Media By: Maria Roche


Failure to stop disability harassment is inhuman treatment, rules Strasbourg

26 September 2012 by

Attitudes changing, slowly

DORDEVIC v. CROATIA – 41526/10 – HEJUD [2012] ECHR 1640 – read judgment

The European Court of Human Rights has declared in Đorđević v Croatia that the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.

It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life.  The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.

This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.


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First they came for the journalists…

23 February 2012 by

News of the deaths of Sunday Times reporter Marie Colvin and French photographer Remi Ochlik and the serious injuries of photographer Paul Conroy and Edith Bouvier, a freelance journalist reporting for Le Figaro, from a mortar shell that hit the building in Homs, Syria that they were using as makeshift media centre has saddened and shocked reporters and readers. So does a sobering list of more than fifteen of their professional colleagues who have also died reporting the Arab Spring.  Worse still are reports that the journalists may have been deliberately targeted by the Syrian government forces.  It is a reminder that journalists are offered too little protection by international law.

It is clear from the many tributes to her that Ms Colvin was an extraordinary person:  a woman of verve, replete with humanity, she was fearless in the face of carefully assessed and weighed risk.  In 2001 after losing an eye in a grenade attack by a Sri Lankan government soldier whilst reporting on the Tamil Tigers, she wrote:

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Full internet ban for sex offenders ruled unlawful

12 August 2011 by

Regina v Smith & Others [2011] EWCA Crim 1772  Read Judgment

UPDATED NOVEMBER 2013 | In a detailed judgment, the Court of Appeal has emphasised the importance of a sentencing court considering whether making a Sexual Offences Prevention Order is necessary and, if so, tightly drafting its terms to be proportionate and not oppressive. 

The Court of Appeal (Criminal Division) also made clear that a total ban on internet use would always be disproportionate. It considered four cases in which the terms of the Sexual Offences Prevention Order  [‘SOPO’] were challenged by the Appellants, none of whom had been charged with offences involving physical sexual contact.

The powers of the Court in relation to SOPOs are contained in ss. 104 -113 of the Sexual Offences Act 2003 [‘SOA 2003’].   A SOPO contains specific prohibitions designed to protect the public from serious sexual harm and remains in effect for the period specified in the order.  The order prohibits the offender from doing anything contained in the order and accordingly they contain only restrictions, but no affirmative duties.   Breach of any of the restrictions is a criminal offence carrying up to five years’ imprisonment and a SOPO may be in place for many years.  As such, a SOPO could have a draconian effect on an offender for a substantial period of time.

Principles

When may a Court grant a SOPO?

The Court noted that whist a SOPO was a valuable tool in the control of sexual offending, as had been noted in R v R & C [2010] EWCA Crim 907, they were often too hastily and inadequately drafted and provided at a late stage in the sentencing process.    Whilst the SOPO offered a flexibility in drafting, the court warned that:

The flexibility of the order, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become unworkable.That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality.”

The Court reminded future sentencing courts that an SOPO may only be made under section 104(1) if the court is:

…satisfied that it is necessary to make such an order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.”

Serious sexual harm differs from sexual harm so a SOPO may not be used to prohibit unusual, or even socially unacceptable, sexual behaviour unless it is likely to lead to the commission of offences set out in Schedule 3 of SOA.  The risk of such serious sexual harm must real and not remote.

Further, clarity is important, not only for the offender but also for those who must deal with him in real life and those who must enforce the Order and to avoid the real risk of unintentional breach.

What must a Court consider when making a SOPO?

The Court reiterated that the three questions identified by the Court of Appeal in  R v Mortimer [2010] EWCA Crim 1303 must be addressed when making a SOPO:

  1. Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences ?
  2. If some order is necessary, are the terms proposed nevertheless oppressive?
  3. Overall are the terms proportionate?

Interaction with other sentencing regimes:

The Court also reminded sentencing courts that when considering the imposition of SOPOs,  a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. The statutory test of necessity is not met if a SOPO merely duplicates such a regime. A SOPO must not interfere with such a regime. The following regimes must be considered:

  1. The sex offender notification rules;
  2. Disqualification from working with children; and
  3. Licence on release from prison.

