Being a police officer can’t be easy these days. My previous post may have sounded pretty harsh to some, but I have had this present post in the works for some time too. Obviously, police officers get to see a lot of bad stuff that most humans could happily do without, but that’s only the beginning.

When I look at police, I always have in my mind the distant memory of when the hotshots of Dutch police got together during several weekends, taking a good look at what was going on in their forces. ( I seem to remember that they did that in their spare time, unpaid.) Then they started to do away with a lot of crazy stuff that was handed down to them by the Ministry without there being any basis in reality for it.

What follows is not an in-depth analysis of what is going on in England & Wales, but a low-resolution snapshot taken from some distance, a bird’s eye perspective. It reveals an interesting landscape. Continue reading →

Today brings the start of three days of policing matters at the Supreme Court:

• R (on the application of Catt) (Respondent) v Commissioner of Police of the Metropolis and another (Appellants)
• R (on the application of T) (Respondent) v Commissioner of Police of the Metropolis (Appellant)

Both cases concern the right to the protection of citizens’ privacy, notably regarding the length of the time certain matters remain part of police records.

The first case looks at whether the retention by police of data relating to an individual’s involvement in one or more protests was lawful in terms of art.8 ECHR.

The second case is a judicial review on whether the retention by police of information relating to a letter issued to the respondent following an allegation of harassment was lawful in terms of art.8 ECHR.

Continue reading →

Last month, Minister of State for Justice Simon Hughes announced that £2 million has been set aside towards a package of support for LIPs, with the apparent primary aim of resolving disputes without the involvement of the courts, but also supporting LiPs if their disputes do make it to the courts. That’s what various legal publications published. The Guardian, however, spoke of 1.4 million per year.

The funding is intended for the following:

• Expansion of the Personal Support Unit (currently only present at a few locations in the UK);
• The RCJ Advice Bureau (which helps claimants and defendants at the High Court or Court of Appeal at the Royal Court of Justice & County Courts across England and Wales, the family court at the Principal Registry of the Family Division or any other family court, and
  the bankruptcy court at the Royal Court of Justice);
• LawWorks (he country’s leading legal pro bono charity for solicitors, in-house counsel, mediators and students); and
• Law for Life, a public legal education charity.

This initiative is the result of the November 2011 report “Access to Justice for Litigants in Person (or self-represented litigants)“.

Sources:

• http://www.legalvoice.org.uk/2014/10/23/simon-hughes-2m-packages-for-unrepresented-claimants/
• http://www.litigationfutures.com/news/growing-lips-crisis-forces-government-unveil-2m-advice-support-package
• http://www.theguardian.com/law/2014/oct/23/legal-advice-litigants-without-lawyers-justice

If you are going to court on your own, or are thinking about it, and have never done anything like that before, watching some episodes of this Justice course on YouTube will give you a better perspective.

It will give you some insight into the reasoning behind laws, and is bound to reveal ideas you had not thought of yet. It shows you that you may feel you are right, but that it can be merely a matter of perspective.

The person you think has wronged you may feel just as strongly that he or she is right and that you are the one who went wrong. It helps to understand that because it can mean that you won’t need to go to court after all.

Every 11 minutes, one household in Britain loses its home. Source: Shelter.

That’s how many per day?

That’s too many who will be homeless this Christmas. Wanna DONATE a little something for those families and others who are threatened by homelessness in Britain?

London has more legal matters to do with housing than other towns, and this morning, one made it to The Independent. It is a case that will probably also turn up at the Supreme Court after the Court of Appeal rejected the appeal last week, paving the way for similar cases.

Is London carrying out social cleansing by relocating its poorest? Particularly some areas of London seem to keep making negative headlines in this respect.

London earlier caught the revealing glare of the spotlights when it was found to be introducing social apartheid by making poorer tenants use other doors than wealthier tenants in the same building (see the item in The Guardian). I hope that someone decided to sue the city over that, meanwhile.

You can read the article about the case of the family that is asked to move 50 miles (80 km):
here.

 

 

Another case coming up soon is Hotak v London Borough of Southwark. This case centres on the question “Is a vulnerable person still a vulnerable person in terms of housing needs if he has a family member to look after him?”

The background is more or less the opposite of bedroom tax craziness. Two brothers were living with a friend; one brother was looking after the other. The two were informed that this was overcrowding, and that they had to leave.

So they applied for housing assistance. The council agreed that they were “unintentionally” homeless, but the council didn’t consider the vulnerable brother a priority because his brother looks after him. (That essentially is a go-ahead for making them both homeless.)

