to unlawful under the Act. However, the 2002 Act, as we have seen, prevents deportation where determine Mr Johnson’s appeal, the Supreme Court made a declaration that s. 70 of Schedule removal would breach a person’s Convention rights, which is what Mr Johnson relied upon. It mat - 9 to the 2014 Act was incompatible with the Convention. tered not what the Human Rights Act said, and the s.6(2)(a) argument was “a red herring”. Conclusion: The effect of the above is to preclude the deportation of Mr Johnson and oth - The Court set out its task at paragraph 23: “The issue, therefore, is whether an appeal against ers in his position. They may not be British citizens, but they cannot be deported as “foreign the decision that section 32(5) of the 2007 Act applies to the appellant, on the basis that to deport criminals” either. If and when Parliament takes remedial action to amend the incompatible pro - the appellant now would be a breach of the UK’s obligations under the Human Rights vision of the 2014 Act, it will be open to Mr Johnson and others like him to apply for and 4 5 obtain British citizenship. The Supreme Court recognised that the case didn’t naturally tug at available. Additional inconsistencies across police departments were found as a result of dif - the heartstrings (as borne out by a number of indignant headlines when the judgment was fering levels of access that IOs had to police custody databases and Home Office fingerprint published). But, as the Supreme Court reminded us: “… the unsympathetic context in which records and the ability of Home Office IOs to access ACRO Criminal Records Office checks. the issue arises should not distract us from the importance of the issue to anyone who was It appears many of the problems associated with identifying overstayers and illegal immi - born to unmarried parents at the relevant time.” grants from arrested foreign nationals is as a result of underlying resource limitations, a lack of immigration enforcement training and knowledge amongst the police force and considerable Shortcomings Exposed in Detecting Illegal Foreign Criminals in Damning Report variation across the UK due to procedural differences and variable levels of collaboration Gherson Immigration: A recent report investigating the immigration checks being con - between the police and the Home Office. Whilst Operation Nexus appears to have success - ducted into foreign criminals highlights the significant shortcomings of a system that fully maximised opportunities to identify illegal foreign nationals across the metropolitan areas, appears to be ingrained with a lack of police knowledge, administrative deficiency's and a great deal more needs to be done to replicate these findings across the UK. Until then, more inconsistent procedures across police divisions. In January this year, the Home Secretary foreign national criminals will continue to go undetected in the UK. tasked the Chief Inspector of Borders & Immigration, David Bolt, with the job of investigat - ing "the extent to which the police are identifying and flagging foreign nationals arrested to Whilst Hundreds Rot in Prison - A Totally Irresponsible Referral by CCRC the Home Office and checking status." This month the Chief Inspector published his report, This appeal, brought on a reference by the Criminal Cases Review Commission, raises a which can be found here: http://tinyurl.com/hn436pd point of principle concerning costs of criminal proceedings. The point comes to this. Where a The results highlight a system in dire need of improvements. It appears in many parts of the convicted defendant has been ordered in the Crown Court to pay an amount towards the pros - UK the police are not referring foreign nationals arrested here to immigration officials for rele - ecution costs at a time when it is properly assessed that he has the assets to meet such a lia - vant immigration checks. The inspection focused on three main areas of the police force: the bility, can, or at all events should, he thereafter be permitted to appeal to the Court of Appeal Metropolitan Police Service (MPS), West Midlands Police (WMP) and West Yorkshire Police (Criminal Division) seeking a quashing or reduction of the costs order on the ground of a sub - (WYP). The police data indicated that over the course of one 12-month period (2014-2015), sequent change in financial circumstances? The appellant says that he can and should and between 185,000 and 193,000 foreign nationals were arrested by police in the UK. seeks to rely on a previous decided case to that effect. The respondent Crown says that he An immigration status check procedure known as 'Operation Nexus' was implemented in cannot, or at all events should not, and the appropriate application should be made to the 2012 whereby all foreign nationals or suspected foreign nationals arrested in the UK are to be Magistrates' Court as the collecting and enforcing court. referred to the Home Office's Command and Control Unit (CCU) in order to check the individ - Conclusion: In conclusion, therefore, we consider that it is not for this court to interfere with the ual's immigration status. This process thereby alerted the Home Office to cases where the for - costs order originally made or with its enforcement: it is for the Magistrates' Court. Any further pro - eign national may have overstayed a visa or entered the UK illegally, thus initiating any immi - ceedings in this case should continue there and the magistrates can assess the evidence adduced. gration enforcement action required. It can be expected that the magistrates, as well as the prosecution, will realistically appraise the posi - However this joint procedure was only put in place in collaboration with the MPS. Therefore tion of the appellant as advanced before that court, subject if necessary to any cross-examination the practice of ensuring immigration status checks varied considerably amongst police forces that may be called for. It is in fact a pity that the enforcement proceedings originally commenced in outside of London. Findings in the West Midlands left up to 10% of foreign nationals detained the Magistrates' Court, in what has become so protracted a matter, have been yet further delayed that were not referred for checks. The report found that foreign nationals who misrepresent them - by this appeal. In the result, we refuse to accede to these applications to adduce fresh evidence. We selves as EEA nationals or UK citizens were likely to be missed by the WMP, as a result of a lack dismiss this appeal. It also follows that for the future parties should proceed on the footing that this of knowledge within the force about the need to refer those individuals for checks. Similar issues court will not, as a matter of settled practice, entertain appeals against orders for costs properly made were found amongst the WYP as a result of pressure of work within the force and a lack of knowl - in the Crown Court at the time of sentence if the sole basis for the proposed appeal is an alleged edge about the potential for immigration enforcement action. The report findings indicate that subsequent change for the worse in the defendant's financial circumstances. less than 30% of all arrested foreign nationals