A thread I wrote yesterday following a decision by a Crown Court judge in Woolwich. It may sound like a technical legal issue, but the practical effects for public safety could be devastating.
The original tweet that sparked the thread is here: https://twitter.com/crimelinelaw/status/1290563065684074496?s=21
My thread is here:
It was reported this morning that Lissie Harper, the widow of Pc Andrew Harper, has written to the Prime Minister asking for a retrial of her husband’s killers, who at their trial last week were acquitted of murder and convicted of manslaughter. There is also a petition, signed by over 200,000 people, seeking a similar remedy.
I was not present for the evidence at the trial and so cannot offer any sort of valid opinion on the verdicts, but to try to help put the legal issues into context, below is a short thread looking at what the law offers in situations like this.
I am pleased to host this guest post by The Tartan Con, a leading prison reform blogger.
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The Ministry of Justice issued a press release on the 28th of June announcing the news that they were to build 4 more prisons over the next six years. (To read this wonderful piece of self-promotion click here.)
This is in addition to the two new builds underway at Wellingborough, near Northampton and Glen Parva in Leicestershire. This therefore gives England 6 new prisons within the next 6 years
Let’s cast our minds back to the hazy old days when Liz Truss, who was the then Secretary of State for Justice, announced the building of 4 new prisons. In that release (a copy can be found here) she stated the, then, government’s intention was to build 5000 new spaces which would create 2000 new jobs. More importantly, this announcement was touted as being “new for old.” Meaning that there would be closures of the more Victorian, not fit for purpose, gaols that riddle the prison estate and lovely new ones would take their place. So, new shiny prisons were announced, sites had been identified and, off we go. At least, that’s what I thought.
Local communities were up in arms at having a prison located near them. Because, well, prisoners are awful people and they were sure to scale the 20 feet walls, leap over the barbed wire and pillage the local community, weren’t they? Town Hall meetings were held, placards were made, leaflets distributed and NIMBY’s (not in my back yard’s) sucked their teeth. Eventually, planning applications were withdrawn. Therefore, as is the case with most of the government’s new initiatives, the idea of building more jails was soon to be consigned to the trash can of history.
Some two Justice Secretaries later and bids were to be invited from the private sector for the operating of a new prison to be built on the site of the old HMP Wellingborough. Later this year bids will be invited for the operating of a new prison at the old HMP Glen Parva site. Both of these prisons are being financed with taxpayer money and indeed in 2018 the government announced a ban on prisons being built using private company’s money and that all building would be publicly funded from thereon in. The operating of these two prisons, however, will be carried out by the private sector; with the operator of the first prison being announced in the very near future. Thereafter tenders will be asked from, again, the private sector for Glen Parva. The government has yet to announce whether the next onslaught of warehouses – sorry prisons- will be privately managed or publicly run. I am not going to go into the pros and cons of private versus public; save to say that the government have said that at least ONE out of the four will be publicly run. Kind of gives you an idea of what the government think of our state-run prison service, doesn’t it?
Those of you that know me, know that I am not an abolitionist, I actually see the need for prison. If someone has been found to be such a dangerous a person that they cannot live in our society then democracy says that we must remove that person from it. However, the government’s announcement seems to me to have been issued with some glee; almost as if they’re proud of the fact that the UK incarcerates more people per capita than any other country in Europe, save for Poland.
It is as if they are saying “Look what we are doing, we are building more prisons, this will keep society safe!” I paraphrase of course, the actual release states “Four new prisons are to be built across England over the next six years – boosting efforts to cut crime and kickstart the economy.”
Let’s take a look at that statement, shall we? “Cut crime.” How does building a prison cut crime? It does not. It purely houses people that have committed a crime. What it does allow for us to do; is to jail more people. The government has been rather sneaky here, and I know that must have come as a shock to you, but in the release given by Liz Truss she deliberately mentioned that she would be closing old prisons that are not fit for purpose. Yet Richard Heaton (he of the civil service) admitted on 29thJune this year whilst giving evidence at the Public Accounts Committee, that the government has no intention of closing any prisons, Rather, they plan to increase current estate. I believe he even said, when trying to justify building more prison in order to reduce over-crowding that “We don’t have overcrowding in our prisons, rather we have crowding.” Ladies and Gentlemen, I give you this year’s winner of the Humphrey Appleby award for civil service jargon.
I am comforted, however, that the latest press release from the MOJ informs us that the new prisons will have concrete walls! I kid you not! Here was me thinking that polystyrene blocks would have been more economical. Additionally, thank goodness for their ingenuity of using pipework to deliver the water! The Oxygen thief that wrote this press release needs to find another vocation in life (and perhaps a hug). The bar-less windows are a nice touch, though!
The act of building new prisons stupefies me somewhat. Let’s look at the case of HMP Berwyn; the last prison to be built by the government that opened in 2017. It was heralded to be the “prison of the future”, yet it only holds about 75% of its capacity. It’s that bad that even the workshop provider, that bastion of bailouts, Interserve PLC allegedly tried to get out of the contract and only opened one of the two workshops proposed. This therefore means that a large proportion of the residents have no purposeful activity at all. Rather they languish in their cells watching daytime television, becoming experts on how to buy and sell antiques and how to buy a house at auction and renovate it on a small budget. If this is the “future” it doesn’t bode well for the new prisons, does it?
Building 6 more prisons isn’t an accomplishment of which to be proud. It’s admitting failure on a colossal scale. Prisoners fall into many categories and lumping them into a prison for “x” months and hoping that after “y” months of inane boredom, attendance at courses that are ill-equipped to help, stuffing balloons into plastics bags for 12 hours a week as a job and being locked in a cell for @16 hours a day just isn’t going to make society any safer. These people who are jailed are going to be released one day. Who knows they might even be the NIMBY’s next-door neighbour? Think about that, won’t you? The next time you say, “lock them up and give them bread and water” remember that the serving prisoner today could be your next-door neighbour tomorrow.
Prisons need to be decent, safe, clean places where we place those who have committed such heinous crimes that are so are abhorrent to us that we cannot face them. They must offer to help the person remanded to a term of incarceration that ability to start rebuilding themselves, if they so desire. In my opinion, the only way to cut crime is to get to the root cause of why that person commits the crime in the first place. A person must not be sent to a prison as a place of safety by a magistrate or judge. Prisons must not be used for those souls who are disturbed, addicted to substances or victims of historic abuse; to name but a few real maladies. We must stop sending people to a prison, located in the middle of nowhere and miles from their families, as the first option. The sooner the judiciary realise this, the sooner we can stop building warehouses for society’s forgotten many.
I wish the government well in their expansion plan. I only wish that it would have stuck to its word and that we could have closed some of the Victorian hell holes that blight our countryside today. Those edifices of despair in which we place our fellow citizens for an inordinate amount of time and then turf them back ono the street hoping that they will not reoffend; all the time getting upset with them when they do. But if they continue to try and build themselves of the problems of society as opposed to facing them; I will be there to help pick up the pieces of the fallen few and at least I can visit them in bar-less window lined cells with a good concrete wall!
Thomas Paine once wrote that “when our jails are empty and our streets free of beggars, then can a country be proud of its constitution.” Our jails are full, and our streets filled with those just trying to survive. Not much to be proud of, is there?
I am pleased to host this guest post by Jamie Fletcher and Dr Samuel Walker, who are Lecturers in Law at Bournemouth University.
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The aim of this post is to discuss the increasing prevalence of consensual sexual violence and its relationship with criminal law. It will be shown that acceptance, engagement and growing tolerance of consensual sexual violence is at its highest because BDSM has seeped into popular culture and modified people’s acceptance and use of its practices.[i] This blog will deploy the political science concept of the Overton Window[ii] to explain how this process has occurred. The Overton Window describes how a once socially unacceptable behaviour can over a period of advocacy be moved into plausibility.