The vulnerable party has learning difficulties, has self-harmed and has had symptoms of depression and post-traumatic stress disorder. He relies on his brother to be able to cope with life, including matters of personal hygiene.

The Supreme Court will soon deal with two interesting cases concerning housing law and homelessness. The one that has most of my attention is Aster Communities Ltd v Akerman-Livingstone.

Quickly summed up, it is about a man whose specific medical condition (a psychiatric injury as a result of a series of traumatic stressors) led to his local housing authority wanting to evict him from his temporary home, and then rehome him somewhere else. I think I understand his housing authority’s reasoning (which sees this differently, namely as purely following the rules), as well as the tenant’s situation.

In 2010, Mr Akerman-Livingstone was homeless. He has a severe prolonged duress stress disorder (PDSD, which I explain at the bottom of this post). When he went to his local housing authority, the Mendip District Council, the Council accepted that it had a housing duty toward him, a vulnerable citizen with priority needs. It gave him a home.

It is not entirely clear to me whether his disability is generally accepted or not, but that does appear to be so. The Court of Appeal’s judgment states that ‘he is a very sick man’ under 2, but ‘even assuming that Mr Akerman-Livingstone is able to prove his disability to the full’ under 5. In 2010, the District Council agreed that it owed a duty to him as someone with priority needs. This means that the District Council accepted that he has a disability. In 2012, the District Council again accepted that Mr Akerman-Livingstone has this disability, when he applied to them again as he was being threatened with homelessness as a result of the eviction proceedings that are at the heart of this case. So his disability appears to be fully accepted.

Why is he being evicted, you ask? Was he was causing problems for neighbours or had he developed serious rent arrears? No. There were no problems. The underlying reason for the eviction is that the District Council saw his current flat as merely the man’s temporary home. He cannot continue to live in his current home, says the District Council, because it wants to be able to give his current home to someone else who is homeless (likely also on a temporary basis). One can reasonably ask why the District Council does not simply give the homes they offered to Mr Akerman-Livingstone to other persons who are homeless and let Mr Mr Akerman-Livingstone continue to live in his current home. Problem solved, one would think, but real life is rarely that simple.

The problem started when the District Council wanted Mr Akerman-Livingstone to leave his current home and choose a different property where he would then have to move to. Because of his disability, he could not cope with that idea and everything it involved. His uncooperative response was considered ‘rejection of offers of suitable accommodation’ although it is a direct result of his specific psychiatric condition. It is like faulting a blind person for nor passing a vision test, in this very specific case. If Mr Akerman-Livingstone had not had this specific psychiatric injury, he would not have had such a problem coping. Essentially, the man requires peace and quiet and needs to be left in peace. Anyway, the District Council gave up and considered itself released from its obligation to house Mr Akerman-Livingstone.

The District Council then asked the housing association (Aster Communities Ltd, formerly Flourish Homes Limited) to start eviction proceedings against Mr Akerman-Livingstone so that the District Council could give his home to a different homeless person. When the housing association did this, Mr Akerman-Livingstone (presumably someone acting for him as his solicitor) responded that this was discrimination against him because of his disability (the PDSD). That, so he said, was in breach of Section 15 of the Equality Act 2010.

The court had two options for dealing with this: to proceed to a full trial to decide about the discrimination issue and then rule on the eviction or deal with the matter summarily, that is, take the shortcut that takes up a lot less time and money and which is what usually happens in eviction proceedings.

Not surprisingly, Mr Akerman-Livingstone wanted a full trial. Equally unsurprising is that the housing association did not. On 7 June 2013, the sitting judge agreed with the housing association.

To be allowed a full trial, Mr Akerman-Livingstone needed to have a seriously arguable case (that is, a fighting chance to win that case) in the eyes of the judge (judge Denyer). The judge did not think so and ordered the immediate eviction. Mr Akerman-Livingstone’s lawyer filed an appeal against this, but that appeal was rejected on 14 October 2013 by a second judge, at the High Court. Next, Mr Akerman-Livingstone’s lawyer appealed against the decision of the second judge. That appeal was heard in London, at the Court of Appeal, by Lady Justice Arden, Lady Justice Black and Lord Justice Briggs.

The Court of Appeal felt that it needed to answer two questions:

• Should there be a full trial or not?
• What would Mr Akerman-Livingstone have to show to prove his case? That was needed in order to be able to answer the first question because if Mr Akerman-Livingstone’s lawyer would not be able to prove his case, then there is no obligation to hold a full trial to decide about the eviction.

