Meshed Up: The Treatment of Women Following Mesh Surgery

Victoria Phillips, partner and head of employment rights (client relations) at social justice law firm Thompsons Solicitors, discusses how women have been treated following complications from surgical mesh.

Over the years, there has been growing awareness and press coverage surrounding the issues of surgical mesh, particularly following the publication of the Independent Medicines and Medical Devices Safety Review on 8 July 2020, led by Baroness Cumberlege. The First Do No Harm report looked into three medical scandals: primodos, a hormone pregnancy test associated with birth defects that was withdrawn in the 1970s; sodium valproate, an anti-epileptic drug, which can harm children during pregnancy; and vaginal mesh implants, a cause of unbearable pain and life-long complications. 

We represent more than 200 women in vaginal mesh surgery claims so, in terms of the review, our focus has always been on this medical intervention. But the commonalities that bind the three are far more staggering than their differences. The review had many overarching themes but the concerns of female patients being ignored by health professionals was a significant common denominator, which exposed an institutionalised inability for the healthcare system to listen to women.

At Thompsons Solicitors, we’ve witnessed how male surgeons patronise female patients and dismiss legitimate concerns in a way that we’re convinced would never happen if the patient was a man. There has been an overriding  paternalistic approach to female issues and patients have had no choice but to trust their surgeon, despite their body telling them something quite different. 

If mesh was to be inserted anywhere near male sexual organs, I believe there would have been rigorous and comprehensive pre-market testing before it was even hinted at as a potential treatment option. If there was even a slight risk to a man’s ability to function sexually , mesh probably would have been dropped far sooner, or more likely, never considered an option in the first place. 

It begs the question that should a man have been put in the same position, would he have been given all of the necessary information? Would he have been listened to when he voiced concerns about the pain he was feeling after his mesh surgery? Would his medical team have looked into the issue thoroughly and found a suitable alternative? Looking at the findings of the review and speaking to our clients, the answer is a resounding yes. Instead, women were told it was “all in their head”, or part of the menopause, and often referred for counselling in lieu of any effort being made to discover the true cause of their agony. 

Many who had mesh surgery didn’t experience issues until years later, but some reported pain and complications immediately after regaining consciousness from their surgeries with assurances it was completely normal and in time would wane. For thousands of women, it never did. They spoke to their GPs, numerous surgeons and other healthcare professionals but were often dismissed  when they suggested their pain was from mesh. One client recalled her surgeon telling her parents she was inventing her pain because of school-related anxiety. That client has since been told the rectopexy surgery she had at just 15 years old, which has left her self-irrigating every night since, was unnecessary. She must continue to self-irrigate for the foreseeable future, unless she agrees to have a colostomy bag. She is just 22 years old. 

The review team heard hundreds of accounts across the country on all three health scandals and Baroness Cumberlege summed it up by saying she “couldn’t believe that people had gone through so much agony and suffering and had been ignored” and that “much of this suffering was entirely avoidable.” 

The life-changing disabilities our clients have suffered from mesh implants has been heart-breaking to see. There has been a systematic failure with a lack of warning from both the manufacturers and the surgeons and hospitals who carried out the operations, without adequate consent. When they tried to complain, our clients faced rejection and belittlement while being wracked with pain. 

Baroness Cumberlege didn’t pull any punches in her review. The changes she called for are too late for those we represent, but they offer the possibility of real reform. This is not just about the NHS. Her recommendations must equally apply to the private healthcare sector, which is every bit, if not more, complicit. 

An apology to the women and men who have suffered, as well as their families, is as welcome as it is overdue, but it won’t bring back the people our clients once were or the childhoods or relationships they have lost. 

To ensure this is not a further slap in the face for our clients, and others affected, the promised changes must be swift, real and resourced from new money, not recycled funds taken from other parts of the health service.

What those who have suffered for so long deserve is decisive action that leads to real change. And that must start without delay.

Pronouns: Compulsion and Controversy

BBC employees are being “encouraged” to put pronouns at the end of their emails and we look at the possible issues here. Is that a kindness that  only a misanthrope could oppose, or is there more to it?   

Compelled speech

The first issue is that of compelled speech. Pronouns are not neutral. The move towards declaration of pronouns presupposes that everyone “has pronouns”; which is to say that everyone has an inner gender identity, and being described by the pronouns he / him, she / her, they / them, zie / zem, or something else is an expression of that identity. It also suggests that there may  be repercussions for failing to remember a colleague’s preferred pronouns. 

This is a highly political position. At the moment, the law recognises two sexes (male and female) through s.212 Equality Act 2010, and that a person can change their legal sex from one to the other by operation of the GRA 2004. There is also established case law which recognises that a person’s gender can be central to their private life protected by Article 8. The law does not lay down that a) everyone has a gender or b) that gender is innate.