The problem that this blog would like to impress upon readers is that whilst the Overton Window has moved, and sexual violence might be conceived as an acceptable part of popular culture, the law and has not followed suit. Rather, the law is governed by a precedent from the early 1990s criminal case R v Brown.[iii] Unlike the new position of the Overton Window, Brown is kink negative[iv] and its ruling means that a large proportion of sexual violence is in fact criminal behaviour. Note this blog post is not making a normative case for or against Brown, rather it aims to highlight to participants in BDSM sexual activity that whilst their behaviour might now be considered socially acceptable, due to the shift in the Overton Window, the law may not agree. Equally, it will show those who support the ruling in Brown that their efforts need to go beyond reforming the law to change public opinion.
Recent public debate has suggested that putting Brown on a statutory footing is needed to address the use of consenting to BDSM activities as a defence in murder cases.[v] This would affirm and entrench the criminalisation of BDSM in legislation exacerbating the divide between the law and public attitudes toward BDSM.[vi] Any reforms to Brown, therefore, need to be debated and resolved in the immediate future. Once statutory entrenchment of Brown occurs English law could be trapped with its consequences for another generation.
It is also important to educate new individuals participating in consensual sex of issues surrounding BDSM and sexual violence and the law. Without this education, there is a risk that either (a) the sex or (b) the violence or (c) both aspects of the sexual activity will lack consent. Consequentially, it is hoped that this blog will also serve as an introduction to some of the legal limits that new practitioners of BDSM and sexual violence must pay attention to.
To support its objectives, this blog will be split into six sections. This section has served to introduce the issues. Section two considers the type of sexual activity this blog is limited to. It is vital to understand that we are only concerned with incidents in which both the sexual activity and BDSM are consented to. Moreover, it is important to understand that this blog is focused on individuals who might be perceived as being outside the traditional BDSM community and have had their sexual palate opened by the increased presence of BDSM and sexual violence in mainstream sexual culture. In section three, the Overton Window will be explained. Building on this, section four will demonstrate how this applies to changing public perception of BDSM and sexual violence. Contrasting this new public perception, section five will explain how the law remains the same as it did in the 1990s. Finally, in section six, potential future issues this may cause will be considered. This paper will not offer many solutions to these issues – that is beyond the scope of this blog. Our aim is to promote discussion of these issues. Additionally, we invite any comments, suggestions, or potential for future collaboration or projects on these issues.
Most blog entries this week have addressed issues juries should consider when hearing cases in which consent has been withheld.[vii] These types of cases can loosely be split into two categories. Firstly, cases in which one person performs a sexual act on another person without the consent of that person. In these cases, an act is deemed criminal since an individual has disregarded the autonomy of another human’s body through an unwanted sexual intrusion.[viii] Quite often with these non-consensual sex acts, violence is used as a means of securing an intrusion. Secondly, there are cases in which two or more people might be engaged in consensual sexual activity, but during, one party, without agreement of all parties, engages in unwanted violence, which then renders the sexual activity non-consensual.[ix] In some circumstances, the use of violence might result in the assaulted party also withdrawing sexual consent.
There exists, however, a third type of case in which the issues of consent, violence and sex mix. These cases are not considered under sexual offences law as consent is always present. In fact, the violence is not only consented to, it actually heightens the enjoyment and pleasure of both parties involved in the sexual activity. Most commonly, this issue arises in sexual activity commonly referred to as bondage, BDSM, or S&M. In these cases, the sexual violence is normally (a) consensual and (b) used to improve the sexual excitement that both parties experience from the sexual behaviour.
At first glance, an individual might question why this might ever be a criminal law issue.[x] People might look at the situation and ask, what business does the law have in what occurs between two consenting adults in the privacy of the bedroom.[xi] Nevertheless, the law does not permit one to consent to certain actions regardless of whether one actually has the mental capacity to do so.[xii] With this in mind, the law chooses where it wishes to set the bar for the level a consenting adult can receive. Exceeding that level of harm will be deemed criminal.
One of the most significant elements of this issue concerns the wider social context in which the law operates – in particular the place of women within a gendered patriarchal society. One of the concerns of those advocating for legislation prohibiting BDSM as a defence in murder cases is the historic denigration of female victims in court. For example, the use of sexual history to draw in notions of loose women, the ‘she asked for it’ narrative and the idea that once women consent to sex they consent to whatever happens during sex. The social attitudes affect how public bodies operate, how women are viewed in court and how they can be portrayed by defence lawyers. In cases where the woman is deceased this can be even more problematic as they cannot speak for themselves. It is this wider context of misogyny that use of BDSM as a defence may be problematic. On the other hand, it would be a denial of individual autonomy to say that individuals cannot or do not consent to BDSM activity. The issue is how to protect those who consent and those who do not – and in the worse case scenario, how to punish those who murder their partners and use sexual autonomy as a defence.
Another issue, which this blog is going to explore is how the popularity of this form of sexual activity has increased, with more and more people incorporating aspects of sexual violence into their sexual activity. Within the traditional kink community and its activists, the topic of consent is widely discussed, educated upon, and respected.[xiii] However, the influx of new participants to sexual violence, through the growth of mainstream tolerance of its practices, means there exists a portion of people who are practicing BDSM and/or sexual violence who have been educated primarily through the popular culture they have consumed.[xiv] And primarily, this comes in the form of American media. In the next three sections, this will be explored in more detail.
The Overton Window, named after political scientist Joseph P. Overton, explains that whether a policy or law is accepted by the public as adoptable is dependent on public discourse and is not fixed.[xv] When the public is exposed to a new potential policy, law, or certain social behaviours, however extreme they might once seem, through habituation in discussion potential adoption will eventually become viewed as acceptable. This is because such discourse naturally widens debate to include all potential policy outcomes that lay between the current mainstream position and the most extreme version of what is being debated.[xvi] The consequence of this is that a policy, law or social behaviour once seemed ‘radical’ or ‘unthinkable’ becomes thinkable, and eventually, acceptable or popular. It has been argued that politicians use the Overton Window as a tactic to achieve their preferred political outcome.
The window moves when those on the fringes of the political spectrum, policy groups, pressure groups and radicals propose policies far outside the Overton Window. As Maza notes:
“the easiest way to move that window was to force people to consider ideas at the extremes, as far away from the window as possible. Because forcing people to consider an unthinkable idea, even if they rejected it, would make all less extreme ideas seem acceptable by comparison — it would move the “window” slowly in that direction.”[xvii]
To visualise this window, Overton proposed that all policy outcomes can be placed on a scale from “more freedom” to “less freedom”. Overton picked these terms to avoid traditional political tags such as “conservative” and “liberal” or “socialist”. Somewhere on this scale rests the ‘Overton Window’, a space occupied by the range of policies and laws that the general public would accept as popular or sensible. Outside the window, however, are “radical” and “unthinkable” policies.
