The Weekly Round-Up: Women and the Police

4 October 2021 by Calla Randall

In the news:

The relationship between women’s rights and the police has been at the forefront of the news again this week, with shocking new revelations in the Sarah Everard case increasing concerns about institutional sexism in the police force, in addition to a scathing judgement from the Investigatory Powers Tribunal (IPT) condemning the sexual relationship carried out by a male undercover police officer as a human rights abuse.

Further details about the tactics used by the police officer Wayne Couzens to kidnap Sarah Everard before her rape and murder were released earlier this week after being presented in court. Couzens used his Metropolitan police-issued warrant card to convince Everard that she was being legitimately arrested for breaching Covid regulations. The new information has heightened debates about whether the Met has an internal culture which tolerates sexism, misogyny, and abuse, with many female police officers reporting inappropriate behaviour and sexual assaults. Towards the end of the week, it was revealed that two officers in a WhatsApp group with Couzens, which allegedly swapped misogynistic, racist, and homophobic messages, remain on duty. Furthermore, the Metropolitan Police’s response to Couzens’ sentencing hearing has been seen by many as completely inadequate, with Commissioner Cressida Dick suggesting that women approached by a plain clothes police officer should consider, inter alia, ‘waving a bus down’ to avoid kidnap. The Met has recently unveiled an action plan to restore trust, but campaigners argue that it is more concerned with changing women’s behaviour than addressing the underlying culture that enables misogynistic behaviour to thrive.

The police were also severely criticised in an IPT judgement handed down last week for violating the human rights of a woman, Kate Wilson, who was tricked into a relationship with undercover police officer Mark Kennedy. Kennedy is thought to have exploited his relationships with Wilson and numerous other women to ingratiate himself with the political organisations he infiltrated. The report found that Wilson’s treatment contravened five rights protected by the European Convention on Human Rights (ECHR): freedom from inhuman or degrading treatment (Art.3); respect for private and family life (Art.8); freedom of expression (Art.10); freedom of assembly and association (Art.11); and the right for convention rights to be applied without discrimination, in this case on the ground of sex (Art.14). The IPT asserted that the senior officers were either ‘… quite extraordinarily naïve, totally unquestioning, or chose to turn a blind eye’. While numerous women have brought civil suits against undercover officers who employed similar tactics, Wilson is the first to bring a claim to the IPT. The Met issued a statement responding to the judgement, accepting and apologising for the ‘damage caused’.

In other news:

• Lawyers, campaigners, and parliamentarians have grouped together to publish the Cooper Report, which makes recommendations about how the law should change to ban ‘conversion therapy’ targeted at LGBTQ+ people. This practice, which seeks to suppress, change, or ‘cure’ those with a non-heterosexual component to their sexuality, has been widely acknowledged to cause significant psychological trauma, and, in some cases, has amounted to torture; Helena Kennedy QC has characterised it as an attack on human rights. The report suggests a dual approach, utilising both criminal and civil law to ensure that the practice is criminalised, while also offering victims immediate support, for example, in the form of protection orders.
• The International Criminal Court’s new prosecutor, Karim Khan, has asked the court to reopen an inquiry into alleged crimes against humanity committed by the Taliban and (so-called) Islamic State in Afghanistan from 2003. Khan stated in his submission that ‘… odious and criminal acts should stop immediately and investigations commence to vindicate the principles that were established 75 years ago at Nuremberg and to honour humanity’s basic responsibility to itself’. The suicide bombing at Kabul airport is likely to be among the crimes investigated. However, Khan has also come under criticism for planning to de-prioritise investigations into crimes committed by the US and Afgan army, which he sought to justify by pointing out that these crimes were not ongoing.

In the courts:

Pitcher v The University of Oxford & Anor (Age Discrimination – Unfair Dismissal) [2021] UKEAT 2019-000638: The Employment Appeal Tribunal (EAT) upheld the decisions of the Employment Tribunal (ET) in two conjoined appeals, both concerning whether the same employer’s ‘Employer Justified Retirement Age’ (EJRA) resulted in unfair dismissal and age discrimination. While dismissal on the basis of age is in breach of s.13(1) of the Equality Act 2010, this can be justified if it is a proportionate means of pursuing a legitimate aim (s.13(2)). Oxford University and St John’s College implemented an EJRA, which required employees to retire at the age of 67, and applied to both employees in the appeals. The first Claimant was Professor Pitcher, who had applied for an extension to work beyond St John’s EJRA, but was denied, and so brought a claim for unfair dismissal and age discrimination to the ET, which was unsuccessful. In this appeal, the court maintained that the EJRA was proportionate to the legitimate aims pursued: promoting inter-generational fairness by creating opportunities for younger employees, succession planning, and promoting diversity (as younger employees were more likely to be diverse). In contrast, the Claimant in the second appeal was the employer, the University of Oxford, who sought to quash a decision in the ET that the EJRA did lead to unfair dismissal and direct discrimination of the Respondent, Professor Ewart. In this case, the ET, held up by the EAT in this appeal, found that the same legitimate aims as cited in Professor Pitcher’s case did in fact lead to discrimination, noting in particular that the number of vacancies created by the EJRA was trivial (2-4%). The EAT stressed that both decisions were within the range of reasonable responses, and thus the previous courts had not erred in law; it was perfectly correct for two different decisions to be reached by the ET in very similar cases, as both had reached fair conclusions based on the facts presented.

Javadov & Anor, R (On the Application Of) v Westminster Magistrates’ Court [2021] EWHC 2393: The Divisional Court held that a public hearing considering applications for Account Freezing Orders (AFO) under s.5 of the Proceeds of Crime Act was reasonable, and did not violate the Claimants’ Art.8 right to respect for private and family life. The Claimants had been granted permission to proceed with judicial review importantly to determine whether it was possible for a Magistrates Court to sit in private for an AFO hearing without notice, which was not clear because POCA and the Magistrates Court Rules 2017 do not address the issue. The court found that it is permissible, and, indeed, will often be appropriate for an application for an AFO without notice to be held in private. However, the presumption is still that court proceedings be held in public, and so the applicant will have to persuade the court that their Art.8 rights are sufficiently serious as to outweigh the general Art.10 right protecting the freedom of the press to report on public court hearings. The Claimants were unsuccessful in satisfying this test. The Claimants also argued that if a private hearing was possible, the previous judge had either mistakenly assumed their consent to a public hearing, or was Wednesbury unreasonable in failing to order a private hearing, submissions which were not accepted by the court.

On the UKHRB:

• Rosalind English considers the case of Thaler v Comptroller General of Patents Trade Marks and Designs [2021] EWCA Civ 1374, in which the Court of Appeal considered whether AI can be an ‘inventor’ for the purposes of patent law.