Crowd-funding: transparency and trust

The key to good crowd-funding is information, and transparency. We want to suggest some rules of thumb.

Crowd-funding is frequently used as a way of funding claims: the UK’s main legal crowd-funding platform, CrowdJustice, is currently hosting over 1,500 live campaigns, with widely varying levels of support.

Crowd-funding can be a powerful way of righting a wrong which, because of the high cost of litigation, would otherwise go un-righted. It has contributed to “gender wars” cases on a number of occasions already: Keira Bell, Maya Forstater, Henry Miller, Julie Bindel, For Women Scotland, Fair Play For Women, LGB Alliance, Jo Phoenix and Lizzy Pitt have all used it to good effect, to mention just a few. These cases have been funded, for the most part, by large numbers of small donations. Many of them have been successful.

But there are worries and uncertainties about this method of funding litigation. Any member of the public can decide whether a particular grievance tugs hard enough on their heartstrings to persuade them to contribute. But they won’t necessarily have very good information about how likely a given case is to succeed, or whether it is being run in a sensible, cost-effective or prudent manner. Sometimes donors have undoubtedly been persuaded to waste their money to the benefit of no-one but lawyers.

The key to good crowd-funding is information, and transparency. We want to suggest some rules of thumb.

On launching

At the outset, we think a crowdfunder should address the following questions:

What are the outline facts of the case?

Tell the story in a paragraph or two. What has happened?

What is the cause of action?

That is to say, what kind of legal claim is proposed? A breach of contract claim? Judicial review of the decision-making of a public or quasi-public body? Discrimination contrary to the Equality Act? Negligence?

How strong is the case?

A short advice by a named lawyer on how likely the case is to succeed should be published as soon as possible, together with (or followed by, if not yet drafted) the statements of case on both sides.

It may be objected to this that a candid assessment of merits “gives too much away”. We don’t think this is a serious concern. Even if courts or tribunals were to read these assessments (which we think unlikely), they will make up their own minds on the merits of the case.

More fundamentally, if you don’t think the case has good merits, then unless there’s some exceptional justification — which you should be willing to explain — you shouldn’t be asking the crowd to pay for it. We don’t suggest that it will always be desirable to give as granular an assessment of the strengths and weaknessess of each aspect of the case as might be provided confidentially to the client; but it should be possible at least to say in the round how good the chances are of a substantial and worthwhile measure of success.

Does the outcome of the case matter to anyone but the individual claimant, and if so why?

It’s perfectly open to individual donors to support a case just because they feel the claimant has suffered an injustice, and they want to help. But donors should be given the information on which to make an assessment of the wider importance of the case.

If the case is of strategic importance, what is the individual claimant’s attitude to settlement?

Claimants won’t be able to give cast-iron guarantees that they will not settle in any circumstances, but a statement of intent not to settle the case confidentially in a manner that benefits only him or her, anyway unless advised it’s essential to do so, may give contributors some comfort.

What are the best case and worst case outcomes?

Who are the lawyers, and what’s their expertise and track record?

What total costs are anticipated? What factors could push those up? What work will be covered by the initial target?

The answer to the third question may give an indication of whether the case is being prudently managed: it should not normally cost more than a few thousand to get an initial advice on merits and draft the claim. If for some reason the case is going to be particularly expensive to run, that should be explained at the outset.

Is there a risk of having to pay the other side’s legal costs? What’s the plan for that?

What will be done with any excess left in the fund after all legal fees are paid?

Running the case

Once the case is launched, it should be run with maximum transparency throughout. There should be prompt publication of any case documents that it is possible to publish, and lawyers should take all reasonable steps to facilitate public attendance at in-person or remote hearings, access to witness statements, documents referred to in court, reporting, live-tweeting etc.

Legal fees

Legal representation is expensive, and that’s unavoidable: if crowd-funded cases are to be competently done, the lawyers will need to be able to earn from them at levels not too far from their usual rates. But lawyers’ “usual rates” often encompass quite a wide variation depending on the means of the client. When billing on a crowd-funded case, lawyers should remember that they are being paid from large numbers of small donations from donors of modest means. It doesn’t seem fair to treat “the crowd” as a client with a particularly deep pocket.

The result

The outcome of the case should be announced promptly with transparency, honesty and completeness; it should never be “spun” as more successful than it was.

A v Chief Constable of West Yorkshire and the transformed landscape of consent

The decision in A v Chief Constable of West Yorkshire [2004] UKHL 21, [2005] 1 AC 51 has been the subject of much recent analysis by those involved, and those interested, in the hearing before the Supreme Court in For Women Scotland v Scottish Ministers. The Scottish Ministers (Respondent) and Amnesty International (intervening) have relied on it to support the proposition that recognition of trans people in their acquired gender is longstanding and follows the line of case law necessary to give effect to the decision in P v S and Cornwall County Council [1996] ECR I-2143 and EU sex discrimination law.

Lord Bingham, giving the leading judgment, stated that [11]:

In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act, as referring to 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.

(Aidan O’Neill KC, on behalf of For Women Scotland, deprecated this as the “what you don’t know can’t hurt you” principle).

A may, in the event, prove to be of little significance in For Women Scotland. There is no obvious route to reconciling the facts in A with the requirements of EU law other than by a tortuous route through the Sex Discrimination Act 1975. Happily, that may now be circumnavigated by the protections on grounds of gender reassignment that follow from section 7 Equality Act 2010. But that will not put to bed the question as to whether preventing a transgender person from carrying out intimate searches (for instance) may amount to unlawful discrimination.

The answer to the question is likely to be found in how the legal and societal understanding of consent has transformed in the twenty years since Lord Bingham’s speech.

Michael Foran has noted

Leaving aside how the visual test is undertaken and by whom, this displays, at best, a remarkable ignorance and, at worst, a shocking indifference to the human rights of women who do not consent to being intimately searched by males.

This transformation has been seen in the criminal law, where the Sexual Offences Act 2003 defines the giving of consent as where a person “agrees by choice, and has the freedom and capacity to make that choice”. Applying this definition, the Court has found that the complainants did not consent where they were deceived as to the sex of the person with whom they were having intercourse (R v McNally [2013] 2 Cr.App.R.), use of a condom (Assange v Sweden (2011) 108(44) L.S.G. 17) or an intention to withdraw before ejaculation (R(F) v DPP [2013] 2 Cr. App. R. 21).

The landscape of consent has also been transformed in various different areas of civil law.

In 2015, the Supreme Court in Montgomery v Lanarkshire [2015] UKSC 11 [2015] 1 AC 1430 overturned decades of conflicting authority and affirmed that the standard of consent required to defeat claims in medical negligence was the standard of “informed consent”, and that information as to risk must be given proactively unless the patient positively indicates that he or she does not wish to receive it, or that (exceptionally) there was a therapeutic reason why such information could not be given; Lord Kerr and Lord Reed, in the leading judgment, were emphatic that this could not be the foundation of the general rule [85]. Lady Hale stated that [116]:

Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.

