Ten easy steps to the perfect hearing bundle

Bad bundles have been a cause of pain and frustration for courts and advocates for many years; see e.g. Sedley’s Laws of Documents. But technology provides new and creative ways to turn a simple set of documents into an instrument of torture for all concerned. The bundle in Allison Bailey’s employment tribunal sounds to have been a masterpiece of the genre (with thanks to Tribunal Tweets) ​​: 

Ben Cooper QC (as he then was) in Allison Bailey v Garden Court Chambers and Stonewall

Bundling is an awkward task. It’s drudgery, so it’s tempting (and often unavoidable, for reasons of cost) to delegate it to someone very junior. But it’s tricky drudgery involving lots of little decisions that are hard to get right if you’re not an experienced litigator. No wonder it often goes badly wrong.

This is a blog about how to make the perfect hearing bundle, and how to make the process of making it relatively painless. (It’s not intended for lawyers involved in big-ticket commercial litigation: they will have fancy and eye-wateringly expensive document management software, and they are big enough and ugly enough to look after themselves.) 

The key insight here is that preparation of the bundle begins months – possibly years – before the hearing. 


It goes like this. 

1. Create a folder on your computer. Call it “draft bundle”. 

2. Every time you generate or receive a document that may ultimately need to end up in the bundle, do the following:

(i) save it as a PDF if that’s not the form in which you have it already;

(ii) check that it it is fully searchable, and if not, OCR it – you can do this in Adobe Pro from “Scan & OCR” on the Tools menu or in PDF Expert from the “Scan & OCR” tab at the top of the page;

(iii) give it a name (see step 3), and put it in your “draft bundle” folder.

(Try to get disclosure from the other side in the form of a file of separate documents, preferably in their native file formats. Metadata is part of a document, and disclosable as a matter of course – and may be interesting in its own right – so you’re entitled to this. Turn each document into a PDF before saving in your draft bundle folder, saving copies of the original documents elsewhere. If some of the disclosure arrives in the form of PDFs containing a number of documents, split them up into separate documents first. You can do this quite fast by inserting bookmarks in Adobe Acrobat, and then splitting the document by bookmarks. Use the file name convention at point 3 below for your bookmarks, and Adobe will use the same bookmark names to name the individual files.)

3. Give each document a name. If it’s a document whose date is or may be part of the “story” of your case, prefix its name with its date in reverse order. So if it’s an email from Angus Beattie to Cordelia Diamond sent on 14 April 2020, you might call it 2020.04.14 AB-CD. The point of this is to force Finder or File Explorer to sort your dated documents in date order. If there’s a section of the chronology where it may matter in what order things happened on the same day, you can put the time as well, to force sorting in order within a particular date: 2020.04.14.09.33 or 2020.04.14.09.33.

(I like very spare indexes, so if I’m in charge of the bundle, emails will have names as short as 2020.04.14 AB-CD. But you could make the names a little more informative by adding the subject-line, e.g. 2020.04.14 AB-CD FW: Re: Grievance meeting. But whatever you do, don’t attempt a description of the document that is anything other than its name or its subject-line – if you do, you’ll get into endless tussles with the other party about whether your names are tendentious.)

You may have a few documents that are part of the chronological story, but which are undated. In those cases, I’d suggest making a guess at the most likely date and saving with a filename that indicates your estimated date, and the fact that it’s a guess. So maybe something like “2021.01.04 EF -GH est. date”.

4. Email chains are a bit of a pain. Divide them up and reduce duplication as much as you reasonably can, and label each short chain with the date of the message at the top, but don’t stress unduly. Everyone’s used by now to reading email correspondence in a slightly back-and-forth way. 

5. For other documents, choose some naming convention that works for you – it’s less critical. You might prefix the pleadings, tribunal orders etc that you’re going to want at the beginning of the bundle “000”, things like policy documents and procedures “POL”, anything you’re not yet sure to do with “Q”, and so on. 

6. Carry on doing this through the life of the case – do it with the documents your client gives you, the pleadings, orders from the court or tribunal, everything you get from the other side on disclosure. You’ll need to be quite disciplined, but your future self will be grateful.

