MELS portfolio - coursework for modern English legal system module with Serena Natile PDF

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coursework for modern English legal system module with Serena Natile...

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I will be discussing the case of Steven Avery (state of Wisconsin v Steven Avery), as represented in the Netflix show, ‘Making a Murderer’ i. In 2007, Avery was found guilty of first-degree murder (of Theresa Halbach) and illegal possession of a firearm, he was sentenced to life without possibility of parole ii. To this day, Avery maintains his innocence and appeals his sentence based on the fact that he was denied an impartial jury and had ineffective legal counsel. I chose this case because it was what inspired me to pursue a law degree, (it sparked interest and made me want to work with this kind of case in the future) I feel that the controversy (e.g. supposed fabricated evidence) surrounding this case makes it a very interesting example of the law. The case involves many issues such as corruption, false testimony and fabricated evidence which means that it covers many different issues within the law. In my opinion, this case exposes how easily corruption can occur within a legal system. Avery’s conviction relies heavily on the testimony of his two nephews: Brendan and Bobby Dassey. Both of these testimonies appear problematic. Video’s of Brendan Dassey’s interviews have since been posted online iii and Dassey appears extremely uncomfortable and changes his entire testimony within the interview. The Reid technique is a very intense interrogative technique that often results in false testimonyiv, thus making its use in this scenario very unusual (unsuitable for a minor yet alone a sixteen year old with low IQ) l. In the UK, we do not use the Reid technique, instead we use the PEACE method of interrogation which is a significantly less confrontational interview – this could imply that we place more importance on ethical procedure. The only reason I can imagine the police would choose to use the Reid technique in this scenario would be with the goal to somehow manipulate the testimony of Brendan. The testimony of Bobby Dassey is also concerning, he directly contradicts other evidence and arguably commits perjury. Another concern relating to Dassey is the fact that he was never treated as a suspect (this may be negligence or corruption on behalf of the police), despite having full access to the exact same property that Avery had access to. During investigation by Kathleen Zellner (Avery’s appeals lawyer), it was found that Dassey had an extensive search history relating to violent pornography and violent crime. This and the fact that Dassey had the perfect opportunity to plant evidence against Steven Averyv would suggest that Dassey should have at least been subject to some police investigation. There are further problems with the case in that Manitowoc police department were accused of tampering with evidence. For example, Halbach’s suspected bones were mishandled, the prosecution handed them over to her family before allowing the defence to test them themselves.vi This is concerning as it implies that the police are either attempting to conceal something or are too irresponsible to properly handle the case.

i

Netflix, 'Making A Murderer' accessed 9 November 2020

ii

Corey Parker, 'Making A Murderer: Steven Avery’S Chances For Appeal' (The Appellate Law Firm, 2020) accessed 9 November 2020.

iii Steven Avery & Brendan Dassey cases, '0:27 / 56:04 Brendan Dassey Police Interview / Interrogation Part #1 ( Making A Murderer Steven Avery Case )' accessed 9 November 2020. iv James Orlando, 'INTERROGATION TECHNIQUES' (Cga.ct.gov, 2020) accessed 9 November 2020. v

Jack O'Keeffe, 'Bobby Dassey's Testimony Is A Crucial Part Of Steven Avery's Appeals Case In 'Making A Murderer' Part 2' (Bustle, 2020) accessed 9 November 2020. vi Alison Dirr, 'Steven Avery's Attorneys: State Violated Law, Gave Suspected Human Bones To Halbach Family' (Eu.postcrescent.com, 2020) accessed 9 November 2020.

Bibliography Netflix, 'Making A Murderer' accessed 9 November 2020 Parker C, 'Making A Murderer: Steven Avery’S Chances For Appeal' (The Appellate Law Firm, 2020)

accessed 9 November 2020 Steven Avery & Brendan Dassey cases, '0:27 / 56:04 Brendan Dassey Police Interview / Interrogation Part #1 ( Making A Murderer Steven Avery Case )' accessed 9 November 2020 Orlando J, 'INTERROGATION TECHNIQUES' (Cga.ct.gov, 2020) accessed 9 November 2020 O'Keeffe J, 'Bobby Dassey's Testimony Is A Crucial Part Of Steven Avery's Appeals Case In 'Making A Murderer' Part 2' (Bustle, 2020) accessed 9 November 2020 Dirr A, 'Steven Avery's Attorneys: State Violated Law, Gave Suspected Human Bones To Halbach Family' (Eu.postcrescent.com, 2020) accessed 9 November 2020