were referred for immigration checks within the police forces outside of London compared to more than 50% within the MPS. MoJ Rules Out Homicide Law Review Monidipa Fouzder, Law Gazette The London Operation Nexus model was reported to have increased the identification of for - MOJ has dismissed calls to create US-style degrees of murder, ruling out a consultation due to an eign nationals who had committed immigration offences particularly because Immigration ‘already full programme’ of reform and legislation. In a letter to the chair of the House of Commons justice Officers (IOs) were embedded within police stations combined with a dedicated Nexus police offi - committee, justice minister Sir Oliver Heald said he did not share concerns that the law needed to be cer. The reporting models were found to vary amongst the West Midlands and West Yorkshire urgently reformed. Heald said the law covers all relevant areas of criminality and, as far as the govern - as a result of resource limitations, individual custody sergeants, and a lack of locally embedded ment is aware, there are no immediate legislative gaps that need to be filled. He also noted ‘very little IOs. Astonishingly across all areas, the report found some foreign nationals that should be sub - demand’ from the public for a review. Concerns about the law of homicide were raised last month when ject to immigration enforcement were released from police custody before being seen by an IO, the committee discussed proposals by the Law Commission to introduce new categories for murder: first- particularly when the individual was arrested 'out-of-hours' when no embedded IOs were degree, where a murder is intentional, and second-degree, where murderers do not intend to kill. 6 7 Acknowledging that the law relating to murder and manslaughter is complex, Heald said: ‘I about the perilous state of prisons are needed from jury findings at inquests, coroner’s do wonder, however, whether the apparently high number of appeals at least partly reflects the reports, prison inspection and monitoring boards and prison staff? Why are these warnings gravity of a murder conviction and the potential sentence that the offender is facing, rather than never acted upon?”. INQUEST has been working with the family of Levi Cronin since 2014. any clear deficiency in the judge’s directions given to juries during a trial.’ Heald said he thought The family is represented by INQUEST Lawyers Group members Lawrence Barker from juries understand what is required of them in a case where the issue is whether an unlawful Bindmans Solicitors and Jesse Nicholls from Doughty Street Chambers. killing has been prompted by an intention to kill or to cause grievous bodily harm. Acknowledging concerns about the sentences imposed in one-punch manslaughter cases, he said the govern - Legacy Inquests: Families Launch Legal Bid Over Funding ment plans to respond to the Sentencing Council’s forthcoming consultation on a proposed new Vincent Kearney, BBC News: Lawyers for families of more than 30 people killed in some of guideline for manslaughter. Heald questioned whether the committee’s suggestion of a review of the most controversial incidents of the Troubles have begun legal action against the Stormont homicide law starting with a public consultation is feasible in the near future, ‘in the context of the Executive and the government. It is a bid to force the release of funds for inquests into the department’s already full programme of reform and legislation’. He said: ‘Such a review would deaths. Northern Ireland's most senior judge has requested funding for a five-year plan to hear require significant resource, which is not currently available. Realistically, therefore, I am unable all outstanding legacy inquests. It has been estimated the cost would be at least £10m. As part to give a commitment to conducting a review in this area at this time.’ of the Fresh Start Agreement, the government pledged £150m for legacy issues. However, it said the money would not be released until there is a political agreement on how to “Interconnected System Inadequacies & Failures” Contribute to Death Of Levi Cronin deal with the past. Lord Chief Justice Sir Declan Morgan asked for the money that is needed for his Levi entered HMP Highpoint in August 2014 after a sentence for bike theft in April of that year. He plan to be released before an overall agreement is reached. But the request was blocked by First had a history of mental health problems which were known to the prison and was receiving treat - Minister Arlene Foster. Two months ago, Sir Declan called for urgent action, and said there is a legal ment from the prison mental health services. The jury heard evidence throughout the inquest that obligation on the government and the Stormont Executive to ensure the inquests are heard. Levi was a well-liked but sensitive and vulnerable young man. He died after using a ligature in the Lawyers representing the relatives of more than 30 people people killed during the Troubles prison shower room on 20th September 2014. Levi was the fourth prisoner to die from self inflicted have now initiated legal action. They are seeking a judicial review of the refusal to provide the injuries at HMP Highpoint between April 2013 and September 2014. Inquests into the deaths of resources needed for the inquests. The application has been made in the name of the daugh - David Smith, Steven Trudgill and Callum Brown at HMP Highpoint all expressed concern at the ter of one of 10 people shot dead by soldiers in the Ballymurphy area of west Belfast in 1971. prison's failure to learn lessons and provide a safe environment for vulnerable prisoners. A hearing has been listed for 14 December. The lawyers are asking the courts to order the Concluding the inquest, the jury recorded that there was a “series of interconnected system Department of Justice and the office of the First and Deputy First Minister, Arlene Foster and inadequacies and failures” which contributed to Levi’s death: 1. Insufficient recording of infor - Martin McGuinness, to immediately implement the legacy plan. They are also seeking an order mation, for instance concerning Levi’s welfare. 2. Insufficient communication between depart - to compel the Northern Ireland Secretary of State to use his legal powers to direct that imme - ments concerning Levi’s welfare. 3. Inadequate staffing levels resulting in the failure of the diate steps are taken to implement Sir Declan's proposal. offender supervisor to see Levi in good time and the failure to follow up referrals to the men - A lawyer for the families, Padraig Ó Muirigh, said the relatives felt they had no option but to go tal health team and arrange subsequent appointments. 