Recent Law Articles
The Stuart Hall case ends the debate on anonymity for rape defendants
Having strenuously protested his innocence just three months ago, veteran BBC broadcaster Stuart Hall last week admitted he sexually abused girls – one of whom was as young as nine.
The Hall case shows more than ever just how vital it is that we continue to name men accused of rape and sexual assault. Because it is this naming that can give survivors and victims the confidence to come forward.
In Hall’s case, the police and CPS have been vocal in their argument for naming defendants. They have explained how naming Hall helped lead to his guilty admission. As survivors recognised that they were not alone, that he had attacked others, the police were able to gather the evidence they needed to charge and eventually prosecute.
We see the same pattern over and over again. Serial rapist John Worboys is a key example in how naming a defendant helped lead to his conviction. After he was named, it became impossible for the police to ignore the weight, the sheer amount, of women coming forward to name him as their rapist. Naming leads to evidence which helps lead to convictions.
Some argue that if we name the accused we should name the alleged victim. But why? Naming the victim isn’t going to help lead to convictions, it’s not going to help secure justice for rape survivors.
People cry ‘false accusations’ but if a woman is charged with that specific crime, then of course she will be named as she will be a defendant herself. The case of Ched Evans shows what can happen when you name the survivor. His victim was victimised all over again when she was subjected to horrific abuse to the point that she had to change her name and flee her home. How can we have ended up in a situation where some treat rapists with more sympathy and respect than their victims?
When criticising the policy of naming defendants, I think people confuse two different issues. The first is the legal issue and the indisputable, mounting, continuing evidence that naming helps convict rapists. The second is media behaviour.
The fact that the media convict people in their pages and often seem to tread a very narrow line between reporting and contempt of court is not a reason to end the policy of naming defendants. It is too important a policy, too important in bringing justice to victims and survivors, to be dropped because the press behave intrusively.
Press behaviour is an issue for the press. If they harass and taunt and wrongly convict men in their pages then that is not the fault of a sensible law that helps bring justice to rape victims. Bad behaviour in some sections of the media is not a reason to deny women and girls up and down the UK justice.
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A longer version of this blog-post is here.
Convictions for rape: how the Crown Prosecution Service is misleading us
According to the Crown Prosecution Service, rape convictions have hit an all -time high:
The Crown Prosecution Service has today published new figures that show the conviction rate for rape and domestic violence prosecutions increased once again last year.
The statistics show that the conviction rate for rape prosecutions has continued to rise to the highest on record, from 58% in 2007/08 to 63% in 2012/13. CPS recorded data on rape prosecutions includes all cases initially charged and flagged as rape, including those cases where a conviction was obtained for alternative sexual offences or serious offences of homicide or offences against the person.
Ah, but have you noticed the caveat in paragraph 2?
In the parallel universe that bureaucrats inhabit a ‘rape conviction’ is not actually a conviction for rape, it includes any conviction is a case that was initially charged and flagged as a rape, even if the actual rape charge was dropped before the case reached court or the defendant was acquitted of rape but convicted on a lesser offence.
In short, however good the overall conviction rate in these case might now look on paper, the claim that rape convictions have hit an all-time high is bullshit, a point that I made back in March 2012 when they tried the same bullshit arguments.
I’ve pulled together this [hopefully] handy infographic which lays out the truth about rape – from the British Crime Survey estimates for annual prevalence of rape and other serious sexual offences, to the CPS’s own audited figures for outcomes (for cases initiated in 2009).
Starting from a annual baseline of 85,000 completed or attempted serious sexual offences against adult women in England and Wales, plus around 10,500 rapes in which the victim was a female child (i.e. under 16), the criminal justice system delivered just 802 actual rape convictions.
I.e. where a defendant was actually convicted of rape and not a lesser offence, of which over half (415) came by way of a guilty plea and just over half were for offences against children.
In short, in that audited data, less than 400 actual convictions for rape related to offences in which the female victim was aged 16 or over.
Full file here (large 6mb PDF).
Copyright notionally creative commons non-commercial licence, but I can also waive that if the poster’s being used for fund-raising purposes by a non-profit organisation.
Why is the government intent on breaking up these families?
Last month, The Telegraph enthusiastically publicised a new bid to ‘tackle the growing number of offenders using the “right to family life” laws to avoid deportation.’
Theresa May has now promised to introduce legislation to achieve the same end.
