Beltrami & Company Criminal Law & Glasgow Solicitors Blog

Amnesty International has recently been giving evidence on human trafficking to the Scottish Parliament's Equal Opportunities Committee, in which it raises concerns about the lack of prosecutions for human trafficking in Scotland.

Shabnum Mustapha, Programme Director for Amnesty in Scotland, said:

"There have been 150 convictions for trafficking offences in England and Wales, but only one successful prosecution in Scotland. Prosecutions for lesser offences, whilst potentially easier to prove, carry lesser punishments, and make it impossible to know the scale and nature of trafficking here. Whilst we welcome the Scottish Government's consideration of a statutory human trafficking criminal aggravation, there should be more efforts to pursue full prosecutions as in England and Wales.

"The Scottish Parliament’s Equal Opportunities Committee’s own report into Trafficking and Migration, published in 2010, recommended that a Scottish referral mechanism be set up which places the welfare of the potentially trafficked individual above all else.

“We were disappointed that this recommendation was not taken up and would urge the Scottish Government to lead the way in tackling this form of modern-day slavery and adopt the Committee’s recommendation. We need to ensure that traffickers are pursued vigorously and that it is the welfare of the victim which is the primary concern. We also need to ensure that individuals showing signs of being trafficked are identified early and given the support they need.”

The European Court of Human Rights has ruled that, in the case Austin and Others v. the United Kingdom, there had been no violation of Article 5 (right to liberty and security) of the European Convention on Human Rights.

The case concerned a complaint by a demonstrator and some passers-by that they were not allowed to exit a police cordon for almost seven hours during a protest against globalisation in London.

The applicants complained that they were deprived of their liberty without justification, in breach of Article 5 § 1. Their applications were lodged with the European Court of Human Rights during July 2009.

The Court notably found that the people within the cordon had not been deprived of their liberty within the meaning of the Convention. In particular, the police had imposed the cordon to isolate and contain a large crowd in dangerous and volatile conditions. This had been the least intrusive and most effective means to protect the public from violence. Although the police tried to start dispersing the crowd throughout the afternoon, they had been unable to do so as the danger had persisted.

Since Article 5 did not apply, the Court held – by 14 votes to three - that there had been no violation of that provision.

Notwithstanding the above finding, the Court emphasised the fundamental importance of freedom of expression and assembly in all democratic societies, and underlined that national authorities should not use measures of crowd control to stifle or discourage protest, but rather only when necessary to prevent serious injury or damage.

According to human rights organisation, Reprieve, the Government’s own assessment of its plans for secret courts has warned that they could cost an extra £11 million every year, and lead to a “higher risk of potential security breaches.”

The warnings are contained in an Impact Assessment of the Government’s plans to roll out secret proceedings across the civil justice system, buried on an obscure part of the Cabinet Office website – which also states that the plans may lead to “a reduction in confidence in court processes.”

The document was produced by the Government to assess its own policy, the Justice and Security Green Paper, which proposes extending Closed Material Procedures (CMPs) across the civil courts whenever ministers have concerns that “sensitive material might be involved.” Such a move would lead to a massive extension of secrecy in the British justice system, and make it much more difficult to hold the Government to account for a wide range of abuses, such as complicity in rendition and torture.

According to Reprieve, the document states that:
•The introduction of CMPs could have a net cost of as much as £11m each year, since “the savings from [the current system of Public Interest Immunity] are not judged to be significant enough to outweigh the costs of the CMPs over the next decade” (pp19, 27)
•Introduction of CMPs may lead to a “Higher risk of potential security breaches due to a larger number of individuals accessing sensitive information [and] any potential breaches may impose substantial costs to UK security.” (p12)
•The proposals may “[lead] to resentment or a reduction in confidence in court processes” (p2) “and unwillingness to participate in jury service” (p11).

Following the publication of the inspection report into the UK's Detained Fast Track (DFT) asylum procedures, the United Nations High Commissioner for Refugees (UNHCR) has identified a number of key concerns with how these procedures operate.

