Month: December 2022

Response by Legal Feminist to Consultation on the Deception as to Gender section in the Rape and Serious Sexual Offences (RASSO) legal guidance

Written by a multidisciplinary team of feminist lawyers headed up by Sarah Vine KC

INTRODUCTION

  1. The existing legal framework in respect of consent obtained by deception establishes two authoritative positions:

 (i)       Where consent to a sexual act has been obtained by a deliberate deception as to a matter sufficiently proximate to the nature or purpose of that act, that consent may be vitiated; and

 (ii)      The fact of a sexual partner’s biological sex is so fundamental to the freedom and capacity of a person to agree to sexual activity[1] that a deliberate and operative deception as to biological sex is capable of vitiating consent.[2]

2.         The CPS is a creature of statute. It has no function other than to uphold the law by prosecuting criminal offences as stipulated in the Prosecution of Offences Act 1985. The CPS is a public authority which must operate within the law, and it has a duty to act in compliance with the European Convention of Human Rights[3]. It has no power to create or change the law.     

3.         The CPS may adopt policies to ensure that its charging decisions are consistent with the relevant rights engaged. In the context of this consultation, the relevant rights are those under Articles 3, 6, 7, 8 and 14 ECHR. Policies must operate within the confines of the existing law; the CPS cannot make or change the law through its policies.    

4.         The current CPS charging policy is irrational and unlawful. The proposed changes exacerbate these faults. Both current and proposed guidance invite lawyers tasked with making charging decisions to take account of matters which are irrelevant, prejudicial, unreliable and ideological.     

5.         The guidance undermines the effect of McNally in relation to a suspect who expresses a belief in a gender identity and asserts a gender identity at variance with his or her biological sex.

6. The guidance elides two matters which are categorically different in both fact and law. 

(i) A suspect’s knowledge of his or her biological sex;         
(ii) A suspect’s belief that he or she has a gender identity.

The former is something which any person over the age of criminal responsibility can be taken to possess. The latter is a subjective and metaphysical belief. It can be claimed by anyone but can be neither verified nor falsified. 

7. It is apparent that the guidance is drafted based on one or both of two false premises:

 (i)       That gender identity allows a person a discrete category of heightened privacy;

(ii)       That the belief in gender identity is capable of eclipsing, for all material and legal purposes, a person’s understanding of their own biological sex.

8. The introduction of either of these premises into the determination of criminal liability is a significant departure from the law as articulated in McNally, and enjoys no legal authority from any source. It is a purported change in the law which would almost certainly require primary legislation, and which on any view the CPS is not competent to make.

DEFINITIONS

Sex

9.         Sex is an objective, fixed and verifiable characteristic[4]. It is biological and binary in its nature; people with ‘intersex’ or DSD conditions are male or female, irrespective of those conditions. Sex is one of the protected characteristics under the Equality Act 2010[5].

Gender Identity

10. Gender identity is a disputed notion. The proposed guidance demonstrates the nebulous character of gender identity in the various attempts to define and illustrate it. Gender identity has no legal definition. It is a wider concept than the legally defined ‘gender reassignment’[6] which, itself, is wider than the category of people with a Gender Recognition Certificate pursuant to the Gender Recognition Act 2004.           

11. A GRC grants the holder the right to be treated as their acquired gender. The scope of this right was described by Choudhury J. in Forstater v CGD Europe[7] in the following way.           

“Although section 9 of the GRA refers to a person becoming “for all purposes” the acquired gender, it is clear from these references in decisions of the House of Lords and the Court of Appeal, that this means for all “legal purposes”. That the effect of section 9 of the GRA is not to erase memories of a person’s gender before the acquired gender or to impose recognition of the acquired gender in private, non-legal contexts is confirmed by the comments of Baroness Hale PSC in R (C) v Secretary of State for Work and Pensions [2017] 1 WLR 4127 .”

  1. Accordingly, a GRC does not change someone’s sex biologically. Biological sex in humans is immutable[8]. It is not changed by gender identity. Gender identity is not sex. It is not a universally accepted idea, nor even a broad social consensus. It is a subjective and metaphysical position assumed by an individual.    
  2. The Gender Recognition Act requires only that the applicant obtain a diagnosis of gender dysphoria; no surgical, chemical or other medical interventions are required. Intervention by way of hormones or cosmetic remodelling of secondary sexual characteristics is optional and, in any event, incapable of changing a person’s biological sex. The vast majority of those who describe themselves in terms that fall under Stonewall’s ‘trans umbrella’ (to which the authors of the guidance refer) have had no surgical alteration. 

