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The judgment in Forstater v CDG Europe UKEAT/0105/20/JOJhas forced the courts yet again to grapple with the transgender debate. We have already seen the judiciary face up to the challenging issues of whether children with gender dysphoria can consent to receiving puberty blockers (see recent decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363). In the present case, the issue was whether the Claimant’s belief that biological sex is real, important, immutable, and not to be conflated with gender identity was a “philosophical belief” within the meaning of section 10 of Equality Act 2010 (“EqA”).
Background
The claim arose from the Claimant’s statements on Twitter, which manifested her beliefs on the immutability of sex. Her colleagues found these offensive and complained. Her consultancy contract was not renewed, and she brought proceedings before the Central London Tribunal on the basis that she had been discriminated against because of her belief that sex, rather than gender, is fundamentally important and that there are no circumstances in which a trans woman is a woman or a trans man is a man. At a preliminary hearing, the Judge held that the Claimant’s belief was not a “philosophical belief” within the meaning of section 10 EqA.
This week saw the Government’s controversial Police, Crime, Sentencing and Courts Bill undergo its second reading in the House of Lords. The proposed legislation, which would broaden police powers, enable the extraction of more information from mobile phones and impose harsher sentences for assaults on emergency workers, has drawn strong criticism for its predicted discriminatory impact.
Two provisions have attracted particular concern. First, the introduction of Serious Violence Reduction Orders (SVROs), which would authorise the police to stop and search people on account of their previous offending history without requiring ‘reasonable grounds’ to do so. Such discretionary powers are predicted to have a disproportionate effect on black people, given that police figures demonstrate they are already nine times more likely to be stopped and searched than white people. In an open letter published on Monday, criminal justice organisation Liberty said that the law ‘effectively creates an individualised, suspicionless stop and search power, entirely untethered to a specific and objectively verifiable threat’ and risks ‘compound[ing] discrimination’.
These are the words that Hayden J, Vice President of the Court of Protection, used to describe AH, the applicant in this case. The Official Solicitor identified it as “the most troubling and tragic of cases of this kind” with which she has been involved.
This case is the most recent and cogent in the consideration of best interests under the Mental Capacity Act in terms of continuing life-saving treatment. The “best interests” test is laid out in Aintree University Hospital NHS Trust v James [2013] UKSC 67.
AH’s family was originally from Pakistan. She and her family moved to Uganda but they were expelled, as South Asian residents, under the Idi Amin regime, in the early 1970’s. AH’s medical history showed signs of non-specific arthralgia, raised calcium levels and Type 2 diabetes. She had been diagnosed with carpal tunnel syndrome. She did not smoke, nor did she drink alcohol.
In early January 2020 she suffered a high fever which her doctors identified symptomatic and not causative of the cytokine/autoimmune ‘storm’ which created the “devastating” neurological damage and the pathological processes she has suffered from since. Both her treating doctors had seen similar cytokine ‘storms’ in patients critically ill with Covid-19 although neither has seen damage as extensive as that sustained by the applicant. All agreed that it was in consequence of this ‘storm’ that there had been such “extensive damage” to the nerves and to the muscle as well as to the brain.
Incels metaphorically ‘take the black pill’ (a reference to the film The Matrix) when they believe they are no longer capable of change
In the news:
Hundreds of people attended the funeral services for Sophie and Lee Martyn on Monday, killed last month by Jake Davison, who was active on ‘incel’ or ‘involuntary celibate’ forums (though not describing himself as one). Over 50 people, including the five gunned down by Davison in Plymouth have now been killed by incels across the Anglophone world, who blame women for their own perceived lack of sexual and social status. Incel ideology has been linked to the far right, with obsessions over male appearance and phrenology. Biological determinism defines their beliefs in their inability to find sexual partners, which, when poured into online melting-pots already occupied by anti-feminists and white supremacists, can enflame similar senses of entitlement and injustice that may consume disaffected and reclusive (generally white) men.
