Category: News

A delegation from the Sentencing Guidelines Committee of Uganda visited London from 20-24 May 2019. The sentencing benchmarking visit, headed by the Honourable Principal Judge Dr Yorokamu Bamwine, was funded by the Rule of Law Expertise UK (ROLE UK) and the Ugandan judiciary. The visit was organised by Evolve – Foundation for Legal Assistance (‘Evolve’), who also hosted the Committee during their time in the UK.

In 2013, it was determined that the judiciary of Uganda would be assisted by the creation of sentencing guidelines to promote fairness, transparency and consistency in the sentencing of criminal cases.  The Sentencing Guidelines Committee was therefore created in order to oversee the implementation of the guidelines and to make proposals for their reform.

Guidelines were produced for the High Court in 2013, and the Committee has since made proposals for the development of further sentencing guidelines for the magistrates’ courts.  The Committee has representation from each area of the criminal justice sector in Uganda. Its members are in the process of initiating potential sentencing reforms in furtherance of a sentencing policy for Uganda.

As part of the Committee’s important work on reform and development its members were invited to the United Kingdom by Evolve, a criminal justice development organisation that provides expert legal assistance and advice to a range of stakeholders in Uganda on a pro bono basis.  Evolve has worked with the Ugandan judiciary for several years in a number of capacity-building and reform activities in the criminal justice system.

This visit was another element of the partnership activities between Evolve and the Ugandan judiciary in the area of sentencing reform. The purpose of the visit was to examine the perspectives, experiences, and evidence of sentencing issues in the jurisdiction of England & Wales.  The visit was also designed to enable the Committee to share their experiences and learning with their counterparts in the UK, and give an opportunity to found durable lines of communication for mutual exploration, assistance and exchange in the future.

On the first day of the programme, the delegation attended the Supreme Court of the United Kingdom, where the delegation was able to discuss matters of sentencing with Lord Lloyd-Jones and Lord Reed.  The delegation heard about the experiences of the Privy Council, which acts as the final court of appeal for a number of Commonwealth nations, and also about the challenges raised by complex sentencing legislation in England & Wales.  They also heard from Professor David Ormerod QC – a deputy High Court judge and the Law Commissioner for criminal law since 2010. Professor Ormerod spoke about the new Sentencing Code which contains all of the law on sentencing procedure. The delegation was hosted at the Supreme Court for lunch, where they were also joined by Lord Briggs and Lord Kitchin.

After their meetings in the Supreme Court, the delegation met with senior officials from the UK’s Serious Fraud Office, where the operational relationships between investigators, prosecutors and the criminal justice system were considered.

On the second day the delegation attended the offices of the Solicitor-General for England & Wales.  The Solicitor-General of Uganda, Mr Francis Atoke, was one of the first to meet his newly appointed counterpart, Ms Lucy Frazer QC.  The meeting included a comparative review of the role of the Solicitor-General in overseeing consistent sentencing, and involvement in appeals against unduly lenient sentences. The delegation then met Mr Robert Neil MP, Chair of the Justice Select Committee who spoke about the Committee’s role in providing feedback on draft sentencing guidelines.  In the afternoon, the delegation attended the commercial courts to discuss the deepening of judicial international ties with the chair of the International Training Committee of the Judicial College, Mr Justice Knowles, and Dr Karen Brewer of the Commonwealth Magistrates’ and Judges’ Association.  The day concluded with a final meeting with representatives of the Sentencing Council of England & Wales to consider the methodology of researching and structuring and producing sentencing guidelines.

The third day began with a fascinating talk with leading international lawyer Edward Fitzgerald QC and Amanda Clift-Matthews of the Death Penalty Project.  The delegation was able to raise a range of topics arising from the case of Attorney General v Kigula and 417 others, in which the Supreme Court of Uganda held the mandatory death penalty to be unconstitutional.  The meeting included the shared experiences of a number of jurisdictions facing similar challenges to Uganda, when dealing with issues of sentencing the most serious criminal offences.  Discussion also covered the challenges of balancing the objectives of punishment, deterrence, public protection, reparation and rehabilitation.

