Category: News

Specially convened Court of Appeal considers criminal liability for offences committed by victims of trafficking

A specially convened Court of Appeal recently gave judgment in R v Joseph & Others [2017] EWCA Crim 36, which concerns the criminal liability of victims of trafficking who commit offences in the course of their exploitation. The Court was called upon to determined the interplay between the pre-existing law and the Modern Slavery Act 2015, the effect of the UK’s international obligations on the common law defence of duress and the relationship between the Crown Prosecution Service and the Competent Authority.

Although the Modern Slavery Act 2015 now clearly sets out the circumstances in which a criminal defence may arise, the appellants in this case did not fall within the scope of the Act because they had variously not raised the issue prior to their conviction or had been prosecuted prior to the enactment of the 2015 Act. However, they argued that in light of that Act, they should be placed in the same position as those who could avail themselves of the defence contained therein. The Appellants therefore proposed that the common law defence of duress be expanded so as to make it sufficiently broad to encompass the means of trafficking set out in the Palermo Protocol and the UN Convention.

The Court rejected this approach, holding that there was no evidence of injustice sufficient to justify amending the parameters of the defence of duress in human trafficking cases.

The Court went on to confirm that when deciding whether a prosecution should proceed notwithstanding the direct causality of human trafficking/exploitation, the gravity of the offence committed was relevant but fact-sensitive in each case. Furthermore, it was reaffirmed that in the case of trafficked children who could demonstrate a direct link with their exploitation and offence, it was not necessary to demonstrate compulsion as it would be in the case of an adult.

Finally, the Court noted the lack of guidance on co-operation between the Competent Authorities and the CPS on dealing with claims after conviction and observed that the development of such guidance was desirable as the Court will always bear the findings of the Competent Authorities very much in mind.

Jessica Russell-Mitra acted for the second appellant.

Homelessness: council’s medical report relied on ‘straw man’ argument

Thomas v London Borough of Lambeth (HHJ Parfitt, County Court at Central London, 16th March 2017).

Nick Bano appeared for the successful appellant in a ‘priority need’ appeal against the London Borough of Lambeth.

The Appellant suffered from depression, which included suicidal thoughts and previous attempts at self-harm. The local authority had sought independent medical advice from NowMedical. As is not uncommon in homelessness cases NowMedical carried out a series of ‘desktop examinations’: they accepted that the Appellant suffered from depression for which she received standard treatment. They advised that: “there is nothing to suggest that she has required urgent psychiatric intervention and there is no evidence in this case of a severe or enduring underlying mental illness such that would significantly affect her condition or rational thought”.

HHJ Parfitt at the County Court at Central London quashed the decision. He noted that there was a sliding scale of depressive illnesses, and found that the ‘gist’ of the council’s decision was that the medical evidence did not establish that the Appellant was at the extreme end of that scale and that, accordingly, she is not vulnerable. He said (taken from counsel’s note):

“[The reports] go from a description of the medical evidence provided to say what her condition isn’t, and then to reach a conclusion that she is not vulnerable”.

[…]

“I consider that that approach is fundamentally flawed. And it’s flawed because it fails to address directly the Appellant’s medical evidence, which was specifically that: (a) she had depression; (b) that the consequences of her depression would be exacerbated by the threat of homelessness that she faced when she saw the doctor; and (c) that there would be further exacerbation if she was then made homeless. And there is no specific addressing of those facts by the reviewing officer or by NowMedical”.

The judge suggested during submissions that it was a ‘straw man’ argument to say that the Appellant was not vulnerable simply because there are more serious forms of depression from which she does not suffer.

Nick was instructed by the Brixton Advice Centre.

 

 

 

Plumber wins Court of Appeal fight on employment status

The Court of Appeal has rejected an appeal by Pimlico Plumbers concerning the employment status of a former worker.

Gary Smith worked for Pimlico Plumbers for six years until 2011. His contract was terminated when he asked to reduce his hours following a heart attack. Mr Smith took his case to the Employment Tribunal, which found he was a ‘worker’ and so was entitled to employment rights. Both the Employment Appeal Tribunal and Court of Appeal rejected Pimlico Plumbers’ appeal. In upholding the Employment Tribunal and Employment Appeal Tribunal’s decisions, the Master of the Rolls said:

“This case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that… there is a legal relationship of … independent contractor rather than employer and employee or worker.”

