AEA v EHRC: An Explanation

There has been a lot of interest in human rights circles about this case and its refusal of permission to judicially review the guidance relating to single sex services. We will look at what the case was about and what the refusal to allow permission might mean. We start by introducing the parties.

The Claimant

The Claimant was Authentic Equity Alliance (“AEA), a community interest company established in 2018 to promote the personal and professional development of women and girls.

It was asking for permission for the courts to determine whether or not the EHRC’s (below introduced as the Defendant) guidance relating to single sex services was lawful.

The Defendant

The Defendant to the claim was the Equality and Human Rights Commission, (EHRC) a statutory non-departmental public body established by the Equality Act 2006. On its website it advertises itself in the following terms:

As a statutory non-departmental public body established by the Equality Act 2006, the Commission operates independently. We aim to be an expert and authoritative organisation that is a centre of excellence for evidence, analysis and equality and human rights law. We also aspire to be an essential point of contact for policy makers, public bodies and business.

Its job is to provide guidance and expertise on equality law. To that end it has produced various codes and documents, including the Statutory Code of Practice for Services, Public Functions and Associations (“the Code”), which is the authoritative guide to interpretation of the Equality Act.

Principal area of concern

AEA’s claim against the EHRC focused on one paragraph of the Code:

[Text: If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful when the exclusion is a proportionate means of achieving a legitimate aim.]

The Question of Lawfulness

The excerpt from the EHRC’s code which is copied out above relates to the Equality Act which allows service providers to run women only services (in Schedule 3). The Equality Act starts from a position of non-discrimination – the majority of services are available to everyone regardless of the nine protected characteristics – but accepts that there will be exceptions to this rule. Many of these are uncontroversial. It would be remarkable for someone to suggest that the Brownies are not entitled to discriminate on the basis of age, for example.

Justified Women Only Services

Women only services are exceptions to the starting point of non-discrimination and they are allowed under the conditions set out in Schedule 3.

Broadly (we paraphrase and are not delving into technical details here)

Requirement 1

It is lawful, and will not be sex discrimination, to offer single or separate sex services (SSS) when this is a proportionate means of achieving a legitimate aim (Paragraph 26 – 27 )

Requirement 2

it is lawful, and will not be gender reassignment discrimination, to offer SSS, if the conduct in question is a proportionate means of achieving a legitimate aim. (Paragraph 28)

The Substance of the Claim

The claim that was brought was, as the judge said at the end, complicated. A simplified – possibly oversimplified – summary is this:

Prescriptive Inclusion: The “Must” Approach

The Claimant, AEA, said that the phrase in the COP “should treat transsexual people according to the gender role in which they present” had wrongly led service providers to think that they must treat people according to the role in which they present. The Claimant provided evidence of various bodies which had adopted this position (as discussed below).

The Defendant, EHRC, said that

the COP said “should,” not “must,”
that exceptions were available, and
that the bodies which had adopted the “must” position had not expressly said that they had had regard to the COP. On that basis, the EHRC said that those bodies cannot have been led, or misled, by the COP, as none of them mentioned it.

In fact, the EHRC said, a policy that said a service provider ‘must’ treat people according to the role in which they present would be “directly inconsistent” with the COP.

In other words – other bodies may well be making this unlawful assertion, but it ain’t us guv.

The EHRC suggested that if other bodies had unlawful policies, these should be challenged directly, rather than holding EHRC itself responsible for bodies which should have followed its guidance, but either did not do so or misunderstood it – although naturally, the EHRC was not willing to concede that anyone had been misled in the absence of a smoking gun in the form of a policy which said “and we got this off the EHRC Codes Of Practice”. This, as we will come to shortly, is important.

Extent of Justification Required

The Claimant said that if a service provider meets the first requirement (paragraphs 26-27 of schedule 3) and identifies that providing a woman only service is a ‘proportionate means of achieving a legitimate aim,’ it need not meet the second requirement (paragraph 28 of schedule 3) in order to lawfully provide a female-only or male-only service.

The ‘proportionate means of achieving a legitimate aim’ having been once identified for the purposes of providing the service at all to the exclusion of persons of the opposite sex, there was no need to re-invent the wheel by identifying it again for the purposes of excluding a person of the opposite sex who also had the protected characteristic of gender reassignment.

The EHRC said that this was wrong. It said that the AEA’s analysis didn’t account for those who had lived ‘for many years’ in an acquired role and yet had not, for whatever reason, applied for a GRC. It might be reasonable to include such a person notwithstanding that they were legally male, while it might be equally reasonable to exclude someone with a GRC who was legally female.

At this stage the parties’ arguments essentially converged. Both parties were arguing that a GRC was not relevant to the provision of a single sex service.

Whether Appearance is a factor

The court examined the situation where a person using a woman only service is “visually indistinguishable” from a woman and what this means in law.

This phrase’s provenance is from a case which predates the Gender Recognition Act (“GRA”), A v CC West Yorks. It was about a transsexual MTF police officer who argued that she had suffered discrimination because she was refused employment, as she would not able to search female prisoners. [For the avoidance of doubt, the court held that Ms A “appeared in every respect to be a woman” – this is not a case in which Ms A asserted a gender identity at odds with appearance which would, nevertheless, today bring her within the scope of the Equality Act. The case was brought because a prohibition on conducting searches would alert her colleagues to her trans status, which was not known to them. There is absolutely no suggestion that she was seeking inappropriate contact with female prisoners. ]

The House of Lords held that sex could include “the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.” This was all decided under the provisio that the GRA would consider and address the issue of legal sex.

Times have changed. The GRA is now in force. We no longer assume that gender reassignment means “a post-operative transsexual” and we now understand intimate searches to be something to which a person consents, not to which they object – albeit lack of consent may be no obstacle where the relevant PACE requirements are satisfied.

However personal appearance is a factor which both parties acknowledged as relevant when providing a single sex service and applying the exceptions. In a situation satisfactory to nobody, personal appearance is relevant when assessing whether excluding a transwoman from a woman only service is a proportionate means of achieving a legitimate aim.

The decision

The Judge decided that AEA’s question about the lawfulness of the EHRC’s guidance should not be put in front of the courts. His job was not to decide what the correct interpretation of the law was at this stage. All he had to do was decide if AEA’s claim was “arguable” – that is, was it arguable that the EHRC’s guidance was so wrong as to be unlawful.

He decided it was not, for the following reasons:

On the first argument, he agreed that the COP said “should,” not “must.” He pointed out that the guidance extends to just four paragraphs and is intended to be a brief summary not a detailed legal analysis. After “should” comes the disclaimer “However,” followed by an explanation of where exclusion will be reasonable. Although it is not detailed, it is not intended to be an exhaustive guide.
He also agreed that if there are public bodies which have understood a ‘should’ as a ‘must,’ these are capable of challenge by individual service users to individual service providers, whether inclusive or exclusive. We look at this below.
On the second argument, he agreed with the EHRC that even if a service has met the first requirement by showing it needs to be a single or separate sex service in order to exclude men, nevertheless, it must also meet the second requirement to exclude transwomen where necessary.
It may well be that a service needs to be female only, but the variation in presentations of transwomen from someone who is ‘visually indistinguishable’ to someone who has only just announced an intention to transition, and the variation in needs of the service users from a rape crisis centre to a changing room with partitioned cubicles, mean that there cannot be the certainty advanced by the Claimant.
In respect of the third argument, the judge agreed that physical appearance is relevant. This is unfortunate. Someone who is genuinely visually indistinguishable will be unlikely to cause challenge or consternation on accessing a SSS, even if they should choose to do so. Focus on a person’s physical appearance is likely to be experienced as demeaning by both the subject and the person required to make the assessment.

THE EHRC’s Stance on Single Sex Services

It would have been significant if the EHRC had been forced to change its guidance, but the refusal of permission means that the existing situation continues – but with the welcome clarity that the EHRC has acknowledged that there are instances where refusing access to a person of the opposite sex is perfectly reasonable and not phobic.

The EHRC made two important concessions:

It distanced itself from prescriptive public guidance that those who self identify as such “must” be treated as women,
It made clear that in its view that a women only service is permissible and the correct approach is more nuanced with a starting point of inclusion but recognising that exclusion can be justified (due to being a ‘proportionate means of achieving a legitimate aim’).

What does all this mean?

EHRC agrees that women only space does not have to include anyone who is male at birth, and described prescriptive inclusion policies along the lines of self-ID as “directly inconsistent” with the Code of Practice.

And where should these cases be brought?

The judge strongly agreed with the EHRC that a better challenge would have been brought by an individual service user against an individual service provider, rather than in the abstract at the level of the EHRC and the AEA.