DECEPTION

Deception and Consent: The Current Position

14.       The law relating to deception as to one’s sex is clear and settled. The statutory framework comprises s.74 of the Sexual Offences Act 2003, which defines consent, and s.76(2), which sets out the limited circumstances in which an operative deception will be held conclusively to vitiate both consent and any claim of reasonable belief in consent. Those circumstances are:

(i) deception as to the nature or purpose of the act, or 

(ii) impersonation of someone known to the complainant.

15. Beyond the conclusive presumptions, litigation has focused on the impact of deception on the freedom and capacity of a person to give consent (per s.74 SOA 2003). The determinative line held by the CACD has been one of proximity to the nature and/or purpose of the act[9]. The circumstances in which deception vitiates consent are narrow, and Parliament decided not to widen it by including in the 2003 Act any prohibition analogous to the terms of s.3 of the Sexual Offences Act 1956 (Procuring a Woman by False Pretences).           

16. The extent to which the CPS has strayed from legal authority is brightly illustrated in the fallacious assertion that an active deception may have occurred:

“where a suspect [with a GRC] falsely asserts that their gender identity is the same as their birth gender/assigned biological sex.”       

17.       This is a difficult concept. Those who have drafted the guidance appear to have in mind a situation in which a person who possesses a GRC and therefore may be presumed to have a gender identity at odds with his or her biological sex claims to have a gender identity congruent with his or her biological sex. So, for example, a trans-identifying male with a GRC declaring him to be a woman, but who falsely asserts that his gender identity is male; or vice versa.

18. The only deception in such circumstances would be as to gender identity. The guidance advises that a deliberate deception as to gender identity can vitiate consent. This must proceed from a position that gender identity is as close to the nature and/purpose of a sexual act as biological sex itself. This is a wholly fanciful proposition for which there is no legal basis. 

Gender Identity & Deception

19.       The idea of deception as to one’s gender identity is meaningless, because gender identity is neither verifiable nor falsifiable. With the exception of an expressed preference for opposite-sex pronouns, everything that might be relied on as proof of ‘living as a woman’ / ‘living as a man’ refers to inherently sexist imposed social codes and norms.         

20.       Gender identities are necessarily formulated by reference to a person’s biological sex. They cannot eradicate a person’s knowledge of his/her own sex. A belief that biological sex is of no importance, or that it is of subordinate importance to a person’s gender identity, does not alter the fact that every person knows their own sex. The same applies to the belief that gender identity should be allowed to take legal and social primacy over biological sex. A belief that one is ‘born in the wrong body’ is an acknowledgement of one’s biological sex. A belief that compliance with social codes of femininity and masculinity are what define men and women does not alter a person’s knowledge of their own sex. The assertion of a gender identity may be a signal that the person does not believe sex is of any real importance, but it also recognises that society at large believes otherwise. 

21.       A Gender Recognition Certificate creates a legal fiction that a person is for most legal purposes, the sex that s/he, objectively and scientifically, is not. A legal fiction is a ‘deliberate deception’, in circumstances where the latter term is stripped of its pejorative weight.            

22.       A person (with or without a GRC) who is ‘living as a man’ or ‘living as a woman’ may be presumed to be engaged in a deliberate deception, assuming that they seek to ‘pass’ as the opposite sex. Legally and socially, there is a broad consensus that such a deception should be accepted, or treated as acceptable, for many purposes in that person’s public life. (That person’s use of, and access to, single-sex spaces does not fall within the consensus, but will not be addressed here.)

23.       ‘Identifying as’ a man or as a woman cannot be equated with a genuine belief that one is male or female. In order genuinely to believe that s/he is biologically the other sex (as opposed to, for example, believing that sex is not biologically defined), a person would have to be suffering from a delusion. Some proponents of the ideology which underpins the idea of gender identity (‘gender ideology’) will assert that there is such a thing as a ‘female penis’ and a ‘male vagina’. These are ideological emanations which seek simply to reorganise biological facts in line with the philosophical position that the categories of male and female are subjective and independent of biology; since such a position refuses to recognise the law, it cannot amount to a genuine belief for the purposes of the law.

24.       The proposals advise prosecutors to treat what they regard as a genuine assertion of a gender identity as evidence of a genuine belief about a person’s sex in assessing an allegation of deception as to sex. This would be analogous to treating a man’s sincerely-held religious belief that wedding vows function as a perpetual consent to sex as evidence of both consent and a reasonable belief in consent in assessing an allegation of the rape of his wife.            

