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Legal aid and divorce: Theresa May’s cackhanded crusade against Sharia courts

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The British Home Secretary Theresa May seems to want some sort of crackdown on the role of Sharia Councils – complaining in particular that their decisions in divorce matters are unfair to women. Yet her Government has virtually cut off all legal aid for divorce proceedings – with the result that many Muslim women will have little choice but to have their cases heard by Sharia Councils.

Sharia Councils (sometimes known as Sharia courts) are exactly the sort of bodies that the Government might think should be involved in divorce work. The Jewish Beth Din also arbitrates divorce cases, guided by halach, Jewish rabbinical law, and a recent legal case has affirmed that such arbitration will receive a measure of deference in the English and Welsh courts.

In abolishing legal aid for divorce and custody cases except in narrow circumstances, the Ministry of Justice said: “In cases like divorce, courts should more often be a last resort, not the first. Evidence shows that mediation is often more successful, cheaper and less acrimonious for all involved.” Yet, only now (and possibly only as a vote winning ploy) does the Government seem to have realised that family law cases come before Sharia Councils – for advice, mediation or something closer to binding arbitration – and the values of Sharia Councils aren’t necessarily those espoused by Tory ministers and do not meet modern standards regarding female equality. Yet women who might be dissatisfied with the results of of Sharia Council mediation or arbitration have been cut off from recourse to the courts by the new legal aid rules. May said in her speech against extremism announcing a review of Sharia Councils: Read the rest of this entry

GCHQ surveillance illegal – but suddenly it’s not

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So has GCHQ been found guilty of breaches in human rights law or not? You’d be right to be confused. The Investigatory Powers Tribunal (IPT) has issued a resumé of a judgment and news reports tended to take a negative line, saying things like “GCHQ unlawfully spied on British citizens“. The Guardian website started with “GCHQ mass internet surveillance was unlawful, court rules” later going with a more precise “UK-US surveillance was unlawful for seven years“.

Yet, on the face of it the IPT has given GCHQ a pretty clean bill of health in terms of its receipt of UK surveillance information from the National Security Agency (NSA). Up there at the top of the Tribunal’s release was this:

“Save in one possible (and to date hypothetical) respect … the current regime, both in relation to Prism and Upstream [US surveillance programmes] and to s.8(4), [of the Regulation of Investigatory Powers Act 2000 (RIPA)], when conducted in accordance with the requirements which we have considered, is lawful and human rights compliant.”

The Tribunal ruled the activities lawful now. But until now (or specifically until the IPT judgment in the Liberty v FCO case last December) they weren’t. What has made them legal now? Well, what made things unlawful previously was not, apparently, that GCHQ accessed (from US sources), downloaded and kept material from mass surveillance of UK emails, phone records and internet searches – but that it failed to tell us that it had accessed, downloaded and kept material from mass surveillance of emails, phone records and internet searches. It’s legal now, in part, thanks to the publicity surrounding this very judgment – from a Tribunal that actually sits in secret.

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Capita ordered to pay costs after failure to provide court interpreters

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A judge has ordered outsourcing group Capita to pay £13,000 in local authority costs after an adoption case had to be postponed because the company failed to provide interpreters. Sir James Munby, President of the Family Division condemned as a “truly lamentable state of affairs” Capita’s repeated failure to provide translators for a Roma couple from Slovakia to challenge the adoption of their two children.

The case exposes an apparent flaw in the Capita service based on its failure to put in place contracts with interpreters that will ensure they appear in courts when needed. It also exposes Capita to the risk of further cost orders against it in other cases, dealing a blow to the contract between its subsidiary, Applied Language Solutions Limited (ALS), and the Ministry of Justice.

At a previous hearing Munby P noted: “the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted”. Two interpreters who had accepted the work for 7 May 2014 later cancelled. ALS informed the court at 2pm on the day before the case. An outraged Munby said in the latest cost orders case (14 November 2014):

“This was done by an automatically generated email which included the words ‘We apologise for any inconvenience caused’ – a banal and formulaic statement hardly reflecting the fact that a failure to provide interpreters, particular in a case such as this, causes much more than ‘inconvenience’ to all concerned, not least to the anxious parents. The timing of the sending of this email was, I am told, in accordance with an agreed protocol. That may be, but, for reasons which will become apparent, it does not seem to me to affect Capita’s liability, nor does the fact, as I was told, that court staff have access, by way of a web portal, to the current status of any booking at all times after the booking has been made.”   Read the rest of this entry

Algerians win new round in human rights battle against deportation

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Six Algerians considered “a threat to the national security of the United Kingdom” have won a new round in a legal battle that has, in three cases, lasted nearly eight years to resist deportation on human rights grounds. The Case of BB & Others v Secretary of State for the Home Department considers how far poor treatment and physical conditions (rather than torture) in foreign detention centres lacking British standards may justify a human rights bar to deportation. The issue is about “the requisite minimum level of severity needed to breach Article 3″ (of the European Convention on Human Rights on torture and inhuman treatment).

An agreement is in place between the UK and Algeria that terrorism suspects will not be tortured or mistreated on their return. However, the Court of Appeal decided that a tribunal (SIAC) that found the Algerians could be deported had failed to give full consideration to whether their potential detention and interrogation for up to 12 days by military authorities in Algeria would itself constitute “inhuman treatment” under Article 3. 

The court also questioned whether there were adequate safeguards to verify whether the Algerian authorities were observing the assurances given to the the UK Government about treatment of deportees. The assurances included Algeria’s acceptance in the case of any deportee of “the right to respect, in any circumstances, for his human dignity”.