7. When your collection is complete and you’ve fiddled with file prefixes so that the documents are in the order you want, deleted duplicates, moved irrelevant documents out etc, merge all the files in Adobe Acrobat. You’ll find Acrobat has used your filenames as bookmarks. (I expect there are other programs that will do this, too, though so far as I have been able to discover, PDF Expert doesn’t. I prefer PDF Expert for most purposes, so I just switch between the two.) 

8. Next, to make your index, you need a text list of the files in your draft bundle folder. In Finder, open your draft bundle folder, highlight the top file and then using the shift key highlight the bottom file – this should highlight all files in the folder in blue. Then press Command+C (or in Windows, ctrl+C) to copy them.

9. Launch a text editor – e.g. TextEdit on a Mac, or Notepad if you’re in Windows – and make sure that you have “plain text” chosen – in TextEdit, that’s in the “Format” menu. Paste the file list from your clipboard: on a Mac, command+V. (Or you can skip the step about choosing “plain text” if you know how to paste in plain text – shift+option+command+V on a Mac.)

10. Copy your file list into a Word document and edit to remove all the “.pdf” suffixes. You can do this easily with search and replace, replacing “.pdf” with a space. This is the guts of your index.

11. Format your index, save it as a PDF, and stick it onto the front of your merged bundle.  

12. Open your merged bundle in your preferred PDF viewer and add page numbers. Ideally, number the index pages in lower case Roman numerals, and start pagination proper on the first page of documents.

If your preferred PDF viewer is PDF Expert, you choose “Add Page Numbers” here:  

13. Add the page numbers to your index. I think this is the bit you’ll have to do manually – but it’s just a matter of skipping through your bundle bookmark by bookmark and writing in the page number for the start of each document, so it’s not too terrible even for a large bundle. And it’s easy and requires no decision-making, so you can safely give it to someone very junior so long as you trust them to take care to do it accurately. (If you have Bundledocs – and probably other programs like it – it will do this bit for you.)

14. Turn your index page into a PDF, and add it to the front of your bundle.

15. Tweak page labels on your PDF so that the electronic page numbers align with your pagination. (You can do this in Adobe Pro from the “Organise Pages” menu under “Tools”.)

16. Add hyperlinks from the index through to the first page of each document. (Again, I think Bundledocs will do this for you, if you have it.) This is fiddly but easy, too. In PDF Expert, it’s here:

17. That’s it. Congratulations, you have made a perfect bundle. It was actually 17 steps, but apparently for clickbait reasons 10 is a better number, so I lied. Sorry.

This method has the following advantages, over and above the perfection of the end result: 

  • Front-loading the fiddly stuff. Putting together a bundle from scratch a few weeks before the hearing is time-critical anxiety nightmare. The fiddly stuff can’t be avoided entirely: giving every damn document in the bundle a backwards-date-format filename is undoubtedly fiddly. But it’s fiddling that can be done a bit at a time over a long period. 
  • The final stages are pretty easy, so adjusting your bundle at a late stage isn’t very painful. 
  • Your draft bundle folder will be a useful reference source as the case progresses. 
  • You can annotate and highlight the documents in your draft bundle folder freely, because it’s easy to strip annotations from the bundle once compiled but before sharing with the other side. 
  • This means you can share your draft bundle folder with counsel, and she can start marking it up. So if agreeing the bundle with the other side proves fraught, your barrister isn’t jumping up and down with impatience and hassling you while you’re trying to deal with that – instead she’s serenely marking up documents and preparing cross-examination notes, secure in the knowledge that all her markings will appear in the finalised version of the bundle when it reaches her.

Post-script

It has been objected that if the barrister has access to the draft bundle folder and starts marking it up, the solicitor can see her work in real-time. I’m not sure how real a problem that is (I suspect most solicitors will have better things to do than monitor counsel’s preparation in this way) – but I can see that it could give you an uneasy sense of being under detailed surveillance, at least potentially.

Fortunately, there’s an easy answer. Get your solicitor to share the draft bundle with you. When you get to the point where you’d otherwise be screaming for a finalised bundle to start work, make a private copy, and start marking that up. Get your solicitor to tell you when they’ve agreed the contents of the bundle and are about to compile it – and at that point, if you want to, you can copy all your marked-up documents back into the shared folder. Choose “replace”, and your marked-up copies will replace their unmarked twins – but the folder will still contain any documents that have been added since you made your copy.

Red tape or essential protection? Third party harassment revisited.

