Archive | October 2013

Is the detainee a suspected offender, a human trafficking victim, or both? The Dilemma for Custody Sergeants, First Responders, Appropriate Adults and Police Station Reps

The portrayal on TV of human trafficking investigations usually involves large scale police operations where a house or warehouse is raided and thirty to forty human trafficking victims are discovered chained to beds or walls, in the dark, and the victims are emancipated and in poor health. I have worked with law enforcement on human trafficking operations around the World, and this portrayal is rarely the reality. The whole point of human trafficking is to exploit the individuals, hence they are unlikely to be found in a state where they cannot work for their traffickers or enforcers due to the fact they are chained up all day and in very poor health. Most victims of human trafficking will be found outside in the local community or working in factories or fields. Many will only come into contact with the police due to the fact they have been suspected of committing a crime or are the victim of a crime. Their first contact with the police will be a response officer or a neighbourhood PCSO. Human trafficking victims are warned by their traffickers not to speak to the police, and may come across as hostile.

At a meeting with frontline police a few weeks ago, we discussed the daunting task for a custody sergeant in terms of identifying potential victims of human trafficking in the cells. The decision that the custody sergeant makes in the first few hours after an arrested person is presented to them at the custody desk can make or break a human trafficking investigation. This may sound dramatic, but unfortunately it is the reality.

For example, a 12 year old child is arrested for pickpocketing. The child states that they do not speak fluent English. The child is entitled to an appropriate adult in custody, the child provides a number which she says is her dad’s number. A call is made to dad who agrees to come down to the custody suite. On arrival he is polite and apologetic for his daughter’s behaviour and asks to speak to her. He then speaks to her in their native language, says that his daughter is ‘Sorry’. Is this a concerned father and contrite daughter, or a trafficking victim who has been told by her trafficker or enforcer that if she says anything he will hurt her younger sister?

The language spoken by the child is not one regularly heard in the police station, an interpreter has been requested but will not be available for a few hours, the custody sergeant is being pressurised by an officer who is due to go off shift soon and wants to interview, it is now after midnight, and the child has already been in custody for two and a half hours. Dad has stated that he speaks perfect English and is happy to interpret, he doesn’t want his daughter detained in the cells any longer than absolutely necessary, and as he is present he doesn’t see the need for lawyer, his daughter has admitted to him that she stole the mobile phone as she wanted the same type as the other girls at the school and he had told her she had better save up for one, but she stupidly saw a phone hanging out of someone’s jean pocket and decided to take it.

Due to the nature of the offence, the father’s concern and his sensible approach, it may be the best decision that the interview go ahead with Dad interpreting, hence the child is not detained at the police station late at night, and the matter can be resolved that evening. But, if Dad is a trafficker or enforcer, throughout the interview the child could be saying “he makes me steal” for which Dad’s interpretation may be “I am sorry, I apologise, I know it was wrong”.

In the latter scenario, the child may receive a reprimand or final warning for an offence for which they have a defence, but just as important, the child will see the police working with the trafficker or enforcer and not protecting her and will be highly unlikely to ever trust the police again. Add into this mix the fact that the police will release a victim back into the hands of a trafficker or enforcer, igniting huge safeguarding issues.

Those who work on human trafficking investigations are aware of the large amount of false documentation often found in premises used to house trafficking victims. This documentation is usually good quality and hence it can be simple for a trafficker to produce documentation indicating that they are the child’s father – especially in cases where the child has also been used for benefit fraud as well as pickpocketing.

Contrast the above scenario with the case of three detainees who tell the police that they are aged 15, when in actual fact one is age 20 and actively working as an enforcer of the other two. If a custody sergeant decides that there is a likelihood of the detainees being trafficking victims, and treats them all as victim, this may jeopardise any investigation into their criminal activities and again, the trafficking victims may see the police as being ‘soft’ on their enforcer and assume that he has paid off the police (as is common in many of the Origin countries for the trafficking victims). Hence the enforcer’s victims will not be open to the police, and the enforcer may be released into the hands of the social services and have disappeared within 24 hours.

These are just two of the many scenarios which a custody sergeant may face, there are many others. For example if a potential trafficking victim is kept in a cell for a few hours while the investigating officer/arresting officer decides whether that detainee is a victim or potentially involved in criminal activity, or both, any trust that the victim had in the police may have been lost by the police placing them in the exact same situation as the traffickers – locking them in a room and telling them not to worry as they are safe. The alternative is to treat the detainee as a potential victim, but this may have serious implications for any future investigation and prosecution if it can be argued that even the police did not suspect them as being involved in criminal activity. Ultimately this always has to be an operational decision, but it is a decision that should be made with awareness of the issues surrounding potential human trafficking victims.