A perfect example of how this works was the 2010-2015 coalition government austerity programme. The government would always announce that ‘unthinkable’ or ‘radical’ cuts to public services were necessary to balance the budget. Shortly after the announcement of these ‘unthinkable’ cuts to public expenditure, the government would swiftly announce that the required level of cuts had been overestimated. These cuts were still damaging and resulted in large scale reform to public expenditure, however, when placed against the previously mooted cuts seemed ‘sensible’.[xviii] Nonetheless, had the figures been released without the original red herring figure, these cuts would have themselves been perceived as ‘radical’or ‘unthinkable’. The red herring cuts, however, moved public discourse and the Overton Window. Another example, the rise of Jeremy Corbyn has moved British politics to the left so that the Conservative party can adopt domestic policies that would, not so long ago, have been the province of the Labour party.[xix]
Applying the Overton Window to the problem of BDSM, it is contended that as the more radical activities that might have been deemed as ‘unthinkable’ or ‘radical’ forms of sexual violence are introduced into public discourse, other less extreme forms of sexual violence become seen as ‘acceptable’ or ‘sensible’ because they are less extreme than the ‘unthinkable’ BDSM relationship. This leads to the normalisation of certain previously condemned activities. Once these less extreme forms of sexual violence embed themselves into our culture, the original extreme BDSM relationship is no longer viewed as ‘radical’ or ‘unthinkable’ and becomes acceptable as a logical conclusion of the now ‘popular’ and ‘policy’ of accepted sexual behaviour. Thus, while BDSM and bondage has been prominent as a gay sub-culture for a longer period of time, and an underground niche within heterosexual culture, it has now entered the heterosexual mainstream.[xx] It is through this process that BDSM has over the past decade become central to our sexual culture and led to inclusion of sexual violence as a normal part of mainstream sexual intercourse.[xxi]
It is extremely important to again emphasis that this blog post is not arguing for or against the inclusion of either BDSM and/or isolated sexual violence in mainstream sexual culture. Rather, this blog post is arguing that BDSM and sexual violence are more central to mainstream sexual culture than they once were, and that, the law does not reflect the fact that BDSM and sexual violence are now current within mainstream sexual culture. In addition to this, the criminal law surrounding this issue is not widely known by these new participants. Participants need to be better informed on how to ensure they are properly gaining consent and what limits the law imposes upon their activities.
Published in 2011, Fifty Shades of Grey,[xxii] an erotic romance novel, which spawned a series of sequel books, and a highly successful movie franchise, has led to changes in the public perception of BDSM relationships. According to a YouGov poll, 94% of British people have heard of the books.[xxiii] In fact, Fifty Shades of Grey dominates the bestselling books list of the 2010s. The first instalment of the trilogy has to date sold over 15.2 million copies worldwide. The book in fourth, the first non-Fifty Shades of Grey book, The Hunger Games[xxiv], sold only 8.7 million books, nearly half the quantity of Fifty Shades of Grey. Drdova and Saxonberg have noted that this has undoubtedly “had a significant influence on the mainstream view of BDSM subculture.” [xxv]
Drdova and Saxonberg highlight how the book has led, at least in part, to BDSM moving from an activity that “has been historically labelled as being deviant” to one that is “on the border of mainstream society”.[xxvi] And they are right to suggest that this transformation goes beyond Fifty Shades of Grey and into many aspects of our culture stating, “the commodified picture of BDSM is omnipresent in today’s western mainstream culture.”[xxvii] One example is the way in which BDSM style sexual relationships are imposed upon male-female sexual relationships in an array of period dramas and fantasy. Most significantly in Game of Thrones, a television adaptation of the books, A Song of Ice and Fire.[xxviii]Whilst these books included sexuality and a mostly traditional patriarchy, it is through the use of BDSM and sexual violence that the television adaptation drives home visually the gender hierarchy. Most evidently we see this in the BDSM style sex games sadistic King Joffrey plays with the prostitutes bought for him as a birthday present.
Proof of BDSM still remaining only “on the border of mainstream culture” is the fact that a YouGov Poll conducted in 2015 shows that only 12% of respondents had in fact participated in BDSM.[xxix] Nonetheless, whilst only this small had participated in BDSM, 71% people did not believe that people should be discouraged from BDSM. If people consented to the BDSM, these people believed it was the choice of the participating individuals to decide whether they should be allowed to participate. The movement of the Overton Window can also be seen when breaking down the responses to this YouGov Poll by age. On all three questions the younger the respondent the more likely they are to view BDSM as acceptable. Conversely, the older the respondent the more likely they are to view BDSM as unthinkable or radical.
The shift of the Overton Window on BDSM and sexual violence, however, is most evident not from how society now views the previously ‘unthinkable’ or ‘radical’ forms of sexual violence such as BDSM, but rather, its increased acceptance of the incorporation of specific acts of sexual violence and how these acts which would have previously been on the borderline of our sexual culture are now considered popular and sensible parts of sexual activity. Evidence of this shift comes in a Savanta:ComRes poll conducted of 18-39 year old women.[xxx] The poll investigated the frequency with which women experienced sexual violence. In line with the YouGov poll in the previous paragraph, the ComRes poll displayed a clear correlation between age and sexual violence.
| Question/Age Group | 18-24 | 24-29 | 30-34 | 35-39 |
| Striking | 62 | 59 | 57 | 55 |
| Choking | 54 | 41 | 32 | 23 |
| Gagging | 46 | 35 | 29 | 25 |
| Spitting | 25 | 22 | 17 | 14 |
| Hair Pulling | 67 | 66 | 63 | 56 |
| Biting | 63 | 61 | 57 | 54 |
The younger the respondent, the more likely they were to have encountered sexual violence. The correlation is present in responses to the following sexual acts; slapping, choking, gagging, spitting, hair-pulling, and biting. Most clear is the changing social attitude to choking, which is arguably the most dangerous in this list. Of those polled aged between 35 and 39, only 23% of women have experienced choking during sexual activity. This increases in the younger age ranges; 32% for 30-34, 41% for 25-29 and 54% for 18-24. Interest in choking as an act of sexual gratification peaked in early 2017, when Daddy Choke Me achieved a 100 score on the google trends search facility, and in fact, has remained above the 25 score since April 2016, having previously peaked at a 7 score in September 2007.[xxxi] A similar story can be seen when searching google trends for Choke Me memes. A meme is normally an image shared on social media to convey a particular message. Included below are several choking memes.
All of these memes normalise choking amongst 18-24 years old and more alarmingly, those who are younger. Similar memes can be located on the internet for other acts of sexual violence, for example, spanking. The fifth meme, in which choking is included on a list of positive relationship attributes is interesting for the way in which it might be perceived to subliminally cause people to consume the notion of choking being a positive sexual act. In fact, it is a fair prediction based on the ComRes data to suggest that the figure of those who have experienced sexual violence like choking will continue to rise.
The law regulating when an individual can consent to harm is outlined in R v Brown[xxxii] and does not reflect the rising tolerant attitudes demonstrated in Section 3. Brown concerned five homosexual men who took part in voluntarily agreed BDSM. It is important to note that the levels of harm caused as a result of these activities ranged from the most minor, battery, to the most severe level of harm, grievous bodily harm. Battery is legally defined as any non-consensual application of harm that does not amount to a level of harm deemed more than transient or trifling. The Crown Prosecution Services, in their charging guidelines state, battery would normally be the charge when injuries consist of scratches, abrasions, minor bruising. Injuries that will be considered more than transient and trifling, and thus amount to actual bodily harm include broken noses, minor fractures while grievous bodily harm covers permanent disability and a fractured skull among other things.
In Brown the House of Lords (now the Supreme Court of the United Kingdom) held that an individual could only consent to battery. In normal circumstances, individuals cannot consent to any harm greater than this. It did, however, establish that if there was a ‘good reason’ for allowing them to, the court could find exceptions to this rule.
In Brown the court declared that BDSM did not constitute a ‘good reason’ and thus was not an exception to the general rule. In his judgment, Lord Templemen explained the reasoning behind this:
“Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”[xxxiii]
In the eyes of the law, therefore, BDSM is a cult of violence. A cult of violence in which legal protection will not be offered to those who willingly engage in violent conduct that amounts to either actual or grievous bodily harm, regardless of the presence of consent. BDSM can be distinguished from a long list of exceptions that the court has found to constitute a good reason; properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, and dangerous exhibitions. On this reading, tying someone up and spanking them would be something someone can consent to provided the level of harm caused fits within the definition of a battery. Choking is more ambiguous. Light choking may fall within the concept of battery but severe choking may be classed as actual or grievous bodily harm.
