Category Archives: Law

Against fact-checking

What does it mean to check a fact? It’s a more complicated question than it may seem.

Let us take a simple example.

Primus: The sky is green.

Secunda: Let me check that fact.

The sky, as we know, is blue and not green. But what is Secunda assuming, by taking Primus at his word and checking whether the sky is in fact green? Nothing controversial: Secunda assumes that there is a sky, and that it can be attributed properties of colour. Secunda goes outside, looks up, notes that the sky is blue and not green, and strikes Primus across the forehead for being a prat.

Let’s take a more complicated example, such as the one Channel 4 FactCheck dealt with today.

Primus: Men are more likely to be raped than be falsely accused of rape.

Secunda: Hang on, let’s check that fact.

Secunda’s presuppositions are partly quite uncontroversial. There is such a thing as men, and rape, and false accusations of rape. We can all accept this, and we can broadly agree on definitions of each of those things.

The tricky presupposition comes when Primus talks about probability. Secunda may note that rape and false accusations are both, at least in theory, capable of being recorded and studied, so she might look for some data on their prevalence. However, by ‘checking the fact’ of whether men are indeed more likely to be raped than be falsely accused of rape, here are the premises Secunda must accept:

  1. It is possible to perform a valid statistical comparison on these two probabilities.
  2. The sources from which we might acquire statistics for such a comparison are capable of supporting such a comparison.

To assess the prevalence of male rape, Channel 4 uses the figures from the Crime Survey of England and Wales, which estimate a yearly figure of around 8,000 victims in the entire adult male population (about 0.05%, it adds helpfully).

To assess the prevalence of false accusations, Channel 4 has a more complex method. In its cheery mid-Atlantic dialect it notes:

First up, let’s acknowledge the elephant in the room: there is no reliable data that exists to tell us how many people are accused of rape in day-to-day life.

There are all sorts of environments — at work, at home, in public — where someone could make an allegation of rape, truthfully or otherwise, that may go unrecorded. If false, these accusations could have far-reaching and profound effects on the accused’s life, even if they never result in police or judicial action.

But we can only analyse the data we have. So, for the purposes of this article, we will look at rape allegations that make it to the courts.

This is quite a caveat. Already we have hurtled past assessing a comparable statistical population. We are no longer considering what proportion of men in the whole population are falsely accused; rather, it is what proportion of men who are prosecuted for rape are falsely accused.

Overall, in the CPS’ view, false allegations of rape are “serious but rare”. They estimate that there is one prosecution for a false rape claim out of every 161 rape cases prosecuted. That means — according to the best available data — false allegations make up 0.62 per cent of all rape cases.

I have written before about how it is possible for an instance of rape to fail to meet the criminal standard while still being a true allegation. In this instance, Channel 4 outlines the statistics – noting with considerable understatement that “the data we have is not always directly comparable” – and concludes as follows:

But from what we can tell: yes, men are more likely to be raped than be falsely accused of rape.

According to the most reliable data we have, the average adult man in England and Wales aged 16 to 59 has a 0.03 per cent chance of being raped over the course of a year (based on 2016-17 figures).

The best data we have — the number of people prosecuted for making false allegations — suggests that the average adult man in England and Wales has a 0.00021281 per cent chance of being falsely accused of rape in a year. (That’s based on 35 prosecutions for false rape allegations in 2011 compared to 16.5 million men aged 16 to 59 living in England and Wales at the time).

By this measure, a man is 230 times more likely to be raped than to be falsely accused of rape.

This is tricky, but look closely. We are being asked to compare:

  1. figures from the Crime Survey of England and Wales on the prevalence of male rape in the whole population to
  2. the proportion of prosecutions for perverting the course of justice which succeed, which are a proportion of the whole number of prosecutions for perverting the course of justice, which are a proportion of rape prosecutions which fail in court, which are a proportion of all rape prosecutions, which were themselves selected from the whole number of rapes and alleged rapes which exist in society.

Then, that proportion is taken to be exhaustive of the entire population in the way that the Crime Survey data is (statistically) a sound sample of the entire male adult population.

It is rather as if we used the number of watches successfully repaired in a given year as exhaustive of the number of watches that break down, and then compared it to the number of people who reported in a survey that their computer crashed. Many watches are not discovered when they break down. Many are not repaired at all for reasons of expense or laziness. Many are simply disposed of and replaced. Either way, the figure is simply not reflective of the underlying reality in the way that the survey on computers is.

This is why the Crime Survey of England and Wales is taken to be a better picture of the number of sexual assaults, as many go unreported. To compare like with like, we would need the Crime Survey of England and Wales to ask a question along the lines of ‘Have you ever been falsely accused of rape?’ The Crime Survey of England and Wales does not do this, for many reasons – but unless and until they do, a comparison reconstructed from prosecutorial data is inherently flawed and of virtually no use whatsoever.

Channel 4 does, to a degree, recognise this and makes an effort to steelman the case against it.

…let’s put the stats through an even stronger test.

Imagine for a second that you believe that every single one of the men prosecuted for rape in England and Wales in 2016-17 was falsely accused.

Even if that unlikely scenario were true, there would still have been more adult male victims of rape (8,000) than men prosecuted for those rapes they “didn’t commit” (5,190).

Here we are not so much comparing apples and oranges as comparing apples and lamb chops. We are still comparing crime survey data to prosecutorial data, but now we have tossed away the notion that we are comparing likelihood at all. Logically, those rape cases which succeed at court are (one imagines) the most promising cases of all and have the best evidence behind them – consequently, those are the least likely to be false accusations. A more testing statistical steelman would be not that all prosecutions are false accusations, but that all reports are false, as many more cases are reported than prosecuted. This would be closer to – though still very far away from – the statistical standard we see in the crime survey data. Instead, in purporting to use a stronger test, it actually uses a weaker and sillier one.

There is an even more serious concern. A slogan like “men are more likely to be raped than falsely accused” is not used neutrally. It is by its very nature only used when the prosecution of a rape case has inflamed passions, typically on social media. In that scenario, the relevant population for the question of false accusations is not ‘all men’, but ‘all men who are accused of rape’. It would sound ridiculous to ask “what proportion of men who are accused of rape are themselves victims of rape?”, of course. But the statistical comparison only works if the same controls are embedded in the data. Otherwise we are confounding ourselves with irrelevant statistics.

The trouble with fact checking is that by checking a ‘fact’ it endorses the epistemic framework in which the ‘fact’ is produced, e.g. that a putative comparison between the Crime Survey and prosecution records is a statistically valid idea in the first place. Fact-checking therefore is in the unenviable position of reproducing the questionable premises of the ‘fact’ it is checking. Channel 4 is unlikely to conclude by saying ‘we cannot know and any comparison purportedly based on data is meaningless’, but that is the only honest response. By assessing whether the data backs up the claim, however, it implicitly accepts that the data can back up the claim – and that apples may speak to oranges on equal terms. They cannot, and nor should we spread the idea that they can.


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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:


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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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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