Category: News

Members of 1 Mitre Court Buildings’ Criminal Team have been very busy recently, dealing with cases arising out of the August 2011 UK riots.

Caroline Gassman, Pamela Rose, Jemima Ivens, Parveen Judge, Satnam Bains, Tanya Murshed, Gwawr Thomas and Jacob Bindman have all been representing in various courts across London in these cases, which have been raising unusual and complex legal and practical issues.

For an example of a successful outcome for a defendant represented by Tanya Murshed, see here.

For other media coverage of the riots, see here and here.

For the Lord Chief Justice’s sentencing guidelines for riots cases, given in R v Blackshaw and Others [2011] EWCA Crim 2312, see here.

For further information on the sentences being handed down by the courts in riots cases, see here.

If you wish to instruct Chambers in a riot-related case, please contact our clerks on 020 7452 8900 or clerks@1mcb.com.

Rajesh Rai was invited by the Kurdish Human Rights Project to give a talk iin the European Parliament. The title of the talk was “Culture and linguistic rights in Education and mother tongue education in the Kurdish regions” and was given on the 11 October 2011.

The talk was based on a briefing paper of the same title dated July 2011, compiled by the KHRP, which made recommendations to Turkey, Iran, Syria and Iraq, civic society in Kurdish regions and international communities.

The talk dealt with international instruments which impose upon these states positive obligations in relation to protecting and promoting the mother tongue languages of Kurdish minorities, and states’ failures in protecting minority rights. This includes reservations by these states to important sections of the international instruments governing minority rights.

The talk was well attended and chaired by Jean Lambert MEP.

The report is available here.

The defence team for Jean Uwinkindi, a pastor currently held at the detention facility of the International Criminal Tribunal for Rwanda in Arusha, Tanzania, today (8 September 2011) filed its appeal brief against a first-instance Referral Chamber’s unprecedented – and highly controversial – decision to transfer his case to the High Court in Rwanda. Iain Edwards was appointed to Mr Uwinkindi’s defence very shortly after his arrest in Uganda in June 2010. The client is charged with genocide and extermination as a crime against humanity. The 39-page appeal brief advances 14 grounds of appeal and argues that Mr Uwinkindi would not receive a fair trial in Rwanda. The defence’s opposition to transfer is supported by international human rights organisations such as Amnesty International, Human Rights Watch, the International Association of Democratic Lawyers, and the International Criminal Defence Attorneys Association. No human rights organisation supports transfer. A decision on the appeal is expected before the end of the year.

The trial of Victoire Ingabire opened today (5 September 2011) in Kigali, Rwanda. Mrs Ingabire is represented by Iain Edwards along with a former president of the Rwandan Bar. She is the chairperson of a coalition of Rwandan opposition parties. She intended to stand as a candidate in last year’s presidential elections but was instead barred from registering, was arrested, and was charged with offences related to terrorism, creating an armed group with the aim of waging war, genocide ideology, sectarianism, and disseminating rumours aimed at inciting the public against the existing leadership. The trial will last several weeks.

The case has attracted a great deal of international media attention.

R v Malcolm [2011] EWCA Crim 2069, [2011] All ER (D) 4 (Sept)

The Court of Appeal today (1 September 2011) handed down its judgment in R v Malcolm, an appeal in which it was argued that the conviction was unsafe because of the way in which the trial judge had conducted proceedings.

The appeal was heard by a constitution comprising the Lord Chief Justice, Lord Judge, Lord Justice Hooper, and Mr Justice Blair. In a lengthy and important ruling, they upheld the principal complaints, and quashed the conviction:

The defendant had been arrested and charged with stealing a quantity of fixtures and fittings belonging to his former landlord. He provided a written statement in which he claimed that a female representative of the letting agent had authorised him to take some furniture as a security towards his deposit. The case was listed for trial in the Crown Court and the defendant was ordered to file a defence statement. On the day of the trial the recorder immediately noted the inadequacy of that statement, commenting that it was “not worth the paper that it was written on”.