Additionally, the Court considered that the usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later.  The prevention of further offences should be left to the fixing of licence conditions as part of the indefinite sentence.

Further, it would not normally be a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by S.82 of SOA 2003.  It does not follow, however, that the duration of a SOPO ought generally to be the same as the duration of notification requirements. Although the SOPO must operate in tandem, notification requirements and the conditions of a SOPO are different. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them.  There is therefore no objection for an SOPO to extend beyond the notification requirements and it is also permissible in law for the SOPO to run for less than an indefinite period even when the notification requirements endure forever.

Extent of the SOPO:  Computer Use and Internet Access

The court considered the difficult question of limiting access to computer use in light of the “explosion of everyday internet use by a very large proportion of the public”.   The Court noted that a blanket ban on internet access was impermissible as:

It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment. Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent.”

The Court went on to consider the formula in  R v Hemsley [2010] EWCA Crim 225, which restricts internet use to “job search, study, work, lawful recreation and purchases”.  It considered that whilst such a formula has its attractions, it suffered from the same flaw, albeit less obviously, because it did not reflect modern internet usage or provide for future technological development:

Even today, the legitimate use of the internet extends beyond these spheres of activity. Such a provision in a SOPO would, it seems, prevent a defendant from looking up the weather forecast, from planning a journey by accessing a map, from reading the news, from sending the electricity board his meter reading, from conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web, at least unless a strained meaning is given to ‘lawful recreation’. The difficulties of defining the limits of that last expression seem to us another reason for avoiding this formulation. More, the speed of expansion of applications of the internet is such that it is simply impossible to predict what developments there will be within the foreseeable lifespan of a great many SOPOs, which would unexpectedly and unnecessarily, and therefore wrongly, be found to be prohibited.

Some courts have been attracted to a prohibition upon the possession of any computer or other device giving access to the internet without notification to the local police. Most defendants, like most people generally, will have some devices with internet access, so such a requirement woud be both onerous and add little of any value.

There is no need for the SOPO to invest the police with powers of forcible entry into private premises beyond their statutory powers.

The court considered that of all the formulas so far devised:

the one which seems to us most likely to be effective is the one requiring the preservation of readable internet history coupled with submission to inspection on request… if the defendant were to deny the officers sight of his computer, either in his home or by surrendering it to them, he would be in breach.

Where the risk is not simply of downloading pornography but consists of or includes the use of chatlines or similar networks to groom young people for sexual purposes, it may well be appropriate to include a prohibition on communicating via the internet with any young person known or believed to be under the age of 16 … it may be necessary to prohibit altogether the use of social networking sites or other forms of chatline or chatroom.”

Extent of the SOPO:  Personal Contact with Children

The Court considered that care must be taken in considering whether prohibitions on contact with children are “really necessary”.

The Court noted that any provision must be tailored to the necessity of preventing sexual offending causing serious harm to others.  The majority of such offences occur only when a child is under the age of 16 so, generally, a SOPO should only relate to contact with children under that age.  Only if there was a genuine risk of offences under ss 16-19 of SOA 2003where a defendant stands in a position of trust or family offences under ss 25 – 26 of SOA 2003, would prohibitions on contact with children under the age of 18 be justified.

In cases where it is “really necessary” to impose a prohibition on contact with children (of whichever age,  it is essential to include a saving for incidental contact such as is inherent in everyday life.

Further, if there was no risk that offences within a family may be committed then

it is both unnecessary and an infringement of the children’s entitlement to family life to impose restrictions which extend to them. Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order made in family proceedings for the very good reason that part of the family court process may, if it is justified, involve carefully supervised rehabilitation of parent and child”

SOPOs which prohibit the defendant from activities which are likely to bring him into contact with children must be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority under the Safeguarding Vulnerable Groups Act 2006.

Procedure:

Procedurally,  it is essential that there is a written draft of the SOPO that can be properly considered in advance of the sentencing hearing. The normal requirement should be that it is served on the court and on the defendant before such a hearing and the Court suggested not less than two clear days before but in any event not at the hearing.

