Archive

Law & Practice

female

Source: Road sign campaign against Female Genital Mutilation in Uganda by Amnon Shavit

-Nikita Beresford, (LLB Law, Newcastle University)

The first ever prosecutions for female genital mutilation (FGM) have been announced, 28 years after the offence was first specifically criminalised under Prohibition of Female Circumcision Act 1985. The act was replaced in 2003 with the Female Genital Mutilation Act without any prosecutions ever taking place. This decision is a positive step to combatting honour-based violence in Britain; it does not excuse the shocking record of past decades.

 

FGM is not a small-scale or trivial crime. The procedure can involve the full or partial excision of clitoris, labia minora or labia majora, and the subsequent sewing up of the vulva region, with only a small whole left for urine and menstrual blood. In the most extreme cases, women have to be cut open to allow for intercourse and childbirth, and are subsequently re-sewn. The physical risks include blood loss, shock, infection, urinary infections, abscesses and difficulties in passing menstrual blood, having intercourse, or giving birth. A 2007 study estimated that 23,000 girls resident in the UK under the age of 15 were at risk, while almost 66,000 women were already victims. More recent research indicates the number of at risk children could be much higher, more than double what was previously thought.

 

It is shameful that, given the number of potential victims, it is only now that the CPS has found a case in which it believes there is a reasonable chance of conviction. Offences of this nature are notoriously difficult to detect and investigate, with witnesses and victims unwilling to testify, and very few referrals being made to the police. But I share the sentiments of other bloggers that with so many instances of the crime, and the genital mutilation of young women itself being evidence of (at the very least) parental complicity, it is inconceivable that it has taken almost three decades to assemble enough evidence to go ahead with a prosecution. Hopefully the upcoming proceedings mark a watershed in public awareness and prosecutorial discretion, and in the future preventing and punishing FGM will be given the status it deserves.

 

The hearings of Dr Dharmasena, charged with committing an act of female genital mutilation, and Hasan Mohamed, who faces a charge of intentionally encouraging FGM, and a second charge of aiding, abetting, counselling or procuring an act of FGM, begin at Westminster Magistrates’ Court on April 15.

 

More information:

Forward UK – Key Issues – FGM

NHS Choice – Female Genital Mutilation

 

 

 


JS30825769-6472529

Image Source: http://www.gazettelive.co.uk/news/teesside-news/legal-aid-cuts-protesting-barristers-6472513

– Sophie Allinson (LLB Law, Newcastle University) s.allinson@ncl.ac.uk

Today our worst fears have been confirmed, another round of cuts, after three years of cuts, cuts and more cuts“.

Nicholas Lavender QC

 Uncertainty is a theme increasing in prominence throughout all practices at the Bar, but none more so than the Criminal Bar. Cuts to the criminal legal aid budget were confirmed yesterday, reducing the funding available by £220 million. Widespread opposition and strong condemnation has been voiced, with Nicola Hill, president of the London Criminal Courts Solicitors Association, damning the confirmation of the cuts as, “a shameful day in legal and criminal justice”. Such a measure of austerity will mean fewer people than ever before will qualify for legal representation, and worryingly, many will find themselves unable to afford access to justice. The closure of several high-profile chambers is indicative of the crisis facing the criminal bar. Barristers of the highest quality are struggling to fill their diaries. Many junior criminal barristers have made it plain that they cannot survive on their wages. Such a crisis begs the question, who could possibly still want to pursue a career as a criminal barrister?

It is true that cases will not vanish, there will always be crime. The law will not cease to operate simply because funding has been withdrawn. Representation, however, is in great danger of disappearing, as barristers seek to make ends meet in other fields of law. This raises extremely alarming questions about the possibility of miscarriages of justice and the upholding of democracy, as quality barristers are forced out. The legal profession has voiced their fury by holding a half-day demonstration. This is the first time barristers have completely withdrawn their labour in support of a cause, with a further strike planned. Those already trained within the profession are struggling to see a viable future for their career. Ministry of Justice figures show that criminal barristers have an average income of £56,000. However, Nigel Lithman QC, chairman of the Criminal Bar Association explains this is before all other costs have been deducted. Lithman argues the number of bankruptcies in the junior bar is increasing at an unheard of rate, with the majority struggling to meet the cost of living.