In R v Wilson[xxxiv] the Court of Appeal applied the ‘good reason’ test to a newly married couple. Mr Wilson had used a knife to brand his initials into his wife’s buttocks and the question was whether a ‘good reason’ per the Brown judgment existed for allowing this behaviour. Russell L.J. decided that a good reason did exist because unlike Brown there was “no aggressive intent… far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment.”[xxxv] The different language used to characterise this conduct can be seen in the following:
[T]he appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery.[xxxvi]
The Court of Appeal in Wilson allowed the appeal and quashed his conviction even though this case came about as the result of the wife seeking medical treatment for her burns, while none of the participants in Brown required medical attention. Thus, we have a case necessitating medical action and another where medical attention was never needed yet the judicial system upheld the conviction of those who had caused less harm and quashed the conviction in an incident involving greater harm. The only reason apparent for the decision in Wilson was the marital status of the couple and the fact that branding was readily equated to tattooing. As Russell LJ put it when delivering the Court of Appeals judgement, ‘Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution’.[xxxvii] He even went so far as to say ‘The so-called victim was the wife of the appellant’ indicating that their Lordships did not consider the wife the subject of an offence at all.[xxxviii]
Here their Lordships used different language to frame the activity as positive – the nature of the relationship between the individuals, the location in which it happened and the motivations of the people involved were all reaffirmed in a loving, affectionate and enduring romantic relationship. Their Lordships could have just as easily used a physical description to frame this event, focusing on burns suffered, the blistering of the skin, the risk of infection and the need for medical treatment. Essentially, the language used could have mirrored that of Brown emphasising the physical risks and suppressing the consensual element of the activity. Even so, based upon the social acceptable of BDSM identified in Part 3, the negative narrative presented in Brown would not evoke negative reactions from people. If this blog is correct, and the Overton Window has shifted, people would view the behaviour in Brown as part of mainstream sexual culture. And even if they do not themselves support or participate in such behaviour, it is within mainstream discourse enough that they do not believe it deserves criminalisation.
In conclusion, whilst bondage or violent acts are not expressly criminal whenever they are part of sexual activity, if they amount to the more than a battery, the law does not allow an individual to consent to such harm being inflicted upon their own body, and consequentially, the inflictor could face criminal prosecution.
This disparity between public opinion and the law raises many issues for debate. Detailed debate of these issues, however, is beyond the scope of this blog. Nevertheless, it is important for us to at least highlight and provide some commentary on these issues to flag them for future discussion.
A major problem with this gap between public perception of BDSM and sexual violence and the law is the role the jury plays within the criminal law process. It is contended that the law is very clear, an individual cannot consent to harm above a battery (unless covered by an exception) but that does not prevent a jury from finding a defendant not guilty. No matter how clearly the law points towards a particular outcome, if the jury disagrees with that outcome they can find in the opposing direction. This type of jury decision is known as a perverse jury. These juries are perverse in the sense they ignore the law and decide based on their own perceptions of justice. It is contended that the reason the defence of consent to BDSM has become more prevalent and successful is not because the law is inadequate, or fails to protect victims of sexual violence, but that jury members view such behaviour as sufficiently normalised to view criminalisation as inappropriate. An example of this was in the case of Stephen Lock.[xxxix] In this case, the law is very clear, the complainant was unable under Brown to offer Stephen Lock her consent to the level of harm he caused, nonetheless, the jury decided Stephen Lock was not guilty. Reinforcing the idea that the Overton Window of acceptable sexual behaviour Herring noted that Lock claimed in his trial to be “inspired” by Fifty Shades of Grey. It is submitted, therefore, that rather than trying to change the law, which is already restrictive enough to find people like Stephen Lock criminal for their behaviour, campaigners need to turn their attention to re-educating the general public about the issue of consent to impact upon how juries approach cases involving BDSM and sexual violence. Without this public education campaign, no substantive changes to Brown will have any impact because juries may simply ignore the law.
There needs to be a public education campaign that engages with those who are experienced members of the kink community and those individuals who have had their sexual palate expanded by the movement of the Overton Window. These people need to be made aware of the fact that law is not as tolerant as public opinion. They need to understand that involvement in BDSM or sexual violence, which amounts to more than a battery, might result in criminal prosecution. People involved in the BDSM community and who enjoy sexual violence will need to know this to (a) ensure consent is properly granted, (b) protect themselves from potential criminal liability, (c) consider whether their desired BDSM or sexual violence fits within the current legal framework and (d) know the current criminal law baselines to more effectively advocate for reform.
Additionally, there has been a lot of public debate around individuals claiming the defence of consent where the submissive partner has died as a result of BDSM or sexual violence. These cases have been labelled ‘consent gone wrong’ cases. The recent death of British Backpacker Grace Millane has led to increased public prominence of this issue. In these cases, debate needs to occur about whether death of a victim during BDSM or sexual violence needs to be treated different than other forms of harm.
While we hold the law allows individuals to consent to some forms of BDSM, a BBC 5 Live poll suggests that just over 50% of women never want sexual violence.[xl] Although this would need to be confirmed through larger more comprehensive studies, it does indicate that only approximately half of women would engage in some form of kink during sex – and then not all the time. The challenge for the law is how to protect both those who genuinely consent to kink and those who do not. This problem is particularly acute in murder cases as the woman cannot speak for herself.
Consent to BDSM is possible but the use of it as a defence in court risks feeding into the ‘she asked for it’ narrative and doubly punishes victims. This is the source of the problem, the social prejudices that affect the interpretation of consent involving female victims. The law could protect the genuine choice to engage in kink but may fail to protect those who are victims of non-consensual BDSM. Unless the law acknowledges this complexity it will both fail to protect the sexual autonomy of genuinely consenting adults and those who refuse consent. This is particularly acute if the law continues to ignore the social context and prejudices that affect how women are or can be portrayed during the legal process.
Through the shifting of the Overton Window, BDSM and sexual violence has become part of mainstream sexual culture. Whilst some might advocate for or against the mainstreaming of BDSM and sexual violence, under our current law, a certain level of BDSM and sexual violence is permissible. Whilst those involved in BDSM through the traditional kink community might be aware of these legal limits, new participants, who gained interest though this shifting of the Overton Window, and who learned BDSM and sexual violence through media such as Fifty Shades of Grey need to be educated on safety, risk and the law, which might effect their new found sexual practices.
[i] D Langdridge and T Butt, A hermeneutic phenomenological investigation of the construction of sadomasochistic identities (2004) 7(1) Sexualities 31-53.
[ii] Joseph Overton, ‘The Overton Window’ (Mackinac Center) <https://www.mackinac.org/OvertonWindow> accessed 6 February 2020.
[iii] R v Brown [1993] UKHL 19, [1994] 1 AC 212.
[iv] P. Murphy, “Flogging live complainants and dead horses: we may no longer need to be in bondage to Brown” [2011] Crim. L.R. 758.
[v] Caroline Lowbridge, ‘Rough sex murder defence: Why campaigners want it banned’ (BBC, 22 January 2020) <https://www.bbc.co.uk/news/uk-england-51151182> accessed 5 February 2020.
[vi] Ibid, Samantha Pegg, “It might just be that shift in culture and they think a jury might believe them, or in fact it might be true. But we can’t stop them doing that.”
[vii] Various Authors, ‘Blogs’ <https://www.starsdorset.org/Blogs/sexual-abuse-and-sexual-violence-awareness-week> accessed 5th February 2020.
[viii] Most of these crimes are contained within the Sexual Offences Act 2003.
[ix] Most of these are either (a) domestic abuse crimes or (b) Non-fatal offences against the person crimes.
[x] There is a philosophical debate around this issue See… William Wilson, Criminal Law (Longman Law Series 6dn 2017) Chapter 2.