Hence, while each police authority may have set up specialist units to investigate human trafficking, it may be the custody sergeant who plays the most important part in making or breaking the trust of a human trafficking victim. I do not, for one minute, suggest that custody sergeants and initial arresting officers are not going to recognise that in some situations the relationship between a child and a appropriate adult does not seem right, but taking the leap from this to recognising a potential human trafficking victim may be difficult.

Migrant Helpline is a Home Office/UK Human Trafficking Centre recognised first responder for potential human trafficking victims and offers free training to frontline officers and custody sergeants on identifying human trafficking victims and the current human trafficking trends. For more information contact Alison Gurden on gurdena@btinternet.com 

Advertisements

To strike or not to strike? Why Criminal Lawyers should make up their own mind and not be swayed by others.

Having read many comments and blogs over the past few weeks regarding whether the Criminal Bar should refuse publicly funded work, effectively to strike, I have decided to weigh into the debate.

Firstly, make no mistake, I am appalled at the way the MOJ have behaved towards the legal aid consultation, and I believe that Chris Grayling has made it clear that he knows nothing about criminal practitioners, nor does he want to. His actions and comments have ranged from deceitful to childish, and in the main have been nothing to do with supporting the profession which works long hours day after day to represent those who are unfortunate enough to find themselves in the criminal courts, but instead have been everything to do with trying to win the support of the Middle England voters who have been fotunate enough to have never been involved in the criminal justice system.

However, I think Chris Grayling’s actions should be put to one side when considering whether the profession should effectively go on strike. We are professionals and should weigh up all the pros and cons of refusing work, just as we would weigh up the likely outcomes of taking a certain course of action in our criminal prosecutions or defence. I am concerned that an overbearing attitude is creeping into the profession, which if we are not careful will create a ‘either with us or against us’ scenario. Particularly for younger members of the profession who are worried about whether their future work will dry up if they do not support the ‘strike’ action, this is unhealthy. As far as the Criminal Bar is concerned we are Independent. We hold this independence out to be one of our strongest features, and yet I am hearing daily of counsel who are being told that they must strike ‘or on their head be it’. All of us run an independent practice, and therefore we should be able to make our own decision on whether to refuse work.

I will not strike. I have made this decision on the basis of my principles, I do not want to see a defendant having to represent themselves, or be represented by a lawyer who is not their lawyer of their choice, due to the fact their lawyer is on strike. I am prepared to work to rule, and only work from 9 to 6 on my legally funded cases, and then to justify to the court why a case is not prepared, but it should be down to me to make that argument to the court and not the client.

I accept that financially, the MOJ’s cuts will make it very difficult to all of us criminal practitioners to survive, and I believe that a work to rule may make the MOJ realise that in reality cases are going to take longer and so will be just as costly. Not just in payments to counsel (in cases where we do actually receive payment for the extra days a case will take) but also in the extra court time taken to deal with each case.

I have seen much written about the cuts in recent weeks, and I am concerned that the ground we made with the public with regard to the damage that the MOJ proposals could do to them, is now being lost by the constant reference to the new proposed fees in criminal legal aid. The public do not understand that most of our daily rate does not end up in our back pocket, nor that we often have to wait over a year for the payments.  None the less, I fear that focussing on the money is causing us to lose ground to the MOJ on public opinion.

I also represent claimants in the employment tribunal (mainly thought the Free Representation Unit and the Bar Pro Bono Unit) and none of my clients earn as much as the daily trial rate in either the Magistrates or Crown Court. Try telling a client who has worked 40 hours a week on the minimum wage (£247.60 gross), for five years, only to be told that they are being laid off, and so are still classed as employed but can only receive the Job Seekers allowance per week, that earning over £100 per day for a trial is tough. This is not an extreme example, these are cases that I am seeing day after day, of people who are working for less than minimum wage or who are being told that their employer cannot afford to pay their salary for the month. These are the public who we should be trying to get on our side, not alienating. Talking about our fees will not help our cause, the country is under austerity measures, the NHS is at breaking point and everyday people are being made redundant or told that they need to move from their home as they have a spare room. We are not the only ones who are suffering, and we should try to connect with those who are suffering, after all for many of us they are our clients, whether criminal, employment, housing or immigration.

It is my personal opinion that a strike will alienate the public, and will just give Chris Grayling more ammunition to throw at the criminal profession. I can just see the headlines of articles in the Daily Mail and the Telegraph about how criminal defendants are having to languish in jail, awaiting trial as their greedy lawyers are striking!

Hence, for my part I will not be striking, nor will I be telling anyone else what to do, or criticising them for their decision. The criminal professions joined together like never before to fight the first MOJ consultation, it will be such a shame to see that union fragment into a blame culture. That would play right into the MOJ’s hands. We should be united in making sure that we reply to the 2nd Consultation, and in supporting each other..it is that which will make us a respected profession and also create an environment where, no matter what happens with the MOJ cuts we continue the support as much as we can.