4. Inadequate support and supervision to court. "This issue shouldn't be dependent upon a political agreement, it's a stand-alone issue. to the mental health team. The Coroner will be issuing a prevention of future deaths report not - We hope that the court directs that action is taken on this. These families have waited a very, ing concerns around the recording and sharing of information by prison and healthcare staff. very long time. There has been an unacceptable delay, their human rights have been breached. Levi’s sister Maureen said: “We feel that Levi’s death was completely avoidable and it is a Going to court was an option of last resort, but we hope with the court's interference that this tragedy which has greatly affected our family. We are very grateful to the jury for the immense issue can move forward." In September, Mr Ó Muirigh handed a letter to an official representing care they took in listening to the evidence throughout the inquest and their courage in provid - the secretary of state warning that legal action would be launched if funding for the inquests was ing their conclusions. We implore those responsible for caring for vulnerable people in custody not released within 14 days. The Stormont Executive and Department of Justice received simi - to heed the jury’s concerns so that such deaths might be avoided in future”. lar letters. But in a statement released at the time, a spokesperson for the Northern Ireland Office Lawrence Barker from Bindmans Solicitors, acting on behalf of Maureen Cronin said: “The jury’s (NIO) made it clear that the secretary of state believed it is up to Stormont to resolve the issue. conclusions in Levi’s case highlighted areas of very significant concern that were common across the four self-inflicted deaths that occurred at HMP Highpoint during an 18 month period. Both the Juries Can’t Understand Technical Evidence, Say Experts prison and the prison healthcare provider repeatedly asserted that lessons have been learnt and Some 60 per cent of experts believe juries in criminal trials are not equipped to understand improvements made, however it is clear from the areas identified by the Coroner for his Prevention technical expert evidence, according to new research published today. A survey of 750 expert of Future Deaths report that serious concerns remain around the treatment being provided to vul - witnesses, conducted by Bond Solon, has found that 45 per cent of experts do not think trials nerable individuals. It is the hope of the family that there might now be meaningful change”. should be heard by a judge alone, although 39 per cent thought technical trials should have a Deborah Coles, Director of INQUEST said: “Sadly there is nothing new about these findings judge only. Some 57 per cent of respondents thought judges are able to understand technical - the same systemic failings are reported month on month. How many more warnings evidence. Mark Solon, chairman of Wilmington Legal and founder of Bond Solon, said that 8 9 having judges conduct criminal trials alone would set ‘a dangerous course’ where a defen - the court to determine disputed issues of expert evidence, reduced the length of the trial, dant ‘could be found guilty purely on the opinion of an expert witness’. and saved costs. Some said hot-tubbing was also being used in mediations and early neutral Attempting to explain why some experts did not believe juries understand technical evi - evaluations. Only one respondent felt that the practice achieved nothing. The findings echo dence, Solon said it ‘could either be due to experts not explaining things properly or clearly those of a Civil Justice Council report from August. enough, or because the issue is so complex ordinary citizens can’t be expected to under - One-fifth of respondents also reported a growing number of court orders for single joint stand’. ‘If the former, then experts may need further training and perhaps judges should allow experts, a shift that on balance found support. While 37 per cent approved of this development, 23 different types of evidence to help juries understand, for example, from videos or demonstra - per cent said such orders should only be made in very limited circumstances. Some 68 per cent of tion aids,’ he continued. ‘If the latter, then it could be argued that the judge should direct the experts were generally happy with the quality of instructions from solicitors, while the rest found jury on the issues having had advice from the expert direct.’ them slipshod, increasingly so in some cases due to the strain the lawyers were under. Elsewhere in the survey, about two-thirds of experts thought criticism of their work would deter However, late payment by solicitors remains a significant problem, with just 10 per cent of them from giving evidence in the future and over one-quarter said they had considered quitting experts reporting they were paid on time. Some 42 per cent said they were paid ‘very late and over the past 12 months. The main reason for ceasing expert work included the risk of being only after a lot of chasing’. Only one in five said solicitors always or usually let them know the sued in contract or negligence, following Jones v Kaney, while one in four cited the risk of disci - outcome of the case – which is often linked to when they can expect payment. Sir Anthony plinary proceedings. ‘There have been several instances recently where experts have been crit - Hooper, chair of EWI, said: ‘Experts and solicitors must work together. The survey shows that icised for their opinions, said Solon. ‘The case of Dr Waney Squier is the most recent. She dis - there is room for improvement in the manner in which solicitors treat their expert witnesses.’ puted the existence of shaken baby syndrome and has said she was struck off from her profes - sional body because her views challenged the establishment. She has appealed. A General Asian Police Officer Branded 'Just a P***' by Colleagues Awarded £457,664 Damages Medical Council panel called her evidence “dishonest” and “deliberately misleading”. Jeremy Armstrong, Mirror: An Asian police officer who protected top VIPs has been The High Court (3 November 2016) cleared the paediatric neuropathologist of dishonesty, say - awarded nearly half a million pounds after he was branded ‘just a P***’. Nadeem ing her views were ‘honestly held’, but Mr Justice Mitting found her actions did amount to seri - Saddique, who guarded the Royals, US President George Bush and PM Tony Blair was ous professional misconduct. ‘Two other pathologists, Dr Irene Scheimberg and Dr Marta Cohen, awarded £457,664 in a race discrimination case. A tribunal heard he was subjected to who are also critical of shaken baby syndrome, no longer give evidence in court because they vile racist abuse and victimisation by senior police officers and colleagues. One officer say they are afraid of the possible consequences.’ Following cuts to legal aid and the introduc - had an English Defence league sticker on his weapon. He was also referred to as ‘just a tion of the Jackson reform’s proportionality for costs, over half of experts to the Bond Solon sur - P***’ and a ‘black c***.’ After the hearing to decide his damages, PC Saddique said: “This vey said the pay they received was not enough to justify the work undertaken. has been a lengthy and extremely difficult process, which has taken a serious toll on my A separate poll of 154 experts, recently conducted by the Expert Witness Institute, also health and my family. I never wanted it to go as far as a tribunal, but after experiencing showed little love for the Legal Aid Agency among those experts who did legal aid work. Some problems with discrimination for a number of years within the force and exhausting all 59 per cent considered the fee rates unsustainable, while 21 per cent thought the agency’s rules avenues internally without success, I had to do something.” too restrictive. ‘One must remember that expert work is for most experts a secondary source of income as they have the day job working in their professional field,’ said Solon. ‘If fees are too West Midlands Police Officers and Staff to Face Misconduct Proceedings low, the best experts will not bother to get out of bed and will refuse to take on the work. Only Eight police officers and one member of police staff will face misconduct proceedings fol - those who are willing to work for the lower rates will take it on. Jackson also introduced much lowing an IPCC investigation into the alleged assault and racial abuse of a man arrested at his tighter court-controlled time limits that can be difficult for professionals to comply with.’ Birmingham home by West Midlands Police. Previous referrals in relation to the matter led to Perhaps of more concern, however, is that some 46 per cent of respondents said they had the IPCC determining in June 2013 that an independent investigation should take place. That come across experts who they considered ‘hired guns’, willing to give an opinion for a fee that looked into Donville Lorenzo’s complaints about his treatment during his arrest and detention helps the side paying them. Some 30 per cent said they had felt pressured by the lawyers to at Bournville Police Station in November 2007, and his dissatisfaction with the standard of a change their report in a way that damages impartiality. The survey of EWI experts showed local investigation carried out by the force’s Professional Standards Department in 2008. He even worse figures, with 54 per cent of respondents reporting being placed under pressured also alleged that police colluded over witness statements they produced in respect of an to change a report. Solon explained that some of the examples given to Bond Solon were alleged assault by him against an officer in custody. No action was taken against Mr Lorenzo ‘overt’ but others suggested ‘they would not get further work or would not be paid’ unless the over the incident which led to police attending his home and arresting him, and his conviction expert opinion helped a particular side’s case. ‘Clearly lawyers need reminding of the rules for assaulting an officer in custody was later quashed on appeal. and judges need to keep a careful eye out for bias,’ he said. Following the completion of the IPCC investigation nine police officers and staff will now face The EWI survey has also shown that ‘hot tubbing’ is assisting the courts and reducing costs. misconduct proceedings. Another two former officers were found by West Midlands Police to Though only 15 per cent of the experts had been involved in the key innovation introduced have cases to answer for gross misconduct and misconduct but as they have retired no action by the Jackson reforms, those who had gone through the process reported that it assisted can be taken against them. There will also be no action taken against a former officer who is 10 11 now carrying out a civilian role with a different force. The former officer’s new force disagreed that of those who had come to observe the trial were supporters of Fathers4Justice, while others there was a case to answer for misconduct and that was accepted by the IPCC. The actions of a were not affiliated with that organisation but were interested in Mr O'Connor's case because they further eight police officers were investigated and they were found to have no case to answer. believed that he was a victim of unfair treatment by the Hampshire Police. IPCC Commissioner for the West Midlands, Derrick Campbell, said: “This was a complicated At around 9.30am Mr O'Connor and those with him attempted to enter the court building to wait case given the length of time since the original incident, the legal background to it and the nature in the public area until his case was called on. Unknown to them, however, a decision had been of the allegations. We have conducted a very thorough investigation and having discussed our taken to bar anyone who appeared to be associated with Mr O'Connor from entering the court build - report with the force it was agreed that a total of nine officers and staff should face misconduct ing, unless they were listed as a witness for the defence. The only list of expected witnesses was proceedings, and that will take place in due course.” The misconduct proceedings to be held on contained in a case management form completed by the Crown Prosecutor at the first hearing on dates to be fixed are for: • Four police constables and an inspector who face combined gross 23 September 2014. No one who attempted to enter the court building with Mr O'Connor was named misconduct/misconduct hearings • One police constable who will face a gross misconduct in that list. Consequently, they were all refused entry to the court building by the security staff. hearing • A police sergeant and a police constable who will face misconduct meetings. • A Conclusions: The claimants raised a number of other points. These included criticism of a member of police staff who has been referred to the police staff disciplinary procedure. procedure outlined in the HMCTS policy documents for issuing a "banning letter" to inform an individual that he or she is banned from entering a particular court building for a specified peri - The Queen v Matthew Glyn O'Connor & Donald Jerrard od of time. Dr Pelling submitted that HMCTS has no lawful authority to issue such letters and This case raises questions about the respective powers of courts and court staff to exclude that to do so involves a usurpation of powers which belong only to the courts. Although that members of the public from a court building because of a perceived risk that they will cause dis - question does not arise for decision, as no "banning letter" was issued in this case, this criti - ruption and about when an unlawful limitation of access deprives a hearing of its public character. cism seems to us to have considerable force. It is apparent from the pro forma "banning let - The first claimant, Mr Matthew O'Connor, is the founder of an organisation called ter" annexed to the HMCTS operating procedures that such letters assume that HMCTS has Fathers4Justice. He was summoned to appear at Basingstoke Magistrates' Court on 23 the ordinary rights of an occupier to restrict entry to its premises. We have explained in this September 2014, charged with an offence under section 5 of the Public Order Act 1986. On judgment why that assumption is mistaken. 