Junior barristers currently undertaking pupillages at criminal sets have reported annual incomes of no more than £24,000. To put this in perspective, this is equivalent to a basic cleaner’s salary and lower than entry level jobs in nursing, local government or the police. The amount of debt accrued in the years of university and graduate training outweigh the financial reward substantially. It is true that many are doing rewarding work which they are passionate about, yet the truth remains that these students will have financial obligations to meet. The old mantra of sticking with it to reap the eventual reward appears to have been wiped out. Hearings in the magistrates’ court are usually in the range of £50 – £80 and Crown Court work is increasingly scarce. The majority of those at the junior end are still saddled with student debt, combined with rising living costs, particularly on the South Eastern Circuit. The profession appears to no longer be economically viable.

It is true that in times of austerity, every publicly funded area must bear the brunt of cuts. Nevertheless, the cuts announced this week have been criticised as unprecedentedly harsh. The Ministry of Justice made few concessions, despite a sustained campaign emphasising the cut’s irreconcilability with the public interest. Consequently it is expected that skilled and experienced advocates will be pushed away from publicly-funded criminal work. Indeed some chambers have found themselves unable to continue operating. Tooks Chambers, having worked on landmark cases such as Hillsborough (although not as a criminal set), began dissolution in 2013, directly blaming legal aid cuts for their inability to continue.

What do these cuts mean for students? For those seeking a profession as a solely criminal practitioner, the outlook is decidedly bleak. Chamber sets specialising in criminal law rely overwhelmingly on cases funded by legal aid. The steady reduction in this source of income has left a large number of chambers economically vulnerable, and unable or unwilling to provide financial support to their pupils. For several sets, funding for pupils has been entirely withdrawn. The majority of those wishing to undertake the BPTC must now fund the absolute minimum £12,000 tuition fee entirely on their own, with no guarantee of a job upon completion of their training. If only a privileged minority can fund their course independently, surely the criminal bar is inaccessible to the majority of students who cannot justify this financial risk, especially without the guarantee of an income at the end.

However, attempts to support those who still seek a career at the Bar cannot be overlooked. The Inns of Court have pledged significant financial contributions in an effort to encourage chambers to continue offering pupillages in the short-term. The “pupillage matched funding scheme” will provide 50% of the fees offered to trainees by chambers. James Wakefield, director of the Council of the Inns of Court insists that the decreasing availability of opportunities for hopeful barristers will be tackled by the funding scheme. Of course, the introduction of this funding will prevent the profession from dominance by the financially privileged. On the face of it, those who cannot afford the onerous costs of the BPTC should not be deterred, as there will still be financial assistance available during training.

However, whilst the scheme may keep the opportunities for training open, what follows after that? Ultimately, with less paid work on offer for junior barristers, what good will a pupillage be? This has been acknowledged by the Inns, who have announced a review of the scheme in 2015.  Furthermore it has been stated funding may be withdrawn entirely if the scheme proves unworkable. Critics of the proposal, including Nicola Hill, have already pointed out that the result will be an abundance of qualified junior barristers, fighting for the few remaining cases available. Whilst such a scheme may be successful in ensuring students are not deterred from undertaking training, it will be unsuccessful in finding these students work when they need it.

Nevertheless, during such times of uncertainty, it can only be a good thing that the doors to the profession are being propped open for as long as possible, denying them the chance to slam shut infinitely. The economy is recovering, albeit is slowly and incrementally. Whilst it is unlikely that the Government will restore the legal aid budget in its entirety, alternative courses of action will develop over time. Chambers specialising in criminal law will adapt to survive. It is expected that many sets will branch out into other areas, pursuing cases in fraud, bribery and regulatory law to bring in stable fees. This will certainly reassure those who plan on becoming a criminal barrister, however it must be noted that the type of casework is likely to be less socially rewarding than it has been over previous years, as the focus is changed. Those who were once drawn to the criminal bar to pursue ideals such as ‘innocent until proven guilty’ will find themselves working towards substantially different mantras.

