Government’s back to work schemes ruled unlawful without rights to refuse

PoundlandReilly & Anor, R (On the Application of) [2013] EWHC Civ 66 – read judgment

Adam Wagner has also commented on this case in The Times (£) as well as on Newsnight (from the start)

The Court of Appeal has ruled that regulations under the Jobseekers Act 1995 were unlawful as not meeting the requirements of that statute.

This was an appeal against a decision by Foskett J that the regulations were lawful. The two appellants were unemployed and claiming the Jobseekers’s Allowance.  After refusing to participate in schemes under the Regulations in which they were required to work for no pay ( the Sector-Based Work Academy in Miss Reilly’s case and the Community Action Programme (CAP) in Mr Wilson’s), they were told that they risked losing their allowance.  Continue reading

UK not doing enough to combat human trafficking and domestic slavery

C.N. v. THE UNITED KINGDOM – 4239/08 – HEJUD [2012] ECHR 1911 - read judgment here.

The European Court of Human Rights recently held that the UK was in breach of Article 4 of the European Convention on Human Rights by failing to have specific legislation in place which criminalised domestic slavery. 

Thankfully Article 4 cases (involving slavery and forced labour) are rare in the UK. Indeed this is only the fifth post on this blog about Article 4, which perhaps shows just how few and far between they are, and the UK has a proud history of seeking to prevent slavery. Although British merchants and traders, to their great shame, played a major part in the trans-Atlantic slave trade throughout the 1600s and 1700s, Britain was then at the forefront of the abolition of the slave trade and slavery from 1807 onwards and the common law has always considered slavery to be abhorrent (as the famous case of ex parte Somersett in 1772 made clear).

Tragically, however, slavery has not been consigned to the history books. Across the world new forms of slavery are prevalent. The International Labour Organisation estimates that there are a minimum of 12.3 million people in forced labour worldwide, and one particular form of modern slavery – human trafficking –  is one of the fastest-growing forms of human rights abuse. The UK, as a major destination country for trafficking victims, is not immune from this trend.

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Extraordinary rendition, forced labour, and evidence obtained by torture – Antoine Buyse

Building on Abu Qatada

There are three cases, among the many decided by the Court in the past few weeks, which I would like to highlight. They deal with testimony potentially obtained through torture, forced labour and extraordinary rendition respectively. 

The first is the case of El Haski v. Belgium (available only in French). It deals with a terrorist suspect against whom evidence obtained in Morocco during legal proceedings there (following the 2003 Casablanca bombings) was used in court in Belgium. It was unclear whether such evidence was in fact obtained by means of torture. The Court held that it was sufficient for exclusion of such evidence from trial in an ECHR state party if a suspect could show that there was a “real risk” that such evidence had been obtained by treatment contrary to Article 3. The case builds on the recent Othman (Abu Qatada) v. the United Kingdom judgment, from January of this year. In this case, such a real risk existed. The refusal by Belgian courts to exclude the evidence thus led to a violation of the right to a fair trial (Article 6 ECHR).

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Autonomy and the role of the Official Solicitor – whose interests are really being represented?

R.P. and others v United Kingdom (9 October 2012) – read judgment

The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.

The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether

the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. Continue reading

Harsher sentences for modern day slavers

R v Khan [2010] EWCA Crim 2880 - Read judgment

The Court of Appeal has increased the sentences of two human traffickers from 3 to 4 years and upheld the 3 year sentence of a third trafficker (despite her mental health problems) for systematic and well-planned exploitation of trafficked restaurant workers.

The offenders, Shahnawaz Ali Khan, Raza Ali Khan and their mother Perveen Khan, were family restaurateurs in Harrogate. Over a period of four years they recruited nine men from the Middle East and the Indian subcontinent to work in the restaurant. All the workers entered the country legally on non-EEA work permits, after the offenders made assurances of good pay and working conditions to both the workers and the Home Office.

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When, and when not, to prosecute victims of human trafficking

R v M(L) and others [2010] EWCA Crim 2327; [2010] WLR(D) 266 – Read judgment

The Court of Appeal (Criminal Division) has provided further guidance to prosecutors on whether or not they should bring charges against victims of human trafficking who go on to commit crimes. In the same judgment, the Court considered the extent of the obligation on the police to refer such victims to specialist agencies.

The state has a number of duties to victims of human trafficking deriving from the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No 197).

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