23 September 2014 Mr O'Connor pleaded not guilty and the trial was adjourned until 12 We also mentioned earlier that arguments were advanced by the claimants based on arti - November 2014 at Aldershot Magistrates' Court. On 12 November 2014 the district judge dis - cles 6 and 10 of the European Convention on Human Rights. We have not found it necessary closed that he knew someone connected with the case. Mr O'Connor asked the district judge to address those arguments because this is a case where, without recourse to the Convention, to recuse himself. He also asked for an adjournment on the ground that two members of the the common law has all the resources needed to protect the rights concerned. public attending the trial had allegedly overheard the Crown Prosecutor coaching a prosecu - For the reasons given, we will make declarations: (1) that the refusal of HMCTS staff and of tion witness outside court. Mr O'Connor indicated that he wanted time to prepare an argument the magistrates sitting at Aldershot Magistrates' Court on 20 February 2015 to allow Mr Jerrard based on the evidence of these two individuals that the prosecution evidence was tainted and and other members of the public to attend Mr O'Connor's trial was unlawful; and (2) that, in that the case should be dismissed for this reason. The district judge decided that he should consequence, no valid proceedings in Mr O'Connor's trial took place on that day. recuse himself and the trial was again adjourned. The case was subsequently re-listed for hearing at Aldershot Magistrates' Court at 10am on Prosecutors 'Must Co-Operate More' With Defence Lawyers 20 February 2015 before three lay magistrates. Mr O'Connor arranged through social media Source: ‘The Brief’: Prosecutors must improve their correspondence with defence lawyers before to meet members of the public interested in attending his trial before court on that day. He hearings, the watchdog overseeing criminal processes said yesterday. Inspectors accused the planned to hold a protest outside the court building with his supporters, as he had done on the Crown Prosecution Service of having "inconsistent" pre-hearing engagement with defence lawyers, days of the two earlier court hearings. The Hampshire Police were aware of the planned saying that there was a need for "significant improvement" if recently imposed case management protest and a police officer, Inspector Vardy, contacted Mr O'Connor by email on 18 February systems were not to fail. Officials for Her Majesty's Crown Prosecution Service Inspectorate also 2015 to explain that he would be attending on the day as Police Liaison Officer. Inspector called on prosecutors to engage with digital case management systems. In the report, inspectors Vardy was present outside Aldershot Magistrates' Court on 20 February 2015, but in the event said that after a first hearing and before plea and trial preparation hearings, prosecutors should Mr O'Connor decided not to hold a protest before the trial. "promptly" add the prosecution bundle of evidence, the indictment and the pre-trial hearing form to Between around 9am and 9.30am some eight to ten people assembled outside Aldershot the digital case system. Inspectors said that they found "that all of these aspects need to be carried Magistrates' Court. As well as Mr O'Connor himself, they included Dr Pelling, who was acting as out more efficiently". They also told the CPS that cases should be reviewed within 72 hours of the Mr O'Connor's McKenzie friend, and Mr Donald Jerrard, a retired solicitor who is the second first hearing, pointing at figures showing that currently 56.5 per cent received a "proper and propor - claimant in these proceedings. Others present included Mr Anthony Hooke, who is a member of tionate" review with a further 28.8 per cent having received "some sort of review". Only 13 per cent Hampshire County Council, and Mr Stanley Evans, a retired engineer. Mr Hooke and Mr Evans were reviewed within the prescribed time. A CPS spokesman said that the inspection took place with - were the two individuals whom Mr O'Connor was intending to call to testify that they had over - in a few months of implementation of the beefed up case management initiative. "We will study the heard the Crown Prosecutor coaching a witness before the previous court hearing. Some findings carefully as we continue to make further improvements," he said. 12 13 DPP Wrong To Argue That Man Unfit To Be Tried Must Be Committed To Mental Hospital 2006, a judge is only empowered to send a person found unfit to be tried to that insti - Seosamh Gráinséir for Irish Legal News:The Irish Court of Appeal has rejected two com - tution for assessment purposes on an in-patient basis – the Act does not provide for it to plaints from the Director of Public Prosecutions regarding a finding by the Central Criminal be done on an outpatient basis. Court that an accused rapist was unfit to be tried. Rejecting the argument that the man should The psychiatrists on both sides of the case were in agreement that it would be contrary to the have been committed to the Central Mental Hospital; Justice Edwards stated that the Criminal welfare of MB to commit him to the Central Mental Hospital even if it was only on a short term Court judge was not empowered to do so, and that medical expert witnesses had advised basis for assessment purposes – therefore it would have been inappropriate for the trial judge to against it in any case. MB was charged before the Central Criminal Court for 27 counts of rape make an order contrary to express medical evidence. To have done so would have been to and 29 counts of sexual assault against a female (CC) between 1994 and 2000. In March expose MB to a risk of harm and potentially to breach several of his constitutional rights, and 2015, following a trial of the issue as to whether MB was fit to be tried, the Central Criminal rights guaranteed to him under the ECHR, including his right to bodily integrity, his right to liber - Court determined that MB was unfit to be tried under the Criminal Law (Insanity) Act 2006 (as ty and his entitlement, as an aspect of his right to be treated with human dignity and to amended by the Criminal Law (Insanity) Act 2010). autonomous decision making in regard to issues relating to his own health. Accordingly, the The DPP appealed to the Court of Appeal upon two complaints: 1.There was an appeal on three-judge Court of Appeal was satisfied that the trial judge could not lawfully have sought to the merits against the Central Criminal Court’s determination: i.e. that the presiding judge was commit MB to the Central Mental Hospital in reliance on s. 4(6) of the Criminal Law (Insanity) Act incorrect in preferring the evidence of a consultant forensic psychiatrist called as an expert wit - 2006, and the DPP was “in error in suggesting otherwise”. Conclusion:The Court did not see fit ness on behalf of MB to that of a consultant forensic psychiatrist called as an expert witness to uphold either of the DPP’s grounds of complaint, and the appeal was dismissed. on behalf of the DPP. 2.There was a complaint that the Central Criminal Court judge, having found MB unfit to be tried, failed thereafter to follow the required statutory procedure – it was The Queen v Gurpal Singh - Conviction Quashed Retrial Ordered contended that the judge was wrong in adjourning the case simpliciter on the 11th of March On 6 and 7 July 2015 in the Crown Court at Snaresbrook (before Her Honour Judge Lees) the 2015 pending further order, without making any order pursuant to s.4(5)(c)(ii) of the Criminal appellant (now aged 23) was convicted (by a majority) of charges indicted as counts 1A and 2A, sex - Law (Insanity) Act 2006; alternatively, pending the making of such an order, without directing ual activity with a child contrary