Category Archives: Law

Asking the wrong question

The Divisional Court’s judgment against the Government in R (Miller) v Secretary of State for Leaving the European Union [2016] EWHC 2768 (Admin) is being pored over as I type, but it seems to me that the Government’s defeat came out of a failure to make correct submissions.

It was common ground between the Crown and the claimants that the Article 50 notification would inevitably result in alterations to rights and obligations in UK law (paragraphs 10 and 11). This leads inexorably and inescapably to the conclusion, founded on the Case of Proclamations (1610) Co. Rep. 74, that the Crown (i.e. the Government) cannot make the Article 50 notification without the consent of Parliament expressed through an Act of Parliament. The Crown’s submission that Parliament had intended that the Crown be able to make alter those rights and obligations was rejected, probably correctly:

para-94

But this outcome was only inevitable if the Crown conceded that the Article 50 notification does indeed alter rights and obligations in domestic law – which, although it appears to be the view of the court, is not really argued over at all. This is not necessarily the case.

On an orthodox reading of the relationship between the domestic legal jurisdiction and the international legal jurisdiction, the British courts deem themselves unable to address international legal questions. This is a simplification but it will serve for the time being.

The court in Miller took the EU rights in domestic law that British citizens enjoy to rest upon membership of the European Union. It seems to me that this is not quite correct. This is true of the rights in EU and foreign law that British citizens enjoy. In domestic law, however, those rights in the domestic sphere flow entirely from the European Communities Act 1972, which confirms the principle that EU legislation is directly effective in the UK – and which would not do so without the European Communities Act. This is admitted by the court at paragraph 41 and 42 as a direct consequence of the fact that the Crown could not alter domestic law on its own:

para 41-42.PNG

Accordingly it is possible to imagine the following legal situation. The Crown activates the Article 50 notification and Britain departs from the European Union two years later. However, Parliament refuses to repeal the European Communities Act 1972. This would mean that UK citizens are still subject to the rights and obligations incurred in domestic law as a matter of EU membership, but cannot enjoy the rights and obligations incurred abroad (such as freedom of movement) as those are a matter for foreign and European courts. The differences between these rights are discussed at paragraphs 57 to 61.

This seems to me to be the critical failure of the Government’s case. Instead of admitting the losing ground that the Article 50 notification would have domestic legal effects, it ought to have denied this and argued for a strict division of the domestic and international orders, asserting that Article 50 would have no domestic legal impact whatsoever. It then should have advanced the argument that Parliament intended the Crown to have the power to so alter domestic law as a second ground of argument, if the first was lost. As it was, they conceded the only ground they might conceivably have won on, and thus doomed the Crown’s case.

I am not sure why this has happened, as it seems fairly obvious. I suspect I have gotten something quite wrong – if anyone can help me out please inform me.

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Right of refusal: Ashers in the Court of Appeal

The Northern Ireland Court of Appeal judgment in the Lee v Ashers case is out today. It corrects some rather glaring errors in the initial County Court judgment and raises rather intriguing questions about how discrimination law is to develop in the future. At issue here, really, is not free speech but what is termed associative discrimination in the case law – in other words, were Ashers in effect discriminating against gay people by not baking a cake which would carry a slogan in support of same-sex marriage?

As the judges note at paragraph 55, the leading judgment here is Lady Hale’s in Bull v Hall [2013] UKSC 73, where she quotes Advocate General Sharpston in the EU case of Bressol [2010] 3 CMLR 559:

“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification.”

What this means is that, in law, even if one doesn’t discriminate against (for instance) gay people explicitly, if the action you take only impacts gay people then that is still direct discrimination and ipso facto unlawful. This is clearly right – for instance, if people who have purchased sanitary products for personal use are barred from doing something, that is directly discriminatory against women even if one doesn’t expressly refuse to serve women.