In 2018, Amia Srinivasan posed the question in The London Review of Books:
how to dwell in the ambivalent place where we acknowledge that no one is obligated to desire anyone else, that no one has a right to be desired, but also that who is desired and who isn’t is a political question, a question usually answered by more general patterns of domination and exclusion.
This post is the second part of two posts on the draft Online Safety Bill. In my first post, here, I detailed the mechanics of the proposed bill in detail. This post will summarise some of the civil society responses since the publication of the draft bill, attempting an evaluation of how reasonable those responses are in light of the available information.
Does the bill go too far?
A recent report on freedom of expression online from the House of Lords, ‘Free for All? Freedom of Expression in the Digital Age’ (found here), recommends that the draft bill drops the duty to protect adults from contentious “legal but harmful” content. As detailed in the previous post, “category 1” services would have a duty under the draft bill to identify how their systems could cause adults to come into contact with user-generated content that is legal but nonetheless considered harmful. Further to that duty, they would be required to take steps to proportionately mitigate against the risk of exposure to that harmful content. Given the possibility to adverse impacts on freedom of expression, especially from the potential of overzealous policing of this provision by category 1 services to avoid liability, this has become one of the most controversial elements of the current draft bill.
The House of Lords report recommends that s. 11, implementing the adult safety duty, be dropped from the draft bill. As things stand, there are two ways in which content can be caught by the adult safety duty. Under s.46(2), the relevant secretary of state can designate by regulation certain types of content as “priority content”. Second, under s.46(3 – 5), content for which there is a “material risk” of having “significant adverse physical or psychological impact on an adult of ordinary sensibilities” is also considered “content that is harmful to adults”. Category 1 services must take steps to proportionately mitigate against the likelihood of adults using their service to come into contact with these types of content.
Refugees are airlifted out by British forces. Image: The Guardian
On 15 August, the government of Afghanistan collapsed, President Ashraf Ghani fled and shortly afterwards the Taliban took power. Thousands of the 39 million population have been scrambling to flee the future that now awaits Afghanistan. Countries are working to accommodate Afghan refugees — including the UK, which decided to resettle 20,000 refugees.
What is happening in Afghanistan?
The Afghan government’s rapid collapse came two decades after the U.S. invaded Afghanistan to as part of the ‘War on Terror’ to seek to deny Al-Qaeda a safe base for operations in the country following the 9/11 terrorist attacks and the refusal of the Taliban government to extradite Osama bin Laden. The immediate context is the decision in April of this year by President Biden to withdraw the 3,200 troops U.S. and NATO troops by the twentieth anniversary of the 9/11 attacks. Although Afghan security forces were well funded and equipped, in the event they put up little resistance as Taliban militants seized much of the country as soon as the troops began withdrawing. The Taliban regime that was once toppled in 2001 is now back in power. Moreover, the fall of Kabul came much sooner than expected by U.S. intelligence analysts.
In the relatively quiet period before the courts reopen for Michaelmas term, a suspended sentence handed down by a judge at Leicester Crown Court has attracted relatively loud censure.
Timothy Spencer QC, Leicester’s senior resident judge, sentenced 21-year-old former Leicester student Ben John to two years in prison, suspended for two years. John had been found guilty of a terror offence under Section 58 of the Terrorism Act after downloading almost 70,000 white supremacist documents and bomb-making instructions.
The judge characterised John’s crime as an “act of teenage folly” and instructed him to return to court every four months to be “tested” on classic literature by Dickens, Austen, Shakespeare and Hardy.
The decision has been held up as an example of racial and religious bias in sentencing. A letter to The Guardian dated 2 September described it as “a clear example of how white privilege works at an individual level.” Activist Mariam Khan doubted that “someone convicted of reading Islamist terror material [would be] told to read Pride and Prejudice”.
Campaign group Hope Not Hate has called for the case to be reviewed by the Attorney General’s Office on the basis that the sentence was unduly lenient and may “risk encouraging other young people to access and share terrorist and extremist content.” The law officers have 28 days from sentencing to consider the case and make a decision.
The courts remain closed, but Parliament returned today to a clamour of political problems, starting with Afghanistan, social care and universal credit.