to s.9 of the Sexual Offences Act 2003, and count 3 attempted rape an examination of MB by an approved medical officer at a designated centre, and a report from of a child. He appealed against these convictions by leave of the Single Judge. Instead of a clear the said approved medical officer concerning the treatment needs of MB, pursuant to the pro - direction on the credibility limb of the good character direction the Jury was given a direction which visions of section 4(6) of the Criminal Law (Insanity) Act 2006. was both mistaken in analysis and unclear in expression. In our view the summing up on character The appeal on the merits: The DPP’s complaint was that there was an inadequate eviden - contained material misdirections. Nor are we persuaded by Mr Weaver that this is a case where, tial basis for the views put forward by Dr O’Connell that MB was suffering from a depression notwithstanding the errors we have identified, the convictions are safe. It is clear that the credibility in the context of an intellectual disability that was operating so as to interfere with his cogni - of the appellant was a crucial element in the case. As the Judge expressed it in the course of her tive capacity. For the DPP “to have succeeded on the merits she would have to have been in summing-up. The reality is that there is a direct conflict between what [A] says happened and the a position to demonstrate that there was simply no evidence capable of supporting Dr defendant says happened.In these unsatisfactory circumstances we concluded that the convictions O’Connell’s view”. Justice Edwards found that “there was more than adequate evidence capa - were unsafe and should be quashed, and we ordered a retrial. ble of supporting” Dr O’Connell’s view, and therefore rejected the appeal against the merits of the trial judge’s ruling that MB was unfit to be tried. The procedural issue: Once the trial judge HMP Risley – A Disappointing Training Prison had declared MB unfit to be tried, prosecuting counsel submitted to the trial judge that he was HMP Risley needed to improve and to build a sense of purpose as a training and resettle - obliged at that point, by the combined terms of subsections (5) and (6) of s. 4 of the Criminal Law ment prison, said Peter Clarke, Chief Inspector of Prisons. As he published the report of an (Insanity) Act 2006, to direct that MB should attend a designated centre, either on foot of a com - unannounced inspection of the training jail in Cheshire. HMP Risley holds just over 1,110 men, mittal order, or on a voluntary basis as an outpatient, for the purpose of being assessed as to his mainly from the north-west, representing a full range of ages and sentences. At its last inspec - treatment needs by an approved medical officer, who would then report to the Court, and that tion in 2013, outcomes for prisoners were mixed. This more recent inspection found a similar pending receipt of the approved medical officer’s report he should adjourn the case until further variable picture with some deterioration, and a prison that seemed to be struggling to fulfil its order. Justice Edwards emphasised the importance of appreciating that “a finding of unfitness to core purpose as a training jail. Prisoners did not have enough time out of their cell to partici - be tried does not necessarily mean that a person is unfit, or lacks the capacity, to take valid deci - pate in work and learning, and the prison’s approach to resettlement needed to improve. sions concerning whether or not they will seek, and/or avail of medical treatment”. Inspectors were concerned to find that: 27 recommendations from the last report had not been In R v. Berry [1977] 66 Cr App R 156 it was said that “a high degree of (mental) abnormali - achieved and 13 only partly achieved. • the daily routine was not being delivered and inspectors ty does not mean that the man is incapable of following a trial or giving evidence or instruct - heard that industrial relations difficulties had led to the regime being curtailed; • a third of pris - ing counsel and so on” – therefore a mentally ill defendant can be both psychotic and fit to oners were in their cells during the working day; • all areas of learning and skills provision need - plead, and conversely, an unfit person would not necessarily require admission to a psychi - ed to improve; • there were not enough work, training or educational opportunities and most pris - atric hospital for treatment. Significantly, under s. 4(6)(a) of the Criminal Law (Insanity) Act oners were only employed part-time; • the prison did not have a grasp of the resettlement 14 15 needs of its prisoners; • many prisoners did not have an assessment of risk and their contact complete profile; however, this did not match any profiles on the DNA database at the time. with offender supervisors was poor, as was public protection work; • there had been a marked Ibrahim told police she had fought off her attackers with her hands, yet her lawyers assert that increase in the use of force and inspectors could not be assured that the increase was justified; her bloodstained ring was not tested for DNA, despite one of the officers writing in their note - • standards in accommodation varied greatly and many aspects were poor. book that this should be done. Ibrahim says she was later told the ring had been lost and it Peter Clarke said: “This is a disappointing report. Risley has a clearly defined role in train - formed no part of the court case. Her shoes and leggings were also not tested for DNA, ing and resettlement but needs to improve governance in many areas and build a sense of according to her legal team. In their submission to the review commission, they note: “There purpose that is owned by staff as well as prisoners. The prison needs to go back to first prin - can be little worse than suffering an attack of this nature and then being disbelieved, prose - ciples in determining how best it can assess and resettle its prisoners. It needs sufficient work cuted and imprisoned. If Ms Ibrahim’s account is true (and, for the avoidance of doubt, we and education to fully employ all, but beyond this, it should create an ethos that values work believe that it is) the injustice of her wrongful conviction is one of the most serious failures of and learning and incentivises engagement by prisoners.” the criminal justice system in recent times. We would ask you to note that our client has now served her sentence and has been released – this is not an attempt to appeal by a person Woman Jailed For Faking Own Violent Rape Battles to Clear Her Name seeking release from custody, but by a person seeking justice.” The CCRC has the power to Helen Pidd, Guardian: A woman accused of beating herself up and faking her own violent rape send cases to the appeal courts if its experts think there is a real possibility that appeal judges has launched a bid to clear her name. Layla Ibrahim, 29, from Carlisle, was seven months pregnant will quash a conviction or change a sentence. Usually the CCRC only considers cases where when she was given a three-year jail sentence in 2010 for perverting the course of justice. She had someone has already tried to appeal, unless there are “exceptional circumstances”. no