The concept of gender identity entered the legal lexicon with the Yogyakarta Principles. These Principles do not carry legal force, but have often been adopted as a convenient shorthand. They were drafted in response to global discrimination and persecution of LGBT people. The definition given of gender identity is this:

We can see two things from this: first, that it assumes that each person does have a deeply felt internal and individual experience of gender. Secondly, that it rather correlates to the Equality Act definition of gender reassignment, envisaging a process which may include medical modifications, rather than a simple declaration. 

But the more commonly used definition in the UK is that provided by Stonewall through their training. You can see that Stonewall depart from the idea of reassignment altogether (it is described as “a term of contention” in their glossary). Here are their definitions of gender and of gender identity:

What does this mean? Three things: a) that everyone has an “innate” sense of gender; b) that “culturally determined” masculinity and femininity is innate to males and females; and c) that those who reject their culturally determined gender are at odds with their sex, while those who embrace it are aligned with their sex, and are “cis.”

This is a political, and controversial, perspective. There are many people, male and female, across the political spectrum, and across sexual orientations, who regard it as problematic. It is a particular issue for those women who reject culturally determined femininity as oppressive and sexist, and for whom the idea that it is innate to most women – and by extension, that for those to whom it is not innate are not fully women – is nothing more than reinforcement of harmful stereotypes. 

It is from the belief that gender is innate that the drive to announce one’s pronouns stems, because pronouns then become an expression of individual gender rather than a convenient linguistic replacement for a proper noun. 

Insisting that employees put pronouns into their signature therefore leaves women who do not accept innate gender theory in a dilemma. They must either comply,  aligning themselves with a political position they disagree with;  or else reveal their political views in the workplace, which carries  a risk of adverse consequences. We know that the popularity of innate gender theory means that those who take the contrary view may be visited with vile abuse, reported to their regulator, complained about to their employer, or even fired – so a woman who opposes innate gender theory may nevertheless feel obliged to comply through fear of losing her employment or being socially ostracised.

Some will suggest that this is acceptable – that to reject the notion of innate gender is so repugnant that those who do so must expect to face adverse consequences. They may point to EJ Tayler’s judgment in Maya Forstater’s case that gender critical beliefs did not qualify as a protected characteristic under the Equality Act 2010 for that reason.  There are two answers to that. The first is that a first instance employment tribunal judgment has no weight as precedent, and this particular judgment is under appeal, and seems likely to be overturned. The second is that there is a great difference between disciplining an employee or treating them adversely because they voluntarily express opinions that they know to be controversial on the one hand, and forcing employees to sign up in public with a political statement that they may find profoundly objectionable. 

A belief that gender identity is innate may also be quasi-religious; the concept that each of us has an inner being, a soul, which is gendered, contained inside the mortal flesh which has a reproductive sex that may not match that gender. As the MP Layla Moran said, “I believe that women are women…. I see someone in their soul and as a person. I do not really care whether they have a male body.”

It has long been held that the freedom to believe is matched by the freedom to disbelieve, not just for outright atheists but also ‘sceptics and the unconcerned;’ as per §31 of Kokkinakis v Greece (1994) 17 EHRR 397:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

Freedom to disbelieve in the context of political, not just religious, scepticism was considered in RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38. The Court commented that “As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs…. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviours.” The Appellants, who were politically indifferent, were protected as they could not be expected to assert loyalty to the Zanu-PF regime in Zimbabwe against their true views.

RT (Zimbabwe) was cited in the more recent case of Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) (Rev 1) [2018] UKSC 49 (often described as “the gay cake case.”) The bakery could not be compelled to ice a message “with which they profoundly disagreed” onto a cake. It is difficult to see how an employee could be compelled to align themselves with a perspective with which they profoundly disagree in their email signature.

Sex Discrimination

The next issue is whether a female employee encouraged or compelled to declare pronouns could legitimately argue that this discriminates against her, directly or indirectly, because of her sex. 

We know that sexism in the workplace is far from over. Conscious or unconscious bias operates against women. This example, from 2017, illustrates the point: when Nicole and Martin swapped email signatures, they learned that “Nicole” would be perceived as far less competent than “Martin” by clients. Without that sexism, if Nicole truly had been less competent, she would still have been regarded as such when signing off as Martin – and yet that is not what happened. 

In 2019, the Royal Society of Chemistry undertook an analysis of gender bias publishing in the chemical sciences. It recognised that biases were “subtle” and could be “inadvertent.” Women were invited to review less often, their work was more harshly received, their initial submissions more frequently rejected. These “small biases” led to a “significant cumulative effect.”