25.       The guidance turns on the idea that a person’s gender identity, if genuine, may render a deception as to their sex inadvertent. It advances the staggering proposition: 

“If a suspect genuinely perceives their gender identity to be different to their birth assigned sex or if their gender identity is in a state of flux and/or emerging, this may be evidence there was not a deliberate deception.”        


26.       This is irrational and amounts to a breach of Article 14 in respect of relevant substantive rights (paragraphs 30 to 35 below) for both complainants and suspects. It results in a situation in which the philosophical beliefs of one cohort of suspects will or may:

(i) impact on the likelihood of charge;

(ii) determine the availability of a defence to any suspect;

(iii) undermine the accessibility and foreseeability of the law for suspects; and

(iv) diminish the legal protection for complainants from inhumane treatment.

27.       As a defence it could only be afforded to people who believe in gender ideology or purport to do so (the availability of such a defence could be expected to encourage false declarations of belief). Its success or otherwise at trial would depend on the ideological beliefs of a jury, because a jury will only be able to accept that gender identity renders a deception inadvertent if the members subscribe to specific precepts of gender ideology. It would not, therefore, be a question of whether the members of the jury accept a defendant’s account, but whether they agree with its ideological premise. That is an invidious position in which to place both a complainant and a defendant, and a wholly unreasonable approach to the assessment of evidence in making a charging decision. It is doubtful that so arbitrary an operation of the law would satisfy the definition of an impartial tribunal for the purposes of Article 6 or the qualitative requirements of legality for the purposes of Article 7.

RELEVANT CONSIDERATIONS UNDER THE ECHR

Article 3: Prohibition of Inhumane Treatment

28.       Rape and Sexual Assault amount to inhumane treatment for the purposes of Article 3. The right not to be subjected to such treatment is absolute, and the effect of Articles 3 and 8 is to impose on the State an obligation to provide protection from, and legal redress for, rape and sexual assault committed by private individuals[10]. To the extent that the guidance precludes or impedes a positive charging decision on an unlawful basis, it runs contrary to Article 3 amounting to a failure by the State to meet those obligations.

Article 8: Respect for Private and Family Life 

29.       The most prominent legal error in respect of Article 8 is the silence as to a complainant’s rights to a private and family life (in particular as they interact with Article 3 rights). Article 8 rights apply to all individuals in the context of consent obtained by deception and the investigation into, charging decisions about, and the prosecution of such an allegation. The interference with rights to a private and family life involved in the prevention of crime[11] (as well as the protection of rights under Article 3) is justified where it represents a proportionate means of achieving a legitimate aim, necessary in a democratic society. The guidance views rights to a private and family life exclusively through the prism of the deceiver’s experience without any apparent regard for that of the deceived.         

30.       The sections entitled ‘Gender Dysphoria’ and ‘Gender Recognition Act’ disclose two further errors of law. One is to extend, without any legal basis, the protected characteristic of gender reassignment to include anyone with a stated gender identity which is at variance from their biological sex. The other is to treat privacy , again without any legal basis as a freestanding matter to be taken into account in assessing the factual matrix of an allegation, specifically the question of privacy as to a suspect’s biological sex. Both of these errors are in concert with the legal changes contended for by lobbying organisations such as Stonewall, Mermaids, Gendered Intelligence, Global Butterflies etc (all primarily concerned with the promotion and legal adoption of gender ideology).    

31.       In support of the erroneous approach to rights to a private and family life, the guidance cites the ‘CPS Trans Equality Statement’ from 2019 and the Equal Treatment Bench Book 2021. Neither has any legal force. The former was promulgated shortly before the short-lived CPS LGBT Hate Crime guidance for schools[12]. Emphasis is also placed on s.22 of the GRA which provides that it is an offence for a person who has acquired information about a person’s GRC in an official capacity to disclose this information to another person. Whilst the citation of this provision is not inaccurate, it discloses a partiality in the perspective of those drafting the policy. The restrictions on data processing set out in s.22 GRA add nothing to the provisions of Article 9(1) of the UK GDPR and s.170 Data Protection Act 2018 in respect of those holding, or applying for, a GRC. Article 9(1) of the UK GDPR, however, applies equally to all suspects and all complainants in allegations of sexual offending. In the context of a document suffused with the language of gender ideology, this choice does not present as inadvertent or politically neutral.   