Well, said the Court of Appeal, even ‘if Mr Akerman-Livingstone is able to prove his disability to the full’, if Aster can show that the eviction proceedings are ‘a proportionate means of achieving a legitimate aim’ in the sense of Section 15(1)(b) of the Equality Act 2010, there will not have been unlawful discrimination.

That said, the burden of proof is shared (Section 136 of the Equality Act 2010), continued the Court of Appeal, and that means that Mr Akerman-Livingstone ‘has to do no more than show that there are facts from which, in the absence of some other explanation, the court could conclude that Aster had discriminated against him.’

The Court of Appeal then looked at what the lower courts had done, and at what the European Court on Human Rights (located in Strassbourg, France) had said about related matters and similar cases. The Court of Appeal ended up agreeing with the judge who had sat in the High Court (the second judge, Justice Cranston). It felt that Mr Akerman-Livingstone’s case was not seriously arguable as his interests were not seen as heavily outweighing those of the housing association (proportionality).

The question as to what kind of tenancy Mr Akerman-Livingstone has did come up at some point, but is not important within this context.

First, Mr Akerman-Livingstone would have to show that to be evicted would amount to discrimination because of his condition (the PDSD).

Section 15 (Discrimination arising from disability) of the Equality Act 2010 says:

• 15(1) A person (A) discriminates against a disabled person (B) if—
  (a) A treats B unfavourably because of something arising in consequence of B’s disability, and
  (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
• 15(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

This shows that the case hinges on 15(1)(b). 15(1)(a) appears to be the case and 15(2) does not apply. If the housing association and the District Council had not known about Mr Akerman-Livingstone’s disability condition, it would have been impossible for them to be guilty of discrimination, as a person is not able to discriminate on the grounds of something he or she does not know. That was likely never a serious point of debate, as Mr Akerman-Livingstone had been given his current home in 2010 because the disability classified him as a vulnerable person with priority needs and in 2012, the District Council again accepted him as a person with priority needs.

It is often very hard to prove discrimination; that is why the burden of proof is shared (Section 136, Equality Act 2010), which means that the other party also has to show that it did not discriminate:

• 136(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
• 136(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

The real problem seems to be that it is the Housing Act that appears to be doing the discriminating – puts Mr Akerman-Livingstone at a disadvantage because of his disability – because it does not define ‘refuse’ and appears to contain no provisions for anyone who can be seen as ‘refusing’ an offer of housing when that ‘refusal’ is a direct consequence of a disability. In this case, the ‘refusal’ is an integral part of Mr Akerman-Livingstone’s disability. His condition led to the tick mark in that box that allowed the District Council to consider itself released of its duties toward Mr Akerman-Livingstone (which then in itself led to new duties, as the District Council releasing itself of its duties and starting eviction proceedings against him threatened to make him homeless again).

The man requires peace and quiet, not yet another upheaval and series of stressors. Moving home is one of the major life stressors, and the mere thought of having to decide on where he wants to move to next apparently already is too much for him. Moving home may aggravate his condition.

Frankly, I believe that the housing authority (the District Council) and housing association would have done a better job managing everyone’s resources including their own if the District Council had simply housed someone else in the properties offered to Mr Akerman-Livingstone and allowed Mr Akerman-Livingstone to continue to live in his current flat, as I already mentioned. Generally speaking, though, any party is free to choose to either carry out bad management or good management if it has the right to carry out that management and does not infringe on other parties’ rights.

There is another twist to the story. The head lessor is not Aster Communities Ltd but a property developer and the property developer apparently has asked Aster to deliver up the premises without any tenants in them. If that is the case, then the argument that the rights of other homeless persons are just as important as the rights of Mr Akerman-Livingstone might no longer apply (although the District Council’s new housing duties toward Mr Akerman-Livingstone appear to be less than what they were in 2010).

If it is indeed the case, however, that the District Council wants to evict Mr Akerman-Livingstone from his flat so that it can give the flat to someone else who is homeless, then in theory, it could end up rehoming Mr Akerman-Livingstone in the same flat from which he is being evicted (and that might even be with the head lessor as his new landlord, instead of Aster Communities Ltd).

Moreover, perhaps the District Council could have foreseen this course of events – in view of the man’s specific medical condition – when it housed the man in 2010. It could have prevented it. It could have given him a home it considered long-term housing and not just temporary. (It may not have been in a position to do that; it depends on the circumstances.)

It appears to be the housing and homelessness charity Shelter that is instructing the lawyers acting for Mr Akerman-Livingstone.

I am interested in the response from the Supreme Court. Decisions by the Supreme Court can have far-reaching consequences.

