Rulings galore, two right, one wrong.
The government has rightly lost its appeal against the decision that Learco Chindamo should not be deported to Italy upon the end of his sentence. In the ruling the judge makes clear that the Human Rights Act - widely blamed for the original decision - was only a minor consideration, and that his decision is based almost wholly on the 2006 EU immigration regulations. They state that someone can only be deported back to their country of origin if they pose a "genuine, present and sufficiently serious threat" to society. Additionally, the regulations place a restriction on the time spent in one country after which they cannot be deported back to another, the limit being 10 years. Chindamo came here when he was 5 or 6, and he's now 26, well over the limit.In reality, the government never had a chance of overturning the original ruling, and its attempt to do so was only window-dressing. You could argue that in doing so it raised the possibility the Chindamo would still be deported back to Italy, bringing even further misery upon Frances Lawrence when that hope was subsequently extinguished. This was a difficult case, and Mrs Lawrence has been treated shabbily, especially in the way she received the original news and wrongly had the impression the Chindamo would be deported, no questions asked. Chindamo's apparent recognition of his guilt and rehabilitation, as affirmed by both his prison governor and another prison worker, itself an incredibly rare occurence, ought to have swayed the decision in any case. He appears to be a rare success story of how prison can work - to deport him to somewhere where he cannot speak the language would have been to punish him twice.
More troubling, via John Hirst, is this apparent ruling reported in the Telegraph:
A serial sex offender from Sierra Leone has been allowed to stay in Britain after a judge ruled that deporting him would breach his human rights.The decision will be an embarrassment for Gordon Brown, who recently pledged to double the number of foreign criminals sent back to their native countries.
Mohammed Kendeh, 20, who has admitted indecently assaulting 11 women, was assessed by the Home Office as being at "high risk" of re-offending.
advertisementBut their attempt to deport him was overruled by an immigration judge last year.
The Home Office appealed the decision, but Mr Justice Hodge, president of the Asylum and Immigration Tribunal, has upheld Kendeh's right to stay in Britain.
Mr Justice Hodge, who is the husband of the minister Margaret Hodge, said that Article 8 of the Human Rights Act, which enshrines the "right to a family life", meant that the sex attacker could not be deported.
In this case the HRA does seem to have been the main factor. Despite what the Telegraph says, the only real comparison with the Chindamo case is that Kendeh was brought here at a young age and that he has very little (if any) in the way of family in the country he was to be deported to. Kendeh originates from Sierra Leone, not a European country, so the EU rules don't apply to him. The article doesn't note just what sort of family Kendeh actually has here that would mean a violation of Article 8 if he were to be deported, but it does seem perverse on this ground that the ECHR, designed to protect family and private life is being used to justify the continuing stay in this country of someone imprisoned for a variety of offences, including sexual assault. It's also not as if Sierra Leone is especially dangerous: poor, certainly, but he's unlikely to be the victim of torture, violence or otherwise if he's deported. It could be argued, like with Chindamo, that his criminality is the responsibility of this country considering the age he was brought here at, but to my mind in this case that shouldn't be a barrier to his deportation. This is the sort of ruling that undermines the good that the HRA has both done and continues to do, and opens it to the attacks upon it that are often lacking in accuracy.
The other major ruling was on control orders. While the law lords didn't find the 16-hour curfew regime in its entirety to be incompatible with Article 5 of the HRA, it did rightly overturn one of the biggest abuses within it, that neither those under the orders nor their lawyers could even know what the vast majority of evidence against them was. This was the Kafkaesque centre of the scheme, which left some of those previously held without charge in Belmarsh not knowing why they've been detained and now under curfew for years.
Liberty, one of the parties to the case, has said that it won't spark celebrations, but the latter ruling ought to be enough to puncture the last remaining justification for the scheme. The refusal to make wiretap evidence admissible, some of which makes up the cases against those held under the orders will now look laughable when the defence and the accused themselves will have access to the evidence against them. Those against control orders have always argued that they neither provide adequate security, as those who had absconded while on them have shown, while also being substantially illiberal, leaving those on them in unending limbo, unable either to prove their innocence or to have the evidence against them heard in open court, as the allegations are instead heard by a gathered "security" panel.
The refusal to prosecute the men under control orders has always been curious: is it because the evidence against them is so thin that the government will be embarrassed "ricin plot" style when the accused are acquitted, or is it because our security services are overly paranoid that their methods will be subsequently exposed? In either case, they are most certainly not strong enough arguments for the liberty to deprived from those accused, especially for the length of time it already has been. While it's unlikely that the government is suddenly going to see the light, the rug has now been pulled from under them, and the complete repeal of the control orders legislation in favour of prosecution or release is now ever more vital.
Labels: control orders, human rights act, Learco Chindamo, Mohammed Kendeh
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I suspect that the Kendeh case will be overturned - Article 8 contains the well-known get-out clause on the basic of 'public safety' or the 'prevention of disorder or crime', and he's going to need a very good lawyer to argue that he doesn't fall into one or more of those categories. When you look at it, it's surprising how many get outs there are in the ECHR.
The Chindamo case is different in almost every respect (EU, model prisoner, no long history of the same offence), and the Home Office lost because their original case - that persecution by the tabloids would drive him to crime - was patently ludicrous and infringed a 1978 European ruling that deportation should be considered solely on the basis of the defendant's likely behaviour, rather than the behaviour of the Sun's reptiles. The judge at the original tribunal was extremely careful with his law to leave the HO with no way out, which was duly upheld today.
The Telegraph's coverage is appalling, by the way.
Posted by
Tom |
Wednesday, October 31, 2007 11:51:00 pm
I hope you're right on the Kendeh case, although this was the appeal by the HO from the original tribunal decision. I'm unsure of whether they can appeal again.
Posted by
septicisle |
Thursday, November 01, 2007 12:59:00 am
I don't think the HofL went far enough with the control order case. I intend to blog an argument that the "hands of" approach was wrong and more a political as opposed to a legal decision.
Posted by
jailhouselawyer |
Thursday, November 01, 2007 1:22:00 pm
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