Tag: crime

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)

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.

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

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

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DEFINITIONS

Sex

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

Gender Identity

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

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

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

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

DECEPTION

Deception and Consent: The Current Position

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

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

(ii) impersonation of someone known to the complainant.

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

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

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

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

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

Gender Identity & Deception

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

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

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

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

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

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

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

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


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

(i) impact on the likelihood of charge;

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

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

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

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

RELEVANT CONSIDERATIONS UNDER THE ECHR

Article 3: Prohibition of Inhumane Treatment

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

Article 8: Respect for Private and Family Life 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UNLAWFULNESS

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

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

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

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

            THE SECTIONS

Gender Dysphoria

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

Evidential Considerations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] s.74 Sexual Offences Act 2003

[2] R v McNally [2013] EWCA Crim 1051

[3] S.6 Human Rights Act 1998

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

[5] S.11 and s.212 Equality Act 2010

[6] S.7 ibid

[7] [2022] I.C.R. 1 at §97

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

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

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

[11] Article 8(2) ECHR

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

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

[14] ZXC v Bloomberg [2022] UKSC 5

[15] In re S [2004] HL 47

[16] Article 9(2)(f) UK GDPR

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

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

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

[20] See §17ff above

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

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

Template Letter to AG re: Sam Pybus sentence

Many people have been saddened and horrified by the sentence handed down to Sam Pybus for the murder of Sophie Moss. He had pleaded guilty to manslaughter, but not to murder, using the so-called ‘rough sex defence’ that his violence towards her, in this case strangulation, had at the outset been consensual. His plea to manslaughter was accepted and he was jailed for 4 years and 8 months.

A number of people have asked how a sentence can be reviewed as ‘unduly lenient.’ It is done through the Attorney General’s office. A template letter is provided here.

Attorney General’s Office 

By email: uls.referrals@attorneygeneral.gov.uk

Date: [before 4 October 2021]

Dear Attorney General

I am writing to you to request a review of the sentence of Sam Pybus, passed at Teesside Crown Court on 7 September 2021, as unduly lenient. 

The sentence was one of four years and eight months imposed for manslaughter. Pybus had strangled Sophie Moss to death, while he was intoxicated. Although he said he could not remember what had happened, he entered a guilty plea saying it had occurred during consensual sexual activity. 

The Sentencing Guidelines state that where death “was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender” the appropriate category for sentencing is Category B, high culpability, which carries a starting point of 12 years custody. It ought to be obvious to anybody that strangulation carries a high risk of death or GBH. 

I would ask you to refer the sentence to the Court of Appeal as unduly lenient.

Yours sincerely

I Know It When I See It

Legal Feminist welcomes feminist blog posts from practising lawyers. In this post, guest blogger and paralegal Ffion Lloyd writes about the shocking growth of the incel movement and suggests the time has come to treat it as a terrorist movement.

We all know the phrase, ‘I know it when I see it’, when you may struggle to describe or pinpoint what ‘it’ exactly is, however, we all feel it and know where ‘its’ boundaries are. Schmid and Jongman described terrorism as acts committed for “idiosyncratic, criminal, or political reasons.” This definition includes mass attacks by non-ideological psychotics. The Crown Prosecution Service describes terrorism as “the use or threat of action… designed to influence any international government organisation or to intimidate the public” which is “for the purpose of advancing a political, religious, racial or ideological cause” and cites examples as including “serious violence against a person” “endangering a person’s life” and “creating a serious risk to the health or safety of the public or a section of the public”.

Despite these recognised and accepted definitions, there remain a number of organisations and groups in the UK which blatantly pose a threat to the safety and security of society and yet are not recognised by the authorities as terrorist or as holding terrorist ideologies. 

On Thursday 12th August 2021 Britain witnessed its worst mass shooting in nearly a decade. A country that, since the Dunblane shootings, has successfully avoided the horror of mass shootings. We have prided ourselves on being the complete opposite to the USA when it comes to gun control.  The UK has strict and rigorously enforced gun control laws; anyone caught in possession of an illegal firearm will face a mandatory minimum prison sentence of seven years.