On the UKHRB:
Joanna Curtis comments on a judgement of the European Court of Human Rights concerning the foreseeability of the offence of misconduct in public office in its current form and its compliance with Article 7 and Article 10 ECHR.
Upcoming Events:
At 12pm on 21st September join the Bar Human Rights Committee of England and Wales (BHRC) and the All Party Parliamentary Human Rights Group (PHRG) for a discussion on ‘A Diminishing Democracy? Human Rights and the Rule of Law in India Today.’ Find out about their incredible line-up of speakers and book your ticket here.
On 11th – 12th October join the Annual JUSTICE Human Rights Conference, a highlight of the CPD calendar. Taking place over Zoom, hear from keynote speaker Harold Hongju Koh, Sterling Professor of International Law at Yale Law School, expert speakers debate ‘Covid-19 and Human Rights’ as well as join two breakout sessions on ‘Crime, Housing and Homelessness, Immigration and Asylum (on 11 Oct) and Protest as a Human Right, Family and Child Rights, and Judicial Review (on 12 Oct).
Tickets are £100 for JUSTICE members / £150 for non-members. A recording will be available to attendees after the event. Read the full programme and book your place here.
On 6 July 2021 the European Court of Human Rights (ECtHR) published its judgment in the case of Norman v UK (Application no. 41387/17). The case concerned Mr Robert Norman, an officer at Belmarsh prison, who in 2015 was convicted of misconduct in public office for passing a variety of information to a tabloid journalist in exchange for money. The ECtHR found that, in Mr Norman’s case, the offence itself did not constitute a breach of Article 7 ECHR (no punishment without law): Mr Norman’s conduct was sufficiently serious for it to have been foreseeable that it would constitute a criminal offence. The ECtHR also found that the newspaper’s disclosure of Mr Norman’s activities to the police, and his subsequent prosecution and conviction, did not breach his rights under Article 10 ECtHR (freedom of expression).
A niche question, but an important one for those in the field, particularly as the Northern Ireland Court of Appeal has found that it is not.
The case concerns a coroner’s decision to seek disclosure of an expert report prepared on behalf of the families of two soldiers who were found dead at their barracks. The families resisted disclosure relying on s.17B(2)(a)of the Coroners Act (Northern Ireland) 1959, which provides that a person cannot be compelled to produce a document to a coroner if he or she could not be required to do so in civil proceedings in Northern Ireland. (An equivalent provision for England and Wales is found at para. 2(1)(a) of Schedule 5 of the Coroners and Justice Act 2009.) The expert report, they argued, attracted litigation privilege. The coroner’s case was that as inquests were non-adversarial they were not litigation, and hence no privilege could be asserted.
NICA found for the coroner, with reluctance. Had it had a blank sheet, it would have held that litigation privilege applied. There were good reasons why it should do so, not least as it allowed for a participant in an inquest to take reasonable steps to inform and prepare its position (see the dissenting speech of Lord Nicholls in Re L (a minor) [1997] AC 16). However, the court considered itself bound by the majority in Re L and the authority of Three Rivers District Council and Others v Gov of the Bank of England (No 6) [2005] 1 AC 610 (HL), and in particular the conditions for litigation privilege set out as [102] by Lord Carswell in the latter case:
(a) litigation must be in progress and contemplation;
(b) the communications must be made for the sole or dominant purpose of conducting that litigation; and
(c) litigation must be adversarial, not investigative or inquisitorial.
Although the court found for the coroner on the point before it, the victory was pyrrhic. Morgan LCJ, delivering the judgment of the court, joined the High Court in questioning the wisdom of the coroner’s decision to seek disclosure of the report. The coroner had already instructed his own expert, whose report he had found to be satisfactory; what public interest was there in seeking disclosure of the families’ report in what appears to have been an unprecedented way? The court invited the families to consider an application under s.17A(4)(b) of the 1959 Act, which provides that a person can resist disclosure to the coroner on the basis that it “is not reasonable in all the circumstances to require him to comply with such a notice” (see also para. 1(4)(b) of Schedule 5 of the 2009 Act for England and Wales). The court’s view (obiter) was that, ‘it appeared to us that the balance was highly likely to favour the view that a requirement to disclose the report was not reasonable’ [37].