[xi] John Stuart Mill, On Liberty, Utilitarianism and Other Essays (Oxford Worlds Classic, 2nd Edn 2015)
[xii] R v BM [2018] EWCA Crim 560
[xiii] L. Drdova and S. Saxonberg, Dilemmas of a subculture: An analysis of BDSM blogs about Fifty Shades of Grey (2019) Sexualities, October 2019, 5-6.
[xiv] Ibid.
[xv] See Note 1.
[xvi] Ibid, “the Overton Window can both shift and expand, either increasing or shrinking the number of ideas politicians can support without unduly risking their electoral support.”
[xvii] Carlos Maza ‘How Trump makes extreme things look normal’ (Vox, 21 December 2017) <https://www.vox.com/2017/12/21/16806676/strikethrough-how-trump-overton-window-extreme-normal> accessed 4 February 2020
[xviii] Similar analysis has been done with regards to Brexit- John Lanchester, ‘Brexit Blues’ (2016) 38 London Review of Books.
[xix] George Eaton ‘How Jeremy Corbyn – and Brexit – have moved British politics to the Left’ (Newstatesmen, June 2018) <https://www.newstatesman.com/politics/uk/2018/06/how-jeremy-corbyn-and-brexit-have-moved-british-politics-left> accessed on February 4 2020.
[xx] Margot Weiss, Mainstreaming Kink: The Politics of BDSM Representation in U.S. Popular Media (2006) 50 Journal of Homosexuality, 103-132.
[xxi] Ibid.
[xxii] E.L. James, Fifty Shades of Grey (Vintage Books 2011).
[xxiii] YouGov, ‘Popularity/Fame’ < https://yougov.co.uk/topics/media/explore/movie/Fifty_Shades_of_Grey-Movie> accessed February 3 2020.
[xxiv] Emily Temple, ‘Best Selling Books’ (Lithub, December 2019) < https://lithub.com/these-are-the-10-best-selling-books-of-the-decade/> accessed February 2 2020.
[xxv] L. Drdova and S. Saxonberg ‘Dilemmas of a subculture: An analysis of BDSM blogs about Fifty Shades of Grey’ Sexualities (2019)
[xxvi] Ibid
[xxvii] Ibid
[xxviii] George R R. Martin, A Game of Thrones (Bantam Spectra 1996)
[xxix] YouGov Poll, ‘BDSM’ <http://cdn.yougov.com/cumulus_uploads/document/h38baes6ei/InternalResults_150209_BDSM_Website.pdf>
[xxx] Savanta:ComRes ‘BBC 5 Live, Women’s Poll – 21st November 2019’ http://www.comresglobal.com
[xxxi] Google Trends.< https://trends.google.com/trends/>
[xxxii] [1994] 1 AC 212
[xxxiii] Ibid, 237
[xxxiv] [1997] QB 47
[xxxv] Ibid 50
[xxxvi] Ibid 50
[xxxvii] Ibid 50
[xxxviii] Ibid 48
[xxxix] https://www.bbc.co.uk/news/uk-england-suffolk-21145816
[xl] Savanta:ComRes ‘BBC 5 Live, Women’s Poll – 21st November 2019’ http://www.comresglobal.com
I am pleased to host this guest post from a pseudonymous contributor, looking at the exams fiasco facing this year’s Bar students.
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The Bar Exams in England and Wales are a funny thing. Ask the older generation and they’ll regale you with stories of their local authority paying for them, spending most of the year being drunk and how they were of little use in real life. Ask anyone who did them in the last 10 years and they will still likely tell you that they were pointless, that they learned nothing, that each lecturer was a ‘A failed Barrister’ and probably that the exams were a walk in the park. It’s perhaps on that basis you’ve seen complaints from candidates who are due to take exams in August and wondered what all the fuss was about.
Covid has undoubtedly changed the world and candidates have not been spared. Institutions have rushed to cobble something together online both to teach and assess. While BPTC providers have assessed candidates on most of the modules that comprise the course, they haven’t been able to offer the criminal litigation, civil litigation and ethics exams because they are run by the BSB.
Hang on, when I took the Bar Exams, the multiple-choice exams were ridiculously easy, I really don’t see what the problem is?
Ok Boomer. Until 2011 the BPTC providers were allowed to set and mark their own exams. Sure, there were External Examiners to make sure that standards were adhered to but as with any exam where you teach candidates and then set the exam there’s always the temptation to shy away from the topics they struggled with or pepper your exam with them depending on where you fall on the John Keating-Miss Trunchbull scale. The Bar Standards Board rode into town as the new Sheriff and decided to do something about it.
Good. Multiple-choice tests are too easy. I mean you can see the answer so you are bound to get it right. It’s not the same as having to search the dark recesses of your mind. Which reminds me, must delete my internet history.
Indeed. It’s why everyone who went on Who Wants to be a Millionaire won a million pounds. The answer was there all along. Multiple-choice questions can be easy if they are poorly written. An essay can be easy if the question is poorly written or the mark scheme offers marks for a scattergun answer, or both.
Right smarty-pants, what were these new exams then?
In 2011 the BSB decided that criminal litigation, civil litigation and professional ethics should be assessed by exams they wrote and provided the mark scheme for. The BPTC providers would not see them in advance but would have to run the exams and mark them to the BSB’s mark scheme. All of the exams were a mix of multiple-choice and short answer questions.
So, the BSB came to the rescue, the exams were better and I can stop reading?
If only. Pass rates came down in the first year at all BPTC providers. In some cases 90% pass rates were down to 50%. Lots of people looked at their shoes and mumbled. The BSB talked about how these were a better test of knowledge and how standards were now being maintained.
Were ‘standards maintained’?
This depends on your view of standards. There was the year where the ethics exam was so ridiculously difficult that the failure rate was about half of those who took the exam. Years where some questions were so fiendishly difficult that papers were scaled by 20% or more. If you so inclined, you can read their exam reports. They are long and tedious.
I’m reading this, I know the feeling.
That was a statement not a question.
Seriously? Right, I believe it was Rizzle Kicks who once said, ‘Let’s skip to the good bit’. Shall we?
Fast forward to 2020 and the exams are now in a settled format. Crime and Civil are just multiple-choice. Ethics is just short answer questions. The BSB use a system where the pass mark is calculated based on the difficulty of the paper so that they don’t have to scale or face the wrath of everyone when the pass rates go up and down like [please insert your own simile for it is too easy inadvertently offend]. Though the exams are set and marked by the BSB, the BPTC providers have to administer them. They have to book venues, invigilate the exams and deliver the papers back to the BSB. For candidates with specific learning needs it was down the BPTC providers to ensure that they provided the right environment, breaks and support.
Right, bung it all online. That’s the solution to everything isn’t it?
Well not exactly. These exams are closed-book. That means they need to be invigilated.
Uh, huh. Closed-book invigilated. I always go for closed-book invigilated. It’s my favourite type of bookvigilation.
Shall I explain?
That’s a good idea. I know what it means but others may not.
For reasons best known to those who design the exams it means that candidates are not allowed to have any materials with them in the exam.
Like a lucky piece of felt? Mine was teal and called Norman.
No, as in no notes or practitioner texts.
What? No White Book? But I take my White Book everywhere. I shower with my White Book. I read it poetry in the garden. For the price I pay it should read me poetry and sing soothing lullabies.
I fear we have veered off the point. Candidates are required to answer legal problems without use of practitioner texts or the code of conduct. You know, like you do on a daily basis.
I do no such thing! The whole point of the practitioner texts is to stop me from ending up in front of the BSB. How then do they expect people to answer questions to show they are up to the task of using a text when they can’t have the text? This is more circular than the Circle Line.
Which is no longer a circle
Not now. I’m not ready for more bad news.
Right, we’ll save that for next time. But that’s the position, the candidates have to answer questions without any notes which means they have to be invigilated by invigilators to ensure that they only use what they’ve manged to temporarily crammed into the mind.