The delegation were later hosted for lunch by the Commonwealth Secretariat, following a productive meeting with the new deputy secretary-general Dr Arjoon Suddhoo and other staff at the secretariat.  The lunch took place in at Gray’s Inn Hall.  The delegation then moved on to the Royal Courts of Justice, where they met with Ms Sheridan Greenland, the executive director of the Judicial College, to discuss training of judges in England and Wales.  Later in the afternoon, the delegation heard from senior members of the Sentencing Council of England & Wales, Mrs Justice Maura McGowan QC and Lord Justice Holroyde, regarding the effects of sentencing guidelines on judicial practices.  The group were then joined by Sir Brian Leveson, President of the Queen’s Bench Division, who related some of the experiences in England & Wales of procedural reform to improve efficiency in the justice system.

On the fourth day, the delegation returned to the Royal Courts of Justice to meet with representatives of the UK’s Department for International Development to discuss ways in which the UK might support the work of the Sentencing Committee and the development of the Ugandan justice system.  Ms Fuschia Allen then joined the delegation to discuss the operation of the National Probation Service in England & Wales, and the delegation were able to raise matters about the role of Probation in sentencing offenders.

In the afternoon, the delegation were hosted by the most senior criminal trial judges in England & Wales, at the Old Bailey.  The delegation were joined for lunch by the Old Bailey judges before observing proceedings in an inquest on a terrorism case, before watching some of the country’s most talented barristers conduct sentencing hearings before Her Honour Judge Munro.  It was a useful opportunity to see the sentencing guidelines in action, and assess the differences and similarities across the jurisdictions.

Following the mock hearings, Her Honour Judge Molyneux of the Old Bailey and Mr Martin Jones, chief executive of the Parole Board, conducted a helpful conference on the way in which those sentenced to very long terms of imprisonment are assessed for suitability for release, depending on whether they have reformed, developed an understanding of the causes of their offending, and no longer pose a threat to the public. On the evening of 23 May 2019, the Uganda High Commissioner to the UK, His Excellency Julius Moto, hosted a dinner for the delegation, the Evolve team and other guests at Uganda House, London.

On the final day, the delegation met with officials at the Ministry of Justice to discuss to sentencing policy.  The discussions included how data can be analysed to allow assessment of trends and rate of reoffending.  After this meeting, the delegation engaged with Max Hill QC, the Director of Public Prosecutions.  This was a valuable chance for the attendees to review the role of prosecutors in sentencing.

Lunch was hosted by the Advocacy Training Team of Middle Temple at Middle Temple Hall.  After consideration of training and mentoring lawyers to better assist judges in sentencing, the delegation were hosted at the First-Tier Tribunal (Immigration and Asylum Chamber) to meet with senior judges.  The discussions encompassed the range of legal issues and complexities that judges must contend with to ensure that there is always a fair hearing, and just results.

The visit was of great use to the delegation, and also to each of the representatives, officials and judges that had hosted the meetings in the UK.  Following the events, the Sentencing Committee of Uganda resolved to expedite its review of the current sentencing guidelines, and the completion of the guidelines for magistrates’ courts.  The Evolve team will assist in the facilitation of technical experts to assist in the revision process.  The committee seek to build capacity of a dedicated statistical unit, and data collection processes to support the Committee and the judiciary.  Evolve will conduct further research into the experiences of other jurisdictions, particularly on the issue of life sentences.  This would assist the committee’s proposed consultation with various stakeholders in the justice system on life sentencing options, with a view to clarifying the legislation in this area.  There is to be similar research and reviews of developing probation services, as well as consideration of a system of parole.  Finally, the committee will work with stakeholders to refine sentencing policy, taking into account efficiency, procedure and scope for future development.

