Commons Sense 06 – the State of Innocence?

In July 2016, in her first address as Prime Minister, Theresa May stood on the steps of Downing Street and promised to address racial and social inequalities in Britain. “If you’re Black” she said “you’re treated more harshly by the criminal justice system than if you’re white.” She vowed to make Britain a country that “worked for everyone”.

Shortly afterwards, May extended plans, initially begun by David Cameron’s coalition government, to create a “hostile environment” for illegal immigrants to Britain. As part of that drive, some of the harshest immigration policies in British history were introduced, including the controversial “right to rent” scheme – which was blamed for a wave of discrimination in the housing sector against Black and minority ethnic groups, and whose legality is now being battled out in the Supreme Court. Such policies were also blamed for creating the Windrush scandal.

A lesser-known part of the hostile environment drive came into effect in November 2017, just a few months after Theresa May had lamented racial inequality in the justice system. The clause, which attracted almost no public or Parliamentary attention at the time, made it mandatory for criminal defendants to state their nationality in open court at the start of their case. The stated intention of this law, (breach of which could result in up to 51 weeks in prison) was to remove “foreign national offenders as quickly as possible”. The government had been successfully deporting people for years and, in any case, can only do so when someone is given a custodial sentence of a year or more. It was not clear why this additional requirement, that applied to everyone regardless of guilt or innocence, was necessary.

We had an inkling – from our experience in court and from talking to peers in the criminal justice system – that the nationality requirement was not as innocuous as it might, to some, have appeared. We set out to dive deeper and find out what impact it was having on the criminal justice system. In May 2020 we published our report The State of Innocence which found that – far from making Britain a country that “worked for everyone” – the policy was entrenching racial inequalities by undermining the perception of fairness in the justice system.  

Nationality and race may be distinct concepts but they are intrinsically bound up together. We found that 22% of defendants thought they were being asked for their race or ethnicity rather than their nationality. Almost 80% of the lawyers surveyed had their client provide the Court with their ethnicity and/or race instead of their nationality and almost 60% of those practitioners said this happened at least once a week.

It is impossible to know whether answers given by defendants had an impact on the outcome of their case – i.e. whether there was actual discrimination as a result of the policy – but it is clear that it introduced an element of doubt into the fairness of proceedings, particularly for those from Black and minority ethnic backgrounds. Our client Ravina (not her real name) revealed to us that “the question made me feel uncomfortable. Growing up in the UK I have faced a lot of discrimination in my life and that question just felt like a continuation of that.” Trust in the justice system is key and the nationality requirement eroded that trust further.

Thankfully, our research reached decision makers on the Criminal Procedure Rules. In August 2020, courts were advised to stop asking the nationality question and in February 20201 the Rules were finally changed to abolish the question being asked at the beginning of every case.

This is a good result, however we are only too aware of how much further the British justice system has to go. Few of the Lammy Report recommendations have been implemented and the situation has, according to Lammy, in fact deteriorated.

There is still too much fear of ‘immigrants’ and ‘foreigners’, we need to fight even harder to call out policies that impact on the fairness of the justice system towards Black and minority ethnic groups.

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Tom Walker

Tom is a researcher with a focus on the intersection between human rights, transparency and accountability, and environmental issues. He has worked with organisations ranging from Amnesty International and the International Committee of the Red Cross to grassroots organisations in Indonesia and Myanmar, helping them design strategies for using technology and data effectively in their work. Previously, he co-led research at The Engine Room, where he conducted the first global review of how technology is being used to increase access to justice. Before that, he worked as a journalist, political risk analyst and programme officer in an international electoral support NGO.

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Dan Hully

Dan qualified as a chartered accountant at PwC, where he helped setup a new service providing Finance Director support to startups.

Since then he’s been involved in everything from creating bicycle panniers to supporting VC backed startups. Dan is passionate about using technology to improve professional services and is the founder of Quantico, a new type of accounting firm for entrepreneurs.

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Jago Russell

Jago has been the Chief Executive of Fair Trials since September 2008. Before joining Fair Trials, he worked as a policy specialist at the human rights charity Liberty and worked as a Legal Specialist in the UK Parliament, assisting the Human Rights, Home Affairs and Constitutional Affairs Select Committees.

Jago is a qualified solicitor and has published and lectured widely on a range of criminal justice and human rights issues.

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Haleema Bashir

Haleema is a legal administrator at Commons and assists the firm’s solicitors with casework. 

