Friday Round Up

A busy week in feminist legal news!

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

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

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

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

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

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

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

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

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

Shamima Begum: the Court of Appeal decision

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

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

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

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

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

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

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

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

§94

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

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

§95

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

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

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

§113 – 114

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

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

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

§120

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

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

Operating Hours: Time Does Not Expand

Guest blog:
Georgia Luscombe in our series on extended hours

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

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

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

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

7 – 7.30am: Leave to travel to court.  

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

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

4.30pm: Finish in court. 

4.30 – 5pm: Another conference with client. 

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

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

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

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

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

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

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

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

Bow Street Night Courts Pilot – My Experience

There is Nothing New Under the Sun…..

I took part in the Night Courts Street Pilot when I was a Second Sixth Pupil, in the summer of 2002. I was, at the time, not someone who had any particular caring responsibilities or other difficulties. I was a 24 year old woman, with no children. For about 6 months, two Magistrates’ Courts were open on Friday and Saturday nights to deal with newly-arrested Defendants, which meant that they didn’t have to be held over to Saturday mornings or Mondays, respectively.

I went to the Bow Street pilot scheme, and I understand that Manchester also had a pilot court running.

It was a nightmare, both personally and professionally.

Those cases which were just a waste of time were the better ones. Some went wrong in ways that were significantly worse.

As a pupil, I was “on call” every other weekend and bank holiday. Other than during the pilot, that meant I could be (and almost always was) instructed to go to a Magistrates’ Court on a Saturday morning and do a “First Appearance”, which means applying for bail, taking basic instructions, receiving the initial prosecution papers, and fixing the next court hearing, usually for plea or committal (at the Mags) or first appearance at the Crown Court (if an indictable-only offence).

The pilot kicked off in July or August 2002. It meant that every other weekend, I was on-call for Bow Street Magistrates Night Court on Friday evening, A N Other Magistrates on Saturday morning, and back to Bow Street on Saturday evening. After a full week as a pupil, rushing around the country, and with a similarly-full week on the horizon, it was tiring and tough.

Several weekends I did indeed do the full monty, with 3 extra Magistrates’ hearings over the weekend.

Reasons Why Many of the Bow Street Hearings were a Waste of Time:

  1. The papers didn’t arrive when the Defendant did, because it was out-of-hours;
  2. The papers arrived and the Defendant didn’t (ditto);
  3. The Def was too drunk/high/ tired/other to be able to take part;

then there were the hearings where the Def was sober enough, present, and the papers were also there:

  1. The case needed the Youth Offending Team. “Sorry, not available, come back on Monday”;
  2. The case needed a new PNC printout. “Sorry, come back on Monday”;
  3. The case needed to hear from probation. “Monday”;
  4. The case needed a check with social services / similar. “Monday”;
  5. The case needed information on drugs / alcohol / community service / etc. “Monday”;
  6. A relevant file was in another court / police station / etc. “Monday”.

Worse Than a Waste

There were two cases of mine which went beyond “waste of everyone’s time, energy, and money” and were actually a nightmare. One involved an under-18, so there’s not much more I can say about it.

The other involved an adult Defendant, accused of three robberies. Standard steps went ahead with no more than usual Saturday night time wasting – I took instructions in the cells, filled in the legal aid forms, received the initial papers from the CPS, etc. I had arrived at Bow Street at 5.45pm for a 6pm start, the Defendant had been produced by 6.30pm, and the papers had arrived at the same time.

During the Court hearing which started about 8.30pm, the Defendant had some kind of fit. He ended up jumping the dock, sending files flying and Counsel (including me) diving to the side. The general alarm went off, the court was cleared, all hell broke loose.

The custody staff called the only doctor on duty, a standard police doctor. He arrived at 10pm, said, “he needs a psychiatrist, not a GP” and a psychiatrist was called for. There wasn’t one available. After much phoning around, one said he could arrive by 3am, which was going to be too late for the cells, as the court was closing at 2am.

The Defendant was extremely distressed. The custody staff (who were a really nice lot, at Bow Street) were very worried about him. And nobody, nothing relevant was available or on-call.