Notably, Lady Hale also gave a judgment concurring with Lord Bingham in A v Chief Constable in which she envisaged the effect of the Gender Recognition Act 2004 as being that “it will no longer be a genuine occupational qualification that the job may entail the carrying out even of intimate searches. In policy terms, therefore, the view has been taken that trans people properly belong to the gender in which they live”. Had the decision in Montgomery been made earlier, her consideration in A v Chief Constable might well have been different.

“Genuine autonomy” is not restricted in principle either to pregnant women or to medical negligence. It is echoed in the Mental Capacity Act 2005 (again post-dating the decision in A) where the criteria for making a capacitous decision include the person’s ability to understand relevant information, retain and use or weigh that information (sections 2 and 3). Even where a person does not have capacity, his or her wishes and feelings, beliefs and values, and other factors they would likely consider, are core aspects of any “best interests” decision taken under section 4.

Lady Hale’s usage of the term reflects the growing influence of the European Convention on Human Rights, and in particular Article 8, even in cases not directly concerned with alleged breaches of Convention rights, or the effect of those rights upon statutory interpretation.

Most obviously, the rights under Article 8: the principle of autonomy and the consequent principle that a loss of autonomy can be either prevented by injunctive relief or compensated for, has developed into a standalone tort, misuse of private information, Google v Vidal-Hall [2015] EWCA Civ 311 [2015] WLR (D) 156. The court has found that a lack of informed consent to the use of information amounts to a loss of autonomy in finding liability, and in measuring damages, see e.g. Ali v Channel 5 [2018] EWHC 298 (Ch).

“What you don’t know can’t hurt you” as a principle has been given short shrift in recent cases concerning alleged harassment contrary to the Protection from Harassment Act 1997 (again, the case law in relation to this Act is replete with the influence of Article 8). In Gerrard v ENRC [2020] EWHC 3241 (QB), [2021] EMLR 8, Richard Spearman KC (sitting as a Judge of the High Court) noted that

By their very nature, those particular types of conduct may well be carried out in such a way that, and with the intention that, they will be neither discovered nor discoverable by the victim. […] For one thing, the longer the acts remain concealed from the victim the longer the acts can be continued, and the more extensively they can be pursued, without the victim taking practical steps to avoid them, or legal steps to prevent them. For another, some perpetrators may derive satisfaction from knowing that, for example, their “watching and spying” is being carried out without the victim having any idea that they are being watched and spied upon. Further, a number of perpetrators will be concerned that they may be subject to criminal penalties or civil remedies if they are discovered.

Accordingly, if acts such as following, monitoring electronic communications, and watching and spying do not amount to the particular kind of harassment which constitutes stalking in circumstances where the perpetrator (1) conceals those acts, (2) has no intention that they should be discovered by the victim, and (3) reasonably believes that they will not be discovered (for example, because they are carried out with skill and care), that would greatly cut down the protection for victims which the PHA provides.

In 2019, the Divisional Court upheld the decision of the regulator to strike off a surgeon who had allegedly branded two patients’ replacement livers with his initials. The doctor had pleaded guilty to two charges of common assault. Neither patient was physically harmed by the branding, and it would never have been discovered if one of the patients had not required emergency surgery a few days after the original operation; the second alleged incident only came to light from a disclosure by an anaesthetist (following the first incident) many years after the event.

The relationship between the information available to a person and his or her enjoyment of physical autonomy, psychological integrity and dignity (as evident in these authorities and in statute) is a core element of the right to private life under Article 8 of the European Convention on Human Rights and in the Strasbourg jurisprudence. The Strasbourg court has found violations of Article 8 based on a lack of informed consent where:

– The police entered a person’s home, after he had cooperated to the extent of opening the door to them because the visit had been unannounced, Sabani v Belgium 53069/15 2022, [46];

– A person had not been given information as to the risks of adverse outcomes for medical procedures and treatment, Y.P. v Russia 43399/13 2022; [42] [53-59], Csoma v Romania, 8759/05 2013 [65-68]; Vilnes and Others v Norway 52806/09 and 22703/10 2013, [244];

– The state has failed to set up an appropriate regulatory framework and ensure professional standards providing for informed consent, Mayboroda v Ukraine 14709/07 2023 [62] [64].

Against this, a public authority does not itself enjoy the benefit of Convention rights because it cannot claim victim status. It is therefore difficult to see how a transgender police officer, who may only lawfully search a person by virtue of his or her role in exercise of that public function, could assert any countervailing “right” to do so if the subject of the search had not been informed of his or her right to object and of the fact of the police officer’s transgender status. Unless the police officer was willing for that information to be disclosed to prospective search subjects, the only possible means of protection of the hypothetical subject’s rights would be by a prohibition on the officer carrying out searches at all. Even if it were arguable that the police officer’s personal rights did, under Article 8, extend to the right to fulfil all aspects of their role (although this is doubtful), this would have to be balanced against the rights of prospective search subjects. The “intense focus test” applied to the balancing of conflicting rights operates from the starting point that neither party’s rights automatically takes precedence over the other: however, the right to autonomy, dignity and with it to informed consent are far more fundamental, wide-ranging and established facets of Article 8, and far more central to the concept of private life than the exercise of one aspect of a job which is fundamentally a public function inevitably involving some degree of interference with the subject’s rights in the first place. It is difficult to see any circumstances in which the rights of the prospective subject would not prevail.

In fact, this is addressed in A by Lord Rodger, whose judgment concurred with Lord Bingham and Lady Hale on the principle of liability but dissented on this point, [24] [25]:

[I]n my view, section 54(9) of PACE means that it would have been unlawful for Ms A to search female suspects and in practice she could not have searched — and indeed would not have wanted to search — male suspects.

[…]

[T]he logic of the directive, and of the 1975 Act, must be that, while a Chief Constable — who is the equivalent of an employer for these purposes — is not entitled to refuse to employ a transsexual as a police officer on the ground of her sex, equally, she is not entitled, except as provided by the legislation, to insist that she be employed in a different way on the ground of her sex. More particularly, she cannot insist that she be employed in such a way that her transsexuality will be kept confidential in all circumstances, any more than a homosexual or dyslexic officer is entitled to insist that he be employed in such a way that his homosexuality or dyslexia is kept confidential in all circumstances. Of course, the Chief Constable should not compromise the officer’s privacy by revealing the matter in question when there is no good reason to do so. But, equally, an officer cannot insist that his or her Chief Constable should act unlawfully, or permit the officer to act unlawfully, in order to keep it confidential. More generally, the Chief Constable must be free to take all appropriate decisions relating to the deployment of the officer even if, in consequence, the matter becomes known.

Although Lord Bingham’s judgment post-dated the incorporation of rights contained in the European Convention on Human Rights into UK law, it concerned an index act which preceded it, and the passing consideration given to the “reasonable objections” of a search subject did not operate from a starting point of the Chief Constable’s duty to act compatibly with the Convention, or contain any analysis of the search subject’s rights under the Convention and in relation to informed consent. If that decision were taken today, and in the context of how societal and legal standards around consent have developed, it is unlikely that the court could come to the same conclusion. It is Lord Rodger’s analysis that has stood the test of time.

