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The Derek Bentley of the 21st Century

The case of Miller and Jackson made the headlines in the USA and Europe last week, following the US Supreme Court decision that juveniles sentenced to Life Without Parole for homicide offences should be entitled to a new sentencing hearing.  On first perusal this looks like a ground breaking decision of the US Supreme Court, but in reality it will do very little for most of the inmates who were sentenced to Life Without Parole while they were juveniles, other than provide many with false hope of release.

The circumstances of Kuntrell Jackson are very similar to those of Derek Bentley – all that separates them is a big pond and 60 years.  Kuntrell Jackson was 14 at the time of the homicide, he and two others decided to rob a video store.  En route to the store he realized that one of the others (Derek Shields) was carrying a firearm.  Kuntrell Jackson waited outside of the store while the other two went inside.  Derek Shields pointed the gun at the store attendant and asked her to give up the money. While the gun was still pointed at the attendant, Kuntrell Jackson entered the store, his version of what happened next is that he said to the others “I thought you all was playing..”  the State version of events is that he said to the attendant “we ain’t playing”.  Shields then shot and killed the attendant.

In most US States, felony murder attributes murder to all persons who had an intention to be involved in a felony and during the course of that felony a homicide occurred, regardless of whether the person actually killed or intended to kill.  The fact Kuntrell Jackson had planned to rob the video store, and during that robbery the attendant was killed by another was sufficient for transferred malice, and for him to be sentenced to Life Without Parole for homicide.

The Opinion of the  US Supreme Court in Jackson (and Miller) makes it clear that it has not given Jackson a get out of jail free card.  The court’s opinion is very prescriptive, and much more narrow that its previous decision (Graham) concerning Life Without Parole for non-homicide offenses.  The court has made it clear that Jackson’s case should be remanded, so that the court can determine Jackson’s intent with regard to the homicide,and reconsider the sentence.  The US Supreme Court even went so far as to indicate that if Jackson did have the intent for Shields to kill the store attendant, then Life Without Parole may still be an appropriate sentence.   Justices Breyer and Sotomayor went further and stated that ‘..this type of transferred malice is not sufficient to justify the intent to murder that could subject a juvenile to a sentence of life without parole…..The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who ‘kill or intend to kill’.  These Justices opinions are persuasive, but not binding, and in States where the courts were happy to rule that transferred malice is sufficient to lock a kid up for life, it is highly unlikely the courts will now look kindly on these persuasive views.

Hence, Jackson, and many others like him have another chance of putting their case across in the hope of some kind of reduction in sentence, at least they are getting chance of release at some stage in their life, a chance that Derek Bentley never received.

Miller and Jackson US Supreme Court Decision

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

More Concern that Criminal Lawyers may be failing migrants by providing poor advice says CCRC

More Concern that Criminal Lawyers may be failing migrants by providing poor advice

http://www.lawgazette.co.uk/news/hundreds-miscarriage-justice-claims-over-legal-advice-failings

“If I had known I had a defense to not being in possession of a passport, I would not have pleaded guilty”

Due to the complexities involved, and the fact the clients are often reluctant to assist their lawyers, immigration offences prosecuted by the CPS are an area which falls outside of the general knowledge of many criminal law practitioners.  It is essential that anyone advising those suspected of immigration offenses are aware of the law.  From police station representatives to those providing representation in court, a lack of knowledge of this complex area is resulting in some clients pleading guilty or being found guilty of offenses for which they have a defense.

In interviews with inmates at the prisons housing foreign nationals, the common comment is that they were not aware that a conviction could mean they were likely to be deported at the end of their sentence.

In the USA, a failure to advise a foreign national client of the possibility of being deported if they plead guilty to an offence is regularly classed as Ineffective Counsel, and has been the result of many successful appeals.  While it is not suggested that the Ineffective Counsel arguments are adopted in the courts in England and Wales, a better awareness of the offences and defences available is essential if the clients are going to be effectively represented.

