LawyerI G SocialistMagazine of the Haldane Society of Socialist Lawyers Number 48 December 2007 £2.50

Modern Day Slavery The Horror of Human Trafficking by Judith Farbey

PLUS: MIAMI VALENTINA Plus all IMRAN KHAN FIVE TRIAL TELYCHENKO the latest INTERVIEW by Steve interview by news & by Sultana Tafada Cottingham Simon Pirani comment Haldane Society PO Box 57055 London EC1P 1AF Website: www.haldane.org Contents Number 48 December 2007 ISBN 09 54 3635

News & comment ...... 4 From Musharraf to Russia, from Stop the War to defending Aamer Anwar…

Vulnerable people ...... 11 Laura Janes writes the regular Young Legal Aid Lawyers column

Human trafficking ...... 12 Judith Farbey looks at this modern day form of slavery The Haldane Society was founded in 1930. It provides a forum for the discussion and Prison – no place for minors...... 17 analysis of law and the legal system, both Laura Janes on the children facing prison after being trafficked into the UK nationally and internationally, from a socialist perspective. It holds frequent public meetings Imran Khan interview ...... 18 and conducts educational programmes. Sultana Tafadar speaks to the prominent lawyer about 28 days and much more The Haldane Society is independent of any political party. Membership comprises lawyers, The Miami Five...... 24 academics, students and legal workers as well Steve Cottingham on the extraordinary trial of five men in Florida as trade union and labour movement affiliates. President: Michael Mansfield QC Vice Presidents: Kader Asmal; Louise Christian; Tess Gill; Helena Kennedy QC; Dr. Paul O’Higgins; Michael Seifert; David Turner-Samuels; Professor Lord Wedderburn QC Chair: Liz Davies ([email protected]) Vice-Chairs: Hannah Rought-Brooks Kat Craig ([email protected]) Secretary: Marcus Joyce ([email protected]) Socialist Lawyer Editor: Hannah Rought-Brooks ([email protected]) Treasurer: Declan Owens ([email protected]) Membership Secretary: Dale Brook / reportdigital.co.uk Jess Hurd Picture: International Secretary: Bill Bowring Terrorism ‘lists’ disgrace...... 28 ([email protected]) by Desmond Fernandes from Campaign Against Criminalising Communities (CAMPACC) Executive Committee: John Beckley; Adrian Berry; Tom Bradford; Fingerprinting our children ...... 30 Justine Compton; Richard Harvey; John Hobson; Fingerprint systems in schools today is unacceptable argues Mikhil Karnik Stephen Marsh; Anna Morris; Monika Pirani; Dave Renton; Paul Smith; Adam Straw; Ukraine: state murder...... 33 Nick Toms; Camille Warren, Rebekah Wilson, Simon Pirani interviews Ukrainian human rights lawyer Valentina Telychenko Azam Zia Regional Contacts: Haldane AGM 2007 ...... 37 West Midlands: Brian Nott, Flat 3, Excerpts from Shami Chakrabarti’s address to our October Annual General Meeting 64 Prospect Road, Mosley, Birmingham B13 9TD Book reviews ...... 38 Manchester: John Hobson The latest publications from INQUEST and Rights of Women ([email protected]) International contact: Bill Bowring ([email protected]) Editor: Hannah Rought-Brooks Immigration and asylum contact: Assisted by: Liz Davies, Catrin Lewis and Farah Wise Adrian Berry ([email protected]) Design & Production: Smith+Bell Design ([email protected]) Printed by: The Russell Press Many thanks to all our other contributors and members who have helped with this issue

2 I Socialist Lawyer G December 2007 from the chair

It doesn’t add up ny advance on 28 days? The Government’s proposals Even if that had been the case, our system doesn’t allow for sum- to increase the length of detention without charge comes mary executions by police officers. The spectre of London being torn close to resembling an auction: in two years, we’ve had apart by suicide bombers was vociferously raised. But the jury saw 90 days, 56 and now 42, at the time of writing. By the time through that. It took the good sense of 12 people, selected at ran- you read this, the Government will probably have dom, to send a message that the killing of an innocent man was plucked yet another figure out of thin air. unlawful and couldn’t be justified even against the backdrop of the AAn increase on 28 days is opposed by all institutions representing atrocity of 7th July. We understand the disappointment of the family the legal community and by all civil liberties groups. As Shami and support them in their continued calls for an independent public Chakrabarti (in her speech to the Haldane Society’s AGM) and Imran inquiry. But the jury’s’ verdict, and the widespread calls from the pub- Khan (interviewed for Socialist Lawyer) both make clear: 28 days is lic for Sir Ian Blair’s resignation following the verdict, showed that the already the longest period of pre-charge detention in any democratic public aren’t prepared to give up our civil liberties in the face of ter- country. There is no evidence that an increase in the limit would lead rorist threats. to detection and prevention of more terrorist atrocities. There is plenty Elsewhere in Socialist Lawyer, Steve Cottingham explains the case of evidence that young Muslim men (and some women) are regularly of the Miami Five, whom the US Government and US justice system stopped, searched, arrested and detained because they are sus- have made fall-guys in an attempt to cover up the US Government’s pected of committing terrorist offences, and those arbitrary actions illegal attempts to overthrow the Cuban Government. The Five have by the police very rarely lead to charges. Detention without charge is been in prison, and frequently solitary confinement, for eight years oppressive. It wears people down. As Khan vividly describes, after now, despite appellate rulings that they were denied a fair trial. Their seven days, detainees become so exhausted that they’re prepared legal battle goes on and on. to say, and sign, anything. 28 days detention, whilst a welcome blow Judith Farbey tells us about the human tragedies behind people against Tony Blair’s proposal of 90 days, is already far too long. Any trafficking. The Haldane Society is always prepared to praise the longer period is seriously punitive. Government where praise is due, and the Government’s decision to For most of us British lawyers, detention without trial may be some- sign the Council of Europe Trafficking Convention is welcome. Words thing that happens to our clients, but not to us. For lawyers in Pakistan, need to be followed up with action. that is not the case. General Musharraf imposed a state of emergency, Don’t forget to look at the back page! The Haldane Society is suspending the rule of law, on 3rd November and promptly arrested pleased to announce its Human Rights Lectures for 2008. We start over 3,500 lawyers, human rights activists and political activists. Many on 30th January 2008 with our President, Mike Mansfield QC, and of those remain in prison, there are fears that some have been tortured Imran Khan speaking on whether we need terrorism laws, followed and kept in solitary confinement. Musharraf’s targets were the judiciary on 27th February 2008 by ‘the right to protest’. CPD points are avail- and the lawyers’ movement that built up over the summer, following able to practitioners. We hope to see you there. the suspension of Chief Justice Iftikhar Mohammad Chaudhry. The G Liz Davies, chair, Haldane Society [email protected] Haldane Society stands shoulder to shoulder with our brothers and sisters in Pakistan’s legal and human rights community. Home Secretary In Britain however, at least one of our community is being pun- Jacqui Smith: weak on ished for doing his job. Glasgow solicitor Aamer Anwar faces charges evidence of contempt of court for reading a statement, following a heavy sen- tence imposed on his client, which the presiding judge interpreted as contempt. Had he done so in England or Wales, there would be no question but that he was acting properly as a solicitor. It seems that Scottish law is different, but the charge is unprecedented even in Scotland. Anwar is a high-profile human rights solicitor who, like his counterparts in England and Wales, is prepared to represent unpop- ular clients, charged with unpopular terrorist offences. Better news came when an Old Bailey jury unanimously found the Metropolitan Police guilty of 19 counts of health and safety violations, leading to the murder of Jean Charles de Menezes. Understandably the family remain disappointed that no individuals have been held to account for the murder. The jury’s verdict is a real vindication for the jury system. The Met’s lawyers, senior police officers and politicians were happy to smear de Menezes, alleging that he had failed to comply with police instruc- tions (despite evidence that there had been no such instructions)

and suggesting that he was concealing drugs or an illegal passport. / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer G December 2007 I 3 News&Comment

Victory for Bil’in villagers n Tuesday 4th Septem- ber, the Israeli Supreme Court de- Ocided in favour of a petition brought by the Palestin- ian villagers of Bil’in and ordered the re-routing of the barrier. The intended route had separated the village from some 60 per cent of its agricultural lands and intro- duced a permanent presence of soldiers on their land, guarding the temporary fence that had been put up to separate the vil- lage from the building work and the expanding settlement of Modiin Ilit. The Court found that the route of the Wall was: ‘highly prejudicial’ to the villagers; not justifiable on ‘security grounds’; “Oh no, I forgot we’re supposed to be a democracy” Pictures: Jess Hurd / reportdigital.co.uk Jess Hurd Pictures: and ordered the Wall to be moved by some 500 metres. The change, when implemented, will restore 1,100 dunums of land to the villagers. This was a victory for the vil- Stop the War demo lagers of Bil’in and for all those who had supported them in their n 8th October 2007 that day. Perhaps we have now weekly non-violent protests. But Stop the War Coalition seen the end of the use of the Seri- there is concern that court deci- conducted a well ous Organised Crime and Police sions are not always translated Oplanned protest to co- Act 2005 in these situations, into action by the Israeli authori- incide with Prime Minister which prevents demonstrations ties and the villagers have Gordon Brown’s announcement within a kilometre of Parliament pledged to fight on. Many other on troop withdrawal from Iraq in Square without police permission. Palestinian villages in the West Parliament. Organisers estimated around Bank are having orchards de- It was a protest that nearly did 4,000 protestors were present to stroyed and land expropriated to not go ahead after it was initially hear speakers including Tony make way for the Barrier and it is banned using the archaic anti- Benn, Mark Thomas and George crucial that their campaigns learn Chartist Sessional Order of the Galloway. One of the organisers, from Bil’in where success was a House of Commons of the Met- Lindsey German, said the authori- result of Palestinian resistance, Is- ropolitan Police Act of 1839, on ties and MPs had underestimated raeli cooperation and interna- the premise that it may impede the determination of the anti-war tional solidarity. the progress of any MP or peer movement. She said her message G Hannah Rought-Brooks who wanted to attend Parliament to the Government was that it Mark Thomas: “It’s a joke” July August 12: It’s announced that judges in civil 18: The Government 5: Cohabiting couples who split 5: Bisher al-Rawi, the 7: The airports courts in England and Wales are to announces a review of the up will get new rights to claim British-based Iraqi and operator BAA wins its throw away their wigs – though it won’t status of cannabis, whether money from former partners if former MI5 source High Court bid for an happen until October 2008 at the to return cannabis from class proposals by the Law detained by America for injunction to prevent earliest! And judges sitting in the C to class B, a classification Commission are adopted. more than four years, is environmental criminal courts will keep them. They it held until three years ago. Unmarried couples who have suing the US private airline activists from argued that the headgear helps to Such a move would broken up after living together that transported him to protesting at maintain the dignity of proceedings and effectively make possession be able to claim similar financial Afghanistan on an illegal Heathrow. protects them from being recognised by of the drug an arrestable remedies as married couples CIA ‘extraordinary defendants in the pub or supermarket! offence once again. would in a divorce. rendition’ torture flight.

4 I Socialist Lawyer G December 2007 News&Comment

Why does UK sell arms to Israel?

n 10th October 2007, states have a legal obligation to for two days in the neither recognise the illegal situa- High Court, in the tion resulting from the construc- Ocase of R (Saleh tion of the wall nor render any Hasan) v Secretary of State for aid or assistance in maintaining Trade and Industry, Mr Saleh the situation. Hasan, a 60 year old resident of In 2005 the UK’s arms-related Bethlehem accompanied by exports to Israel saw a twofold Wesam Ahmed from Palestinian increase. The same equipment NGO, Al Haq and represented was used to bulldoze agricultural by Phil Shiner, Public Interest assets and permanently confiscate Lawyers, demanded an answer to Saleh Hasan’s land. why the British Government con- Mr Hasan came to the UK to tinues to issue export licences for argue the sale of arms-related the export of arms-related equip- equipment to Israel is a breach of ment when there is clear evidence the UK’s obligations under inter- that Israel might use that equip- national law as well as UK statu- ment to confiscate Palestinian tory law, specifically, the UK lands. Export Control Act 2002, which At a packed meeting at incorporates the ‘consolidated Garden Court Chambers on the criteria’ governing the export of eve of the landmark case, Mr military equipment. The UK Hasan told his story. He was at Government may not issue an not stopped home one morning in 2005 when export licence to countries where he heard a cry, calling him to run there is a clear risk that the would: ‘never draw a line under down to his farm lands. There he export might be used for ‘in vio- this war until you bring all our saw men sawing down his olive lation of human rights and fun- troops home. And we don’t want trees and bulldozers clearing damental freedoms’. the troops brought home just so them, protected by 20-30 sol- If the UK cannot provide in- they can be sent to Afghanistan diers. His land was being confis- formation publicly that it has es- or the Iranian border. We want a cated by the occupying power, tablished that there is no risk of permanent break with George Israel, to make way for the wall. any arms-related equipment from Bush’s murderous, imperialistic In 2004 the International the UK being used repressive pur- policies.’ Andrew Murray, chair Court of Justice issued its advi- poses, PIL and Saleh Hasan call of the Stop the War Coalition, sory opinion on the legality of for a suspension of all arms re- told the crowd: ‘This is a tribute the Israeli annexation wall. The lated exports to Israel until it can. to this movement and to everyone Court declared the illegality of For more information visit: who has campaigned to assert the continuation of the wall and www.alhaq.org, an independent our right to hold this Government its associated regime in the West Palestinian non-governmental to account for the criminal poli- Bank under both international human rights organisation based cies it is following around the human rights and humanitarian in Ramallah, West Bank. Tony Benn: determined to march world.’ G Declan Owens law. The court found that all G Smita Shah September

7: The Government calls on the United 17: The Sentencing 18: ICL Plastics Ltd 29: Prison officers across 3: A report from Lancashire States to return five UK residents held Advisory Panel, in its and ICL Tech Ltd, the the country strike for 12 County Council into the without charge at Guantánamo Bay in a proposals for new operators of a plastics hours, the first national death of Adam Rickwood sudden reversal of policy. Whitehall guidelines to the courts for factor destroyed in a walkout in its 68-year history. condemns the youth justice officials admitted the decision had come dealing with Asbo gas explosion which The Prison Service was system for treating him after relentless pressure from the men’s breaches, says that in most killed nine workers granted an injunction to force more as a tearaway families and lawyers, and had been made cases involving young and injured 40 others the officers back to work but deserving to be locked up on the eve of a court decision which offenders the appropriate plead guilty to many defied it. The union rather than a vulnerable ministers feared could see them ordered sentence should be a breaching health and lost the right to strike under child in need of care. to allow one detainee back into Britain. community order. safety legistlation. the Tory government in 1994.

Socialist Lawyer G December 2007 I 5 News&Comment

FCO official prosecuted over rendition flights leak

n 11th October 2007 a to international relations. The in- Foreign Office official, formation is also said to include Derek Pasquill, 48, ap- the Government’s private view of Opeared at City of West- the US practice of ‘extraordinary minster Magistrates Court rendition’, which UK officials de- charged on six counts under the scribe as ‘almost certainly illegal’. Official Secrets Act. This was his One of the letters disclosed is en- first court appearance since his titled ‘Detainees’, in reference to arrest 18 months previously. He terrorist suspects rendered to in- is alleged to have leaked docu- terrogation centres by the US. ments about the Government’s at- A recent New Statesman editorial titude to secret rendition flights suggests: ‘The tactics appear de- and contacts with Muslim signed to intimidate anyone in groups. The alleged disclosure of the civil service who has reserva- information is said by the prose- tions about dangerous policy and cution to have led to a series of who might be minded to expose newspaper articles in The Ob- it in the public interest.’ He was server and the New Statesman remanded on unconditional bail which were damaging and related until 25th October. G Janet Alder speaks. her brother Christopher died in police custody European lawyers concern grows for Basque people Deaths in custody – ince 1999, the United pate in a demonstration at the n 12th October 2007, place as part of a sequence of Families and Friends heart of government. the European Associa- events following the ending of the Campaign (UFFC), a Over the years, the annual tion of Democratic ceasefire with Eta after the deto- SLondon-based coalition protest has been the centrepiece OLawyers released a nation of a car bomb at Madrid’s of the relatives and friends of for numerous and varied cam- statement expressing their con- airport on 30th December 2006. those who have died in police paigning activities that has seen cerns about the current legal situ- Also criticised by the EDL are the custody, in prison or in psychi- off the Police Complaints Au- ation in the Basque Country. In ‘exceptional procedural measures atric care, has organised an thority, held meetings with its particular they question the use of in these cases, like incommuni- annual remembrance procession successor the Independent Police the law being used against Basque cado detention, the secrecy of the from Trafalgar Square to Down- Complaints Commission and citizens for their involvement in procedures or the pre-trial deten- ing Street, to protest against the lobbied the Attorney General. civil society. tion without limit’. The chief aim government’s refusal to act on Every year, there are new faces, a The EDL ‘denounces the lack of the EDL statement is a ‘request the growing number of custody sad reflection on the continuing of juridical justification for the de- that all efforts be made to create a deaths. This year’s procession on deaths in British prisons and in tention of 23 persons connected new scenario in respect of all dem- 27th October was the first to police. This year provided a with the political party Batasuna, ocratic guarantees that may drive take this message to the new chance to call upon Gordon while they were participating in a the Basque Country to a political Prime Minister – and the first Brown to break with the pattern meeting on 4th October 2007’. normalisation’. For more info see: opportunity for a number of set by his predecessor of ignoring These are arrests that have taken www.aed-edl.net G families to meet up and partici- relatives and friends and to take September 5: Lord Justice Sedley calls 12: A British man, Tarek 17: A woman and two 18: The Nuffield Council of Bioethics 18: A report by the for everyone living or visiting Dergoul who was held in younger siblngs win a says that the Government must Independent Police the UK to have a DNA profile Guantánamo Bay begins a civil total of £100,000 in an prevent police from storing the Complaints Commission registered on the national action against MI5 and MI6 out-of-court settlement profiles of innocent people on the states that police officers database. He said the over the tactics that they use to with Hackney Council national DNA database. The Council involved in high-speed chases current system where DNA gather intelligence. because it failed to also recommends that ministers are taking “unnecessary profiles are taken only from He claims he was repeatedly remove them as drop plans to extend police powers risks”. About 40 deaths related those who come into contact tortured while he was held by children from their to take DNA samples from people to police pursuits and with the criminal justice the US, and that British agents abusive home. suspected of minor offences such as responses to emergenceies system was “indefensible”. were aware of the mistreatment. littering or speeding occur every year.s