These concerns include:

Vulnerable asylum seekers are wrongly held in detention
UNHCR is of the view that safeguards to identify vulnerable and traumatised individuals are inadequate. A quarter of individuals who enter the DFT are later released, most of whom are referred to organisations caring for victims of torture. However, even among those who remain within the DFT, UNHCR has identified vulnerable people and applicants with complex cases which are not suitable for being decided quickly. This includes individuals who claim to be victims of rape or trafficking.

Deprivation of liberty
Although claims in the DFT are expected to be decided between seven and ten days, the Government’s current policy leaves open the possibility for detention to exceed this period and even, to be of unlimited duration. UNHCR considers that depriving an individual of their liberty for reasons of administrative convenience risks breaching international human rights principles.

There is insufficient time for accurate decision-making
Detention and the speed of the DFT affect the fairness of a procedure which determines whether or not a person will be protected or sent home. The short time frame means that both UKBA decision makers and applicants lack sufficient time to prepare for the asylum interview. The determination of asylum claims is a complex procedure which requires time and consideration on the part of the decision maker to gather evidence, including the information available on the situation in an applicant’s country, and to assess the credibility of the claim. Furthermore, asylum seekers who have had traumatic experiences and possible mental health issues may require time to establish trust and confidence to disclose their stories to the authorities.

The human rights group Liberty has launched a campaign, ‘For Their Eyes Only,’ against the Government’s Justice and Security Green Paper.

Liberty reports that the Green Paper contains proposals which would allow future ministers to shut out the press, public and bereaved families from any court case where it is considered a public hearing could ‘cause damage to the public interest’. This could include actions arising from complicity in torture, inquests into deaths in custody, police negligence, or compensation claims resulting from friendly fire.

The Government’s proposals would see Closed Material Procedures and Special Advocates brought more generally into the civil law, claims Liberty. Proceedings would be conducted without the involvement of the party bringing the claim, and secret evidence – never disclosed to the claimant, let alone public or press – would be used to defend serious allegations. The only people present would be the judge, the Government and Special Advocates – who are forced to try and represent claimants without ever being allowed to discuss evidence with them.

According to Liberty, the Government is also seeking to elevate the Security Services – and potentially other bodies – above the law in civil actions focusing on the wrongdoing of third parties where the UK is involved.

Justice Secretary Kenny MacAskill has welcomed the positive measures taken by Glasgow Airport police to address concerns about the use of Schedule 7 powers.

It follows his visit to see the police operation at the airport and the launch of a new community engagement group in the wake of public meetings about Schedule 7 last year.

Schedule 7 of the Terrorism Act 2000 gives police powers to stop, search and questions travellers at UK airports without reasonable suspicion that the person is engaged in terrorism.

Mr MacAskill said:

“I am pleased to see the police operation first hand and witness the important work being carried out by police at Glasgow Airport. They have been engaging with the local community to share information and I welcome the positive progress they have made working hard to reassure communities and build trust following public meetings about Schedule 7 powers last year.

“Concerns were raised about a lack of clear information about the powers and how they are used, and police have acted swiftly by reviewing the leaflets given to those who are stopped and by making sure information is more widely and easily available, both at the airports and in communities.

“It is important that powers to stop and question travellers must be used consistently, sensitively and appropriately. I am well aware of the sensitivities involved in the use of Schedule 7 powers. Where there are legitimate concerns and grievances in communities we need to understand them and work together to try to address them.

“Scotland is not immune from terrorism, so it is vital that our airports are effectively policed to preserve public order and ensure that any threats to security are identified and addressed. The police play a crucial role, having to balance a duty to tackle crime with the protection of individual civil liberties. The powers they use are necessary to assist in their challenging role. Officers on the ground are best placed to make individual judgments as to when those powers should be used. I believe our forces make a proportionate and necessary use of the powers available to them.”

The Scottish Human Rights Commission has welcomed the debate in the Scottish Parliament on Prison Visiting Committees.

The Scottish Human Rights Commission is the National Human Rights Institution for Scotland and is part of the National Preventative Mechanism (NPM) under the Optional Protocol to the Convention Against Torture (OPCAT). The UK ratified OPCAT in December 2003, the objective of which is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

The Commission welcomes the reference to OPCAT at Section 90 of the Police and Fire Reform (Scotland) Bill which provides for independent custody visiting but is concerned at the proposal to abolish prison visiting committees in favour of some form of advocacy service. The Commission welcomes the creation of a new advocacy service for prisons, but considers that this should run alongside the human rights protections that are currently provided by prison visiting committees.