The Worker Protection (Amendment of Equality Act 2010) Bill currently proceeding through Parliament and predicted to become law in 2024, raises some subtle questions about the relationship between protection from harassment and freedom of speech. 

When the Equality Act 2010 was passed, it included provisions outlawing third party harassment and  providing a legal claim against an employer by an employee who suffered harassment by a third party such as a customer, client or visitor.

These provisions were criticised at the time as unduly complex, in particular, for the fact that they required the employee to have suffered two previous incidents of harassment at work. The provisions were rarely used. But rather than amend the law to something that actually worked well, the government threw out the baby with the bath water, and entirely repealed the provisions under section 65 of  the Enterprise and Regulatory Reform Act 2013 as part of its “Red Tape Challenge”.

There remained some scope to bring a claim for third-party harassment under section 26 of the  Equality Act on the basis that an employer’s failure to prevent harassment by a third party is itself harassment. But  

in Unite the Union v Nailard [2018] EWCA Civ 103 the Court of Appeal held that to succeed in a claim of this kind, the claimant must prove that the employer has a discriminatory motive for failing to take action.That will rarely be possible. As a result, employees were left relatively unprotected in this situation.

A few years after the Red Tape Challenge, the #MeToo movement brought workplace harassment into sharp focus, including harassment by clients and customers to workers . This included undercover reporting by the Financial Times of  a notorious charity fundraising event at the now closed Presidents Club in 2018 , where the hostesses were reportedly groped and sexually harassed by rich and powerful men.

In 2018, after a call for evidence, the EHRC published a report called “Turning the tables: Ending sexual harassment at work”. The report found that third-party harassment is a particular problem for people in customer-facing roles, with around a quarter of those reporting harassment saying that the perpetrators were third parties. They also found that third-party sexual harassment was dealt with poorly and was viewed by some employers as a ‘normal’ part of the job. 

It recommended amongst other steps that:

·      the UK Government should introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.

·      Breach of the mandatory duty should constitute an unlawful act for the purposes of the Equality Act 2006, which would be enforceable by the Commission. 

The Government announced it supported the recommendations, and  backed a Private Members’ bill. 

Under the new law, when it comes into force (likely to be in 2024),  

an employer will be liable if a third party harasses an employee in the course of his or her employment and the employer has failed to take all reasonable steps to prevent them from doing so. The provision is not limited to sexual harassment and so covers the other relevant protected characteristics as well. 

A new duty will also require an employer to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment. Breach of the duty will be an unlawful act, enforceable by the Equality and Human Rights Commission. There will be a Code of Practice setting out what reasonable steps should be taken.

Although employees will not be able to bring standalone claims specifically for breach of the duty to take reasonable steps to prevent sexual harassment, if an employee is successful in a claim for sexual harassment and the employment tribunal rules that the employer is in breach of the duty, it will have the power to award an uplift in compensation not exceeding 25%. 

These are largely positive developments which should reinforce the obligations on employers to protect their employees and plug an important gap where employees are at risk of third party harassment. 

However concerns have been raised about the scope of the provisions in the context of free speech.

The Government has proposed an amendment to the Bill so that employers will not be liable for workplace harassment (other than sexual harassment) in circumstances where that harassment arises as a result of a ‘protected conversation’: one which involves the expression of opinion on a political, social, moral or religious matter, in which an individual is not a participant. In effect, this intends to exclude overheard conversations where a personal view is expressed. This amendment has been proposed with a view to addressing concerns about how the Bill, as previously drafted, might curtail the legitimate expression of free speech.

Despite this proposed amendment, the solicitor James Murray of Mishcon de Reya, a specialist in law related to Higher Education and academic freedom has raised concerns whether the change in law  will still negatively affect academic freedom on campus, with officials using the excuse of the third party liability to disallow controversial academic speakers on campus

Obviously, this Bill is not yet law, and there may be further amendments. But the lesson from the Red Tape Challenge is one that this Government (currently engaged in potential mass repeal of EU legislation via the Retained Law (Revocation and Reform) Bill 2022 (also proceeding currently through Parliament) would be wise to learn. 

Is this or any law red tape or essential protection? I welcome this long overdue protection from third party harassment but great care needed to ensure the right balance to protect free speech.

Stating the Obvious

This is not a blog post which explores fundamental truths of the human condition or even one which traces a pathway through legal complexities. Rather, it looks at the law in practice.