The death penalty in the USA is more than just a right to life argument.

 I defend people facing the death penalty in the USA and elsewhere in the World and I work with people who are on Death Row in Florida. I don’t believe in the death penalty, but I respect the opinions of those who do.

This may seem to be a strange statement coming from someone who gives up time to work voluntarily on death penalty cases. However, as I spend around 6 months of the year working with people who are facing the death penalty I feel I am probably a lot more qualified to make such statements with regard to the death penalty in the USA than many abolitionists who oppose the principle but have never seen it in practice and have never had the opportunity to get to know those who are facing the death penalty.

I grew up in Europe. By the time I was born, the death penalty had been abolished in the UK and the European Union was coming close to taking an abolitionist stance. Hence, I grew up being told that to take a life was wrong, no matter under what circumstances that life was taken. In Countries where the death penalty is still in operation, the citizens have never grown up being educated that the death penalty is wrong. For them it is a fact of life, if you commit the most heinous of crimes you will be punished and that punishment may include death. Who am I to say that it is wrong for the citizens of Delaware (a State which I have never even visited) to recommend death in a murder case?  I receive a lot of communications from people who tell me that the Death Penalty is wrong and i should be doing more to campaign against it.

What I do believe very strongly is that everyone who is facing the death penalty should have the right to the best defence possible. This defence should include mitigation experts and lawyers, and they should work very hard to make sure that their client has the best possible chance of persuading the State or the Jury and the Judge, that the person in front of them should not be ordered to face the death penalty. This is about educating the State, Judge and Jury about the persons life, and perhaps find some answers which can explain why, if they have been found guilty, they did what they did. It is not finding excuses, it is not asking for sympathy for a poor upbringing or a bad lifestyle, but it is providing an explanation. I have worked on many cases where providing that explanation has been sufficient for the State to waive the death penalty (change the status of the case to a non-death case). This does not mean that the client is no longer facing a murder charge, but that they go to trial knowing that they face life, if convicted, not death. Merely telling people that the death penalty is wrong, will not persuade them that the death penalty should not be imposed, if they don’t agree with the death penalty they will not impose it anyway, and if they do agree with it, being preached at by an abolitionist is not going to change their view.

In the USA, many State Attorneys use the threat of the death penalty as a bargaining chip to force a client to plead guilty to murder on the basis that they will not face the death penalty when sentenced. This I believe to be wrong, it is a political game which is playing with people’s lives and is unfair. A person should have the right to make their own decision on whether they should plead guilty or not guilty, and the decision should not be enforced on them by pressure to keep high conviction rates for murder.

In my view education is the key. That is not to say that by educating a person they will automatically become a death penalty abolitionist or opposed to the death penalty, but it will allow them to make an informed decision. Looking at the pure economics of the death penalty, it is much more expensive to prosecute and defend a case where the potential punishment is death, than any other case. This is due to the amount of preparation work, including the mitigation, the fact that the jury selection will take longer, and most importantly the fact that there are many appeal processes that a person sentenced to death can activate. In addition, Death Row is a very expensive section of a prison, it requires more guards per 10 inmates than any other high security section, and each Death Row prisoner is placed in solitary confinement, so again there is the added cost of one prisoner to one cell.

In addition to the economics, there is the risk that there could have been a wrongful conviction. To say that murder convictions are never wrong, that the jury gets it right every time is a nonsense. Everyone makes mistakes in life, and the jury are being guided by police, prosecutors, forensic experts, defence lawyers, and judges, there is huge scope for a mistake to have been made by one of those parties and for that mistake to shape the jury’s decision. Once a person has been placed on Death Row and in solitary confinement, aware that at any stage they could be executed, the damage is done, both mentally and physically. Very few inmates are able to pull back from that and lead normal lives if they are later identified as being wrongfully convicted. But at least they may still have some semblance of life, whereas a mistake discovered after an execution can never be rectified.

Finally, in my experience many of the people I work with who are facing the death penalty are not necessarily what I would class as bad people. They may be innocent or guilty of the crime, and if guilty they should be punished for their crime, but for many the reason for the crime was circumstances outside of their control, or due to them not thinking about their actions. Mr X whose mother had him running drugs from the age of 10 to pay for her fix. The only kindness he received was from the drug dealer who, in return for him running drugs gave him a warm place to stay, pizza, and new sneakers and a coat. He grew up looking at this drug dealer as a father figure, and so when the dealer was gunned down in the street, X went to find the person who did this, and executed him. Don’t get me wrong, I don’t agree with either killing, but is this so far removed from the father who goes after the man who killed his daughter in a drink drive hit and run? In my experience the death penalty would never be mooted for the father of the drink drive victim.