Beth Grossman is junior counsel to the Lesbian Interveners in For Women Scotland v Scottish Ministers. The views expressed above are personal views only.

BSB Answers on Equality Duty Proposed Changes

The Bar Standards Board (“the BSB”) has initiated a consultation on proposed changes to the Code of Conduct, the professional rules which apply to all barristers, including non-practising ones. There are a range of proposed alterations; perhaps the most significant is, “to ensure that all barristers have a duty to promote equality, diversity and inclusion when practising or otherwise
providing legal services.”

https://www.barstandardsboard.org.uk/static/8245b4b1-4593-4fc2-8524971ef73abf2e/equalityrulesconsultationfinal.pdf

Legal Feminist is intending to submit a reply to the consultation. We had some questions, which I am now publishing. The BSB replied by inserting comments into our questions document. The original LF text is in plain text, and responses by the BSB in italics:

____________________

Dear BSB

Consultation on the Proposed Amendments to the Equality Rules

We refer to your public consultation on new rules to promote equality, diversity and inclusion at the Bar, launched on 3 September 2024.Thank you for your invitation to submit questions on this consultation in advance of the deadline.

We would like to request the following information.

Were any individuals and/or groups consulted in formulating these proposals? We would be grateful if you would identify any individuals and/or groups consulted who are not either employed by the BSB or members of the BSB Board, and provide copies of any input received from those individuals/groups.

The Bar Standards Board engages with a wide range of stakeholders on a continuing basis in taking forward our responsibility to promote diversity. Specifically, we also engaged with the BSB Taskforces during the development and drafting of the proposed Equality Rules.

Did the BSB commission any third-party or internal research, working papers, reports etc before formulating these proposals? If so, please tell us from whom any such research/working papers/reports etc were commissioned and provide copies.

All research carried out by the BSB in relation to equality, diversity and inclusion are listed in response to question 3a. below.

In the 5 years to 31 August 2024: (a) What if any research or investigation (including spot checks) has been done by the BSB to ascertain the levels of compliance with Core Duty 8 in its current form? (b) How often was non-compliance found?

Research carried out by the BSB

All research carried out can be found in this link:

https://www.barstandardsboard.org.uk/news-publications/research-and-statistics/bsb-research-reports.html

The following reports are of particular relevance:

BSB Pupillage Recruitment Report

https://www.barstandardsboard.org.uk/static/3b34ecde-3a3c-4e41-962d69e26d984531/c5600558-1097-4128-9eeac249683e08d3/BSB-Pupillage-recruitment-FINAL-report-February-2024.pdf

Pupillage Quantitative Research Report

https://www.barstandardsboard.org.uk/static/a1864210-6f4b-4844-972aaa0269c5a614/Pupillage-Quantitative-Research-Report.pdf

Pupillage Research Summary

https://www.barstandardsboard.org.uk/static/5c00760d-70f2-4893-a86dbb6b68761dfa/Combined-Pupillage-Research-Summary.pdf

Income at the Bar by Gender and Ethnicity

https://www.barstandardsboard.org.uk/static/af6c9471-1328-4f4d-8f1baf5adb349d64/Income-at-the-Bar-by-Gender-and-Ethnicity-2022.pdf

Trends in Demographics and Retention at the Bar 1990 – 2020

https://www.barstandardsboard.org.uk/static/12aaca1f-4d21-4f5a-b213641c63dae406/Trends-in-demographics-and-retention-at-the-Bar-1990-2020-Main-Body.pdf

Bullying, Discrimination, and Harassment at the Bar Report

https://www.barstandardsboard.org.uk/static/896b55e0-72b2-4388-be291617735b8a25/ea23e7ad-cc4a-438f-b50d6929f2001c5d/October-2020-BDH-at-the-Bar-full-report.pdf

Regulatory Return

In 2020 the Supervision team issued the Regulatory Return to a selection of around 350 chambers, BSB entities and sole practitioners. A specific question in relation to Core Duty 8 was not included, but questions were asked to understand what chambers were doing to meet the requirements under the current Equality Rules, in relation to:

the inclusive working culture of chambers;
bullying, harassment, discrimination and victimisation;
diversity data;
flexible working; and
allocation of work.

The Supervision team provided assessment letters to all those chambers selected, which set out specific actions (including those in relation to the current Equality Rules), where the required standard had not been met and further action was needed. For example, this included setting an action to ensure there was an anti-harassment policy, or making a recommendation for a fair allocation of work policy. The team worked closely to ensure that the actions were completed, until the chambers, BSB entities and sole practitioners could be assessed as low risk. Some of those selected required substantial guidance and input.

Our research (links above) shows that discrimination, bullying, and harassment persist within the Bar.

In the last 5 years 6 reports have been referred to the Supervision team specifically relating to concerns about discrimination. In addition, 5 reports were received in relation to bullying and harassment, as well as reports concerning other areas of the Equality Rules such as fair allocation of work and reasonable adjustments. There are also occasions where the team has initially received a report on an issue unrelated to the Equality Rules, only to discover that action is also needed in this area. For example, the team may receive a report relating to pupillage, but on exploring the matter further, there may be concerns about lack of reasonable adjustments for the pupil, the culture of chambers or victimisation.

For the most serious of cases, and in accordance with its Supervision strategy, Supervision Visits are carried out by the Supervision team and a report is then issued detailing the action needed. The team works with the chambers, BSB entities, sole practitioners or Authorised Education and Training Organisations to ensure that they have met their regulatory obligations, including those set out in the Equality Rules, and that all the actions have been completed, before re-assessing them as low risk.

How many, if any, disciplinary findings against barristers for non-compliance with Core Duty 8 have there been in the same period?

There have been no disciplinary findings against barristers for non-compliance with Core Duty 8. The main reason is the use of the word “unlawfully” within the Core Duty, which limits any action we can take under CD8 to conduct that falls within the definition of discrimination in the Equality Act. This creates a relatively high bar for successful action. In contrast, under CD5 we have greater flexibility to address behaviour that is discriminatory in nature, without having to prove it amounts to unlawful discrimination. In the period specified, we have received 144 reports relating to discriminatory behaviour, of which 20 were allocated to Enforcement. Of these reports that were accepted for investigation, none had a breach of Core Duty 8 proved at Disciplinary Tribunal. The BSB received 98 reports relating to bullying & harassment, of which 22 were allocated to Enforcement; and 60 cases relating to Sexual Harassment, of which 21 were allocated to Enforcement.

What, if any, Impact Assessments have been conducted in relation to the proposed changes in duties? We would be grateful if, in addition to identifying any Impact Assessments conducted, you would share these with us.