6 I Socialist Lawyer G December 2007 News&Comment Pictures: Jess Hurd / reportdigital.co.uk Jess Hurd Pictures: the families demand justice seriously the issues they are rais- the concern that an inquiry’s families and friends who have ing. UFFC, which is closely remit would be couched in such a carried the call for greater ac- linked to the charity INQUEST way as to avoid many of the key countability and transparency and to the community anti-racist issues that families have raised following deaths in custody, and campaigners Newham Monitor- and because the government has UFFC will be looking for ways ing Project, is particularly sup- found ways to avoid the more to also involve new allies. As porting INQUEST’s call for a contentious recommendation of long as grieving relatives are left standing commission on deaths previous public inquiries, includ- to protest with only the support in custody. This could allow for ing the ‘groundbreaking’ Stephen of organisations like INQUEST, real change to result from coro- Lawrence Inquiry. there was the danger of still ner’s inquests and investigations Next year’s procession – the marching to Downing Street – by the Prison’s Ombudsman, tenth anniversary of the first and still being ignored – in an- rather than the oft-repeated march to Downing Street – is other ten years. promises that “lessons will be likely to be the last. UFFC has UFFC is therefore calling for learnt”, which have become decided that after so many years, the widest possible support on almost meaningless. The cam- the time has come to review its the Tenth Anniversary Remem- paign has a longstanding opposi- tactics and to look at new ways brance Procession. Join us on tion to a one-off public inquiry to bring bereaved families to- Saturday 25th October 2008. into custody deaths, because of Government ignores relatives gether. Every year, it has been G Kevin Blowe

22: Employers are paying out nearly 22: The first annual report from the 26: Lord Goldsmith, the ex- 27: The Government’s programme to £2bn a year for discriminating Forum for Preventing Deaths in Attorney General on whose manage convicted criminals, cost £2.6bn, against their staff, in settlements and Custody shows the annual figure of legal advice Britain went to is to be scrapped. An internal shakeup at legal fees. Sex discrimination claims deaths in custody across the criminal war with Iraq and who the newly created Ministry of Justice will more than doubled last year and justice system, including prisons, announced the end of the lead to the demise of the National Offender actions over age discrimination secure hospitals, child jails and police corruption investigation into Management Service (Noms) three years reached more than 1,000 within custody suites to be nearly 600. BAE, has found a new job aftr it was set up. More than £5m has been months of legislation outlawing the with US firm Debevoise & spent in consultants’ fees alone in the past practice being enacted. Plimpton LLP. Salary approx two years trying to fix the problems facing £1 million a year. the troubled service.

Socialist Lawyer G December 2007 I 7 News&Comment

Organised working class makes itself felt in Russia

lections for Russia’s However, the Russian popula- numbers of police attended when State Duma (lower tion is not composed only of 400 workers downed tools in house of Parliament) politicians. There is still a sub- August. The FNPR union at the Etook place on 2nd De- stantial organised working class, plant refused to give support. cember. The Council of Europe not only in industries that have In October meetings of “free” condemned the results in no un- survived the collapse of the trade unionists took place in the certain terms. The merging of the Soviet Union, but also in the fac- industrial centres Moscow, Togli- state and a political party was an tories established by such multi- atti, Yaroslavl, Perm, Surgut, abuse of power and a clear viola- nationals as Ford. In 2002 Ford Kurgan and Norilsk. They raised tion of international standards; opened a factory at Vsevolozhsk, political demands, including an the media were strongly biased near St Petersburg; it produces end to repression of independent in favour of President Putin and 300 Ford Focus cars a day. trade union action. A public the ruling United Russia party; The Ford workers are not meeting in St Petersburg with the new election code made it ex- represented by the “official” over 150 workers was held tremely difficult for new and trade unions. The Federation of under the slogans “Don’t vote, smaller parties to develop and Independent Trade Unions of strike!” and “Give us back the compete effectively; and there Russia (FNPR), founded in right to strike!”. They heard that were widespread reports of ha- 1990, is in fact one of the few unlike the 1990s, when employ- Ford Russia: everybody out rassment of opposition parties. Soviet era institutions to have ers used bandits to intimidate Leading opposition politicians survived practically unscathed trade unionists, now the whole a one day strike. Eight strikers were arrested, and one, Gary into the new era, with most of its police apparatus of the state is were dismissed, and on 9th De- Kasparov, sentenced to a week’s infrastructure and property – of- brought to bear and that there is cember began court action for imprisonment. The leading fices, colleges, holiday homes no political party representing reinstatement. The management human rights activist Oleg Orlov and sanatoria – intact. It has 41 the interests of workers in are suing the strikers for 103,000 was, with TV journalists, ab- member unions and six unions Russia. roubles. Next, 1,500 workers at ducted, beaten, and threatened. associated by agreement. It Strike action followed, in sev- the Ford plant held a one-day Presidential elections will claims 28 million mem- eral regions of Russia. On 24th “warning strike” on 7th Novem- take place on 2nd March bers, over 95% of all October workers at the Tuapse ber, bringing the factory to a 2008, and Putin has nom- organised labour in port on the Black Sea voted for halt. They had already struck on inated his successor, the Russia. an indefinite strike, which 14th February, and demanded a First Deputy Prime Min- In March 2007 meet- started on 4th November, with substantial pay rise. Negotiations ister, Dmitry ings calling for action by 230 workers, mostly crane driv- since then had led to nothing. Medvedev. trade unions independ- ers and mechanics, taking part. On 19th November the Medvedev ent of FNPR took The port management applied to Leningrad Regional Court de- promptly an- place in ten Russian the Krasnodar Regional Court clared this strike to have been nounced that cities. A few months for a declaration that the strike unlawful. However, on 13th No- Putin should be later, the “Yedinstvo” was illegal, and the Court issued vember dockers of the three of Prime Minister. (Unity) free trade an injunction forbidding strike the companies handling the sea The attention of union acted. Large action, under Article 413(7) of port also struck for the day. Western media is the Labour Code. On 20 November an indefi- focused on these de- Vladimir Putin, and St Petersburg was next. On nite strike began at Ford, sup- velopments. friend 26th October, post workers held ported by 1,500 workers of October 3: High Court 4: A report by 9: The Chief Inspector of 10: A survey by the Howard 22: More than 1,000 22: A website used by fans orders Ministry of Amnesty International Prisons Anne Owers warns League for Penal Reform prison officers in of Sheffield Wednesday to Defence to states the use of that prisoners rather than finds that 95% of 10-to15- England and Wales were vent their anger at the club’s disclose key lethal injections in the staff are in control in parts year olds in the UK have fund guilty of misconduct officials may be forced to documents about US has led to at least of Rye Hill prison. Her experienced crime at least between 2000 and 2006 reveal the identity of users the death of Baha nine bungled report states the jail, run by once. The survey of more for offences including after the chairman, chief Mousa, an Iraqi executions, including the private security firm than 3,000 children found improper sexual executive and five directors who died in one in which the GSL, needs a team of that three-quarters had been relationships and win a High Court ruling. A British custody in prisoner took 69 public sector managers to assaulted and two-thirds endangering the safety judge orders that three fans Basra in 2003. minutes to die. come in and bail it out. nad been victims of theft. of their jails. should be unmasked.

8 I Socialist Lawyer G December 2007 News&Comment

Met Chief Blair refuses to go after de Menezes shooting

n 1st November, an might be carrying drugs or have Old Bailey jury found an illegal passport. During the the Metropolitan Police trial, the jury were shown a pho- Oguilty of 19 breaches of tograph, produced by the Met, of health and safety legislation, a cat- one side of de Menezes’ face and astrophic series of errors that led one side of the failed suicide- to Jean Charles de Menezes’s bomber, Hussain Osman’s, face. murder by armed police officers. It had been digitally manipulated Following the verdict, a series to make de Menezes look like of revelations further discredited Osman. Metropolitan Police Commis- Despite the criticism, Blair has sioner, Sir Ian Blair. A passenger in refused to resign, and has been the carriage testifed that no warn- backed by the Home Secretary, ing had been given; Blair had per- the Mayor of London and other sonally intervened to try to delay senior politicians. He faced down the investigation of the Independ- a vote of no confidence at the ent Police Complaints Commis- Greater London Assembly, taunt- sion (IPCC); he had been advised ing the GLA members who had to plead guilty to the health and no power to sack him. safety charges, but had disre- The de Menezes family cam- garded that advice. paign (www.justice4jean.com) 2,200 employed at the factory. December, the strike continues. Instead, the police’s lawyers continue to repeat their calls for a Management then prevented Finally, an all-out strike of had tried to smear de Menezes full public inquiry into the shoot- workers from coming to the fac- train drivers was due to start on during the trial, alleging that de ing, and for individual police offi- tory, and summoned OMON, 28th November, immediately Menezes had failed to comply cers to be held responsible. the Russian CRS. On the same before the Duma elections. Ac- with police orders because he G Liz Davies day taxi drivers in St Petersburg cording to the Russia Prosecu- took strike action, promptly de- tor’s Office, Article 55 of the clared unlawful by management. Russian Constitution and Article At last, the FNPR was forced 413 of the Labour Code ab- Dissection of accession to speak. On 20th November its solutely prohibit strikes on the leader Mikhail Shmakov de- railway. On 23rd November the he Haldane Society was and activists seeking to address clared that he was ready to sup- Moscow City Court declared represented at the democratisation, conflict resolu- port the Ford strikers at that the proposed strike, and any Fourth International tion, reform and human rights in Vsevolozhsk. Although their preparatory activities, would be TConference on the EU, Turkey and their relevance to the union was not affiliated to unlawful. Turkey and the Kurds which was EU-Turkey accession process. FNPR, it would act if called on Whatever happens to this opened on 3rd December by the The current context of a grave to do so. On 28th November strike, it is now clear that the or- 1994 Rafto Prize winner Leyla deterioration in the reform and management tried to re-start the ganised Russian working class Zana, Bianca Jagger, and Francis accession process, and the grow- conveyor, hut only 350 workers may yet become a terrifying Wurtz, MEP. The two-day con- ing risk of internationalisation of returned to work. French and spectre, returning from its pre- ference, organised by the EU- the conflict in south-east Turkey, German trade unions will not mature tomb - to haunt Putin’s Turkey Civic Commission added to the talks’ importance. allow parts to be sent to regime. (EUTCC), brought together For more info see the EUTCC Vsevolozhsk. As I write, on 11th G Bill Bowring NGOs, politicians, academics website: www.eutcc.org G

24: Home Secretary Jacqui 24: The senior police officer 26: A review of the 30: Official figures released 31: The House of Lords 31: The American Smith tells Commons Home inf the cash for honours legislation permitting reveal only one in every 400 gives broad legal backing to Supreme Court Affairs Committee that 36% inquiry calls for changes in smacking, if it does not stop and searches carried the Government’s control rules it will not of 1,228 people held under the law in the wake of his leave visible bruising, out under sweeping anti- order regime but also sets allow any more the anti-terror laws since failure to persuade the scratches or reddening terrorist laws leads to an limits to the curfews prisoners to be 9/11 had been charged, Crown Prosecution Service of the skin, concludes arrest. Official figures imposed on suspects and put to death until it compared with the 38% to press charges against that the law should not covering 2005/6, show a big rules that the system of reviews the charging rate of those close aides of Tony Blair be changed despite increase in the sue of the secret evidence must be legality of lethal arrested for all other types and some donors for buying opposition from power, with Asian people changed to give suspects injection. of crime in 2004-5. or selling honors. charities. bearing the brunt. the right to a fair hearing.

Socialist Lawyer G December 2007 I 9 News&Comment

Lawyers on the streets as Drop the ‘contempt’ martial law grips Pakistan aldane Society President Following sentencing on 23rd Michael Mansfield QC October, Aamer Anwar was or- n 3rd November, Gen- the following two days arrested joined with one of our dered to appear at a court hearing eral Musharraf, acting and detained over 3,500 lawyers, Hvice-presidents, before the Judge. He was accused as army chief, imposed human rights and political ac- Baroness Helena Kennedy QC, of showing disrespect to the Oa state of emergency tivists. and two of our most prominent Judge, the Jury and the Court. throughout Pakistan, suspended The arrest of Imran Khan and members, Gareth Peirce and Aamer has now been informed the Constitution and replaced su- the house-arrest of Benazir Bhutto Imran Khan, to voice their oppo- that the matter may be remitted to perior courts. In his proclamation engaged the Western media’s at- sition to calls by Lord Carloway another High Court Judge to con- of emergency, the General blamed tention. They have since been re- to charge defence lawyer Aamer sider Contempt of Court proceed- growing violence by militants and leased, but there are fears that Anwar with contempt of court. ings against him. The possibility a judiciary which he said was some of the lawyers who remain Their open letter reads: that Aamer Anwar may have to working at “cross purposes” with in detention have been tortured “Recently, Mohammad Atif face contempt charges is deeply his government and the legislature and kept in solitary confinement. Siddique was sentenced to a total worrying and is an unprecedented for his most drastic action since he They include Aitzaz Ahsan (Presi- of eight years for terrorism of- attack on freedom of speech. seized power in a coup in October, dent of the Supreme Court Bench, fences. Irrespective of the differing Aamer has earned a reputation as 1999. He accused the judiciary of Vice-President of Human Rights views on the outcome of the case, one of the most prominent human interfering with government Commission of Pakistan and the criticism levelled towards Mr rights lawyers in Scotland today. policy, weakening the writ of gov- Chaudhry’s legal representative) Siddique’s solicitor, Aamer Anwar, He represented the Chokhar ernment, demoralising the police and Asma Jahangir, President of over a statement that he released family in their long struggle for force and releasing hard core mili- Pakistan’s Human Rights Com- on the day of the verdict is ex- justice and has diligently defended tants, extremists, terrorists and mission. Despite the presence of tremely disturbing. asylum-seekers. He has repre- suicide bombers. the army and police, 2,000 The emergency proclamation’s lawyers marched in Lahore on 5th charges against judicial activism November in protest. aimed at reversing what was The Haldane Society has hailed as a revival of independence joined other members of the legal Landmark ruling on of the judiciary after months of an profession in Britain in condemn- epic movement led by lawyers ing the imposition of the state of t a hearing on 8th No- unlawful under the OECD’s Anti- since the president suspended emergency, disregard for the rule vember in the High Bribery Convention, which the Chief Justice Iftikhar Mohammad of law, and arbitrary detentions Court, Lord Justice UK signed in 1997. Chaudhry on 9th March (see So- without trial. AMoses, sitting with Mr Lord Justice Moses agreed with cialist Lawyer No 46). Musharraf has renounced Justice Irwin, granted permission the groups that the issue ‘cries out Justice Iftikhar Chaudhry the title “General” and has to the Campaign Against Arms for a public hearing’ because it in- had acted swiftly and con- plans for elections in Janu- Trade (CAAT) and The Corner volves ‘matters of concern and vened a seven-member Court ary. Without the restoration House to bring a full judicial public importance’. He stressed which issued an interim order of the rule of law, and full review hearing against the UK that the issue was closely con- against the state of emer- democratic rights, Government’s decision to cut cerned with the legal system in gency. In response, those elections short a Serious Fraud Office this country that ‘judges have to Musharraf sacked the will be a (SFO) investigation into alleged protect’. The full judicial review bench, elevated his pre- farce. Taking corruption by BAE Systems in hearing has now been scheduled ferred judges to the off the uni- recent arms deals with Saudi for late January / early February Supreme Court and to form is not Arabia. (See Socialist Lawyer 46 and is expected to last two days. local benches, put Jus- enough. for Jamie Beagent’s analysis of the Symon Hill of CAAT said: tice Chaudhry under G Liz case.) Lawyers for the two groups ‘This is brilliant news for everyone

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: house arrest, and over Davies argued that the SFO decision was who wants to see an end to arms November 1: Metropolitan Police 7: A coroner is critical of the 12: A suvey by Liberty shows 14: Research 14: Five Law Lords commissioner Sir Ian Blair vows Ministry of Defence and Army Britain’s 28-day limit on holding commissioned by Ken unananimously uphold to stay on in his position despite when she rules that a logistics terror suspects without charge Livingstone, the London arguments on behalf of Home calls for his resignation. The Met failure had led to the unlawful is far longer than that for any Mayor, into one week’s Secretary, Jacqui Smith, that was found guilty of killing of Fusilier Gordon comparable democracy. The news coverage shows that the Court of Appeal had “catastrophic” failings that led Gentle in a roadside bomb maximum period for pre- 91% of articles in national wrongly overturned a tribunal to the shooting dead of attack in Iraq. She criticised charge detention remains at newspapers about ruling allowing three refugeees innocent Brazilian Jean Charles the MoD’s policy on disclosure 48 hours in the US, five days in Muslims were negative. from the Darfur region of Sudan de Menezes. of evidence at inquests into Spain and seven and a half Only 4% of the 353 articles to be sent back to squatter soldier’s deaths in Iraq. days in Turkey. studied were positive. camps near Khartoum.