  • The detainee without a passport may have been a victim of human trafficking.
  • The youth in the YOI may mistakenly have believed that as he has leave to remain he would not be deported at the end of his sentence for his involvement in the Riots

Take the first step to identifying the immigration offences and the defences available – come along to a free training session “Identifying Victims”, where Migrant Help Prison advisors will explain their role in assisting inmates facing deportation.

Alison Gurden of 1 Grays Inn Square chambers will talk about identifying victims, including the indicators of a human trafficking victim and how they differ from a person who has been smuggled into the UK.

Click here for the course schedule and the subject areas covered  ☞  identifying clients as victims schedule

Free Training (2CPD applied for) : but places are limited – RSVP to gurdena@btinternet.com or agurden@1gis.co.uk

  • 5th July 2012, Hotel Russell, Russell Sq, London WC1B  5BE (Russell Sq Underground). 6-8pm.  Introduction by David Malone, Head of Chambers 1 Grays Inn Square Chambers.
  • 12th July 2012, Canterbuy Christchurch University, Broadstairs campus. 3.30-5.50. Introduction by Bob Underwood, retired Police Officer and tutor of Policing Studies.

Open to anyone involved in the Criminal Justice System – e.g. police station reps, lawyers, law students, magistrates, judges, advice agencies, police officers, probation officers, prison officers.

Free Training Session – Are You Identifying Your Clients as Victims? 5th July 2012 – London. & 12 July 2012 – Canterbury Christchurch University

“If only I had identified them as victims of trafficking, I might have been able to do more to help them” – Neighbourhood PCSO, Kent.

In our daily lives we come across victims without even knowing it.   Are you able to identify if the person who comes to you as a client, detainee, inmate, service user is also a victim?  Are you aware that they may be entitled to additional protection due to their possible victim status?  Are you able to identify the signs of human trafficking, domestic abuse, rape, bullying/victimization at work?

  • Have you recognized that your client in the Youth Court may be subject to deportation if they plead guilty, even if they have leave to remain in the UK?
  • Can you understand why your homeless client has been living in the country for the past year rent free, but can no longer go back to their accommodation – perhaps they were a labour trafficked victim and the house that was provided to them by the traffickers has been raided by the Police – don’t expect them to tell you they were trafficked.
  • Are you able to identify that the defendant was a victim of male rape, and since that time his life has spiralled out of control as he lives in a drug induced haze?

This training session not only provides information on the indicators but also covers the fact that you will find victims outside of your usual line of work e.g a trafficking victim with an employment or housing complaint, a rape victim committing acts of violence in prison.

Come along to this training course to find out more about the tell tale signs, the benefits that are available, and the charitable organizations which can help, and hear the experiences of others during the discussion time.

Who Should Attend? Anyone Who Has An Interest in Learning More or Wants to Share their Experiences. This course is aimed at all those who may come in contact with potential victims, members of the legal profession, law enforcement, advice agencies, police station and prison visitors, health professionals, probation officers, prison officers, magistrates and judges.

Due to demand there are 2 sessions, London 5th July 2012, and Kent 12th July 2012.

Speakers:  

  1. Alison Gurden, Barrister (Door Tenant 1 Grays Inn Square Chambers) = Specialising in criminal justice issues http://www.alisongurden.com &  www.1gis.co.uk
  2. Migrant Help Prison Advice Workers = assisting prisoners facing deportation, in prisons throughout the South East of England.

5th July 2012 Facilitator: David Malone  – Head of Chambers, 1 Grays Inn Square Chambers.

12th July 2012 Facilitator: Bob Underwood – Retired Police Officer, Lecturer in Crime and Policing Studies, Canterbury Christchurch University, Kent.

5th July 2012 Venue: Hotel Russell, Russell Square, London, WC1B 5BE (Russell Sq Underground)   Time: 6-8pm

12th July 2012 Venue: Canterbury Christchurch University, Broadstairs Campus, Northwood Road, Broadstairs, Kent CT10 2WA http://www.canterbury.ac.uk/AboutUs/Findus/Broadstairs.aspx   Time: 3.30-5.30pm

Registration: Free, but places are limited.

RSVP: gurdena@btinternet.com or agurden@1gis.co.uk

2 CPD points applied for.