32.       The obligations of Article 14 apply to the protection of Article 8 rights for both complainant and suspect. Trans identified people have a right not to be discriminated against in the enjoyment of their right to privacy. But a decision not to prosecute based on the legal errors in this guidance would engage the Article 8 and 14 rights of complainants, since the vast majority of complainants in such allegations are female. The scope of deceptions capable of vitiating consent to sexual activity is already extremely narrow; this guidance would limit that scope further, and exclusively to the benefit of trans-identified suspects. In doing so, it would reduce the level of protection afforded to victims whose consent has been obtained by deception as to the accused’s sex. This introduces an asymmetry to the protection against deception, leaving some victims at a material disadvantage against those whose consent has been vitiated by other operative deceptions, or by suspects who do not identify as trans. It creates a further asymmetry in the approach to charging as between those suspects who identify as trans (or claim to) and those who do not, engaging the Article 14 rights of suspects who do not identify as trans in respect of their protection under Article 7.         

33.       The legal position in respect of privacy as it pertains to consent obtained by deception is as follows:

(i)        There is no legal authority for the proposition that a person has a privacy right to withhold the fact of his/her biological sex from a sexual partner.

(ii)       The Article 8 rights of complainants in allegations of sexual offending are engaged; the right to privacy encompasses a complainant’s psychological integrity, bodily autonomy and dignity, all of which are centrally relevant to both the act(s) complained of and any consequential investigation and litigation.

(iii)      Complainants in allegations of sexual offending have an enhanced general position in privacy in domestic law[13].            

(iv)      To the extent that an accused person can rely on the right to respect for his/her private and family life, the right to privacy is generally lost upon charge[14]. Such exceptional cases in which a right to privacy subsists are dealt with by way of reporting restrictions.    

(v)       The right to anonymity for a defendant is a matter of ongoing contention and would require the authority of primary legislation before it could be given effect. 

(vi)      There is no reason why a trans identified suspect (or a suspect claiming to identify as trans) should have an enhanced right to privacy where another suspect would not. Such a proposition enjoys no support from s.22 GRA, the Data Protection Act 2018, the Equality Act 2010, the Human Rights Act 1998 or any case law.

(vii)     If, and to the extent that, both complainant and accused have ECHR rights engaged, the proper approach is the “intense focus” test[15], articulated by Lord Steyn at §17 thus:

“First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

34.       The process of accurately identifying rights to a private and family life as they relate to trans identified suspects has been made significantly more difficult by the way in which the guidance creates a single cohort of people with different legal statuses. Those with a GRC fall under Article 9(1) of the UK GDPR, and s.7 of the Equality Act 2010. Those without a GRC but who are “proposing to undergo, undergoing or ha[ve] undergone a process (or part of a process) for the purpose of reassigning [their] sex by changing physiological or other attributes of sex” fall under s.7 EA 2010. Those who have not undergone, and do not propose to undergo, any process of sex reassignment but who assert a gender identity different from their sex do not fall into the scope of either provision. None of the categories are entitled to an enhanced right to privacy, and the latter two have no access to the data processing limitations of Article 9(1) of the UK GDPR.[16]

UNLAWFULNESS

35.       The introductory remarks state that the proposed guidance is intended to assist prosecutors with a complex area of law. Since the unwavering focus of the proposed guidance is the trans-identified suspect’s right to privacy pursuant to Article 8, as it is said to interact with domestic law on deliberate deception as to sex, it would be reasonable to expect an indication of where, the protection of a suspect’s Article 8 rights is failing in practice. The consultation document is, however, silent as to this. Expressed bluntly, the guidance creates the impression that suspects who identify as trans should be more readily excused criminal liability for deception as to sex, not because the deception was not deliberate, but because they identify as trans.            

36.       The guidance treats a suspect’s gender identity as a relevant, or even determinative, factor in establishing whether a deliberate deception as to sex has occurred. Whether it is right, desirable or workable for this position to be brought into law is an undoubtedly important issue. It remains, however, unlitigated and unlegislated. Embedding a preferred view on the matter into policy in this way represents an overreach on the part of the CPS so startling that it could be described as an attempt to usurp the function of Parliament. The effect of the guidance is to interpret and apply the substantive law as though it had been changed in a number of respects, all of which are so significant that they would require binding judicial authority at the very least, if not primary legislation. This goes far beyond the CPS’s duty to apply the law and trespasses unambiguously into the territory of making law. It is frustrating the legislative function conferred on the CPS and is ultra vires.

37.       The guidance elides two categorically different uses of the word ‘gender’ in circumstances where the distinction between the two is central to the legal issue at hand. ‘Gender’ in the sense that it was used by Leveson LJ in McNally means biological sex, a matter which meets the legal requirement of proximity to the nature and purpose of the sexual act. This is the only meaning of ‘gender’ pertinent to the question of whether a deception as to sex was deliberate. ‘Gender’ in any of its other senses (a societal system of norms used to protect and enforce inequality between men and women, an individual’s metaphysical ‘sense of self’, a political identity etc) is incapable of meeting that same requirement and is wholly irrelevant to the assessment of whether a deliberate deception took place. The elision of these two matters for the purposes of applying the legal test does not serve the stated aim of the consultation (to assist prosecutors to have a better understanding of the law). Instead, it appears to promote an avoidable, unnecessary and legally baseless confusion with the result that prosecutors will be advised to make decisions on the basis of irrelevant considerations. This is an error of law and is, in our view, unlawful.