We are considering the equality impact of our rules on those who share protected characteristics. For example, we have proposed the removal of the mandatory requirement to have an EDO as we have evidence that the burden of this role disproportionately falls on the shoulders of those who share protected characteristics and often those at the junior end of the Bar. We held a roundtable discussion on the 5^th of November with EDOs and DDOs to ascertain if there would be any adverse impacts as a result of removing this mandatory requirement. Through our consultation process we are very keen further to understand the equality impact of our proposals. This includes where they may have a positive impact, as well as where they may have an adverse impact. We are exploring this through our various engagement events, and we are very keen to hear from stakeholders on this point through the responses to our consultation.

As the EIA is currently in progress and the consultation process is a means for obtaining evidence on the equality impact, we are currently not able to share this document with you. However, we are keen to hear from Legal Feminist where you consider there to be either positive or adverse equality impact in relation to our proposed rules, and what if any mitigating actions we may take.

What, if any, work has the BSB commissioned or carried out to assess costs of compliance with the new duties, both for individual barristers and Chambers? Please share the product of this work.

Proportionality has been a key consideration in the drafting of the new rules. As our proposed rules only require the profession to ‘take reasonable steps’, what is reasonable will be assessed on a case by case-by-case basis where cost to chambers will be a relevant consideration. We will take on board any feedback received through this consultation process in relation to cost.

What, if any, work has the BSB commissioned or carried out to assess the cost to Chambers of its proposed 5-year plan to require all Chambers to be accessible throughout (in particular as regards those chambers whose premises are located in the Inns of Court) including the costs of any necessary planning applications, listed buildings consent surveys and applications, project-management and building works, and the costs of the proposed accessibility reports to the relevant set(s) of chambers? Again, we would be grateful if you would please share the product of this work.

Promoting access can be achieved through a wide range of interventions not all involving significant cost. It will be for chambers to consider the most cost-effective solutions in their own circumstances. Where there are chambers found to be not accessible after the 5-year period, it will be assessed on a case-by-case basis and fall on the facts to ascertain whether reasons for not doing so are justified. Cost of planning applications, listed buildings consent surveys and applications, project management and building works, potential moving costs, will all be factors that will be considered in deciding whether restrictions on accessibility can be reasonably justified.

In terms of accessibility audits and accessibility plans, these do not need to be externally commissioned. What is proposed is to demonstrate that access needs have been considered and reasonable steps have been taken to make one’s practice accessible. We will make extensive guidance and support available to the profession.

We have been attempting to analyse the BSB’s budgets over time. We have found this information challenging due to differences in presentation across each BSB budget proposal 2024/5 – £17,698,000 total, £9,792,000 staff costs and £7,033,000 non-staff costs.

No, the Business Plan lists total costs of £17,805k of which £8,477k are BSB direct staff costs and £3,412k are BSB direct non-staff costs and £5,916k is our contribution to shared services (so that £5,916k is a combination of staff and non-staff costs).

BSB budget 2023/4 – £14,700,000 £9.3 million direct plus £5,400,000 common services.

Not precisely, Business Plan lists total costs of £14,732k of which £7,114k are BSB direct staff costs and £2,224k are BSB direct non-staff costs (so total BSB direct costs of £9,338k) and £5,394k is our contribution to shared services.

BSB budget 2019/20 – Total £9,029,000. Direct budget is £5,614,000 of which staff costs £4,403,000 and non-staff costs £1,211,000. General resources £3,414,000.

£9,028k to be precise and otherwise correct.

BSB budget 2017/18 – Total £8,271,000. Direct budget is £5,211,000. Staff costs £4,344,086. Other costs £866,914.

BSB direct budget is correct. The 2017-18 Business Plan doesn’t specify the precise costs for our contribution to shared services. The 2017-18 Business Plan only specified BSB direct costs.

BSB budget 2014/15 – Total £8,635,000 – direct budget is £5,287,000 and common budget £3,347,000.

Correct

(i) Please confirm if our understanding as regards the budget for the years listed above is correct.

Please see above.

(ii) How much is spent at present by the BSB on data collection and EDI regulation by the BSB, and how much is proposed to be spent should the BSB’s proposed changes be implemented?

We do not allocate budgets in that way.

(iii) Are there any estimates of the costs to the BSB itself of increased regulation, data collection, and if so, will they be disclosed prior to the end date for responses to the consultation

We will look at how this is resourced as part of future planning cycles, once the outcome of the consultation is clear, the rules have changed, guidance has been produced and there has been a bedding-in period. However, this is likely to be a priority area of Supervision and enforcement, and it will be managed from within the current team, using our current approach to conducting thematic reviews.

Mindful of the likely number of responses to your consultation, we have limited our questions to those matters which we believe you ought to be able to answer in a reasonable period and without difficulty.

In order to give us (and others) the opportunity to consider your responses before the consultation deadline of 29 November, please could you:

Respond within 14 days (ie by 18th October) acknowledging our request and agreeing to provide the information we ask for to the best of your ability to do so (or, if you feel you should withhold any of it, explaining why); and
Provide your substantive responses within a further 21 days (i.e. 8th November 2024).If any of this information proves difficult to locate or compile, we would appreciate as full a response as you are able to provide.

We intend to publish this letter on the Legal Feminist blog, and will be happy also to publish any response and accompanying material if you are willing to consent to this.

We look forward to hearing from you.

FWS v Scottish Ministers: what to read before the hearing

The hearing next week before the Supreme Court of For Women Scotland v Scottish Ministers is a big deal.

Previous cases in the appellate courts have had serious implications for the impact of gender reassignment on women’s rights. Three in particular spring to mind: Croft v Royal Mail Group (2003), in which the Court of Appeal speculates inconclusively about what degree of surgical or medical “transition” ought to be required before a man should be allowed to use women’s facilities in the workplace; Goodwin v UK (2002), in which the European Court of Human Rights laid the foundations for the Gender Recognition Act 2004; and Chief Constable of West Yorkshire Police v A (2005), in which members of the House of Lords came up with the eye-popping notion of a transsexual who was “visually and for all practical purposes indistinguishable” from a member of the opposite sex, and opined that it would be unreasonable for detainees to be unwilling to be searched by “a trans person of the same sex” (ie a person of the opposite sex).

All three cases have something striking in common: there was no-one in court whose job was to represent the interests of women, and women’s rights were in each case casually swept aside. This appears with particular starkness at ¶91 of the judgment of the ECtHR in Goodwin:

No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

The alert reader will notice who in particular is meant here by the “society” that is expected to tolerate a certain inconvenience: women. The reader both alert and well-informed will understand by now that “inconvenience” has turned out to stand for things like being gaslit, tricked, shamed or coerced into sharing communal showers or changing rooms with any man who says he is a woman; being required to submit to a strip-search conducted by such a man; being tricked into submitting to intimate medical procedures at the hands of such men; or being imprisoned with male sex offenders.

Against this background, FWS v Scottish Ministers makes a refreshing change. The appeal is brought by a feminist organisation with the express purpose of defending women’s rights. For the first time, an appellate court considering these issues will be required to treat women as human beings with agency and rights of their own, and will be asked to give women’s rights and interests their full weight. It’s going to be a novel experience.