Haleema holds a BA in English Language and Linguistics from King’s College London and a Graduate Diploma in Law from BPP Law School. She hopes to commence the Legal Practice Course alongside her work at Commons. 

Before joining Commons, Haleema volunteered with the Greater London Authority Employment Rights Hub as a legal translator and the Free Representation Unit as a tribunal case assistant. She has also worked with Depilex Smile Again Foundation, Edhi Foundation, and other charities in Pakistan aiming to provide aid to the underprivileged and victims of injustice.

 

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Anna Thomson

Anna is a researcher at Commons, focused on working with our clients to measure our social impact. Anna also works in co-production at the British Red Cross where she supports and advises teams looking to involve service users in designing, shaping and reviewing services.

Anna has a background in research, community engagement and campaigning. She has managed large-scale research projects as well as facilitated consultation events on behalf of local councils and evaluated conflict management programmes in prisons. At CrowdJustice, she worked with grassroots and professional campaigners to develop strategies to raise funds for legal cases through online crowdfunding. At Freedom from Torture, she supported refugees and asylum seekers who have survived torture to use creative writing in order to raise awareness of the asylum system in the UK and to campaign for survivors’ rights. Anna is interested in helping people to understand their rights and has previously volunteered at her local Citizens Advice.

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Amanda Crutchley

Amanda (she/her) is the Crisis Navigator at Commons, where she helps clients with a variety of practical, non-legal related needs. This will be achieved through holistic assessments and creating personalized client plans, connecting clients to specialist care, providing emotional support and advocacy, and conducting ongoing community outreach.

Amanda holds dual citizenship from the USA and UK, with a Masters in Clinical Social Work degree from Smith College. She has worked in a variety of settings, including HIV medical casework, community mental health, LGBTQ anti-violence support and advocacy, substance misuse treatment, trauma counselling and crisis support for incarcerated clients.

During her time in London, Amanda has worked for Galop as a sexual violence advisor and as a senior caseworker at St. Giles Trust, supporting people with complex needs into work and education opportunities. She is currently studying Integrative counselling and coaching part- time alongside her work at Commons.

Amanda believes that clients should always be at the centre of the care they receive, as they are the experts in understanding their own lives. She utilizes an anti-racism and anti-oppression framework, as well as harm reduction and trauma-informed approaches when supporting clients. She is passionate about addressing systemic barriers that are impacting clients’ abilities to build meaningful lives, and strives to work collaboratively with clients, communities and organisations to best improve social impact for all.

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Rosie Worster

Rosie is a paralegal at Commons and assists with Magistrates’ Court, Crown Court and appellate casework, as well as with the firm’s social justice and community project work.

Rosie holds a BA in Jurisprudence from the University of Oxford and an LLM in Human Rights, Conflict and Justice from SOAS, University of London. She is studying part-time alongside her work at Commons to complete her Legal Practice Certificate from the University of Law (iLLM/LPC).

Before joining Commons, Rosie was Director of Programmes at The Fair Justice Initiative, a non-governmental organisation fighting for prison reform in Accra, Ghana. She has experience as a paralegal with a focus on asylum and immigration detention and has volunteered with several organisations with a focus on human rights and access to justice, including the African Prisons Project and RELEASE.

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Sashy Nathan

Sashy practises in criminal cases with human rights, civil liberties and international issues to be pursued on behalf of his clients. His work ranges from advising organisations and individuals on international criminal law, to helping the increasing amount of people who face criminal proceedings arising from civil law orders. He regularly appears in the Magistrates’ Courts in criminal proceedings on a range of offences for clients with complex needs, and also undertakes contempt of court proceedings including:  

Specialist Hygiene Solutions v Marsh [2019] 4 WLUK 400 

Representing the respondent in contempt proceedings at the High Court arising from breaches of a Tomlin Order and concerning allegations about a company working in the NHS. The case included obtaining key medical evidence (a diagnosis of Autism Spectrum Disorder, a personality disorder and major depressive disorder) leading to an eight-month custodial sentence being suspended for two years. 

R v  Attorney General v Scarth [2013] EWHC 194 (Admin) 

Representing the respondent, a World War 2 veteran, in an application for committal brought by the UK Attorney General which led to a suspended sentence for multiple contempts of court. 

“Speaking to Sashy you know he instantly knew, you could tell that he knew what he was talking about and he’d dealt with cases like this before and that immediately put my mind at ease.” 

“I’ve had solicitors before and out of all of them I think Sashy was the most efficient the most professional […] definitely. He was just a very compassionate person […] you can see that he thought it was ridiculous and it was unfair.” 