Whilst a reasonable view in law, this is a sad outcome for both trans and feminist service users and for service providers engaging with SSS policies. Women’s services such as crisis centres, refuges and support groups are overstretched and ill positioned to sustain lengthy legal battles.

Some of the Misleading Public Guidance

The policies which AEA had pointed to as containing misleading guidance included

SIA’s “Trans Customers: A Guide for Door Supervisors;”
ACAS, “Gender reassignment discrimination: key points for the workplace”;
the Metropolitan Police’s Trans Policy;
Cambridgeshire and Peterborough NHS Foundation Trust, “Transgender guidance for Trust staff and service users;”
Aviva, “Transitioning at Work Employee Guidelines;”
Hr024, “Transgender Employees Experiences and a Guide for Employers;
Swim England, “Guide to engaging trans people in swimming”
Citizens Advice, “Single-sex and separate services for men and women” (NB the February 2021 version is accurate)
The Law Society, “Transition and change to gender expression template” (NB this DOES reference EHRC, although was dated November 2020 so this version may postdate the litigation)
YHA, “Transgender Guest Equality Policy (2019)”
Stonewall, “An Introduction To Supporting LGBT Children And Young People: A guide for schools, colleges and settings”
Stonewall, “Delivering LGBT-Inclusive Higher Education”
GIRES “Equality and Diversity Transgender Policy Guide for Employers 2015”
GI, “Trans Inclusive Residentials, A Free Resource for Youth Workers, Schools and Organisations”
GEO and GI, “Providing services for transgender customers. A guide”

all of which envisage that a person must, in some cases from the moment they announce an intention to transition, be allowed to use shared private facilities of their preferred sex. In many of these policies there is no hint that the authors were aware that exclusion may be justified where it is a proportionate means of achieving a legitimate aim.

EHRC said that there was no evidence that the authors of such policies had been led or misled by EHRC, and that the COP provided adequate guidance explaining that exclusion could be justified.

Here is what EHRC said in its skeleton argument about these documents:

“… insofar as the AEA’s primary objection is to guidance suggesting trans-persons must be allowed to access the SSS of their acquired gender, that is directly inconsistent with the COP. As set out below, the COP makes clear, in terms, that trans-persons can be excluded from a service where that is justified, and, indeed, the EHRC has taken steps to bring that to the attention of service-providers whose guidance erroneously suggests trans-persons must always be permitted to use the SSS of their acquired gender irrespective of the needs of, or detriment to, others. A striking feature of the present litigation is that, if the AEA or others affected have identified guidance or practices of other public or private bodies’ that does, in fact, reflect incorrect statements of law, it is not clear why they are not being pursued. Instead, a claim has been brought in relation to the EHRC’s COP which simply does not contain the alleged errors.” [emphasis added]

It might be considered remarkable that quite so many bodies have apparently developed policies without regard to EHRC’s express intervention and also its statutory Code of Practice, but there we have it. Policies and guidance which say a person must be allowed to access the SSS of their acquired gender without reference to possible exceptions is “directly inconsistent” with the COP, and the EHRC will correct service providers whose guidance is “erroneous” in that respect.

What happens next?

Everyone who provides a single or separate sex service should ensure that they have good legal insurance. It seems likely that as a result of this litigation, women will take action against the individual service providers whose guidance is erroneous, and that more trans people will take action against SSS when they feel that they have been wrongly excluded. As these cases progress up from the county courts to the High Court and Court of Appeal, general principles will be developed through case law as to what a ‘proportionate means of achieving a legitimate aim’ looks like in practice.

Organisations offering a SSS also need a policy on how, and when, they will apply the exceptions. It will not be enough simply to say “this service is female only.” The policy must set out why the SSS is justified at all and then must say that admission of transwomen is or is not likely to be justified. A blanket ban is likely to be unlawful: the rather far-fetched example was given of a transwoman with her children approaching an otherwise empty women’s refuge in the middle of the night. The policy must envisage the improbable as well as the routine.

Finally, we need more research. Many women avoid mixed space and we hypothesise they will simply self-exclude quietly, leading service providers to become complacent about the need for single sex services. “Our service is unisex,” they say “and we see no women here who have a problem with it, therefore it is unproblematic.” Women who have stopped using a service because it became mixed, or who avoid coffee shops with unisex loos, need to make this known. Service providers need good research to rely on when deciding whether a SSS is justified in order to meet women’s needs. If the service already has an inclusive or conversely an exclusive policy it will not be enough to simply consult with existing service users – it will be necessary to identify potential users too because the policy will have defined the existing service user group.

SINGLE SEX CYCLING

British Cycling has posted a consultation on their proposed ‘Transgender and Non-Binary Participation Policy’. We take a look at the parts of the Equality Act 2010 that are relevant to single-sex sporting events and highlight some of the issues we consider relevant to the consultation response.

The policy can be accessed here:

Responses to the consultation are invited by way of a survey available here:

Legal Definitions

The Equality Act 2010 defines a “transsexual” person as someone who “is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. That person will then have the ‘protected characteristic’ of “gender reassignment”. The term ‘transexual’ is now considered to be outdated and ‘transgender’ is typically used instead, but there is no legal difference in the terminology. A person does not have to have had any form of surgery or hormonal treatment to acquire the protected characteristic of gender reassignment.

A person may have the protected characteristic of gender reassignment without their legal sex being changed from that which was recorded on their birth certificate at birth. It is only where a person has a Gender Recognition Certificate (‘GRC’) issued under the Gender Recognition Act 2004 that their legal sex is officially changed. Fewer than 5,000 of the estimated 600,000 transgender people in the UK have been issued with a GRC. It is not necessary for a person to have had any form of surgery or hormonal treatment in order to obtain a GRC, but they will have had to evidence to the satisfaction of a specialist panel that they have lived as their acquired gender for at least two years and that they have a medical diagnosis of gender dysphoria.

The Equality Act creates a starting point that discrimination on the grounds of sex is unlawful. It then goes on to create exceptions to this starting point that make it lawful to discriminate in a variety of specified circumstances. For our purposes the relevant exceptions are “gender-affected” sports (section 195) and single-sex services, which includes the provision of changing facilities and of recreational sporting activities (schedule 3 paragraphs 27 and 28).

Sport

Similar to section 19 of the Gender Recognition Act 2004, section 195(3) of the Equality Act 2010 defines a “gender-affected activity” as

“a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.”

Section 195(1) provides that it is not unlawful to discriminate on the basis of sex in relation to a person’s participation in a “gender-affected activity”. This means that it is permitted for an event organiser to hold separate competitions for male and female competitors or to run separate classes for either sex within the same sporting event.

If a sport is deemed to be a “gender-affected activity” it is lawful to limit or refuse a transgender person entry to a particular competition if it is “necessary to do so to secure … (a) fair competition, or (b) the safety of competitors”.

This would mean that it would be lawful for British Cycling to refuse to admit all transwomen entry to a female-only competition if it was considered that the effects of going through a male puberty would create a residual biological advantage in a transwoman competitor (such as height, cardio-vascular capacity, muscle mass), notwithstanding that the competitor had demonstrated suppressed testosterone levels for the required 12 month period. This would be lawful regardless of whether or not the transwoman holds a GRC. A failure to take these factors into account could found a claim by female competitors for indirect discrimination.

It would be unlawful to prevent a transwoman from competing in an ‘open’ or men’s category competition.

Services

The exceptions in relation to the provision of services are relevant to non-competitive cycling events and to the provision of changing facilities at an event, whether competitive or not.

Non-Competitive Events

It is lawful to hold single-sex recreational events such as a ‘women only’ cycling event, whether as a one-off or as a regular program.

Paragraph 27 of Schedule 3 provides that it is lawful to provide a single-sex service where

“a joint service for persons of both sexes would be less effective, and the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services”, provided that it is a “proportionate means of achieving a legitimate aim”.

Increasing women’s participation in cycling, and in sport generally, is a legitimate aim. Given that there are a vast number of events that are open to men and/or people of both sexes, it is proportionate to hold women-only events to create a more female-friendly atmosphere.

When the single-sex provisions are properly relied upon, it becomes lawful to exclude all male people from that event. This would include transwomen who do not hold a GRC.

It can be lawful to exclude transwomen who do hold a GRC, but the justification for doing so has to be more finely balanced. This is set out in paragraph 28 of Schedule 3. Exclusion from the event would not be on the basis that the person’s legal sex is male, but rather, it would be on the basis that they are transgender. Factors that are relevant to the proportionality exercise can include, for example, whether the event is aimed at women who share particular religious beliefs that limit socialisation with males outside their family.