So as well as all the other difficulties about “flexible” court hours, in my experience, they just don’t work. Unless there is also massive investment in getting all the usual, necessary services on call (a girl can dream, right?)

Personal Difficulties

It was an unpleasant experience. I was over-stretched, lacking time off, and having to get home at late-o-clock (sometimes I’d finished by 9pm. At least 4 times it was after midnight by the time I was going home). No expenses, including travel expenses, are paid for Magistrates’ Court hearings, so I had the choice of walking home free, dressed in a suit and carrying a work bag, or getting a cab, which I couldn’t really afford.

I was lucky – I lived within extended walking distance of Bow Street at the time, and my then-boyfriend walked over to meet me and escort me home. And, on one occasion, to keep me company in the many hours I was at court after my own lay client had such a horrific episode, which was appalling for him (and scared the living daylights out of me).

If I’d had children, or other caring responsibilities, hadn’t lived within walking distance, hadn’t had a boyfriend who was willing and able to support me, what was then difficult would have become impossible.

Now, for example, I couldn’t do it. Then-boyfriend, now Dearly Beloved, couldn’t drop everything and come and meet me, because he’d be at home looking after our sons while I was working.

Extending Court-Hours: Is the Future Female?

For most of us, flexible working means improved work-life balance and the ability to combine caring responsibilities with work; responsibilities which, as much as we may wish otherwise, fall disproportionately on the female sex. For HMCTS, flexible working appears to mean something rather different.


Days ago HMCTS Chief Executive Susan Acland-Hood suggested that the Crown Courts’ backlog should be dealt with by extending court-operating hours. She dismissed solutions such as the reinstatement of previously cut sitting days to address a backlog which now sits at 41,599 outstanding cases. That backlog had already reached some 38,000 by the end of 2019. At that point HMCTS made no indication of an intention to pause the plan to further reduce sitting days and the size of the courts’ estate. It is fair to infer that HMCTS regard the pandemic as another opportunity to seek to introduce a scheme which has previously been met with overwhelming resistance from the legal profession. 

Acland-Hood’s only allusion to impact was barely detectable, and rather coyly expressed: “it takes people out of their accustomed ways of working, around which patterns and plans including things like childcare are built.” (our italics) In reality, it takes women, who bear primary caring responsibilities, out of their already overstretched “ways of working”. It makes no allowance for the fact that many female lawyers have to make plans of almost military efficiency to manage both professional and personal responsibilites. It is noteworthy that Acland-Hood did not acknowledge that the impact will be most acutely felt by the female side of the profession, and exponentially by those who bear sole caring responsibilities. 

Judicially-led working groups have, we are told, been set up to carefully consider what will work best in individual jurisdictions to ensure that changes implemented in a collaborative way. We are told that all key bodies representing legal professionals and others are involved in these groups and that detailed modelling has been shared.

The concept of extended or “flexible” operating hours is not a new one. HMCTS has been toying with the idea for at least 4 years, and the issue of the impact on female lawyers was raised at the earliest meetings with professional representatives. In April 2017, it published its Flexible Operating Hours Equality Statement; this was intended to be a live document and expressly stated that it would consider the sex-based equality impact of extended hours. It noted the concerns about the impact on work-life balance and diversity 

Perhaps surprisingly then, no account was taken of the impact flexible hours would have on maternity and pregnancy or on breastfeeding, an oversight which the HMCTS Judicial working groups could now reasonably be expected to correct. At the time of its writing the authors of the equality statement appeared to envisage monthly reviews and updates throughout the life of the flexible operating hours project. Possibly less surprisingly, neither reviews nor updates have materialised.

 
On 28 June 2019 the Evaluation Plan for Flexible Operating Hours’ Pilots was published; here sex-based “disbenefits” were identified and the potential for long term negative impact was recognised. It was also considered possible that flexible operating hours might lead to an unfair distribution of work such as Chambers allocating work to non-primary carers. In other words, working mothers may miss out on work; the female side of the profession would be disadvantaged.