The Special Immigration Appeals Commission (SIAC) will now have to look at the case again and consider evidence that conditions at Antar barracks interrogation centre in Algiers, where the men would be held temporarily, are not acceptable. 

Read the rest of this entry

Court of Appeal upholds Keith Best’s right to keep house he squatted

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Builder Keith Best has won a Court of Appeal case allowing his ownership of a £400,000 house after he refurbished it and started squatting it in 2001 – even though he was squatting illegally after 2012.

Best had noticed the empty house in Church Road, Newbury Park, Ilford, in 1997 and decided to make it habitable, moving in in 2001. Around 2013 he applied to the Land Registry to have it registered in his name. The law says an occupier “in adverse possession” (ie squatting without permission of the owner or having established possession by other means, such as putting a fence around the property) can apply to the land registrar to place it in his name after 10 years.

But Best staked his claim after the criminalisation of residential squatting in 2012. The registrar argued that since Best was in illegal occupation after that time, his claim could not be registered. Ownership would not be transferred to him.

The Court of Appeal has now said the registrar was wrong. The criminalisation of squatting in Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO S.144) did not prevent a perfectly legal claim to a property under the 2002 Land Registration Act. Lord Justice Sales said:

“I consider that the true inference is that in enacting section 144 Parliament did not intend to produce any collateral effect upon the settled law of adverse possession in respect of either registered or unregistered land.” (Para 75)

Adverse possession is covered by Schedule 6 to the Land Registration Act 2002 which says: “A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.

A further two years is allowed while the registrar contacts the previously registered owner (“the proprietor of the estate to which the application relates,“) plus others with a potential interest to see if they object to the transfer to a new owner. “Possession” need not be by squatting but by an action that counts as possession. Best did a lot of work on the house over the years but was not always actually living there during his 10 years of adverse possession. Nevertheless he accrued the Schedule 6 right to make his application. The new ruling from the Court of Appeal confirms that the “adverse possession” (without permission but without objection or resistance by the owner) may include a period of time when occupation is unlawful under LASPO S.144. Read the rest of this entry

Question’s unanswered in the Daniel Gauntlett inquest

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Daniel Gauntlett, who froze to death on the step of an empty boarded-up bungalow, died in possession of a letter from a doctor calling on the authorities to find him accommodation as a person in priority need. Mr Gauntlett, aged 35, was suffering from a collapsed lung and was a heavy drinker, a coroner’s inquest heard.

There was also evidence that suggested Mr Gauntlett, who died during a freezing February night in 2013, had been arrested and evicted by police from a previous building. Witnesses said he had not been squatting in the building in Aylesford, Kent, where he died but had lived in the garden.

Campaigners have claimed that he was in effect a victim of  Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, which criminalised squatting in residential property. It had been suggested he “died as a result of obeying the law” because police told him not to squat the empty house.

It has been argued that Gauntlett’s human rights may have been breached either because the Government failed to put in place Article 2 European Convention (right to life) protections when it passed Section 144; or because the police or social services had failed to offer sufficient help to him.

However, the deputy coroner for Mid Kent, Kate Thomas, did not bring in a verdict under human rights “Middleton inquest” procedures, simply recording a verdict of “death a by natural causes exacerbated by self neglect”. No police witnesses were called to tell the court of any contact they had had with Gauntlett before he died or whether he had indeed been evicted from a squat or warned not to enter the bungalow.

Witness statements
Mr Gauntlett’s father, Donald, told the court the last time he had seen him, his son told him he had been arrested at another house, in London Street, Maidstone, and as a result had lost some of his clothes. His father gave him money to buy new ones. He said his son’s alcohol problems began when his younger brother died in a road traffic accident at the age of 18. Read the rest of this entry

Daniel Gauntlett hypothermia death verdict

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Note: A full report on this inquest is now in this post: Question’s unanswered in the Daniel Gauntlett inquest

A coroner has recorded a verdict of death by natural causes exacerbated by self neglect in the case of Daniel Gauntlett, a 35-year-old unemployed man who died on the step of an empty boarded up bungalow in Aylesford, Kent, in February 2013.

Campaigners have claimed that he was in effect a victim of  Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, which criminalised squatting in residential property. It had been suggested he “died as a result of obeying the law” because police told him not to squat the empty house.

It has been argued that Gauntlett’s human rights may have been breached either because the Government failed to put in place Article 2 European Convention (right to life) protections when it passed Section 144; or because the police or social services had failed to offer sufficient help to him.

However, the inquest made barely any mention of the squatting issue. Nor was there any call for an examination of Gauntlett’s Article 2 rights under a “Middleton inquest” procedure. The court was told that Gauntlett died from hypothermia on a bitterly cold winter night. Evidence was given of his chronic alcoholism which his father said began when his younger brother died in a road traffic accident at the age of 18.

The deputy coroner for Mid Kent, Kate Thomas, sitting on 10 December 2014, had documentary evidence of Gauntlett’s accident and emergency admissions before her. A local community warden said Gauntlett had refused help on a number of occasions. No evidence was offered regarding squatting or any police intervention to stop him squatting the house he died in front of.

Read a fuller report of the inquest here: Question’s unanswered in the Daniel Gauntlett inquest

Twitter: alrich0660

An earlier piece on the death of Daniel Gauntlett is here
More on the squatting law on Thinking Legally: How protection of property could crumble
And a piece also Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure
Also a piece on Ministry of Justice guidelines on Nearly Legal here.

 

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