10 I Socialist Lawyer G December 2007 Young Legal Aid Lawyers

This regular column is written by members of YLAL. If you are interested in joining or supporting their work, please visit their website www.younglegalaidlawyers.org charges on Aamer Vulnerable people sented victims of the ‘war on If the Judiciary is successful in survey of our young expect to help are possibly even terror’, who were accused of ter- silencing Aamer Anwar, then this legal aid lawyer mem- more traumatised than legal aid rorism, and who where eventually will have far-reaching conse- bers last year found clients of previous generations, proved innocent of the charges quences. A lawyer’s job is to rep- Athat an overwhelming given the reduced eligibility rates laid against them. In 2005, he resent their clients to the best of majority were attracted to a and the raft of new laws that helped campaigners negotiate a their ability – no matter what career in legal aid due to a desire have been introduced since way to the G8 Summit at Glenea- crimes they are accused of. All to work towards a more just so- Labour came to power. gles and defended demonstrators those who campaign against injus- ciety. New lawyers setting out in As Gareth Peirce said in her arrested during the protests. tice and for a better world, know a career in legal aid do not do so speech on receipt of the legal Following the collapse of the that one day they may have to for financial reward: they do it personality of the year award in World’s End Trial, the Lord Advo- face the state in a courtroom. because they want to use the law 2006, however bad our lot is, it cate stressed the importance of the They need lawyers who are will- to help ordinary and vulnerable is incomparable to the horrors independence of the Judiciary and ing to advocate and speak out on people. faced by many of our clients. We Prosecution. Equally as important their behalf. We should all be very On the whole the clients that usually meet our clients at a is an independent defence, which is worried if the effect of this case is legal aid lawyers work for tend point of absolute crisis. often all that stands between the to make lawyers reluctant to carry to come from some of the most My current job working as a accused and the state. We might out this work for fear of the reper- excluded groups in society. They solicitor at the Howard League not always agree with Aamer cussions. We believe that the cur- are more often than not the vic- for Penal Reform is a good ex- Anwar, but he is part of a rich and rent attack on Aamer Anwar is an tims of multiple forms of abuse ample: we undertake legal aid important tradition of campaign- attack on the fundamental right of with harrowing stories of vio- work on behalf of children in ing lawyers that speak without all lawyers to represent their lence and neglect. The profile of custody. Almost all of my clients ‘fear or favour’. clients.” G the vast majority of our clients have, before the age of 18, expe- would be familiar to profession- rienced a string of adversities als working in social care. and difficult events in their lives Although legal aid was origi- any one of which would proba- nally designed as a key pillar of bly have reduced me to a nerv- BAE-Saudi case the welfare state to help ordi- ous wreck. In 2003, giving nary people who otherwise judgment in the Children Act companies’ influence over govern- also been reminded of his state- could not afford access to jus- case brought by the Howard ment. We are now one step nearer ment last month that ‘human tice, it is increasingly becoming League, Mr Justice Munby sum- the point when BAE Systems is no rights are universal’, in the con- the preserve of the most vulnera- marised the profile of children in longer calling the shots.’ text of the Saudi regime’s fre- ble. Contrary to the Govern- custody. He described them as Nicholas Hildyard of The quent use of torture and violent ment line, legal aid is in the generally ‘vulnerable and needy Corner House said: ‘The courts suppression of political and reli- process of being scaled back, children […] disproportionately have today shown that no one is gious dissent. The Saudi dictator and effectively cut, so that only […] from chaotic backgrounds’ above the law – not BAE Systems, King Abdullah, found the Mall the most needy are generally eli- with many having ‘suffered not the Government, not Saudi lined by arms protesters as he gible for help. For instance the abuse or neglect’, many with a princes. There are key legal prin- travelled in ceremony to Bucking- new means testing in the magis- ‘history of treatment for mental ciples at stake here. At last this ham Palace. The demonstration, trates’ courts means that three health problems’ and noted that case will get the public hearing it which was entirely peaceful, was quarters of all working house- ‘[d]isturbingly high percentages deserves.’ organised by CAAT and included holds are no longer eligible for had considered or even at- The Government had also activist comedian Mark Thomas legal aid in those courts, accord- tempted suicide’. Sadly, over four faced criticism earlier in Novem- and human rights campaigner ing to independent research by years on, this description still fits ber, over the state visit to the UK Peter Tatchell. For more informa- the New Policy Institute. The far too many of my clients. by King Abdullah, the dictator of tion visit: www.caat.org.uk clients that new lawyers can G Laura Janes, Chair YLAL Saudi Arabia. Gordon Brown has G Hannah Rought-Brooks December 17: Victims of 20: The UK Government are 23: The former Chief 30: The Proscribed 4: The Government is to introduce a miscarriage of justice will criticised by the Children’s Rights Justice Lord Wolf Organisations Appeal bill to allow Inquest juries to hear secret have to spend longer in Alliance for England who found says that prison Commission rule that the Home phone tap evidence after the famiy of prison before their cases that handcuffs were used 44 times numbers had Secretary acted illegally in a 24-year-old unarmed black man who are reviewed because of on youngsters in custody, and two reached a “critical refusing to take the People’s was shot dead by police threatened Government spending children had their clothes cut off situation” and Mojahedin Organisation of Iran legal action. A Coroner has ruled that it cuts. Staff who leave the during a search in prison this year. suggests that judges (PMOI) off the proscribed ws impossible to hold an inquest iinto Criminal Cases Review The UK continues to imprison should start tailoring terrorist list drawn up under the the death of Azelle Rodney because of Commision are not more children than almost any their sentences to fit 2000 Terrorist Act. The PMOI is the amount of material which could not being replaced. other European country. resources available. the main Iranian opposition. be seen by the jury.

Socialist Lawyer G December 2007 I 11 HUMAN TRAFFICKING:

MODERN DAY SL by Judith Farbey uman trafficking is a crime that demeans the value of human life and is a form of modern day slavery.’ Thus states the UK Action Plan on Tackling Human Traf- ficking which the Government published in March 2007 on the same day as signing ‘Hthe Council of Europe Trafficking Convention. Modern day slavery is graphically illustrated by the actions of a child trafficking gang broken up by police in 2006 and triggering arrests as far and wide as Italy, Bulgaria, Germany and Aus- tria. According to police, the gang had trafficked mostly Bulgarian children aged eight to 13, keeping them like slaves in Western Europe and forcing them to steal money which was then plied into drugs. The vulnerability of the young victims does not need spelling out, but the gang appeared to have the consent of the parents who rented out the children on a contract basis as a result of their own poverty. The case Above: Girl selling bags of water – illustrates how human trafficking raises issues affecting Libreville, Gabon. social, economic, criminal and immigration policies. At na- Picture by Mike tional level, anti-trafficking measures provide real opportu- Sheil/Blackstar nities for joined up Government. This article considers how with permission the UK Action Plan focuses on the multiple policy aspects of from Anti-Slavery human trafficking and on Government-wide, cross-depart- International. mental, objectives.

12 I Socialist Lawyer G December 2007 AVERY What is human trafficking? planation of the difference: ‘First, trafficking is carried out The Convention defines trafficking in the same way as the with the use of coercion and/or deception, whereas smuggling earlier Palermo Protocol. Under article 4 of the Convention, is not, indicating that the latter can be a voluntary act on the trafficking in human beings means ‘the recruitment, trans- part of those smuggled. Second, trafficking entails subsequent portation, transfer, harbouring or receipt of persons, by exploitation of people, while the services of smugglers end means of the threat or use of force or other forms of coercion, when people reach their destination. Third, trafficking can of abduction, of fraud, of deception, of the abuse of power or take place both within and across national frontiers, whereas of a position of vulnerability or of the giving or receiving of international movement is required for smuggling. Finally, payments or benefits to achieve the consent of a person entry into a state can be legal or illegal in the case of traf- having control over another person, for the purpose of ex- ficking, whereas smuggling is characterised by illegal entry’. ploitation’. Exploitation includes ‘at a minimum, the ex- The UK Action Plan recognises: ‘Some victims of traffick- ploitation of the prostitution of others or other forms of ing enter the UK illegally, but many are migrants who have sexual exploitation, forced labour or services, slavery or prac- found themselves in a situation where they are being ex- tices similar to slavery, servitude or the removal of organs’. ploited.’ There can be no doubt that trafficking has a transna- The victim’s consent to the intended exploitation is irrele- tional dimension or that individual trafficking gangs spread vant. In addition, the recruitment, transportation, transfer, their tentacles across borders. On one important level, traf- harbouring or receipt of a child for the purpose of exploita- ficking raises issues of border control. Among other immi- tion counts as trafficking even if this does not involve any of gration measures, the Convention stipulates that Parties ‘shall the means set out above. strengthen, to the extent possible, such border controls as Human trafficking must be distinguished from people may be necessary to prevent and detect trafficking in human smuggling. In its report on Human Trafficking, the Joint beings’. Parties must also adopt measures to prevent com- Committee on Human Rights (JCHR) cites the definition of mercial transportation from being used for trafficking. Do-

smuggling in the Protocol Against the Smuggling of Migrants mestic measures must ensure that travel or identity documents L by Land, Sea and Air and sets out a useful and succinct ex- are ‘of such quality that they cannot easily be misused and

Socialist Lawyer G December 2007 I 13 “Not merely organised immigration crime but also grave violation of fundamental L cannot readily be falsified’. However, trafficking is not simply a problem about immigration and the Convention recognises this by advocating a broad, holistic approach, rooted in human rights. It seeks to promote a coordinated approach under which agencies of the State not only criminalise traf- ficking but also undertake measures such as awareness rais- ing, social and economic initiatives, and training programmes. In this way, law enforcement personnel, professionals, the media and civil society each play their part in decreasing demand for exploitation and in protecting the victims of ex- ploitation. Under the scheme of the Convention, these activ- ities should take place against the backdrop of gender mainstreaming. Educational programmes should stress the ‘unacceptable nature of discrimination based on sex, and its disastrous consequences’. The JCHR has reminded the Government that trafficking: ‘should be seen not merely as organised immigration crime, but also as a grave violation of fundamental human rights. The human rights of victims should be at the core of the UK response to trafficking.’ The European Commission has stated that the ‘needs and rights’ of victims ‘shall be at the centre of the EU policy against human trafficking. This means first and foremost a clear commitment of EU institutions and Member States to follow a human rights centred approach and to promote it in their external relations and development policies’. It follows that UK policy on trafficking should extend beyond border controls and border crime. How does the UK Action Plan reveal the sort of holistic approach advocated by the Convention? This question can be answered by reference to three principal policy areas: pre- vention of trafficking at source, investigation and prosecu- tion of perpetrators, and protection for victims.

Preventing Trafficking at Source The UK Action Plan is clear that the Government seeks to implement measures to tackle the root causes of human traf- ficking. The remit is cross-departmental, involving the Home Office, the Foreign & Commonwealth Office (FCO) and the Department for International Development (DfID). The three prongs to this work are ‘awareness raising measures which highlight the dangers of trafficking, actions to address the factors that make poor people vulnerable to trafficking, and work designed to build capacity in source and transit coun- Above: Pelagy and to the Government’s Migration Fund which aims to ‘reduce tries to deal with organised immigration crime’. Jocelyne. Both were the entry of people causing harm to British society’ and ‘sup- The Government has recognised that economics is a dri- trafficked from port the development of effective and sustainable returns ving force for trafficking. The UK Action Plan cites ‘poverty Benin to Gabon. arrangements’. Reflecting some of the more controversial as- and social exclusion’ as underlying causes of exploitation and Picture by Mike pects of the Government’s general immigration policy, the confirms that the Government will ‘continue to increase our Sheil/Blackstar Fund seeks to ‘help to manage migration in third countries development programme budget to reach the UN target of with permission where this helps UK interests’, as well as to ‘increase […] un- from Anti-Slavery 0.7% of national income by 2013 which supports country-led International. derstanding of legal and illegal migratory flows’ and to ‘im- approaches to improve governance and security, health and prove protection of genuine refugees and internally displaced education, and decent work opportunities for poor people’. persons’. The UK Action Plan emphasises various objectives The Plan highlights in particular DfID’s £6 million donation of the Fund including improvement in law enforcement func- to the Mekong Sub-Regional Project to Combat Trafficking tions, utilisation of a multi-agency approach and sharing best in Children and Women. DfID also supports Save the Chil- practice. More specific action to combat trafficking includes dren’s anti-trafficking work in the Greater Mekong region. In (from the FCO’s Drugs & Crime Fund) a regional anti-traf- addition, the UK’s existing global commitment to reducing ficking project in the Western Balkans and work with Ro- child poverty and to promoting universal primary education manian and Bulgarian anti-trafficking agencies. are seen as useful means of reducing the causes of child traf- As a further tool, the Government believes in awareness ficking. raising campaigns both in the UK and abroad. The UK This aspect of the Government’s anti-trafficking work is Human Trafficking Centre (UKHTC) has undertaken cam- very ambitious and aspirational: it will address ‘the increas- paigns in Romania and Bulgaria. The Department for Trade ing inequality in prosperity between and within countries and and Industry (now the Department for Business, Enterprise the increasing demand for cheap labour and other exploita- and Regulatory Reform) and the Gangmasters Licensing Au- tive services’. There is thus a clear cross over between anti- thority (GLA) have produced information on workers’ rights trafficking measures and the Government’s global in various languages. Advertisements and posters in the UK anti-poverty agenda. have ‘explained ways in which instances of possible ex- In addition to anti-poverty policies, the UK Action Plan ploitation can be reported’. The FCO will publicise abroad relies a great deal on existing economic measures for tack- successful UK prosecutions for trafficking in an attempt to ling organised immigration crime. The Plan makes reference deter traffickers.

14 I Socialist Lawyer G December 2007 human rights” The UK Action Plan also argues that the Government has taken steps to deter demand for forced labour, citing the I was trafficked (Lien, China) GLA’s licensing system and the civil and criminal penalties for employing illegal migrant workers. The system of civil I was trafficked to the UK two years ago from China. I and criminal penalties does not target traffickers in particu- had tried to escape from my aunt, who had kept me as lar and is more properly regarded as part of the Government’s a prostitute in her house after my parents died when I ongoing efforts to strengthen the UK’s borders against illegal was 13. Instead of looking after me she did not feed migration as a whole. However, more specific to trafficking, me properly and she kept me tied to a chair and beat the Government also seeks to ‘target men who might use me. massage parlours, saunas or other kinds of brothel, through I lived like that for six years. I was very depressed. I men’s magazines, websites or other targeted media’ by way of thought about killing myself and I wanted to run away. advertisements raising awareness of human trafficking. Ac- Then one of the men who visited me at my aunt’s cording to the Plan, ‘such publicity techniques had an effect house offered to help me escape. He said he felt sorry on the behaviour and attitudes’ of some men. The Govern- for me and wanted to take me somewhere safe. He ment recognises that the success of awareness raising cam- told my aunt he wanted to take me out for the day, and paigns, which aim to prevent trafficking at source and to gave her some money. But instead he took me to the reduce demand, can only be ascertained through proper eval- airport and brought me to England. He arranged my uation mechanisms. travel and told me that he had arranged immigration papers for me. He paid for everything too. Prosecuting perpetrators of human trafficking He was nice to me but that changed when we As the root causes of trafficking are not going to go away, arrived here. He left me at a brothel while he went for a long-term economic policies need to mesh with specific, de- drink with a friend. He did not come back. He had sold tailed and immediate legal provisions. Transnational mea- me and gone back to China. I did not know where I sures need to be supplemented by effective implementation of was. I was made to work as a prostitute again, with at national laws. The Government has indeed sought to bolster least five other women. Only one other woman was the domestic legal framework and its implementation. Recent Chinese; the rest were all white, but I don’t know where measures in the UK aim to shift human trafficking to the they were from. They threatened me and kept me mainstream of police functions and law enforcement activi- locked up. ties. The UKHTC, established in October 2006, brings to- I was kept there for several months and then I gether the police and other law enforcement agencies such as managed to escape in the middle of the night. I walked the CPS, Serious Organised Crime Agency (SOCA) and the for three days before anybody helped me, and then a Border and Immigration Agency (BIA). The UKHTC aims stranger called the police for me. The police locked me for a multi-pronged approach, combining law enforcement up overnight before they came with an interpreter and and training of law enforcement personnel with preventive realised I had been trafficked. measures and public awareness campaigns. In addition, Op- I am very tired now, all the time, and I have very bad eration Pentameter 2 was launched at the beginning of Oc- nightmares. I am still depressed. I think I always will tober 2007 which will ‘involve a campaign of activity be. throughout the United Kingdom’ aiming to ‘discover the extent’ of trafficking. It follows Pentameter 1, a nationwide Case study from the POPPY Project: Lien is not her police operation, which confirmed 84 women as victims of real name trafficking and led to 232 arrests. Recent years have seen burgeoning numbers of immigra- tion offences reach the statute books, not least in the area of ing work across stakeholders’. It will work not only with trafficking. The Sexual Offences Act 2003 has created of- other Government agencies but also with NGOs. Given the fences of trafficking a person into, within or out of the UK for transnational aspect of trafficking, the UKHTC aims as a ‘key sexual exploitation (ss.57-60). The Asylum and Immigration objective’ to establish good working relationships with for- (Treatment of Claimants, etc) Act 2004 has created specific eign law enforcement agencies. It has already engaged with offences of trafficking a person for other forms of exploita- Europol, Interpol, the USA, Canada, Ireland, Nigeria, Poland, tion such as slavery or forced labour (ss.4-5). Both under the the Netherlands and France. Consistent with a victim-cen- 2003 Act and under the 2004 Act, the maximum sentence on tred approach, the UKHTC employs a Victims’ Co-ordinator conviction on indictment is 14 years. The Violent Crime Re- and has established a special group to address victim issues. duction Act 2006 amended the Sexual Offences Act 2003 to SOCA’s organised programmes against immigration crime allow the forfeiture and detention of land vehicles, ships and cover ‘source countries, nexus points on route to the UK, ex- aircraft used in trafficking for sexual exploitation. The Action ploitation of illegal migrants in the UK and trafficking of Plan confirms that ‘the Government is committed to keeping people, in particular women and children for the vice trade’. the legislation on trafficking under review’ to ensure its ef- SOCA’s Liaison Officers work in more than 100 posts in fectiveness and deterrent effect. The Government accepts that almost 40 countries. Liaison Officers collate overseas intelli- ‘hitherto the focus of enforcement activity has been on traf- gence, carry out intervention activity and liaise with UK and ficking for sexual exploitation’ and recognises the need to de- international agencies. velop a response to other forms of trafficking. Further CEOP was launched in April 2006. It fosters links in the legislation may therefore be enacted. UK and internationally ‘to deliver a holistic approach that As in its efforts to combat trafficking at source, the Gov- combines police powers with the dedicated expertise of busi- ernment advocates a multi-agency response to enforcement of ness sectors, government, specialist charities and other inter- anti-trafficking laws. Those agencies include the UKHTC, ested organisations’. It focuses on tackling child sex abuse SOCA, the Child Exploitation and Online Protection Centre but does not deal with child labour. (CEOP), the Scottish Crime and Drug Enforcement Agency (SCDEA) and the Trafficking Working Group which has been Protecting victims of trafficking formed by Scottish police forces. The UKHTC ‘will continue The Plan also recognises that ‘any end to end strategy requires to take forward the development of a victim centred ap- a supportive balance between its different strands and that L proach to trafficking’ and ‘will play a key role in coordinat- there is a need for a strong enforcement arm to have the corol-