I emphasise that the above is just a general description of the background of this case. I also add that, unlike what the public may often think, justices and judges rarely have the freedom to apply their personal view and sometimes are forced to decide in a way they wish they did not have to. They have to take other cases into consideration, for example, and apply the law consistently.

—–

PDSD stands for Prolonged Duress Stress Disorder, but this is an outdated phrase. The correct name of the condition is Complex Post-Traumatic Stress Disorder or Complex PTSD. The current Diagnostic and Statistical Manual of Mental Disorders (DSM-5) considers PTSD a condition related to trauma and stressors, and includes Complex PTSD (or PDSD). DSM-5 was published on May 18, 2013. The previous edition of the DSM included PTSD but not the variant Complex PTSD, so I understand.

Someone with PTSD, complex or otherwise, can either be the victim or the witness of trauma. More specifically, it can concern:
1. Directly experiencing the traumatic event(s);
2. Witnessing the event(s);
3. Learning that the event(s) occurred to one or more close relatives or close friends;
4. Experiencing repeated or extreme exposure to aversive details of the event(s).

I guess you could see someone with Complex PTSD as someone who has been hit with a  baseball bat very badly, figuratively speaking, over and over and over, again and again, and who never got the chance to recover. That is just my lay person’s view, however.

See also this short later post.

The unfairness and injustice to which so many Britons are subjected often feels like someone is spitting in my face.

A few minutes ago, I was composing a letter to someone and found myself explaining something, and then found myself wanting to dive into the issue. It made me realise that there is probably a need in the UK for an organisation of smart volunteers – a bit like the Innocence project in the US – that carries out research and investigations for various cases that need more support but are hampered by a lack of funds.

So I did a web search. First I found an organisation that often holds marches in the UK and is generally shunned (and later became banned by the government). Then I found the Bar Pro Bono Unit. It is a charity which helps to find pro bono (free) legal assistance from volunteer barristers.

I also found the National Pro Bono Centre, with links to additional organisations.

The UK has its own Innocence Project. It was started in 2004.

Here in Portsmouth, the university’s law school carries out various pro bono activities.

One of the cornerstones of legal undertakings is good organisation. Earlier, I mentioned the usefulness of Jalema clips and cable ties. Here are three more tips.

Stock up on bulldog clips or, preferably, foldback binder clips to keep your pages together when you’re still working on them and haven’t punched holes in them yet. Foldback binder clips come in all sizes and are usually black, but are also available in brighter colours and without any colour (metal).

If you’re copying many pages and are worried that one of the pages might accidentally get lost, print the information (what document the page belongs to) on the paper sheets before you copy onto the other side of the sheets. (If you include page numbers, have hundreds of pages, and something goes wrong, consider inserting pages like 18a, 18b and 18c if that means you don’t have to start all over again. It’s not elegant, but it’s practical.)

If you have a ring binder and are concerned about pages falling from it, tie a ribbon (or a piece of string) around it, so that each of the three open sides has one piece of ribbon or string that will stop a page from falling out. It can also help you identify your binder quickly.

Staying organised is one of the corner stones of legal undertakings. Never forget this name:
J A L E M A.

Jalema clips are the ultimate when it comes to keeping papers organised. I have been using Jalema clips for decades. The video at the bottom of this post shows you how they work. Amazon.co.uk sells them: here.

But what to do when you’ve run out of Jalema clips and you have bundles to bind? Grab some cable ties! Less elegant, but effective enough when you’re in a hurry.

For cases and businesses with a lot of paperwork that needs to be filed, I have one more tip. If you are lucky enough to pass through the Netherlands every once in a while, see if you can purchase some of those patented Loeff’s file boxes.

They come as flat packs, so you can stack them against the wall behind your desk or bookcase to fold and use them as needed. They’re great. I haven’t spotted them in the UK yet, but in the Netherlands and Belgium, you may be able to purchase them at professional office stores or order them from Viking Direct.

The Bar Council has a guide for you, on representing yourself in court (a PDF).

You are allowed to have someone sitting with you who can help you in court, for instance, by taking notes, but who is not a lawyer. It is called a McKenzie Friend. There is also a guide on what McKenzie Friends can and cannot do (a PDF).

Last week, a District Judge issued some excellent advice for litigants in person. I am going to share it with you.

“Appearing in court is both stressful and confusing”, he wrote.

“If asked for advice on what in particular a litigant in person needs to do, I would say that preparation is essential: get all papers and other evidence in order and easily accessible, read it all thoroughly and prepare notes on the points that will need to be made. So often parties attend court without the bare essentials and immediately they are at a disadvantage and whilst a judge will do as much as he or she can, ultimately it is the litigant who has to conduct the case.”