Tag: domestic abuse

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.

Limitations on domestic violence protections in the Immigration Rules justified, Court of Appeal holds


In the recently published case of R (SWP) v Secretary of State for the Home Department [2023] EWCA Civ 439, the Court of Appeal has looked at the domestic violence concessions in the Immigration Rules.

What are the domestic violence concessions?
These were originally introduced in 1999 following a seven year campaign by Southall Black Sisters. Those who enter the UK as spouses of permanent residents or British citizens have “no recourse to public funds” and must be self-sufficient. They are granted five years leave to remain (two prior to 2012) after which they may apply for indefinite leave in their own right. The problem with this is that if a woman enters the UK only to find that her husband is an abuser, she faces an impossible choice: remain in the marriage for the requisite five years, or leave and face destitution and loss of immigration status. The 1999 concession allowed a victim of domestic abuse in these circumstances to apply for indefinite leave before the end of the spouse visa. The concession was replaced in 2002 with paragraph 289 of the Immigration Rules, and that in turn was replaced again in 2012 by the “DVILR” section of Appendix FM to the Immigration Rules. 

What this did not solve was the issue of destitution, particularly during the period where an applicant was preparing the application and while it was being considered, which could take some months. In 2012 the “Destitute Domestic Violence Concession” (DDVC”) was introduced whereby a victim of domestic abuse could apply for a three month bridging visa which would allow her access to public funds and the right to work while she prepared her application and applied for indefinite leave under DVILR. 

The current domestic violence rule can be found here and the crux of it is that 

The applicant must provide evidence that during the last period of limited leave as a partner of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1 or D-LTRP.1.2 of this Appendix, or during their only period of permission under Appendix Family Reunion (Protection), the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.

What’s the issue?
The eagle eyed reader will have spotted that the rule is no longer restricted to partners of British citizens and those who are settled. The rule is now also available to partners of refugees and to partners of people in the UK with what is known as “pre settled status” – European nationals who did not gain fully settled status. 

The reason for extending it to partners of refugees is obvious. Partners of those with pre settled status are included because the Withdrawal Agreement required the UK to treat EU nationals applying under the scheme no differently to British nationals. 

However, partners of people on other visas are not included. This is not a new problem; the joint report from Southall Black Sisters and Eaves recommended in their 2013 review of the DVILR scheme one year on that it should be extended to those on other visas, commenting that “it is still a concern that this concession applies only to very specific group and relatively small group of women. All women in the UK, irrespective of their immigration status, should be entitled to equal access to safety and justice and to be able to access life-saving support and advocacy.”  

Why now? 
The Home Office line has always been – and continues to be – that the scheme is only available to those with a “legitimate expectation” of settling here. In written evidence before the Court of Appeal, the Home Office set it out in this way:

“The rationale for the terms of the DV Rule concession was (and is) that individuals who come to the UK as the spouse or dependant of a partner who is present and settled in the UK will have come to the UK in the knowledge that their UK based partner already has a right to live permanently in the UK. It is reasonable for them to expect to have their future and their permanent home with their partner in the UK, so from the outset they may well loosen or cut their ties with their country of origin. The domestic violence provisions concession means that someone who has come to the UK on this basis and who is the victim of domestic violence should not feel compelled to remain in the abusive relationship for the sake only of qualifying for indefinite leave. They should also not feel compelled to leave the UK when the reason for being here (to live here permanently with their British or settled partner) falls away through no fault of their own.”

…

“The rationale for the present policy is, as stated above, that those who have come to the UK as the spouse or partner of a person present and settled in the UK (or with refugee status or pre-settled status) have come to the UK in the reasonable expectation of being able to live permanently. They would have an expectation of permanent settlement but for the breakdown in the relationship as a consequence of domestic abuse. But those who have come as the partner of a person on a temporary work or study visa have no such legitimate expectation.”

However, the post-Brexit inclusion of EU nationals with pre-settled status, which is not permanent, meant that there was now a comparator. This was important, because it meant that the Appellant was now able to argue that she was being treated in a discriminatory way regarding her private and family life, contrary to Articles 14 and 8 of the Human Rights Act. To succeed in an Article 14 discrimination argument, a person must show that they are being treated differently by comparison to persons in an analogous or very similar situation. 

What was the case? 
SWP was an Indian national who moved to the UK with her husband when his company moved him to the UK to work. There was some confusion over exactly what type of visa it was, but the case proceeded on the basis that it was a Tier 2 (General) visa. People who come to the UK on a Tier 2 (General) visa do not have an expectation of settlement necessarily, but if they live in the UK with this type of visa for long enough they will be permitted to settle. 