The judge at the County Court got rather muddled in her judgment. She held that refusing to print a cake saying “Support Gay Marriage” was a case of direct discrimination because support for same-sex marriage was “indissociable from sexual orientation” – in layman’s terms, she was arguing that only gays and lesbians support same-sex marriage. “That was clearly wrong,” said Morgan LCJ rather flatly in paragraph 24 of today’s appeal judgment.

But the Court of Appeal did something much more ingenious. It looked, not at the cake or even the slogan as the benefit denied to Gareth Lee, the claimant, but at the benefit that accrued from the slogan (i.e. “Support Gay Marriage”). The reasoning of the Court at paragraph 58 seems to be that since only LGB people would benefit from the potential introduction of same-sex marriage in Northern Ireland, then refusing to print a message in support of that counts as directly discriminating against a protected group (and nobody else).

Morgan LCJ doesn’t go into great detail about what constitutes a benefit for these purposes. Courts are unsentimental places; it makes some sense that the Court of Appeal would not consider whether the emotional benefits to heterosexual friends and family of LGB people who might be able to marry would count as a benefit to people other than a protected class. But it’s worth working out what this might mean.

For example, a cake which carried the message “Support Affirmative Action” would most likely be protected in the same way; after all, only BME people will benefit (at least legally and financially) from quotas or positive discrimination. Likewise, a cake exhorting the eater to “Stand Up For the Gender Recognition Act” can only provide a legal and financial benefit to trans people, another protected class under the Equality Act. However, a message such as “Abortion Rights Now” might not, because it is not just women who might benefit from women being able to control their number of offspring. The distinction is not an easy one to draw, but it does appear to be the only (rather vague) principle which comes out of the case.

Had I been the judge here, I suspect I would have ignored the sexual orientation discrimination point and constrained the operation of the case to the bar on political discrimination. It is worth noting that political discrimination is not illegal in England, Scotland or Wales – it is illegal in Northern Ireland to try to stamp out sectarianism (i.e. so that nationalists cannot deny services to unionists and vice versa). On these grounds, as District Judge Brownlie held at paragraph 66 of her judgment in the County Court, this would have been a straightforward case of political and religious discrimination. This angle was avoided by the Court of Appeal, as it isn’t necessary to reach a finding, but I think it makes more sense and requires fewer logical leaps than the above. It is worth noting that in Northern Ireland, at least, Ashers would probably have to bake the aforementioned “Abortion Rights Now” cake.

This points to an interesting conclusion to be drawn from this case. The Court dismissed the operation of various defences to discrimination proceedings, which will undoubtedly be picked over by those more expert than me in these matters. At one point, Morgan LCJ said (para. 67) rather memorably that “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.”

This seems a statement which will be hard to generalise past the instance of a bakery, but Morgan LCJ was making an important point. At para. 100 he noted that the “answer” to anti-discrimination legislation which hurts a business or offends certain beliefs is “for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service. … In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflect their own political or religious belief …”

If, as seems likely, the implication from Ashers is that certain political statements are protected under discrimination law since their benefits would only accrue to a protected class, it follows that political opponents of those statements will have to issue a general prohibition on political statements. Morgan LCJ drew the comparison, at para. 47, to a printers’ firm providing election posters. It seems likely that a printer could refuse to print all political statements, but would not be permitted to refuse to print only statements on behalf of a same-sex marriage advocacy group or (to take my example) a campaign against the so-called ‘spousal veto’ in the Gender Recognition Act. In effect, the essence of the judgment is to make the publishing of certain political opinions compulsory by everyone who wishes to publish any political opinions whatsoever. This seems a somewhat adventurous interpretation of equality law, but it makes more sense than the messy first instance judgment.

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How radical is the Pope’s call for abolition of the death penalty?

This afternoon, His Holiness the Pope made headlines with a call to abolish the death penalty worldwide. This sounds pretty radical on paper: the death penalty is still widely practiced around the world, not least in the United States, where he was making his speech. Yet how radical is the abolitionist message for a Pope?