It was also recognised that there could be a negative impact on professionals’ working lives which may have a longer term impact on recruitment and retention, as well as irreducible working practices such as managing preparation time and conferences out of court. Nonetheless, it was suggested that flexible hours might support a better work-life balance for those with caring responsibilities, particularly if combined with better listing practices. 

Discrimination practitioners will be alert to the obvious limitations of a hypothesis such as this, based upon an assumption that legal professionals with primary care responsibilities (statistically, predominantly female) have a partner with whom to share the load of childcare responsibilities. This assumption is one which puts single mothers in the profession at an acute disadvantage..

We pause at this point to note that listing practices have long been a source of disruption (professional and personal) and financial difficulty to practitioner. Legal professionals would be forgiven, we suggest, for viewing the promise that listing might take proper account of lawyers’ availability and commitments, particularly when those commitments are personal with some scepticism.  

The evaluation planned to interrogate how flexible hours would impact on caring arrangements and adjustments to workloads and responsibilities whilst also taking into account the cost of childcare to legal professionals. It was recognised that, in some instances, the types of impacts which flexible operating hours could have on the profession may take years to show up and that the pilots which were only to run for six months may not uncover. 

It is interesting to note that, despite the equality statement’s earlier clarity that those legal professionals most likely to be disadvantaged would be women, there is a marked disinclination throughout the evaluation to refer to this fact in unambiguous terms. Its language is oddly sexless; given the prominence of sex discrimination as a potential obstacle to the lawfulness of the scheme, the refusal to name it might be seen as a form of neuro-linguistic programming, one which is assiduously adopted by Acland-Hood in her blogpost. 

The flexible hearing pilots were concluded in May this year and we find it, yet again, surprising that no mention has been made of their evaluation. The Flexible Operating Hours report must be in train; the raw data having already been collected. In light of the justification now advanced for pursuing Flexible Operating Hours, it would be a startling oversight on the part of HMCTS to fail to update the Equality Statement to take account of the sexed impact of Covid 19. Research from the Fawcett Society and Maternity Action would be an excellent place to start.

Flexible Operating Hours could be workable, and even welcome, for those who are realistically able to reconfigure their childcare responsibilities and share the load with partners or family. But it must not work to disadvantage women who do not have such flexible personal circumstances. The retention of women in the legal profession is a matter of abiding concern. 

In terms of the rate at which the backlog of cases has grown, the public health crisis has made little significant difference. Covid-19 has not created a crisis in the justice system, although it has exposed the pre-existing crisis in those jurisdictions most heavily reliant on publicly-funded work. A ‘solution’ which was devised before the existence of the pandemic, and was designed primarily to cut costs, will do little or nothing to address the consequences of Covid-19 for the justice system, but will almost certainly exacerbate the consequences for the women upon whom it depends. 








“Cancel culture” – how should an organisation respond to a baying mob?

Image result for pitchfork mob

The scenario is now familiar: your organisation’s social media team is tagged into a Tweet that looks something like this –

Hey @yourorganisation, what do you think of your [employee / supplier’s] comments about [racism, feminism, social distancing, other wrongthink]?  Is @yourorganisation [racist, transphobic, NHS-hating] or will you [sack/cancel/condemn] your employee/supplier by the end of the day?

It is tempting for an organisation in this situation to hastily distance itself from the “offensive” statement and its maker (called the “Individual” in this article) in an attempt to call off the mob and protect the organisation’s brand.  Responses have ranged from terminating contracts[1], sacking Individuals[2] and explicitly or implicitly condemning Individuals[3].  But haste can lead to misjudgements, potentially resulting in an embarrassing climb-down or even legal action[4].  That makes choosing the right response to a “cancel call” important , particularly as the range of subjects which can trigger an outcry has expanded to include areas where nuanced disagreement is not only justified but also essential. To help organisations to keep their heads when all around them are losing theirs, we suggest a response protocol.  As ever, this article should not be considered legal advice – the needs of every organisation will vary.