Her husband was violent and abusive to her both in India and the UK. She finally managed to leave the relationship after he sexually assaulted her and tried to suffocate her. She fled with their son to a domestic violence refuge. With her visa about to expire, she tried to find a sponsor of her own to acquire a visa independent of her husband, but as her own profession of primary teacher is no longer on the shortage list, she was unable to find a sponsor. She therefore made an application for the DDVC. 

This was refused because she was not the partner of a person who was settled or British, but the partner of a person with a Tier 2 visa, and she was therefore not eligible. She applied for judicial review of the decision, which was rejected, and appealed to the Court of Appeal. 

What did the court decide?
The Home Office did not agree that the decision was discriminatory under Article 14 although they did agree that it was linked to Article 8 (private and family life). Article 14 can only be relied upon in relation to one of the other Articles; it is not a standalone right. 

The first court had already ruled that there was a sufficiently close analogy between the partner of a Tier 2 migrant and the partner of a person with pre-settled status. 

The crucial issue was therefore whether or not the difference in treatment was justified. 

The Court of Appeal decided that the difference in treatment was justified. The Home Office had a policy reason behind the differentiation and a “wide margin of discretion” is open to the government in choosing its policies on general measures of social strategy. Brexit was a “unique phenomenon” and provided “an objective and reasonable justification for the difference in treatment which now arises under the EUSS.” 

The appeal was therefore dismissed. 

What next?
It is possible that SWP may appeal to the Supreme Court, although even if she won it would be a pyrrhic victory since the Home Office very belatedly realised that her husband was not a Tier 2 (General) migrant on a route which might lead to settlement, but in fact was a Tier 2 (ICT) migrant on a route which very definitely does not. Understandably, she had not had access to his documents and did not know this herself. 

As things stand, there is therefore no DVILR route for those who are victims of domestic abuse but whose abusers are not settled. 

The Home Office approach is unfortunate, because it leaves migrant women very vulnerable to domestic abuse. While some will be able simply to leave their abuser and go back to their home country, this is not always possible for women who are from countries where divorce is a social taboo, or where there are children involved. Bleakly illustrative of this is SWP’s evidence that she could feel compelled to return to her abusive husband if her appeal failed, as she would not be able to afford to educate him in India by herself. There will be many women in similar situations weighing the merits of remaining with an abuser if they cannot remain in the UK if they leave him. Sadly, it seems this is not a situation the Home Office is willing to change. 

Identifying Coercive Control in the Courts

The BBC reported today that new research from Manchester Metropolitan University shows a strong link between coercive control and murder. This echoes the research done by Professor Jane Monckton-Smith in her book In Control: Dangerous Relationships and How They End in Murder. 

It is probably no surprise, at least to feminists who follow such research closely, that abusers sometimes escalate to femicide. 

The question is what can be done about it – and why legal remedies are struggling to improve the figure of roughly 100 women a year murdered by an abusive partner or ex partner. 

Both the criminal and family courts have found it difficult to draw a bright line between behaviour that is unpleasant or intolerable and behaviour that is coercive and controlling. 

As  Peter Jackson LJ commented in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 at paragraph 61:

“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ 

This was the approach echoed by Hayden J in F v M [2021] EWFC 4 at para 4:

“…In the Family Court, that expression [‘coercive and controlling behaviour’] is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.”

In the criminal sphere, a similar description is offered to prosecutors in guidance. 

There is of course a definition of the offence, provided s.76 Serious Crime Act 2015. The CPS guidance explains that a person will be guilty of the offence of coercive control in the following circumstances:

An offence is committed by A if:

  • A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive; and
  • At time of the behaviour, A and B are personally connected; and
  • The behaviour has a serious effect on B; and
  • A knows or ought to know that the behaviour will have a serious effect on B.

A and B are ‘personally connected’ if:

  • they are in an intimate personal relationship; or
  • they live together and are either members of the same family; or
  • they live together and have previously been in an intimate personal relationship with each other.

There are two ways in which it can be proved that A’s behaviour has a ‘serious effect’ on B:

  • If it causes B to fear, on at least two occasions, that violence will be used against them – s.76 (4)(a); or
  • If it causes B serious alarm or distress which has a substantial adverse effect on their day-to-day activities – s.76 (4) (b).

The guidance goes on to say that “For the purposes of this offence, behaviour must be engaged in ‘repeatedly’ or ‘continuously’. Another, separate, element of the offence is that it must have a ‘serious effect’ on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them. There is no specific requirement in the Act that the activity should be of the same nature. The prosecution should be able to show that there was intent to control or coerce someone.”