The Court of Appeal’s decision is expected to affect other workers in the so-called ‘gig economy’, such as delivery drivers.

David Stephenson acted for Mr Smith throughout his protracted legal battle.

A copy of this important judgment can be found on the judiciary website.

The case was reported by the BBC, ITV, Sky News and the Daily Mail, amongst others.

IBA War Crimes Conference

​On Saturday, 4th February 2017, Iain Edwards​ ​will be speaking at the annual conference presented by the International Bar Association’s War Crimes Committee at the Peace Palace in The Hague. He will focus on the subject of ‘Refugees as victims of slavery and other crimes’ as ​part of a discussion panel on the refugee crisis in international law.

Please click here for further details and to register.​

Iain Edwards assigned to the defence of an accused before the Mechanism for International Criminal Tribunals

Iain Edwards​ ​has been assigned by the Registrar ​of the MICT for the defence of Jovica Stanišić. The client ​was the head of the Serbian state security service within the Ministry of Internal Affairs from 1991 to 1998. He is jointly charged with his deputy with persecution, murder, deportation and forcible transfer as crimes against humanity, and murder as a war crime.

The client is being retried after he was acquitted on all counts before the International Criminal Tribunal for the former Yugoslavia. The ca​se is temporally and geographically broad in scope, involving alleged crimes committed against Croat, Bosnian Muslim, Bosnian Croat and other non-Serb civilian populations within large areas of Croatia and Bosnia and Herzegovina between 1991 and 1995. The trial is ​likely to start in the spring.

Live music event to support Evolve – Friday 20th January 2017

1MCB is very pleased to be supporting a fun packed music evening on Friday, 20th January 2017 to raise funds for Evolve – Foundation for International Legal Assistance.

Evolve’s aim is to improve access to justice; build capacity within the legal profession through education and training, and promote fairness, efficiency and integrity within the criminal justice system of Uganda.

The fundraiser will feature The Discount Orchestra, a seven piece speed-folk gypsy-punk band, and is taking place at The Water Rats, 328 Grays Inn Road, London, WC1X 8BZ (near King’s Cross station).

Tickets are £10 each and are available via EventBrite.

If you are able to support this charity or just enjoy a good Friday night music fest then we would very much love to see you there. 

Michael Sprack joins 1MCB

Chambers are delighted to announce that Michael Sprack has joined us as a tenant. During his third six Michael worked on Chambers’ crime, housing and employment teams.

His work so far has included securing an acquittal for a vulnerable defendant in a five-day firearms trial, making urgent High Court injunction applications, advice and representation in homelessness appeals and a number of final hearings in the employment tribunal.

Challenges for the defence before international criminal tribunals

Iain Edwards is speaking as part of a discussion panel on the role of the defence before international criminal tribunals. This is being hosted by the International Bar Association and the Special Tribunal for Lebanon on 24th November 2016 at King’s College London. Iain will be speaking about day-to-day challenges for the defence before international tribunals.

Please click here for further details and here to register.

The event is free to attend.

David Stephenson ranked in Chambers and Partners 2017

We are delighted to congratulate David Stephenson on his listing in Chambers and Partners for his employment and discrimination work. David was recognised as “an expert in all manner of discrimination claims with impressive knowledge across the wider aspects of employment law. He is instructed by both employers and senior executives, representing his clients in both tribunal and appellate cases.  He is excellent with clients and he goes above and beyond”.

Iain Edwards ranked as leading junior in Chambers and Partners 2017

 

Iain Edwards‘ international criminal work has been recognised by his listing in this year’s Chambers and Partners as one of a small handful of leading juniors in the area. His entry describes him as an “international criminal law specialist who is praised for his approach with clients and his strong advocacy. He has spent a considerable amount of time representing individuals accused of genocide and crimes against humanity before the ICTR, and continues to be instructed by Rwandans facing similar charges. He has also appeared before the Special Tribunal for Lebanon in The Hague.”

 

Iain’s strengths have been identifed as ​”ethical and very meticulous in his cross-examination,” and “he is an excellent barrister, who is very hard-working and shows great initiative”.

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