Ultimately though, it is argued that it would be naïve to ignore the fact that the Criminal Bar appears to be a sinking ship. With those already in the profession being compelled to make the choice between abandoning, or being forced to walk the plank, students who are yet to finalise their career choices would be well advised to stay away from the profession.  To those already at the criminal bar, the choice is clear-cut, leave voluntarily or wait to be forced out. Huge financial risk is unlikely to be outweighed, as the potential for reward is being increasingly reduced, with very little indication of an imminent return. There will always be crime, thus there will always be cases. But the availability of these cases, and the money gained from undertaking the enormous level of work demanded appears to render a choice to pursue a career as a criminal barrister as nonsensical. It is a saddening truth to realise that the criminal bar is no longer a realistic option for students with aspirations to become a barrister. With this said, it can only be hoped that as the economy commences its recovery, the legal sector may slowly begin its revival.

475px-Hinged_Handcuffs_Rear_Back_To_Back

-Ashleigh Hamidzadeh (LLB Law, Newcastle University) a.t.hamidzadeh@newcastle.ac.uk

Prison – population in the UK is around 83,151 (Ministry of Justice 2013) – has evolved since the 19th century into the most arduous form of punishment in the United Kingdom. The number of detained young offenders is 1,350 (Transforming Youth Custody – government response to the consultation, transforming-youth-custody-consultation-response 2014). What is the role of punishment? Deterrence? Incapacitation? Or rehabilitation? The Coalition Government is “Putting Education at the Heart of Detention.” So, this blog is putting youth rehabilitation at the heart of our attention.

Punishment today is a strategy of crime: Durkheim believed the role of punishment was to enforce the collective conscience as well as instil the importance of social solidarity. The method of doing so is, punishment as a deterrence. The punishment faced by an offender for committing a wrong doing discourages future offending. Deterrence in action: The Conservative Party Manifesto 1979 promised a “Short, Sharp, Shock” programme to youth offenders. Another approach is incapacitation, the policy of punishment to remove the offender from the capacity to offend once more.

How to control in a detention centre: Foucault, would argue that disciplinary power is the most dominant, this is when power can be held over both the body, and increasing the mind, predominantly through the use of surveillance. Foucault describes this, by using concept of the “Panopticon” (Foucault, 1995). The Panopticon was a style of watchtower in prisons, in which prison guards were able to view all prison cells, however, the prisoners were not aware of when this would occur. Resulting in the conformity of prisoner’s behaviour. Foucault describes this as “Self Surveillance”, which subsequently results in “Self Discipline”.

Punishment as an opportunity for rehabilitation? The enactment of the Crime and Disorder Act 1998, under section 41, established the Youth Justice Board (YJB). This body operates to reduce reoffending and provide support of the victims of crime, as well as assisting the Youth Justice System. Section 41 (5) (b) (iv) provides that the Youth Justice Board must take “the steps that might be taken to prevent offending by children and young persons” (Crime and Disorder Act 1998, s.41 (5) (b) (iv)). The then Home Secretary, Jack Straw MP, described the department as necessary in the operation of the “fractured and immature youth justice system” (Travis 2011).  The Youth Justice Board is still in operation today, with between “10 to 12 members, which are appointed by the Secretary of State.” (Crime and Disorder Act 1998, s.41 (3)). As of 2012 and 2013 the net expenditure of the Youth Justice Board was £336.9 million (Grimwood, Strickland, 2013).

In the United Kingdom today we have seven Young Offender Institutions, aimed at rehabilitating young offenders, aged between 18 – 21. However, with currently, 71% young offenders reoffending within 12 months of being released, there is substantial need for reform. ‘Her Majesty’s Inspectorate of Prisons’ (HMIP) in an annual report in 2011, stressed the need for all youth offenders to “be involved in activities that give them the habits, experience and training they need to get and hold down a job when they leave custody” (Allen 2014).

What are “Secure Colleges”?