history of mental illness and no previous criminal record. Her daughter spent the first year of her Ibrahim did not appeal while in prison, claiming her barrister told her there was no point. She was life in prison following Ibrahim’s conviction. Now released, but reportedly unable to find work because also preoccupied inside with being a first-time mother, after her daughter was born in August 2010. of her criminal record, Ibrahim is launching an appeal with the criminal cases review commission, Her lawyers believe her circumstances are exceptional, because her name could be cleared with which examines possible miscarriages of justice. Ibrahim’s lawyers claim crucial forensic evidence fresh evidence they cannot obtain but which may fall within the CCRC’s special investigative and was destroyed or ignored and that police failed to properly investigate witness sightings and possi - information gathering remit. Her solicitor, Nigel Richardson, from Hodge Jones and Allen, argues that ble suspects. In a letter written to the commission, her legal team allege that Cumbria police spent three local suspects were not investigated thoroughly. “More information about these suspects – £153,990.95 to “prove” their hunch she had invented the entire account. namely their involvement in other sexual assaults – has come to light since the conviction. This infor - During her trial in July 2010, the prosecution accepted that Ibrahim had sustained significant mation demands further scrutiny and investigation,” he writes in the submissions. One day it could injuries to her breasts and genitals before police had been called to see her on 4 January be your sister, your auntie or your cousin being told they have ‘wickedly fabricated a grave crime’ 2009. She had turned up distressed at her sister’s house in Carlisle in the early hours, saying One possible suspect was a paranoid schizophrenic from the local area. Shortly after Ibrahim she had been attacked on her way back from a night out with friends. She was in a dishev - claims she was attacked, a 25-year-old man was jailed for grabbing and violently raping a woman. elled state, with her dress, bra and leggings showing signs of damage. She had also suffered According to Thompson, by the time the man was arrested for that crime, Cumbria police were no a blow to her head, which may have been caused when she was knocked to the ground, and longer investigating Ibrahim’s rape, having decided she had made it all up. Yet Ibrahim insists the efit had lacerations, scratches and bruising to her knees, breasts and face, and was bleeding from she provided to police bears a “striking” resemblance. The manner of his attack also bears the same the vagina. A forensic physician, Dr Jason Payne-James, gave evidence at the trial suggest - hallmarks as her own. Unused evidence bundles from the trial have yielded witness statements from ing most of her injuries “could” have been self-inflicted, with the intimate bruising perhaps members of the public who reported men seen the area at the time of the attack. Their descriptions caused by consensual sex of some sort. But Ibrahim’s new legal team argue Payne-James’s matched those given by Ibrahim yet were not followed up by police. evidence was “highly speculative” and unreliable. It was challenged in court at the time by During Ibrahim’s trial in the summer of 2010, no real motive was offered by the crown. In his draft another forensic expert, Dr Catherine White, who has now written questioning the conviction. opening note, the prosecuting barrister, Tim Evans, makes reference to a text conversation Ibrahim When interviewed by police, Ibrahim said she had been attacked by two strangers and had had with her ex-boyfriend a few hours before the attack. The ex “fobbed her off”, Evans told the jury. lost consciousness but was not sure if she had been sexually assaulted. She talked only of In the judge’s summing up there was also mention of an argument over a tomato sandwich with her recalling a “thud” in her vagina which she described as being like having an object in her vagi - ex a few days before the attack. Evans also suggested she was cross because her friends refused to na that was too big. She told officers she had defended herself against the men with a pair of share a taxi home with her. A year after the incident, one of those friends, Richard Dent, told police he scissors from her handbag, swinging them at one of her attackers. The second man had taken remembered her saying, shortly before walking home, “what would you do if something happened to the scissors from her, she said, and used them to cut her hair, before both men fled the scene. us?” According to Ibrahim’s lawyers, Dent sent texts to her saying the police had pressed him and her They took one of her shoes, perhaps to slow her escape. ex to make her look bad in their statements. Opening the case, Evans suggested Ibrahim may have She was taken for a forensic examination, in which a blond pubic hair was discovered – faked the attack in order to teach Dent and her ex “a lesson” and gain some sympathy. Much empha - strongly suggesting intimate contact between her and another. But this potentially vital piece sis was placed on inconsistencies in her evidence – perhaps unsurprising considering she had been of evidence was destroyed in the lab during DNA testing, her lawyers say. Bloodstained leaves drinking on the night in question and claimed to have been knocked out during the attack. The pros - were found near the scene –the blood came from a male and was capable of forming a ecution also said that clumps of her hair were found too far away from where she claimed to have 16 17 been attacked, suggesting she cut her own hair, as well as her dress, on her way home. question of what ‘agreed facts’ go before criminal juries in relation to deaths in custody, given Almost eight years on from that night Ibrahim is now happily married with three children. But she remains that the narrative conclusion of the inquest jury was excluded from the criminal trial.” furious at what she insists was her wrongful conviction. “This is my life,” she said. “This has ruined my Deborah Coles, Director of INQUEST said: “Sean Rigg’s family have struggled at every life.” She said she was speaking out to raise awareness of others prosecuted for making false rape alle - stage of this eight year process for honesty, truth and justice.The failure of the IPCC to con - gations – figures compiled by campaigners in 2014 suggested 109 women had been in that position in duct an efficient, robust and competent investigation and the inexcusable delays in CPS deci - the previous five years. “I want people to understand that this does happen. One day it could be your sion making have been exposed as a barrier to proper democratic police accountability. If left sister, your aunty or your cousin being told by a judge that they have ‘wickedly fabricated a grave crime’,” unchecked, this institutional inertia will allow abuses of power to go undeterred and continue she said. “I know deep down that one day my name will be cleared. There will be some way to clear my to undermine public confidence in the police complaints system.” name. My kids deserve that too. That’s all