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The judicial review challenge was brought by a 33-year-old Vietnamese national who had been subjected to forced labour, including prostitution and cannabis production, in a number of countries, including Russia, Ukraine, France and the UK. Having been recognised by the Home Office as a victim of modern slavery, she was refused discretionary leave to remain while her asylum claim was being processed, meaning that she was subject to the so-called hostile environment underpinned by the Immigration Act 2014.
Linden J held that this position violated Article 14 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005, which provides that states must
issue a renewable residence permit to [modern slavery] victims…[if] the competent authority considers that their stay is necessary owing to their personal situation.
On a common-sense interpretation of the provision’s language and purpose, it was clear that human trafficking victims must be allowed to stay and access attendant benefits. The Home Office policy of denying people in the Claimant’s position recourse to public funds was incompatible with this reading.
As a result of the decision, thousands of recognised human trafficking victims seeking asylum in the UK are to be granted discretionary leave to remain en masse. If the Home Office decides to appeal it must lodge an application seeking permission to do so by 19 October.
This week saw the Government’s controversial Police, Crime, Sentencing and Courts Bill undergo its second reading in the House of Lords. The proposed legislation, which would broaden police powers, enable the extraction of more information from mobile phones and impose harsher sentences for assaults on emergency workers, has drawn strong criticism for its predicted discriminatory impact.
Two provisions have attracted particular concern. First, the introduction of Serious Violence Reduction Orders (SVROs), which would authorise the police to stop and search people on account of their previous offending history without requiring ‘reasonable grounds’ to do so. Such discretionary powers are predicted to have a disproportionate effect on black people, given that police figures demonstrate they are already nine times more likely to be stopped and searched than white people. In an open letter published on Monday, criminal justice organisation Liberty said that the law ‘effectively creates an individualised, suspicionless stop and search power, entirely untethered to a specific and objectively verifiable threat’ and risks ‘compound[ing] discrimination’.
Figures published by the Ministry of Justice showed that the backlog of crown court cases had risen to yet another record high: by 31 March this year, there were almost 60,000 outstanding cases, a rise of 45 per cent on the previous year. In the magistrates’ courts, that figure stood at 400,000, a rise of 21 per cent.
Waiting times have hiked accordingly: the average crown court case it now taking just under a year, 363 days, to be heard. Some trials are already being scheduled for 2023.
These latest figures follow the Ministry of Justice’s End-to-End Rape Review Report on Findings and Actions, covered on last week’s round-up, which revealed that processing times for rape complainants were particularly egregious, averaging around a thousand days between the commission of an offence and the conclusion of a trial.
Several MPs were quick to diagnose root causes of the criminal justice system’s dismal condition. Shadow justice secretary David Lammy complained that ‘the Conservatives are forcing victims of rape, domestic abuse and violent assault to wait months and years for justice if they get it at all’, blaming the compounded effect of ‘the government’s decade of court closures, combined with its incompetent response to the pandemic’. Liberal Democrat MP Wera Hobhouse also pointed to pre-coronavirus underfunding, warning that ‘ministers must not use Covid as an excuse for this backlog, or to undermine the fundamental right to trial by jury.’
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.
Home Secretary Priti Patel pledged a ‘fair but firm’ overhaul of the UK’s asylum system in the Commons on Thursday. The proposed measures aim to crack down on the criminal smuggling operations which helped 8,000 people cross the Channel by boat last year.
Under the Home Secretary’s proposals, asylum seekers would have their claims determined according to how they arrived in the UK. Those using ‘safe and legal resettlement routes’ directly from the countries they are fleeing, such as Syria and Iran, would obtain automatic permission to remain in the UK indefinitely. But anyone arriving with the aid of services offered by criminal smuggling gangs would only ever receive temporary permission to remain and would be regularly assessed for removal from the UK.
The Home Secretary declared that such a regime would deter prospective asylum seekers from using the EU countries in which they first arrive as springboards for reaching the UK, and encourage them to make claims there instead.
A number of legal developments put free speech under the spotlight this week.
First, media commentators disputed the significance of the Duchess of Sussex’s successful privacy claim against Associated Newspaper Limited, covered in last week’s round-up. A leader in The Times issued the grave warning that ‘Mr Justice Warby’s judgment creates a precedent that will have a chilling effect on the media,’ not least ‘given that what was at stake…were issues that affect society as whole’. Some media lawyers took a dim view of such alarm, suggesting there was little to be surprised at in Warby J’s carefully reasoned conclusion that no legitimate public interest was to be found in publishing the intimate contents of a daughter’s letter to her father.
Then came Education Secretary Gavin Williamson’s announcement of a proposed free speech law targeting universities, designed to reverse ‘the chilling effect on campuses of unacceptable silencing and censoring’. Its reception was mixed to say the least. The scheme would impose a statutory free speech duty on universities and student unions, enabling ‘no-platformed’ academics, students and visiting speakers to sue for compensation. Potential infringements would be investigated by a mandated ‘free speech champion’, empowered to recommend various forms of redress. While many academics welcomed the basic principles behind the proposal, others complained that it fomented “phantom fears” of a “cancel culture” crisis.
Last week’s round-up looked at the measures and messaging of the UK’s latest lockdown. This week we ask what it means for vulnerable children and victims of domestic abuse. Are sufficient legal safeguards in place?
For vulnerable children, it unfortunately seems not. On Wednesday, a Guardian investigation revealed that thousands of children were sent to unregulated care homes last year, while local authority provisions were stretched throughout many months of restrictions. These homes include supported accommodation facilities for over 16s, which are not subject to any inspections by regulators in England and Wales. The Children’s Commissioner for England Anne Longfield has warned that the children’s care system has been ‘left to slip deeper into crisis, seemingly unable to stop some of the most vulnerable children from falling through the gaps.’
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