A woman who felt unable to take part in a ‘women only’ event that was open to transwomen, because of her religious or other protected belief, or because she has previously been a victim of male violence could potentially bring a claim for indirect discrimination.

Alternatively, if a transwoman is excluded from an event for women only because she is perceived as male (notwithstanding her legal status), that is at least arguably sex discrimination (not gender reassignment discrimination), and permitted by paragraph 27 of schedule 3.

Changing Facilities

The same provisions in schedule 3 paragraphs 27 and 28 apply to single-sex changing facilities, whether they are provided at a competitive or recreational event. It is lawful to exclude males as a class from women’s toilets and changing facilities where “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”

It may also be lawful to exclude a transwoman who holds a GRC from those spaces on grounds of gender reassignment where it is proportionate to do so. Such considerations may be whether the facilities are communal as opposed to fully-enclosed cubicles. The legitimate aim of encouraging more women into sport should be given particular weight. The impact on women who have suffered sex-based violence and trauma from males must be counted. The needs of all women to privacy, dignity and a sense of safety when changing is reasonable aim that cannot be achieved by compelling them to undress in close proximity to bodies readily perceived as male.

Alternatively, it may be more straightforward simply to characterise that exclusion as discrimination on grounds of perceived sex, which will always be lawful provided the initial conditions for the provision of a single-sex or separate-sex service are met.

Response to Consultation Questions

Q1: Definitions

· Birth Gender: the gender that a person is assumed to be when they are born. This is usually based on the Sex they are assigned at birth.

Comment:

This is not a term recognised in law. It conflates the concept of ‘gender’ with the recording of a person’s sex at birth. It adds nothing in terms of clarity to the definition of ‘sex’ below. This definition should be removed. Where relevant the appropriate term would be “sex recorded at birth”.

· Self-Identified Gender: the gender that the person identifies as, opposed to that which is assigned at birth, their ‘Birth Gender’.

Comment:

This is muddled:

– Sex is recorded at birth, gender is not.

– As above, ‘Birth Gender’ adds nothing to the definition of ‘sex’.

– It conflates the situations of people who are transgender by virtue of ‘self-identification’ with those who have legally changed their sex upon the issuance of a GRC. Their status’ are legally distinct.

Suggest amending to:

Self-Identified Gender: the gender that the person identifies as, opposed to the sex recorded on their birth certificate.

· Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’ and including indeterminate Sex.

Comment:

‘Indeterminate sex’ is an inappropriate term. People with chromosomal anomalies that result in Differences of Sexual Development (‘DSD’) are still recognised as being either male or female.

To properly recognise people who have been issued with a Gender Recognition Certificate, suggest amending to:

Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’, or their ‘legal sex’ as recorded in their Gender Recognition Certificate.

· Transgender: a person whose Gender Identity is different from their physical Sex at birth. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation.

Comment:

This definition is broader than the protected characteristic of ‘gender reassignment’ in the Equality Act. The Act requires that a person is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. Merely identifying as being of a different gender from one’s birth sex is not sufficient to bring a person under the definition of this protected characteristic. Given that this would form the basis for deciding whether an individual is protected from discrimination and the application of single sex exceptions, this requires precision and therefore suggest amending to the legal definition:

Transgender: a person proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation.

Q2: Membership

The following amendments are suggested:

· “gender other than that assigned at birth” amend to “gender other than their sex as recorded at birth”

· “for sporting purposes” amend to “for the purposes of British Cycling events and activities”

· “obtain British Cycling Race Membership in their Self-Identified Gender” amend to “obtain British Cycling Race Membership in their Self-Identified Gender or legal sex as recognised by a Gender Recognition Certificate”.

At present the policy does not expressly consider transgender people who have a GRC and who have already changed their legal sex; it appears as it only requires a person who does not have a GRC to present medical evidence that they meet the conditions set out in paragraph 5. As there is no medical condition attached to the issuance of a GRC, the policy must make it clear that both self-identified transgender people and those who hold a GRC must satisfy the medical requirements.

· “their membership shall be in their Self-Identified Gender rather than the Sex assigned at birth” amend to “their membership shall be in their Self-Identified Gender or reassigned Gender pursuant to a Gender Recognition Certificate rather than the Sex recorded at birth”

Q 3: Recreational Activity

This section of the policy, in conjunction with the provisions relating to membership in section 2 allows any male person, even if he is not actually transgender, full and unfettered access to women only cycling events and to women’s toilets and changing rooms provided at those events. All that is required is that he signs a declaration that for “sporting purposes”, he wishes to be treated as if he is female. He does not have to show that he in any way ‘lives as a woman’ or even that he is actually transgender.

The policy fails to apply the single-sex exceptions as contained in schedule 3 of the Equality Act. Failure to provide appropriate single-sex facilities would unlawfully discriminate against women who attend, or wish to attend an event. It is also contrary to British Cycling’s stated aims of increasing the participation of women in the sport.

Q4: Competition

This policy should be worded with greater clarity.

In relation to licences to complete in the female category there is no specification of how the reduction of testosterone has to be evidenced. Is it sufficient to produce a Medical attestation demonstrating that the required hormone levels were met 12 months prior to the date of application? Must this also be evidenced at a date and shortly prior to application and if so, within what time? Is evidence in the intervening period required? How often must testosterone levels be monitored thereafter- is an annual test sufficient?

If a competitor is issued with a female race licence but then fails to evidence that they have kept their testosterone reduced to the correct level in the subsequent 12 months, what happens to any titles, prize money etc that they may win during that period?

In relation to licences to complete in the male category there is no reference to the Therapeutic Use Exemption certificates that would be required in relation to a transman injecting testosterone.

Q 4 Other Comment

Public Sector Equality Duty

British Cycling is likely to be bound by the requirements of section 149 of the Equality Act 2010 – the Public Sector Equality Duty. This applies to some private organisations if they carry out a “function of a public nature”. British Cycling is funded in part by public funds, and exercises delegated powers from Sport England. Its role as a governing body for the sport, including its role in the selection and management of national teams means that it is likely to be deemed meet this criteria.

It therefore has a duty:

“in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

It is obliged to consciously direct its mind to these obligations and to evidence that it has analysed its policies to ensure compliance with the Equality Act. This would involve taking proper consideration of the rights and views of people of all protected characteristics. British Cycling should carry out an equality impact assessment, informed by a proper consultation with its members to assess the impact of this policy on people of all protected characteristics and particularly on women, including women of minority ethnicities and religions.

Emma Stuart King

Defining Domestic Violence: An Urgent Note of Concern regarding the Domestic Violence Bill

SUMMARY

1. There are deficiencies in the drafting of the Bill that; a) could prove counter-productive and allow the use of protection notices to be weaponised against the real victims of domestic violence; and b) create a risk that vulnerable people who lack capacity or who have a mental impairment may be unfairly criminalised.

2. The definition of “domestic abuse” is insufficiently defined and likely to result in inconsistent and ineffective policing.

3. There are a lack of procedural safeguards to address the following:

i. To ensure that the complainant is at a genuine risk of suffering emotional or physical harm;

ii. To prevent abusers from making false or exaggerated reports in order to obtain a powerful mechanism by which to control their victim;

iii. To prevent abusers from claiming they are being subject to psychological or emotional abuse in respect of behaviour on the part of their victim which is engendered only by the abusive behaviour (the ‘nagging wife’ complaint);

iv. To prevent the criminalisation of vulnerable adults who for reason of a disability (such as a learning disability or mental health condition) may be unable to comprehend that their behaviour is abusive or to moderate their conduct.

4. It is proposed that significant changes be made to the Bill to address these problems. In addition:

i. s 30(5) additionally should prevent the making of a protection order against a person who for reason of their disability is unable to understand the consequences of, or to moderate their behaviour.

ii. s 34(1)(a) to comply with the Equality Act 2010 and the Human Rights Act 1998 additionally should prevent the imposition of restrictions that conflict with a person’s “other protected belief”.