However, a report published last week by my organisation, Bail for Immigration Detainees, shows that the separation of families by immigration control can have extremely serious consequences for children’s welfare, and that single parents can be separated from their children after committing a relatively minor offence, or no offence at all.
We looked at the cases of 111 parents who were separated from 200 children. Many, but by no means all, of these parents had committed offences and served sentences. Parents were held in immigration detention without time limit, for an average of 270 days, and in some cases for over two years. The decision to detain them was not made by a judge, but by an immigration officer. In 92 out of 111 cases, parents were eventually released, their detention having served no purpose. 15 parents were removed or deported without their children.
Children were left without their detained or deported parent, sometimes in frankly appalling situations. In 85 out of 200 cases, children didn’t have another parent to take care of them and were in care. Many of the children in the study were born and grew up in the UK, and were British Citizens.
One girl was seven when her mother was detained for 173 days. One of her foster carers said:
At times Hana would sit by herself and break down and cry.
When you asked her what is the matter, she say “when is my Mum coming I want to go home with her.”
In one case, the Home Office deported a single father leaving his nine and 12 year old sons with his ex-girlfriend. They did not do anything to find out if the children’s care arrangement was safe.
12 of the 15 parents in this study who were removed or deported without their children had been convicted of non-violent offences including possessing false documents, and one parent was not convicted of any offence. In some cases, where parents did not have the right to work or claim benefits, they committed offences to buy food for themselves and their children.
It is difficult to imagine any other situation where children in the UK could be separated from their parent and have such scant attention paid to their welfare.
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Sarah Campbell is Research and Policy Manager at Bail for Immigration Detainees
How the Conservatives are trying to wreck the Defamation Bill
One of key reasons for the introduction of the Defamation Bill was to protect journalists and small publication from being harried by large corporations.
The problem with defamation law has been particularly stark in relation to scientific articles.
We have seen numerous cases – Simon Singh and Ben Goldacre to name just two – where science writers have been sued for libel relating to articles that are patently part of the scientific debate.
To tackle this Labour moved amendments to tackle this problem in the House of Commons. These amendments were sadly defeated by the government.
Happily these amendments were re-tabled when the Bill made its way to the House of Lords and were passed with Cross-bench support.
These amendments will raise the bar for corporations to bring a claim of defamation. This is entirely right because, contrary to what Mitt Romney may have said, corporations are not people.
Too often libel law is used by corporations as a way to suppress negative publicity – this must change.
Unfortunately the battle is yet to be won. Edward Garnier, the former Tory Solicitor General, has now tabled amendments that would remove these amendments from the Bill.
D-Day will be on Tuesday when the Bill returns to the House of Commons to discuss the amendments made by Peers.
Garnier’s amendment must be defeated if this Bill is to do what it was intended to.
From next week Social Benefit Lawyers will speak no more. But they matter to our society
What is a housing lawyer? Or what is a social welfare lawyer?
Answer: we are people who represent and come to court for people with very little money. We are paid for mostly by the tax-payer. Why should the tax-payer give a damn?
We are the people who work for charities like Law Centres or CAB’s. We are also those working in private firms set up on a for profit basis, staffed by underpaid and idealistic individuals, with a thirst for social justice. It is an honourable calling.
We speak for the battered wife, the cancer victim, the abused child. We speak for the tenant who has had her papers ripped up in front of her face, and who has been put onto the street because her landlord is too lazy or ignorant to take his case to court to obtain a valid eviction order.
We speak for the student who is qualifying as a teacher when her husband deserts her with 2 kids, and leaves her with rent responsibilities she can’t meet.
We speak for the soldier who has been mutilated by war, and fight the letters that would take his benefits away. We fight the veterans’ rights no matter which side they fought for, on disability grounds.
We speak for disabled adults under 35 years of age who are racked by the room rent that slashes their Housing Benefit. It is expected these “young” people will share accommodation with each other, but there are too few flats to share.
We speak for the homeless people. The family skewered by the benefit changes, the war veteran sleeping on the streets for six months, the children who live for years in cramped emergency hostels with no room to breathe
We speak.
Yet on 1st April 2013, we will speak no more.
The clumsy Legal Aid Sentencing and Punishment of Offenders Act will cut off Legal Aid and will seal our mouths with lead. Legal Aid cuts will shut our mouths, and silence the voices of the marginalised among us.