Why not just make the exams open-book then?
An excellent point but despite several reviews of the course the exams remain closed-book. Even when the course changes in September this year, the exams will remain as they are.
When do the exams take place?
There are two sits a year at the moment, April and August. From this year there will be a December sit too.
What did the BSB do in April?
They postponed the exams. I suspect the hope was that by August they could run them as normal.
Why not postpone the August sit too?
It gets complicated. Normally, candidates are required to pass the BPTC in full before they can begin pupillage. For those who have pupillage immediately after the course it means they have to pass in April if they want to start on time. If they don’t pass for whatever reason they have to sit in August and either defer their start or the BSB will let them commence in chambers but not call it pupillage until they receive confirmation that they have passed in November.
They could then let everyone who has pupillage start as normal and then take the exams in December?
They have done exactly that. They are allowing chambers to take pupils as normal on the basis that they would need to sit in December.
What if they fail?
They could take another sit in April but it would mean a break in their pupillage because while you can start pupillage under this special dispensation, you can’t be called to the Bar until you have passed the course. That has not been waived. While you can do your first six under this dispensation, there is no way to start a second six without being called. There’s the added uncertainty of what a pupil who fails would do with any money chambers had paid them by way of an award.
Right, so take the exam in August. That’s the answer but leaves me wondering why I’ve read all of this.
If you take the exam in August you are expected to do so at home on your computer using a system called home proctoring.
Sounds painful. I normally see a Doctor for that procedure.
Home proctoring or home invigilation is where you take your exam on your computer but with your camera and microphone on and feeding to either a recording or an invigilator on a computer elsewhere.
That feels a bit intrusive. What if I don’t want to go through with that?
Nobody is being compelled to do so. If they want to defer their exams to December when it is hoped that they can be held face to face again, they are allowed to do so. Even if they have pupillage as set out above.
Why then, is anyone taking them?
Some want to get them done while the material is fresh in their mind. Some have pupillage at chambers who have said that despite the special dispensation afforded by the BSB, they won’t take a pupil who hasn’t passed this sitting. Others don’t mind being recorded.
I’ve got quite used to working at home. I could take my exams in my jimjams with a blanket around me and a nice cup of tea. I can walk about when I need to seek inspiration. I won’t have to put up with the mouth breathers and snifflers. Oh this sounds great.
Slight problem. You aren’t allowed to get up at any point.
What?
Yes. Not at any point. You can’t get up and move about.
That’s ludicrous.
Isn’t it just.
What about candidates who need a break because of their learning needs?
You can’t have a break. You can’t have Kit Kat. If you step out of view the exam is shut down no matter how much or little you have done.
What about candidates who need the exam printed on coloured paper or in a different font size because of their learning needs, or who are blind or partial sighted?
Computer says no.
Right, well I’m not doing that then. Surely there is an alternative?
Yes, you can go to a test centre and do it there if you are allowed.
That won’t work for everyone
No, quite. Those who can’t leave the house due to Covid don’t have this option.
Students are not a quiet bunch, did they kick up a fuss? Did I tell you about this thing I did during rag week?…
No, but let’s save that for another time. Students wrote a letter to the BSB demanding change and in particular that the exams were open book.
Is that easier than stopping people from getting up to have a pee or for other absolutely legitimate reason?
It would be if the exams were designed that way, but they are not. Open book exams would render most of the questions pointless because you could look up the answer and for whatever reason, the BSB have decided that is not what lawyers do and therefore it’s not a test of being a lawyer.
But that’s all that lawyers do!
I know.
And they go for a pee.
Doesn’t your junior do that for you?
Plus I like wandering around and talking out loud like I’m Quincy
Who?
Surely in a test centre you can move about and go to the bathroom or have a break for learning needs or health reasons.
You’d think that, but up until yesterday the suggestion was that if you needed a break for learning or health reasons, you could only do it at the top of each hour. Not when you needed to. If you have problems which require you to move about, you’d have to wait until it was break time to move.
That’s not how the human body works. I’ve got a book here that explains, let me go and get it.
I’m afraid you aren’t allowed to look at a book, or move.
In summary then, rather than changing the exams to what they should be, a test of what lawyers actually do, they are instead going to be some sort of endurance test of not using the bathroom for 3 hours or moving?
Yes, it’s musical statutes with no music and more Part 36.
Worst. Party. Ever.
Tell me about it. No jelly either.
Following a lot of media coverage of this issue, I wrote a Twitter thread looking at the law behind it. I’ve reproduced it here in case it’s of interest.
Postscript: Unforgivably, I suggested in the thread that R v Brown was a Court of Appeal decision when, as every first-year law student knows, it was a House of Lords judgment (the predecessor to today’s Supreme Court). The link, should you wish to read the gory case in full, is here.
I am pleased to host this guest blogpost by Dr Laura Janes and Andrew Neilson. Dr Laura Lanes is the legal director at the Howard League for Penal Reform and oversees its specialist legal service for children and young adults. Andrew Neilson is the director of campaigns at the Howard League for Penal Reform.
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It is scary to think how quickly we get used to terrible things. Just a few months ago, many of us anxiously watched as the number of people who had died from the Coronavirus approached one hundred, then a thousand. Since March we have become so acclimatised to the new horrific reality that we see less than one hundred deaths a day as comparatively good news.
For several years the Howard League has been concerned about the use of solitary confinement for limited periods of time on individual people in prison.
In 2017 we brought a judicial review on behalf of AB, a child who routinely spent 23 hours a day confined to his cell for 55 days when he was just 15 years old at Feltham prison. The Government conceded much of the claim, as it had failed to comply with its own procedures which are designed to ensure appropriate safeguards are in place given the serious and irreversible risks associated with solitary confinement. Whether what happened to AB was inhuman and degrading will be examined by the Supreme Court next year. Following our case, numerous professional and scrutiny bodies including the BMA, the Royal College of Psychiatrists, the Joint Committee on Human Rights and the Chief Inspector of Prisons expressed grave concerns about the practice of keeping children in solitary confinement in prison, noting it happens too often and for too long.
But what has concerned a relatively small number of prisoners, has now become the new normal.
Some 80,000 men women and children in prison are either in prolonged solitary confinement or in overcrowded conditions. In a single day, 24 March 2020, the prison service went into lockdown and over 80 days on, it remains in that state. Prisons are devoid of purposeful activity and opportunities for people to make amends. The children in prison have had no education, rates of self-harm in women’s prisons have increased and the entire estate has been starved of contact with the outside world. Open prisons no longer serve their function of preparing people for the community.
In a letter to the Justice Committee Dame Anne Owers, Chair of the Independent Monitoring Board highlighted a number of concerns, including reports of increases in self-harm, self-inflicted deaths and violence in some prisons. She reports particular concerns about the “cumulative impact of lockdown, particularly on prisoners who have, or are developing, mental health conditions.”
Children and young people in prison call the Howard League’s legal advice line every day. They tell us about their experiences, confined to cells the size of a car parking space, worried about their parents and grandparents. Many have lost all sense of time due to being confined to their cells for 22 hours or more a day. One young person described feeling constantly hungry due to the restrictions on the additional food that teenage boys can usually order from the canteen system and regularly rely on to supplement the meagre prison diet. He told us he sleeps all day to try and forget his hunger. A child, who until recently was leaving prison each day to attend college on a temporary licence, described the experience of prison now as “just waiting.” These experiences are typical. Both young people were also typical – young black boys. The secure estate for children is a manifestation of discrimination – half of all children in prison are from ethnic minorities, compared to their making up only around a fifth of children from 10-17 in the wider population. A third of children in prison are on remand, two thirds of whom will not go on to get a prison sentence.