SUMMARY OF THE PROCEDURE

5. Legal Feminist is concerned by the process for the making of a domestic abuse protection notice and a domestic abuse protection order under Part 3 of the Bill. This provides for a procedure as follows:

i. A domestic abuse protection notice may be issued where a senior police officer has ‘reasonable grounds for believing’ that abuse has occurred and that it is necessary to issue a notice to protect the victim from domestic abuse (s 20(3)&(4));

ii. Where a notice has been issued, the police must within 48 hours make an application to the magistrates for a domestic abuse protection order (s 26(3));

iii. The magistrates will make such an order when satisfied, on the balance of probabilities, that the abuse complained of did occur and that it is necessary and proportionate to make the order to prevent domestic abuse or the risk of domestic abuse from occurring (s 30(1)&(2));

iv. Before making a notice or order the wishes of the victim and views of the alleged perpetrator must be considered but are not determinative of the decision (s 22(1) & s 31(1));

v. It is not necessary for the victim of the abuse to consent to the making of the notice or order (s 22(4) & s 31(3)).

vi. As to the content of an order, s 33(1) provides that:

“A court may by a domestic abuse protection order impose any requirements that the court considers necessary to protect the person for whose protection the order is made from domestic abuse or the risk of domestic abuse.”

vii. A person commits an offence if without reasonable excuse they fail to “comply with any requirement imposed by the order” (s 37(1)). The offence is both summary and indictable, with a penalty of a fine and/or maximum of 12 months imprisonment for the former and 5 years for the latter (s 37(5)).

6. The definition of “domestic abuse” is set out in s 1. This section contains the totality of the definition.

1 Definition of “domestic abuse”

(1) This section defines “domestic abuse” for the purposes of this Act.

(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” 5 if—

(a) A and B are each aged 16 or over and are personally connected to each other, and

(b) the behaviour is abusive. 

(3) Behaviour is “abusive” if it consists of any of the following—

(a) physical or sexual abuse;

(b) violent or threatening behaviour

(c) controlling or coercive behaviour;

(d) economic abuse (see subsection (4));

(e) psychological,  emotional or other abuse; 

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

PROBLEMS

7. We consider this section to be problematic, for the following reasons:

i. Defining “abusive” behaviour as “other abuse” is circular in its reasoning;

ii. There is no necessity for proving that the ‘victim’ of the behaviour finds it abusive;

iii. There is no requirement that the ‘perpetrator’ understands (or should reasonably understand) that the behaviour is abusive;

iv. There is no requirement to show that any further instance of domestic abuse has occurred following the making of an order, as the offence lies only in breaching the conditions of the order; such conditions may be ‘any’.

8. Legal Feminist highlights two potential scenarios in which the lack of requirement to prove either the perception of the ‘victim’ or of the ‘perpetrator’ could result in unintended and unjust consequences:

i. Use by perpetrators of domestic abuse to further persecute their victims.

9. Members of Legal Feminist are familiar with the current use and misuse of Domestic Abuse protections and how domestic abusers manipulate the system so that victims often end up re-victimised by the very system which was designed to help them. [2]

10. Not all victims of domestic abuse are silent victims. Many women[1] do shout back, argue, complain etc or even at times attempt to defend themselves physically. Such attempts at resistance do not reflect the power imbalance or mean that they are not ‘properly’ victims of abuse at the hands of their violent male partner.

11. It would become possible in this scenario for the abuser to report to the police that he has been struck on one occasion by his female partner and to persuade the police to issue a protection notice. Whilst the police are obliged to take into account any representations made by the alleged perpetrator (in this case the woman), they are not obliged to seek out any representation or to properly investigate or challenge the account given by the alleged victim (in this case the man). On production to court, the magistrates can proceed to issue a protection order even if the man does not attend (it is not possible to for a summons to be issued for his attendance s 26(8)(b)). They can find on the balance of probabilities that abuse has occurred without any investigation as to whether the man truly suffered any emotional or physical harm, and without there being any investigation as to the background of the relationship that may have caused the woman to react as she did. The making of a protection order would then be a powerful tool that the abusive man could use to control the actions of the woman.

12. This risk of misuse becomes increasingly difficult to guard against when the ‘abuse’ complained of is “psychological, emotional or other abuse”. Complaints of controlling behaviour may in fact be explained by the fact that the man is frequently absenting himself without explanation because he is being sexually unfaithful, or is spending scarce family money on gambling, alcohol etc. Women writing for organisations such as transwidowsvoices.org have recorded that when transitioning to a female identity their male partners have accused them of emotional abuse when they have referred to them by their male name or allowed their children to call him ‘dad’.

13. Where a woman is a victim of domestic violence, she may not be ready to reveal that this is the case, fearing for her own or her children’s safety, or due to financial or accommodation worries. She may prefer to take the consequences of accepting the protection order rather than incur the wrath of her male partner by revealing to the police or magistrates the truth of their relationship. The proposed procedure risks pushing her into a situation for which she is not ready and which may in fact be harmful to her interests.

14. Procedural safeguards need to be built in to ensure that the alleged victim is truly at risk of suffering emotional or physical harm and to prevent the process from being abused.

Criminalisation of Vulnerable Adults

15. The combined factors of the lack of requirement of intent to abuse and the negation of a requirement for consent by the victim leads to the potential for the criminalisation of vulnerable adults with behavioural or learning disabilities.

16. For many adults with such disabilities, home is a safe place where they can vent their feelings of anxiety and frustration that they have to work hard to conceal from the outside world. This often is expressed by verbal outbursts and other behaviour that may in other be considered to be abusive. Whilst there is certainly more scope for providing support to the family members who live with such vulnerable adults, it is unlikely to be in the interests of either party to criminalise the vulnerable adult and may cause considerable upset to the family members.

17. We recommend that at s 30(5) the wording is amended to state “or who for reason of disability is a) unable to comprehend that their behaviour is abusive, or b) is significantly impaired in their ability to moderate their behaviour to refrain from the abusive conduct.”

Legal Feminist

15 March 2021

[1] We recognise that people of either sex can be a perpetrator or victim of abuse, but for simplicity give examples here of typical patterns of male abusive behaviour against a female partner.

[2] One of the barrister members of the Legal Feminist collective has been involved in four separate public law cases involving the existing Domestic Violence Prevention Notice (“DVPN”) regime. She stresses that these cases may not be typical or representative of the use of DVPNs; as in general few DVPNs end up as public law cases.

In each of these four cases, a DVPN was served upon a woman. In each case, the woman had previously been the complainant in a domestic violence case in the criminal courts, or the beneficiary of a non-molestation / occupation order in family law, or both.

In two of the cases, the service of the DVPN meant that both the woman and her child(ren) had to leave their home immediately to go to a hotel or hotel. In the other two cases, the woman left alone (one had no children, in the other case, the teenage children remained at home). It is noteworthy that the police had not completed the paperwork properly in two of the cases. In one case, no reason was given for the issue of the DVPN at all

Legal Feminist holds serious concerns that in at least some cases, the police have issued a DVPN against a woman who has already been a victim of domestic abuse, affecting children as well as women.

Sex Based Rights: A Remedy To Sex Based Wrongs

What are “sex based rights”? What do women mean by the phrase – and do we even have them?

A pithy answer is that they are the remedy to sex based wrongs, perhaps – depressingly – a far more readily identifiable set.

What is usually meant by “sex based rights” are the exceptions set out in the Equality Act allowing services and public functions to offer a single or separate sex service, and to offer this on the basis of biological sex, as well as allowing employers to recruit for only a member of one sex where there is a genuine occupational requirement, women only membership associations, and women only sports.

They are exceptions because they do not arise in the course of the mundane, or in the course of most recruitment. The word “exception” here simply means that you cannot separate by sex “except” where you can – it does not denote that you must have an “exceptionally impressive” reason for doing so.

Blackadder misinterprets the Equality Act when Baldrick relies on the single sex exceptions

So if you run a greengrocers you cannot insist that you only provide your service to men, and if you run a pub you cannot have a ladies’ room separate to the men, as used to be common. If you are recruiting an admin assistant it would be unwise to ask for women only. If you are the proprietor of a golf club you must not only allow men into the bar.

So the ordinary rule for services is that everything is mixed sex, except where

“only persons of that sex have need of the service,” s.27(2) Schedule 3 Equality Act – for example, a lesbian support group;
“The service is also provided jointly” and “would be insufficiently effective were it only to be provided jointly,” s.27(3) Equality Act – for example, a mental health group which offers both a mixed group and a men’s group catering to men’s specific needs;
“A joint service would be less effective” and “the extent to which it is required by persons of each sex makes it not reasonably practicable to provide separate services,” s.27(4) Equality Act – for example, a feminist society in which consciousness raising sessions are held;
The provision is at a hospital or similar establishment providing special care, supervision or attention, s.27(5) Equality Act;
The service is likely to be used by two or more persons at the same time and a person of one sex might reasonably object to the presence of a person of the opposite sex, s.27(6) Equality Act – for example a changing room;
There is likely to be physical contact between service users and a person might object if that were from a member of the opposite sex – for example a single sex martial arts class, s.27(7) Equality Act.