We speak for the London that matters. We do not speak for millionaires with their high falluting tax schemes and their high paid lawyers and accountants.
I speak for the living and vibrant Borough of Hackney, thus London, thus the world.
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Nathaniel blogs more regularly at Frontline Hackney
Why it’s too early to panic about how the Royal Charter will affect blogging
by Paul Bernal
One of the immediate reactions to the last minute deal over the implementation of the Leveson recommendations was that it would hit bloggers and tweeters very hard. I’m not sure that’s really true.
However, it will be quite some time before everything becomes clear, partly because the Royal Charter itself needs careful and detailed analysis and partly because it’s not just the Charter itself that matters, but the documents and guidelines that follow.
The Royal Charter is only part of the story. It sets out terms for a ‘recognition panel’ that ‘recognises’ regulators – it doesn’t set up the regulators themselves. As Cameron and others have been at pains to point out, the idea is that the ‘press’ sets up the regulator(s) itself.
We have yet to see what form any regulator the press sets up will take. It has to be good enough for the recognition panel to accept – that’s the key…
So what about bloggers?
Attention has been focused on Schedule 4 of the Royal Charter (which can be found here), which sets out two definitions:
“relevant publisher” means a person (other than a broadcaster) who publishes in the United Kingdom:
i. a newspaper or magazine containing news-related material, or
ii. a website containing news-related material (whether or not related to a newspaper or magazine);”
“news-related material” means:
i. news or information about current affairs;
ii. opinion about matters relating to the news or current affairs; or
iii. gossip about celebrities, other public figures or other persons in the news.”
This seems to have caused many people to panic – but you need to look a little further: in particular, what does it mean to say that I’m a ‘relevant publisher’?
On a quick review of the Royal Charter, all it appears to mean at present is whether I would be eligible to part of the ‘recognition’ panel, or employed by that recognition panel – part of the rules intended to keep the recognition panel independent of the press, one of the key parts of the Leveson recommendations.
We need to see more – the real details of how this will work have yet to emerge beyond the initial Royal Charter Draft. The fact that the definitions are there doesn’t mean much – though it could be a pointer as to the direction that the new regulatory regime is headed.
It may indeed be that the new scheme is intended to ‘regulate the web’ but it doesn’t do so yet.
What’s the difference between a newspaper’s website and a blog?
That’s the big question that has yet to be answered. There’s a clear difference between the Guardian Online and my little blog – but where do Conservative Home, Liberal Conspiracy and Guido’s Order Order fit into the spectrum? There were even rumours last year that the Guardian was going to abandon its ‘real’ paper and focus only on its online version. If they turn true, should the Guardian Online have been regulated as though it were a newspaper?
If the press is to be regulated at all – and the consensus between the political parties that lay behind yesterday’s deal suggests that non-regulation is not an option – then online newspapers that are effectively the same as ‘paper’ newspapers should have to be regulated too. Small blogs shouldn’t – and Cameron and others have been quick to say that social media won’t be covered, though quite how they bring that into action has yet to be seen. The difficulty lies in the greyer areas, and that’s where we have to be vigilant – the devil will be in the detail.
What about those huge fines?
The Charter actually says the body should have “…the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000)…”
Appropriate and proportionate sanctions for a non-profit blogger would therefore be likely to be qualitative – remedies like proper and prominent apologies come to mind. The fining capability – the £1,000,000 that has made its way into press headlines – may mean something to big newspapers, but it’s effectively irrelevant to bloggers. We don’t have ‘turnovers’ of any significance – and big fines would (in general) be inappropriate and disproportionate.
…and anyway, blogs are already subject to the law
This is a key point that many seem to miss. This regulatory framework isn’t acting in a vacuum. Bloggers and tweeters are already subject to the law – to defamation law, to privacy law, to copyright law, to public order law, to laws concerning hate speech, to obscenity law. This framework would do nothing to change that. Those laws are complex and variably effective – and variably enforced.
Personally that’s what I’d be concerned about, much more than Leveson. The illiberality of the use of public order and related law on tweeters and bloggers is something that, for me, is far more dangerous a trend than anything this Royal Charter could bring about.
Personally, I wonder whether those who are against the regulation for their own reasons are just trying to scare bloggers and tweeters, and enlist them on their side. Not me. Not yet.
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A longer version of this piece is here.