The written arguments of the parties and the intervenors have now all (with the exception of Amnesty UK’s intervention) been published. The arguments themselves make for pretty dry and technical reading, but we also have the benefit of analysis from various commentators. The purpose of this post is not to add to that, but to collect together a list of links for anyone interested in the issues. I’ll try to keep this page updated with any further commentary that becomes available (or comes to my attention) between now and the end of the hearing — so if there’s anything I’ve missed, please let me know in comments.

First, the written arguments of the parties and intervenors can be found here: UK Supreme Court – For Women Scotland. They are also published with a collection of further links by Tribunal Tweets, who will be live-tweeting the hearing: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) – UK Supreme Court

Academics and practitioners

Dr Claire Methven O’Brien

The Equality Act 2010 and support services for rape survivors: Does the UK comply with its international human rights obligations?

Dr Michael Foran

UK Supreme Court to decide “What is a woman?”: A detailed look at the arguments

What is a woman? The Scottish Government’s case

Can the meaning of “sex” in the Equality Act vary depending on context?

On Defining Sex in Law by Michael P. Foran

Naomi Cunningham

Sex, peanuts and statutory interpretation –

Discrimination law and the experimental method –

Scott Wortley

Michael's piece is outstanding (as are the written submissions from Ben Cooper and David Welsh for Sex Matters). The interpretation arguments based on deeming provisions (which create legal fictions), the narrow effect of deeming provisions, purposive interpretation,
— Scott Wortley (@scottwortley.bsky.social) 2024-11-19T20:51:03.317Z

Organisations

Murray Blackburn Mackenzie

For Women Scotland vs the Scottish Ministers: making the arguments transparent – Murray Blackburn Mackenzie

Briefing note: For Women Scotland vs the Scottish Ministers, UK Supreme Court, 26-27 November 2024 – Murray Blackburn Mackenzie

Sex Matters

Sex Matters’ intervention to the Supreme Court

What about the other side?

We have appealed on Twitter for analysis arguing that the Scottish Government should win. We haven’t heard of much, but there are these links:

FWS Supreme Court case. 1. The “problem” FWS and others have with the current law is that it makes discrimination against trans people too hard. Preventing discrimination was the point of the legislation. In theory, therefore, this should be a very short case in which they are told where to go.
— A Mere Solicitor (@ameresolicitor.bsky.social) 2024-11-22T18:33:35.561Z

Courage, mes braves!There is, amongst trans people and allies, a certain amount of understandable nervousness about the U.K. Supreme Court hearing next week in the ‘For Women Scotland’ case.I don’t share that nervousness.
— Robin Moira White (@robinmoirawhite.bsky.social) 2024-11-22T18:04:27.483Z

https://bsky.app/profile/concerned-person.bsky.social/post/3lbkkq7mbf22g

Defining ‘sex’ in the Equality Act

Sex and deception

I wrote last week about why it’s necessary to keep all men out of spaces that are supposed to be for women only. I ended, on the subject of women traumatised by male violence:

Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say “You can have single-sex spaces, mostly. Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.”

Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.

I had put a hypothetical scenario of this kind when I was cross-examining a member of Edinburgh Rape Crisis Centre’s board in Adams v ERCC last January. The witness agreed agreed that this was perfectly plausible:

A Muslim woman who does not have mother tongue English, who is a rape survivor, makes an appointment to see a support worker and she is assigned to Mridul. She is told all the support workers are women and she may presently find herself alone in a room talking about her sexual trauma to Mridul Wadhwa.

The witness gave clear, definite evidence that although she believed that it was Wadhwa’s practice to disclose at the first interview with a service user that he was a “trans woman”, so far as the ERCC board was concerned, he had no obligation to do so. It was perfectly legitimate for him to counsel a rape victim over a number of sessions without disclosing his true sex.

The point of my question was to demonstrate to the tribunal that the version of gender identity theory to which ERCC was signed up was so extreme that its witnesses would see nothing wrong with this situation if it should arise. The witness obliged.

At the time that I put that question, I had no reason to believe that anything like this had ever actually happened in a rape crisis centre in the UK. Shockingly, I know better now.

Since the hearing in Adams, I have had disclosed to me the testimony of a woman who sought counselling at a rape crisis centre. She was given one to one counselling with a counsellor who presented as female and referred to himself as a woman. The service-user continued to believe that her counsellor was a woman throughout all her counselling sessions until the last. In the last few minutes of the final session, the counsellor referred to himself as a “trans woman”. The service-user understood only then that she had over a series of sessions over several weeks been meeting a man, one to one in a private room, and confiding in him about her sexual trauma.

I am not a journalist, and I cannot independently verify this story. But I find it wholly credible, particularly in light of the evidence that was given in Adams, and I have no reason to doubt that it is true.

Sex, peanuts and statutory interpretation

There’s an aspect of the FWS case (For Women Scotland v Scottish Ministers) due to be heard later this month in the Supreme Court that is so childishly simple that one worries that the cleverest judges in the land may be too clever for it. This isn’t about the legal arguments that the Court will have to grapple with. It won’t win the case: dry, technical arguments about statutory interpretation are what will determine the outcome. But statutory interpretation should be done on a foundation of reality and logic.

The point is this. Single-sex spaces for women can’t have men in them, because if they do, they’re not single-sex.

I told you it was simple. It’s like the “no peanuts” rule for a peanut-free dish. If you label a dish “peanut free”, you have to leave the peanuts out. All of them. The fact that lots of people like peanuts is no answer. Peanut-free dishes aren’t about those people: they’re about the people who may go into anaphylactic shock and die if they eat a peanut. It doesn’t matter if the peanut has been mashed to a paste, moulded into the shape of a walnut and scented with walnut oil, so that no-one looking at it, smelling it or eating it would dream that it might be a peanut. It doesn’t matter if it’s got a special certificate that says that for legal purposes it’s a walnut. It still needs to be left out of the peanut-free dish, or the peanut-free dish ain’t peanut-free.

I have reason for my worry. It may be a simple point, but it’s one that the House of Lords managed to miss in Chief Constable of West Yorkshire Police v A [2005] 1 AC 51. This is a pre-GRA case, so of tangential relevance at best to what the Supreme Court has to decide later this month, but it’s a troubling precedent all the same. Lord Bingham said:

In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a postoperative 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 is essentially the “case by case” approach to deciding whether or not a particular man should be permitted to use women’s facilities. It still has proponents. “Oh, but surely this particular man — this man who has wished with all his heart that he was female since early childhood, who has “lived as” a woman for decades now, who has had all the hormonal, surgical and cosmetic treatment money can buy to look as much like a woman as possible — surely no-one would be so heartless as to exclude him?”

This is coming at the problem from the wrong angle. It’s not about the man who wants to be treated as a woman or his wants or needs: it’s about the truthfulness and trustworthiness of the sign on the door that says “women only”. Because the female users of that space need to be able to be sure that there will be no men there: not even men who look very like women. Especially not men who look very like women.

