Archive | June 2012

Foreign National Prisoners – the Forgotten/Ignored Prison Population

Yesterday, I spent the day hearing about the problems faced by Foreign National Prisoners (FNPs) and the advice workers who support them.  The main problems which came across quite clearly are that the prisoners have no one to take on their legal complaints, most of which are the result of State action or inaction.

It must be remembered  that most FNP’s are not asylum seekers, most are serving a prison sentence and would like to return home at the end of their term.  For example, the Foreign National Prisoners who have confiscation order proceedings running against them.  In many cases, these proceedings have been running for over 2 years.  The FNPs have served their sentence and wish to return to their home country but can’t do so as the State won’t agree to their release due to the pending confiscation proceedings.  There is no Legal Aid available to support these FNPs, and therefore they have to languish in jail until the State can get its act together on the confiscation applications.

The 20 year old criminal defendants who found that they were sentenced to 12 months or more in custody, but their co-defendants who were equally culpable received lesser custody.  They wish to appeal against their sentence, but can’t find a criminal lawyer prepared to take  on their appeal due to the fact that any reduction in sentence will only be a month or so.  The reality is that this month can be the difference between deportation for not for these FNP.  The criminal lawyers don’t appreciate the deportation rules in relation to FNPs.

The FNP who had a piece of family jewelry taken from him when he was detained in the police station.  He subsequently requested its return, and was told that it had been auctioned as that police authority only kept a person’s property for a year. The police authority had written to the FNP at the address he had given when arrested, but since that date he had been detained either on remand or as a serving prisoner.  He wishes to bring an action against the police, but is unable to do so from inside his prison cell and without legal aid, or any money to pay a solicitor.

The male charged with false document offenses who told his lawyer that he was being forced to travel into the country to work in a food takeaway, and had been handed the documents just before they arrived at the port and told to show them.  His family had been threatened and he felt he had no option but to travel to the UK and undertake the work.  The police and his lawyer determined that he was a smuggled person and not a victim of human trafficking  because ‘human trafficking victims come in on the back of a lorry’.  He is detained in prison, awaiting deportation, desperately worried that his family are being punished, and his traffickers remain at large, released by the police due to lack of evidence..

There are numerous young detainees who have realised for the first time, while in prison, that they may be subject to deportation.  All stated that they were not advised by their lawyer that there was a risk of deportation, and many don’t actually realise that they are Foreign Nationals as they have been in the UK for as long as they can remember.

While the prisoner advice agencies are able to help with the day to day enquiries for these FNP and in many cases provide a lifeline, they are unable to take on the FNP’s legal complaints.  Without the possibility of legal aid, they rely on the pro bono assistance of lawyers, but only if the lawyers understand the problems faced by the FNP and the consequences of their serving a custodial sentence will they be able to provide any meaningful assistance.  In the meantime the FNP’s,  whilst remaining a political issue for the Home Secretary, for most of the population they are the forgotten ones.

Law Gazette Opinion – Criminal Justice System Failing Asylum Seekers

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Does it look like someone has tried to scratch their way out of the door in a brothel? Chances are the person you have had sex with is a human trafficking victim

Following on from my previous blog about human trafficking victims no longer found handcuffed to a bed in a brothel, which concentrated many on labour trafficking, it is now time to dispel some of the myths about sex trafficking.

Recent reports of police raids of brothels, and convictions of individuals for trafficking young girls and forcing them to work in the brothels, sex trafficking has again received an increased media profile.  However, these cases highlighted in the news are only the tip of the iceberg, and the sad reality is that most victims are not found until it is too late.

The US State Department report released last week makes it clear that the detection, prosecution and conviction rates for sex and labour trafficking are woefully low.  This is not a country or region based problem, globally the war on human trafficking is not being won.  One of the main problems is that human trafficking is a vast organized crime, which preys on those who are the most vulnerable or disadvantaged.  By it’s very nature the majority of sex trafficked victims are kept below the radar as in many countries brothels and prostitution are illegal.