Paul Bernal is a lecturer in IT, IP and Media Law at UEA.
The Secret Courts Bill is now even more of a threat to British justice
The Government’s plans for secret courts yesterday finished the latest stage in their process through Parliament in an even more dangerous form than before.
Ministers successfully used committee stage to strip out the – already somewhat feeble – safeguards which had been inserted into the Bill by the House of Lords.
What is left is a piece of legislation which gives the government more freedom than ever before to put itself above the law, excluding its opponents from the courtroom altogether by claiming ‘national security’ is involved.
What seems to have often been forgotten in the debate surrounding this Bill is its origins in our own government’s complicity in torture and rendition.
These are not mere allegations. Just under three years ago, one of the most senior judges in the country was warning that MI5 had a “dubious record” on human rights and torture and “an interest in the suppression” of information about the mistreatment of detainees in the so-called War on Terror.
Lord Neuberger, who made these comments then, is now head of the UK Supreme Court. More recently, in a speech coinciding with the passage of the secret courts bill through the Lords, he emphasised that “our commitment to open justice…underpins the rule of law,” and warned that judgements in which reasons are not given – a situation which would result from secret courts – “are certainly not justice at all.”
Yet it seems Lord Neuberger’s comments both then and now have either been ignored or forgotten by those in Westminster who support the Secret Courts Bill.
Rather than a real attempt to get to the bottom of our own agencies’ involvement in some of the worse human rights abuses in the ‘War on Terror’ – such as the torture of Gaddafi opponents and the kidnapping and ‘rendition’ of their wives and young children – the Government has brought forward a Bill to help ensure such abuses are unlikely to see the light of day in future.
The Inquiry the Government set up to look into these matters was so toothless and lacking in independence that it had to be shelved due to a lack of support.
Parliament – including the Intelligence and Security Committee – has had the wool pulled over its eyes on rendition and torture before, and there is no reason to assume the future will be any different. This is why accountability of Government through the courts is so indispensable.
Yet with a system weighted in the Government’s favour, where anyone opposing the state will never hear the evidence used against them, this will become near impossible.
This is what will happen if proposals for secret courts make it through the Commons. Ken Clarke and James Brokenshire, the ministers responsible, have shown that they have no interest in compromise by their successful wrecking of the Lords amendments at committee stage.
The only way forward for any MP interested in preserving the rule of law and Britain’s reputation for a fair system of justice is therefore to vote to remove secret courts – or ‘Closed Material Procedures’ – from the Bill altogether.
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Donald Campbell is the Communications Officer at Reprieve.
UK’s libel laws mean this book on Scientology won’t be published here
Here’s a perfect example of the libel laws preventing literature and public interest debate: Pulitzer Prize-winner Lawrence Wright’s book Going Clear will not be published in the UK. His British publiser Transworld have said that some of the content was “not robust enough for the UK market.”
This is not a euphemism for saying the book is fabricated. It means that although the author is confident of what he has written, neither he nor his publishers can afford the time or the money to defend the claims against the (famously litigious) Church of Scientology.
I spoke to the Guardian about Transworld’s decision:
“It’s a classic example of the chill that is cast over free speech by these laws, where people choose to self-censor,” says Robert Sharp, head of campaigns and communications at the human rights organisation English PEN. “Something like religion is in the public interest. We should be allowed to scrutinise and criticise it. The cover-up of abuses by the Catholic church is a prime example of what happens when you don’t.”
The House of Lords are debating the Defamation Bill today. The hope is that reforms would firm up definitions of comment, raise the ‘harm’ threshold before a case is brought, and deliver a better ‘public interest’ defence.
Once the Bill is enacted, it should be possible for a book like Going Clear to be published in Britain. One might say that if a book like this is still subjected to this kind of self-censorship, then it cannot be said that the libel laws have been truly ‘reformed’.
Elsewhere, BBC Journalist John Sweeney has written about Scientology. His book, the Church of Fear, was not picked up by the major publishers.
The cult-like practices of the Church of Scientology are outlined in this 1984 High Court custody judgement.
Could the privatisation of probation services bring down Chris Grayling?
If you thought the government’s Monday’s mid-term review was pointless and self-indulgent, yesterday’s “audit” was effectively a re-hash of the review except with a little more often completely irrelevant detail.