The Legislation: Under the proposed Criminal Justice and Courts Bill, clause 17 grants the Secretary of State the competence to “the power to provide secure colleges in

England.” (Criminal Justice and Courts Bill Fact sheet) Neighbouring ‘Glen Parva Young Offenders Institution’, the first “Secure College” has been planned to be constructed by 2017, holding over 320 young offenders (Casciani 2014), aged between 12 to 17 years old. The primary attention of these detention units will be on the need for education. The need for educational assistance can be demonstrated when considering that 86% of young offenders, who are currently in Young Offender Institutions have, at one point, been excluded from their school. “Transforming Youth Custody – government response to the consultation”, illustrates the urgent need of education for young offenders, with “over half of 15–17 year olds in YOIs have the literacy and numeracy level expected of a 7–11 year old.”

“We need to make sure that time spent in custody is time well spent. We need to turn these young people into better citizens not better criminals…” (Travis 2011) Nick Clegg has described these “Secure Colleges” as necessary to teach discipline and future life skills.

A previous example of education being used as a catalyst deterring young people from crime can be shown in the American study of the ‘High Scope’. “The Perry Pre School” (Highscope) was a community programme aimed at crime reduction. The experiment took a group of economically disadvantaged African American children in Michigan, and taught an intellectual experimental programme, as well as visiting the families of the children. The experiment continued into adulthood, discovering that those children involved in the project had fewer lifetime arrests, as well as being in education and employment (Schweinhart L. J. 2003. “Benefits, Costs, and Explanation of the HighScope Perry Preschool Program” 2003).

However, the Standing Committee for Youth Justice, have been in much disagreement with the proposed reforms. Penelope Gibbs, the Chair of the Committee, argues that the principle target for change is not the education of youth offenders, but further social causes, and has been quoted as stating: “A more holistic therapeutic model is needed rather than a gimmicky repackaging of our current costly and broken approach to child custody”.

Similarly, The Labour Party’s Sadiq Khan (Shadow Justice Secretary), commented on the need for education, but added that this proposal was insufficient in itself: “Education is crucial in reforming criminals but building one new establishment in the future will do little to reduce the reoffending rate across the rest of the country.”

The aim of “Secure Colleges” is to strive towards greater educational attainment within detention facilities for young offenders, the Secretary of State for Justice, Chris Grayling has stated that “We want education with detention rather than detention with some education.”  (Sellgren 2014).

On the 24th of February, the House Commons passed the Second Reading of the Criminal Justice and Courts Bill. The implementation of “Secure Colleges” proposes a need for better education in the provisions of youth offender’s facilities. However, the budget for the reform has been set at less than £100,000. This is considerably lower than the current yearly spending on Youth Offender Institutions, which is approximately £178,000 (Casciani 2014). The future of the “Secure Colleges” will, for now, depend upon the Criminal Justice and Courts Bill Committee Stage reading.

 

The-11-judges-sworn-in-fo-001

Image Source: http://static.guim.co.uk/sys-images/Guardian/Pix/pixies/2009/10/1/1254436575766/The-11-judges-sworn-in-fo-001.jpg

– Michael Keightley (LLB Law, Newcastle University) m.keightley@hotmail.co.uk

First of all, it makes sense to start with some important statistics regarding judicial diversity in the last twelve years. Starting from April 2001 the percentage of women in the judiciary has increased from 14.1% to 24.3% by April 2013, with those of an ethnic minority in the judiciary increased from 1.9% in April 2001 to 4.8% in April 2013. This is a gradual increase over the past twelve years, but that is only a general average. Baroness Hale raises some more specific, and less positive, statistics: “only 26.6% of the upper tribunal judiciary are woman, though 11% are BME” and no BME or women are sitting as Court of Appeal judges, Heads of Division and there only one woman in the Supreme Court, which is Baroness Hale herself.

All of which begs the question: why is there such a lack of diversity in the judiciary? And does diversity even matter?

The lack of diversity is, obviously, a poor representation of the general population. Considering the judiciary are empowered to adjudicate upon and enforce constitutional principles, then they should both represent and uphold constitutional principles of diversity and equality. The duality between the representation of values and the upholding of values is crucial to the question of whether or not diversity in the judiciary really matters.