Although there are many specialised law enforcement units working throughout the UK to identify sex traffickers and their victims, without the assistance of the public and neighborhood law enforcement, it is questionable whether the battle against sex trafficking in the UK can ever be won.

The Police Service Northern Ireland have recently launched an initiative to educate those people who use the brothels.  It is not unusual for a client of a brothel to question whether the person (woman, man, boy or girl) servicing them is doing so voluntarily.  In many cases, a client will have been asked by the person servicing them to call the police or to help them.  However, there are very few clients who have then made contact with the police or tried to help.  The excuse “I didn’t want to get involved” is one which comes up time and time again.  In reality, all that it would have taken to assist that victim is an anonymous phone call to the police.  While it is accepted that campaigns aimed at educating clients about the possibility that they are having sex with a human trafficking victim will not prevent these clients from using the brothels, it may help to raise awareness of the small things that they can do to help.  A phone call to the police or a Human trafficking support group to report a door that looks as though someone has tried to scratch their way out, or a girl who is covered in burn marks or bruises, may be the difference between life and death for that girl.

The biggest stumbling block for law enforcement is that most of the brothels which house the trafficking victims are not in mainstream places, and are not known as brothels.  A house in the middle of a housing estate, or a van driving up and down a motorway is the modern day brothel.  All it takes is an advert in the back of a newspaper, or on the internet, and the clients will come flooding in.  Many clients find the thrill of tracking down the van in the service station, or entering the house through the back door at midnight to be as much of a thrill as the sex they will then purchase when they are inside.  This is where raising public awareness makes all the difference.  A neighbour who notices that there are visitors to a house all day and night, and who calls their local neighborhood police officer, or local authority anti-social behaviour officer may ultimately be reporting on a sex trafficking ring without even knowing it.

The time has come to educate the public into looking for the signs of sex trafficking, the neighbour, the security guard at the service station, the local neighborhood police officer who regularly speaks to the local prostitutes or their clients, all of these have a vital role in the fight against sex trafficking.

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The State has locked them up in a 6ft cell and thrown away the key. Juveniles and Solitary Confinement in Florida.

With the current interest both in the USA and Europe in the practice of keeping inmates in solitary confinement, I thought I would share some of the thoughts and issues raised by some of the juveniles in Florida who have been sentenced to life without parole and who have spent time in solitary confinement.

Over the last two years I have worked with young men, who were all sentenced to Life Without Parole for non-homicide offenses they committed as juveniles.  Most pleaded guilty to the offenses, thinking that they would get a plea deal, and all ended up with the maximum sentence the court court give.  While the offenses for which they were sentenced should not be diminished, in at least two of the cases it is questionable whether the young men were actually responsible for the offenses.  However, in these cases, both confessed, and their appeals against conviction have been heard and dismissed, so that avenue of argument is no longer open to them.  What is open to them is the right to ask the court for another sentencing hearing due to the fact the US Supreme Court in Florida vs. Graham ruled that it is unconstitutional to sentence juveniles to life without the possibility of their sentence being reviewed to take into account their maturity.

One of the young men has to be one of the most difficult clients I have  dealt with in my 20+ years of working in the criminal justice system.  He frustrates me beyond belief, but every time I am at the end of my patience with him, I pick up the report prepared for his appeal against his sentence, which details the first 15  dysfunctional years of his life, and then his time in jail and prison, including extended periods of time in solitary (in some years he spent 10 or 11 months in solitary, only to spend a few weeks in general population, and then be sent straight back to solitary due to his behavior towards other inmates or corrections officers).  I have calculated that of his total 12 years incarcerated, he has spent 8 of those in solitary confinement.  The State gave up on him 12 years ago, locked him in a 6ft cell and threw away the key, I will not allow myself to so the same.

