The Weekly Round-up: Criminal justice scandals and ‘prison-like’ hotels for victims of modern slavery

24 May 2021 by Hugo Murphy

In the news:

Failures of the criminal justice system were once again under the spotlight this week.

On Wednesday, business minister Paul Scully announced a statutory inquiry into the sub-postmaster scandal, following widespread outrage at one of the greatest miscarriages of justice un UK legal history. After the Court of Appeal quashed the convictions of 39 former sub-postmasters last month, hundreds more have been invited to appeal their own convictions for theft and fraudulent accounting, which may have been based on faulty evidence from the Post Office’s ‘Horizon’ digital accounting system. 

The full public inquiry may include an investigation of the role played by Post Office lawyers in possible failures to disclose important evidence discrediting the accuracy of the Horizon system. The Solicitors Regulation Authority had already confirmed last month that it was monitoring the case, after the judgment levelled criticism at a culture among the prosecution counsel of ‘seeking to avoid legal obligations when fulfilment of those obligations would be inconvenient and/or costly.’

The inquiry will be led by Sir Wyn Williams, President of Welsh Tribunals, and is expected to submit its findings in autumn 2022. 

Meanwhile, a stand-off emerged between the Home Secretary and an independent panel set up to investigate the murder of private investigator Daniel Morgan in 1987, for which no one has been convicted.

The special panel was established eight years ago in response to allegations that the killers were shielded by police corruption, in order to investigate ‘the incidence of connections between private investigators, police officers and journalists at the former News of the World and other parts of the media, and alleged corruption involved in the linkages between them.’ It was set to publish its findings today, only to be informed last week that the Home Secretary was intervening to review the paper’s contents before its release. The Home Secretary explained that this was necessary to ensure that the report complies with human rights and national security considerations. The panel complained that the intervention compromised its independence, which was central to the original agreement it had with the Home Office when first established in 2013.

Commons Leader Jacob Rees-Mogg confirmed in Parliament on Friday that the Home Secretary was yet to have received the report.

In other news:

• On Tuesday, the Home Office was ordered to remove a victim of torture and trafficking from a ‘prison-like’ hotel. Judge Coe QC heard the application for interim relief, in which it emerged that the victim was being held in accommodation surrounded by an 8ft wall, where he was subject to regular bag searches and security checks. The order is thought to be the first of its kind.

• Former chief crown prosecutor for Northwest England Nazir Afzal was appointed as the chairman of the Catholic Church’s new safeguarding body in England and Wales. The body, which was announced after the Independent Inquiry into Child Sex Abuse found that the Church received over 3,000 complaints of child sexual abuse between 1970 and 2015, will have powers to investigate and sanction clergy who fail to meet safeguarding standards. The appointment of Afzal, who was responsible for bringing sex traffickers in the Rochdale grooming gang scandal to justice, was welcomed by survivors of abuse who pushed for the body to be established.

• An investigation by the National Audit Office has found that the Home Office has failed to compensate victims of the Windrush scandal quickly enough. When the scheme was launched in March 2019, the government estimated that as many as 15,000 applicants might come forward, but only 633 people have received compensation to date. The critical report cites the fears of prospective applicants who feel anxious about submitting personal details to the Home Office, which was originally responsible for classifying them as immigration offenders.

In the courts:

• Brecani v R [2021] EWCA Crim 731 (19 May 2021): The Court of Appeal held that a ‘Conclusive Grounds Decision’ regarding an individual’s status as a victim of modern slavery made by the Single Competent Authority (a part of the Home Office tasked with making decisions related to immigration eligibility) is not admissible as expert evidence in a criminal trial. The appellant, who was charged as a 17-year-old for conspiracy to supply a class A drug, had sought to use the evidence when relying on section 45(4) of the Modern Slavery Act 2015 as a defence, namely that he did the ‘act as a direct consequence of [his] being, or having been, a victim of slavery or a victim of relevant exploitation’ and that ‘a reasonable person in the same situation…and having [his] relevant characteristics would do that act.’ Delivering the court’s unanimous judgment, Lord Burnett CJ held that decisions made by the Single Competent Authority were not admissible in criminal trials, since SCA case workers, despite their experience in making administrative decisions concerning human trafficking and modern slavery, have insufficient expertise in the field, and their reports do not comply with the expert evidence requirements set out in CrimPR 19.
• TT (Children) [2021] EWCA Civ 742 (20 May 2021): A mother’s appeal against the refusal of her application for the discharge of care orders in relation to three of her young children was dismissed. When it was discovered that the mother was continuing her relationship with the father of those children in breach of care orders and safety plans, after he had been found to have sexually abused another child, the local authority removed the children and subsequently refused the mother’s application to have those care orders discharged. Peter Jackson LJ in the Court of Appeal held that in upholding that refusal, the judge at first instance had made the correct legal approach to sections 1 and 39 of the Children Act 1989, reading them compatibly with the Article 8 rights of the parents and the children. The decision should therefore not be disturbed.

On the UKHRB:

• Anurag Deb explores Northern Ireland’s controversial legislative history regarding LGBT rights.
• In the first episode of Law Pod UK’s new family law series from 1COR Brighton, Clare Ciborowska and Richard Ager join Rosalind English to discuss the obligation on family court judges to conduct fact finding hearings when allegations of abuse arise.
• Samuel March covers the recent decision in R v Brecani [2021] in more detail.
• Rosalind English reports on the High Court ruling in YZ, R (on the application of) v Chief Constable of South Wales Police (Rev 1) [2021] EWHC 1060, where it was held that the retention of data about alleged rapists is lawful despite their acquittal in criminal proceedings.