Applying the principles

The Court went on to consider the application of these principles in respect of the four appellants.

In respect of Wayne Clarke, the Court substituted a new indefinite SOPO which removed the blanket ban in internet use, the notification requirements, which prohibited social contact with boys when his offences had been entirely against girls and removed the prohibition of touching underage children as such an act would, in any event, be an offence.

In respect of Bryan Hall, the restriction on living with ‘any person under the age of 18′ was moderated to ‘any female under the age of 18 unless with the express approval of Social Services for the area’; the restriction on any unsupervised contact with a person under the age of 18 was moderated to “any female under the age of 18″ such as is “inadvertent and not reasonably avoidable in the course of lawful daily life or with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of the Social Services for the area’.  The restriction of being in possession of a computer/i-phone or mobile without notifying the monitoring police was removed.

In respect of Steven Smith, the SOPO was quashed as he was given an indeterminate sentence for public protection.  Consequently,  those considering his case would remain responsible for the terms and conditions under which he lives, there is nothing useful to which a SOPO could add.

In respect of the 4th Appellant [UPDATE, January 2014 – his conviction was quashed in March 2013] , although the criminal activity for which he was convicted was “as about as low a level as it is possible to encounter in an offence for child pornography”,a SOPO was found to be necessary due to the appellant’s admitted strong sexual attraction to boys in the age range of 10 -15. The court admired the effort of the judge at first instance in attempting to render the internet provisions workable.  However, as that appellant’s life “revolved around the use of computers and the internet” the terms of the SOPO were too widely drawn and “an order requiring a readable history and submission to inspection will better protect against the risk”.

Comment

It is clear those drafting SOPOs in future will need to look very closely at the nature and circumstances of the offences with which the defendant is charged and convicted – for example, the gender of the victims or potential victims of the offender and the risk of progression from viewing offences to contact offences.  SOPOs will need to be tightly drafted after considerable thought.

Questions arise, however, regarding the Court’s rejection of the Hemsley formula.  It is not, for instance, clear why “checking the weather forecast … planning a journey by accessing a map … reading the news … sending the electricity board his meter reading … conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web” cannot amount to ‘lawful recreation‘ without  strained construction of the phrase.

It is difficult to see how, when recordable internet histories can be turned on and off for short periods of time using ‘private browsing’ facilities, the terms of the Court’s proposed term that “an order requiring a readable history” can be effectively policed.   The proposed terms do not seem to prevent an offender from using a device belonging to another person (or in an internet cafe), provided it has the capacity to retain and display an internet history.  Locating such a device would be a further barrier for any police investigation.  Additionally, although the SOPO made by the Court prevents the offender “deleting such history”, it is not clear that the offender would be in breach of the SOPO if another person deleted the history.

Although this was a comprehensive review by the Court, it may be that further consideration of the terms of SOPOs, particularly in regard to internet usage, becomes necessary.

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When deporting foreign criminals is in the public interest

10 June 2011 by

RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 – Read Judgment 

Further to our recent post on the deportation of foreign criminals, the matter has once again come to the attention of the Court of Appeal. This case determines how the First-tier Tribunal, the first court of call for challenges to threatened deportations, should consider and weigh the issue of deterrence when deciding whether to deport a single offender.

The court made some interesting statements about the “public interest” aspect of deporting foreign criminals, and how the logic of a deterrence system must work.


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Closing the escape hatch for foreign criminals?

25 May 2011 by

AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551  Read Judgment    

In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.  

The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.


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No quick fix for the child protection system

11 May 2011 by

The Department of Education today published the final report of Professor Eileen Munro into the child protection system in England. After extensive consultation, the report concludes that the social work profession needs to be freed from a compliance culture and stifling levels of central prescription in order to allow social workers to have more time to work with families and to restore the heart of the work.

Professor Munro was asked in June 2010 by the Secretary of State for Education, Michael Gove MP, to conduct an independent review to improve child protection.   The Parliamentary Under Secretary of State for Children & Families (Tim Loughton MP) stated that the fundamental review should pose the question:

What will help professionals to make the best judgments they can to protect vulnerable people?