38.       The guidance expands beyond their legal definition the scope of s.9 of the Gender Recognition Act 2004 (misinterpreting the phrase “for all purposes” as applying far beyond the GRC holder’s public life) and s.7 of the Equality Act 2010 (to construe the protected characteristic of gender reassignment as being coterminous with gender identity), such as to make the legal and practical consequences of those provisions opaque. The combined effect of these misinterpretations is to confer a special status (reaching beyond the protections of the Equality Act 2010, the Gender Recognition Act 2004 or the Data Protection Act 2018) on an expanded cohort of suspects, whose common characteristic (gender identity) is not legally recognised. This further renders the guidance unlawful for errors of law and frustration of the legislative purpose.          

            THE SECTIONS

Gender Dysphoria

39.       Two sentences of this section are dedicated to the explanation of gender dysphoria as a medical diagnosis. The remainder of the section is given over to the somewhat different (and non-medical) topic of gender identity, perhaps to suggest that the two are largely coextensive. The relevant point is that both gender dysphoria and gender identity involve an individual having a clear understanding of what his or her biological sex is. Neither has any impact on the fact or nature of a deception as to sex.      

Evidential Considerations

40.       The point extracted from paragraph 26 of R v McNally [2013] EWCA Crim 1051 is correct, in that the CACD did find that the Appellant’s deception was deliberate. From this, the CPS assumes the position that the ‘inadvertent but operative’ deception as to sex is something of which a suspect should be able to avail him or herself by relying on the authenticity of his or her gender identity to establish inadvertence.            

41.       The axis around which the deception turns is the physical binary of sex; unless and until Parliament decides otherwise, gender identity is immaterial for the purposes of establishing whether there has been such a deception or whether it was deliberate; any guidance must reflect this fact in a way that is logical and immediately comprehensible. Deception as to gender/gender identity cannot negative consent, because a person’s stated ‘internal sense of self’ (sincere or otherwise) does not meet the threshold of proximity either to the ‘nature or purpose of the act’ for the purposes of s.76 SOA 2003 or to the act itself for the purposes of s.74 SOA 2003[17]. One need only consider a scenario in which B (a female) consents to penetrative intercourse with A (a male) on the basis that A has told B that his gender identity is Genderqueer, when it is, in fact, Two-Spirit. However unlikely such a scenario might be, no rational reading of the law would support the conclusion that B’s consent was vitiated by A’s deception.

42.       By contrast, misrepresenting one’s gender identity as one’s sex (where the former is opposed to the latter) is a necessarily deliberate deception. Every person knows their sex from a very young age, long before the age of consent. A person’s feelings or beliefs about the fact of their sex may be a source of great distress and pain to them, but the legal fiction afforded by a GRC cannot trespass into the arena of sexual consent. To operate otherwise would be to prioritise the privacy and dignity of some people at the expense of the privacy, dignity and right not to be subjected to inhumane treatment of their current or prospective sexual partners.     

43.       Virtually everything in the following extract from this section is legally confused or  wrong. This passage is diagnostic of the extent to which the proposed guidance is an ideologically driven attempt to circumvent the law as it currently stands:

“There is no duty to disclose gender history[18], but in some circumstances suspects who are living in a new gender identity at the time of the alleged offending (as opposed to falsely purporting to be a different gender), including those who have obtained a GRC[19], may still be capable of actively deceiving a complainant as to such matters relating to their gender. For example, where a suspect falsely asserts that their gender identity is the same as their birth gender/assigned biological sex[20]; or lies in response to questions about their gender history; or denies being a trans man or a trans woman[21].”

44.       It is, perhaps, worth noting that at §10 of McNally, the appellant was described as repeatedly expressing the desire for a “sex change”. As previously observed, McNally uses the language of 2013, but the terminology of gender ideology would have little difficulty in describing her as a ‘trans man’. The proposed guidance may well result in a decision not to charge in the circumstances that met the court in McNally. The decision in McNally has drawn criticism from prominent proponents of gender ideology[22], to the effect that deception as to sex does not incur sufficient harm to justify the interference with a transgender suspect’s privacy. The authors of this policy appear to be seeking to overturn McNally without having to wait for any countervailing authority or legislation. 