It is mere common sense that the judiciary should represent the constitutional principles they aim to enforce, or face the label of hypocrisy, with principles of equality and diversity being at the forefront when you consider the secular and diverse nature of the United Kingdom. However, what is more important than the face-value representation of equality and diversity is the enforcement of equality and diversity. For example, if there was a candidate for the position of a judge then merit would be the obvious primary influence upon the choice over gender or ethnicity. This is reflected in s.63 of the Constitutional Reform Act 2005, which states that selection must be based on merit and ‘good character’. However, considering the current lack of diversity in the judiciary, if two candidates were of equally ‘good character’ and one was a female of an ethnic minority and the other was a white male, it would be the constitutional duty of the selecting body to enforce the principles of diversity and give priority to the first candidate to promote judicial diversity. Sadly, the lines are not that clear-cut and the situation is simple in theory alone. But generally it is easy to conclude that even though both the representation and enforcement of equality and diversity are important, they are not of equal importance.

Although, this view is quite basic as it fails to consider further implications of a lack of judicial diversity and merely assumes that judicial diversity has no implications beyond that of the face-value representation in the courts. Keith Vaz, MP, argues the important point that “a more diverse judiciary would bring different perspectives to bear on the development of the law and to the concept of justice itself.” It would be nonsensical to ignore the fact that somebody’s social background can influence the development of the law; and that a diverse set of backgrounds is likely influence the development of the law in a more positive manner. It is important to recognise that generations of females and people from ethnic minorities may have “broken the glass ceiling, but to make this achievement worthwhile others have to follow and do better.” Both democracy and justice are perpetually evolving concepts, yet they will fail to develop at a satisfying rate if the judiciary that interprets and enforces the law does not do that to a standard that runs parallel to the standards the public expects. Thereby leading only to a serious risk of undermining public confidence in the courts if the judiciary is not diverse.

The problem itself needs to be traced back further than just to the selection process of the judiciary. There is a much more representative amount of both women and ethnic minorities graduating with degrees, with women often outweighing men in most universities. Not to mention, for law students, there are schemes offered by The Law Society offering various scholarships, the most relevant of which is the Diversity Access Scheme. This scheme helps provide financial assistance to those who have faced exceptional obstacles in the course of gaining a professional qualification and are wanting to fund their year doing the LPC or Bar. On the surface it appears that there is encouragement of diversity and the promotion of equality at a basic level. But somewhere in between university graduates and the judiciary members there is a significant dip in representation.

This leads to the conclusion of two broad theories. The first being that there is a lack of diversity within the judiciary because there are still structures such as the Old Boy’s Network that exist and consequently encourage the white, middle-class male figure to dominate the judiciary. The second, being the more positive theory, which is that the diverse nature of the judiciary is simply yet to fully develop as there have been developments in diversity; with 1.9% of the judiciary from an ethnic minority and 14.1% female in 2001, which has gradually increased to 4.2% and 22.6% respectively. There may be a simple answer for the lack of diversity and it is impossible to force such diversity to happen overnight.

This, by no means, an attempt to promote positive discrimination in order to improve the situation – which has actually been suggested as a strategy by Police Minister Damian Green to remedy the unrepresentative percentages in the police force (27.3% of police offices being female and 5% being from an ethnic minority) – such a consideration would undermine both the ideals of meritocracy and the genuine skill that the current members of the judiciary hold.

But when “an analysis of almost 13,000 case files found that the CPS was more likely to object to bail for male African Caribbeans (13.2%), compared with white men (9%)” then there is a genuine concern in the public over equal treatment; and this concern would likely see improvement if the judiciary that attempts to enforces such equality was more representative.

It is unclear whether there is a direct link with the enforcement of justice and the diversity of the judiciary, but what is and has always been clear, is that to not have (or not attempt to develop) a diverse and representative judiciary not only undermines public confidence, but undermines the equal justice that is being enforced. It is logically and obviously a constitutional issue when the public are not represented by the judicial bodies that are meant to assist them.

(Image Attribution:By Lonpicman (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons))

Hannah Harrison (LLB Law, Newcastle University) h.e.harrison@newcastle.ac.uk

Since his tenure as Director of Public Prosecutions ended on 1st November 2013, Keir Starmer has been leading an enquiry for the Labour Party about transforming victims’ rights in the criminal justice system. In a recent article for the Guardian, Starmer called for a Victims’ Law to protect vulnerable victims of sexual abuse and to support them through the invasive, distressing trial process. Although witness services exist to comfort victims throughout their time in court, Starmer suggests that change is needed to ensure victims feel safer and have more confidence in the criminal justice system.