Prior to setting up Commons, Sashy practised criminal defence and civil liberties law at Bindmans LLP where he concentrated on representing defendants in politicised cases including members of Occupy, Greenpeace, the UK Tar Sands Network, UK Uncut, No Borders and protestors against the electoral process in the Democratic Republic of Congo. He represented many vulnerable individuals in the criminal justice system who were referred from organisations such as Stonewall, Deafhope, Re-think, and Galop.  

Sashy has a wealth of experience working in charities and the international non-governmental sector, including at the Commonwealth Human Rights Initiative and Save the Children International. He is currently also the Director of Advocacy at 89up, a purpose communications agency designed for civil society issues and organisations. He regularly writes and broadcasts on rights issues that affect freedoms and legal protections that benefit us all.  

You can watch Sashy being interviewed on BBC News here:

You can see Sashy’s appearance on the panel on Citizenship and Immigration at The Convention event by scrolling to minute 32:18 on this video: 

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Rhona Friedman

Rhona has been a criminal solicitor for over twenty years specialising in complex homicide cases, extradition work, advise and representation in international Mutual Legal Assistance cases, serious fraud and financial crime including allegations of off-shore money laundering, ‘boiler room‘ fraud and terrorism-related matters.

As part of a proactive defence approach Rhona has travelled to Egypt, Turkey, Romania, Belgium, Germany, Spain and Switzerland to speak to witnesses and gather evidence for cases.

She is also experienced in cases with a mental health component, or where defendants are particularly vulnerable because of their age, learning disability or neuro diversity or for some other reason.

Rhona is one of only 5 defence solicitors recommended in Chambers and Partners for expertise in protest defence. She has defended anti-war, environmental and climate crisis activists and campaigners against human rights abuses and has acted as an advisor to the Black Protest Legal Support Group.

Rhona’s appeal practice is often in the news. She currently represents Charles and Diana Ingram seeking to overturn their conviction for cheating on quiz show “Who Wants To Be a Millionaire”. Link

In 2020 Rhona’s client Robert Firkins had his conviction for double murder referred by the Criminal Case Review Commission following submissions co-authored by Rhona and Jane Hickman of Hickman and Rose Solicitors acting on behalf of Robert’s brother Lee Firkins.

Also, in 2020 the Commission referred the historic convictions of striking union members the Shrewsbury Pickets. Link Rhona drafted the successful submissions for the Shrewsbury Pickets case when at her previous firm Bindmans LLP.

Here’s what people say:

She has an encyclopaedic knowledge of criminal law and a real passion for justice.” Chambers UK 2020

absolutely fantastic and incredibly committed.”  Chambers UK 2017

obviously brilliant” receives praise for her legal aid work and experience in appellate proceedings.

Sources report: “She is a bright and innovative solicitor who is very good on psychiatric and psychological issues. She is very good on the analysis of cases, finding things that other people would not.” Chambers UK 2016

exceptionally bright and very charismatic“. Chambers UK 2015

Sources describe Rhona Friedman as “absolutely fantastic,” “her understanding of not just  criminal law but of the context – the way police work, the way in which organised crime works – is just phenomenal.” Chambers UK 2014

​Notable cases:

R v M – successful defence of a man extradited to the UK alleged to be the head of a multi- million pound Class A drug supply gang. Rhona identified multiple failures of prosecution disclosure which caused the case to be halted during a retrial

R v S – successfully defended young man accused of a gun killing of a teenager in Camden

​R v M – client acquitted of gang related gun murder in Tottenham High Road

​R v P – historic family allegation brought to a halt during trial after expert evidence of a false confession

​R v M – successful defence of community activist and rights campaigner accused of fraud

​R v McKnight – successful defence of businessman accused of attempted murder

​R v Hamza – successful defence of well-known engineer and social reformer accused of plotting to kill high ranking Egyptian political figures

​R v A – attempted murder acquittal of teenager accused of knife revenge attack in Essex

R v E – a successful psychiatric defence of a woman accused of attempted murder of her adopted child


Rhona was on the advisory panel for the Equality and Human Rights Commission statutory inquiry into the treatment of disabled people in the criminal justice system in 2019

Rhona was named Times Lawyer of the Week for representing Samantha Orobator whose release from death row in Laos was secured by the legal charity Reprieve

Rhona is a committee member of the London Criminal Courts’ Solicitors Association and is a co-founder of the campaigning organisation Justice Alliance

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