45.       The legal protection of gender reassignment (not gender identity) creates conflicts with two other protected characteristics; sex and sexual orientation. It is difficult to identify an area of life in which those conflicts have a greater impact than they do in sexual activity. The centrality of a partner’s sex to a victim’s freedom and capacity to choose, and therefore consent, is set out in paragraph 26 of McNally:

“Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common-sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant’s deception.”

46.       In the section ‘Was the complainant deceived and therefore did not consent?’, the influence of the gender ideology lobby is evident once again. Half of the questions invite an approach in which a complainant should be considered responsible for establishing whether s/he is being deceived about a sexual partner’s sex.

“Has the complainant closed their eyes to the obvious or wilfully ignored aspects of the suspect’s gender? For instance, did the complainant have an opportunity to discover or confirm the gender of the suspect but chose not to avail themselves of the opportunity?”          
and

“Is there any evidence that the complainant was exploring their own sexuality at the time of the alleged offending?”

47.       It has been a number of years since so sceptical an assessment of complainants of sexual offending has been considered acceptable at the CPS. This runs counter to the strategy of ‘offender focused’ investigations which the CPS has developed as part of its Violence Against Women and Girls strategy.                 

48.       The adoption of these revisions would expose the CPS to the very real risk of litigation on the basis that the guidance is irrational and unreasonable, that it breaches of the rights of victims under Articles 3, 7, 8, and 14 of the ECHR, the rights of suspects under Articles 7, 8 and 14 of the ECHR, and the Public Sector Equality Duty pursuant to s.149 of the Equality Act. The absence of an Equality Impact Assessment for this consultation is striking; it could be fairly regarded as shorthand for the comprehensive failure – or refusal – to consider the multiple conflicts of rights thrown up by this guidance.  

49.       For all the above reasons, we urge the CPS to suspend the current guidance and to withdraw these proposals. Any replacement must be drafted with the objective of upholding the CPS’s legal obligations as they are, and not as some would wish them to be.

[1] s.74 Sexual Offences Act 2003

[2] R v McNally [2013] EWCA Crim 1051

[3] S.6 Human Rights Act 1998

[4] Corbett v Corbett [1971]; Bellinger v Bellinger [2003] 2 AC 467, HL; Chief Constable of West Yorkshire Police v A (No 2) [2005] 1 AC 51, HL

[5] S.11 and s.212 Equality Act 2010

[6] S.7 ibid

[7] [2022] I.C.R. 1 at §97

[8] R (oao Elan Cane (Appellant)) v SSHD [2021] UKSC 56 at §3

[9] R v Jheeta [2007] 2 Cr. App. R. 34 §24; R(F) v DPP [2013] 2 Cr. App. R. 21; R v McNally (2013) EWCA Crim 1051; R (Monica) v. Director of Public Prosecutions [2018] EWHC 3508 (Admin) at §74, §80; R v Lawrance (2020] EWCA Crim 971

[10] MC v Bulgaria (2005) 40 E.H.R.R. 20 at paragraphs 151-153; D v Commissioner of Police for the Metropolis [2019] A.C. 196

[11] Article 8(2) ECHR

[12] This was withdrawn in 2020 in the early stages of a public law challenge

[13] S.1 Sexual Offences (Amendment) Act 1992

[14] ZXC v Bloomberg [2022] UKSC 5

[15] In re S [2004] HL 47

[16] Article 9(2)(f) UK GDPR

[17] R v Lawrance (2020] EWCA Crim 971, Assange v Sweden [2011] EWHC 2849 (Admin), R (oao Monica) v DPP [2018] EWCA 3508 (Admin)

[18] Assuming that ‘gender history’ includes a reference to a person’s biological sex, this is a somewhat tendentious interpretation of R v B [2006] EWCA Crim 2945 and sits in contradiction to Lawrance at paragraph 41.

[19] This implies, incorrectly, that possession of a GRC entitles a person to deceive a sexual partner about their biological sex.  

[20] See §17ff above

[21] This clearly relates to the fact of a person’s biological sex

[22] See e.g.; ‘Sexual Intimacy and Gender Identity ‘Fraud’: Reframing the Legal and Ethical Debate’; Alex Sharpe, Routledge

CONFLICTS OF INTEREST

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

A thought experiment

Take a religious group – something like Opus Dei, for instance. What might it do if determined enough? Let’s imagine. 