Introduction 1.! Ashik is a 45 year old citizen of Bangladesh with severe bipolar disorder. If deported, he will lose to access medication (lithium) and the cognitive behavioural therapy that prevent him from suffering a profound mental collapse. Without treatment, his life expectancy is less than three years. Ashik could expect to live another 13-24 more years with treatment (average life expectancy: 78 years1, average reduction in life expectancy bipolar disorder sufferer: 9-20 years2 ).# 2.! Ashik claims that there are substantial grounds for believing that, if removed to Bangladesh, he would be subjected to treatment contrary to Article 3 of the ECHR# ! !

“no one shall be subjected to torture or to inhuman or degrading treatment or ! ! punishment.”#

3.! No assurances have been given from the Bangladeshi government that treatment would be available.# Background 4.! Between 2010 and 2013, Ashik committed a series of criminal offences. Leading to the secretary of state deciding to deport him. In August 2013, after a failed appeal, the order for his deportation was made.# 5.! Secretary of state (sos) argues that, as this is a case involving mental health, there is no duty to ensure adequate treatment in Bangladesh.# Jurisprudence 6.! In D v United Kingdom (1970 24 EHRR 423), the EctHR held that the removal of a man on his deathbed to a state where care was unavailable would violate article 3. Therefore the test in such cases was whether the applicant’s illness had reached such a critical stage that it would be inhuman to deprive him of healthcare and send him to an early death in the receiving state.# In this case, the appellant was suffering from AIDS which is not a mental illness like in the case of Ashik. D’s life expectancy was also significantly shorter than Ashik’s.# 7.! Another main authority in the case is N v Sos for the home department ((2005) UKHL 31, (2005) 2 AC 296). In this case, it was determined that protection of article 3 only applies when a person is already dying and removing treatment would accelerate this further,. Lady Hale determined that the patients ‘present medical condition is the crucial factor’. # N’s claim was dismissed. Based on this we must ask whether the appellants illness has reached such a stage that it would be inhumane to deprive him of the care he is receiving.# There is a similar degree in reduction of life expectancy in N and in Ashik’s case (from decades to a few years). Therefore deportation wouldn’t cause a drastic reduction in life expectancy based on this standard.# 8.!

In PaposhvilIi v Belgium ([2017] Imm AD 867) para 183, the court suggested that: # cases where “substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of absence of appropriate treatment in the receiving country or the lack of access to such treatment of being exposed to a serious, rapid and irreversible decline … resulting in intense suffering or to a significant reduction in life expectancy” should have article 3 applied.#

Ashik would face a risk of being exposed to a decline in his health without treatment. # Para 190 of the judgement stated that the returning state must consider accessibility of treatment to the applicant, by reference to the existence of a family network and to its geographical location.# 9.!

Court of appeal interpretation of Paposhvili v Belgium 2017:# ‘Cases where applicant faces a real risk of rapidly experiencing intense suffering in the receiving state because of their illness and the non-availability of treatment’#

The boundary of article 3 shifted from imminence of death to imminence of intense suffering# 10.! In Savran v Denmark ((2019) ECHR 651), The applicant relied on domestic statute which applied if his state of health made expulsion of him conclusively inappropriate:# Section 26 # (i) … question whether expulsion must be assumed to be particularly burdensome, in particular because of –# (ii) the alien’s age, health… personal circumstances# In Savran, the appellant had paranoid schizophrenia. This is relevant as Ashik suffers from a mental health condition.# Savran v Denmark suggests duty to ensure adequate treatment, even in the case of mental health issues.# Therefore we can assume that failure in mental health provision may cause a potential violation of Article 3.# 11.! In AM Zimbabwe v Secretary of State [2020] UKSC 17 the supreme court allowed the appellants appeal due to the precedent set in Paposhvilli v Belgium ([2017] Imm AD 867) (new standard of imminent risk of suffering), therefore the courts departed from the decision of the House of Lords in the N case. # Analysis 12.! if the reduction in life expectancy is less than substantial then it will not attain the minimum level of severity which article 3 requires.# 13.! Criteria for violation of Article 3: substantial decline in life expectancy. Three years may not be substantial enough to constitute a violation of article 3 as there is no imminent risk of death (per N v Sos).# 14.! In Paposhvilli, boundary of article 3 shifted from imminence of death to imminence of intense suffering. # Without treatment, Ashik will suffer profound mental collapse. This meets the criteria for the imminence of intense suffering# It is likely that he will suffer profound mental collapse upon returning to Bangladesh which would violate article 3.#