For a start it doesn’t keep a tally of which pledges have broken, as this would apparently have been “too simplistic“; translated that means would have given hacks an easy negative headline. The Telegraph claimed 70 pledges hadn’t been kept, while Andrew Sparrow has calculated it at around 33.
Either way it’s meaningless as there is again no mention of the double-dip recession or the lack of growth, while it brushes over the failure to meet the “supplementary element” of the fiscal mandate, that debt as a proportion of GDP should be falling by 2015-16.
More to the point is that pledges are worthless when they’re pledges to introduce bad policy, something the coalition has done to abundance.
Much the same can be said of the announcement from Chris Grayling on the privatisation of the probation service.
Anyone who isn’t Grayling looking at the problems this is bound to throw up would think a major pilot scheme would be in order, not least because of the failures both of the Pathways to Work scheme under Labour and Grayling’s own Work programme, neither of which bode well for the success of further payment by results schemes.
Not for Grayling though. There are times when you simply have to do something, and this apparently is one of those. It’s certainly true that re-offending rates are far too high, yet there isn’t the slightest indication that private firms will be any better at stopping those out after serving a short sentence from re-offending than the state is currently.
Indeed, that the probation service will continue to look after the most serious and high risk offenders is hardly a vote of confidence in the capabilities of those that will shortly be submitting bids, and you can guarantee it’ll be the same old companies that have cocked it up so marvellously in the past: G4S, Serco and Capita will almost certainly be first in the queue.
As Harry Fletcher argues, it’s difficult not to see this both as purely ideological and to cut costs to the bone. If it wasn’t the former, then Grayling would have expanded the pilot scheme; if it isn’t the latter, then there’s no reason whatsoever why the probation service can’t also take control of the new requirement to monitor those out after serving less than 12 months.
Regardless of the motive, the responsibility will still lie with the secretary of state, and anything with the potential to bring Grayling down can’t be all bad.
I had to acquire a gun to protect myself
by Paramjot Kaur Gill
“Beauty is power, the same way money is power, the same way a gun is also power,” said Chuck Palahunik in his book Invisible Monsters. I never believed it until I made an effort to join NCC – the National Cadet Corps in India when I lived there. I was fifteen years old.
My main aim was self-defence. I never imagined myself being a part of the army until I saw some of my school friends being targets of abuse and even rape. No woman wants a life like that.
It didn’t matter if some people thought women were not strong enough to take up guns, the camp commandant didn’t stand for any of it. “If a man can pick up a gun to protect his country, so can a woman,” he used to tell us.
This week it was reported in the Guardian that hundreds of women in Delhi have applied for gun licences, reflecting the widespread feeling of insecurity.
Abhijeet Singh of Guns For India told the newspaper: “Lots of women have been contacting us asking for information about how to obtain licences. Any woman has a threat against her. It’s not surprising. There are fearless predators out there.”
This is true – there are a lot of predators there. But the rise in gun use will not overcome a larger problem. When we hear of ‘defensive gun use’, we are invited to think of a law-abiding citizen confronting a criminal aggressor. Yet crime does not always present itself so neatly. The vast majority of rapes and assaults on women are from an acquaintance or someone they know closely.
Delhi police sources told the The Times of India that hundreds had turned up at their office demanding guns. “We had to patiently tell them that one needs to have a clear danger to one’s life to be given a licence. However, some of the parents were not happy with our replies. They said that with even public transport no longer safe in the city, they just cannot take chances. When we told them this could not be reason enough, we were told to give in writing that their daughters were indeed safe on Delhi’s roads.”
Of course, we didn’t feel safe at all. The Indian police exists only in name, not action. They make women feel more uncomfortable and unsafe if anyone reported an assault or even rape. They treat women as a piece of meat and are perhaps the most unreliable people on earth. They tell women to wear ‘appropriate’ dresses so that men do not rape us.
I felt like I needed to take my safety in my own hands. My first rifle was a 3 knot 3 rifle and the second an automatic Mauser pistol. I felt safe when I carried it along with me. I recommended it to other women too – telling them to learn how to shoot. I told them to carry it with them at all times — even in the house.
I never used the gun, and the one time I felt the need it was not with me. I understand that the focus should be on telling men to stop attacking women, but in the meantime I would still ask any woman in India, “If someone was about to rape you, would you not want to have a gun to protect yourself?”
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Paramjot Kaur Gill is a journalism student at Kingston University.
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