The Round Up: Lady Hale, Gayle Newland and Ian Paterson’s Sentencing

25 July 2017 by Sarah Ewart

The Law Pod UK podcast for this roundup is available on iTunes – Episode 7

In the news…

The Unduly Lenient Sentence Scheme

Disgraced surgeon Ian Paterson’s sentence has been referred to the Court of Appeal under the Unduly Lenient Sentence Scheme. Paterson was jailed for 15 years in May, having been found guilty of 17 counts of wounding with intent and three of unlawful wounding. The breast surgeon was accused of negligence in performing so-called ‘cleavage-sparing mastectomies’, an unapproved procedure leaving tissue behind for cosmetic reasons and for some women leading to the return of their cancer, and furthermore, of carrying out unnecessary operations where a simple biopsy would have sufficed.

The Unduly Lenient Sentence Scheme was also in the news this week when the Ministry of Justice announced that 19 terror offences would be incorporated, including encouraging terrorism and sharing terrorist propaganda. The Scheme allows anyone to refer a sentence that they feel was lenient to the Attorney-General, who has the power to refer it to the Court of Appeal for reconsideration.

Lady Hale made President of the Supreme Court

It’s been a long time coming, but the judiciary finally has a female President of the Supreme Court. No prizes for guessing who it is, as there has (until now) only ever been one female judge on the Supreme Court in the history of the judiciary. Baroness Hale will be sworn in to take over from Lord Neuberger on the 2^nd of October this year, the same date that three new Justices will join the court. The new appointments are Lord Justice Lloyd Jones, Lord Justice Briggs, and excitingly, Lady Justice Black, who will be only the second ever female judge (after Lady Hale herself) to sit at the Supreme Court.

For Lady Hale, this is perhaps the greatest of a lifetime of feminist firsts: she was the first woman (and the youngest person) to be appointed to the Law Commission in 1984, and twenty years later in 2004 became the first female Lord of Appeal in Ordinary. In 2013 she became the first female Deputy President of the Supreme Court, and now she will be Britain’s most senior judge. Erika Rackley, of the Women’s Legal Landmarks Project (celebrating the centenary of women in the judiciary in the run-up to 2019, marking a hundred years since the Sex Disqualification (Removal) Act 1919 paved the way for women to join the Bar) comments in the Guardian that enthusiasm at Lady Hale’s appointment is not merely because she is a woman, but because she is this woman. Her activism and her visibility are second to none, she has sat on more cases than any other serving or retired justice, and she has long been a voice calling for greater diversity in the judiciary – a challenge which, the recent appointments notwithstanding, still has an extremely long way to go. Though she will sit for only three more years before she retires aged 75, it is likely that she will continue to make her mark.

Like Lady Hale, Lady Justice Black has made a career in family law, and has her own firsts to add to the panel: she will join Lord Hughes as the only non-Oxbridge educated English judge in the Court, both having been educated at Durham. Take a look at Legal Cheek for a background of the three new justices, and the Guardian Editorial for their view on diversity in the judiciary. For a comprehensive timeline on women’s legal firsts, head over to First 100 Years .

In the courts …

Gayle Newland’s Sentencing

Gayle Newland has been jailed for six years after being found guilty of three counts of assault by penetration, by a majority of 11-1.

Background

The case concerned a relationship between two women, beginning online and continuing in the flesh in 2013. Newland met the complainant, X (anonymous), as her alter ego Kye Fortune, as whom she had been masquerading online since she was a teenager. Newland’s defence turned on the fact that X was fully aware of her identity and her gender, and the fact that she was using an alter ego. On Newland’s account, therefore, this was a case of two young women, gay but confused about their sexuality, X keen to keep up the pretence that she was seeing a man. The complainant denies this: she says she thought she was seeing not Gayle but Kye, a person she believed to be a man who had suffered disfiguring surgery and was so anxious about his appearance that X had to wear a blindfold when they met. This leads to perhaps the most fixated-upon detail in the case: when the two met in real life and had sex, X, blindfolded, says she was unable to tell that the man she was having sex with was in fact her friend Gayle, wearing a strap-on. For a full run-down of the facts see here.

Newland was sentenced by HHJ Dutton in Chester Crown Court in November 2015 to eight years in prison, having been convicted of three counts of assault by penetration, contrary to s.2 of the Sexual Offences Act 2003. The judge called her an ‘intelligent, obsessional, highly manipulative, deceitful, scheming and thoroughly determined young woman,’ and noted her history of ‘low self-esteem and blurred gender lines’.

She appealed against conviction and the Court of Appeal found her conviction unsafe on the basis of the trial judge’s summing up. Now, on retrial, she has been convicted again, and sentenced to six years in prison.

Comment

The case raises the convoluted issue of what point deception vitiates consent for the purposes of s.76.2(a) of the 2003 Act, which outlines the conclusive presumption that consent is vitiated when a person intentionally deceived the complainant as to the nature or purpose of the relevant act. Following R v McNally [2013] EWCA Crim 1051, the existence of deception in the present case functions on the basis that the complainant, a heterosexual woman, would not have consented had she not been deceived as to Newland’s gender, but conflicts with other cases in which deception as to HIV status does not vitiate consent. See the UK Criminal Law Blog for a discussion of consent following McNally.

Newland’s conviction joins a handful of similar successful prosecutions in recent years , which have fallen under the heading of ‘gender fraud’ by the CPS. This line of argument (and choice of phrasing) has been condemned by trans rights campaigners who say that it places a requirement for a trans person to disclose their full gender history on entering into sexual activity, for fear that they run the risk of prosecution if they fail to do so.

Government’s Legal Justification for Drone Strikes

This week, Rights Watch UK will challenge the decision of the Information Commissioner’s Office (ICO) to uphold the government’s refusal to release the legal justification for RAF drone strikes in Syria in 2015. The campaign group suggests that drone strikes against British citizens Reyaad Khan and Ruhul Amin resulted in a radical policy change, following a report by Parliament’s Joint Committee on Human Rights. Key questions regarding the legality of the strike itself include whether the threat of an armed attack was ‘imminent or actual’ as per Article 51 of the UN Charter, under which every country has the right of self-defence. But the challenge this week will focus on whether the ICO was right in allowing the government to refuse to respond to the FOI requests by Rights Watch regarding the legal advice from the attorney general, Jeremy Wright QC, on which the government acted. We’ll have more updates on this hearing as it progresses.

Elsewhere On The Blog

David Hart QC writes about the conflict between open justice and a person’s desire to prevent reporting of accusations which surface in open court, following Khuja v Times Newspapers [2017] UKSC 49. See also a write-up of the Brexit Bill and what it says (or doesn’t say) about environmental enforcement.

And don’t forget that UK Human Rights Blog is now running a podcast series, Law Pod UK, where you can hear an in-depth look at the cases that we write about and the week in legal news. Free for download from iTunes. Stay tuned!

By Sarah Jane Ewart