One way of looking at it is to see which Catholic-majority countries still practice the death penalty. Excepting Vatican City as an anomaly, the CIA World Factbook lists 49 countries around the world where Catholics form a numerical majority of the population. Of these 49, 11 retain the death penalty on the statute books, namely (in order of Catholic proportion) Equatorial Guinea, Peru, Dominica, Saint Lucia, Brazil, the Republic of the Congo, Chile, Grenada, Cuba, the Democratic Republic of the Congo and El Salvador.

This is fairly striking: what is more striking is that the only one where capital punishment is currently in use is Equatorial Guinea, which executed nine people in 2014. In all of the others, capital punishment has been abolished de facto through non-use (Dominica, Saint Lucia, the ROC, Grenada, Cuba and even the war-ravaged DRC) or is reserved for military crimes or crimes against the state like treason (Peru, Brazil, Chile and El Salvador).

The Catholic world is to be congratulated for its astonishing efforts in doing away with the death penalty. However, it seems that it has already accomplished much of what it can do in its own sphere of influence: taking the abolitionist principle to non-Catholic countries, especially in the Middle East and the rest of Asia, may be rather difficult. Even a country which had a Catholic president and currently has a Catholic vice-president has not abolished the death penalty; pushing for Iran or China or Japan to do the same might be a tall order even for this Pope and his masterful handle on public relations. His penchant for repeating long-standing Catholic dogmas in a more palatable manner probably won’t be enough to rid the world of capital punishment, but it’s nice to hear anyway.

Data from CIA World Factbook, as collected on Wikipedia, and Death Penalty Worldwide from Cornell Law School. My table is here.

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Child sex offences are more complicated than the Telegraph says they are

Update: The article referred to in this blogpost has been deleted from the Telegraph website, one hopes because the lawyers got nervous, and it doesn’t appear to have been preserved on the Internet Archive in time. Searching for the author’s name on the Telegraph website shows no evidence that the nasty bilge published under her byline ever existed. Oh well. Hopefully no harm was done.

This morning, the Telegraph published what is one of the most viscerally ideological and shamelessly misleading articles on the criminal law of England and Wales that I have ever read. Rebecca Reid’s piece, entitled “Adam Johnson sex claims: Anyone who sleeps with 15-year-olds is a rapist“, not only indicates that she is incorrect about the law on sexual assault and rape in this country, but that she did not even do the most basic of research on this most crucial of issues. What makes it worse is that instead of framing it as a feminist political argument on the meaning of the word ‘rape’, she actually invokes the law she has evidently never read.

But I’m getting ahead of myself. What does Reid say? I shall list her assertions first.

Everything goes wrong in the first paragraph:

Adam Johnson, a football player for England and Sunderland, has been arrested on suspicion of statutorily raping a fifteen-year-old girl.

The phrasing of the above is deliberate. He is not alleged to have had ‘underage sex’. He is alleged to have statutorily raped a girl who, aged fifteen, is legally unable to consent to sex.

And, as well all know, sex without consent is rape. Yet, many will refer to this alleged crime as ‘underage sex’.

Why? Because it doesn’t have the same connotations as rape. Underage sex with someone a few months away from being the age of consent is far from ideal. It’s frowned upon and it’s something best avoided (being against the law and all).

But it doesn’t have the visceral properties of the word rape. It doesn’t carry the same weight of expectation. In fact it’s a much more palatable way to describe the actions of a person who people are unwilling to see in an unfavourable light.

And at the end:

Men who have sex with fifteen year old girls are having sex with children. Men who have sex without consent are rapists. It’s a harsh, simple truth.

This is the extent of her foray into legal argument. The rest is discussion of what people think about rape victims, and that’s perfectly fine and I shan’t criticize it here. The problem is that almost every word in her assertions about the criminal law of England and Wales is wrong.