that matters to me,” she said, insisting she had no interest in Daniel Machover, solicitor for the Rigg family said: “Despite the verdict it was right that the compensation. “There’s no money in the world that would justify what happened to me.” Her application issues in this very tragic case were aired in front of a jury. True police accountability requires a to the review commission is being supported by Women Against Rape. Director Lisa Longstaff said in willingness by CPS to prosecute in appropriate cases. The Rigg family showed courage and per - her submission: “It is our considered view that a number of miscarriages of justice have resulted from sistence in their pursuit of justice, and achieved the first ever use of the Victim’s Right of Review negligent and biased investigations into the original rape complaints. Ms Ibrahim’s is such a case. We to change a CPS decision not to prosecute a police officer. However, the process had already believe that her conviction is unsafe and should be quashed, and that there should be a new investiga - been severely flawed by the seven month delay in interviewing Sergeant Paul White, and the fur - tion so the men who attacked her can be brought to justice and stopped from attacking others.” ther lapse of three years before Sgt White gave evidence at his trial. He then successfully argued that his memory of the event was compromised by the delay. The failure in this respect Sergeant Found ‘Not Guilty’ Of Perjury Following Death of Sean Rigg In 2008 lies squarely at the door of the IPCC. It is a long march towards full justice and accountability for A jury today found Sergeant Paul White of the Metropolitan Police not guilty of perjury. The trial fol - victims of excessive force at the hands of police, but this case represents a significant milestone.” lowed an investigation into Sgt White’s evidence at the inquest concerning the death of Sean Rigg. The Rigg family is represented by INQUEST Lawyers Group members Daniel Machover and This was the first time criminal charges for perjury have been bought against a serving police officer Helen Stone of Hickman and Rose Solicitors; Leslie Thomas QC and Tom Stoate of Garden following a death in police custody. Sgt White was the custody officer on duty the night that Sean Court Chambers; and Jude Bunting of Doughty Street Chambers. Rigg died at Brixton police station on 21st August 2008. Evidence cited during the trial demonstrat - ed Sgt White had given a detailed but false version of events the night Sean died. His statement said Barrister Banned for Stealing Gold and Cash From the Police he checked on Sean in the police van, but CCTV evidence proved this was not the case. A non-practising barrister who was jailed for stealing £153,000 and two gold bars from the police force This landmark case, whilst failing to secure a criminal conviction, highlights three critical lessons for he worked for has been disbarred. Mujibur Ibrahim, formerly a financial investigator at Leicestershire future prosecutions: 1. Victim Right to Review – without this and the family’s determination, a case of Police, was jailed for four years in October last year. The cash and the gold bars were seized during one such public importance would never have come to trial. The Crown Prosecution Service should have of the force’s drug trafficking investigations. Ibrahim stole them to fund a gambling addiction. He qualified acted on the evidence earlier, saving the family and other parties two more years of uncertainty and as a barrister in 2014 but was not practising at the time of his conviction. Ibrahim was ordered to pay com - legal costs. 2. Unacceptable length and poor quality of IPCC investigations – it has been four years pensation of £40,000, a victim surcharge of £120, a deprivation order of £113,610 and costs of £900 fol - since the damning inquest into Sean’s death and eight years since his death. IPCC failings going back lowing last year’s trial. A bar disciplinary tribunal yesterday found Ibrahim ‘engaged in conduct which was to 2008 and 2009, including delays and inaction, allowed unchallenged false evidence to go before likely to diminish the trust and confidence which the public places in the profession’. The BSB said he failed the inquest, and ultimately provided Sgt White with a plausible explanation for his false evidence. to report promptly that he had been charged with an indictable offence. According to Leicester Crown Urgent lessons must be leant by the state bodies responsible for oversight and accountability follow - Court, Ibrahim, who pleaded guilty, had access to safes holding cash for the East Midlands Special ing a death in police custody, to prevent a repeat of the exhaustive delays in this case.3. All police offi - Operations Unit’s regional asset recovery team and the financial investigation unit. cers have a professional duty to provide a full and truthful account of events, where there has been a death in police custody. Officers are not above the law and if it is believed that officers have not given Hostages: Andrew Malkinson, Michael Ross, Mark Alexander, Anis Sardar, Jamie Green, Dan Payne, true and accurate evidence, they will be held to account. Families will pursue the truth. Zoran Dresic, Scott Birtwistle, Jon Beere, Chedwyn Evans, Darren Waterhouse, David Norris, Brendan Marcia Rigg, Sean Rigg’s sister and campaigner said:“I am devastated. The jury’s verdict was a McConville, John Paul Wooton, John Keelan, Mohammed Niaz Khan, Abid Ashiq Hussain, Sharaz Yaqub, David surprise to me and my family, but I will continue to fight for full accountability for those officers who Ferguson, Anthony Parsons, James Cullinene, Stephen Marsh, Graham Coutts, Royston Moore, Duane King, Leon Chapman, Tony Marshall, Anthony Jackson, David Kent, Norman Grant, Ricardo Morrison, Alex Silva,Terry were on duty at Brixton Police Station. That a custody sergeant can give false evidence in connec - Smith, Hyrone Hart, Glen Cameron,Warren Slaney, Melvyn 'Adie' McLellan, Lyndon Coles, Robert Bradley, John tion with a death in custody, something he accepts he did, is a shocking state of affairs. I await the Twomey, Thomas G. Bourke, David E. Ferguson, Lee Mockble, George Coleman, Neil Hurley, Jaslyn Ricardo Smith, James Dowsett, Kevan & Miran Thakrar, Jordan Towers, Patrick Docherty, Brendan Dixon, Paul Bush, MPS decision on disciplinary charges on this issue. The fact that Sgt White’s defence rested on the Alex Black, Nicholas Rose, Kevin Nunn, Peter Carine, Paul Higginson, Thomas Petch, Vincent and Sean Bradish, failure of the IPCC to challenge his false evidence in March 2009 is a cause of significant public con - John Allen, Jeremy Bamber, Kevin Lane, Michael Brown, Robert Knapp, William Kenealy, Glyn Razzell, Willie Gage, Kate Keaveney, Michael Stone, Michael Attwooll, John Roden, Nick Tucker, Karl Watson, Terry Allen, cern. The public is entitled to expect better from the police and those who are charged with ensur - Richard Southern, Jamil Chowdhary, Jake Mawhinney, Peter Hannigan, Ihsan Ulhaque, Richard Allan, Carl ing police accountability.I will be raising with the CPS, and if necessary Parliamentarians, the Kenute Gowe, Eddie Hampton, Tony Hyland, Ray Gilbert, Ishtiaq Ahmed. 18