Christina Warner and Ghazala Hussain published an article in this month’s Family Law Journal (Volume 49, June 2019), titled ‘Finding the ‘fact’ in fact-findings: the trouble with PD12J’. Fact-findings in the context of PD12J are intended to provide the means for courts to adjudicate on disputed allegations of domestic abuse in Children Act proceedings.  This is a vital mechanism in Children Act proceedings to safeguard children. In practice, there is a the lack of clarity in the court’s application of PD12J.  The article examined PD12J, its application and the impact this has on families involved in Children Act proceedings, particularly in the context of unnecessary delays that are caused by the inconsistent application of this provision.

Christina Warner has been shortlisted for The Times and The Sunday Times’ We Are The City Awards.  Her nomination is for a Rising Star in Law award for her work with the LGBT+ & Spanish-speaking communities. The awards celebrate and support the achievements of women across numerous industries.

Rajesh Rai has accepted an invitation to speak at the Immigration Law Practitioners’ Association‘s first wellbeing conference, to be held on 16th May 2019 to mark Mental Health Awareness Week.  The day will consist of a series of talks and workshops around the topics of mental health, vicarious trauma and wellbeing in the workplace.  Rajesh – who runs a retreat centre alongside his successful practice at the Bar – will be taking part in a panel discussion about self care and care for others in the workplace.

1MCB is proud to support this event as part of our commitment to the wellness of those who work in the law, which is often unforgiving in the demands it makes of its practitioners.

Salma Lalani has secured an acquittal following the trial of a defendant charged with two counts of aggravated burglary.

It was alleged that the defendant and three others, dressed in hoodies, masks and surgical gloves, broke into two occupied houses at night. At the first property a female occupant was held by the assailants at knifepoint, and at a neighbouring property the male occupant was attacked and injured with a screwdriver and secateurs. Blood identifying the defendant was found on an inside door pane used to gain access to the property and on the handle of the screwdriver.

The defendant denied any involvement and said that he had been attacked shortly before the incidents by a group of males. There were complex issues of identification and expert forensic evidence.

1MCB Chambers is delighted to announce that Anna Watterson has been appointed as a fee-paid tribunal judge.

Anna will sit in the Social Entitlement Chamber, a tribunal which hears, amongst other things, social security and child support appeals.

Christina Warner will be giving a keynote speech to a national LGBT+ domestic abuse conference on Thursday 9 May 2019.

Hosted by LGBT+ domestic abuse charity GALOP, Recognise & Respond: Strengthening advocacy for LGBT+ survivors of domestic abuse will discuss issues surrounding LGBT+ people’s experiences of domestic abuse, additional barriers this group faces in access to services and gain knowledge on strategies in tackling these barriers.

Further details of the event can be found here.

1MCB Chambers is delighted to announce that Tanya Murshed has been appointed as a fee-paid tribunal judge.

Tanya will sit in the First-tier Tribunal (Immigration and Asylum Chamber). She will continue to be available to accept instructions.

In Adesotu v Lewisham [2019] EW Misc 3 (CC) the County Court considered a novel point of homelessness law: whether, in statutory homelessness appeals, the County Court has jurisdiction to entertain allegations of unlawful discrimination.

The Appellant claimed that the local authority had discriminated against her during the homelessness process.  Lewisham had made a final offer of accommodation and – despite the Appellant having notified the housing officers of her ill-health, and that it prevented her from moving from her temporary accommodation – they told the Appellant that she should move to the new accommodation within a few days or their duty to house her would be discharged.  The Appellant was equivocal about whether she would accept the offer, but did not move in within the timeframe required.  The local authority decided that the Appellant had refused the offer and that the homelessness duty was therefore discharged, and that decision was upheld on review.

The Appellant issued a statutory appeal, alleging (among other things) that the council’s treatment of her had amounted to indirect discrimination and discrimination arising from disability, in breach of sections 19 and 15 of the Equality Act 2010.