We subsequently discovered that on the same day that prisons went into lockdown, ministers had received advice that as many as 3,500 prisoners might die – one in twenty of those in prison – if action was not taken to reduce the prison population by 15,000. In response to this advice, the Ministry of Justice locked down our prisons immediately and announced on 4 April 2020 that it would release some 4000 prisoners on temporary licence under electronic tag. It has recently emerged that the Ministry of Justice entered into contracts with private providers to supply these tags at a cost of £4,000,000.
This information only came to light after the Howard League, along with the Prison Reform Trust, took the unusual step of challenging the government’s failure to follow through on its promise to release the 4000 prisoners.
By 17 April just four people had been released under the Covid temporary release scheme. The two charities served a letter before action on the government setting out our concerns and threatening to serve proceedings if the government did not respond satisfactorily. The thrust of the challenge was that it was irrational and unlawful for the government to announce it would release a substantial number of prisoners to save lives in response to the threat of COVID-19 but not to have done it.
In response to this letter before action, the government provided a detailed letter explaining that the advice had changed and that while the release programme had not been abandoned (indeed, we were told a further two hundred applications had been approved), a high volume of releases was no longer required. Instead a range of strategies were being employed to protect lives of people in prison. The government disclosed more than a dozen key documents to us on 28 April to support its arguments and subsequently gave us permission to publish its response and the documents it disclosed. In light of this, it could no longer be said that the government’s failure to release thousands of prisoners was irrational and we took the decision not to issue proceedings at that point in time.
As well as the original PHE advice from March, the government produced subsequent advice dated 24 Aprilwhich found early emerging data that the ‘explosive outbreaks’ of COVID-19 in prison which were feared at the beginning of the pandemic wave are not being seen. Accordingly, PHE revised its estimate of prisoner deaths from the virus from up to a reasonable worst-case scenario of 3,500 to a best-case scenario of around 100, provided severely restricted regimes remain in place for up to a year. As the courts return to business, we will see the prison population increase. It is unclear how the methods that have been used so far to contain the virus will be manageable with an influx in people entering prison.
The release scheme has not been abandoned but it remains painfully slow – as of 29 May 2020, just 128 people had been released. This is despite the fact that a month earlier we had been told that some 200 applications had been approved.
Where does that leave us? The decision not to release a substantial number of prisoners under the temporary release scheme may no longer be so unreasonable as to be irrational but its consequences are cruel. As our latest letter to the Justice Secretary highlights, the current situation is inhumane and untenable. It is also unlawful and is likely to result in untold and potentially irreversible harm to some of the most vulnerable in our communities. Let’s hope the government takes action and we do not need to initiate another legal challenge.
The Howard League has published all its correspondence on the prisons and Covid on a dedicated page on its website.
I have written something for The Guardian about our politicians’ rush to create new criminal offences protecting statues. The piece can be found here.
I am pleased to host this guest blogpost by Henry Blaxland QC of Garden Court Chambers.
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“If the government were an employee of mine I would have sacked them for gross negligence” – so said Anita Astley, manager of Wren Hall nursing home in Nottinghamshire, where 10 residents died from Covid-19 and 48 carers caught the virus in a three week period [1]. Ms Astley’s complaint poses in stark terms a question which has been circulating since the full and devastating extent of the consequences of the pandemic have become clear: what, if any, legal liability does the state have for deaths caused by Covid-19?
The government has been doing its utmost to deflect any suggestion that it may bear responsibility for the consequences of its handling of and failure to prepare for the pandemic. Principally this has been achieved through a call for unity in a time of crisis, to the extent that even muted questioning of government actions by the opposition has been criticised, as witnessed by the Health Secretary Matt Hancock’s suggestion to Rosena Allin-Khan M.P. that she change her tone when, as a front line A & E doctor as well as a shadow minister, she had the temerity to ask direct questions about the government’s strategy for contact tracing and testing on the floor of the House and the Prime Minister’s rebuke to criticism of his handling of the pandemic by Keir Starmer, that this amounted to undermining trust in the government. There have also been indications that the buck is going to be passed to the government’s scientific advisers. More sinisterly, there is a suggestion that the government’s decision taken on 19th March to reclassify Covid-19 from a High Consequence Infectious Disease to a Low Consequence Infectious Disease[2], while at the same time the Health and Safety Executive downgraded the classification of Covid-19 under the Control of Substances Hazardous to Health Regulations 2002 from a Group 4 to a Group 3 biological agent, was taken in order to facilitate the decanting of elderly Covid-19 patients from hospitals into care homes.
But, as the death toll among health care and care home workers continues to rise and the United Kingdom’s overall death rate per capita has become the highest in Europe, the pressure for a public inquiry is beginning to mount. If it happens such an inquiry will no doubt focus on the extent to which the high incidence of Covid-19 was avoidable and, if so, how should those responsible for failing to take steps to avoid it be held to account. Three issues are likely to loom large: 1. Whether the Department of Health and Social Care (DHSC) failed to act on the NHS’s own operating framework for responding to a flu pandemic; 2. The failure to provide PPE for health and care staff; 3. The practice at a critical time in the onset of the virus of discharging patients from hospital to care homes.
The starting point for consideration of governmental liability in England is the statutory duty under S.2A of the National Health Service Act 2006, which provides that the Secretary of State must takes such steps as he considers appropriate for the purpose of protecting the public from disease. This includes [3] the provision of services or facilities for the prevention, diagnosis or treatment of illness and includes a requirement to consult with the Health and Safety Executive [4]. In this context the overarching duty of the Secretary of State and state agencies in general (extending throughout the United Kingdom) is that provided for by Article 2 of the European Convention on Human Rights to take all appropriate steps to protect life.
In an article in the Law Society Gazette Lord Hendy Q.C. and Jane Deighton[5] have drawn attention to the provisions of the Health and Safety at Work Act 1974 and the Personal Protective Equipment at Work Regulations 1992 and make the point that it is a criminal offence for an employer to fail to provide a safe place of work. They go on to note, however, that the Health and Safety Executive and local authority Environmental Health officers have so far failed to bring any prosecutions for failure to provide PPE. Indeed, because criminal liability falls on the employer, it would be the relevant NHS foundation trust or individual care home provider, who would face prosecution, rather than the DHSC or Public Health England.
Alex Bailin Q.C. has commented that a failure to provide PPE may amount to a criminal offence under the Corporate Manslaughter and Corporate Homicide Act 2007[6]. But that again poses the question of whether liability would extend beyond the immediate employer of those affected. The offence under S.1 CMCHA is committed where the way in which an organisation’s activities is managed or organised causes death and amounts to a gross breach of a relevant duty of care. The DHSC is listed as an organisation to which the provisions of the Act apply [7]. The DHSC has a ‘relevant duty of care’ under S.2 on the basis that it has a duty to persons who are ‘performing services for it.’ There is a question, however, as to whether the provision of PPE would fall within the terms of S.3(1), which provides that: ‘Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a “relevant duty of care”’. It is difficult to imagine that a decision about whether to provide life-saving equipment could properly be construed as a decision as to a matter of public policy, but then S.3 is intended to protect government departments from criminal liability for political decision making.
The question of criminal liability is currently under consideration in the case of at least one care home. Northamptonshire police are conducting an investigation into Temple Court care home in Kettering, run by Amicura, where 15 residents died of Covid or suspected Covid following the discharge of patients from hospital to the care home on 19th March. In determining the criminal liability of the care home for the neglect of the safety of its clients, it is likely to be impossible for the investigation to avoid considering the broader question of the liability of Public Health England and the DHSC for decisions concerning the transfer of patients from hospital[8].