  • It successfully presents itself as the only valid representative of all Catholics, indeed, all Christians in the UK – at least as far as the press and politicians are concerned. 
  • It attracts support from popular celebrities. 
  • It speaks regularly about discrimination against Catholics, how marginalised a minority and about their human rights (“Catholic rights are human rights”). 
  • It says anyone raising concerns about child abuse by Catholic clergy shows hatred. 
  • It describes those who criticize it or Catholics generally as “heretics” and “hate groups” or phobic.
  • It runs schemes whereby, for money, it audits organizations for how pro-Catholic – as determined by Opus Dei – they are. 
  • It advises organizations and trains their employees on language, facilities, policies, the steps they must take – both internally and externally – to promote the faith as promulgated by Opus Dei and earn those points. 
  • It requires organizations to teach all its staff (not simply Catholic ones) to talk about their souls, use religious language in their communications and remove any language or expressions which might offend Catholics. 
  • It publishes league tables identifying which organizations are the most pro-Catholic, as decided by it. 
  • It campaigns for changes in legislation to promote its religious ideals, changes which significantly alter existing equality legislation, especially for those opposed to religion having a say in legislation or affected by the changes it lobbies for. 
  • It lobbies for the abolition of civil and same sex marriage so that marriage will be  based on Opus Dei’s understanding of the Sacraments. 
  • It advises organizations on equality law based on what it would like the law to be.
  • It provides training and information packs to be used by schools. 
  • It has a flag, special days to celebrate what it stands for and regular public events at which employees from its members dress up in its religious habits and use its symbols, on vehicles, buildings and elsewhere. 

Finally, imagine that many of the organizations where Opus Dei do this are state or state-funded organizations – the police, local authorities, government departments, grant-giving bodies and health authorities. They sign up to its creed, use its language, promote its symbols and congratulate themselves not just on not being anti-Catholic but on being proudly pro-Catholic, pro-Opus Dei. 

Reasons for worry?

You’d think, wouldn’t you, that this is a bit odd. You’d be concerned at how a particular ideology was being spread without anyone else having a say. You’d be concerned that this seems to put the rights, interests and views of one group above those of others. You’d worry that it appears to be distorting or misinterpreting equality legislation. You might even wonder at the number of law firms signing up, thinking they’d be well placed to understand the law without the need to rely on non-legal lobbyists. You’d worry that the normal space for disagreement about aims and means was being squeezed out if any disagreement or challenge or questioning was described as “hate” and those expressing such concerns as “hate groups”. Above all, you’d worry that this creates a conflict of interest between what such organizations are legally required to do for all citizens and what they have agreed to do to satisfy Opus Dei and maintain their position in its league tables. 

You don’t, of course, need to imagine any of this because it is happening now. Substitute Stonewall for Opus Dei and it pretty much describes how Stonewall currently operates. 

The consequences

Those state organizations which sign up to Stonewall’s schemes have created multiple conflicts of interest: between themselves as employers and different groups of employees and between their public duties and their legal obligations to all citizens. They have blurred the distinction between a body carrying out public functions under existing laws and campaigning lobbyists. They have failed to recognise that such conflicts of interest exist. They have failed to consider the creation of a perception of such conflicts of interest, even if that was not their intention. They appear not to understand the problems arising when a body implementing the law acts as if changes desired by a lobby group advising it had already happened. Since they have not understood any of this, they have taken no steps to eliminate or mitigate such conflicts of interest. 

This is why we get the usual cycle of some unacceptable action or comment, protest, panic by the organization concerned, withdrawal of the original comment/action accompanied by an apology blaming it all on an underling/a mistake and assurance that whatever happened was not in line with their “values”. The fundamental underlying problem and how to address it seems to pass them by entirely.

The police

Nowhere is the existence of such conflicts of interest more troubling than in the police. The police enforce the criminal law. They have significant powers over us. They have a duty to police “without fear or favour”. They need not just do this but be seen to do this. The reality of bias, the perception of a bias are damaging to proper policing. Such conflicts of interest risk damaging the rule of law and citizens’ faith in it. 

This has been made more acute by three factors: 

(1) Police misunderstanding their obligations as employers under equalities legislation.

(2) Confusing their obligations as an employer with their outward-facing public service obligations.

(3) The police’s approach to non-crime hate incidents. 

Equalities laws and discrimination

Discrimination against police officers from minorities has understandably led to counter-measures. But what the police appear to have forgotten is that the obligation not to discriminate applies to all its staff. It does not simply apply to one group with a strong lobby behind it. In following the diktats of one lobby group, the police risk behaving in a way which discriminates, whether directly or indirectly, against others. For an excellent, detailed explanation of why – and the risks involved -, see Naomi Cunningham’s blog – https://wwww.legalfeminist.org.uk/2021/02/01/submission-and-compliance/.