The RSC are not the only organisation to have done such research. Others have found similar results, and of course there are numerous articles spanning the last decade or more which find that CVs with a female name get poorer results than the same CV carrying a male name. CV writing services recommend against including gender on the CV – a practice which used to be common and is now recognised as archaic. Race is also a factor – although for now at least, nobody is suggesting we declare our race at the bottom of email signatures.

And it is not just the recipient of the email who may be unconsciously biased against a female sender. The female sender herself may be subject to ‘stereotype threat.’ This is where a person is reminded of membership of their group and then under-performs; for example, women who were told that women do worse than men in maths tests then really did perform significantly worse in a maths test than women who were told there was no difference in performance (Cordelia Fine, Delusions of Gender, p.32-33). Even being reminded of one’s own sex at the beginning of a test can have the same effect (ibid, p32). 

It would seem that women who are compelled to declare female pronouns in their signatures may be vulnerable to stereotype threat and also to unconscious bias on the part of the recipient of the email, thereby entrenching those biases further. 

This does not mean that any woman whose workplace initiates a pronoun policy has an automatic, unassailable, claim. An employer might defend the claim by arguing that they are aware of the negative impact on women but that it is justified as a proportionate means of achieving  its legitimate aim of trying to create an inclusive work environment. Argument and evidence would then centre on balancing the potential harms and benefits of the policy. It would be relevant, for example, if the employer was already struggling with recruitment and retention of women, or if there were a male / female disparity in sales commission. The ‘compelled speech’ aspect of the policy would also be relevant to this balancing exercise. 

Summary

It should go without saying that if an employee is beginning gender reassignment and wishes their colleagues to use a different pronoun for them, they should be supported to do so. There are rightly prohibitions on victimisation and harassment on the grounds of gender reassignment. That person may wish to send an email round-robin with their news, or may wish to have their pronouns in their email; an employer should not prevent that. However, when the BBC’s guidance suggested that all employees should put pronouns in their signature, and said “It’s really simple,” that was, we suggest, premature, and may be experienced as coercive. And when they speak of “creating a culture where everyone feels comfortable introducing themselves with pronouns” they should also consider whether they might be inadvertently creating a culture where those with the she/her pronouns experience discrimination as a result of their sex. 

Friday Round Up

A busy week in feminist legal news!

In welcome news, the CPS and police have scrapped “digital strip searches” of rape complainants, following a threat of legal action from two survivors and the Centre for Women’s Justice.

Shamima Begum has been successful in her judicial review. She challenged the decision to deprive her of citizenship and the decision to refuse leave to enter the UK. It is likely that this case will now be appealed to the Supreme Court.

Kiera Bell has published her crowdfunder on Crowdjustice to raise funds to bring a legal challenge to gender identity theory in NHS England’s Memorandum of Understanding on Conversion Therapy, arguing that in its present form it prevents clinicians from providing appropriate care.

Permission has been granted for judicial review brought by four “age verification” companies against the Government’s decision to drop the ‘porn block’ planned through age verification to access pornography. The companies, who expected to sell their age verification product, argue that the Government had the power to postpone Part 3 of the Digital Verification Act 2017 but not to drop it altogether. It is unclear whether AgeID, owned by giant Mindgeek which also owns PornHub, Redtube, Youporn, Gaytube and others, is one of the claimants.

The Howard League for Penal Reform has published its paper “Rethinking Remand For Women” arguing that women are too often inappropriately remanded.

On appeal from Scotland’s High Court of Judiciary, the Supreme Court has ruled against Mark Sutherland in a case about the legitimacy of evidence obtained through vigilante groups. Sutherland, convicted after exchanging explicit messages with a decoy he believed to be 13, brought the appeal on the basis that the use of such evidence interfered with his Article 8 rights.

The government has published the Commons Library Briefing on gender recognition and the rights of transgender people. Oddly, this was published, then vanished for a few hours, then returned with two missing sections: specifically, the section on legal gender recognition not being possible for minors and the section on provisions to support transgender children in schools. It may be that these were removed from an earlier draft in view of ongoing legal challenges.

The University of Huddersfield has published its review of the Leeds Holbeck “managed area” on prostitution. FiLiA and Nordic Model Now have reviewed the review.

Internationally, the European Court of Human Rights has ruled in YT v Bulgaria that the Bulgarian government was not permitted to refuse a trans man any legal mechanism to change the legal sex on his documents. This ruling will bring Bulgaria into line with most of the rest of Europe.