For a start, there is no such thing as “statutory rape” in this country, and nor is there any such thing as an “age of consent”, at least not as Rebecca Reid appears to understand it. Having sex with a 15-year-old does not constitute rape, unless the 15-year-old is not consenting. The law is not that blunt. All cases relating to a lack of a when the victim is aged 13 or older are dealt with under sections 1–4 of the Sexual Offences Act 2003, just like offences against adults; here, consent does play a role. If the victim is consenting and they are aged 13 or older, the specific child sex offences of sections 9–15 enter into play, none of which constitute rape.

What is crucial to recognize are the following points:

  1. In English law, having sex with someone aged between 13 and 16 is not automatically rape. It is entirely possible for a putative victim to consent to sex when they are aged 15. The offences of which the other party can be guilty are very specifically defined, carrying names like “sexual activity with a child”. Crucially, the statute never uses the language of rape to define these offences.
  2. All of these specific child sex offences offer the defendant a way out: if he reasonably believed that the child was aged 16 or older, he is not guilty of an offence (see, for instance, s.9(1)(c)(i) of the SOA 2003).
  3. The only stage at which neither the child’s consent nor a reasonable belief in them being aged 16 or older are engaged is when the victim is younger than 13. At that stage, as sections 5–8 make extremely clear, the questions of consent and reasonable belief simply never arise: the sexual activity with the child is illegal regardless of the victim’s and defendant’s respective states of mind.

Indeed, this represented a serious problem for the judiciary when the House of Lords considered the case of R v. G [2008] UKHL 37, where a 15-year-old boy was convicted of the rape (note the specific language) of a 12-year-old girl. The girl in question had, it was clear, pretended she was 16 (though the Appellate Committee drew no conclusions on whether this was realistic or not): what the defendant objected to was being convicted of a crime that carried the word ‘rape’ without having the victim’s purported age and apparent consent even considered by the court. In the end, the clear words of the Sexual Offences Act 2003 won out, and the conviction was upheld.

So these words really do matter, because being convicted of a crime like rape has social consequences far worse than similar crimes of different names (and, in my view, rightly so). What Rebecca Reid’s article does is import a specific feminist conception of the word ‘rape’, that may well be perfectly reasonable, and use it to give a false depiction of the current law of England and Wales. This is disgraceful. Had she even bothered to read the first few sections of the governing statute in this context, she would have been able to tell that her characterization of the law was wrong in almost every respect. I hope she writes a follow-up article that illustrates just how wrong she is.

When people talk about ‘statutory rape’ and the ‘age of consent’ they are generally extremely wrong about the criminal law of England and Wales: further muddying of the waters should not be tolerated by anyone who knows anything about this area. If you want to define anyone having sex with a 15-year-old as a rapist, you are welcome to try, but get it through Parliament first: don’t abuse these very specific terms for your own purposes.

A note of caution, by the way. As I said, these questions really matter. Characterizing 15-year-old girls as being unable to consent at law is such an incorrect statement of the law that it could be perceived as being highly prejudicial, or libellous: most cases of this nature turn on whether the defendant’s belief that the child was aged 16 or older was reasonable or not, and to imply that that question does not arise is to imply that the defendant is inescapably guilty. If I were Adam Johnson’s lawyers, I’d be taking extremely careful note of everything Rebecca Reid has said – and seeking to find out just how many people have read this shameful piece of pseudolegal trash.

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Protected: Grayling defeated in the High Court: careful now

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The fault requirement of rape

Please note that this post will discuss the law of rape and sexual assault, though in non-graphic terms.

The 1970s are looking more and more like a decade-long molestation racket, a time when anyone with name recognition and a penis could get away with the most appalling crimes against the bodily autonomy of others, especially girls and young women. The Operation Yewtree steamroller rumbles along, prompting endless lurid speculation about whose will be the next famous face to be seen in the back of a police car. Yet the media’s fascination with this hideous rogues’ gallery of children’s TV presenters and DJs has precluded a serious discussion about the law of rape and sexual assault (formerly indecent assault), and has cast the wider perception of these crimes into sharper relief than ever.