S.28 to Schedule 3 goes on to clarify that providing a single sex or separate sex service can extend to excluding a person on the basis of gender reassignment – if the conduct in question is a proportionate means of achieving a legitimate aim.

It should perhaps be noted here that not all exceptions in the Equality Act are sex based. There are a number of age based exceptions for example – and as far as services go, s.30 Schedule 3 provides a general dispensing power allowing service providers to provide a service to those who share a particular protected characteristic if the provider “reasonably thinks it impracticable” to provide the service to others.

In addition to the exceptions for service providers, employers may, if justified, require an employee to have a particular characteristic, s.1 Schedule 9 Equality Act. In the context of sex based rights, that might mean recruiting a female carer to provide intimate personal assistance to a woman, or a female counsellor for a rape crisis or domestic abuse centre.

Membership organisations may restrict membership to persons who share a protected characteristic (s.1, Schedule 15 Equality Act).

(There are also single sex provisions for sports, which this post, already too long, doesn’t touch on further.)

Are these truly “sex based rights”? As armchair pedants will be swift to point out, these are exceptions to the rule of indiscriminate provision rather than rights. The Equality Act does not seek to confer rights; it ensures protections. But what it does recognise is that equality in its purest form – whereby no service provider was allowed to distinguish between child and adult, man and woman, belonging or not to a particular faith – would lead to injustice. In particular, it reflects that equality does not always mean treating everyone the same. Sometimes it also requires removal of barriers, or making provision to address particular disadvantages. What makes the exceptions actionable rights are the provisions of s.19 which prohibits indirect discrimination and the Public Sector Equality Duty (PSED) contained in s.149. A body which declined to consider using the exceptions would be vulnerable to a claim in the County Court for indirect discrimination or to judicial review in the case of a public sector organisation which failed to properly apply the PSED.

And where state bodies are concerned, it also works alongside the Human Rights Act, which does confer (or confirm) rights – controversial at the time of the introduction of the HRA, because of the spectre of a precedent of a benevolent government ‘granting’ rights to citizens which could then be snatched away by a despotic successor. The HRA includes freedom from degrading treatment, the right to privacy and dignity, and freedom of association, all of which are relevant to the provision and retention of single sex services.

So why are they controversial, in a way that corresponding exceptions for other protected characteristics such as age or disability are not?

The answer seems to lie not in our attitude to sex based rights, but in our attitude to sex based wrongs. It is by no means novel to suggest that such wrongs are historic and now cured by our supposedly perfect and equal society: the surge in ‘men’s rights activism’ of the 90s and 00s was predicated on the idea that women had already gained all the rights we could legitimately expect, that the playing field was entirely level, and any further progress was “demanding special treatment.”

The nineties were a particular hotspot for such arguments, as the marital rape case (R v R [1991] UKHL 12) was argued and ultimately won. On 23 November 1991, Neil Lyndon produced an article entitled “On how civilised society is being corrupted by feminists and their mad doctrines” in the Spectator, complaining that the “Spare Rib hoods” had infiltrated the law: “The Law Lords tipped their wigs in the direction of the hoods when they reinterpreted the law on rape to include acts between a married couple… they acceded to and gave established respectability to the idea that normal men are rapists.”

The following year, on 17 October 1992, Barbara Amid expressed horror that the government is now “dancing to the tune of radical feminists.”… “In the past 20 years, our society has gone a good way towards becoming a matriarchy… And just as I, being a supporter of liberal democracy, would fight a patriarchy, the fight now must be against matriarchy.”

Indeed, men’s rights activists such as Diana Thomas (writing in 1993 as David) insisted that it was really men who suffered sex based oppression – including by being ‘provoked by neurotic women into committing date rape’.

None of this, of course, was exclusive to the 90s. As far back as 1953, the Lady column in the Spectator magazine was complacent: “The time has at last come when the self-respecting intelligent woman need no longer call herself a feminist… The battle is over. The women have won.”

What is new, though, is that such strictures are no longer the preserve of the conservative. Helen Pluckrose wrote in October 2020 in this thread that “I don’t believe sexism against women is a mainstream thing.”

This is not a criticism of Helen, whom I have always found to be a lucid and interesting thinker, whether or not I agree with her. The point is that many, many people did agree with her that while virtually all other forms of prejudice continue to exist and should be countered, sexism against women does not – or at least not in the ‘mainstream.’

For those who take this position, increasingly not just conservatives but also those who would regard themselves as social justice connoisseurs, there is no point to sex based rights because there are, by that definition, no sex based wrongs.

If male violence is not targeted at women by sex, but the random violence of a few ‘bad apples’ misbehaving, then women do not need special measures to ensure their protection from it. If there is no sexism, then there is little basis upon which to rest a belief that a joint service would be less effective than a single sex one, and no basis upon which a member of one sex might ‘reasonably object’ to the presence of a member of the opposite sex. If there is no sexism, no barrier to female participation, then women only shortlists are a narcissistic indulgence, women only associations unnecessary and suspect, women only occupational requirements nothing more than special treatment for whingers.

For those who do see sexism, sex based rights – the recognition within the Equality Act that single sex spaces and provision are sometimes necessary – are crucial.

While male violence continues to be targeted at women by sex, some survivors will need places where they can breathe, speak and recover freely, without the hypervigilance arising from hearing a male voice or seeing a male person – however delightful that person may be. Post traumatic stress reactions do not pause to reflect on “not all men.”

While sexism persists, women will need privacy and dignity when changing, when in need of personal care, or in any of the myriad situations envisaged by the Equality Act’s exceptions when a single sex service can be justified.

While women are subject to FGM, sexual violence, forced marriage, honour killing, corrective rape, military rape, forced pregnancy, forced abortion, selective abortion, sexual harassment, prostitution, pornography, objectification, sex trafficking, maternity discrimination, unequal pay, disproportionate caring responsibilities, domestic violence, financial exploitation and control, political underrepresentation, inadequate healthcare, limited control of their own bodies and reproductive choices, systemic barriers to occupational progress and promotion, silencing, belittling or any of the other ways in which sexism, misogyny and patriarchy are enforced, “sex based rights,” however inadequate a shorthand that may be, are a hallmark of a civilised society. Until sexism is eradicated, sex based rights are indispensable.

Suspended sentencing: the case of Javed Miah

This is a blog about sentencing, and outrage, and outrageous sentencing.

In particular, it’s about this case of sexual assault perpetrated by a stranger, reported in the Mirror as “Dad who attacked woman walking home at night avoids jail as he ‘would lose his job.’”

The facts are thrown into particularly sharp relief this week, in the wake of the abduction and murder of Sarah Everard. The defendant, Javed Miah, walked behind the victim and bumped into her, asking her the time. After following her for a minute, he groped her bottom, pushed her to the ground, and moved his hand from her crotch up to her chest. The victim managed to connect an emergency SOS call on her mobile phone at which point he ran away.

Miah was given a six month sentence, suspended for two years. He will also have to complete 250 hours of unpaid work, complete the sex offenders rehabilitation programme, and sign the sex offenders register for seven years.

Women are justifiably outraged. How can a man push a woman to the ground, commit a sexual assault, seemingly intent on worse and yet walk free from court?

Other commentators can point you towards the Sentencing Guidelines and point out that the judge has followed them. The Mirror reported that the judge called the attack ‘sustained.’ That would make it a Category 2, Culpability B offence, carrying a one year starting point with a range of a community order to two years custody. With both the logic and the emotion of a Sudoku puzzle, the starting point of one year is then adjusted up for location and timing (alleyway, after dark), then down for previous good character and remorse, ending at a 9 month sentence. A further 30% off is applied for a guilty plea, bringing it down to six months. The judge must then consider mitigation and whether or not the sentence can properly be suspended. Any sentence of 2 years or less is capable of being suspended – and there are good reasons for this: if someone loses their home, job, relationship and future prospects they are more, not less, likely to reoffend. Feed the data here into the OASys machine and we have a defendant who has a secure relationship – ding! – with a job – ding! – and a home – ding! – and children, meaning community ties – ding! – which all feeds into the assessment of a low risk of reoffending.

So yes, assuming from the limited information in the reports that it was correctly categorised, the magistrate has applied the guidelines correctly. The defendant pleaded guilty, so we don’t even need to get into whether the prosecutor has done their job well: plainly they have. Defence lawyers are often blamed for ‘getting their client off the hook,’ but since this defendant had pleaded guilty, we can blame the defence for nothing more sinister than effective mitigation, which is the right of the most egregious criminal in the land. And of course, it would be absolutely wrong to suggest the judge was entitled to sentence the defendant for what he (probably) would have done if not for the victim’s actions, rather than for what he did do. We do not sentence people for things they didn’t do – even if we think they might have done had they had the opportunity. This is fundamental to the rule of law.