Shamima Begum: the Court of Appeal decision

Shamima Begum, the British teenager who left her home at 15 to become an ISIS child bride, has successfully challenged two decisions. She had wanted to return to Britain, her home country.

The government revoked her citizenship, arguing that she would not be made stateless because she would be entitled to apply for Bangladeshi citizenship. She challenged this through an appeal to SIAC. SIAC rejected her appeal, on the basis that

  • her hearing would not be fair, but that was not determinative in her favour;
  • she would be entitled to Bangladeshi citizenship;
  • although she was living in conditions which breach Article 3, she was not entitled to protection under the Convention because she is outside the country as a result of her own action

At the same time, she had applied for leave to enter the UK. A British citizen may enter the UK, but as she had lost her citizenship, she needed to apply for permission to enter (commonly referred to as “a visa” although there are distinctions between different types of entry clearance and leave to enter). The Secretary of State (“SSHD”) refused. She applied for judicial review of this decision. Permission was granted but the substantive JR was refused.

She then appealed to the Court of Appeal on both decisions.

The Court has allowed both appeals, although stopped short of allowing the deprivation of citizenship appeal outright. Subject to an appeal to the Supreme Court, this would mean that she would return to the UK in order to have her citizenship appeal reheard. Giving the leading judgment, Flaux LJ (with whom King LJ and Singh LJ agreed) held that

The fact that she left the country of her own free will is premature, and irrelevant to whether she can have a fair hearing.

In my judgment, the circumstances in which Ms Begum left the UK and remained in Syria and whether she did so of her own free will should be irrelevant to the question of the legal and procedural consequences of SIAC’s conclusion that she cannot have a fair and effective appeal. Furthermore, I would be uneasy taking a course which, in effect, involved deciding that Ms Begum had left the UK as a 15 year old schoolgirl of her own free will in circumstances where one of the principal reasons why she cannot have a fair and effective appeal is her inability to give proper instructions or provide evidence. One of the topics that could be explored on her appeal before SIAC is precisely what were the circumstances in which she left the UK in 2015, but that could only properly be determined after a fair and effective appeal. The Secretary of State’s submission risks putting the cart before the horse.

§94

However, that does not mean that her appeal against deprivation of citizenship must just be allowed outright. To do so would mean that any appeal in similar circumstances, however lacking in merit, would also have to be allowed.

In particular, where, as in the present case, the deprivation decision is based on an expert assessment that it is in the interests of national security, simply allowing an appeal would set that assessment at nought, a point which was powerfully made by Sir James Eadie QC. That seems to me to be an extreme position which is wrong in principle and would potentially set a dangerous precedent.

§95

So what were her next options? The court looked at three of them: (i) that she could simply continue with her appeal, fair or otherwise, (ii) that she could apply for a stay of the appeal in the hope that at some point in the future she might be able to take part in it, or (iii) if she did not ask for a stay, she would inevitably fail to comply with a direction, the appeal would be struck out, but she might be able to apply to reinstate it.

Their Lordships appeared underwhelmed by options (i) and (iii).

The first and third of these courses can be swiftly dismissed as failing to answer the issue of unfairness and lack of effectiveness of the appeal. With due respect to SIAC, it is unthinkable that, having concluded that Ms Begum could not take any meaningful part in her appeal so that it could not be fair and effective, she should have to continue with her appeal nonetheless….
It is one thing for an appeal to proceed without the participation of the appellant against an appellant who chooses not to participate. It is quite another to proceed with an appeal without the participation of the appellant because the appellant is unable to participate meaningfully and effectively. Far from remedying the unfairness, this would seem to compound it. As Singh LJ said in the course of argument, it is difficult to conceive of any case where a court or tribunal has said we cannot hold a fair trial, but we are going to go on anyway.

§113 – 114

Option (iii) was considered, but rejected on the basis that it would be an indefinite stay, with the potential risk of execution or mistreatment abroad a “foreseeable risk.”

The Court pointed out that she can be held in custody or made subject to a TPIM, as has happened to others who appear to be far more dangerous and have been involved in actual fighting rather than ancillary support through becoming a wife.

It seems to me that… the national security concerns about her could be addressed and managed if she returns to the United Kingdom. If the Security Service and the Director of Public Prosecutions consider that the evidence and public interest tests for a prosecution for terrorist offences are met, she could be arrested and charged upon her arrival in the United Kingdom and remanded in custody pending trial. If that were not feasible, she could be made the subject of a TPIM.