He warned the defendant that a failure to provide a defence statement within the terms of the Criminal Procedure and Investigations Act 1996 left him open to adverse comments from both the Crown and himself. During the course of the trial, the recorder made a number of further criticisms of the defence statement. In light of what he perceived to be gaps in the evidence, the recorder directed the prosecution to call a witness from the letting agency. The witness was asked a series of questions by the recorder.

He subsequently ordered the attendance of the letting agent who had dealt with the defendant. The prosecution had not intended to call either witness. The defendant was convicted unanimously of the theft and sentenced to 21 months’ imprisonment.

On appeal, he submitted that the recorder had entered the arena and acted as an advocate and second prosecutor. Accordingly, he had denied him a fair trial by: (i) requiring the prosecutor, albeit in the absence of the jury, to call witnesses to fill what the recorder had seen as a gap in the prosecution’s case; and (ii) the manner in which he had dealt with the defence statement.

It was established law that the safety of a conviction did not merely depend upon the strength of the evidence which the jury had heard. It depended also on the observance of due process. Although the judge in a criminal trial had the power to call a witness, it was a power which had to be used sparingly and rarely exercised.

The role of the judge was to hold the ring impartially and to direct the jury on the law. The test was whether a fair minded and informed neutral observer would conclude in all the circumstances that there was a real possibility that the judge had been biased against the defendant (see paras 102-110).

In the instant case, the way in which the recorder had descended into the arena was inappropriate. The combined effect of his constant repetitious criticism of the inadequacies of the defence statement (when, having given the defence every opportunity to make good those deficiencies, he would have been entitled to make strong comments in his summing up) together with the directions he gave to the prosecution about witnesses who were to be called, would have created in the mind of the informed mutual observer the perception that there was a real possibility that the recorder had become biased against the defendant (see para 113).

The conviction was unsafe and would be quashed (see paras 114 and 121).

To read or download the full judgment see here and here.

To read the Law Society Gazette’s report see here.

The defendant was represented by Jemma Levinson, instructed by Eshaghian & Co.

To instruct Jemma, please contact our clerks on 020 7452 8900 or clerks@1mcb.com.

1MCB is delighted to announce that Gwawr Thomas joins us as a tenant, having previously practised from Chambers as a squatter following completion of pupillage at Tooks Chambers.

Between 14-16 March 2011 and 11-13 April 2011, Paul Richmond trained lawyers in Nizhny Novgorod, Russia and human rights defenders in Montenegro on the law and practice of monitoring criminal trials for compliance with international fair trial standards. The training workshops were organised by the International Commission of Jurists and the AIRE Centre respectively.

Click here for news coverage.

1 Mitre Court Buildings is delighted to welcome two new tenants.

Mohammed Ismail and Tanya Murshed join chambers upon successful completion of their pupillages.

Shuyeb Muquit was instructed on behalf of the Claimant in Jeffers v The Labour Party [2011] EWHC 529 (QB), challenging the control exercised by the Labour Party over the internal administration of one of its affiliate organisations, BAME Labour, of which the Claimant was Secretary.

For press coverage please click here.

For the full judgment click here.

Chambers are pleased to announce that Satnam Bains and Rajesh Rai have just returned from a historic Judicial Colloquium on international developments in equality and non discrimination law, held in New Delhi on the 29th and 30th of January 2011.

The event was jointly organised by the Human Rights Law Network based in India, the Equal Rights Trust based in the UK and the Bar Human Rights Committee of England and Wales. The event covered a broad range of issues including gender and sexual orientation, discrimination on the basis of caste, race, environmental tort litigation, forced marriages and security and terrorism law.
Satnam Bains was an invitee on behalf of the Human Rights Law Network with whom he works on human rights litigation in India, whilst Rajesh Rai was invited by the Bar Human Rights Committee with whom he has previously worked in India.
Other prominent speakers included Lord Walker of the Supreme Court of England and Wales, Lord Justice Sedley, Altamas Kabir Justice of the Supreme Court of India, Justice Ganguly of the Supreme Court of India, Chief Justice Deepak Mishra of the High Court in Delhi, Kate O’Regan of the Constitutional Court of South Africa, and Justice Elizebeth Palm of the European Court of Human Rights.