Regular readers of this blog will know that paragraphs 27-28 of Schedule 3 of the Equality Act 2010 permit a service provider to offer a single sex or separate sex service. Paragraph 28 in particular allows a service provider to discriminate on the grounds of gender reassignment. For the purposes of women-only services and spaces, it is generally understood that this means that a women only service may exclude all those who are biologically and legally male by virtue of paragraph 27, and may (if proportionate) exclude biological females who are legally male and biological males who are legally female by virtue of paragraph 28. There remains some discussion over whether “blanket” policies are permissible and whether paragraph 28 should be applied person-by-person or policy-by-policy, but the overarching principles are those.

In recent times organisations which hold their line on single sex services have been viciously targeted. The rat nailed to the door of Vancouver Rape Relief, the smoke bombs set off outside the WPUK meeting held near to Grenfell Tower, the violent and sexually aggressive imagery chalked on the pavement at FiLiA. 

This is a question for those who attend, or organise, such protests. If you heard that a women-only self-defence group had refused entry to a transwoman who approached them saying she was fearful of violence because of her gender and wanted to learn to defend herself, would you protest that organisation? Would you denounce them on social media? Organise a boycott? You’d probably want to write to all of their funders to try to have their funding withdrawn, at the very least, and notify the local council – wouldn’t you? Perhaps you could persuade the Good Law Project to bring a legal case against them? 

If the centre argued that their classes were for women who had suffered domestic or sexual violence, that wouldn’t change your view in the least, would it? After all, transwomen can also suffer domestic or sexual violence, and any woman who is triggered by the presence of a male-born person just needs to reframe her trauma, right? 

This is not a hypothetical scenario. In 2021, the Scottish Centre for Personal Safety declined to admit Annie Bryson to their women only self-defence course offered to survivors of domestic or sexual violence. But before anyone goes to organise a protest, there’s some additional important information to know.

In 2016 Annie Bryson – then Adam Graham – raped a woman. In 2019, he raped another woman. In 2021 he tried to access this course – a course for survivors of male violence where he would presumably have learned what techniques women use to fend off rapists, while triggering a trauma response among any survivors there. (The same year he enrolled on a beautician course which involved women removing their clothes to practise spray tan procedures on one another. Would-be protestors can pat Ayrshire College on the back for their admirably inclusive policy.)

In 2023 he was convicted of both rapes. His ex-wife said that she thought he was “bullshitting” his claim to be transgender, which had only developed after he was arrested for the rapes, and even that arch-proponent of self-ID Nicola Sturgeon can’t quite bring herself to call him a woman, saying “She regards herself as a woman. I regard the individual as a rapist.” 

It might be tempting to say – well, what’s wrong with that? The individual IS a rapist.

He is. But for the purposes of the criminal justice system, between 2016 and 2023 he was Schroedinger’s Rapist: he had committed rape but he was not convicted of rape. 

What motive could a double rapist have for wanting to join a class for survivors of sexual violence and learn what techniques they would use against a predator? What motive could a double rapist have for wanting to join a class full of semi-clad women applying beauty techniques? The answer is surely obvious on both counts. 

Now that Adam Graham / Annie Bryson / Isla Bryson has been reallocated from the women’s estate to the men’s estate, there seems to be a grudging acceptance that he isn’t “really” trans. After all, he’s a rapist. 

The problem for the protestors is that he wasn’t – in law – a rapist until he was convicted. 

If the protestors had their way, Adam Graham would have been welcomed in to any women only service he chose to attend. That in itself should be explanation as to why some services, particularly those where women are undressing or where they are survivors of male violence, want to exercise their right to remain female only under the Equality Act exceptions. It should take a lot more than a chalk willy on a pavement to persuade anybody otherwise. 

Sensible people and the law going bonkers

How sensible is the law when it locks up vulnerable female prisoners with violent men who say they are women?

Giving evidence to the Women and Equalities Select Committee last week about the Scottish Government’s Gender Recognition Reform Bill, Lord Falconer was dismissive of fears that the Bill would make it easier for voyeurs, exhibitionists and violent sex offenders to access supposedly women-only spaces. He said “What you’re talking about is the law going bonkers” and assured the Committee that “the law is sensible people…courts will be sensible”.

That would be more reassuring if the law had not already been very bonkers indeed for some years.