In all of the cases I have dealt with the offenses have been serious – rapes, armed robberies, and attempted murders.  All the juveniles were treated as adults by the courts and therefore were detained in adult jails prior to conviction.  All were experiencing jail for the first time and were held in solitary confinement during their time in jail.  This was justified as providing protection to the juveniles, however in reality it was the start of a regime which dehumanized them.  With 24 hour a day lock up for most days, these juveniles who were still in the process of developing and maturing were denied any contact with anyone other than the corrections officer who escorted them to the exercise yard two or three times a week, or less if it was raining.  Even their exercise was taken in isolation, hence no chance to play basketball or bond with others experiencing the jail system for the first time.  Peer contact which is so important to an adolescent’s development was denied, and even visits from family and friends did not provide the support and nurturing and reassurance required by most adolescents, due to the glass separating them from their visitor.

The recurring comments which came from these juveniles was that they gave up at this stage, they no longer had any interest in their case, or what their lawyers were telling them.  They just wanted the isolation to stop.  They wanted to get out of the tiny cell, painted grey, without windows, and where they were totally cut off from the outside World.  Two of these juveniles attempted suicide in their early years in jail.

The fact that cases can take years to come to trial in Florida added to the despair of these inmates.  The idea of having to spend the next four or five years in these conditions was a strong factor in some of them deciding to plead guilty.  One inmate stated “if I pled guilty I knew I would go to prison and into general pop[ulation]’.  Hence a motivating factor in these plea decisions was not whether they were guilty or innocent, but that they would be able to associate with others if they pleaded guilty.

For the majority of these inmates, home life and the family bond had not been very strong prior to them being incarcerated, and could possibly be argued as one of the reasons they had ended up being charged with these offenses in the first place.  The longer the inmates languished in jail, the less they received visits from their family and friends.  It is a recurring problem for the juveniles facing Life Without Parole, that those on the inside are cut off by those on the outside who want to get on with their lives, and give up hope of the inmate ever being released.  In fact, with the exception of one of the inmates I have met, the only family contact is a birthday and christmas card and the occasional $30 added to the inmate’s commissary account.

While many of the juveniles had minor mental health problems when they first entered the jail system, mainly due to drug abuse, they did not exhibit serious mental health problems.  However, by the time they were sentenced, over half had been assessed as having poor cognitive reasoning and  exhibiting anti-social behavior, all of which was deemed to be a factor in justifying sentencing a juvenile aged 13 to spent the rest of their life in prison with no opportunity of a parole review.  Never was it considered by the court that the reason the juvenile was exhibiting this behavior was due to the State incarceration.  The State had given up on these juveniles, they were described by the Prosecutors as ‘bad’ or ‘untreatable’ or ‘damaged beyond repair’.  Even worse, in most cases the defense lawyer did not stand up for their client and say that the State’s solitary confinement was the problem.  If the lawyers had also given up on these juveniles, who else was going to care.

Florida vs. Graham was decided in May 2010.  By this time, most of the juveniles sentenced to Life Without Parole had become adults.  The task when trying to persuade the courts to reduce the sentence of these inmates is to show the courts that they are no longer dangerous and can be released back into society.  That is not an easy task when the State has managed to dehumanize these young men, has made then anti-social.  How can a young man who has experienced sustained periods of solitary confinement in prison, with nothing more than one hour of recreational time once every forty days, be expected to fit back into society and live and mix around his peers?

Psychiatric evaluations of these inmates now all indicate that they exhibit psychiatric problems – no wonder considering the way they have been treated and the lack of diagnosis and medication they receive in prison.  These psychiatric problems provide the Prosecution with the justification for arguing that the inmate should remain in prison.  The US Supreme court decision was that a Life Without Parole sentence for juveniles is unconstitutional, it did not say that a 70 or 80 year sentence is unconstitutional, not did it say that consecutive sentences were unconstitutional.  Hence the fear that in some of these cases a Life Without Parole sentence will be replaced with two 40 year sentences, to be served consecutively.

During one  visit with a prison inmate, he described to me the fact that since he had heard about his appeal, he had worked hard on his behavior and had requested that he be moved out of the highest level of confinement (CMI), to the second level (there are three levels of confinement in Florida state prisons).  He was so pleased with himself as he was moved to the 2nd confinement level (CMII) and this meant he could go to the tv room f our times a week, and was allowed a two hour visit  each time.  He had not seen the tv for the previous two years due to being in CMI, where only a radio was allowed, and where he  was only allowed 3 books a week and no commissary items other than stamps and writing paper. Sadly, a few days after my visit, he had an argument with another inmate, who he said stole his potato chips, and ended up back in CMI, where he remains to this day.