Socialist Lawyer G December 2007 I 15 “Child victims exemplify how victims of trafficking may not always be the victims of organised crime”

defence to entering the UK without a passport. Moreover, the CPS can exercise discretion to discontinue a case on the basis that it is not in the public interest. The Plan says that it is ‘dif- ficult to envisage circumstances where it would be in the public interest to prosecute genuine victims of human traf- ficking for immigration offences’. Where prosecutions for im- migration offences have taken place, they are (according to the Action Plan) attributable to a ‘lack of awareness’; it is hoped that better training will ameliorate the problem. The Convention, which mandates a child-sensitive ap- proach to the development of anti-trafficking measures, pro- vides that States ‘shall take specific measures to reduce children’s vulnerability to trafficking, notably by creating a protective environment for them’. The Action Plan, which dedicates a Chapter to child victims of trafficking, affirms Left: A former that children have special and different protection needs flow- trafficker – Mono ing from ‘a reduced capacity to assess risk and an increased Region, Benin. dependence on others’. A number of cross-departmental pro- She worked as a trafficker for 26 jects and schemes aimed at providing assistance to health and years taking education professionals are in train. children from Child victims exemplify how victims of trafficking may Benin to Nigeria. not always be the victims of organised crime. Children may Picture by Mike enter the UK accompanied by family members who then force Sheil/Blackstar them into illegal labour for the family or for others. It may be with permission particularly difficult to identify this sort of victim, as there is from Anti-Slavery no obvious investigative target for law enforcement agencies International. L lary victim provision’. Chapter III of the Convention deals and these victims, even more than others, may not under- with measures to protect and promote the rights of victims. stand how to approach protective agencies. This is part of Under article 10(2), if a party to the Convention has reason- the wider problem that trafficking for forced labour is often able grounds to believe that a person has been the victim of ‘a hidden problem within families and communities making human trafficking, that person shall not be removed from the it harder to identify and detect’. The Action Plan recognises territory until the process has been undertaken to identify that research in this area is required even to establish the scale him or her as a victim. Victims must receive assistance in their of the problem. physical, psychological and social recovery including accom- modation, medical treatment, translation and interpretation Conclusion services, information about their legal rights and access to ed- There can be no doubt that the UK Action Plan contains ucation for children. The Action Plan sets out the various plenty of food for thought. In some ways, its approach is evo- means by which the UK seeks to fulfil its protective duties to lutionary – building on existing measures within the spheres victims. of economic, criminal and immigration policy. The major ex- Under article 13 of the Convention, each party must pro- ception – and a huge step forward – has been the establish- vide victims with a ‘recovery and reflection period’ of at least ment of the UKHTC. The Convention too provides a detailed 30 days. The period must be sufficient for victims to escape framework for further developments with which the Gov- the influence of traffickers and take an informed decision on ernment will have to grapple sooner or later. Whilst the Con- co-operating with the authorities. Victims must not be ex- vention contains provision for strong border controls, it pelled from the territory during this period. Moreover article recognises that crossing borders is only one aspect of the over- 14 allows victims of trafficking to reside in a State when the all scourge of trafficking. Border controls do not assist in authorities consider that their stay is necessary for investiga- tackling exploitation and the other root causes of trafficking. tion or criminal proceedings. We must wait and see how the By the time a trafficked woman or child arrives at a border, UK will implement these provisions on ratification of the she may already have been the victim of exploitation and is Convention. Whilst victims of trafficking may currently be already in a dangerous position. Victims of trafficking may granted humanitarian protection or even (in some circum- appear to immigration authorities like regular migrants: they stances) refugee status, the implementation of these provi- may have regular visas and some may not need visas at all if sions of the Convention would mark a radical change to travelling within the EU. A human rights based, victim-cen- immigration law. The Plan alludes to the provisions without tred approach should extend far beyond strict immigration casting light on how the UK will implement them. measures. The Government’s decision to sign the Convention The Action Plan emphasises that it is UK policy to avoid marks a significant step forward. It must now harness the the criminalisation of victims of trafficking. Hence victims various agencies and departments – inside and outside White- should not usually be prosecuted under section 2 of the hall – to deliver the full range of Convention protections. Asylum and Immigration (Treatment of Claimants, etc) Act 2004 because their circumstances are likely to constitute a Judith Farbey is a barrister at Tooks Chambers

16 I Socialist Lawyer G December 2007 At any one time there are three thousand children in prison in the UK. Sometimes they are children with no papers. Laura Janes asks why? PRISON: NO PLACE FOR MINORS

ext year the UK Government they would be able to do with one such young companied asylum seeking children were pre- falls under the scrutiny of the girl and where she would be released to. MJ pared, the Court did not need to hear those UN Committee of the Rights of had arrived from China without papers. She arguments. the Child. Article 37 of the Con- had been incorrectly identified as an adult and However, in the course of representing MJ, vention requires that we im- remanded to an adult women’s prison for it became clear following basic research that prison children as a last resort some six weeks before being produced at the there was a strong possibility that MJ had been Nand for the shortest possible period of time. Crown Court. The judge decided that she was trafficked. Given the responsibility of all pro- Our own youth justice system aims to be pri- in fact a child and sentenced her to a further fessionals, including lawyers, to make appro- marily preventative and reflect these aims. four month detention and training order, in- priate referrals to ensure children are safe, we Yet some 10,000 children pass through the correctly believing that time on remand would explored this issue further. Hours of research secure estate for juveniles per year. At any one count towards her sentence (it does not for a indicated that many of the hallmarks of traf- time there are approximately 3,000 children DTO). ficking were present in her story. We were able under the age of 18 held in secure children’s The Howard League represented MJ in an to locate the relevant team at the Refugee homes, Secure Training Centres (STCs) or appeal against sentence some weeks later, Council and make an appropriate referral to Young Offender Institutions (YOIs). As of 2nd having secured an address from social services ensure her well-being. However, it would have November 2007, there were 3,018 children in and successfully applied for bail. R v MJ been extremely helpful if we could have used the secure estate. [2007] EWCA Crim 1999 held that, as the the new NSPCC trafficking advice and infor- Worse still, and for some years now, inci- minimum custodial penalty for a child is four mation line launched on 8th October 2007, dents of lone asylum seeking children being in- months and the appropriate penalty for an precisely to help professionals to identify po- carcerated within the criminal justice system adult committing the same offence would be tential victims of trafficking (see box below). for failing to provide immigration papers have approximately two months, no custodial Unfortunately, the judgment only goes as been reported. Typically, children were said to penalty should be imposed. The case was far as to confirm that a Detention and Train- be arriving without papers, being remanded to argued as a straightforward sentencing case ing Order should not normally be imposed on custody and then sentenced to four-month de- and, although issues surrounding the purpose a juvenile convicted of an offence under s2 of tention and training orders (DTOs), of which of the DTO and the vulnerabilities of unac- the Asylum and Immigration (Treatment of they would serve two months in custody and Claimants etc) Act 2004. However, many chil- two months in the community. For these chil- The NSPCC Child Trafficking Advice dren who are trafficked or simply vulnerable dren, their first experience of this country was and Information Line (CTAIL) on 0800 arrive with false documents provided to them a significant period behind bars. Re-offending 107 7057 will help people working with by traffickers. There is no judicial guidance work with such children was usually irrelevant children, such as immigration officers, (yet) as to the appropriate penalty for children or inappropriate. It is clear that for such chil- the police, social workers, teachers, with false papers or as to whether a custodial dren the use of custody as ‘a last resort’ was and health workers, to better identify sentence is wrong in principle for such of- simply not being applied. According to Home and protect child victims. It will also fences. The Director for Public Prosecutions is Office policy, children arriving alone are not shed light on the scale of child due to issue guidance on the appropriate allowed to be detained in immigration deten- trafficking in the UK. charging policy for people who may have been tion. The free service has been set up trafficked this year. Yet, it remains difficult to Moreover, there is often a risk that an un- with funding from the Home Office and see the extent to which this will help, unless accompanied child arriving in this country Comic Relief. It will run in partnership steps are taken to ensure that the signs of traf- without papers may have been trafficked. The with the Child Exploitation and Online ficking are spotted by the professionals that criminal justice system is simply not equipped Protection Centre (CEOP) and End lone children come into contact with. to deal with these issues. Child Prostitution, Child Pornography In July of this year, the Howard League was and the Trafficking of Children for Laura Janes is a Solicitor and Legal Officer for contacted by staff at a secure centre who were Sexual Purposes (ECPAT UK). the Howard League for Penal Reform. For unsure as to what offending behaviour work more info go to www.howardleague.org

Socialist Lawyer G July 2007 I 17 18 I Socialist Lawyer G December 2007 Pictures by Jess Hurd Socialist Lawyer interview IMRAN KHAN talks to SULTANA TAFADAR

“It’s now assumed you’re guilty and you’ve got to prove your innocence”

Sultana: The counter terrorism bill pro- days or 56 days are both arbitrary time limits. poses extending the period of deten- Imran Khan, with Complexity and jurisdictional issues don’t stop tion without charge from 28 days to 56 Michael Mansfield at any particular day. It has now become days. According to the Government, QC, brought Britain's normal for the prosecution to serve its case the period of detention needs to be in- first private against the defendant many months down the creased to deal with the increasing prosecution for a line. The argument put is that this is because of complexity of cases – that suspects racist murder on jurisdictional issues or because of the com- will need to be held for a longer period behalf of Stephen plexity of computer material, mobile tele- of time so that evidential as well as ju- Lawrence’s parents. phone analysis, interrogation or getting the risdictional issues can be dealt with Though material into an evidential format. In most before charge. What are your views on unsuccessful, it led cases this is information which the police the proposals and the rationale for to the McPherson would already have at the police station. The seeking such an extension yet again? report which cited “institutionalised delay is about “softening up”. The way to Imran: ‘Firstly, in relation to the issue of juris- racism” in the police force and which look at this issue is when the police arrest diction the world’s getting smaller. Unlike in resulted in unprecedented apologies, somebody they must be in a position to put the past access to information now via data- procedural changes and also vindication the material that they have at that stage to bases, email, and telephone is easy. We saw for the Lawrences in their pursuit for them, enough for the authorities to be able to this in the Glasgow case where we found out justice. He has also represented the say whether the suspect can be charged or not. here in the UK what was happening in Aus- families of Zahid Mubarek and Victoria In the vast majority of cases, it is intelligence- tralia within a very short space of time. So if Climbié. Imran Khan favours “impact led operations where there has been substan- we can get that information that quickly, I cases… cases that are dead and buried”, tial surveillance and interception material don’t see why the authorities, who co-operate done free of charge, especially in the early weeks and months prior to the event. Mr Jus- on an international basis, can’t have access to stages as there is no state help available. tice Calvert-Smith QC, who deals with case information very quickly. progression of these types of cases, has made

“That's why I’ve gone grey,” he says. L Secondly, on the issue of complexity, 28 it absolutely clear, that where there are intelli-

Socialist Lawyer G December 2007 I 19 L gence-led operations there has to be a trun- cated timetable by which the prosecution need to give this material because they’ve had a head start. So I think the Government’s “jus- tification” is a red herring. The idea that we need “x” amount of time is completely arbi- trary. It allows the police to put a huge amount of pressure over a long period of time on a sus- pect at a police station. They feel that these in- dividuals will crack and say things. The police and the prosecution need to do their jobs gath- ering the evidence without relying on pressure and confessions.’ As someone who represents defen- dants charged with terrorism related offences, what has been your experi- ence of the pre-charge detention period, its impact on your clients, and its overall effectiveness in combating terrorism? ‘Seven days, in my experience, was a fairly op- pressive period of time and I’ve dealt with many people who have been held beyond seven days. There invariably comes a time during that period, almost regardless of the people you are dealing with, when you sense that there are cracks appearing in the suspect’s personality. By this I mean psychological problems where people start debating whether they’ve done something wrong and you can see that the whole process is not about eliciting information but simply wearing somebody down. And what I sense you may end up getting is people being so worn down that they’ll be prepared to say anything at a police station leading to false con- fessions from people who may not have done anything. The “committed” individual may be able to stand up to that sort of interrogation but not the innocent ones that will be dragged in, in nearly every case. Now those individuals, those “innocents who are dragged in” may end up being the ones who would falsely confess, with or without the protection of a lawyer, in order to simply get away from what is oppres- sive treatment. I can’t even imagine the scenario of spending 90 days in a police station. When I go to Paddington police station, after ten days I feel pretty awful and that’s me walking in and out of the police station. But being held there, in that sort of condition where you are isolated, you don’t speak to anybody, you get very little reading material, that sense of isolation is such that it would lead to people making false con- fessions. People who make this kind of false confession do so in order to simply get away from the oppressive regime. So I think it’s a false economy to think that we are somehow going to be able to get all the information in that period of time. What, in fact, you may end up getting is that those who are committed to re- maining silent, will remain silent whether you can put the material to them or not. Those that are likely to talk will talk within seven days or 14 days. If it’s to draw inferences from silence that doesn’t need a lengthy detention. I just don’t see the rationale for this approach. Are the police saying, “we don’t know within 14 days whether there is sufficient evidence to charge somebody?” I just can’t believe that. The police do, already, whether they admit it or not, charge on the basis that it’s easier to charge and then drop the charges later on if the evidence doesn’t quite match up. What I’ve seen with the increase of the detention period to 28 days is a