And yet.

The purpose of this blog is not to reassure readers that the system is infallible. It is to make plain that the disquiet felt by women at sentences like this is not because women have failed to understand how the guidelines work, but because the guidelines do not reflect the terror that this type of offending causes to women going about our daily lives. We can reassure readers that such sentences are not the result of outright bias or corruption – but we would, ourselves, prefer an assurance that the Sentencing Guidelines will be updated and improved.

Do Right, Fear No One (except possibly Stonewall)

Garden Court Chambers is a prominent and highly regarded set of barristers’ chambers based in Lincoln’s Inn Fields, London. Garden Court prides itself on its “progressive” attitude to law: for example, its members will defend but not prosecute, in common with other “progressive” sets. Its motto, “Do right, fear no one,” reflects its stated commitment to “fighting your corner, no matter how formidable the opponent might seem”.

So how has such a set found itself at the heart of a legal challenge from one of its own barristers, who accuses it along with Stonewall of discriminating against her as a woman and a lesbian?

Garden Court is a member of Stonewall’s Diversity Champions scheme.

Stonewall has recently attracted some accusations of homophobia for quietly redefining “sexuality” to mean an attraction to a gender, not a sex. Stonewall’s definitions, from their glossary, are these:

Homosexual: This might be considered a more medical term used to describe someone who has a romantic and/or sexual orientation towards someone of the same gender.

Gender: Often expressed in terms of masculinity and femininity, gender is largely culturally determined and is assumed from the sex assigned at birth

Gender identity: A person’s innate sense of their own gender, whether male, female or something else (see non-binary below), which may or may not correspond to the sex assigned at birth.

So for Stonewall, being L, G or B has nothing to do with a person’s sex, but rather means one is attracted towards a person’s “innate sense” of masculinity or femininity “which may or may not correspond to the sex assigned at birth.”

The idea that femininity is innate in women – and by extension, that unfeminine women are not women, and that the culturally determined status of women globally is not attributable to patriarchy but innate to women ourselves – is offensive to many women. Many lesbians (and gay men) are aghast at the proposition that sexual orientation derives from some sort of soul-based echolocation and disregards biological sex.

One of those women is Allison Bailey, a criminal defence specialist at Garden Court, who is herself a lesbian. She sets out in the background to her action that she is the daughter of Jamaican immigrants, a survivor of childhood sexual abuse and an active anti-racism campaigner who spent a night in a San Francisco jail for a peaceful protest in the wake of the acquittal of the officers involved in the beating of Rodney King – in summary, a woman who would seem to typify Garden Court’s ethos.

She was involved in setting up the LGB Alliance in 2019 to advance and protect the rights of lesbians, gay men and bisexuals to affirm themselves as attracted to members of their own or both sexes. LGB Alliance dissents from Stonewall’s position on the definition of homosexuality, accusing Stonewall of homophobia. That has upset Stonewall.

So far, so perfectly ordinary: private citizens are well within their rights to be involved in whatever social and political voluntary work they wish within permissible legal confines, without interference from their employers or their colleagues.

However, when Allison tweeted in support of the LGB Alliance immediately following its first public meeting, Garden Court hastily put out a disclaimer distancing itself from Allison and her views, instigated a disciplinary procedure, and (she alleges), restricted the flow of work to her, causing her income to drop considerably. Allison says this was done under pressure from Stonewall.

In her fundraiser, she sets out how in response to her Subject Access Requests, her chambers replied with four lever arch files of documents, while Stonewall blandly denied any correspondence about her. That, as she knew from the documents her chambers had provided, was untrue. She pursued the inquiry, and this has resulted in her bringing an action against both Garden Court and Stonewall.

The legalities of the action are worth considering. She alleges that Garden Court discriminated against her as a woman and as a lesbian, so on the basis of the two protected characteristics of sex and sexual orientation. At the same time, she says that Stonewall engaged in “prohibited conduct” under s.111 of the Equality Act by instructing, causing or inducing Garden Court to discriminate against her. We are not aware of any other s.111 case that has been reported, so this may be a legal first.

This week, Stonewall and Garden Court applied to the tribunal to strike out her claim. To succeed, they would have had to show that Allison’s claim was unarguable – that it was so ill-founded that it stood no prospect of success at trial. When a strike out application is heard, the judge has to take the Claimant’s case “at its highest” – because if it cannot succeed even at its highest then it is unarguable.

Garden Court filed a 120 paragraph witness statement in support of its contention that the claim was unarguable. A cynic might suggest that anything that takes 120 paragraphs to refute or undermine is plainly arguable. Garden Court argued that the claim could not succeed on merits, and Stonewall argued that the s.111 point could not succeed as there was no relationship that could meet the requirement of instructing, causing or inducing. Allison asked for permission to amend her claim.

In order to establish whether a claim is arguable or not it is inevitable that some of the evidence will have to be referred to. During this hearing, it emerged that Stonewall had leaned hard on Garden Court, writing emails which were characterised by the judge as a “threat” of reputational damage to Garden Court, including that for Garden Court to continue to support Allison “puts us in a difficult position with yourselves”, that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people”, and that Garden Court must take disciplinary action against Allison or, as summarised by her barrister, face the reputational consequences.

Unsurprisingly, the judge concluded that it was at least arguable that this was “inducing” Garden Court to take the steps against Allison Bailey which it did. She also concluded that the Diversity Champions Scheme provided the requisite relationship, and that Allison had a “more than reasonable” argument that the steps taken amounted to discrimination. She refused the strike out application and granted the application to amend.

It remains to be seen whether the Employment Tribunal will conclude in June that the actions of Garden Court and Stonewall were actually unlawful rather than merely astonishing.

In the meantime though, the question arises as to how much power and influence a charitable organisation should have over individuals with whom it disagrees. Even the most zealous defender of the Stonewall position would, we think, baulk if equivalent pressure were applied by another large and well regarded charity firmly embedded in the establishment – for example, the Church of England. If the Church were to lean as hard on an employer (or chambers) to disown a member for setting up an LGB organisation, there would quite rightly be uproar from Stonewall’s supporters. No charity, no matter how well intentioned, well financed or well regarded, should be able to use a diversity scheme to exert pressure which is at best (on Stonewall’s case) intrusive and at worst (on Allison’s case) unlawful.

Garden Court is currently recruiting for specialists in business ethics.

Access to equity and access to justice: legal aid and domestic abuse

Congratulations to Public Law Project and their instructed counsel on an important and far-reaching win. This is a guest blog.

R(GR) v Director of Legal Aid Casework EWHC 3140 (Admin) is a new case relating to the availability of legal aid in cases of domestic abuse, where the victim has theoretical but not practical access to value in a property.

In 2013 the government made sweeping cuts to the availability of legal aid for most areas of civil law, including family law. However, it also made a commitment to retain legal aid for victims of domestic abuse, in order to avoid situations in which an unrepresented victim of abuse might have to face the perpetrator of abuse in the family court.

In order to qualify for legal aid for family proceedings, women who have experienced domestic abuse must meet strict financial eligibility criteria, assessed on the basis of both their income and capital. This has led to women being denied legal aid on the basis of an interest in capital, usually the family home, which is jointly owned with the perpetrator of abuse, and which in practice they are completely unable to access.

In this case, GR had experienced serious physical, sexual and financial abuse from her ex-partner. She had obtained a non-molestation order without legal representation. At that hearing, on seeing her ex-partner for the first time, she vomited in court. She then sought legal aid in order to be represented in family proceedings concerning their children and in relation to the sale and division of the equity in the family home. At the time of her legal aid application her only income was Universal Credit. She was living in the family home with her two children, but was unable to borrow against the capital without her ex-partner’s consent. She had attempted to take out loans, but had been refused credit on the basis of her extremely low income. She had already sold jewellery and furniture to pay for limited representation in relation to an initial hearing concerning the arrangements for their children.

GR’s application for legal aid was refused on the basis of an assessment that she had a 50% interest in the value of the family home (disputed by her ex-partner), which put her well above the £8,000 threshold set out in the Civil Legal Aid (Financial Eligibility and Payment for Services) Regulations 2013 (“the Means Regulations”). Regulation 31 of the Means Regulations provides that in relation to the valuation of capital resources:

In so far as any resource of a capital nature does not consist of money, its value must be taken to be—

(a) the amount which that resource would realise if sold; or

(b) the value assessed in such other manner as appears to the Director to be equitable.