  • Have a clear escalation policy.  It is too easy for a junior member of the weekend shift to be panicked into a crowd-pleasing response from which the organisation might have to embarrassingly row back.  The escalation policy should put a moratorium on any public statement being made by the organisation until staff with appropriate seniority (which may be the CEO or Chairwoman) have been consulted.
  • Remember that any public response must take account of legal responsibilities, for example under employment law or the Equality Act.  It must also avoid anything which is likely to be defamatory or any person or organisation. This is a very complicated area of law but as a starting point, if you write something which refers to a living individual and would tend to lower their reputation in the eyes of a reasonable reader, give strong consideration to alternative wording. However, the legal niceties of when something is and is not likely to be libellous (in the sense that it would give rise to a viable legal claim) are extremely complex and beyond the scope of this article. If you are in any doubt, it is worth seeking some professional advice before you respond. 
  • Put in place a draft holding statement like the one below.  This can be quickly adapted for publication once the escalation policy has been followed:
[Organisation] notes the allegations/complaints being made about [Name].  [Organisation] takes its values very seriously and these values include fair treatment of its [customers/employees/agents].  [Organisation] will look into the circumstances in more detail before taking any further action.  No further public statement will be made on this matter [until the circumstances have been investigated].
  • All team members should understand the need to refrain from further public engagement, even if customers, clients, advertisers, funders and industry bodies are tagged into the “debate”.  In rare cases it may be appropriate to make pre-emptive contact with key stakeholders to ask that they respect your position and not make any public comment on the matter.  If done at a senior level, most will understand the need to follow due process.
  • Make contact with the Individual, particularly if an employee, to tell them that no precipitate action will be taken and that any further investigation or process will allow them to be heard.  Depending on the circumstances, you might ask them to withdraw or edit their statement, at least pending further discussions.  However, we suggest you should avoid compelling or pressuring them to do so.
  • Ensure that any follow up investigation or action is conducted in accordance with internal policies and applicable law and regulation, such as the Employment Rights Act, the ACAS Code of Practice on Disciplinary and Grievance Procedures, and  the ACAS Guide: Discipline and Grievances at Work.  It is surprising how often organisations are panicked into ignoring their own policies, leaving an open goal for further action.
  • Line managers and department heads should be briefed on how to respond if employees complain, as when  a group of employees at Hachette UK objected to being asked to work on JK Rowling’s new children’s story, The Ickabog, because they disagreed with her views on transgender issues.  We suggest that the holding statement above can be adapted for this purpose. 
  • Any investigation or disciplinary process is likely to involve consideration of internal policies (particularly D&I and respectful working environment policies).  You should seek as far as possible to have tailored, rather than template, policies and ensure that they correctly reflect the law (for example in correctly reproducing the nine protected characteristics under the Equality Act). 
  • We also suggest that policies be drafted with an eye on the values of freedom of speech and diversity of thought and the potential for conflict of rights, such as employees’ rights to express and campaign for their political opinions.  An organisation’s policies and values should neither require Groupthink nor rule out the possibility of respectful disagreement.

Finally, social media pile-ons are unpleasant and often aggressive.  Remember if your agent, client or employee is being targeted, that this is an Individual with whom you chose to work.  Your response to a pile-on should always keep in mind the possibility that the mob may be mistaken.

[1] See the case of Maya Forstater v CGD Europe and others: 2200909/2019

[2] Gillian Phillip, a bestselling children’s author, was  sacked from the team writing under the “Erin Hunter” name after expressing support for fellow writer J. K. Rowling

[3] Actor, Laurence Fox was called a “disgrace” by Equity after expressing views about racism (or the absence thereof) in this country on Question Time .  Allison Bailey, an English barrister, was the subject of complaints after co-founding the LGB Alliance.  Without first discussing it with her, her chambers, Garden Court, tweeted that they were investigating Ms Bailey, implying that her behaviour warranted investigation .

[4] Forstater is in proceedings against her former employer, Fox won an apology from Equity, Bailey raised over £60,000 in under 24 hours to fund a claim against Garden Court and Stonewall

Why is Kasabian singer Tom Meighan not in prison?

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

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

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

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

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

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

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

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

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

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

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

Sex, gender and fair competition in sport

When is it lawful to exclude trans women from women’s sport?  And will it ever be unlawful – or legally risky – not to? I argue that the answers are “usually,” and “yes,” respectively.