§120

There seems little reason that Begum could not be prosecuted. s.17 Terrorism Act 2006 allows for prosecution in the UK of a person who commits a terrorism offence abroad. Even allowing that extra territorial jurisdiction was introduced for some of the specified offences (“inviting or expressing support”) only in 2019 and therefore may not apply, membership of a proscribed organisation, aiding, abetting, counselling or procuring the commission of an offence, could apply. This is not one of those cases in which a suspect argues that they were simply attending a distant relative’s wedding and naively wandered through a terrorist zone. She has given an interview expressing support for ISIS. The question is perhaps not whether she could be prosecuted, but why on earth she might not be.

It seems extremely likely that this case will now be appealed to the Supreme Court. An issue which will not trouble the Courts, but may vex the casual reader, is this: why is the Government taking such a hardline approach to an ISIS child bride, when they reportedly allowed back 400 actual fighters, surely far more culpable, to face prosecution and / or a comfortable sojourn at a “leading mental health clinic?”

Operating Hours: Time Does Not Expand

Guest blog:
Georgia Luscombe in our series on extended hours

This morning, Robert Buckland QC MP was interviewed on Radio 4 about possible ways to deal with the backlog of trials waiting to be heard in criminal courts. There are an estimated 500,000 cases in the Magistrates’ Court and over 40,000 in the Crown Court. The first thing to note, however, is that the bulk of this backlog is not due to the coronavirus pandemic grinding trials to a halt. It has long been known that this government and its predecessors were so intent on tightening the purse-strings that they would rather leave functional courtrooms closed and salaried judges at home than properly fund a court estate at full-capacity. So it came as some surprise to hear Buckland say, “the first thing to do is scale up capacity and use time in as expanded a way as possible and let’s see how far we can eat into the case load”. 

There is mounting political pressure on the government to manage ‘law and order’ effectively. For years now, criminal law practitioners have been complaining about delays to justice from the use of ‘release under investigation’, leaving suspects in limbo without charge for years to avoid time restrictions on bail. It is then galling to represent a client at their Plea and Trial Preparation Hearing in the Crown Court, years after an offence took place, and hear that their trial cannot be listed for many more months. Make no mistake, however, this was well before coronavirus. We can trot out the refrain that ‘justice delayed is justice denied’ and have been doing so for as long as I have been at the Bar. The police are underfunded and short on time, the CPS do not have enough staff, legal aid rates have been savaged so far that defence solicitors can barely pay their overheads. There is no reticence from criminal barristers to safely resume jury trials; our income wholly depends on it. The issue is that after years of swingeing cuts to the criminal justice system, there is no goodwill left to eke out of us. We know full well that ‘flexible operating hours’ means forcing practitioners to work longer and under even more pressured conditions to dig this government out of a hole of its own making, that we have been warning them about for years. 

My first year of practice (from the beginning of my second six) was primarily defending in the Magistrates’ Court, conducting trials on legal aid rates (usually £100 per trial). I practised about 50/50 in London and outside but usually with at least an hour’s travelling each way.  This was my working life: 

6 – 7am: Wake up, check e-mails, get ready. 

7 – 7.30am: Leave to travel to court.  

9am: Get to court, speak to the prosecutor, get last minute disclosure of key material to digest. 

9.30am: Conference with my client.
10am – whenever (sometimes 3.30pm because court will just list all trials at 10am and try to get through them, with no concern for lawyers’ wasted time): Waiting for trial to be called on. 

4.30pm: Finish in court. 

4.30 – 5pm: Another conference with client. 

5 – 7pm: Travel home. Write up today’s notes. At some point (usually around 5.30pm) receive papers for tomorrow. 

7pm: Eat dinner, try to forget today’s case. 

8 – 10pm: Prepare for tomorrow’s case. 

10pm: Inevitably get last-minute e-mails, maybe get instructed on another short hearing to squeeze in before the main event tomorrow. Struggle to switch off because of the adrenaline burst this late in the evening. 

Then factor in that most pupils and junior barristers are on a Saturday court rota. Mine usually meant making a bail application every other Saturday morning. I know pupils at other Chambers who had to go court every single Saturday. On Sunday you would try to catch up on admin, advices, remembering to renew your professional indemnity insurance, making sure you’re doing some CPD, thinking about topics to do a seminar on so that your practice doesn’t stall. For solicitors, they’ll be on police station duty rota, taking phone calls all night and then starting a day’s work at 9am. What would that schedule look like if a day in the Magistrates’ Court didn’t end until several hours later? Will they change listing practices so that you don’t waste an entire morning at court if your case isn’t heard until 5pm, or will they continue to insist that court time is so precious that yours is wholly insignificant in comparison? 