While the actions of the Senators in their review are encouraging, it does nothing for the forgotten incarcerated youth, who have entered adulthood as a prison number, with no one  but themselves for company, in a space where they can stand in the middle of the room and touch the walls both sides, and where daylight is something rarely seen, and when they do see it, they can do little more than shuffle into it as they are shackled hands and feet.

Click here for the Florida Statute on Close Confinement/Solitary Confinement and the restrictions it places on the inmate ☞ Close%20Management%20Statute

NY Times Article 20 June 2012 Senators Review Solitary Confinement

 

Miller v Alabama – Life Without Parole for juveniles convicted of homicide offenses is unconstitutional

Adolescent Brains – risk taking, and peer pressure.

In the USA, I have worked on 5 cases in the past year where an inmate convicted of a non-homicide offence, and sentenced to life without parole has been given the possibility of appealing the decision following the case of Graham v. State of Florida.  There will be much more on this to follow, but in essence the ruling of the Supreme Court in Graham was that as juveniles are not fully developed,  they should be given the opportunity in adulthood to show that they have changed and are no longer a danger to society.

This article from the National Geographic Magazine, although not scientific, makes interesting reading on this very point..

Adolescent brains……..an interesting view from the USA on why adolescents take risks, their need for peers and the overriding influence of good parenting

Human trafficking victims – no longer just found handcuffed to a bed in a brothel..

The common misconception is that a victim of human trafficking will be identifiable as they will either be found in the back of a lorry entering a UK port, or tied to a bed in a brothel.  

While there are still many cases such as those described, the traffickers have become much more sophisticated and are prepared to go to much greater lengths to ensure that their victims ‘blend in’ and are not so easily identifiable as victims. Labour trafficking is much more prevalent around the World than sex trafficking, although sex trafficking reflects the majority of media reporting as it is much more headline grabbing.  Whether it is labour or sex trafficking, it is all slavery…..  And in order to combat it effectively, all first responders need to be able to identify a victim when they meet one or hear about one. 

Examples of recent trafficking victims identified include:

  • teenagers working on cannabis farms, males working on farms in East Anglia;
  • young women being forced to attend the benefits office and claim benefits for themselves and their family;
  • young girls picked up from homeless shelters and then forced into prostitution and made to ‘work’ inside a van which travels around the Midlands;
  • males forced to sleep in a tent in the middle of winter and pick cockles;
  • women working as housekeepers in hotels and guesthouses.

While many of the trafficking victims come from Eastern Europe and East Asia, the pattern is clear, it is not the nationality that makes a person a victim of trafficking it is the fact they are either forced or coerced into work – they are being exploited.  While some trafficking victims may want to be rescued as they are being treated despicably and in many cases are being abused and tortured.  Others may be quite happy with the work they are undertaking.  It is these people in particular who do not consider themselves to be victims of trafficking.  A victim who works 60 hours a week, and receives only a roof over his head, food, alcohol and cigarettes in return may not consider himself to be a victim, and in many cases may be very resentful of the person or organization which takes away this way of life – hence the reason many people who are identified during a police raid as trafficking victims may not want the stigma of the ‘victim’ title and may refuse to work with the police or the other organisations which assist such victims.

Hence, identifying a trafficking victim is often not an easy task, they may be afraid of the authorities, will probably have been told not to talk to the police or anyone official looking for fear of being arrested and imprisoned.  They may consider (and in many cases, quite rightly so) that their family will be in danger if they speak to the authorities.  They may have total distrust of the authorities, having previously made a compliant which was not believed (due to the fact they were not chained to a bed in a brothel!), or may not want to lose their bed, albeit it often nothing more than a shed or tent, it may be all they have and want to cling on to.