In the criminal court, the offence must be proved beyond reasonable doubt. Where the allegation is made in a family court, the pattern of behaviour must be proved on the balance of probabilities. 

It is readily apparent that it will be difficult in very many cases to draw a line between “bad behaviour” and “coercive control.” 

One complicating factor could well be the expectations of the judge or jury as to the victim’s response. Some women will respond to controlling or coercive behaviour by becoming meek, withdrawn, and afraid – the “freeze” response. Others will respond to violence with retaliatory violence or angry outbursts – the “fight” response. Perpetrators may provoke such a reaction and then accuse their victims of being the ones engaging in coercive control, a pattern known as DARVO (Deny, Attack, Reverse Victim and Offender). The courts must be alive to unexpected reactions from victims: just because she has shouted at him to “fuck off” after months of belittlement or financial abuse doesn’t mean that “she gave as good as she got” and that her sense of autonomy must therefore be intact. 

There are no easy answers to how coercive control is identified, but early intervention would save lives. Education on identifying and preventing it, for prospective victims and prospective perpetrators, as well as those living in abusive homes, should begin in PHSE in adolescence rather than waiting for abuse to occur, when the post-mortem on events may tragically not be metaphorical.

How To Reconcile The Seemingly Irreconcilable

This is a talk I gave at the FILIA conference on 17 October 2021. 

I am going to try to explore how to reconcile two seemingly irreconcilable principles using an old pre Equality Act (EA) case, largely forgotten except for nerdy enthusiasts like me and many of you.

The two seemingly irreconcilable principles are

1.    Equality law requires us to treat no one less favourably on grounds related to / because of their protected characteristic.  No discrimination or stereotyping based on a person’s protected characteristic. Jobs, services etc should be available to all equally.

Against that

2.    “One size fits all” means that some people, because of their protected characteristic, are either significantly disadvantaged by this or not even able to access a service. So, we sometimes need to discriminate, as it were for the greater good, to ensure this group can access a service. It may not be all or even most of the protected class; it may only be a small sub group – but they are disadvantaged, if everyone is treated exactly the same. 

So how to reconcile this?

Well the 2008 case of Shah and Kaur v Ealing BC (better known as the Southall Black Sisters case) is a really good illustration. 

Whilst it predates the Equality Act 2010, it follows the same principles.

The case concerned Southall Black Sisters, an organisation that provided services to Asian and Afro-Caribbean women particularly in relation to domestic violence. For a while, they received substantial funding from Ealing Council. 

The Council decided in 2007 that it would in future encourage open competition by commissioning services according to agreed criteria. These included that services should be provided to ‘all individuals irrespective of gender, sexual orientation, race, faith, age, disability, resident within the Borough of Ealing experiencing domestic violence’.  A one size fits all approach. 

This requirement meant that SBS would no longer be able to limit their services to Asian and Afro-Caribbean women. They sought a judicial review of this requirement.

It is well worth everyone reading Lord Justice Moses’ judgement in the High Court being short, easy to read and generally excellent.

On the second day of the hearing, Ealing BC conceded that it could not maintain its decision and sought to resist the application no longer. It agreed to continue to fund Southall Black Sisters pending a further fresh decision as to the criteria it would adopt for the commission of services to assist the victims of domestic violence. 

Recently, I met the Chief Exec of SBS Pragna Patel. I was enthusing, like a fangirl, about the case. She said it was she who was adamant they needed a written judgment to set out the legal principles clearly for everyone; and LJ Moses agreed to this.

The statutory basis on which this case was decided was the 1976 Race Relations Act (RRA), which, after the Steven Lawrence inquiry had been amended in 2000. It then included a precursor to what we know as the Public Sector Equality Duty, and was known as the Race Equality Duty.

It required:

“due regard for the need –

(a) to eliminate unlawful racial discrimination, and 

(b) to promote equality of opportunity and good relations between persons of different racial groups.”

This wording clearly is the basis for s149 Equality Act  

s149 Public sector equality duty (PSED)

(1)A public authority must, in the exercise of its functions, have due regard to the need to—

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

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

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

In this case, no full equality impact assessment was undertaken until some time after these proceedings were launched. Further, the initial decision was predicated on some seriously dodgy use of statistics. Ealing BC observed that the largest proportion of domestic violence in its Borough was suffered by white European women. But that statistic was meaningless and irrational unless compared with the fact that 58 per cent of the female population of Ealing during the same period consisted of white European women. As the documents showed, 28 per cent of domestic violence was suffered by Indian, Pakistani and other Asian women. That statistic is of vital importance when one considered that those groups made up only 8.7 per cent of the population within Ealing. 