I truly fear extensions to the working day in the Crown Court. My second Crown Court trial was a late return; I remember coming home from court, spreading papers, Archbold and sticky tabs across my dining table and apologising to my flatmates that I’d be there until late and please could they not watch TV in here this evening? It would be a one-off, I said. It was not a one-off… Every night that week would be spent writing out cross-examination questions, leafing through Archbold, trawling through unused material. And so it has been for several other trials since then. I’m grateful for understanding flatmates who enjoy me practising jury speeches on them, provide snacks,  sometimes take my washing out for me when I’ve run out of black tights. I cannot imagine having to feed children, put them to bed or be woken up by a crying baby during the few hours of sleep I actually manage. The prospect of having any kind of work-life balance at the criminal Bar if I do have children one day seems totally elusive. It is a reality of my job that I have simply put to the back of my mind, in a drawer labelled ‘future problem’. There is no space to consider it now. 

Last year, I was a junior in a seven-week Crown Court trial. It was incredibly fortunate that a family friend lived walking distance from the court and offered me a room, which significantly cut down on my travel time. My leader was travelling to and from London most days and battling with constant train delays. There were a whole host of legal arguments at the outset of the trial, involving near daily skeleton arguments being sent backwards and forwards. There were disclosure issues to sort out and the kind of editing to schedules that can only really be done once the trial is underway and legal issues resolved with the Judge. We would usually still be at court beyond 5pm. I was receiving e-mails from the defence junior most evenings. On some days, somebody had a childcare issue which could not be avoided and so they could not get to court until 10.30 or would have to leave as close to 4pm as possible. The Judge was understanding but everyone wanted to maximise court sitting time to get through the trial. For single parents who needed to pick children up from nursery or after-school club at a certain time every day, I expect this would be impossible. 

When lawyers hear politicians say we need to “use time in as expanded a way as possible”, it strikes fear into us. What does expanding our day actually mean? As I return to court in person post-lockdown, I have begun to say to friends again, “Sorry, I can’t tell you which evening next week we could meet, I don’t know what work will look like”. Ask any criminal barrister how many birthday drinks they’ve missed, how many plans they have cancelled last minute, even pre-paid holidays. We make sacrifices constantly in order not to let clients down when their trials are suddenly listed without warning. We give up evenings and weekends to prepare cases. We accept that this is just how it works, it is unpredictable. It is not ‘flexible’ in any way; that the government are referring to extended operating hours as ‘flexible operating hours’ is nothing short of insulting. I expect the decision has already been made in the higher echelons but we as a profession should not stand for it. I do not want to be another statistic of ‘women who have left the Bar because it is incompatible with having a family’. It is boring and disheartening but, worst of all, it is so preventable. 

Why is Kasabian singer Tom Meighan not in prison?

Within 24 hours of Kasabian singer Tom Meighan’s announcement that he would be stepping back for “personal reasons,” he was at Leicester Magistrates Court pleading guilty to one count of assault by beating (common assault) on his ex-fiancee.

The details of the offence as they are reported – that he was drunk, knocked her down, attempted to strangle her, pushed her into a hamster cage and threatened her with a pallet, and most prominently, that he did all of this in front of a child – are serious.

A number of people are, quite reasonably, asking how it might be that he didn’t go to prison.

The sentencing guidelines on common assault require that the judge first consider the “offence category.”

There seems to be little doubt that in this case there was greater harm (it was described as a sustained attack) and higher culpability (strangulation is understood to signify an intention to commit greater harm than may in fact have resulted), placing it firmly into Category 1, the most serious category.

The court then moves on to the starting point and category range.

The starting point for a Category 1 offence is a high level community order, which is then adjusted up or down depending on aggravating and mitigating factors.

Aggravating factors will include that the offence was committed in the presence of a child and while under the influence of alcohol. Mitigating factors would have been remorse and his claimed commitment to addressing an alcohol dependency. Add to that the credit he is given for a guilty plea, and the adjustment is up and back down again to the starting point for a Category 1 assault.

This table sets out what is meant by a ‘low’ ‘medium’ or ‘high’ level community order. Meighan was given 200 hours unpaid work and a rehabilitation requirement, placing this at the upper end of the high level community order band, narrowly missing the custody threshold.

All that this means, of course, is that the sentence is in line with the Sentencing Guidelines. It doesn’t mean that the Sentencing Guidelines are beyond criticism.

The Centre for Women’s Justice has campaigned for non-fatal strangulation to be made a specific crime, as it is under-charged when treated as common assault, and other organisations have campaigned to make misogyny a hate crime. It may well be that sentencing in domestic abuse cases needs reform – but as of today, these are the guidelines that continue to apply, and may go some way to explaining why cases like these continue to attract non-custodial sentences.

Conflict of Rights

Conflicts of rights are not uncommon in discrimination and human rights cases. This is a post on how they can arise, and how they are resolved.