The trafficking gangs use many ways to keep tabs on their chattels (victims), ranging from a tattoo on their arm, shaving of their eyebrows, and making them wear certain clothes.  In many cases the victims will be allowed out in the public arena, so as not to cause too much suspicion of people locked in a house, but there may be an enforcer close by, keeping an eye on the victims, or alternatively the enforcers may have taken something from the victim (such as their child) to ensure their return.  In extreme case, the victim will form a bond with their trafficker or enforcer – this is reported in many young girls who have been sex trafficked, and will refuse to accept that the enforcer is doing anything wrong, and may even recruit other young people into the brothel for the enforcers.

In summary, identifying victims of human trafficking is not an easy task.  Those most likely to come not contact with the victims are not the specialised law enforcement or Government funded units.  While these units investigate incidents of human trafficking, it is the first responders who usually have the first contact with a human trafficking victims and it is these first responders who need to be able to identify a trafficking victim.  For example, paramedics, midwives and A&E staff, neighborhood police officers, local council housing officers and enforcement officers.  It is estimated there are many victims of trafficking in prison, too afraid to say why they were working on the cannabis farm, or why they were in possession of a false passport or driving license.  Prison officers and counsellors may be the first people that a trafficking victim is able to talk to in safety.  Criminal lawyers and police station representatives are likely to have come across a victim without recognising them as a victim, such as the woman who is advised to plead guilty to running a brothel, but who was actually trafficked into the UK at the age of 13 and forced to work in the brothel, and who then formed a bond with her trafficker  and recruited other girls, as it was the only way she could get out of being sold for sex.

Unless these First Responders are able to make these identifications, the specialist human trafficking teams are able to do nothing more than touch the surface with regard to identifying human trafficking rings and putting an end to this modern day slavery. 

Are you a First Responder?  Come to a free 2 hour training session 15/1/14 Euston, 11-1pm on identifying and assisting human trafficking victims.  The course is run jointly by Migrant Help and 1 Grays Inn Square Chambers and funded by a charitable grant.

To Book:  contact  gurdena@btinternet.com  or via 1 Grays Inn Square chambers 0207 405 0001

 

How to Write a Witness Statement for the Employment Tribunal.

A witness statement is an essential part of the Employment Tribunal case as it is the witness’s account of events. For this reason, a great deal of time should be spent in preparation of the statement. 

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Although the statement is the witness’s account of events, it should only contain the information which is relevant to the case. The tribunal may ask the witness to read their statement during the tribunal hearing, so it must be in plain language which is clear and understandable, and written in such a way that it follows a logical order. If this guidance is not followed, then the witness’s evidence in the tribunal will be very difficult to understand.  Alternatively, the tribunal may decided to read the witness statement prior to the hearing commencing, for this reason it must contain all the relevant information, as it may not be possible to clarify  or expand points raised in the statement.

There are no hard and fast rules about what information should be included in the statement, it all depends on the particular circumstances of the witness. However, every statement should start with the name of the witness, their address, or where they work, and their role (such as employer, employee, friend of the complainant etc.) The statement should be written in short paragraphs, which should be numbered, and if possible, events mentioned in the statement, which relate to documents in the case bundle, should identify the relevant pages of the bundle. For Example “I was employed as a cleaner with the respondent from March 2006 to December 2010. (See the contract of employment, page 4 of the bundle.)”. The reason for referencing the pages in the bundle is to aid both the witness and the tribunal in finding the pages quickly and easily when the witness is giving their evidence during the hearing.

The statement should also be signed and dated. If copies of the statement are being exchanged electronically with the other parties to the case (simultaneous email exchange is now common) the statement should be dated, but does not have to be signed, so long as signed copies are provided to the tribunal on the day of the hearing.

Once the statements have been exchanged, they cannot be changed, hence the reason it is so important to spend the time on the statement and get it right. If a witness wants to amend their statement, it should be done by way of an additional statement, but it is at the discretion of the tribunal as to whether they will accept the additional statement.