Tanya Murshed appeared in this case concerning a passenger who grabbed the steering wheel of a double decker bus, causing it to crash.

For press coverage click here.

ZH (Tanzania) v SSHD [2011] UKSC 4

The Supreme Court (Lord Hope, Lady Hale, Lord Brown, Lord Mance, Lord Kerr) today handed down its judgment in ZH (Tanzania) v SSHD.

Their decision is already being heralded as a landmark ruling, which will have far-reaching consequences for immigration (and other) decisions that affect children. It is clear that from now on the “best interests” of the child or children involved will have to be considered first, and that those best interests will only be displaced by powerful countervailing factors.

The case concerned the appeal of a Tanzanian woman against the Secretary of State’s decision that she be removed from the United Kingdom. She relied on the right to respect for her private and family life under Article 8 of the European Convention on Human Rights, in particular the effect of removal on her two children, who were British citizens by birth.

Baroness Hale gave the leading judgment, with which Lord Brown and Lord Mance both agreed.

The over-arching issue was the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this was a more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?

There is no power to remove or deport a person who is a United Kingdom citizen: see Immigration Act 1971, section 3(5) and (6). They have a right of abode in this country, which means that they are free to live in, and to come and go into and from the United Kingdom without let or hindrance: see 1971 Act, sections 1 and 2. The consistent stance of the Secretary of State is that UK citizens are not compulsorily removed from this country. However, if a non-citizen parent is compulsorily removed and agrees to take her children with her, the effect is that the children have little or no choice in the matter. There is no machinery for consulting them or giving independent consideration to their views.

The mother is a national of Tanzania who arrived in the UK in December 1995. She made three unsuccessful claims for asylum, one in her own identity and two in false identities. In 1997 she formed a relationship with a British citizen. They have two children, now aged 12 and 9, who are both British citizens and have lived here all their lives. The parents separated in 2005 but the father continues to see the children regularly. After the father’s diagnosis with HIV in 2007, the mother made further representations to the Secretary of State. These representations were accepted as a fresh claim but were rejected. The mother’s appeal was dismissed by the Asylum and Immigration Tribunal and by the Court of Appeal. The Court of Appeal upheld the tribunal’s finding that the children could reasonably be expected to follow their mother to Tanzania.

The “best interests of the child” broadly means the well-being of the child. A consideration of where these best interests lie will involve asking whether it is reasonable to expect the child to live in another country. An important part of discovering the best interests of the child is to discover the child’s own views (paras 29 and 34-37).

Although nationality is not a “trump card” it is of particular importance in assessing the best interests of any child. The children in this case are British not just through the “accident” of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country (paras 30-31).

The intrinsic importance of citizenship should not be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults (para 32).

In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. In those circumstances, the Secretary of State was clearly right to concede that there could only be one answer (para 33).

Lord Hope observed that the fact of British citizenship will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose the benefits and advantages of this citizenship for the rest of their childhood. The fact that the mother’s immigration status was precarious when the children were conceived cannot be held against the children in the assessment of whether their best interests are outweighed by the strength of any other considerations. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible (paras 41 and 44).

Lord Kerr stated that the fact that a child is a British citizen also has an independent value, freestanding of the debate in relation to best interests, and this must weigh in the balance in any decision that may affect where a child may live (paras 46-47).

Click here for the full judgment.

Click here and here for press articles on the case.

The Appellant was represented by Manjit S Gill QC and Benjamin Hawkin.

If you wish to enquire about this or other cases, please contact the clerks on               020 7452 8900        or clerks@1mcb.com