The case of double rapist Adam Graham, otherwise known as Isla Bryson, has been hitting the headlines since his conviction on 24 January this year. Graham was initially remanded for sentencing to Cornton Vale women’s prison, before he was moved to a men’s prison in response to a public outcry. How did that come about, and was it a brief anomalous moment of bonkersness before sensible people reverted to being sensible?

Separate prisons for men and women 

Separate establishments or parts of establishments for male and female prisoners have been maintained in the UK since 1823, when the Gaols Act 1823 provided “In all such Gaols, the Male and Female Prisoners shall be confined in separate Wards or Parts of the Gaol.”  The UN Standard Minimum Rules for the Treatment of Offenders (otherwise known as the “Mandela Rules”) provide at rule 11(a):

Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate.

The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), which supplement the Standard Minimum Rules, lay particular stress on physical and psychological safety at paragraph 9:

In its resolution 61/143 of 19 December 2006 entitled “Intensification of efforts to eliminate all forms of violence against women”, the General Assembly stressed that “violence against women” meant any act of gender-based violence resulting in, or likely to result in, physical, sexual or psychological harm or suffering to women… The resolution is an acknowledgement of the fact that violence against women has specific implications for women’s contact with the criminal justice system, as well as their right to be free of victimization while imprisoned. Physical and psychological safety is critical to ensuring human rights and improving outcomes for women offenders, of which the present rules take account.

The current position in domestic law for England and Wales is less definite. It is to be found at rule 12 of the Prison Rules 1999, made under the Prisons Act 1952:

(1) Women prisoners shall normally be kept separate from male prisoners

Interestingly, the Prisons and Young Offenders Institutions Scotland Rules 2011 say:



126.—(1) Female prisoners must not share the same accommodation as male prisoners.

(2) The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison.

Despite these provisions, the principle of single-sex prisons has been quietly eroded since men who had had genital “reassignment” surgery started to be imprisoned with women by the 1980s (Biggs, 2020). In 2009, the prison authorities were still holding the line that surgery was a pre-requisite for transfer to a women’s prison.

That was already a significant departure from “people being sensible”. A man does not become a woman by having his testicles removed, nor by having his penis inverted into a surgically-created cavity as a “neo-vagina”; nor by having implants or taking hormones to create the appearance of female breasts. A violent man who has undergone some of those treatments may present less of a threat to women of certain particular kinds of crimes than an unmodified man, but he will retain his advantages of size and strength. Rape is only one of the ways that men terrorise women.

In any event, women’s wish for bodily privacy from men is not solely or even chiefly about demonstrable threat. It is about deep-seated taboo, and in some cases about trauma-induced fear. It is humiliating for a woman to be required to undress in the presence of a man, and for some women it will also be terrifying even if the particular man poses no risk. A woman traumatised by male violence may reasonably be hypervigilant in the presence of any man.

Genital surgery cannot reasonably be expected to make a difference to this. Why would it? Many women will object strongly to being expected to undress in the presence of men with whom they are not intimate. Few of those can be expected to feel any more comfortable undressing in the presence of a man who has had genital surgery. We do not wish to see male genitals in the women’s changing room; but we may well have a wish at least equally strong not to see the site of surgical removal or remodelling of male genitalia. Medical treatment is a private matter between patient and physician. It is not our business whether a man has had genital surgery or not, and we do not want it made our business.

These are considerations to which the sensible people who decided to start moving men into women’s prisons appear to have been oblivious. 

But the law – or at any rate the administration of the law by sensible people – got more bonkers than that, much.

Mark (aka Karen) Jones

In 2009, Mark Jones, a male prisoner who had been granted a GRC but had not yet had genital surgery, brought judicial review proceedings challenging the prison service’s refusal to move him to a women’s prison. NHS policy at the time was to make “living as a woman” for two years a pre-requisite to surgery, and did not recognise “living as a woman” in a men’s prison as sufficient.

Jones’s convictions were for the manslaughter of his boyfriend, and for a terrifying attempted rape of a female stranger. He was evidently difficult to manage in prison. A report from his own expert supported the proposal to transfer him to the female estate on the basis of an expectation of a deterioration in his behaviour if his wishes were thwarted:

[The claimant] needs to control the threatening external world by imposing [his] own order and when this is not possible [he] resorts to stronger measures which incorporate narcissistic, compulsive, aggressive, violent and sadistic elements . . .