Lessons
Those involved in the coronial proceedings may wish to take note of this judgment, and in particular the tight definition of litigation privilege. However, properly interested persons should be aware of the alternative basis for resisting disclosure provided by the relevant statutory provisions on reasonableness. Coroners will no doubt read the final paragraphs of the NICA judgment and ask themselves whether seeking disclosure of such reports is really appropriate in the first place.
It should also be noted that where an expert report is prepared for the ‘dominant purpose’ of adversarial litigation, privilege will apply as long as the other two conditions set out in Three Rivers (No. 6) are also met.
There is a further implication of the judgment that is of practical interest. The 2009 Act makes it a criminal offence to ‘suppress or conceal’ a document where it is likely that the coroner ‘may wish to be provided with it’: para. 7(2)(a) and 7(3) of Schedule 6. If an expert report is not covered by litigation privilege, then it is at least possible that a coroner may wish to be provided with it. That being so, is there an obligation on those connected with an inquest to inform the coroner about the existence of such a report, even if they do not wish to rely on it in evidence?
NB The judgment was handed down in June 2020, but has only recently been made available online.
The independent police watchdog has published a report this week claiming Black people and those with mental health problems are more likely to be subject to prolonged Taser use. The report from the Independent Office for Police Conduct reviewed some of the most serious cases of Taser use in the last five years, including 16 deaths. The report suggested that 60% of Taser incidents against Black people lasted for longer than 5 seconds, more than double the 29% of white people subjected to a similar length. The report made 17 recommendations, including a new system of police training on the use of the weapons. Following the report, families of victims killed by the use of a Taser have argued that the police should be banned from using them where it is clear the subject is suffering from a mental health crisis, and suggested that many of the cases of Taser deaths (some of which were sent to the Crown Prosecution Service but never reached court) should be reinvestigated. However, the police rebutted the report’s findings, asserting that they were ‘vague’ and misrepresentative, given that the report looked at only 0.1% of Taser use between 2015-2020, and focused on serious cases which had already been investigated by the Commission. This issue is becoming ever more relevant as a greater number of police officers are issued with Tasers each year.
The UK’s exit from the European Union raises many questions for continuing cross-border arrangements and the legal proceedings that follow. This is no less the case in the area of police and judicial cooperation. The Trade and Cooperation Agreement (TCA) has governed all arrangements since January 2021. Since people accused of crime will continue to travel, what does this mean for an individual’s ability to challenge requests from EU member states to UK authorities? These arguments are well known in the UK: how can we return people to Poland for prosecution of such minor misdemeanours as dessert theft? Should we be returning people to Lithuania given the appalling prison conditions?
Part 3 TCA introduced a new “surrender” arrangement with the EU to replace the European Arrest Warrant (EAW). It also replaced the other measures that in 2014 the UK concluded were necessary for law enforcement when it exercised the Protocol 36 to the Lisbon Treaty option to depart from police and judicial cooperation in criminal matters, and then opted back into 35. Alongside the EAW, these included the European investigation order, supervision order, instrument on transfer of prisoners and various others. These measures resulted from the mutual recognition project that sought to make law enforcement speedier and more effective. Part 3 TCA now provides for cooperation with Europol and Eurojust, operational information exchange and mutual assistance.
On 15 August the Taliban took control of Kabul, following the collapse of the Afghan government and its President Ashraf Ghani fleeing the country. In a news conference, a Taliban spokesman said women would be allowed to work and have rights “within the framework of Islam”. The Taliban also said it wanted women to join its government, but precise laws are as yet undefined and there have been reports of women in some areas being removed from their workplaces and told their jobs will go to men. Since the takeover, however, female presenters have returned to some television channels and “most, though not all, girls’ schools have remained open or are reopening”.