In general, before any decision about criminal liability would be made, a decision will have been taken as to whether an inquest should be opened into the cause of death. That raises the critical question of the circumstances in which inquests will be opened in cases where the cause of death is Covid-19. The approach of the Coroners Courts is governed by guidance from the Chief Coroner and in Guidance 34 of 26 March, which followed immediately from the enactment of the Coronavirus Act 2020, specific advice was provided that for the purpose of the Notifications of Deaths Regulations 2019, Covid-19 is considered to be a naturally occurring disease with the result that there will be no need for a referral to a coroner. Further, where a decision is taken to open an inquest, S.30 Coronavirus Act removes any requirement for it to be heard with a jury where the coroner has reason to suspect the cause of death was Covid-19. Guidance 37 was issued on 28 April under the heading ‘Deaths and possible exposure in the workplace’. The guidance notes that a workplace death from Covid is reportable to the Health and Safety Executive under the relevant regulations[9]. The guidance goes on to state that a death may be reported where it has been caused by a disease contracted in a workplace setting and that this may include frontline NHS staff as well as public transport workers, care home employees and emergency service personnel. It recognises that in determining the question of whether there is reason to suspect that the death is ‘unnatural’ for the purpose of the requirement to open an inquest, that it may be so if the death occurred as a result of a naturally occurring disease, but where some human error contributed to death. The Guidance then goes on to refer to higher court authority to the effect that an inquest is not the right forum for issues of general public policy to be resolved leading to the comment: ‘…an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of PPE to healthcare workers in the country or a part of it.’ Advice is then given about the power to suspend the inquest in the event that the coroner considers that evidence should be obtained in relation to matters of policy and resourcing, such as obtaining adequate supplies of PPE, together with a cautionary note about the limitations on the ability to pursue enquiries as a result of the effect of the pandemic and the lockdown. In other words the Chief Coroner has sought to steer coroners away from addressing the critical question of the organisational failure to protect lives, prompting Deborah Coles, the director of the charity INQUEST, to write to him stating that the Guidance will stymie and limit investigations into Covid-19 deaths [10]. However, as the Guidance recognises, once the low threshold of a reason to suspect that human error contributed to death is passed then coroners will be under a duty to open an inquest. If as a result of that enquiry the coroner concludes that a failure to provide PPE was a contributory cause of death then this will need to be recorded, whether or not it is accompanied by any observation on how the question of public policy impacted on the lack of sufficient PPE.
Finally, whether or not there are criminal prosecutions or a public inquiry, there is likely to be private litigation brought by those affected by the pandemic. That would not be confined to health service workers and others who have either died or suffered long term physical and mental health consequences as a result of culpable failures by their employers, but could extend to those avoidably exposed to risk, such as residents in care homes to which those infected by Covid had been discharged from hospital. Indeed a doctor whose father died in a care home is reported to be crowd funding for a legal action “to hold the government to account” [11].
Conclusion
The government has faced sustained criticism of many aspects of its handling of the pandemic. Central to that criticism has been the question of whether the government’s decision making has made the requirement to protect life secondary to economic considerations. What has to be faced is the shockingly high fatality rate in the United Kingdom among care home residents and those working on the front-line, including transport workers. That in itself establishes a prima facie case against those responsible for taking critical decisions as the pandemic has engulfed us. All the indications are, however, that any question of legal liability at a governmental level will be firmly resisted.
Henry Blaxland Q.C.
(With contributions from colleagues at Garden Court Chambers)
7th June 2020
Endnotes
[1] Reported in the Guardian 28/05/2020.
[2] http://www.gov.uk/guidance/high-consequence-infectious
[3] S.2(b)(iv) NHS Act.
[4] S.2(4)(a); S. 2(5)(a).
[5] https://www.lawgazette.co.uk/practice-points/personal-protective-equipment-and-the-law/5104146.article
[6] Guardian 09/05/2020.
[7] S.1(2); Schedule 1.
[8] https://www.northantstelegraph.co.uk/health/coronavirus/police-investigation-begun-kettering-care-home-closed-after-major-covid-19-outbreak-2873639
[9] Diseases and Dangerous Occurrences Regulations 2013, which requires that a report should be made where any person dies as a result of exposure to a ‘biological agent’ and Covid-19 has been so designated.
[10] https://www.inquest.org.uk/cc-guidance
[11] www.localgovernmentlawyer.co.uk
I am pleased to host this guest blogpost by Mira Hammad, a pupil barrister at Garden Court North Chambers. It is written in response to the guest blogpost by Rebecca Penfold and Aparna Rao, published last week.
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In their blogpost Rebecca Penfold and Aparna Rao look at the amended Coronavirus Regulation 7 and whether it infringes the right to protest. Regulation 7 prohibits outdoor gatherings of more than 6 people. The authors conclude (as have many lawyers commenting on this issue) that protests are unlawful under that provision. If this is so, it clearly interferes with our right to protest under the Human Rights Act.
The post goes on to consider whether this is a permissible limitation on the right to freedom of assembly and association. In the authors’ view “in order to argue otherwise, one would need to be able to show that, far from the limitation on gatherings being an unavoidable side-effect, the COVID-19 regulations are being used, or misused, as a means of silencing free expression.”
But that isn’t the test that the courts apply when it comes to the lawfulness of an interference with our human rights. In the defining protest case, DPP v Ziegler and Ors [2019] EWHC 71 (Admin), the court set itself a much more exacting set of questions.
Where a defendant is legitimately acting in exercise of her right to protest and there is an interference by a public authority, even if that interference is prescribed by law, the court still needs to ask:
Clearly the answer to the first question is yes. The answer to the second question is much more interesting. To answer it, the court would need to ask itself a series of sub-questions including:
These questions are fact specific – in other words they cannot be answered in the abstract in relation to everyprotest and every interference by the police.
For example, we can imagine a protest where all of the participants are 2 metres away from each other and wearing masks. The police then turn up, herd protestors into a smaller space and (not wearing masks) themselves get close to people to arrest them. Would there be a rational connection between the police doing that and preventing the spread of the virus? Is that the least restrictive way of preventing the spread of the virus while allowing people to protest? Where in that balance are the rights of the individuals?
We can see these are not cut and dry questions.
Nor is it a simple answer to point out, as the authors do, that protestors could express their views in other ways, on Twitter for example. As the Court of Appeal has emphasised (Hall v Mayor of London [2010] EWCA Civ 817) the right to express views publicly (particularly on important issues) “extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views.”
The authors also point out that there is a 28-day review on the infringement, and that the regulations are clearly being amended to relax the restrictions over time. This isn’t necessarily a definitive answer either.
The fact that we are now in a phase where restrictions have been relaxed to allow gatherings for the purposes of training elite athletes (7.2(c)) is likely to make it more difficult, not less, to show that a blanket ban on protests is necessary.
Protests are also time-sensitive, people around the world are protesting as a result of the despicable killing of George Floyd and they are protesting now. To say that protestors can wait for 28 days and see what the government has to say in its review simply doesn’t answer the question of whether the interference with their right to protest is lawful today.
Where does all of that leave us? In my view, nowhere very clear cut. The courts would have to make a decision with regard to each defendant. They would have to consider the questions above in the context of that particular protest and decide whether the interference prescribed under the Regulations is lawful under the Human Rights Act or not.
And if it is not, what does the court do then? Well, in the first instance, courts have to interpret legislation as far as possible so that it is compatible with human rights. The courts would have some options before them in this regard. Could an exception be read into the definition of ‘gathering’ or ‘activity’? Could some protests be deemed to fall into exception 7.2(f) where a gathering is lawful where it is reasonably necessary for the purposes of education (…and one could certainly argue that public education is needed on the issue of racism…)? If the courts feel that there is no possible way of interpreting the regulations so that they are compatible with human rights, then a declaration of incompatibility would have to follow.
Blanket provisions and clear-cut answers don’t usually sit well in the arena of human rights law, where the reigning principles are proportionality, balance and necessity. The extraordinary times in which we find ourselves don’t change that.