Public duties

This approach has extended to its public-facing duties, as a direct result of the reach of Stonewall’s schemes. The training of staff according to Stonewall’s views will inevitably affect how they carry out their duties towards the public. More explicitly, Stonewall’s schemes expressly cover “service users”. For public bodies, this means us. It is astonishing and worrying that any public body – let alone the police – should think it appropriate to allow a lobby group to dictate, influence or advise on the performance of its public functions. The police’s sole purpose is to enforce the criminal law. When it needs advice, it should obtain this from expert criminal lawyers. If it needs advice on complying with equality law, it should obtain this from expert equality lawyers. What it should not do is obtain advice or training from – or be influenced by – a lobby group primarily acting for only one of the groups it polices. What is even more worrying is that in all the time the police have been part of Stonewall’s schemes, it appears not to have obtained legal advice on whether doing so creates a conflict of interest or the perception of one and whether, if so, this creates a risk in how it carries out its public duties.

Non-crime “hate”

The final point relates to the police’s approach to non-crime hate incidents. One might ask why the police are involved at all in matters which are not crimes. Whatever the reason, they have got themselves involved in what Lord Moulton described some 90 years ago as the “realm of manners” – that space between the law at one end and free choice at the other. 

They have allied themselves closely with one lobby group and adopted its view on matters where there are both differences of opinion, a changing scientific context and legislation and case law different to what the lobby group believes or wants. In so doing, the police have put themselves in a position where those who disagree with Stonewall’s position can have little 

confidence that in any incident involving such matters the police will be – and be seen as – compliant with the law, not overreaching their powers and impartial. 

This last point was seen in the Miller case where the Court of Appeal held that police guidance to record non-crime hate incidents –

“is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate”. 

A year later, the College of Policing is proposing (apparently on legal advice) guidance allowing transgender officers to search those of the opposite sex to that of the transgender officer. This appears to be a breach of the relevant PACE provisions. It is, however, consistent with Stonewall’s view that a man who believes he is a woman is one and so should be allowed to carry out an intimate search of a woman. According to reports, the guidance also appears to suggest that a refusal by a woman or request for a female officer could be classed as a hate crime. The underlying assumption appears to be that intimate searches of the public are a service which, say, women should not deny to trans-identified male officers. This is a topsy turvy approach to police compliance with a law, one brought in after miscarriages of justice and police misbehaviour to ensure that evidence is properly collected without a sexual assault being committed and with proper regard for the dignity of the person being searched who is, it should be remembered, innocent. 

We’ve been here before

The police being beholden to groups with an agenda is not a new problem. In Northern Ireland ever since its establishment, the RUC was seen as the explicitly anti-Catholic enforcement arm of a “Protestant Parliament for a Protestant people”. The bias was real and ultimately fatal to the rule of law there. More recently, the issue of Freemasonry raised similar concerns. During the 1960’s and 1970’s, concerns about corruption in police forces arose because of a perception that Masonic officers were putting the interests of fellow Masons above those of the force as a whole or their obligation to obey the law. Membership of a secret organization was eventually seen as creating a conflict of interest between a police officer’s duties and his obligations as a Mason. There is an echo of this in the way that Stonewall’s agreements with members of its schemes are not made public on the grounds of commercial confidentiality, despite the obligations they place on public servants.

Now

This time it is not whether individual officers may have a conflict of interest. Rather it is that police forces – by making themselves beholden to Stonewall’s agenda through its schemes – are explicitly putting themselves in a position where one cannot be confident that police decisions aren’t distorted by their membership of those schemes. For instance, how can women arguing for single sex spaces facing a demonstration by those demanding they include transwomen have confidence in policing of such a demo by police trained by those arguing the latter and turning up in a car painted in Stonewall colours? How can someone objecting to a potential breach of PACE be confident that they won’t be unfairly charged with a hate crime or have a non-crime hate incident recorded against their name if the police force has signed up to guidance permitting this? 

How can one have confidence that the police – or other public authorities (see, for instance, the latest furore over the withdrawal of an Arts Council grant to a lesbian organisation opposed by Stonewall) – will not, in part (maybe unconsciously), be influenced by their desire to please Stonewall? One can’t. There is a clear conflict of interest. There is certainly a perception of one. The police should never have allowed this to arise. Nor should other public authorities. Or private bodies, for that matter. But at least there we have a choice. We do not with state bodies.

It is long past the time for them to stop outsourcing their thinking to – and seeking to comply with the requirements of – lobby groups. If such bodies won’t act, the government should intervene. Conflicts of interest are the sine qua non of all scandals. This one is no longer even hiding in plain sight.