It is important to address possibly the most dangerous misconception about the process of a trial for rape, and that is as follows: a not guilty verdict is not the same as a false accusation. There is a simple reason for this, and it is not that the court system is routinely letting offenders off (though that is possible, it overcomplicates the issue and does the courts an undeserved disservice). Simply put, rape is a complex crime. For the purposes of this analysis I will be using the definition of rape and sexual assault contained within the UK’s Sexual Offences Act 2003, ss1-4 – although many thoughtful people have argued that the current definition is deficient, I respectfully disagree with them and note that it is irrelevant to the points I am trying to make anyway.

There are three aspects of the crime of rape or sexual assault:

  1. There is sexual contact;
  2. To which the victim (V) does not consent;
  3. Where the defendant (D) does not reasonably believe that V consents.

If any of those three elements are missing, D is not guilty of rape or sexual assault; accordingly, when V complains that she has been the victim of sexual contact to which she does not consent, the prosecutor must prove beyond reasonable doubt that a) V indeed did not consent to the sexual contact in question and b) that D did not have the requisite reasonable belief in consent.

What tends to happen in trials is that Element 1, the sexual contact, is rarely at issue – both the complainant and the defendant usually concur on the existence of the disputed sexual intercourse. The trial tends to come down to Elements 2 and 3, and it is at that point that much of the public discussion of rape begins to break down.

Much of the current discussion of rape centres on Element 2. That is why we have campaigns about victim-blaming, about how a short skirt doesn’t imply consent, and so on. This focus, however laudable it is (especially for defending barristers who know every trick in the book to pull consent out of a hat for a receptive jury), runs the risk of blinding us to Element 3, and thereby distorting our view of the crime of rape.

Elements 1 and 2 concern what lawyers call the actus reus, or “guilty act” – the actual illegal act in question. But Element 3 is just as vital, and that is the mens rea: the “guilty mind” or fault element. In a nutshell, this means that not only did D perform the act of which he is accused, but he did so with sufficient culpability to be held guilty in law of the crime of rape.

This is a very important distinction. To illustrate why it follows that a not guilty verdict is not the same as calling the victim a liar, here is an example scenario. Let us suppose that Alex and Brenda engage in sexual intercourse to which Brenda does not consent. Let us suppose further that Brenda makes a complaint, and pursues the trial to its end, where it is found that Alex did indeed possess a reasonable belief in consent (which he really did). What occurs in this example is that Brenda makes a genuine accusation of rape of which Alex is not guilty. It is entirely possible, at least within the framework of English law, for a genuine experience of non-consensual sex to not satisfy the fault requirements for the accused to be guilty of the mental element of rape. To put it another way: “I was raped by X” is not the same thing as “X raped me”. The former implies being on the receiving end of intercourse to which the victim does not consent; the latter demands that X actually fulfils the requirements in law to be what we would call a rapist.

What ought to be debated is how the courts should consider that reasonable belief to be satisfied. Some of the more interesting discussion concerns how the law should treat silence or ambiguity, and whether there should be an explicit requirement for affirmative expressions of consent. I fear this would be unworkable, much like its cousin “enthusiastic consent” – a fine thing to aim for, but difficult if not impossible to enforce and draft in law.

This has been a deliberately narrow post, because the legal policy surrounding rape and sexual assault raises a great many questions which deserve a full and frank debate in public by more people than just me. The crucial thing to remember is that rape, as defined in English law, is not only a question of whether the contact occurred, and whether or not the victim consented, but of whether or not the defendant is truly guilty in a more robust sense than simply performing the act. It would surely be unjust to convict people for a reasonable error of judgment – what matters for future policy on this single, narrow issue is how we define “reasonable”, and what we ought to demand of the defendant in his own determination of consent in situations of apparent ambiguity.

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