20 I Socialist Lawyer G December 2007 lack of police focus on the cases they deal with. The number of interviews cuts down, the number of personnel involved cuts down. “The problem with There’s a complacency involved in the investi- gation which I think would definitely expand intercept evidence is during the extra period of time. If you count up the number of hours somebody’s being inter- that it is incredibly viewed over a 28 day period and a seven day difficult to challenge” period, you’ll probably find that they’ve been interviewed the same number of times. I’ve dealt security services. I think it will end up being a with ‘seven day’ cases where there were three real deep cesspit of lies and deceit against in- or four interviews during the course of the day dividuals so I certainly wouldn’t advocate that but with the increase to 14 days, you had as a means of dealing with terrorism. maybe one interview during a single day. When The problem with intercept evidence is that it went to 28 days you had some days with no it is incredibly difficult to challenge. We al- interviews. It was about pressure – pure and ready have a situation where there’s lots of simple.’ covert audio material in terrorism cases when Some see post-charge questioning, an- there has been a substantial period of time other measure outlined in the new bill, from when that surveillance took place. I can as an alternative to pre-charge deten- imagine intercept material which has been tion. What are your views on this pro- taking place over a period of time eventually posal? coming to court a year or two years later. The ‘We already have a situation where identity pa- ability of the defendant to challenge that be- rades and some questioning can take place comes quite difficult given the length of time after charge and it’s been the thin end of the that’s involved. Given that the authorities wedge. Would it be the case that such ques- would choose what to intercept, when to in- tioning after charge is allowed if there’s some tercept and edit the intercept in such a way issue that needs to be put and it is viewed by that what you eventually get is a picture which the police as a last resort? Or are they simply is prosecution-loaded and because you don’t going to rehearse the same arguments and put have it at the time, the defendant would have forward the same questions simply to try and great difficulties in contextualising the con- force somebody into saying something? I sup- versations or otherwise dealing with the issues pose it could be argued that suspects dealing present at the time which would explain what with the evidence in interviews once it is all was said. At the moment we have a huge prob- available and dealing with subsequent dis- lem with obtaining, from the Crown, all audio crepancies would be better than having a long probe material that was taken, relying on their initial period of detention. However, it seems discretion and the CPIA rules as to what we to me that post-charge questioning serves no are given or not given and that argument is practical purpose. Having determined that going to keep going. What the prosecution will there is enough to charge somebody and this do is choose what they want to put forward means (particularly with the CPS now in- and the defence will have to draft defence case volved in this decision) the police have decided statements and hope to bring out conversa- that there is a “reasonable prospect of convic- tions that may or may not have been recorded tion”, what purpose does the ongoing ques- or which are open to interpretation by disclo- tioning serve other than a dress rehearsal for sure officers and prosecution lawyers, a year to the trial? So whilst there may be an argument, two years after the event.’ that this a pragmatic approach and perhaps What are your views on the measure the lesser of two evils (in that it is better than outlined in the bill that seeks to extend a long period of initial detention) because sus- the ambit of section 58 of the Terror- pects are bound to have lawyers post-charge ism Act 2000 to cover the collection of whereas pre-charge they may not, it is simply information of service personnel? a device for the police to draw more adverse ‘Collection of information as an offence is just inferences, as defendants are more likely to be surreal. You could write a whole book on how advised to exercise their right to silence know- wide section 58 is in terms of its ability to ing that the police already believe they have catch any act. It is an almost strict liability of- committed the offence by charging them.’ fence. The new proposal takes it to the com- As you well know, having represented pletely surreal level. On the face of it, if I were two of the defendants, in the Fertiliser to Google the names of the head of the army, Bomb Plot trial, supergrass and inter- then I could be committing an offence. Where cept evidence were a crucial part of the State has already said in cases and in terms the Crown’s case. The Government en- that section 58 allows the arrest, in theory, of visages the use of such evidence in an old lady carrying an A-Z on a London bus, future cases and is therefore seeking then I dread to think who might be subject to to place them on a statutory footing. this discretionary arrest and prosecution. Le- What are your views on the Govern- gitimate enquiries ought to be allowed to be ment’s proposal? made about our service personnel. Journalists, ‘Supergrass evidence is completely and utterly researchers, members of the public, should be unreliable. To have people give information on entitled to ask questions. Its all about making the basis of an incentive means that the likeli- Government accountable and transparent. hood of that evidence being reliable is non-ex- You already find difficulties when asking ques- istent. To have people convicted on the basis of tions about service personnel. This would that type of testimony alone is a recipe for dis- make it a criminal offence to do so. People aster. Scores will be settled and all sorts of mock the idea that we’re living in some sort deals could be done in the back rooms of the of police state but we’re getting pretty close toL

Socialist Lawyer G December 2007 I 21 L it when you can’t even ask legitimate questions do in an almost given rite of passage to adult- courts and the prosecuting authorities are re- about service personnel. hood. Arrest and prosecute when people act luctant to investigate and prosecute offences One may ask “what’s the harm in making against clear laws. What this is trying to do is where there is a terrorist element. this an offence? If it’s for a legitimate purpose to get people at the time they’re simply think- What used to happen in race-related crimes they should be able to prove it?” There are all ing about their environment. I never thought was that the police would deem them as minor sorts of reasons why you might collect infor- I’d see the day when our thoughts were po- crimes because of the low sentences they at- mation. Shouldn’t it be that they ought to be liced in Britain. But essentially that’s what this tracted. There wasn’t the motivation to pro- able to prove that it was for a terrorist pur- legislation is about. It sounds like a fiction that ceed with the investigation and prosecution. It pose? But the onus has shifted and in a climate you’d read in a book by George Orwell but seemed like too much trouble for very little. in which it’s assumed you’re guilty and you’ve it’s getting pretty close to that reality.’ That’s not the case here. I think again this is got to prove your innocence, it becomes really The Government also seeks to apply one of those where the cart’s been put before difficult. Who knows what you were thinking enhanced sentences for terrorism re- the horse. With racially aggravated offences, about when you were Googling a particular lated offences? Is this justified? it was about sending out a signal, it was about thing. I’m particularly concerned about stu- ‘This is complicated because I was certainly in making sure that racism wasn’t allowed to dents at colleges and university who may be favour of stiffer penalties when there was a flourish and the Government wanting to be exploring the world around them and that racist element to an offence. However, the clear about its stance on racism. All very well really is what we’ve seen in the deployment of reason why we were asking for increased sen- and the Government should be lauded and ap- section 58. It’s targeting young Muslim men tences in race-related crimes was because it plauded for all of that. I don’t think that this in particular who are naturally eager to ex- was part of a campaign to force the police to Government in particular has any problem in plore the world around them in the same way take action in those sorts of cases. We’re not its so called anti-terrorism credentials and the that all young people in all corners of the earth living in the sort of environment where the sentences which have been given out are un-

22 I Socialist Lawyer G December 2007 need to reflect that in sentences. One of the database, is going to be enough of a stigma to ironies in the section 58 case of the “Bradford stop all sorts of things happening or cause students” was that the lad who went with his things to happen. Just imagine you travel from family to the police station and admitted that here to another country and a search is car- he had tinkered with this idea of extremism ried out or there’s a whisper that your DNA’s but actually got homesick and came back, was on the database, despite the fact that you’ve himself prosecuted. It would have been an op- not done anything, you’ve not been charged portune moment for the state to say, “you are with anything, you’ve not been convicted of exactly the sort of person who we should anything. There already exists the ability to credit”, and not prosecute. The message has cross-reference it on a database to see whether gone out that it doesn’t matter whether you any other offences have been committed and admit to it or not, the State is going to prose- targeting individuals in this way is further stig- cute first and talk later.’ matisation.’ There is also a proposal that, after Finally what do you think will be the completing their sentence, persons impact of such measures on, firstly, the convicted of terrorist offences should Muslim community and secondly, the be required to notify the authorities of effectiveness in dealing with terror- their identities, their whereabouts and ism? foreign travel plans. What are your ‘To effectively deal with terrorism, the ap- views on this proposal? proach you need to have is intelligence coming ‘I think the problem is putting them in the from the community in which those suspects same category as sex offenders, who also have are operating. There has to be a two-way dia- this notification requirement. It sends out the logue. The authorities need to give the com- wrong message to the Muslim community. munity confidence so that individuals can Whether we like it or not there are people come to them and tell them about what’s going who see themselves righting wrongs. We’ve seen in Northern Ireland that these sorts of re- pressive measures don’t actually work in the long term. What is particularly pernicious “We’ve seen in about this idea, not just of a thought police but a control police, is that you’re never going Northern Ireland that to get rid of the shackles of the State having these sorts of done your sentence. With sex offenders, the issue is that they are seen to have a patholog- measures don’t ical condition which means that they live with it for the rest of their lives. How are we to actually work in the equate that with somebody who holds certain political ideological views? Does that mean long term” that the Government has completely given up on prisoners’ rehabilitation? If it is, then we on. At the same time the authorities have got might as well just not send anybody to prison to say that we’re not going to treat the whole because what they’re assuming is that anybody community as potential suspects. If we’re to who is punished for this is going to be, for a learn lessons from what happened in the past very long time, maybe the rest of their life, an – and it doesn’t look like we have – if you look extremist. So measures are not put into place at what happened with the African-Caribbean to rehabilitate but simply to control. An as- community and what the whole Lawrence In- sumption is made that once an extremist quiry brought out, was that you need to police always an extremist. by consent and that’s something which has Ideologies are by their very nature complex been completely forgotten. What we’re doing nuanced thoughts and processes. One day you with the Muslim community is that we’re may believe a particular argument, the other policing by coercion – we’re forcing people you may not. Just because you’re meeting into a corner. The number of times I’ve gone somebody who holds extremist views doesn’t into communities and people say they want to doubtedly the strictest sentences you’re going mean you share them and the whole point of go and give information to the police, they to get. That’s been set very clearly by the Court ideological discussions is about trying to un- want to trust the police and the security ser- of Appeal in the case of Dhiren Barot which derstand your religion and trying to under- vices but the problem is that whenever they do sets out precisely the sort of sentences people stand the world in which you live. Why try that, it is they themselves who end up would get for being involved in terrorist-re- shouldn’t people be allowed to consider a under suspicion. That was what happened, lated crime. So I don’t think we have a prob- range of views? The problem arises when they and is still happening in the African-Caribbean lem that needs to be sorted out here. It looks do something about it. This provision is trying communities but it’s now happening more and like this is window dressing, giving the Gov- to predict what somebody does before they do more within the Muslim community. We have ernment extra credibility to show they are it and poses a huge problem.’ to see these issues in context. If our Govern- tough on terrorism. As a result, the sheer What are your views on the storage of ment, in our name, carries out reactionary length of the sentence, whether you plead DNA of terrorist suspects on a data- wars and targets a whole community at home guilty or not, is not encouraging people to base? as a potential “fifth column” there is an in- admit liability. Rather, its discouraging people ‘I am in principle against mass storage of evitable consequence. History is littered with from admitting liability. In fact what you’re DNA. DNA is already kept as soon as any- examples: the Irish community in the 1970s probably going to get is more and more people body is arrested and in terrorism cases there’s and 1980s; German Jews in the Second World saying, “well we might as well fight it because no way that you can prevent that at the War; the list goes on. In ten years time we do we’re going to get a lengthy sentence in any moment. One of the problems is, or will be, not want to have to apologise to people whose event”. What the Government and the courts that people who have not done anything lives have been wrecked and families destroyed should say is “if you co-operate, if you admit wrong will have their DNA going onto the by a State that was promoting fear.’ to this and in particular if you move away database. Just by the mere fact of your DNA from what you were going to do”, then we being on what’s called a counter-terrorism Sultan Tafadar is a pupil at Tooks Chambers

Socialist Lawyer G December 2007 I 23 The case of the Miami Five raises serious questions about the US justice system, argues Steve Cottingham, who says it also calls into question America’s attitude to terrorism MIAMI FIVE: WHO ARE ‘TERRORIS

he Five are Gerardo Hernandez Nordelo, Ramon Labanino Salazar, Antonio Gurrrero Rodriguez, Fernando Gonzalez Llort and Rene Gonzalez Se- hewerert. Both Antonio Guerrero and Rene Gon- zalez are US citizens. They have been charged, and convicted following a profoundly flawed trial, of Tconspiracy to commit offences against the USA and of acting as agents of the government of the Republic of Cuba. One of them, Gerard Hernandez, was also convicted of knowingly and wilfully conspiring to perpetrate murder. The Five deny all the charges. Their trial was unfair, their conditions in prison were inhumane, and they were fall guys in an attempt to cover up the US’s support for illegal activ- ity to overthrow the government of the Republic of Cuba.

Who are the terrorists? Since 1959 the US has waged a terrorist war against Cuba. Testifying before the Senate Committee investigating the CIA’s attempts to assassinate Fidel Castro, Richard Helms, the former CIA Director, admitted that ‘We had task forces that were striking at Cuba constantly. We were attempting to blow up power plants. We were attempting to ruin sugar mills. We were attempting to do all kinds of things in this period. This was a matter of American government policy.’ In Terrorism and Civil Society as Instruments of US Policy in Cuba, Philip Agee, a former CIA operative, points out that no US administration since that of Eisenhower has renounced the use of state terrorism against Cuba. True, Pres- ident Kennedy gave an undertaking to Khrushchev that the US would not invade Cuba at the end of the 1962 missile crisis. This commitment was ratified by successive US ad- ministrations but disappeared when the Soviet Union ceased to exist in 1991. As Agee says: ‘terrorism against Cuba has never stopped’. Cuban exile terrorists groups, mostly based in Miami have continued attacks against Cuba. Agee again: ‘whether or not they have been operating on their own or under CIA direc- tion, US authorities have tolerated them’.

24 I Socialist Lawyer G December 2007 “It was clear to the Five’s defence team that it would not be possible for them to have a fair trial in Miami” These terrorist include a group called Brothers to the Rescue. Its founder, Jose Basulto, has been accused of terror- ist attacks against Cuba. His group operate openly in Florida.

The shootdown On 24th February 1996, Basulto and Brothers to the Rescue took off from Florida in three aircraft. Once airborne, they disregarded their flight plans and flew towards Cuba. Basulto and his cohorts had overflown Cuba a number of times in the past. This time, they were warned by Cuban Air Control that they were entering a prohibited area. The Cuban authorities say that Basulto’s aircraft continued to fly towards Cuba. Once inside Cuban airspace, they were intercepted. Two air- craft were shot down by the Cuban Airforce. Although a number of Basulto’s colleagues were killed, his own plane was not hit and he returned safely to Miami. Basulto and the THE US government argued that the shootdown took place over international waters and not in Cuban airspace. The shootdown was a cause celebre among Cuban exiles in Miami. A street and plaza were named after those who died. A monument was erected in a county building in their honour. TS’? Shooting the messengers Some Cubans (including some US citizens) attempted to in- filtrate these exile groups. Their activities were not directed against the US government. No classified information was ever obtained. In 1997 there were a number of bombings of tourist loca- tions in Havana. An Italian tourist was killed. Following the 1997 bombing campaign, the Cuban gov- ernment gave the FBI information that had been obtained concerning terrorist activities. A diplomatic note sent by the US State Department to the Cuban Interests Section at Wash- ington DC dated 5th November 1999 confirms this. Instead of taking action against the terrorists in their midst, the US authorities arrested a number of Cubans (including some Cuban Americans) on 12th September 1998. Two days later, a Grand Jury in the Southern District of Florida indicted the Five. For the next 17 months, they were held in solitary confinement in Miami.

Miami The cases against the Five were due to be heard in Miami. It was immediately clear to the Five’s defence team that it would not be possible for them to have a fair trial in the city. The Five’s defence team commissioned a survey on attitudes in Miami. The results showed that the Five would not get a fair trial there. The Court-appointed defence expert on psychology, Dr Gary Moran PhD, testified that 69 per cent of all respondents to a survey in Dade County and 74 per cent of all Hispanic respondents were prejudiced against people charged with the types of activities outlined in the indictment. Dr Moran also found that nearly 49 per cent of all respondents actually said they could not be fair or impartial. Approximately 90 per cent of the respondents said there were no circumstances that would change their opinions. Knowing that the local popu- lation was hostile to the Five, the defence team applied to the Court several times to transfer the case away from Miami. Each application was refused. The case against the Five remained in Miami.

The jury Prior to the hearing the local press in Miami described the Five as spies. Gerardo Hernandez was called an ‘assassin’. L

Socialist Lawyer G December 2007 I 25 “During selection, all [jury] candidates were asked whether they agreed to the US trade embargo against Cuba. All potential jurors who expressed an opinion against the embargo were disqualified” L This type of reportage inflamed the situation and put more The prosecution were unable to prove that classified in- pressure on those Miami residents selected to serve as jurors. formation had been obtained or that any harm had been done The jury selection process took seven days. During selec- to US interests. This did not stop them arguing at the con- tion, the defence team managed to remove every Cuban clusion of the trial that the Five were in the country ‘for the American from the jury. By the time the process had been purpose of destroying the United States’. concluded, the jury was composed of approximately one third The Five did not simply defend themselves by denying that African American, one third whites and one third non-Cuban they were spies and showing they received no classified in- Latinos. formation. Their defence team called a number of impressive During selection, all candidates were asked whether they expert witnesses. These included Eugene Carroll, a retired agreed to the US trade embargo against Cuba. All potential Rear Admiral in the US Navy with 35 years active service. At jurors who expressed an opinion against the embargo were the time of trial he was Vice President for the Centre for De- disqualified. fence Information in Washington DC. He stated categorically The foreman of the jury, when asked his attitude about ‘Cuba is not a military threat to the United States’. Edward Cuba, said that he regarded Fidel Castro as a communist dic- Breed Aitkisen was a Major General in the US Army. He de- tator and would be pleased on the day he was removed. An- scribed the Cuban military threat to the United States as other juror agreed with him and acknowledged that his ‘zero’. daughter had been an employee of the FBI for 10 years. Gerardo Hernandez alone was charged with conspiracy Although the jurors were not Cuban exiles, they felt pres- to commit murder. This related to the shootdown on 24th sured by that community’s aims and expectations. This was February 1996. The prosecution produced two high fre- understandable. News reporter Jim Mullin from Miami has quency messages allegedly sent by Havana to Gerardo Her- written an article about the ‘lawless violence and intimidation nandez in Miami. These, they said, showed that Gerardo (which) had been the hallmarks of the el exilo for more than Hernandez was aware of, and complicit in, the shootdown. 30 years’. This included bombings, assaults, murder attempts Lawyers for Gerardo Hernandez argued that the Brothers and even assassinations in Miami and elsewhere by anti to the Rescue planes were shot down over Cuban sovereign Cuban terrorists. territory, which as an act of government could not amount to On 2nd December 2000, the Nuevo Herald newspaper a crime by an individual. published an article dealing with fear among the jurors, which When the evidence had been concluded, the US govern- said: ‘Fears of a violent reaction by Cuban exiles against the ment had not entered any evidence in support of the allega- jury that decides to acquit the Five men accused of spying for tion that Gerardo Hernandez had conspired to commit Cuba has caused many potential jurors to ask the judge to murder. The prosecution became seriously concerned that excuse them from their civic duty.’ It quoted one potential Gerardo Hernandez would be acquitted. In an unusual move, juror as saying: ‘Sure I’m afraid for my safety, if the verdict the prosecution filed an extraordinary appeal to the Court of doesn’t suit the Cuban community there.’ Appeals for the Eleventh Circuit. This emergency application These issues confirmed the grave misgivings of the defence tried to persuade the trial judge to present the legal position team about the attitude of a Miami courtroom. to the jury in a way that favoured the prosecution. The Court of Appeal, to its credit, refused to intervene. The trial Despite the lack of evidence of espionage or damage to US The trial began in Miami in November 2000. The indictment interests the jury took a remarkably short time to convict all contained 26 separate counts. As well as the relatively minor the Five on all counts on 8th June 2001. After months of tes- charges relating to the use of false identification, the most se- timony and having considered hundreds of pages of docu- rious charges concerned conspiracy. mentation, the jury asked no questions. There was also The Court heard evidence from 43 witnesses for the pros- concern that the jury also announced the date on which it ecution and 31 for the defence over a period of nearly seven was to give its verdict. All of this suggested that the defence months. The jury also had to consider hundreds of docu- team’s worst fears about the trial venue were entirely justified. ments. These included documents seized from the Five at the time of their arrest. Although these documents were used by Sentence the prosecution, they were helpful to the defence. There were The Five remained in prison, often in solitary confinement, no documents that were classified nor any that until sentencing in December 2001. compromised US security. The law on espionage • Antonio Guerrero was sentenced to life plus 10 years im- in the United States is clear. Information generally prisonment. available to the public cannot form the basis of an • Rene Gonzalez was sentenced to 15 years imprisonment. espionage prosecution. This documentation was • Fernando Gonzalez was sentenced to 19 years imprison- ‘open source’ intelligence, that is it contained in- ment. formation available to anyone in the public • Ramon Labanino was sentenced to life plus 18 years im- domain. prisonment. A key witness for the prosecution • Gerardo Hernandez was sentenced to two terms of life im- was General James R Clapper Jnr, prisonment plus 15 years. who had 30 years experience in the The Five were then dispersed to jails in different parts of military working in intelligence. He the USA. Family members from Cuba were denied visas and had been director of the Defence In- visiting rights. Despite being model prisoners, the Five were telligence Agency. Having reviewed frequently placed in solitary confinement. all the documents seized by the gov- An appeal was lodged with the Eleventh Circuit Appeal ernment, he was asked in cross exam- Court in Atlanta. ination if they contained secret national defence information that was The first appeal hearing transmitted to Cuba. He responded: The first appeal hearing took place in March 2004. The main ‘Not that I recognised, no.’ argument for the Five concerned the trial venue. The Five’s