But in spite of our tight gun control, two women, two men and a three-year-old girl were fatally shot in 12 minutes by a 22-year-old, self-identified ‘incel’. In the aftermath of this shocking event, use of the phrase “incel” had the media frantically seeking to explain what this right-wing, misogynistic ideology stands for. However, this is not a new term let alone a new group. A January 2020 report by the Texas Department of Public Safety warned that incels were an “emerging domestic terrorism threat” that “could soon match, or potentially eclipse, the level of lethalness demonstrated by other domestic terrorism types“.

Alongside that report, a 2020 paper, Studies in Conflict & Terrorism, published by Bruce Hoffman noted that the incel movement’s “core ethos entails the subjugation and repression of a group and its violence is designed to have far-reaching societal effects” and concluded that “the violent manifestations of the ideology pose a new terrorism threat, which should not be dismissed or ignored by domestic law enforcement agencies“. Yet despite these warnings, Jake Davison, a 22-year-old guy from Plymouth, was frequently and freely able to post YouTube videos, actively discussing his life failures and angrily complaining that the root cause of his insecurities and lack of sexual experience were the fault of women. More specifically, the lack of interest women had in him.

The Incel movement is an inherently misogynistic internet subculture that has reportedly led to over 61 homicide deaths since its founding. The term “involuntary celibate” arose in the 1990s and originally had no violent connotation. However over the last two decades, the incel community became increasingly misogynistic, blaming women and glorifying rape and violence against women.  Then in 2014, Elliot Rodger murdered 6 people, and wounded 14 others, as part of what he called a “Day of Retribution” rooted in the frightening notion that women were fundamentally flawed and deserved death. Rodger went on to write his lengthy 133-page manifesto in which he rationalises the massacre of women. In his “ultimate and perfect ideology of… a fair and pure world,” all women should be “quarantined” in “concentration camps,” where he could “gleefully watch them die,” though some would be kept alive and artificially inseminated to perpetuate humanity. Following this event, pro-violent, internet subcultures have continued to grow and have resulted in several murders and attacks by men propagating this terrifying ideology. 

Despite this, as the law currently stands in the UK incel ideologies are seemingly not regarded a dangerous enough to be classed as terrorism. In the past, extremist groups which have sought to overthrow the social order,  the IRA, the LTTE and most recently ISIS, have been deemed terrorist organisations. Why is the incel movement any different?  

ISIS provides a good case in point – it is recognised as representing a direct threat to the security of a country and its interests; the incel movement undermines democratic norms and values of equality and shares a number of similarities. They are male dominated, historically anti-women and heavily rely on the internet and online forums as a primary communication tool. While anti-women views existed long before the internet, subsections of the internet have accelerated their spread, expanded their reach and fuelled their women hating content.

The nature of attacks, perpetrated by violent radicalized groups such as the incel movement and ISIS, have a very gendered dimension which is predominately virtual and largely comprises young males. How can it be that one an illegal terrorist organisation and the other simply frowned upon, when at their core, they have such fundamental similarities? Does the fact that ISIS is founded in a religious doctrine make it fundamentally more dangerous? It is very hard to see why that should be the case.  If that is the case, what is the difference? Are incels deemed less dangerous because they predominantly target women and not men? Does this somehow make them less of a threat to society? 

If so, this is naive, given incel perpetrators have clearly shown that their attacks also target men, who are deemed attractive and lucky in life (‘chads’). More to the point, the suggestion that hatred of women is somehow less of a threat is also a terrifying conclusion. Violent attacks on women in general have been all too frequent items in the news in recent years, from the shocking assassination of Jo Cox to the brutal murder of Sarah Everard. The murder of Sarah Everard led to an outpouring of concern about violence against women.  And yet despite those sentiments, society has not yet fully recognised the dangers posed by those who fundamentally hate women.  Incel related violence is explicitly aimed at instigating an overthrow of social order. 

Terrorism, I know it when I see it. When will the government? 

Suspended sentencing: the case of Javed Miah

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

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

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

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

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

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

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

And yet. 

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

Timothy Brehmer: from coercive control to loss of control

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.