Criminal justice system is failing asylum seekers and refugees
The Gazette recently highlighted miscarriages of justice claims over legal advice failings. The Howard League for Penal Reform shares concerns raised, but feels greater responsibility falls to the Crown Prosecution Service and other responsible authorities.
Our legal team represents children and young people under 21 in relation to prison and public law and criminal appeals. We have recently been assisting a child, ‘Kerem’, who should never have been charged or prosecuted with the offence for which he subsequently served three months in custody before receiving an absolute discharge on appeal. Kerem was in the very fortunate position of having someone raise concerns about his treatment to the Howard League. We were able to work on a pro bono basis, and were fortunate to work with a barrister who was willing to attend court and provide extensive advice pro bono. However, Kerem’s case is by no means a one-off and there may be any number of children in similar positions who are not so lucky to have their cases brought to light.
Kerem arrived in the UK from Bulgaria, aged 15, having come for a holiday. He was arrested for an alleged theft although he was subsequently acquitted of all charges. He was bailed and his passport was confiscated. Kerem’s accommodation broke down and he spent the next month ‘sofa-surfing’ or sleeping on the streets.
Scared, with nowhere to live and unable to speak English, Kerem contacted his step-father who came to the UK and provided him with a false identity document. Kerem was then stopped by the police trying to travel back to Bulgaria. He was taken into custody and charged with an offence contrary to section 4 of the Identity Document Act 2010.
Kerem pleaded guilty in the youth court and was given a 10-month Detention and Training Order (DTO). This sentence was passed without a pre-sentence report (PSR) despite the court being made aware that it is mandatory for a PSR to be considered when a child is being sentenced. At appeal in the Crown court, the judge reduced Kerem’s DTO to eight months, but refused to consider the issue of the lack of PSR. Our legal team refused to accept this position and pushed for a further appeal. Nearly three months later, the matter was reheard and an absolute discharge awarded. Kerem was freed that day.
Throughout this case there has been a catalogue of failures by almost every authority involved. What is most concerning is that the CPS decided to prosecute this child at all. That it was in the public interest to prosecute this vulnerable 15-year-old trying to return home defies reason. Despite the absolute discharge, Kerem’s conviction stands.
The Howard League is concerned that the CPS is failing properly to apply the requisite tests when deciding whether to prosecute children. The failures in this case are also indicative of a disregard by the youth and crown courts of the need to understand the importance of PSRs, particularly for children in cases where a custodial sentence is being considered, and where they face immigration-related offences.
We have brought this case to the attention of the Youth Justice Board and CPS and await their response. We are also hoping to work with the Judicial College to ensure that the judiciary are properly and regularly advised on the requirements and considerations when sentencing children.
Additionally, the Howard League, in conjunction with Elder Rahimi solicitors (with funding from the Diana, Princess of Wales Memorial Fund) is investigating how young asylum seekers and refugees are treated in the criminal justice system. In particular, we are looking at the assumptions that are made and how these affect the way that young people are treated (or neglected) by these agencies.
If you know of a similar story, please let us know so that we can bring your concerns to the attention of those who are responsible and ensure the issues are addressed. Please call us on our free helpline on 0808 801 0308, Tuesday-Friday, 9am-5pm and Thursdays 5-7pm.
Tabitha Bushill is legal director at the Howard League for Penal Reform
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