26 I Socialist Lawyer G December 2007 “The Judges believed a re-trial was necessary because of: ‘the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with improper prosecutorial references’”

by the surveys, reports and news articles used in support. They quoted Dr Lisandrio Perez, Professor of Sociology at Florida International University and Director of the Cuban Research Institute, who emphasised the influence of Cuban Americans in the Miami area and Dr. Kendra Brennan, a legal psychologist, who analysed the survey results presented to the court by the Five’s defence team and concluded that the documented community bias showed a: ‘deeply entrenched body of opinions (so entrenched as to often not be con- sciously held) that would hinder any jury in Miami … from reaching a fair and impartial decision in this case’. The Appeal Court reviewed US case law and concluded that the courts attempts to remove community prejudice in the jury selection process did not work. Publicity about the shootdown and the Elian Gonzalez case had aroused pas- sions within the Miami community. The local media’s ‘Spies Among Us’ campaign was cited. The presence of Cuban exile groups and paramilitary groups in the Miami area was seen as highly relevant. The Judges believed that a re-trial was nec- essary because of: ‘the perfect storm created when the surge of pervasive community sentiment, and extensive publicity lawyer, Leonard Weinglass, argued that the trial should never both before and during the trial, merged with improper pros- have been permitted in a community where more than ecutorial references’. 500,000 residents ‘have lost their homes, their businesses and The decision concluded by stating that a fair trial should their livelihood to the government that sent the Five to the be given to all defendants no matter how unpopular they may US’. be as ‘our constitution requires no less’. The Appeal Court took nearly 18 months to give their de- Leonard Weinglass hailed this Appeal Court ruling as a cision. Throughout this time the Five remained in prison, landmark decision on the question of trial venue in US law. sometimes in solitary confinement and often in appalling con- The judges’ reasoning was based on existing case law with ditions. specific reference to the US constitution. It was hoped that In May 2005 the United Nations Working Group on Ar- the US government would either allow the retrial to take place bitrary Detentions reviewed the Five’s case. They criticised or alternatively free the Five completely. Unfortunately it was the US government for keeping the Five in solitary confine- not to be. ment for 17 months which prevented them from preparing properly for the hearing; denying the Five’s legal team access The second appeal to certain documents which would have assisted their defence; This first appeal had been heard by three judges out of a panel and the ‘climate of bias and prejudice against the accused in of twelve covering the Florida area. The prosecution then ex- Miami [which] […] helped to present the accused as guilty ercised its right to appeal to all twelve judges in an attempt to from the beginning’. overturn the decision to award the Five a retrial. The appeal hearing took place in Miami in February 2006. The first appeal decision It was heard by all 12 judges on the circuit including two of In August 2005, the three judges from the Appeal Court over- the original appeal judges, one having retired. turned the Five’s convictions and ordered a re-trial. Although Again the Five had to wait for the decision. When the the Five appealed on a number of points, the decision itself result arrived in August 2006, it was a major disappointment concentrated on the issue of the trial venue. The judgment to the Five as the full panel of judges overturned the original concluded that the Five did not get a fair trial in Miami. hearing decision for a retrial. The Appeal Court decision records the trial judge com- The Court of Appeals found in favour of the prosecution plaining that people were briefing the media as there was a and upheld the original trial judge’s assessment of jury cred- ‘parade of articles appearing in the media about this case’. ibility and impartiality. They stated that the trial judge, as a Also jurors were filmed and photographed outside the court member of the community, was best placed to evaluate and were shown on television. The decision also quotes whether there was a reasonable certainty that prejudice prospective jurors expressing their hostility to the Cuban against the Five would prevent them from obtaining a fair system during the selection process. One candidate, David trial. In the circumstances they did not believe that the Five Cuervas, was reported as saying ‘I will be a little nervous and were denied a fair trial. have some fear … for my own safety if I didn’t come back Judges Birch and Kravitch put forward a strongly argued with a verdict that was in agreement with the Cuban com- dissenting judgment along the lines of their original findings munity at large’. in the initial appeal. The Appeal Court judges were particularly critical of the conduct of the prosecution in the last stages of the trial in The next step Miami. The prosecution made a number of offensive remarks The Five’s case does not end here. If all else fails they have the about Cuba. It was also alleged that the Five were ‘bent on de- right to reply to the Supreme Court. stroying the United States’ and were ‘paid for by the Ameri- Under the lengthy and complex US procedure the Five can tax payer’. The Five’s lawyers made frequent objections have not exhausted their rights at the Court of Appeals stage. to these inaccuracies. The trial judge agreed and instructed This is because the Court of Appeal has only really looked at the jury to ignore these remarks, reminding them that the the question of venue. There are a number of aspects to the prosecution’s comments were not evidence. Five’s appeal which have yet to be resolved. These include the L The Appeal Court judges appeared particularly impressed question of whether the evidence was sufficient to convict the

Socialist Lawyer G December 2007 I 27 L Five on charges of conspiracy; whether the conviction of Ger- ardo Hernandez on conspiracy to commit murder was safe based upon the apparent lack of evidence; whether the pros- ecutors committed misconduct in their final remarks to the How can we jury; whether the sentencing was lawful as it was the maxi- mum for everyone; whether the government violated the Five’s basic rights in breaking into their apartments to down- load computers (pursuant to the Foreign Intelligence Surveil- reconcile lance Act); whether evidence was wrongly withheld from the Five’s defence team (under the Classified Information Proce- dures Act) and other related issues. The decision of the 12 judges in August 2006 sent the case ‘terrorism’ lists back to the original three judges for consideration of these outstanding issues. With the retirement of Judge Oakes, an- other judge was appointed to sit with Birch and Kravitch to decide these points. The hearing in August 2007 was attended by a large with the rights to number of foreign observers, jurists and political activists. This was testament to the ever growing campaign to defend the Five. After the hearing Weinglass told reporters: ‘The court is self-determination having difficulty with this [lack of evidence].’. While they await the result of this latest stage of the ap- pellate process in the US, the Five remain in prison. They have been there for nine years. Their relatives have the greatest dif- ficulty in seeing them. Cuban based relatives are often refused and democracy? visas to enter the United States and so have no chance of seeing their loved ones. Despite the injustice of their arrest, conviction and incar- by Desmond Fernandes (CAMPACC) ceration, the Five remain in good spirits. They know that they have done nothing wrong. They have not attempted to obtain “A Non-Self-Governing Territory, listed under classified information or otherwise act against the interests Chapter XI of the UN Charter, can exercise the of the USA. Their sole aim was to protect their homeland right of self-determination through the cre- from terrorist attacks. ation of an independent state, or through the The US government and its legal process has been left establishment of an association with an inde- with some difficult questions to answer. They have impris- pendent state, or integration with an indepen- oned the Five at a time when they are apparently prosecut- dent state [...] If the State and its successive ing a war on terror. Terrorist organisations have been governments have repeatedly oppressed a allowed to act with impunity in Florida. Orlando Bosch and people over a long period, violated their also Luis Posada Carilles who have a history of complicity in human rights and fundamental freedoms, and terrorist activity. if other means of achieving a sufficient degree For the Five the labyrinthine US appeal process grinds of self-government have been tried and have slowly on. It is likely that at least one further appeal will be failed, then the question of secession can arise lodged, possibly to the Supreme Court. Meanwhile the Five [...] The internal aspects of the right of self-de- remain in prison, separated from their families, with their termination include the right of the people to lives on hold. An ever-growing international campaign in sup- freely pursue its economic, social and cultural port of the Five is developing. The support for the Five is be- development. It is often taken to mean partic- coming more vocal, the longer the case drags on. ipatory democracy. However, it can also mean Last year Weinglass sent a message to the Five’s British the right to exercise cultural, linguistic, reli- supporters: ‘First I would like to thank those of you who have gious, territorial or political autonomy within stood by the Five during these last eight years, as well as those the boundaries of the existing state.” John who are new to their cause. Your support, as well as that of Henriksen ‘Implementation of the Right of thousands of others has already achieved success in making Self-Determination of Indigenous Peoples’, their case known to the public. However we are now at a (2002) IWGIA Indigenous Affairs. critical juncture. If we lose before the court currently consid- When we look at the situation globally, it is ering the case, the possibility of bringing the Five home to apparent that many states have failed miser- Cuba in the near future will be greatly reduced. This is the ably to abide by their obligations to indigenous time to renew and expand our efforts in building up support. people – through policies that are discrimina- It was world wide support that saved the life of Angela Davis. tory, racist, colonial and often genocidal. In sit- The same could and should happen to the Miami Five.’ uations where no meaningfully open The Five’s case has already been taken up by the United democratic spaces are allowed to address these Nations Working Group on Arbitrary Detention. Amnesty legitimate concerns, groups and organisations International has written letters to the US authorities con- have emerged to confront these pressing issues cerning the human rights aspects of the US government’s through acts of non-violent and/or violent re- treatment of the Five. Activists, jurists and celebrities are con- Seven years ago the Campaign sistance – they have tended to be categorised as tinuing to pledge their support. Against Criminalising terrorists by the states that are themselves It is fervently hoped that the Five will win their freedom Communities (CAMPACC) was set arch-terrorists and genocidal terrorists in prac- through the US legal system. However it is clear that a polit- up to protest against the Terrorism tice. Act 2000, which authorises the ical campaign in support of the Five is vital to ensure that jus- Home Secretary to ban groups Troublingly, even in contexts where organ- tice is eventually done. deemed “terrorist”.For further isations such as the PKK (the Kurdistan Work- information about CAMPACC and ers Party) and Kongra-Gel have sought to Steve Cottingham is a partner at O.H.Parsons & Partners their campaigns contact see their engage in dialogue, which has been rejected, Solicitors. For more information about the Miami Five website: www.campacc.org.uk or with the Turkish state to effect internal (not campaign visit: www.freethefive.org e-mail: [email protected] even external) aspects of self-determination

28 I Socialist Lawyer G December 2007 through non-violent means (that is, through a ments and deep political interests to intention- involved in any way in refugee communities’ framework of participatory democracy that ally frustrate a range of peace initiatives that activities or in solidarity work [...] Writing an seeks to non-violently address problems relat- stand in the way of arms deals and other article or speaking in support of […] Kurdish ing to the ongoing cultural genocide and the geostrategic and imperialist agendas. The Kur- self-determination could be construed as invit- threat of physical genocide that Kurds face), dish case highlighted here is just one of many ing support for a proscribed organisation […] we see them appearing on UK, EU, and US situations worldwide that we need to be con- The criminalisation of the refugee communi- ‘terrorism lists’. This, even as the PKK has of- cerned about. With the criminalisation that ties has been formalised.’ Peace in Kurdistan fered a complete platform to politicise the comes with these ‘terrorism lists’, it is disqui- and the Campaign Against Criminalising peace process, entirely consistent with EU ac- eting to note that asylum seekers and refugee Communities (CAMPACC) have also noted cession criteria. This process, along with the communities who support the ideals of partic- that ‘Britain has banned Kongra-Gel as an or- current unilateral PKK ceasefire, were dis- ipatory democracy and the right of self-deter- ganisation that “glorifies terrorism” [...] missed out of hand by both the Ankara and mination, are now being supposedly Anyone expressing support for the group or Washington regimes. Such criminalisation legitimately targeted as terrorist or terrorist [even] simply wearing clothes implying sup- occurs even as the Turkish state remains free suspects. port will be committing an offence.’ from inclusion in any such list, despite being a Under the UK Terrorism Act 2000 it is now ‘Terrorism lists’ serve to legitimise the pro- clearly racist, genocidal and colonial terrorist an offence: to belong or profess to belong to files of many racist, patently undemocratic, state. As Article 19, Ismail Besikci and others the PKK; to invite support for it or its aims; to even genocidal regimes. Mark Muller, as vice- have pointed out, there is ample evidence to arrange a meeting that is to be addressed by a chair of the Bar Human Rights Committee, re- indict the Turkish state for racist and genocidal member of it; or to address a meeting to en- cently argued that the controversy over crimes during the 1990’s (as defined by the courage support for it. This is even if the meet- ‘terrorism lists’ is ‘not just a political question, 1948 United Nations Genocide Convention). ing is being held privately, with only three it is both a legal and political question [...] The Turkish state, moreover, still practices lin- people attending. By these criteria it is possible How we describe ourselves both socially and guistic genocide; it is still in breach of two ar- to officially criminalise asylum seekers and politically has an important effect on how we ticles of the Genocide Convention, and refugees for wearing traditional Kurdish cos- treat eachother. One can cast one’s mind back currently criminalises any pro-Kurdish parties tumes, on the grounds that the colours of the to Senator McCarthy and see just how de- and municipalities that attempt to promote clothes worn may arouse suspicion that they structive the consequences can be once you are basic multilingual services for people whose are nationalist PKK sympathisers. The PKK placed on a list. This is true in the case of the mother tongue is Kurdish, not Turkish. can no longer fundraise or organise meetings, terrorism labels [...] The purpose is to os- According to Remzi Kartal of the Kongra- not even to discuss why it shouldn’t be banned. tracise, to censor, to criminalise and to silence Gel Executive Council: ‘Politics and in partic- The Campaign Against Racism and Fascism unfortunate groups on the list. I say unfortu- ular the politics of banning and criminalizing warned in 2001 that ‘the Act’s provisions are nate advisedly, because it is clear that whether our struggle [via these “terrorism lists”], led drawn so widely as to give police and prose- you are on the list has more to do with politics by the UK and other EU member states, have cutors freedom to arrest most people who are rather than the application of law, more to do played a critical role in the continuation of the with geopolitical relations rather than national military conflict in Turkey and in preventing security, and more to do with the heightened the democratic political solution of the Kur- anxiety of terrorism after 9/11.’ dish question [...] It is clear that these politics “It is possible to officially It is clear that intelligence agencies, neo-con- are exacerbating the conflict at a time when an servative circles and various lobbies have ex- increasing number of people are supporting criminalise asylum ploited and abused the issue of heightened [initiatives and calls for] peace and democ- seekers and refugees anxiety of terrorism after 9/11 to pursue their racy.’(Friends of Kongra-Gel Appeal, February own unaccountable, deep political agendas. We 2007) for wearing traditional must oppose this framework of ‘justice’ and These ‘terrorism lists’ are being cynically ‘governance’ that threatens our very civil liber- and unethically used by a number of govern- Kurdish costumes…” ties. I