However, regulation 37 of the Means Regulations makes specific provision for capital in the form of an interest in land, and does not make provision for the equitable assessment provided for by regulation 31:

In calculating the disposable capital of the individual, the value of any interest in land must be taken to be the amount for which that interest could be sold after deducting, subject to paragraphs (2) and (3), the amount of any debt secured by a mortgage or charge on the property.

The case turned on whether the Legal Aid Agency could assess the value of GR’s share in the family home as nil on an equitable basis under regulation 31, or whether it was required by regulation 37 to value her share as the amount for which it could theoretically be sold. It was accepted that she could not borrow against the property, and that if she agreed to her ex-partner’s application to force the sale of the home, she would have agreed to the very thing that she required legal advice about. It was also accepted that if GR were to be granted legal aid, the ‘statutory charge’ would apply, which would mean that if she obtained any benefit, such as an interest in the home, as result of the proceedings, she would be required to repay some of the costs to the Legal Aid Agency. Any legal aid she did receive would effectively be a loan.

The Court heard that the Catch-22 position GR found herself in was a common one. The family solicitor who had helped GR apply for legal aid explained: “Whilst difficult to quantify, it is the case at Beck Fitzgerald that, on average, we cannot assist 1-2 clients per week in securing legal aid as the equity in the property they live in is considered by the Legal Aid Agency as an asset which they can access. This is irrespective of whether the property is occupied by the client and their children, thus providing a home and irrespective of whether the property is jointly owned by the client and the perpetrator of abuse. These clients are unable to take out loans, are on a low income and often, the question of sale/occupation of the family home is the subject matter of the dispute.”

The organisation Rights of Women also provided evidence of the way in which the financial eligibility criteria enable perpetrators of abuse to continue to exercise control through the family courts, explaining that: “It is well recognised that abusers will use any means they can to continue to control the victim of their behaviour following the end of the relationship. Preventing them from accessing legal advice would be an easy way to do so.”

The Court found that the Legal Aid Agency was wrong to say that it had no discretion to make an equitable assessment of the value of a capital resource, and that by taking that approach, some people on low incomes would be prevented from having fair and effective access to justice. In order to prevent that from happening the discretion in regulation 31 could be applied to the valuation of any resource of a capital nature, save for the valuation of money.

This means that in any case where an applicant for legal aid has an interest in a capital resource, the Legal Aid Agency will now have to assess that interest on an equitable basis, taking into account the applicant’s ability to access that interest, and their ability to represent themselves effectively. In domestic abuse cases, where it is established that women are disadvantaged in legal proceedings if they are forced to represent themselves against the perpetrator of that abuse, it will increase access to justice, and ensure that more women are able to access legal representation.

Johnny Depp: how was the decision reached?

The decision in the Johnny Depp libel trial extends to 585 paragraphs of text. It is not a judgment which is easily skim-read or which lends itself to cherry picked quotes. It is divided into sections: §1 – 37 recounts the background and procedural history; §38 – 46 sets out the law. §48 – §74 set out what the Defendant (the Sun) and the Claimant (Depp) each said about fourteen separate incidents (broadly, the Sun asserted that there was domestic abuse and Depp denied it). At §75 – §84 the ‘ordinary meaning’ of the articles is considered. §85 – §94 sets out the evidence which was heard. §95 – §106 sets out the background to the relationship between Depp and Ms Heard.

At §107 – §205 the judge considered a number of factors raised by the Claimant as to why Ms Heard should be disbelieved out of hand – attacks on her credibility. These were rejected, and the judge went on at §206 – §573 to set out each and every incident, the evidence on it, whose evidence he preferred, and why.

At §574 – §583 the summary of conclusions on the evidence as a whole are set out, and finally §584 – §585 gives the conclusion itself.

It is important when looking at the judgment to bear in mind that this is not Depp v Heard, but Depp v Sun Newspaper. That is to say – Amber Heard did not herself publicise the allegations thereby triggering the libel claim. She was dragged into the spotlight not to defend her own reputation, but as a witness in defence of the Sun. Though publicly vindicated, this process has not been one of her own choice.

It is also important to note that this was not a criminal case, although it did involve allegations of criminal conduct. The standard of proof was the civil standard of ‘balance of probabilities’ – was it more likely than not.

So what of the counter-allegations? Depp also alleged that Heard had hit him and produced audio evidence of an alleged confession. Were these simply ignored by the judge? The answer to that is no: these were raised and considered as part of the factors raised as an attack on Ms Heard’s credibility. Audio recordings by both were taken into account but viewed as less rigorous evidence than that which is tested in cross examination. Ms Heard accepted that she had thrown pots at him and also on one occasion slapped him, but said this was in self defence. The judge also expressly considered this at §191-2 and said:

It may be asked why Ms Heard’s record or non-record for violence is of any relevance at all. It may be said that the libel which the Defendants are alleging is true is that Mr Depp was violent towards Ms Heard. Why then is it of any relevance to investigate whether Ms Heard was violent towards Mr Depp? Mr Sherborne offered two answers to this. First, it was integral to the defence of truth that the violence used by Mr Depp had been unlawful or unjustified. If, for instance, the only violence which Mr Depp had used had been in defence of himself it would hardly assist the Defendants in establishing the substantial truth of their allegation that he was a ‘wife-beater’.

Second, it was Mr Depp’s case that it was not he, but Ms Heard who had been the violent party. She denied this was so, but, if his account was correct, that would reflect adversely on her credibility.

The Claimant’s case was not simply that he had only used violence in defence of himself, but that the episodes of abuse hadn’t happened at all. Looking at the incidents individually, we see that

Incident 1: allegations that JD repeatedly slapped AH in the face and knocked her to the floor. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 2: allegations that he hit her in the face, shook her and shoved her in to the wall. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 3: allegations that he smashed glasses and ripped her dress. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 4: allegations that he kicked her to the ground and threw a boot at her. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.

…. the rest continue in a similar vein. The incidents said to have been provoked by Ms Heard are Incidents 8, 9, 12 and 13 – four of the fourteen. For Depp to succeed, it was not enough for him to assert that she had once admitted a slap. He had to show that the Sun had not established that violence happened in any of the claims other than those said to be provoked by her, and also that her violence began the episodes rather than being in response to them.

In relation to each incident, the judge goes on to weigh up the evidence given by everyone involved and reach findings as to whether it did or did not happen. It is not the case that the judge did not accept that Ms Heard was ever aggressive – indeed she had accepted that in two of the incidents she had retaliated physically. In numerous of them there are what seemingly amounts to an admission by Depp in the form of an apology or text message following the event. It was the judge’s task to go through all of that evidence, hear what other witnesses had to say, and then reach a decision as to whether it was more likely than not that each incident had been proven by the Sun. Not every incident was found proved, but enough to prove the “substantial truth” of the article.

Much has been made on social media of a single line in the judgment: “It is not even of significant relevance to whether Ms Heard assaulted Mr Depp.” This line should be read more carefully than social media perhaps permits. It is a reference to whether the judge needed to make a finding as to who had left faeces on the bed. Depp alleged it was Ms Heard; Ms Heard denied it; it may have been one of the dogs. It is worth quoting the paragraph in full:

“Mr Depp’s belief that Ms Heard or one of her friends was responsible for leaving the faeces on the bed is relevant because (a) it led him to conclude that his marriage to Ms Heard could not continue and (b) it was the cause of part of the argument which subsequently took place on 21^st May 2016. In my view, whether Ms Heard or one of her friends was in fact responsible is not important. It is remote from the central issue, namely whether Mr Depp assaulted Ms Heard. It is not even of significant relevance to whether Ms Heard assaulted Mr Depp. For what it is worth, I consider that it is unlikely that Ms Heard or one of her friends was responsible. Mr Depp had left that night for his property in Sweetzer. As long as he was away, it was Ms Heard who was likely to suffer from the faeces on the bed, not him. It was, therefore, a singularly ineffective means for Ms Heard or one of her friends to ‘get back’ at Mr Depp. Other evidence in the case showed that Boo (one of the two dogs) had an incomplete mastery of her bowels after she had accidentally consumed some marijuana.” [emphasis added]

In other words, “it” (meaning a finding as to who had left the faeces on the bed) was not of relevance to whether either Mr Depp had assaulted Ms Heard or as to whether Ms Heard had assaulted him. The meaning of this is absolutely not, as some have been led to believe, that the judge thinks that any assault by Ms Heard on Mr Depp is insignificant or irrelevant. It just means that if the judge had made firm findings as to who left the faeces on the bed, it would not have helped him to come to a decision on whether either of them had assaulted the other.