Most competitive sports are segregated by sex: as a rule, there will be a women’s event, and a men’s event. Sportswomen and men have to compete in the event specific to their sex, and will generally be refused admission to the opposite sex’s team or event. 

Not being allowed to take part in something you want to take part in because of your sex is sex discrimination, which the Equality Act 2010 prohibits in various contexts – including many of the contexts in which people do amateur or professional sport. So how come it’s lawful to have separate men’s and women’s events at all? 

The answer is in Part 14 of the Act, the Part headed “General Exceptions.” Section 195 is headed “Sport.” 

The main work of section 195 is done by its first two subsections, supported by a definition at s.195(3).  I’ll take the definition first. 

The definition: “gender-affected activity” 

Section 195(3) defines the expression “gender-affected activity.”  If 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, it’s a gender-affected activity.  

That will easy to apply in the vast majority of cases. The physical strength, stamina or physique of the average woman will put her at a disadvantage compared to the average man in almost all sports where muscular strength, speed, body size, reach etc. are significant. No doubt there are some borderline cases, and the odd exception; and it may even be that in some extreme endurance events women start to pull ahead[1]. But in general, if men and women compete in the same sports, relatively ordinary men will outperform even elite women. That’s why we have segregated sports: if we didn’t, in most events women would scarcely get a look in.  

Deciding whether average persons of one sex have an advantage over average persons of the other doesn’t require us to tangle with controversy about who exactly should be included when we calculate the qualities of “average persons of one sex.” Even if you include trans women in the total population of women from which you draw your average, that may shift the average a bit,[2] but it won’t make the male advantage disappear. So the great majority of sports will be gender-affected activities, and self-evidently so. (See Dr Emma Hilton’s paper here https://www.preprints.org/manuscript/202005.0226/v1 if you’re not with me on “self-evidently.”) Exceptions will be sports where the differences between competitors are all about skill, built on a base level of athleticism that either sex can attain. Equestrian events are the obvious example; and sure enough, they tend not to be segregated by sex.

Subsection (1): sex discrimination 

Subsection (1) takes participation in any gender-affected sport right out of scope for all relevant prohibitions of discrimination on grounds of the  protected characteristic of sex. Nothing anyone does to anyone on grounds of sex in relation to their participation as a competitor will be unlawful sex discrimination, provided only the sport is a gender-affected activity.

Subsection (2): gender reassignment discrimination  

Subsection (2) provides a more qualified defence to gender reassignment discrimination where the sport is a “gender-affected activity” and the discrimination is necessary to fair competition or safety. 

So to decide whether it’s lawful to exclude a person with a male body from a women’s sporting event, you need to work out whether the circumstances fall under subsection (1) or (2). That means you need to know whether excluding them would be discrimination on grounds of sex, or discrimination on grounds of gender reassignment.

Which kind of discrimination is it? 

I’m going to discuss three imaginary individuals, Chris, Viv and Hilary, all of whom would like to compete in a women’s rugby match, and all of whom are turned away by the body organising the match because they have male bodies. Chris is a man, and doesn’t identify as anything else. Viv is a trans woman without a GRC. Hilary is a trans woman with a GRC. 

Chris is excluded from the match because he’s a man: it’s a straightforward case of direct sex discrimination, but rugby is a gender-affected activity, so s.195(1) makes it lawful to exclude him from the women’s match. 

Viv doesn’t have a GRC, so although she self-identifies as female, so far as the EqA is concerned she’s of the male sex. A person of the opposite sex would have been allowed to compete, so this too is direct sex discrimination, and lawful by virtue of s.195(1). No ifs or buts,[3] and no need for justification in the individual case. 