Think about that for a moment, this idea of a man who is “visually and for all practical purposes indistinguishable” from a woman. Lots of women have suffered male violence, and some of those are permanently traumatised to the point that if they are surprised by a man in a supposedly female-only space, they will be retraumatised. These women may need domestic violence shelters and rape crisis services at certain times, but they don’t engage with the world solely as rape or domestic violence survivors. They have ordinary lives, too. They use public toilets, hospitals, gyms; they visit pubs, galleries, cafés, museums, theatres. They don’t wear a special badge or uniform so that we can identify them and make sure we cater for their needs. We don’t know who they are.

Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say “You can have single-sex spaces, mostly. Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.”

Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.

10 easy steps to the perfect authorities bundle

Getting everyone’s markings onto one copy of the authorities bundle can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo. Here’s how to do it smoothly.

Getting an authorities bundle agreed and finalised for the Court of Appeal can be a stressy pain.

Agreeing a list of authorities and compiling PDF and hard copies of the bundle isn’t too bad. A lot of the guidance in 10 easy steps to creating the perfect hearing bundle is relevant to the practicalities of things like shuffling the authorities into date order, producing an index and making sure the pagination and page labels line up. The bit that can be tiresome is getting everyone’s sidelining marking the passages on which they rely onto the same PDF copy of the bundle before it is printed and delivered to the court.

One way (perhaps the usual way) of doing this is to send the PDF authorities bundle round all the different parties in turn, for each of them to add their sidelining one by one. If the bundle is in several volumes, it’s likely to be quicker if the different volumes take different routes round the parties — so that, say, A can be marking up volume 1 while B is marking up volume 2 and C is marking up volume 3. And then everyone swaps round, and hopefully you end up with everyone’s markings on each volume.

I suppose in theory it could all go like clockwork. But if someone is slow, or the PDFs circulate for some reason in an unexpected order, or someone doesn’t read the instructions carefully enough and annotates the wrong volume at the wrong moment, it can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo.

If this description brings you out in a clammy sweat of remembered stress, I am your bundle fairy, and I am here to make your life better next time.

Start with a folder, in OneDrive or some other location you can easily share with the other parties. Call it “joint authorities bundle” or something of the kind. Save in it court-ready PDFs of all the authorities you rely on, each one named with its full citation, prefixed with its year (or year and month, if you have a cluster of authorities from a single year), eg “2015 BBC v Roden [2015] ICR 985.pdf”. (Prefixing the names with the year and including the full citation is to force sorting in date order, and to make it easy to extract a draft index from the file list: see further 10 easy steps.)
Add sidelining to the PDFs to mark the passages you rely on as you go along.
Share your folder with the other parties. Ask them to add any authorities they rely on that aren’t already on your list, named in the same way, and sidelined for the passages they rely on.
Read the guidance at paragraph 29 of Practice Direction 52C.
Bin most of your authorities.
Once your collection is complete (and pruned as necessary) merge the reports, ready-sidelined, into a single PDF and add an index page.
Sort out page labels and pagination, and hyperlink the index to the first page of each report. Again, you can adapt the instructions from 10 easy steps for this: the principle’s the same. The individual authorities are now clutter, so move them out of your shared folder (though probably not to the bin, just in case of mishap).
Check whether you want to sideline any passages from the authorities contributed by the other parties, and do so if you want to.
Invite the other parties to do the same with yours, and each other’s. Unfortunately (anyway in OneDrive – I haven’t tried alternatives) you can’t actually all do this at the same time without using snazzy collaboration tools, but if everyone’s marked up their own authorities before putting them in the shared folder, there probably won’t be very much more to do at this stage. If it’s at all complicated, I’d suggest sharing a schedule of time slots, asking everyone to mark the window within which they plan to do any further sidelining, and then stick to those times.
Once everyone’s added any further sidelining, you’re done.

Recording the sex of rapists: what does the law require?

Guest blogger Dr Claire Methven O’Brien explains how Police Scotland are mis-recording the sex of offenders.

Claire Methven O’Brien

How should public bodies, and particularly the police, record the sex of individuals charged or convicted of rape?

This once uncontroversial question is now attracting scrutiny at Holyrood, by oversight bodies and in the media. This has revealed that across the Scottish justice system, policy provides for the production of official data based on individuals’ self-identified gender rather than their biological sex. Although defended as necessary to align with human rights and equality concerns, this approach in fact contradicts international human rights requirements.

Recording sex and gender: approach of Scottish justice actors

A 2021 petition lodged with Holyrood’s Citizen Participation and Public Petitions Committee exhorted ‘Police Scotland, the Crown Office and the Scottish Court Service to accurately record the sex of people charged or convicted of rape or attempted rape’ (PE 1876). As defined in Scotland (Sexual Offences (Scotland) Act 2009, section 1), rape may be perpetrated by a biological man or biological woman, victims may be biologically male or female, and women may also be liable on an ‘art and part’ basis.

Accurately tracking incidence and trends in sexual crime, including with reference to specific individual characteristics, requires the collection of data on both sex and gender. However, in its evidence to the Petitions Committee, Police Scotland disclosed that on all systems such as crime management and custody databases, it uses sex and gender interchangeably – not just for rape, but for all offences, whether or not of a sexual nature. Further, the force does not ‘routinely ask the gender or sex of people with whom they interact’ but bases the sex/gender identification of individuals on how they self-declare, or ‘…on how the person presents to officers at the time of engagement’, unless doing otherwise is ‘evidentially critical’. ‘No evidence or certification as proof of biological sex or gender identity’ is required unless this is ‘pertinent’ to an investigation.

According to Police Scotland, this approach reflects ‘legislative compliance, operational need and the values of respect, integrity, fairness and human rights’ while also ‘promoting a strong sense of belonging’.

The Scottish Courts and Tribunals Service, and the Crown Office and Procurator Fiscal Service mirror Police Scotland’s approach. This appears consistent with Scottish Government Guidance for public bodies on collecting sex and gender data for operational, statistical and research purposes, published in 2021. Policy and decision-making on ‘operational data collection decisions’, under the Guidance, is deferred to individual public authorities. Only in rare cases, the Guidance provides, will it ‘be necessary and proportionate’ for such bodies to depart from self-identified gender ‘to require a person to answer a question on their biological sex’. Though the investigation of serious sexual offences is in this regard cited as an example, on the other hand, the Guidance warns, gathering data on sex may otherwise ‘be an unjustifiable breach of privacy’.

Sex-disaggregated data and violence against women: international standards

Are justice system actors entitled to take this approach when recording crime? At least in relation to crimes against women, it would appear not.

The UK is a party to various treaties that prohibit violence against women, including rape and sexual assault. These include the United Nations’ women’s rights convention (CEDAW, Arts 1-3, 5(a)) and the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). The United Kingdom ratified the latter in 2022.

As part of a package of preventive measures, Article 11 of the Istanbul Convention requires states to collect data on all forms of violence against women. Although, according to the Convention’s accompanying Explanatory Report, the drafters ‘left the choice of data categories used’ to states parties, ‘as a minimum requirement, recorded data on victim and perpetrator should be disaggregated by sex, age, type of violence as well as the relationship of the perpetrator to the victim, geographical location and any other factors deemed relevant by the state in question’ (para.76).