The fall of Kabul came after weeks of rapidly growing Taliban control across the nation, which followed a US-Taliban peace deal in April committing to US and NATO allies, including the UK, fully withdrawing from Afghanistan by 11 September. On 13 August the UK government announced plans to evacuate British Nationals and former British staff eligible for relocation under the Afghan Relocation and Assistance Policy (ARAP). ARAP came into effect on 1 April 2021 as a programme to relocate “current and former local staff in Afghanistan, including interpreters and their immediate families.” Home Secretary Priti Patel said she was “proud to say that the UK is fulfilling its promise to those Afghan interpreters and other locally employed staff”, and that it was “our moral obligation to recognise the risks they have faced…” Defence Secretary Ben Wallace confirmed the government would do its best to evacuate all people eligible but admitted with clear regret that “some people won’t get back”.
For those that that do make it out, their futures are far from certain as the Home Office is reportedly struggling to provide suitable accommodation for refugees. On 18 August a 5-year-old Afghan boy fell from a hotel window, less than a fortnight after arriving in the UK with his family under the ARAP programme. There had reportedly been some concerns about the safety of the hotel windows and the housing group Mears had left the hotel some months ago due to safety concerns.
The claimants in the case were victims of human trafficking with unspent convictions in Lithuania. The Criminal Injuries Compensation Scheme (CICS) provides compensation to victims of crime, apart from where they have unspent criminal convictions (“the exclusionary rule”). The question for the Supreme Court was whether the exclusionary rule breached the claimants’ rights under Articles 4 and 14 of the European Convention on Human Rights. The Court found that the rule did not breach these rights.
Factual background
The CICS is a statutory scheme established by the Secretary of State for Justice which permits compensation to be given to a person “if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence”. But this is subject to the exclusionary rule for a person with an unspent conviction for an offence with a custodial sentence.
The appellants, A and B, were Lithuanian nationals and twin brothers. They were convicted of burglary and theft respectively in 2010 and 2011. They were then trafficked to the United Kingdom in 2013, where they were abused and subjected to labour exploitation. The traffickers were convicted for these criminal offences in January 2016.
On 16 June 2016, the appellants applied for compensation under the CICS. A’s conviction for burglary only became spent in June 2020, while B’s conviction for theft became spent on 11 November 2016. Because at the time of their application to the CICS they both had unspent convictions, they were disqualified from receiving compensation. They brought a claim for judicial review against the Criminal Injuries Compensation Authority (CICA) and the Secretary of State for Justice.
I have posted on the extraordinary goings-on in Thuringen, Germany where two Weimar judges, one family and one administrative, have been subject to searches by the public prosecutor’s office following their respective rulings containing comments critical of the various lockdown and testing measures during the C-19 pandemic. You can find my posts here, here and here.
So it’s something of an irony that, whilst a leading member state of the European Union is going after its judges for rulings of which it disapproves, the European Commission lodges an application for interim measures under Article 279 TFEU and Article 160(2) of the Rules of Procedure, requesting that the European Court of Justice order the Republic of Poland to suspend various Polish laws concerning disciplinary cases against judges. As the ECJ said, when considering the request,
The European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them. In particular, it follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails.
Fine words, indeed. But the aspiration needs some enforcement. On the 15th of July the European Court of Justice (ECJ) ruled that the moves by the Polish government to institute a “Disciplinary Chamber of the Supreme Court” interfered with the guarantees of impartiality and independence of the judiciary, as well as the protection of the judiciary from executive disciplinary action, was in breach of EU law (Case C‑791/19, action for failure to fulfil obligations under Article 258 TFEU).
In Hughes v Rattan [2021] EWHC 2032 (QB), the High Court was asked to answer the following question. Was the owner of a dental practice liable for the dental negligence of a self-employed dentist engaged to work in the practice? The claim arose from NHS care provided by three different associate dentists. The preliminary issue was whether the practice owner was liable by reason of: a) a non-delegable duty of care; or b) vicarious liability. The Court answered: “yes” and “yes”.
(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is a characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(3) The claimant has no control over how the defendant chooses to preform those obligations i.e. whether personally or through employees or through third parties.
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.
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