Initially, the local authority did not dispute that the County Court has jurisdiction to entertain the discrimination grounds and filed evidence in response.  However, on the morning of the appeal, the borough changed its position and applied to strike out the discrimination grounds.

In a reserved judgment, HHJ Luba QC noted that there is a tension in the earlier authorities binding on the County Court.  He struck out the discrimination grounds but granted permission to appeal.

Nick Bano was instructed by Morrison Spowart solicitors for the Appellant.

The United Nations’ Working Group on Arbitrary Detention has declared as unlawful Bahrain’s detention of three relatives of the director of the Bahrain Institute for Rights and Democracy (BIRD). Ariane Adam and Vyaj Lovejoy, assisted by Alex Bennie, drafted the submissions to the Working Group for BIRD and Reprieve. In its decision the Working Group confirmed it was “persuaded [they] were deprived of their liberty, interrogated and prosecuted for their family ties with Sayed Ahmed Alwadaei, and that these were acts of reprisals.” The Working Group has called for their immediate release and an enforceable right to compensation and other reparations.

The decision has been reported here and here.

Spahiu, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 2604 (28th November 2018)

This case provides important guidance from the Court of Appeal on amending grounds for judicial review in the Upper Tribunal.  The then President of the Upper Tribunal, McCloskey J, had reversed a decision of UTJ Chalkley, refusing Mr Spahiu permission to amend his grounds for judicial review.  The Secretary of State appealed.  Three points in particular are noteworthy.

Firstly, the Court held that grounds for judicial review can be amended, without the need for permission and without incurring any fee, up to the point where they are served on the Respondent.  Thereafter, it is necessary to apply for permission to amend and to pay a fee (paragraphs 25–27, 29, 35).

Secondly – and contrary to the submissions on behalf of the Secretary of State – the Court held that an applicant who has been refused permission to amend his grounds may apply to the Upper Tribunal to review that decision.  The refusal to amend was a case management direction/decision (it mattered not which term was used) pursuant to Rule 5 of the Upper Tribunal Procedure Rules and jurisdiction to review such a direction/decision was provided by Rule 6(5) of those Rules and section 10 of the Tribunals, Courts and Enforcement Act 2007 (paragraphs 46–52, 56).

Thirdly, as to the merits of the review allowing the amendment (which had challenged a further decision of the Secretary of State made after the issue of judicial review proceedings) the Court stated (paragraph 63)

 “In short there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as ‘rolling’ or ‘evolving’, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties.”

 There had been not error of law in this regard in the President allowing the amendment on the facts of the case (paragraph 64):

“In my view, this was a case in which the President was entitled to reach the view he did, and to adopt a measure of flexibility.  The challenge to the removal directions was based on the respondent’s Article 8 claim.  The challenge to the decision to reject his Article 8 claim (the subject of the amendments) was necessarily concerned with the very same claim. This is not a case about supplementary decisions and the like. The claim has always been founded on the same basis.  So the President was entitled to conclude that, on the particular facts of this case, fresh proceedings were not necessary such that the application for permission to amend should be granted. Other judges may have reached a different conclusion, but there was no error of law.”

Barnabas Lams, led by Hugh Southey QC, acted for Mr Spahiu.

Christina Warner was credited for her work with the LGBT+ and Spanish-speaking communities on 21st November 2018 at the UK Diversity Legal Awards.

The only individual nominee to be shortlisted in two categories – Lawyer of the Year and Diversity Champion – Christina was praised for her work in encouraging access to the family courts for those who form part of alternative family structures and for her voluntary work with domestic abuse charities. Additionally, Christina was recognised for her contribution to promoting better visibility of the communities and their needs on both a social and legal scale.

The awards celebrate the efforts of legal practitioners and academics in promoting access to justice as well as recognising diversity across the legal profession.