Socialist Lawyer G December 2007 I 29 Picture: Jess Hurd / reportdigital.co.uk I 30 dies. using e-Learningcredits,ineffect DfESsubsi- category ofequipmentthatcan bepurchased fingerprint systemsarecapableof fallingintothe days. Appropriatelystructuredapplications for that liesbehindmuchofschool funding nowa- further answermaylieinthesystem ofgrants per centofrespondentssaidthey should.One pupils forregistrationandcashlesscatering?’,57 to thequestion‘Shouldschoolsfingerprint Teachers that thesesystemsbring:inanonlinepollfor a conveniencetothemanagementofschools stalling newsystemscomefrom?Clearlythereis mation itisbeingwithheld. have beengivenintheabsenceofanyconfir- it appearsthatparentalconsentisdeemedto 2007, thepracticeiswidespread,insomecases on thematterinHouseofLordsMarch According toBaronessWalmsley inadebate prints beingtakenwithoutparentalconsent. parents. Anecdotalreportsaboundoffinger- nology, sometimeswithlittleornoinputfrom that aredashingtointroducethissortoftech- untary’ systemcompulsory. the schoolbuilding,effectivelymakingthis‘vol- tended atsomelaterstagetoregulateentryinto teacher hesuggestedthesystemmightbeex- were notallayedwhenontelephoningthehead- and arguesit’s atrivialisationofbiometricdata schools today? Do youknowtheyhavefingerprintsystemsin CHARMING PRINTS I operated byaprivatecontractor. Myconcerns in thecanteen,whichincidentallyisseparately system tomanagepaymentforschoolmeals school haddecidedtointroduceafingerprint home oneeveningandtoldmethattheir was astonishedwhenmychildrenarrived Where doestheimpetusforthisrushintoin- In factmychildren’s schoolisoneofmany Socialist magazine inMarch2007,response Lawyer G December 2007 Mikhil Karnik schools onthecollection andrecordingofpupils’ ‘My Departmenthasissuedno guidanceto ment inresponsetoawrittenquestion stated: answer. JacquiSmith,inherpreviousappoint- Education andSkills,wasunable toprovidean tary Under-Secretary ofState,Department for children’s fingerprints, LordAdonisParliamen- when askedhowmanyschools hold recordsof redrafting process.’ parents andchildren,onthisissueaspartoftheir open consultationwithstakeholders,including calls ontheGovernmenttoconductafulland guidance tolocalauthoritiesandschools; Department forEducationandSkillstoupdate not forthcoming;welcomesthedecisionby from schoolactivitieswherethispermissionis ther believesthatnochildshouldbeexcluded express writtenpermissionoftheirparents;fur- have biometricinformationtakenwithoutthe Protection Act;believesthatnochildshould parental consentdirectlycontravenestheData lecting thedatafromchildrenunder12without therefore potentiallybemisused;notesthatcol- insecure schoolcomputernetworksandcould regulated datacollectionsystemsandpotentially photographs andfingerprints,isstoredonun- cerns thatchildren’s data,oftenincluding ters ofamillionchildren;sharesparents’con- to recordthedataofapproximatelythreequar- that upto3,500schoolsusebiometricsoftware metric detailsofchildrenasyoungthree;notes practice ofschoolscollectingandstoringthebio- motion whichsaid: In Januarythisyear, 83MPssignedanearlyday Opposition tothesystems In aHouseofLordsdebateearlierthisyear ‘That thisHouseisalarmedatthegrowing found thisout biometric information […] It will be for the school to establish that it is acting lawfully in collecting data and is, on a case-by-case basis, “It appears that compliant with Human Rights and Data Pro- parental consent is tection duties and the common law of confiden- tiality.’ deemed to have been Private information and consent given in the absence Article 2a of Directive 95/46/EC defines ‘per- sonal data’ as ‘any information relating to an of any confirmation it is identified or identifiable natural person […]; an identifiable person is one who can be identified, being withheld.” directly or indirectly, in particular by reference to an identification number or to one or more fac- tors specific to his physical, physiological, thorities or legislative bodies, the best interests of mental […] identity’. The Data Protection Act the child shall be a primary consideration. [...]’ 1998 (DPA 1998) is the principal mechanism Lawful consent may be given by the child if whereby the directive requirements are trans- they are in a position to make an informed posed into English law. However, the DPA has to choice about the matter in hand, so called Gillick be read down in the light of the Human Rights consent. This will vary from child to child and Act 1998 (HRA 1998). depends upon their ability to understand the As Lord Hoffman observed, human rights consequences of their decision. For consent to law has identified that private information, as be valid the young person will have to have part of the broad term private life, is something achieved a sufficient understanding and intel- worth protecting as an aspect of human auton- ligence to enable him or her to understand omy and dignity (Campbell v MGN [2004] 2 fully what is proposed. Otherwise lawful con- AC 457). Moreover the extent to which private sent can only be provided by the parent or information should be communicated to other guardian, and in that case I suggest for it to be people is plainly something which an individual lawful the parent or guardian also has to have is entitled to decide for themselves, and in any given consideration to the best interests of the event in the context of children the ratification child concerned. by the United Kingdom of the United Nations Establishing whether informed consent has Convention on the Rights of the Child in No- been provided will be contingent upon the vember 1989, represented an important step in process by which that consent was obtained, showing a desire to give children greater rights. that is to what extent were the risks that unin- It would seem therefore that the obligation to formed consent might be provided mitigated. consider whether the introduction of a system is What efforts were made to ensure that the appropriate, is a stringent one. young person was competent to provide con- In a busy school environment where consent sent, and what efforts were made to ensure that is often treated as necessary for a wide range of the young person was in a position to under- activities, there is a risk that the matter of con- stand the nature of the decision? This will not sent may be treated as a trivial inconvenience. simply be a matter of age, and any mechanism However, not only does any consent have to be for consent which simply relies upon age (for ex- informed, the greater the intrusion the greater ample, all students in years 10 and 11), as being the necessity to ensure that any consent is real. In deemed capable for providing informed consent a ruling, that at the time troubled many on the may not be seen to be valid. left and in the women’s rights movement, and The observations of the European Court of which was seen as a fettering of the right of chil- Human Rights make clear that article eight pro- dren to receive advice without the knowledge of tects privacy in the sense of private life lived parents (Gillick v West Norfolk and Wisbech behind closed doors, which is entitled to be kept Health Authority [1986] 1 AC 112), the House secret or confidential. However it also has con- of Lords affirmed the concept that only where a firmed that private life is a broad term not sus- young person was capable in all the circum- ceptible to exhaustive definition and can stances of making an informed decision, was any embrace aspects of an individual’s physical and consent they gave valid. social identity (Pretty v the United Kingdom Consent is a mechanism whereby individu- (2002) 35 EHRR 1). Moreover it has frequently als may waive some of their rights. However, noted that whilst not compelling authorities to any waiver will rarely be unconditional, and for abstain from interference, the object of article 8 consent to be deemed lawful it has to be real. In is essentially that of protecting the individual the case of competent adults in many circum- against arbitrary interference by the public au- stances the hurdle of consent may not be very thorities (X and Y v the Netherlands [1985] high, and in the case of the release of personal in- ECHR 8978/80). formation it is often merely a matter of personal Taking these basic principles as an initial choice. starting point it can be seen that any recording, Where children are involved the matter of copying or storage of private information with- consent becomes more complicated, and ar- out proper consent risks being seen as an inter- guably the hurdle that much higher. Human ference with fundamental human rights. rights law recognises that children and young Furthermore, in the case of children the care nec- people should be afforded more protection. The essary to ensure that any consent is real, is all United Nations Convention on the Rights of the the greater. Child, article three states: It follows that when examining the electronic ‘In all actions concerning children, whether storage of biometric data in the context of these undertaken by public or private social welfare basic legal principles, the duty on public bodies institutions, courts of law, administrative au- lies in three principal areas: L

Socialist Lawyer G December 2007 I 31 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: L • firstly in ensuring that the circumstances in compensation in the event of a breach of the Act. control over libraries, school meals and atten- which personal information abstracted is ap- Consent would normally only extend to the dance records. propriate, public body. The passing of that information The implementation of such schemes should • secondly in ensuring that the purpose(s) for onto others is likely to require explicit consent in offer educators an opportunity to discuss with which that information shall be used is legiti- its own right. If information is to be held by students the importance of human rights, the mate, others the circumstances and controls in which need for their protection and the risk that com- • and thirdly that the protection that is afforded they hold or have access to that information placency to personal data poses. In order for to prevent that information from further publi- would also have to be made clear. young people to be able to make a properly in- cation is adequate, both in terms of a duty of formed decision they need to be provided with confidence and as a public body holding per- The Government’s response information on what the consequences of that sonal data under the DPA 1998. The DfES through the British Educational decision might be. However because of the Additionally, a public body will find itself Communications and Technology Agency many other targets and pressures that fill the under an overarching duty to ensure it is able to (Becta) has belatedly provided limited guidance school day in practice such discussions are un- demonstrate that sufficient consideration has on the introduction of fingerprint systems. The likely to occur. been given to the above mentioned areas. underpinning premise of the guidance is that Citizenship is increasingly forming a part of Establishing the legitimacy of purpose is a fingerprint systems assist in the good manage- the curriculum and in a situation where what is potentially difficult, but nevertheless necessary ment of schools and can be lawfully introduced being abstracted is something personal to each hurdle that schools have to overcome. It is im- without difficulty. The guidance suggests that child there is a compelling case for arguing that portant to be able to demonstrate that the pur- powers under section 19(1) of the Education if it is left to governing bodies to decide on the pose for which the information is to be used is Act 2002 enable school to introduce finger- appropriateness of systems, they should take not frivolous. This essentially involves under- printing systems, although it concedes that soundings from those directly affected before taking a balancing act, ensuring the harm pre- schools should normally involve parents in making their decisions. However, what is really vented by the use the information is to be put, their decisions to use biometric data. The guid- needed is a moratorium on the installation of outweighs the harm the child suffers by releas- ance is based primarily upon consideration of further systems so that the full consequences of ing their information. One very real difficulty the DPA 1998 rather than the HRA 1998 and the taking of fingerprints in a generation of here lies in evaluating the harm to the individ- so should not be seen as conclusive or compre- children, including the potential for trivialisa- ual that releasing this information in this con- hensive. tion of personal data, is properly assessed. text would cause. For example, as well as the Otherwise the Government’s general re- In the case of my children, the school has in potential for inadvertent further release by the sponse has been one of inaction, leaving it to the face of parental pressure stepped back from data manager, the harm may well include the individual schools and their governing bodies a compulsory system, permitting students to trivialisation of identity information in the to make decisions on individual schemes. Lord adopt an alternative – a swipe card. Whilst the minds of pupils. Adonis stated that ‘the Government have no system is obviously more difficult to administer, Benefit to the school, I would argue, does not plans to make regulations on the collection and I suggest it meets all of the administrative re- initially become a relevant consideration because storage of the biometric data of children in quirements the biometric systems could. Many of the overriding need to take into consideration schools’. A cynic might say the Government is pupils and parents have refused to consent to the interest of the child. Only where the harm happy to leave all issues to the schools them- the school taking fingerprint data, and in per- prevented outweighs or is equal to the harm in- selves. Some might say that this is a deliberate haps a reflection of attitudes of pupils to the flicted by the taking of the information, do other abdication of responsibility, knowing full well system, within a short while of its introduction factors such as the benefit to the school become that busy schools stretched by the demands of the scanners required for taking fingerprints relevant. new initiatives could well be attracted by hard were tampered with so that they no longer Ensuring that any information once obtained sell and the convenience of such systems and could take readings. And the response of the is appropriately stored is a duty that falls upon therefore might not enquire too deeply into the school? Apparently consideration was being the public body. This relates to security of stor- risk to civil liberties of the introduction of such given to introducing CCTV surveillance of the age, deletion of records and by whom it is to be systems. scanners to capture those involved in the tam- held. Protection here is afforded by both the In the meantime companies with technol- pering on camera. DPA 1998 and the HRA 1998, although under ogy to sell are lining up to provide schools, the DPA 1998 there exists the additional risk which have seen an influx of new technology G Mikhil Karnik is a barrister at Garden Court that the data manager may be liable to pay out over the past few years, systems which provide North Chambers, and a school governor.

32 I Socialist Lawyer G December 2007 UKRAINE:

THE MURDER OF GYORGY GONGADZE During the hot summer of 2000, a young internet journalist, Gyorgy Gongadze (pictured right), complained to friends in Kyiv that he was being followed by men he presumed were plain-clothes police officers. Valentina Telychenko (left), a lawyer and friend of Gyorgy’s wife Myroslava, speaks to Simon Pirani for Socialist Lawyer. She recognised a pattern: as a student supporter of Ukraine’s beleaguered dissidents in the 1980s, she had herself been followed and threatened. L

Socialist Lawyer G December 2007 I 33 Valentina Telychenko in her office. Having graduated in 1998, she has worked as a campaigner and lawyer, spending more and more time on the individual cases of those who had tried and failed to get justice through the courts. L Valentina, like many of Gyorgy’s friends, Two months later, Gyorgy’s body was found. Ukraine’s corrupt political establishment urged him to be careful. His brusque cam- His severed head has never been recovered. gather in Kyiv to remember Gongadze, its paigning style, and a hard-hitting interview Gongadze fell victim to a series of events in most well known victim. technique Ukrainian politicians weren’t used which the very top of the Ukrainian political A tortuously slow investigation of the crime to, had irritated some powerful people. He establishment was involved. After his body has resulted in the trial of three police officers had been involved in pro-democracy cam- was found, an audio tape was played to par- who helped Gongadze’s murderer – whom paigning – and specifically, in exposing proce- liament on which Leonid Kuchma, then prosecutors believe was Oleksey Pukach, a dural violations in the constitutional reform Ukraine’s president, was heard complaining former head of the internal affairs ministry in- referendum in April 2000 – that Ukraine’s bul- about Gongadze to his cronies – including telligence directorate. The trio pleaded guilty, lying government did not take kindly to. The other senior politicians, some of whom remain and a judgment is expected early in the new surveillance might well lead to a cautionary influential. The tape was just one of many year [2008]. beating, Valentina feared. That had been the hundreds of hours of recordings made by pres- The instigators and organisers of the crime standard method used by those in power to idential bodyguard Mykola Melnichenko, remain unpunished: Pukach has disappeared; frighten opponents since late Soviet times. ‘I who later fled the country. Yuri Kravchenko, the former internal affairs told him that they probably intended to get ‘The Chechens should kidnap him and take minister who told Kuchma he would deal with hold of him, say in the entry to his apartment him to Chechnya on his dick’, the president Gongadze, shot himself – or had his suicide building, and tell him to pack in his opposi- argued in the famously vulgar conversations, staged by others – after being called to the tion activity. I didn’t for a moment believe that as the interior minister and state security chief prosecutor’s office in March 2005; Yuri he would be killed.’ assured him Gongadze would be dealt with. Dagaev and Eduard Fere, two other senior of- Things turned out shockingly and unpre- ‘Drive him out, throw [him] out. Give him to ficers who were close to Pukach, both suffered dictably worse. On 16th September 2000, the Chechens and [demand] a ransom.’ After heart attacks in June 2003 that left Dagaev Gyorgy disappeared. ‘After he had been out of the tape became public, Valentina said “I knew dead and Fere in a coma. touch [with his friends and family] for three this was a case with serious ramifications for The vast majority of Ukrainians believe that days, I already knew that he was not alive. I the state.’ the political establishment, both before and knew that all the statements [by the general Seven years later, the case remains at the after the ‘Orange revolution’ of December prosecutor and media] that he had gone into centre of political attention. Every year on 2004, has covered up for the instigators of the hiding in the US, or Israel, were nonsense.’ 16th September, thousands who despise murder. Mykhaylo Potebenko, the general

34 I Socialist Lawyer G December 2007 a mountain of other material besides, and worked for the KGB in Soviet times – some of spoken out about the failure of successive whom are high officials now – are helping. It prosecutors to proceed against the instigators seems possible that some senior Ukrainian of- of the murder. She took the Gongadze case to ficials may have been blackmailed by the Russ- the European Court of Human Rights, which ian security services.”.’ ruled that the state’s failure to protect Gyorgy’s Everyone in Ukraine has their opinion life and its refusal to investigate the case con- about the ultimate cause of Gongadze’s death, stituted a breach of article 2 of the European and Valentina – who knows the complex case Convention on Human Rights, and that arti- better than anyone – believes that the involve- cles 3 (inhumane treatment) and 13 (efficient ment of the Russian security services is a more legal protection) had also been violated. than credible explanation. By prompting cor- Valentina’s persistence on the Gongadze rupt networks in the interior ministry to case won her a reputation for taking on the arrange the killing, while having in hand the toughest human rights causes. As a result, she tape recordings of Kuchma’s conversations, represented the political activist Oleksiy they could have collected useful kompromat Podolsky, who in that same summer of 2000 (compromising evidence of illegal activity) on was kidnapped by a group of police officers Ukrainian leaders. under Pukach’s command, taken to woods Gongadze’s murder was, Valentina believes, outside Kyiv, threatened, stripped, and severely the outcome of ‘some sort of special operation, beaten. Some of his attackers are now serving by means of which the Russian government time. Valentina also worked on the ‘were- and the Russian security services sought to wolves’ case, in which a gang of former and strengthen their influence in Ukraine, to make serving internal affairs ministry officers that the president dependent – whether it was had engaged in a campaign of kidnapping, ex- Kuchma or someone else. If Kuchma had tortion and murder, were brought to trial. stayed, he would have been compromised; When Socialist Lawyer caught up with the hectically busy Valentina, we asked why Gongadze’s death had come as such a shock. ‘The killings [of oppositionists] had already “I have seen how stopped in the late 1980s’, she explained. Sur- politicians can exert veillance had become crude, and threatening, but very rarely fatal – and that remained the influence on the case after the collapse of the USSR in 1991. ‘I remember, for example, on New Year’s courts, for example, or Eve 1988, when I was on the metro with the 14 year old daughter of one of our very well- on the investigating known dissidents. It was about 10pm; I was accompanying her home, and then I was going authorities” to go back to the university. We got on the es- calator. A young man came up to me, got hold Russia would have had kompromat on him. of me by the throat and started to choke me. As If someone else had taken over, Moroz for ex- he did so, he was saying that I should end my ample, there would have been kompromat on involvement with the wrong type of people.’ him. It’s my opinion that Moroz more than ‘There were people all around; there were likely played an ambiguous role and negative police officers at the top and bottom of the es- role in this affair.’ calator. He obviously wasn’t going to kill me. While the work on the case by journalists It was just a warning. I was bruised, and the and campaigners has, on one hand, so far re- prosecutor who sabotaged the initial investiga- girl was terrified, but that was [as far as it vealed only uncorroborated hints of possible tion into it, was this year [2007] awarded a went]. Another time I was walking along with Russian involvement, it has on the other hand medal by president Viktor Yushchenko. The a plastic bag containing samizdat literature. untangled a mass of detail about how the role of Aleksandr Moroz – the Socialist party Some guy just came up, punched me on the mechanisms of state power in Ukraine oper- leader who originally played the infamous tape ear and stole the bag.’ ate against human rights. Valentina has in parliament, but later became reticent about Then, there were dissidents who had to be become an expert on the network of relation- his relationship with the renegade bodyguard controlled, within the limits imposed by the ships among state officials that supersedes the Mykhaylo Melnichenko and with high-rank- Soviet Union’s concern for its international formal hierarchy of authority, and on the ing internal affairs ministry officers – remains reputation. Now, after the accession to methods by which pressure can be applied to unclear. So does that of the Ukrainian and power in Russia of Vladimir Putin, new courts and investigators. Russian security services. methods have come into play, Ministers do not always run their min- Gyorgy’s wife Myroslava turned to Valentina believes. ‘When Putin istries; in practice, the strings may be pulled Valentina for help in the days after his came to power, we began to see by other powerful people, she explains. disappearance. Since then, this out- something completely different Deputy ministers may be dependent not on the standing campaigning lawyer has from what had happened with ministers but on other, more powerful people fought a relentless battle with the gen- [Soviet] dissidents. We have had who operate away from public scrutiny. eral prosecutor’s office, the internal af- journalists and social activists being ‘Much depends on personal relationships, on fairs ministry and many Ukrainian killed [in recent years]. the previous experience of civil servants, on politicians. She has studied the ‘In my view we have money.’ And hypocrisy plays a great role. ‘The 150 volumes of evidence witnessed special op- Gongadze case has shown that the level of compiled by the general erations to establish, hypocrisy acceptable among Ukrainian politi- prosecutor’s office, and or strengthen, cians is intolerable, is extremely wide.’ [Russia’s] influence ‘I have seen how politicians can exert in- Gyorgy Gongadze: his hard-hitting interview on this or that fluence on the courts, for example, or on the technique didn’t go down state. In Ukraine, investigating authorities,’ she says. ‘There are well with Ukrainian criminals, and behind-the-scenes warnings to judges about L politicians. those who the consequences of taking such-and-such a