Highlighting that ‘The usefulness and relevance’ of data on violence against women ‘depend above all’ on their quality‘, the Explanatory Report adds, ‘public authorities such as the judiciary, the police and social welfare services will need to set-up data systems …that go beyond the internal recording of the needs of the agency’ (para. 76). While the privacy of both victims and perpetrators should be safeguarded, it is clear that no privacy-based obstacle to collecting sex-disaggregated data is foreseen (para.80; see also Art. 65 Istanbul Convention).

Additional guidance provided by the Council of Europe identifies sex-disaggregation of data collected by law enforcement as ‘compulsory’ (p.36). Likewise, European Union-level recommendations on rape statistics in particular direct states to ‘include specific breakdowns essential for identifying rape, including data on the sex and age of the victim and perpetrator and the victim–perpetrator relationship as a minimum’.

Under the UN women’s convention, states have been recommended, ‘To develop judiciary databases on complaints, investigations, prosecutions, and protection orders related to [gender-based violence against women] disaggregated by age, sex, disability, crime, punishment, redress and relationship between the perpetrator and the victim.’ The UN Statistical Division (UN Guidelines for Producing Statistics on Violence against Women— Statistical Surveys, pp.26-27) also presumes the collection of data on perpetrators and victims by sex.

Conclusion

Police Scotland has adopted admirable commitments and policies on violence against women. How the force’s current position on data collection was arrived at, given this, is perplexing.

In any event, it is incorrect that legal compliance and ‘human rights’ demand gender self-identification in the generation of official data on rape and forms of violence against women, to the exclusion of data on sex. On the contrary, they preclude it.

Claire Methven O’Brien is Reader in Law in the School of Law, University of Dundee and a member of the Scottish Human Rights Commission. This article is written in a personal capacity. It is not intended and should not be understood, quoted or cited as representing the views of the Scottish Human Rights Commission or any other organisation.

Further references

S Walby, Ensuring data collection and research on violence against women and domestic violence: Article 11 of the Istanbul Convention (COE, 2016)

Bailey v Stonewall

The decision is out in Allison Bailey’s appeal against the decision of the Employment Tribunal that Stonewall did not contravene s.111 Equality Act 2010. The Employment Appeal Tribunal has upheld the decision.

The ET is the first instance tribunal. The EAT is the appellate tribunal which heard the appeal from the ET. Any onward appeal must go to the Court of Appeal – and can only be heard if permission is granted and if it satisfies the “second appeal test” of establishing an important principle or there is some other good reason for it to be heard.

Allison Bailey was a barrister at Garden Court Chambers. A seasoned campaigner for lesbian and gay rights, she found herself in profound disagreement with the proposition then being advanced by Stonewall that some men were ‘truly’ lesbians, including those who had no intention of making a physical transition, if they said that they were.

Both Ms Bailey and Stonewall made known their own views on this topic on Twitter. As a result of Ms Bailey’s tweets, Stonewall’s then Head of Trans Inclusion Kirrin Medcalf sent a complaint to Garden Court Chambers saying that “for Garden Court Chambers to continue associating with [Ms Bailey] puts us in a difficult position with yourselves” and that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people.”

The detriments to which Garden Court Chambers then subjected Ms Bailey on the basis of her protected belief are set out in the ET decision and were found proved by the ET, which found that Garden Court had unlawfully discriminated against her, including by upholding Medcalf’s complaint against her. However, the ET did not find that Stonewall, through Kirrin Medcalf, had “induced” or “caused” that discrimination.

She appealed to the EAT.

Section 111 Equality Act 2010 prohibits anyone from instructing, causing or inducing another to discrimination against another:

111 Instructing, causing or inducing contraventions
(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention).

(2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.

(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

(4) For the purposes of subsection (3), inducement may be direct or indirect.

…

The EAT had to consider what these meant, which is not something previously attempted by a court. Bourne J held that

In section 111(1), “It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction.” [101]
the word “induce” in section 111(3) “is broadly synonymous with “persuade”. In one case it could consist of pure verbal persuasion, and in another it could involve an element of carrot or stick.” [105] He also held that “it is in the nature of an inducement that the inducer intends the inducee to do what they are being induced to do.” [106] and so “inducing” in s.111(3) must be intentional.

In other words, both instruction and inducement are intentional by their very nature.

That left s.111(2) and “cause.” To this the judge applied a two-stage test: first, was the discrimination ‘caused’ by the defendant, applying a “but for” test – would it have happened but for the actions of the defendant? Then secondly, is it “fair, just and reasonable” to hold them liable?

This came from a House of Lords authority, Kuwait Airways Corp v Iraqi Airways Co & Anor [2002] UKHL 19. This is a case which has provided significant authority in respect of the tort of conversion, litigation privilege and the iniquity exception, but it seems that this is the first time it has been cited in respect of discrimination. It has been cited in another EAT case, also decided by Bourne J, but in respect of litigation privilege rather than discrimination.

The EAT held in this case that “by analogy with the approach to loss in Kuwait Airways, a claimant must show first that person A’s conduct causally contributed to person B’s commission of the prohibited act on a “but for” basis and, second, that the causal connection is such that person A ought to be held liable. Borrowing Lord Nicholls’ phrase, those last words mean that, having regard to the statutory context and to all the facts of each case, making person A liable would be “fair or reasonable or just”, those adjectives being interchangeable.”

It went on to hold that “For that reason, although Kirrin Medcalf’s complaint was the “occasion” for it happening (and so could be regarded as causing it in a “but for” sense), and although there was a nexus between Ms Bailey’s views and the making of the complaint, it would not be reasonable to hold Stonewall liable for that discriminatory outcome.” The blame, ruled the EAT, was squarely with Garden Court Chambers for choosing to respond to the complaint in a discriminatory way.

The application of a two-stage test to s.111(2) is an interesting one. It is very unclear as to whether this was actually argued by either party. It also seems at first blush that it may impose a more strenuous threshold than that set out in the plain words of the statute. However, it does undeniably bring the intention / effect into alignment with s.111(1) and s.111(3) and to that extent is an elegant solution.

This is the first time that the courts have grappled with the definitions of s.111 and as an EAT judgment, this is binding until and unless overturned on appeal, or overruled by a higher court.

Finally, a note which may sound into future cases. Paragraph 101 of the judgment provides that

“section 111(1) requires that person A must not “instruct” person B to do in relation to person C anything which contravenes the relevant provisions. I agree with Mr Cooper that the question of person A’s mental state is subsumed into the nature of the prohibited act. It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction. So if, for example, the statutory tort is direct discrimination, then person A must instruct person B not merely to treat person C less favourably than he treats or would treat others, but must instruct person C to do so because of a protected characteristic. If, on the other hand, the statutory tort is indirect discrimination, then person A must simply instruct person B to apply a PCP which contravenes section 19. Since person B can be liable without knowing or intending that the PCP has that effect, so can person A.”