The judgment is lengthy and detailed. Each allegation seems to have been carefully assessed and reasons given for the findings made. The decision details a lifestyle which in a less wealthy litigant would at best be described as “chaotic.” In many regards it is almost repetitively similar to every account of domestic abuse heard in court: questioning by his barrister as to why she ‘went back to him’ alongside characterisation of the victim as a gold-digger and / or unstable, lies said to have been told by each party many years ago excavated and aired as proof positive that the other is an irredeemable fantasist. The unusual factor is that the public is able to see the reasoning given for each finding: most abuse trials are criminal trials in which the reasons for the jury’s findings are never disclosed.

Depp has indicated that he will seek leave to appeal.

The Sun proves ‘truth’ in Johnny Depp libel trial

Judgment has been handed down in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB), perhaps better known as the Johnny Depp libel trial.

Johnny Depp brought a claim for libel against the Sun newspaper, after it published a headline reading ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts film?’ The headline was later amended to reference an “assault claim.” The article referenced the allegations made about Depp being violent to his partner Amber Heard.

Those allegations might have been so much chip wrapping had Depp not pursued a claim through the courts. To succeed in a libel claim a claimant must show that the words complained of, in their ‘ordinary meaning,’ had caused serious harm to their reputation. If so, the defendant is guilty of libel unless they have a defence.

One of those defences is to show that what was said was true. To succeed in this defence there is no need to show that each and every allegation is true – just that they are “substantially true.” It is a risky defence to run, because to run it and lose risks increased damages, to reflect the harm and distress done by airing the issues through a trial.

The ‘ordinary meaning’ of the Sun’s article was said to be that

“The Claimant was guilty, on overwhelming evidence, of serious domestic violence against his then wife, causing significant injury and leading to her fearing for her life, for which the Claimant was constrained to pay no less than £5 million to compensate her, and which resulted in him being subjected to a continuing restraining order; and for that reason is not fit to work in the film industry.”

Needless to say, if untrue, such an accusation would indeed be libellous.

The trial therefore meant a hearing of all of the evidence about abuse. The allegations were for the defence – the Sun – to prove, not for Depp to disprove, but on the civil standard of proof (“the balance of probabilities”) and not the criminal standard (“beyond reasonable doubt”). The judge was therefore concerned with whether, having heard the evidence, it was more likely than not that Depp was guilty of serious domestic violence against Amber Heard.

The examination of the allegations is conducted in careful detail in the judgment. The judge concluded that of the fourteen separate incidents alleged, twelve were proved, and so the defence of truth was successful. There had been no libel and Depp’s claim failed.

Not only did his claim fail, but the evidence does not show him in a particularly good light: ‘joking’ about being violent to women in prostitution, admitting violence to Ms Heard in messages, blaming his behaviour on a persona he called the Monster, and a chronic drink and drugs problem – all evidence which would not otherwise have been public.

It remains to be seen as to what effect, if any, this will have on Depp’s career. Certainly his fan base are firmly of the view that the judge is wrong, some in more base terms than others. What is certain is that Ms Heard’s career has already been badly affected: she has been the subject of online abuse, petitions to have her removed from her work, characterised in court as a gold digger, and publicly and in the glare of publicity described by Depp as an “overused flappy fish market” and “waste of a cum guzzler” in a rant in which he promised her “total global humiliation.”

The sad fact is that vindication in the courts cannot retrospectively protect Ms Heard from that humiliation already visited upon her. This is a persistent problem for women who report abuse by powerful men.

Timothy Brehmer: from coercive control to loss of control

This week Timothy Brehmer was acquitted of the murder of Claire Parry. Brehmer, a former police officer, had not denied that his actions had killed her. Instead, he said that he had not intended to kill her. That he had intended only to shove her out of the car, and yet somehow, she had ended up dead.

Women across the UK followed the case as Brehmer’s story changed. She had been breathing when he left the car, he said. He said she had tried to stab him. Or maybe not, maybe he had tried to stab himself. Her death must have been positional asphyxiation. Whatever, he hadn’t intended to kill or seriously harm her. Media reporting revealed descriptions of controlling coercive behaviour, and few had sympathy for the pity parade that constituted his reported evidence.

The verdict, acquitting him of murder, was met with outrage from feminists. How could we reach a stage where a man strangles a woman for at least 10-30 seconds with enough force to break three bones in her neck, his evidence is a kaleidoscope of unlikelihood, and yet somehow he is not guilty of her murder?

The answer lies in the “loss of control” defence. Importantly, we will never know why it is that the jury came to the verdict which they did. They had two options to reach their conclusion. One was that Brehmer’s evidence was true – or at least, they had some doubt that it was lies – and that he hadn’t really intended to seriously hurt or kill her when he strangled her. The second was that he had intended to seriously hurt or kill her, but that his actions arose from a “loss of control.”

Although we will not find out which of the two were the basis for the jury’s decision, we do know that the judge sentenced on the basis of loss of control. Once the verdict is in, it is for the judge to decide which is more likely, and to sentence on that basis.

The Bournemouth Echo, reporting the sentencing hearing, records that the judge said

“This is a case where I should sentence you [on the basis] that you lost your self control following the message that was sent to your wife, rather than you unintentionally killing Mrs Parry.

“I am sure that you did deliberately take Mrs Parry by the neck.”

He went on to make findings that the “loss of control” trigger was “only just met” and that Brehmer’s actions bore high culpability within the sentencing guidelines.

So what is “loss of control,” and how does it fit within the legal framework?

Before 2010, the defence was one of “provocation.” It was up to the jury to decide whether a person had been provoked sufficiently to lose their control and thereby to benefit from the reduced sentence for manslaughter, not being guilty of murder. It produced some absolutely shocking results: Thomas Corlett, who got three years for killing his wife after she ‘provoked’ him by moving the mustard pot to the wrong side of the table, for example. It was referred to by campaign stalwarts Justice for Women as the “nagging and shagging” defence, because it enabled men to argue that their wife being unfaithful or arguing had reasonably provoked them to kill her. After some significant campaigning, law reform was finally proposed in 2008, slowly made its way into the Coroners and Justice Act 2009, which was enacted in 2010. The relevant provision is this:

What is this “qualifying trigger?” Nagging and shagging is explicitly excluded, or so the drafters hoped:

In plainer terms, the questions are these: under s.54, was there a loss of control? Was there a qualifying trigger? And might any other comparator in similar circumstances have behaved the same way? If so, s.55 tells us what the qualifying triggers are – here, did the victim say something or do something ‘extremely grave’ and causing the defendant to have a ‘justifiable sense of being seriously wronged?’

“The fact that a thing done or said constituted sexual infidelity is to be disregarded” was intended to ensure that men who felt ‘provoked’ by their partner’s cheating (or alleged cheating) did not get away with murder.

We should recall, a decade later, that there was considerable opposition to this from some quarters. Feminists were accused of “feminising the law.” Dominic Grieve objected that “the Government have decided that thousands of years of human history and experience should be jettisoned for a piece of political correctness and proclamation: a declaratory statement that sexual infidelity can never justify violent behaviour.” Others pointed out that since men do kill in violent rage, it would be improper to prevent a jury from considering infidelity.

There were also objections that the clause was poorly drafted. These, unfortunately, were rather better founded. What constitutes ‘sexual infidelity,’ how grave is extremely grave and how serious is a serious wrong? Most importantly, what happens if sexual infidelity is just part of a wider context of loss of control? These were the questions considered in R v Clinton, a case concerning three men, who in the span of three weeks had each killed their partner. The Lord Chief Justice, giving judgment, said that “The starting point is that it has been recognised for centuries that sexual infidelity may produce a loss of control in men, and, more recently in women as well as men who are confronted with sexual infidelity.”

The Court went on to take the view that while the new law meant that infidelity alone could not constitute a qualifying trigger, infidelity could still be considered if there was a wider context: “In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”

In Brehmer’s case, the trigger was not sexual infidelity, but the fear of her revealing the affair they were having, and so there was no prohibition on this being considered a ‘qualifying trigger.’

One question raised by all of this is where coercive control, not considered in 2008, would fit in. How should the law approach men who kill not because they lose control of themselves, but because they are losing control of their partner? Can or should statute try to draw the distinction?

It leads us to a situation where the solution is, perhaps, not available in law. The 2009 changes sought to block one such avenue, but were rather defeated in Clinton. What the defence of “loss of control” really needs is social change whereby the question as to whether a man in the same circumstances, with a “normal degree of tolerance and self-restraint” might act the same way, is met with a jury which says “absolutely not.”