15.! Health systems in Bangladesh are not organised to provide adequate care services to patients with mental health problems. There is a lack of resources and a disproportional distribution of them. 3 Ashik will also have a lack of geographical proximity to said resources.#

Disposal 18.! based on the precedent set in Paposhvilli v Belgium [2017] and AM Zimbabwe v Secretary of State [2020], Ashik’s appeal relies on him proving that if deported, he is at imminent risk of intense suffering# 19.! due to the severity of Ashik’s condition, we can assume that, without his treatment, he will in fact be at imminent risk of intense suffering. Therefore this appeal is allowed.#

1 Ayub Korom Ali, 'Forced Out, Looking Inwards: Britain's Bangladeshis' (Newstatesman.com, 2007) accessed 24 November 2020.# 2 'Many Mental Illnesses Reduce Life Expectancy More Than Heavy Smoking' (University of Oxford - news and events, 2014) accessed 24 November 2020.# 3 Nahar Nuri N and others, 'Pathways To Care Of Patients With Mental Health Problems In Bangladesh' (US national library of medicine. National institutes of health, 2018) accessed 24 November 2020

“Our clients firmly believe that it is absolutely vital that the terms of reference are amended so that race, religion and social class are considered, because whilst there will be – and I accept rightly – focus on the construction and refurbishment of the tower which led to the fire, that will not be the full story. That will not explain why it was that these particular people – these particular people – were the ones that died and will not explain what led them to their death.” (Imran Khan QC, Opening Statement, Grenfell Public Inquiry, June 5th, 2018) In response to this statement, argue for or against extending the terms of reference of the Grenfell Inquiry to consider race, religion and social class. Imran Khan made this statement because he truly believed race, religion and social class should absolutely be considered in the Grenfell tower inquiry – the terms of reference should be extended to consider the contribution of institutional racism 1. In this essay I will demonstrate why they should be included by analyzing the three categories separately and explaining how and why they are relevant to the inquiry. I will start by analyzing the part played by race and religion in the fire and then I will look at the role of class. The fire occurred due to negligence and flammable cladding that was added to ‘ensure that the character and appearance of the area are preserved and living conditions of those living near the development are suitably protected’ 2 , to make the building look more attractive to the rich residents in the surrounding area. There is no logical explanation as to why cheap, flammable cladding was used on this building, in one of London’s richest boroughs, there was no reason for the council to cut corners to try and save £290,000 when they had a budget reserve in excess of £274 million 3. There are clear signs of neglect and indifference from the council toward the Grenfell tower residents, and there must be a reason for this – whether it is systematic racism or classism or something entirely different. We must consider whether the race, religion or class of the residents may have impacted the care that they received so that we can understand and address this issue. Despite 71% of the population in Kensington and Chelsea being white, a disproportionate number of poor and ethnic minorities ended up living in the tower 4, this suggests that the consideration of race and religion is important to the inquiry. 46% of black and minority ethnic families in the UK are living in poverty 5 , therefore there is a higher chance that an individual from one of these backgrounds would be more likely to find themselves living in the social housing at Grenfell tower, raises the question of how this would have any impact on how the residents at Grenfell were treated. Khan questioned whether the council (and related institutions) were influenced by racial prejudice and asked whether race played a part in the procedure and operation of the fire services - the statements of the fire fighters describe residents in a way that suggests a degree of conscious or unconscious racism6 . Race should be considered in the inquiry because systematic racism could be a large contributing factor to the neglect and lack of care given to health and safety regulations at Grenfell tower, it could explain why the council may have decided to cut corners and install cheap flammable cladding. If this is the case, then these issues must be addressed to prevent future tragedies. Institutions such as the council and fire department’s treatment of individuals should not depend on race or religion. Evidence shows that people racialized as non-white are systematically more vulnerable to harm and premature death 7 and it is quite likely that systematic racism brought the Grenfell victims to their violent and premature deaths 8 . Systematic racism and the influence that it likely had on the Grenfell fire are why it is absolutely paramount that race and religion are properly considered in the inquiry – to prevent any future impacts of systematic racism and to prevent any future loss of life. The influence of religion on the disaster is indicated by the aftermath of the fire, with Muslim residents not being treated with dignity and respect. There was a failure to consider the needs of Muslim residents, for 1 Latifa Babas, 'Victims’ Lawyer Says Race, Religion And Class Must Be Considered By The Grenfell Tower Inquiry' (En.yabiladi.com, 2018) accessed 2 December 2020 2 Joshua Funnel, 'The Religion Of Property Is To Blame For The Deaths Of Those At Grenfell' (openDemocracy, 2017) accessed 29 November 2020