In those circumstances it was plain from the statistics available to Ealing that a very large proportion of women from that background suffered from domestic violence in comparison to white European women. 

Had Ealing appreciated that the important focus of their attention should be upon the proportion of black minority ethnic women within the borough and consideration of how high a proportion of those women suffered from domestic violence, it could never have reached the conclusion that there was no correlation between domestic violence and ethnicity. 

It really emphasised the need for good quality equality monitoring which clearly identified the protected classes and sub-classes (so women/females as a class of sex and Indian, Pakistani and other Asian women as a subclass).

Further it is clear that Ealing did not appreciate the benefits of specialist services in assisting cohesion rather than working against it. Throughout the process it is plain that Ealing believed that cohesion could only be achieved through making a grant to an organisation which would provide services equally to all within the borough. But this is not true either factually or legally. 

The EA (and RRA and Sex Discrimination Act etc) before it explicitly allows for exceptions to the general principles so that where reasonable or normally provided as such, single protected characteristic services, single sex services, separate sex services etc are legal. The commissioning of services (whether the result is to prevent this or allow these) needs to be done in way which is consistent with the PSED but also indirect discrimination, now s19 Equality Act.

19 Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

Essentially, if the policy of “one size fits all” means that some people, because of their protected characteristic, were now substantially disadvantaged, then it would be unlawful, unless objectively justifiable. This might mean changing the policy to that of providing a variety of different services which collectively allowed all groups who needed such a service to be provided with one appropriate to their needs. However, it need not, and sometimes should not be the same service.

The White Paper preceding the 1976 RRA called Racial Discrimination (Cm 623-4) – made it clear that the Bill should allow the provision of facilities and services to meet the special needs of particular ethnic or national groups (see paragraph 57). The Compact on Relations between Governments and the Voluntary and Community Sector in England 2008, emphasised the importance of independent, non-profit organisations run by, for and located within black minority ethnic communities. 

That sector, it said, brings distinctive value to society. Cohesion is achieved by overcoming barriers. That may require the needs of ethnic minorities to be met in a particular and focussed way. The Southall Black Sisters illustrate that principle. For example, in the second statement from Pragna Patel she identified the experience of the Southall Black Sisters in demonstrating how social services may be provided to those where a single-service provider may be reluctant to intervene in the cultural and religious affairs of a minority for fear of causing offence. Specialist services such as those provided by the Southall Black Sisters avoid those traps and help women to leave a violent relationship by using what she describes as –

“these very concepts of their culture such as honour and shame to support them in escaping violence and re-building their lives.”

She continued:

“Specialist services are more effective in empowering minority women so that they can take their place in the wider society.”

So, if true for ethnic minority women in 2008, why not now? Or, more widely, for biological women?  Why not take the specialist service principles from this case and apply to particular services like trauma informed support for females who have experienced male violence? Or specialist services for other single protected characteristics?

Karen Ingala Smith wrote a very important blog about the importance of single sex services to provide for trauma informed services for women subject to male violence.

She wrote about the effect of trauma on natal women and girls from male violence causing PTSD.

“After trauma, the brain can be triggered by something that would barely register for someone else, interpreting something that for many people would be unthreatening as a serious threat or danger, for example the presence of a man, particularly where not expected”

She goes on “For many women this means excluding men from their recovery space, and yes, this includes those who don’t identify as men.  Their behaviour, the likelihood that they themselves may be abusive, is not relevant. If it is not women-only, it is not trauma informed for women who have been subjected to men’s violence.”

Her evidence suggests women only spaces provide the equivalent for some biological females to the sort of specialist care provided to minority ethnic communities by Southall Black Sisters. And no reason why trans people, people over 60, disabled people etc don’t also have specialist needs that call for single protected class services.

The irony of specialist charities like Gendered Intelligence, who provide specialist services to only the trans community complaining about specialist services is not wasted on discrimination lawyers.

LJ Moses ended his judgment “..Specialist services for a racial minority from a specialist source is anti-discriminatory and furthers the objectives of equality and cohesion. I can do no better than to conclude this judgment – before giving the agreed order – by quoting the chairman of the Equalities Review in the final report Fairness and Freedom, published in 2007:

“An equal society protects and promotes equality, real freedom and substantive opportunity to live in the ways people value and would choose so that everyone can flourish. An equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.”

This approach should inform the way forward. Policy should be made cognisant on the effect it has on even small groups of every protected class, whether intended or otherwise. We need to be prepared to allow for, fund and defend specialist services. One size doesn’t always fit all. 

The Sun proves ‘truth’ in Johnny Depp libel trial

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

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

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

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

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

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

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

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

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

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

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

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

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.

#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.