Only through education can those who still have the power to impose the death penalty – the citizens of a state who vote on the Governor’s death penalty policy, the prosecutor who decides whether a case should be eligible for the death penalty, the defence lawyer who has to see the case not only from the client’s point of view but from the point of view of the victim’s family and friends and must be able to empathise with them, and also the jury who recommend life or death on a convicted defendant, and the judges who make the decision on the death penalty during sentencing and also those who hear the appeals of a person on death row – make an informed decision on whether the death penalty should remain in force. It is hoped in years to come that more States will abolish the death penalty, but until they do, preaching to them that they are wrong is not the answer, working with them is…

If you want to find out more about people who have been wrongfully convicted and placed on death row in the USA, watch these http://www.oneforten.com/films video short interviews.

BANNED!

A football banning order affects much more than just watching Premier or League football on a Saturday afternoon

With the new football season in full swing, fans who are banned from attending home and away games of their team are asking exactly how far their ban extends.

Most fans who are under a football banning order are aware that they can’t go to watch their own League team or England, either home or away, and that they need to hand in their passport to the police whenever England are travelling overseas. Some fans are also subject to handing in their passport when a Champions League match is being played overseas. But many Banned fans ask me whether they can attend any football matches? In general, my answer is that if it is anything more than watching their local pub team play on a Sunday morning, or their son’s school team, then probably, No, they cannot!

The law in this area is very unclear, and is open to a mix of interpretations. A Football Banning Order prohibits a fan from attending a ‘Regulated Football Match’, and the definition of ‘Regulated Football Match’ is an Association match in which one or both teams represent a club which is a member of the Football League, the FA Premier League, the Football Conference League, the League of Wales, or represents a country or territory.

The Under 21s Development League (or Premier League as it seems to have been renamed to suit those making money out of the League) is becoming increasingly popular with fans, especially as for many it has identity with their own Club, is played in the same stadium and is a Cup competition. Unfortunately, the games, including the Cup qualifiers may be classed as Regulated Football Matches and fall under the ban. For the very reasons that many fans are taking an interest in the League, the bans will probably apply – the purpose of the ban is to prevent a fan from attending football stadiums and mixing with other home and away fans.

There is an argument that the ban not apply to teams which are not part of the Leagues mentioned above, and that if the Government intended to include all matches played, it would have said so in the legislation. Add to this the fact that previously the restrictions included all matches played at the home ground of a Club which is a member of one of these football leagues, but this was changed in 2004 to the above definition. In my view it could be argued that this change in definition means that the Government no longer intended for all games played in these grounds to be included. However, the problem faced by fans is that this will possibly be a legal argument that will not be accepted by a local magistrates court, and it is the local magistrates who will determine whether a Banned fan has breached their Football Banning Order. Clearly the other side of the argument which will be put forward by the State is that the Under 21 team has the same name as the Club and so ‘represents the Club’. It seems that the UK Football Policing Unit do not have the answer either, and football intelligence officers I have spoken to are also unclear as to whether these Under 21 games fall within the ambit of a football banning order.

Hence there is no easy answer to this question. A fan who wants to take the risk may end up trying to persuade a magistrates court of a legal argument, and will probably end up having to appeal to the High Court for the legal definition to be determined. Such appeals are lengthy and expensive and (with the proposed reduction in legal aid) legal costs are unlikely to be covered by legal aid. On the flip side, fans should not be prevented from attending these Under 21 games on the basis that they fear they may be prosecuted as the law is unclear.

And as for Women’s football, since the Olympics the Women are receiving attention like never before, and from my own personal opinion this is long overdue..but many of the women’s games (and definitely the women’s FA Cup) may also fall within the term ‘Regulated Football Match’ in a football banning order and so I’m afraid attendance to watch the women will have to wait until the end of a ban, unless the fan wants to run the risk of prosecution for breaching the ban.

So how can a Banned fan watch football? This depends on the wording of the individual banning order. All banning orders prevent attendance at ‘Regulated Football Matches’, but some go further and prevent attendance at pubs and bars when the Banned fan’s team is playing either home or away, and some bans go so far as to restrict a fan’s liberty so that they cannot even go into their town when their team is playing either home or away.

It sounds like common sense, but a Banned fan should read the wording of their banning order very carefully to see what exactly they are prevented from doing. The Courts do not accept ‘I did not know that my ban prevented me from doing that’ as a reason for breaching a ban, and it is possible that a fan breaching their ban to end up with a prison sentence.

A Banned fan can apply to have their ban lifted after they have served two thirds of the ban. This means going back to court to argue that the fan is no longer at risk of causing future disorder. If the Banned fan has not breached their ban and has not been involved in non-football related disorder, it is often worth asking the court to remove the ban. But sadly, in the meantime, a banned fan may have to become an armchair fan!