Put simply, the only intention of the person instructing need be that the person instructed carry out the instruction. If one body instructs another to implement policies that are indirectly discriminatory, the instructing body may be held liable.

This is likely not the last we have seen of s.111.

What Does The Following Tell Us?

1. The Angiolini Report on how Wayne Couzens became – and remained – a police officer, despite numerous reports of criminal behaviour & other red flags, has been published – https://iipcv-prod.s3.eu-west-2.amazonaws.com/E02740018_Angiolini-Inquiry.pdf

There is much of interest in its 316 pages, not least the following: Couzens had a long history of sexual offending, “a predilection for extreme pornography and a vile sexualised expression of his sense of humour”. Despite this and many opportunities to investigate him, no action was taken and the Metropolitan Police admitted in 2022 that faced with a similar candidate they would have made the same hiring decision.

The Foreword states: “…wider debates have raged about public trust and confidence in the police and women’s safety in public places. Neither of these problems have been resolved. In fact, public trust and confidence in policing has deteriorated further. It also remains the case that women in public spaces are at risk from those men who choose to predate upon them.” (emphasis added)

The Report hopes that those in authority in all police forces (not just the Met) will read the Report.

2. The issues around the hiring and vetting of police officers do not just relate to exceptionally awful cases such as David Carrick and Wayne Couzens. See, for instance, Jeff Mitchell: a police officer convicted of kidnap, 10 counts of rape and 3 counts of rape of a child under 13 – https://www.hamhigh.co.uk/news/24134622.met-police-officer-convicted-kidnap-rape-rape-child/. Like Couzens there was an earlier opportunity to catch him, which was missed. These are not isolated rare cases. Nor are they limited to the Met.

3. The Angiolini Report comes 11 months after the Casey Report into the Met, also commissioned after the Everard murder. It found that the Met had failed and was failing women, among many other serious criticisms. One will suffice: “The Met’s VAWG strategy rings hollow since its claim to be prioritising ‘serious violence’ has really not included the crimes that most affect women and girls. In practice, this has meant it has not been taken as seriously in terms of resourcing and prioritisation.”

4. Earlier last month there was the HMIC Report on the Met’s handling of child sexual exploitation, described as ineffective and leaving children – overwhelmingly girls – vulnerable to sexual exploitation. This was not the first such report. In 2016 there had been a report on the same topic, described as “the most severely critical that HMIC has published about any force, on any subject, ever.” Despite that, in 2023 Casey described its handling of such cases as having “major inadequacies”. The position has not improved a year later. https://hmicfrs.justiceinspectorates.gov.uk/news/news-feed/metropolitan-police-leaving-vulnerable-children-at-risk-of-exploitation/.

5. Yesterday in Parliament the debate for International Women’s Day was brought forward because of next week’s Budget. Jess Phillips MP read out the names of the 98 women murdered in the UK by a man in 2023. Their names are collected by the Femicide Census: on average since the end of 2009, 140 women have been killed by men every year. That’s an average of two women dead at the hands of a man, every 5 days. Most occur in a domestic setting.

So it’s not just “public spaces” then.

6. Staffordshire Police have done some “hate crime” training in which they were told that “Women who take measures to protect themselves against unfamiliar men are subject to flawed unconscious bias and, therefore, similar to racists.”

Memo to Staffs Police: please read the Angiolini Report. Teaching the police this puts women and girls at risk and puts the police on the side of those who “choose to predate on them.”

7. The Angiolini Report makes a number of recommendations, some of them relating to how non-contact sexual offences, such as indecent exposure, should be taken seriously by the police and the criminal justice system. It says that: “Ministers should launch a public campaign to raise awareness about the criminality of any type of indecent exposure.”

8. Diana Johnson MP raised in Parliament yesterday the case of her constituent, Libby Squire, murdered by a man with a history of such offending. She was interviewed by the Today programme last March (after Couzens was convicted on three counts of indecent exposure), as was Wera Hobhouse MP, who had successfully piloted through Parliament a Bill banning upskirting. 3 women who had been the victims of indecent exposure were also interviewed. (1)

The three women all said their priority was to get away to somewhere safe. This is not an option available to women in prisons housing male prisoners claiming a female gender, something the Scottish Prison Service might like to consider as it implements a policy which allows men identifying as women to be housed in female only jails in certain circumstances. Will it take the Angiolini Report into account in making its decisions?

9. In that interview Diana Johnson said “the male body can be used to intimidate, as an act of violence against women and girls”. Wera Hobhouse wanted a complete culture change: “The traumatising effect that any of these offences have on women has been completely underestimated…. It’s a proper offence. It leads to ultimately the feeling in women that they’re very vulnerable, that they’re not being listened to,… that what they feel is a proper attack on them, their freedom, their liberty, their way of life is not seen as such.”

Dare one hope that there might be some joined up thinking – not just by Ministers or the police or MPs but by all organisations – about the consequences of policies or actions enabling men to have access to women’s spaces?

10. Abuse of women MPs has become worse and is driving women away from Parliament. https://www.thetimes.co.uk/article/misogyny-in-westminster-is-driving-women-out-of-politics-mps-warn-q0wf9b96q

“The irony is that the more women you get, the more it triggers some men who whilst they can blot out of their ears a couple of women, somehow it feels like an assault on them to actually have to listen to a number of women in authority talking confidently, and they then do a backlash. So really it’s part of fighting back against the backlash that comes when you make progress …”

Not just In Westminster.

11. Last month we also learnt why it had taken the Scottish authorities so long to arrest Iain Packer, the murderer of Emma Caldwell. They had ignored numerous reports made by other women who had been subjected to attacks by him.

It’s not just women MPs who are not listened to.

12. Thames Valley Police say that the law requires them to record the crimes committed by Scarlet Blake, a man who claims to have a female gender but who does not have a GRC – the murder of a man and the killing and dissection of a cat – as crimes committed by a woman. Scarlet Blake has been detained in a man’s prison. The Thames Valley Police Commissioner has cited Annex L to Code C of the Police and Criminal Evidence Act 1984 as requiring this. But this Annex is headed “Establishing gender of persons for the purpose of searching and certain other procedures”. It does not require what the police say it requires. In law Scarlet Blake is a man. See here for a helpful analysis of the effect of incorrect recording of the offenders’ sex on crime statistics.

13. In the by-election in Rochdale (a town usually in the news either for grooming gangs or because of the personal misconduct of its MPs), the winner is George Galloway, a man who said that you don’t need consent for every “insertion” (his words) – https://www.bbc.co.uk/news/uk-politics-19323783 – because a lack of consent is merely bad sexual etiquette not rape. This was criticised by the Charity Rape Crisis: “Sex without consent is rape. Mr Galloway’s description of such sexual violence as ‘really bad manners’ is offensive and deeply concerning.

Perhaps these are just coincidences. Or one of those “moral panics” or “culture wars” used to dismiss those – usually women – raising such concerns. Or maybe Occam’s razor applies: women and girls don’t matter.

(1) A detailed analysis of that interview can be found here.