Starmer evidences the need for change by highlighting the inability victims often feel to even report a crime in the first place. All of the ‘214 victims of recordable offences’ in Operation Yewtree, known as the Jimmy Saville case, reported the incidents following his death and when asked why there was a delay in making a statement ‘many cited a fear of not being believed or a feeling that the criminal justice system would be ineffective in prosecuting the offender’. Starmer states that the ‘crude’ police tests into checking witness credibility often discourage victims from making a statement. Even if a victim does have the courage to step forward, the focus by police and prosecutors, on whether the ‘victim was able to give a coherent and full account first time, whether the victim had returned to the perpetrator, and whether the victim had been affected by drink or drugs’ disheartens many who feel they are not being taken seriously. As Starmer indicates, ‘if the criteria for testing their credibility match the characteristics that make them vulnerable in the first place’ surely this is a fundamental flaw in the approach of criminal justice? We should be identifying victims’ vulnerabilities and supporting them and not discriminating them because of these things.

Furthermore, the adversarial system in court lacks support for victims, especially those of sexual abuse. The battle between prosecution and defence to extract all of the intimate and humiliating details from a witness is traumatising to them. Having to retell the worst event of their lives in excruciating detail to a room full of strangers, whilst facing the perpetrator, is highly distressing. Very recently, Tracy Shelvey fell to her death after being told that the man she accused of rape was acquitted. Officers reported that she was ‘angry and upset’ and was even visited at home, before her death, by ambulance and police staff after she called them in a highly distressed state. The Greater Manchester Police and Crime Commissioner, Tony Lloyd expressed a need ‘to learn from this tragedy and others that have come before’ as it ‘is abundantly clear is that victims and witnesses are not where they should be – at the heart of the criminal justice system’. He further highlighted that the issue of victim support was of grave concern and that it is crucial to constantly support victims from the initial reporting of the crime until after the trial has concluded. Starmer and Lloyd both agreed that a more radical review and an upheaval of the current system are needed.

Sadly, this is not the first case where a victim has been so deeply affected by a trial. The family of Francis Andrade are adamant that she was driven to suicide after she accused her former teacher of rape. Mrs Andrade took her own life whilst the trial was ongoing, mere days after she was cross-examined on events that had occurred when she was a teenager. Her son Oliver stated that being branded a liar and a fantasist during the trial seriously compromised her personal integrity, ‘more than she could bear’. It was reported that the judge had to ask Mr Brewer to avert his gaze from her after she felt too under pressure from his stares whilst in the witness box. Mrs Andrade’s husband told the court that she had become deeply depressed following her initial police interview and the fact that she died before a verdict was reached illustrates the intense pressure victims are under in the witness box. Tragically, another woman took her own life two years after alleging she had been raped by two soldiers. The inquest was told that Corporal Anne-Marie Ellement, a royal military police officer who was found hanging in her barracks, was left absolutely devastated by the decision not to prosecute the two soldiers she claimed had raped her while she was stationed in Germany.

A code of practice for victims was released in October 2013 but the death of Miss Shelvey since then, confirms that more must be done to help those in need. Although the code of practice is detailed and comprehensive in how victims can obtain support, it does little to address the need for mental health support, which often troubles victims of sexual abuse.

Starmer’s investigation is still ongoing and he is yet to release any details on his proposals for reform. Following the death of Miss Shelvey, the Ministry of Justice admitted that ‘more could be done’ to help vulnerable witnesses. It added that they are currently trialing a new way of ‘sparing vulnerable witnesses the trauma of appearing in court’ through pre-trial cross examination. Despite this, Tony Lloyd announced that he would be writing to the Home Secretary and the Justice Secretary to demand a review of the current support system for witnesses and alleged victims.

Giving evidence is a harrowing often brutal ordeal, especially for victims of violence or sexual abuse so what is needed is a focus on those deeply affected by crime. As Starmer identified, ‘this is a golden opportunity to recast the criminal justice system as a criminal justice service fit for victims’.