3

R.G. Watt, 'Grenfell Tower Fire – A Tragic Case Study In Health Inequalities' (Research Gate, 2017) accessed 7 December 2020 4 Kathryn Snowdon, 'Huffpost Is Now A Part Of Verizon Media' (Huffingtonpost.co.uk, 2018)

accessed 2 December 2020 5 Philippa Stroud, 'Measuring Poverty 20202' (Socialmetricscommission.org.uk, 2020) accessed 7 December 2020 6 Kathryn Snowdon, 'Huffpost Is Now A Part Of Verizon Media' (Huffingtonpost.co.uk, 2018)

accessed 2 December 2020 7 Nadine El-Enany, 'The Colonial Logic Of Grenfell' (Versobooks.com, 2017) accessed 2 December 2020 8 Ibid

example no care was given to the fact that it was Ramadan and that they could only eat within certain hours – food was not provided at these times. This meant that the residents had to rely on ‘community kitchen initiatives’ such as those held at Al Manar Mosque 9 . There was also very little/ no access to appropriate clothing and hijabs10 for the Muslim women that were impacted by the fire. This suggests a complete disregard for the Islamic residents of the tower and a total lack of respect concerning their basic needs and values. Religion should be considered in the inquiry because there was no extra care during Ramadan, which is the most important time of the year for a Muslim. Whereas if this was during a Christian holiday such as Christmas then there is no doubt that there would be special consideration. Class should be considered in the inquiry because, as said by a Notting Hill community church pastor, ‘the fire would not have happened to the 5-million-pound flats around the corner’ 11. It is a deeply divided community, with billionaires living next to poor and disenfranchised people struggling to make ends meet 12. The families affected by the fire were mostly from disadvantaged and marginalized backgrounds 13. The majority lived in social housing, where their homes and lives were regarded as disposable by the government 14 – making it significantly easier for the government to cut corners. It has been argued that the Grenfell fire acted as a ‘warning’ to individuals living in social housing that their lives are not valued in a capitalist society 15. The cladding was added to the building with the purpose of making it ‘look better when seen from conservation areas and luxury flats’ 16. The fact that the council decided to opt for cheap, unsafe cladding, made partially of plastic (that has a heat of combustion similar to that of petrol 17 ), implies a total disregard for the potential safety of residents, It has been argued that they ‘neglected council housing and disregarded its tenants as if they were 2nd class citizens’18 , as if their lives were disposable. Lower class individuals, especially migrants, are often forced to live in dilapidated, unsafe accommodation and aren’t seen to require decent housing because they’re deemed disposable 19, they’re lives aren’t seen as valuable. Grenfell tower provides important evidence as to the consequences of cost-cutting, deregulation and the privatization of public safety 20, it shows how cutting corners in this way can lead to disaster. It is important to consider class as we can see that the council has tried to save money and cut corners on social housing, which ultimately lead to the disaster. To conclude; race, religion and class should be investigated by the inquiry as they clearly had an impact before, during and after the fire. Systematic racism and classism may have led to a disregard for the life of those living in Grenfell tower; race and religion may have impacted the treatment of the residents by the fire brigade (as shown by the way residents were perceived in the firemen’s statements); and religion was, at the very least, disregarded by the local councils and people supporting the victims in the aftermath. If race, religion and class did impact the actions of government institutions and the fire departments then this has very serious implications and could cause further problems for minority communities in the future. Therefore, it is imperative that these factors are considered fully in the inquiry so that any problems can be identified and dealt with adequately.

9 'Following Grenfell: Grenfell Residents' Access To Public Services And Support' (Equalityhumanrights.com, 2019) accessed 29 November 2020 10 ibid 11 Gordon MacLeod, 'The Gre...