While HMIP plays an important role in the inspection of prisons and coordinates the NPM it plays a very different role to prison visiting committees.

Over the last year, prison visiting committees have continued to monitor all 15 prisons and eight legalised police cells in Scotland. Visiting committee members have dealt with over 1,100 complaints from prisoners and undertaken almost 1,500 unannounced visits. In other parts of the UK, there are Independent Monitoring Boards which fulfil a similar function to prison visiting committees and which form part of the NPM.

The Commission supports the conclusions of the 2005 Review of prison visiting committees, that they should be re-established as Independent Monitoring Boards (IMBs). They should be independent and form part of the NPM to ensure that prisoners in Scotland receive the same level of protection as those in other parts of the UK.

The Commission welcomes the Scottish Government’s commitment to consult further on this issue to help ensure that Scotland is able to continue to improve the protection of human rights for all of the people in Scotland.

Representatives of the the Parliamentary Assembly of the 47-nation Council of Europe (PACE) and the European Parliament have urged national governments – notably the UK and France – not to stand in the way of the EU signing up to the European Convention on Human Rights.

Kerstin Lundgren (Sweden, ALDE), PACE rapporteur on the impact of the Lisbon Treaty on the Council of Europe, and Barbara Lochbihler MEP, Chair of the European Parliament Sub-Committee on Human Rights, have issued the following statement:

“EU accession to the European Convention on Human Rights will close a gaping hole in European human rights protection as, for the first time, the laws and actions of the EU itself will be subject to the same external scrutiny as those of 47 countries across Europe – including all of the EU member states.

“The Lisbon Treaty has significantly increased the scope for EU action in areas which directly or indirectly affect human rights. With this increased responsibility, it is only right that there should also be increased accountability.

“EU accession to the convention is also needed to fully ensure consistency in the work of the Strasbourg and Luxembourg courts. This is a vital first step towards creating a ‘common European space’ for human rights, and has the full backing of both the European Parliament and the Parliamentary Assembly of the Council of Europe.

“We are therefore deeply concerned that the accession process – which is a legal obligation for the EU under the Lisbon Treaty – is currently being sidetracked by political objections from the UK, and to a lesser extent France.

“We cannot risk this process being derailed, as failure to fully incorporate the EU could serve to weaken the existing European system for human rights protection which has been put in place by the Council of Europe over the last 60 years and is envied worldwide.

“Intense negotiations since June 2010 show that the complex technical and legal issues involved in this process can be resolved. What is needed now is clear and unequivocal political commitment on the part of all 27 EU member states.”

The Scottish Criminal Cases Review Commission (‘the Commission’) has made its first referral to the High Court in the wake of the Cadder ruling.
 
The case concerned is that of Ryan McCallum, who was convicted of rape on 19th May 2009, and later sentenced to five years’ imprisonment. The Commission has decided to refer the case to the High Court because it considers that, in light of the decision of the Supreme Court in Cadder v HMA, and that of the European Court of Human Rights in Taxquet v Belgium, Mr McCallum may not have had a fair trial.

The European Court of Human Rights (ECHR) has found that the use of hearsay evidence does not automatically prevent a fair trial.

Urgent measures are needed to remedy the “alarming" state of prisons across the EU, the European Parliament has said in a recent resolution. MEPs have called for action to protect prisoners' fundamental rights and minimum common standards for detention conditions in all EU countries.

Tomorrow, 10th December 2011, is Human Rights Day. The event is celebrated every year on 10th December - the birthday of the Universal Declaration of Human Rights, which was created 63 years ago.

Crime victims who are granted protection in one EU Member State will be able to get similar protection if they move to another, under new European Protection Order rules endorsed by the Civil Liberties and the Women's Rights Committees of the European Parliament. Protection would be available to, for instance, victims of gender violence, harassment, abduction, stalking or attempted murder.

The Scottish Human Rights Commission (the Commission) has made its submission to the United Nations Human Rights Council on the human rights record of the UK as part of the Universal Periodic Review (UPR) process.