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Child’s identity to remain a secret

24 March 2011 by

A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB)– read judgment

A High Court judge has ruled that a seven-year-old child with severe disabilities caused by medical negligence during his birth should be the subject of an order that prohibits their identification in any newspaper report.

The order was granted in the course of a hearing to approve the settlement between the child and the defendant hospital under Part 21.10 of the Civil Procedure Rules.  The judge held that there was a risk that the objective of such proceedings, namely to ensure that settlement money is properly looked after and wisely applied, would be defeated if the Claimant was identified.  Further, identification of the child would curtail his and his family’s right to respect for their private and family under Article 8 of the European Convention on Human Rights [‘ECHR’] and there was insufficient general public interest in identifying the child to justify that curtailment.

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Beware the poor lawyer: the legal aid reform responses

18 February 2011 by

The consultation on the Government’s proposed reforms of legal aid closed on Monday 14th February. The reforms amount to a substantial reduction in the scope of and eligibility for legal aid.  When opposition to reform of access to forests can force a Government U-turn, can opposition to reform of access to justice do the same?

In a recent interview with the Daily Telegraph,  Clarke was said to be sanguine about criticism of legal aid cuts:

Oddly enough, I’m not in as much difficulty as I thought.

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Unlawful mental health detention – who is to blame?

20 January 2011 by

TTM (By his Litigation Friend TM) v London Borough of Hackney, East London NHS Foundation Trust; Secretary of State for Health –  Read judgment

The Court of Appeal has ruled that the local authority, but not the detaining hospital, was liable to pay compensation to a person who had been unlawfully detained under Section 3 of the Mental Health Act  1983.  The case provides important guidance on the liability of mental health and medical professionals in the difficult area of detaining patients, as well as the ability to recover damages where a claimant is unlawfully detained.

The Court held that the patient’s detention had been unlawful from the start when the approved mental health professional [‘AMHP’] erred in whether the patient’s relative objected to admission.  The local authority responsible for the AMHP could not rely on the Section 139(1)of the Mental Health Act 1983 [‘the Act’] statutory protection from civil liability, which had to be read down by virtue of Section 3 of the Human Rights Act 1998 to give effect to the patient’s right to liberty under Article 5 of the ECHR.

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United Nations restores sexual orientation clause to extrajudicial killings resolution

21 December 2010 by

Updated | The reference to sexual orientation in a resolution on extrajudicial, summary and arbitrary executions has been restored. The General Assembly voted 93 in favour of the US proposal, with 55 countries voting against and 27 abstaining, with some 16 delegations taking the floor to explain their position.

As previously reported, for the first time since 1999 the resolution would not have expressly condemned such killings on the grounds of sexual orientation following an amendment by the African Group and the Organization of the Islamic Conference.

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Harsher sentences for modern day slavers

14 December 2010 by

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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Sexual orientation removed from UN resolution condemning executions

24 November 2010 by

The Social, Humanitarian and Cultural Affairs Commitee of the United Nations has narrowly voted to remove sexual orientation from a draft resolution against extrajudicial, summary or arbitrary executions.

In light of the guarantee of the right to life, liberty and security of person in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the resolution condemns all extrajudicial, summary or arbitrary executions and demands that all States take effective action to prevent, combat, investigate and eliminate such executions.

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Pre-trial detention after expiry of the custody limit does not breach right to liberty

7 October 2010 by

Kevin O’Dowd v UK (application no. 7390/07) [2010] ECHR 1324 (21 September 2010)Read judgment

The European Court of Human Rights has ruled that a man’s pre-trial detention did not breach his right to liberty. Mr O’Dowd, who had a previous conviction for rape, was denied bail despite the maximum custody time limit having expired.

Kevin O’Dowd was charged with rape, false imprisonment and indecent assault in early December 2001. He had a prior conviction for rape which brought him within the provisions of Section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) that bail should only be granted if there are exceptional circumstances justifying it.

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