There are nine protected characteristics (PCs) in the Equality Act: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation. All of us have at least some of these characteristics, and sometimes those characteristics will give rise to competing claims.

The most common – or at least, the most litigated – of those conflicts of rights has been where sexual orientation meets religion or belief. For example, the case of Lilian Ladele, the registrar whose beliefs meant she was not prepared to preside over civil partnerships, and the Bulls, the Christian owners of the Chymorvah Hotel who would not accommodate a homosexual couple in a double room [1].

There has been a tendency among some lay commentators to regard the competing rights as a simple contest of morality. Religious beliefs being outmoded and sexual orientation progressive, the reasoning goes, it is proper that the “right side of history” should win.

But this is quite wrong. The resolution of a conflict of rights is not a search for the better, more progressive, or most popular cause. The courts are an arbiter neither of moral certainty nor social progress.

The first question has to be which position each party occupies. As a general rule, the service user can pick and choose their service provider, but the service provider must not discriminate against service users. There is nothing to stop a gay couple opting to shop at the greengrocers owned by another gay couple in preference to that owned by a heterosexual: this is not unlawful discrimination. However, a greengrocers must not refuse to sell vegetables to a gay couple because they are gay.

When it comes to a greengrocers, we are on fairly safe ground. It is extremely difficult to think of a scenario in which a greengrocers might withhold a bag of apples from a customer on the basis of a protected characteristic.

It becomes more complicated when it is the service itself which is in question. This was the subject of the Supreme Court’s decision in the Ashers cake case where Christian owners of a bakery had refused to ice the message “Support Gay Marriage” onto a cake. The Court held that the service was not refused to the claimant because he was gay, but because the bakery would have refused to ice that particular message onto a cake for anybody, regardless of their sexual orientation. The owners also had the right not to be compelled to express a political view with which they disagreed.

Another issue arises where the service provider seeks to restrict a service from one group of people in order to cater to the rights of others. It is permissible to cater a service to a group who share one or more PCs, so a lesbian support group or an over 60s night, for example. Refusing to provide the service to people who do NOT have that PC is permitted by one of the exceptions to the Equality Act – contained at paragraph 30 of Schedule 3 – as long as it is “impracticable” to provide that service to people who don’t share the PC. A lesbian support group is therefore entitled to refuse service to those who are not lesbians. (There are other exceptions, particularly in relation to sex, which will be the subject of a separate post.)

However, what happens when there is a conflict between people who do share a PC? Take a hypothetical example: a lesbian support service includes lesbians who have a religious belief and those who do not. The group may not discriminate by refusing service to those who have a religious belief, but they may refuse service to someone who has persistently evangelised the merits of celibacy for homosexuals, upsetting other members, even though the refusal of service is on the basis of a PC of religion or belief. This is what is meant by a “case by case” basis.

Where a service provider does feel the need to discriminate against a service user on the basis of a PC, the question is then: is it a proportionate means of achieving a legitimate aim? In the example above, the legitimate aim is the ability of the wider group to continue to access the service, and would be proportionate because it does not involve a blanket ban on all those with a religious belief.

In summary,

  • Rights may conflict. This is not unusual, and it is not an automatic indication of bad faith or bad practice on the part of a service provider;
  • Resolution of a conflict of rights is not assessed on who has the ‘better’ or more progressive cause: there is no hierarchy of rights;
  • A key question is whether there any discrimination involved is a proportionate means of achieving a legitimate aim.

[1] Although these cases pre-date the Equality Act 2010, essentially the same considerations apply, and as Hale LJ noted at §40 in the Bulls’ case, the slightly different formulation of the 2010 Act would not have led to a different result.

#ProtectionForAll: migrant survivors of DA excluded from Domestic Abuse Bill

Tomorrow, 6 July 2020, the Domestic Abuse Bill is back before Parliament for further consideration.

It has been heralded as a “landmark Bill” which will offer protection to all women. However, migrant women are notably excluded from it.

When migrant women are inadequately protected from provisions on domestic abuse, they can remain trapped in abusive relationships, unable to leave because of inability to access public funds and for fear of losing the right to remain in the UK. The existing provisions within the Immigration Rules are limited, allowing those on spouse visas to make an application if they have sufficient evidence of abuse, but failing to protect those in other categories, who may have entered as students, workers, or even elderly parents.

We endorse the briefing note from Southall Black Sisters sets out exactly what the legal difficulties with this are, and they have a template letter for contacting MPs.

Marriage: When Two Remain Two

Next week, six couples will take the UK government to court arguing that humanist marriage should be recognised in law. At the moment, humanist marriage ceremonies are not legally recognised, meaning that it is necessary for humanist couples either to remain legally unmarried or to have a second civil ceremony.