Socialist Lawyer G December 2007 I 35 Steps leading to court: Valentina’s biography Valentina Telychenko age didn’t have a whom had recently returned from movement: in organisations such was born in 1969 in nationalist idea in my lengthy terms of imprisonment. as the Ukrainian Ecological Club Poltava region, head”.) When she When KGB officers came to and the Ukrainian Helskinki eastern Ukraine. Her finished school and question her, she naively tried to Union, she wrote leaflets, did parents were both hoped to study in convince them of the dangers of broadcasts on Radio Liberty, and Communist party Moscow, a friendly the Soviet nuclear reactor edited books. In 1991, as the members; her father teacher advised her construction programme. Soviet Union collapsed, she was a strong believer not to go, warning: In March 1989, Valentina was returned to Kyiv University, this in justice – “a justice “With that on your file, one of a group of students time in the philological faculty. In he knew could not be they won’t accept expelled for “not corresponding 1993, she transferred to the achieved in the Soviet you.”Valentina to the requirements of being a faculty of sociology and law, Union”. entered the physical sciences Soviet student”. In July, thanks to while working simultaneously as In 1983, at the age of 14, and maths faculty at Kyiv the more liberal atmosphere in deputy director at the Institute of Valentina was accepted at University in 1986, the year of the Moscow, she was able to sign on Democracy. Ukraine’s most prestigious Chernobyl disaster. She soon at the university there, but six Having graduated in 1998, secondary school, the Academy became one of the joint months later, having heard news Valentina worked as a of Mathematics and Sciences in presidents of an unregistered of the formation of the liberal campaigner and lawyer, Kyiv. In the personal file held by students’ association that nationalist organisation Rukh, spending more and more time school authorities, she was discussed ecology, history and returned to Kyiv. on the individual cases of those labelled a “nationalist” (“I can’t other issues. She made friends In 1990, Valentina did who had tried and failed to get imagine why: I speak Russian as with the older generation of “everything all at once” in the justice through the courts. often as Ukrainian, and at that Ukrainian dissidents, many of mushrooming democratic G Simon Pirani L decision. But not only that: there are also reform of the courts … although that depends lawyer just because I wanted to help people: I public statements by politicians, to which on the president and parliament, not on the didn’t see it as a means of earning money.’ judges listen. It’s a combination, a system of minister of justice, of course.’ Both president Valentina started to see herself as a pravoza- encouraging judges who work not according and parliament have long acknowledged that shchitnitsa – literally, human rights defender, a to the law but according to the wishes of the the reform is required, but have not pushed it badge of pride worn by dissidents in Soviet rich and powerful.’ forward. A related issue is the reform of the times – in the late 1980s. She participated in There are also ways and ways of investi- criminal investigation and prosecution system. pro-democratic and ecological groups at uni- gating a case, Valentina points out. ‘I have seen “The prosecutorial system in Ukraine is versity that sprung up in Kyiv in the wake of how an investigator can work intelligently, or very corrupt. It is often used by politicians as the Chernobyl nuclear accident in 1986. can simply not see what is in front of his nose. a tool against their political opponents. The Having plunged into campaigning activity If those in charge don’t want to investigate a investigation department of the general prose- in 1989-91 as the Soviet Union collapsed, particular case effectively, all they need to do cutor’s office gathers materials on corruption Valentina only began studying for a law degree, is put a stupid investigator in charge, and he and other crime, and in many cases keeps it in newly-independent post-Soviet Ukraine, in won’t find anything. He won’t do anything. for years without sending it to court. It’s a 1993. By then she was already a seasoned cam- And that’s all.’ form of speculation. paigner, holding down a senior position in a ‘And yet’, she adds, ‘at the same time, in non-governmental organisation at the same any situation, one can still find people who are time. And she focused on constitutional law, interested in working honestly, in getting re- “The prosecutorial imagining that the new Ukrainian state would sults, in adhering to the law’: investigators need people to help construct its new juridical who would rather quit their jobs than obey system in Ukraine is framework. But as the chaotic, poverty- orders to act illegally or dishonestly, and stricken 1990s wore on, she became more and judges who can not be bought, who opt not to very corrupt. It is often more interested in administrative law. She make unjust decisions. ‘The existence of such found herself involved in the defence of nu- people encourages me and gives me hope: it used by politicians as merous civil cases involving a breach of human tells me that we can work, we can change rights. something and achieve something.’ a tool against their ‘I was never interested in doing criminal law, How does Valentina evaluate the human political opponents” and when Myroslava turned to me and asked rights situation in Ukraine in general? It is for help, I never thought that I would be able, ‘very, very far from meeting international stan- “Moreover, the investigation of serious given the character of my legal education, to dards’ – but is also ‘far from hopeless; better crimes needs to be taken out of the internal af- deal with such a big and complex criminal than it looks from a formal point of view’. fairs ministry’s hands. Its employees are not case.’ Valentina’s law degree, with strong con- Valentina recently undertook an analysis of professional enough – and all too often they stitutional and administrative elements, meant Ukrainian applications to the European Court themselves are suspects. Ukraine needs a na- she was unprepared. She didn’t even have an of Human Rights, and believes the fact that tional bureau for investigations, with a high advocate’s licence to address the courts: luckily, they have increased sharply is a good sign, sug- level of accountability.” Ukraine’s complicated court rules means she gesting that more people have become aware In contrast to the relatively large, albeit be- has been able to fight the case without one. of their rights to file them. Most recent appli- sieged, community of human rights lawyers ‘But the way things have turned out, I’m cations concern a relatively narrow range of and activists in Moscow, the handful of such conducting a number of criminal cases. And issues: high on the list are the non-payment of campaigners in Kyiv is much smaller. I’ve won some of them!’ And helped keep wages by employers over long periods, espe- Valentina and others like her rely on a tremen- Ukraine’s most important human rights case at cially in the 1990s; the failure by executive au- dous amount of self-confidence and self-belief. the centre of public attention right across thorities to implement decisions by courts; and ‘Part of me is still stuck in that world where Europe. inhuman treatment in prisons and the deten- the main principle by which people are re- tion of prisoners on remand for unacceptable garded is justice, and not by the amount of Simon Pirani, a journalist who writes about and illegal periods. money they can make,’ she says. ‘That’s why I Russia and Ukraine, co-authored a series of And what would Valentina do, if tomor- do, and have always done, a great deal of reports on the Gongadze case for a coalition of row she became minister of justice? ‘Propose unpaid work. I started out as a human rights journalists’ unions and campaign groups.

36 I Socialist Lawyer G December 2007 Picture: Jess Hurd / reportdigital.co.uk T situation. best togiveanelementofstatesmanship tothe things andthosewhoplantbombs. Hedidhis a differencebetweenthosewho saywrong of hate”andhetoldthepresenter thattherewas asked ifitwastimetoroundup the“preachers admitted thattheywouldnothave. Hewasalso attacks onthetubeandinfairness tohimhe thought thatIDcardswouldhavepreventedthe gramme after7thJulyhewasaskedif abuse itsroleatthatparticulartime. July. Therewasapotentialforthepoliceto voice becamemorepowerfulinthewakeof7th the wayitspeakstooppositionpoliticians.That the mostpowerfullobbygroupsespeciallyin July 2005.ACPOhastraditionallybeenoneof Chief PoliceOfficers)aroundthetimeof7th the pressreleasesfromACPO(Associationof Western world.IntheUSitis48hours. sents thelongestprechargedetentionin Government to28days.Thisperiodstillrepre- was reducedfromthe90daysrequestedby You willrememberthatthedetentionperiod was August2005afterthe7thJulybombings. pects. Thelasttimethisissuecametoahead extension topre-chargedetentionofterrorsus- fairs SelectCommitteeandraisedtheissueof ‘Today IanBlairgaveevidencetotheHomeAf- Anti-terrorism policy on herlecture attheHaldaneSociety’s AnnualGeneral MeetinginOctober. the profile ofissueshumanrightsandcivilliberties. Shami Chakrabati When CharlesClarkewasonthe The genesisofthispolicyistobefoundin the UK. chitecture ofhumanrightsprotectionin terrorism policyandthreatstothear- here weretwothemestothelecture:anti Today , director since2003,hassucceededinraising ofLiberty pro- for emergencyregulations tobepassedafterter- is alsotheCivilContingenciesAct whichallows judicial warrantsforphonetapping. Andthere phone tapevidenceincourt.There shouldbe and accesstoalawyer. question afterchargewithjudicial supervision before theycharge.Libertysay, yesyoucan the pointofchargeandsotheyneedmoretime training camps;etc. of aproscribedorganisation;attendingterrorist offences onthestatutebooks:beingamember strikes” therearealreadypre-emptiveterrorism charge detention?Inrelationto“pre-emptive then doweneedsuchlongperiodsofpre- not beginatarrestbutlongbeforehand.Why occurs”. Anyanti-terrorisminvestigationdoes as a“pre-emptivestrikebeforeanotheratrocity calling backbenchMPstolobbyandcampaign. policy isoftenformulated:ChiefConstables tion. Thisdemonstratesclearlythewaythat lease Tony Blairwasaskingfor90daydeten- day detention”.Onemonthafterthatpressre- terms: “whatweneedtokeepyousafeis90 request wasputtothepublicinfollowing quest forextensiontopre-chargedetention.The consultation withtheHomeOffice,wasre- new policepowers.Top ofthelistwithoutany release whichwaseffectivelyashoppinglistfor and Tony Blair’s speech,cametheACPOpress Charles Clarkeappearingonthe the gamehavechanged”speech.Between gles andgavehisnowinfamous“therulesof Liberty alsocallsfortheadmissibility of The policesaythattheycannotquestionpast Ian Blairwantsmorethan28daysdetention Then Tony BlairreturnedfromhisGlenea- LAW THE AND LIBERTY Today show Marcus Joyce work itself.’ that weasagrouparefighting fortheframe- some smallpolicyaspects,wemust remember human rightsandthoughwemay disagreeon country. We arefightingfortheframeworkof architecture ofhumanrightsprotection inthis very heartofthecriminaljustice systemandthe and sohavenorights.Thisdebate goestothe they areworthyandthosewhonot tinction betweenthosewhohaverightsbecause your rightsifyoudonotfulfilduty? rights, abillofrightsandduties:doyoulose move awayfromhumanrightstocitizen’s tionals toplaceswhichpermittorture.Itisa this wouldallowthedeportingofforeignna- with commonsense”.Makenomistakethat can bereplacedwitha“Britishbillofrights scrapping oftheHumanRightsActsothatit on terror”.DavidCameroniscallingforthe the HumanRightsActwillnotsurvive“war call torepealanypartofit.Iamconcernedthat often ignoredtheConstitutionbutthereisno Rights. Heandhisadministrationmayhave could nothavecalledfortherepealofBill have alotbeproudof.Evenafter9/11,Bush ‘Compared toAmerica,weinEnglanddonot protection The architecture ofhumanrights have evenknownexisted.’ thing thattheHomeOfficedoesn’t appearto Rights Act.Howeverthepoweritselfissome- guarded bythecourtsthroughHuman is imminent.Thispowercanofcoursebe rorist attacksoratthetimethatsuchanattack The aimofthebillrightsistomakeadis- Socialist Lawyer I G December 2007 reports I 37 Books

information into press reporting informing, educating and increases distress as well as empowering women concerning Poignant and deeply squinting public perception of their legal rights. With their the issues raised. The latter is all latest publication, Pathways to too familiar in cases where Justice, Rights of Women have moving accounts: we deaths have aroused wider fulfilled their commitment in the public concern and parallel book’s introduction ‘of badly need reform state responses elsewhere, such producing a book which makes as during the aftermath of the law transparent, accessible and Hillsborough disaster in 1989, user-friendly, giving service and more recently the death of providers and individuals the Unlocking findings drawn from the Jean Charles de Menezes. knowledge and skills to enable the Truth – monitoring of patterns and In a context where the women to access justice’. This Families’ trends relating to deaths, there voluntary sector has by book follows on from the Experiences are also sections detailing the necessity filled the vacuum in organisation’s excellent of the legal and procedural framework assistance and support, the publications already available, Investiga- pertaining to the inquest authors also recommend full including From A to Z: A tion of system. statutory provision of the same woman’s guide to the law and Deaths in As ever, Shaw and Coles’ and to complement the work of the Domestic Violence DIY Custody work makes reference to the INQUEST in particular. Injunction Handbook. Helen Shaw and Deborah Coles wider social and political The bibliography is a rich Pathways to Justice provides £10.00 ISBN 9 780 9468 5821 7 context, drawing upon and resource and pointer for those information about women’s legal To order copies go to restating clear insights and wishing to read further around rights in a range of inter-related www.inquest.org.uk conclusions borne from the area. The appendices areas. It is divided into four comprehensive scrutiny of contain information about the parts. The first looks at the n a climate where the issues consistently raised over methodology used and contain conceptual and legal framework numbers of those held in many years. a useful table setting out best and covers human rights, Icustody continues to rise, It is in the placing of the practice under the current violence against women, Unlocking the Truth – families’ direct experiences system and what may otherwise marriage and civil partnerships Families’ Experiences of the within that wider context and be achieved by further reform. as well as the financial Investigation of Deaths in in view of recent advances in A reading of the publication arrangements and the movement Custody is a timely coronial law, that the authors is a reminder that the struggle of children following contribution to the discourse then proceed to make two key for justice in this whole area has relationship breakdown. The surrounding the crisis of proposals. These concern the taken, and will continue to second part deals with accountability within penal and improvement of the processes take, significant collective effort immigration and asylum law as other state institutions. following the conclusion of the by all those drawn – however it relates to women. The third Although the problems investigation and inquest, and drawn – to the issues raised. In covers the forms of domestic experienced by bereaved the establishment of a standing a context of widening societal violence experienced specifically families facing investigation commission on custodial inequality, such efforts, through by BMER women, including and inquest procedures are deaths. The latter would be a grassroots family campaigns forced marriage, female genital commonly recognised by well-resourced overarching and the support galvanised by mutilation and trafficking. The advisors, the recording of independent body which inter INQUEST, remain ever present final chapter deals with practical those experiences in any detail alia could identify and urgent. issues including legal aid and has to date been largely absent common/recurring themes, John Hobson access to the courts. from critiques and academic develop policy and research and As with all their publications enquiry. The authors set out to where appropriate, intervene in Pathways Pathways to Justice is very good draw in those experiences by individual inquest and to Justice value and is clearly written. The way of detailed qualitative attendant court proceedings. BMER helpful use of text boxes research, through the careful The authors make many Women, throughout to highlight citing of poignant and deeply other practical Violence & important points, pink boxes personal accounts, that in recommendations such as the the Law containing case summaries and themselves are revealing of the establishing of protocols By Rights of the key points section at the end need for substantive reform. concerning the notification of Women of each chapter, make the book At the core of the the deceased’s family, the Aldgate Press user-friendly for lawyers and publication are evidence-based establishment of a family £12.00 non-lawyers alike. I strongly chapters pertaining to four support worker role by the (including recommend Pathways to Justice very clear stages faced by coroner service and the clear post and packaging). Available for the bookshelves of both those bereaved: immediately conveying of information to from www.rightsofwomen.org.uk practitioners and support after a death in custody; the families about the complicated workers as well as being an attendant investigation; the post mortem process. ights of Women is a invaluable source of information inquest; and pursuant to the The authors also point out women’s voluntary for women themselves. inquest. As well as setting out that the injection of misleading Rorganisation committed to Abi Smith

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