The person making the complaint to the tribunal is referred to as ‘the Complainant’. The Employer is referred to as ‘the Respondent’. Unless a person can give direct evidence of the events complained of, they should not be a witness. For example, the Complainant should not ask their friend to be a witness if the friend does not have direct knowledge of the Complainant’s dismissal. The Tribunal cannot take into account the fact that the Complainant spoke to their friend and told them about the dismissal. However, if the friend was present when the complainant was dismissed, or had witnessed events previously which relate to the dismissal, such as accompanying the Complainant to a disciplinary hearing, the witness can give evidence on this event. Likewise the Respondent witnesses should have some knowledge of the Complainant or the Complainant’s case, the fact that they are employees of the respondent is not sufficient for them to be called as a witness.

The rule of thumb is that the fewer witnesses, the better. Too many witnesses can cause confusion.  And the simpler the statement, the better.

Don’t Delay, Act Today – Leave Your Employment Tribunal Preparation to the Last Minute and it Could be Costly!

With the withdrawal of Government funding for  employment law advice, many people will be left having to traverse the employment law minefield alone, unguided and unaided.  But using an expert to handle the initial stages of the claim, with the employee then undertaking the representation at the tribunal stage, will likely pay dividends in the end.  In essence, it is time to turn the traditional timetable of the employee handling the paper elements of their claim and then employing a representative for the hearing on its head.

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 Whilst the original aim of the Employment Tribunal was to allow complainants to represent themselves, in recent years, the increased amount of rules and time limits has meant that those who try to represent themselves are constantly having to try to get to grips with the requirements placed on them.
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Factor in the fact that most employers will appoint a representative at an early stage, and the complainant is at an extreme disadvantage.  The element many employees fear most is the prospect of having to represent themselves during the hearing, including the cross examining of the employer’s witnesses.  In reality, if the claim has been properly prepared, the hearing is often the easiest part.  In addition, there are some excellent pro bono organisations which offer representation at the hearing.
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With most complainants who represent themselves, the preparation of their case will determine the outcome.  For example, employees may feel the need to include documents which indicate previous, expired disciplinaries, which make admissions of guilt, or which cut down the elements of the claim.  Likewise, statements may include irrelevant information which disadvantages the employee, or crucial witnesses may not be identified and requested until it is too late for them to be called to the hearing.
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In the author’s experience, employees significantly underestimate the amount they should be claiming in settlement.  When negotiations are commenced through ACAS, the employee may start to feel pressurised and could accept a figure which is at least 50% less than they could have obtained with fuller negotiations.
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Employing an expert to undertake the preparation of an employment tribunal case need not be overly expensive, and the golden rule is that the sooner an expert is involved, the better.  A badly worded or constructed claim form submitted to the tribunal may limit the employee’s areas of claim in such a way that valid claims are excluded by the tribunal.     It is very difficult to persuade an employment tribunal to amend a claim at the last minute if the employee realises that they have another element to their claim, but did not include it in their initial complaint. Likewise, claims submitted out of time will be rejected by the tribunal, and the general 3 month time limit for submitting claims (in some claims this can be extended to 6 months but only in very limited circumstances) does not always flow from the employee’s perceived date of dismissal or employment termination, in some cases it may be much earlier.
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In reality, if an employee has a well drafted claim form, properly prepared statements and documents, they may likely be able to dispense with the services of the representative and go it alone at the hearing, or apply for pro bono representation.
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There are many employment law experts who specialise in preparing claims, and offer free advice, including Law Centres and Citizens Advice Bureaux.  However, if paying for an expert, the employee should ensure that the expert has experience of advocacy in the tribunal, (the best way to prepare for a case is to think how it will be argued in tribunal), and is also prepared to undertake negotiations with the employer or their representative.
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There are also employment consultants who offer indemnity packages, however, in the author’s experience, this indemnity does not provide the same protection that is provided by an expert who is regulated by the Law Society or the Bar Council of England and Wales.  In other words, complainants should do their homework before employing an expert, check that they are regulated, are members of an employment law association, and that they have experience.  Word of mouth and recommendation is also often a good indicator.
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A delay could be costly to the employee, both in terms of finance and stress.  The golden rule is ‘Don’t Delay, Act Today’. 
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