The legal history of marriage in the UK is interesting. Originally it was available only as a religious ceremony, in which husband and wife became a single legal entity. “When two become one,” sang the Spice Girls, in what was either a cliched reference to sex or an incisive and damning commentary on the persistence of this doctrine.

In one of the first modern legal texts, Blackstone’s Commentaries on the Laws of England of 1765, a woman was understood to exist either as a femme covert or as a femme sole – a married or an unmarried woman. A femme covert was also said to be in coverture, and the principle of coverture was to establish the legal fiction that a husband and wife were one legal person:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.

As one legal being, the woman could not refuse sexual access to her husband, and he was responsible for her financially, and directed any money or property that had been hers. Furthermore, he was often responsible in law for her actions with a presumption that she acted under his direction; it was this principle that led Dickens’ Mr Bumble to describe the law as “a ass, a idiot,” and to add that “If that’s the eye of the law, the law is a bachelor.” Quite. 

However, the principle survived until the surprisingly recent past. The right of women to their own property was first, arriving in 1870 with the Married Women’s Property Act.  The obligation of a woman to provide sexual access to her husband (the entitlement of a man to sexual consent from his wife) was only abolished in the Criminal Justice Act 1994, after the case of R v R [1991] UKHL 12. Until this point it was not legally possible for a man to rape his wife, because as they were one person, he would be seeking consent not from her but from himself. The equivalent common law obligation of a man to provide financial support to his wife was yet more recent, with s.198 Equality Act 2010. An individual of either sex can still not be compelled to testify against their spouse in some criminal cases in England and Wales, and this derives from the same starting point, in that if the spouses are one legal person, the right not to self-incriminate extends to preventing their spouse incriminating them.

Within this model, sex was regarded as part of the contract of marriage, in which sex was an act of labour performed by a woman (wife) in exchange for financial benefit from a man (her husband). The hangover from this model is still alive in rape culture – the belief that expenditure on the part of a male entitles him to sexual access – and in the sale of sexual services.

It is now commonly accepted that sexual consent is not a contractual obligation marked by financial consideration at least as far as marriage goes. The arguments of the last two decades over same sex marriage compelled instead the widespread acceptance that marriage is an arrangement between equals motivated by love. The extension of the idea of a religious marriage to one based on humanist principles, which expressly rest on liberal human values, would underscore that two do not become one, but remain very much two, even in marriage.

Identity, State and Article 8

This is a post about the interplay between a person’s identity, Article 8 ECHR and the role of the state in a person’s identity.

Article 8 is a person’s right to private and family life. It is the most elusive, and most expansive, of the Articles. It reads as follows

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In other words, everyone has the right, although the state may interfere with it in certain circumstances if it is justified. Obvious ways where the state may interfere would be in reading text messages from a suspect in a crime, of refusing entry to the UK of a non-British spouse where the visa requirements are not met, or, currently topical, stopping people from leaving their homes without a reasonable excuse. These are all interferences with our private and family lives, but the state has a justifiable reason for doing so.

What IS this right, though? How do you define a person’s “private life?” Many have tried it, but a comprehensive definition slides through the fingers of the deftest jurist. It has been loosely grouped into three subcategories by the Council of Europe’s guide to include (i) a person’s physical, psychological or moral integrity, (ii) her privacy and (iii) her identity and autonomy. 

We know from case law that it is not restricted to a person’s “inner circle.” A person’s private life can rarely be effective within the confines of their own head or their own home; human beings are, as the House of Lords said in Huang v SSHD [2007] UKHL 11, “social animals.” It is not enough that a person has an ethnic identity or a social identity if they are not allowed to express that. Article 8 “secures to individuals a sphere within which they can freely pursue the development and fulfilment of their personality.”

Identities which are protected by Article 8 include national identity, ethnic identity, religious identity, gender identity, parental identity, and others.

The state, however, treads a fine line between lawful respect for a person’s identity and unlawful intrusion on privacy. It is obvious that where the state keeps records of minority identities, that is capable of being used to no good purpose. Hitler’s Germany is the obvious example, but in modern day Kyrgyzstan, to take another, it is the nationalists who campaign to keep ethnic identity on ID cards, not the minorities who know that it would be an invitation to discrimination. Here in the UK, the requirement that defendants state their nationality as part of their identity is reported to create ‘racialised courtrooms’ potentially breaching the UK’s obligations under Article 8 (and 6).

The protection offered by Article 8 to recognise and respect a person’s identity is vital. As state technology, databases and surveillance expand though, we must ensure that privacy is not trampled under the pretext of protecting identity.