Hilary, although biologically male, is legally female, so a person of the opposite sex – a man – would have been excluded from the match just the same. So Hilary hasn’t suffered sex discrimination. But she has suffered gender reassignment discrimination, because a comparator of the same (legal) sex but not having the protected characteristic of gender reassignment – that is, a woman who was a woman by biology rather than by a process of legal deeming – wouldn’t have been excluded. So Hilary’s exclusion is lawful under s.195 only if it is necessary in order to secure fair competition or the safety of other competitors.[4]

Bearing in mind that rugby is a contact sport which even among physically well-matched opponents frequently causes injury, it seems likely that including Hilary – unless she has an unusual physique for someone who has been through male puberty – will increase the risks to her biologically female opponents. The same goes for fairness: Hilary’s male puberty will have given her an advantage that no certificate or legal status can erase. This is likely to be true in almost any case where a trans woman with a GRC wishes to compete with women in a gender-affected activity: even where safety isn’t engaged, the fact that the sport is a gender-affected activity will normally be sufficient to indicate that fairness will be undermined if a biological male is allowed to compete. 

So although conditions for the operation of the exemption look different under subsections (1) and (2), the reality is that it will normally be lawful to exclude trans women from women’s events (anyway so long as those events amount to the provision of services within section 29) whether or not they have a GRC. 

Will it ever be unlawful not to exclude trans women from women’s sport? 

Section 195 provides exceptions to general rules in various contexts prohibiting discrimination on grounds of sex and gender reassignment. On their face, they are merely permissive: they say you may discriminate, but they don’t say that you must. So some sporting bodies may take the view that they’d rather not be sued for discrimination, even if they might have a good defence under s.195, so they might as well err on the side of safety by welcoming all comers on the basis of self-identification. 

But it’s not as simple as that. I can foresee two distinct ways in which sporting clubs or bodies may lay themselves open to claims if they permit male-bodied people to compete in women’s events, and there may be others I haven’t thought of.[5] The most obvious one is negligence: in contact sports (and potentially others, like cycling, where there is a risk of accidental contact), permitting trans women to compete may make the contest not merely unfair, but also more dangerous than it ought to be. 

But in many cases even where safety isn’t engaged, there is the possibility of indirect discrimination to contend with. Indirect sex discrimination occurs where a “provision, criterion or practice” puts women at a particular disadvantage compared to men. Opening participation in sex-segregated sports to trans men and trans women (whether on the basis of self-identification, or limited to those with a GRC) will put women at a striking disadvantage compared to men: men in general have nothing to fear from trans men competing in their sports, but if trans women are allowed to compete in women’s sports, natal women are bound to lose out on team places, prize money, sponsorship, medals, and  – perhaps most importantly – participation.

An indirect discrimination claim on this basis isn’t straightforward, because of the extraordinarily broad terms in which section 195(1) is expressed: read literally, it abolishes the whole of sex discrimination law at a stroke in relation to participation in gender-affected activities. That is a result so peculiar that one feels there must be a way around it[6] – but that’s a puzzle for another day. 

[1] In truth, this caveat is only there as an excuse  for a footnote about Jasmin Paris’s outright triumph, beating all previous male and female records, in the 2019 268-mile Montane Spine Race along the Pennine Way while breast-feeding.

[2] In fact, it undoubtedly will.

[3] I am confident that this analysis is correct, but it is fair to note that the contrary view does appear to be implicit in Alex Sharpe’s article ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ (Sharpe (2020) 83 (3) MLR 539-557).

[4] There’s a weirdness in the drafting of s.195. Subsection (1) obliterates the whole of sex discrimination law so far as it relates to participation in gender-affected activities. Subsection (2), in contrast, just excludes four specific sections: s.29, which prohibits discrimination in relation to the provision of services; plus sections 33-35, which relate to the disposal and management of premises. The disparity of coverage isn’t mentioned in either the EHRC Code of Practice or the explanatory note to the Act, and I’m currently baffled by it: I find it difficult to to understand why, for example, the exemption shouldn’t extend to discrimination by associations or educational institutions. If anyone can explain that to me in a comment, I shall be grateful.

[5] Again – please comment if you can think of others.

[6] At the very least, in relation to professional sport, it can’t be compatible with the Equal Treatment Directive 2006/54/EC.

Conflict of Rights

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

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

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

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

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

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

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

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

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

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

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

In summary,

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

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

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

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

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

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

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