. . . As [the claimant’s] desperation to control [his] environment mounts, [he] experiences a heightening degree of narcissism or self-concern. [H]e is increasingly liable to experience aggressive and destructive impulses.  

[emphasis supplied] 

Argument in the case ( B v Secretary of State for Justice [2009] EWHC 2220 (Admin)) focused on Jones’s article 8 rights, and the cost to the prison service of the (possibly extended) period of segregation in a women’s prison which was thought likely to be necessary before he could be allowed to “mix with and form friendships with other women [sic] as she [sic] would choose to do”. 

The closest the court’s reasoning, or any material referred to in the judgment, came to considering the human rights of the women who were to be locked up with a violent, narcissistic and sadistic rapist is to be found in three short passages from the evidence. Mr Spurr, the Chief Operating Officer of the National Offender Management Service referred at paragraph 56 of his statement to a number of factors he said were relevant to the decision, including “concerns over how the female population would react to her [sic] generally, and also specifically if they became aware of her [sic] index offence”.

At paragraph 64, Mr Spurr said:

I particularly note that the index offence of attempted rape did not involve the ability to sustain an erection, and appears to have been more inspired by feelings of frustration and jealousy than sexual desire. While the main issue that has been addressed in terms of risk is the Claimant’s risk to herself [sic], NOMS must also bear in mind the risk she [sic] poses to other prisoners.

Dr Barrett dealt dismissively with any unhappiness that female prisoners might feel about the company they were to be required to keep:

I would say that I suspect that caution will probably lead to her [sic] being placed on a segregation unit in the first instance and that in no very great time (perhaps a couple of months) it will become clear that she [sic] is so widely accepted as female in that unit that location in the main prison will follow. I think that such acceptance will pretty generally apply in the main prison, also, although there will probably always be a small number of prisoners who will choose to make an issue of the matter because they are the sort of women who enjoy conflict. If this patient is able to cope with protracted close proximity women of that sort I would judge her [sic] able to cope with the less prolonged, more avoidable, travails of the civilian world.

The interests of the female prisoners who were to be locked up with Jones were not represented, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.

The court was persuaded. The judge held that holding Jones in a men’s prison interfered with his personal autonomy as protected by article 8 of the European Convention on Human Rights in a manner going beyond what imprisonment was intended to do, and that the prison service had failed to provide sufficient justification for the interference. He was accordingly transferred to a women’s prison to serve the remainder of his sentence. 

There were only two parties present or represented in court: Jones himself, and the Secretary of State for Justice. The interests of the female prisoners who were to be locked up with Jones were not represented by any interested party or intervener, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.

Adam Graham (aka Isla Bryson) and Scottish Prison Service Policy

Anyone still cherishing the idea that “the law is sensible people” might regard the judgment of the court in B as a high-water mark of bonkersness, and look forward to it being swiftly corrected at the next opportunity. They would be disappointed by what happened next.

The Scottish Prison Service’s Gender Identity and Gender Reassignment Policy was adopted in 2014. It says under the heading “Policy key principles”:

The accommodation provided must be the one that best suits the person in custody’s needs and should reflect the gender in which the person in custody is currently living.

That is a policy under which Mark Jones would have been automatically assigned to women’s prison simply on the strength of his self-identification as female. He would not have been put to the trouble of seeking surgery. 

Adam Graham/Isla Bryson’s initial placement in a women’s prison was wholly consistent with that policy, and should have surprised no-one.

FDJ v Secretary of State for Justice (2021)

The first (and so far only) attempt to persuade the High Court to give some weight to female prisoners’ human rights in deciding where to place male prisoners who identify as women was made in FDJ v Secretary of State for Justice [2021] EWHC 1746 (Admin).

FDJ served a sentence of imprisonment between October 2016 and June 2020, at HMP Bronzefield, a women’s prison operated by Sodexo. She sought judicial review of MOJ policies which allowed male prisoners who had been convicted of sexual or violent offences to be allocated to women’s prisons if they asserted a female gender identity and/or had been granted a GRC.  FDJ gave evidence that she had been sexually assaulted by “J”, a male prisoner who had convictions for serious sexual offences against women. He also had a GRC declaring him to be a woman.

FDJ challenged two prison policies, referred to in the judgment as the “Care and Management Policy” and the “E Wing Policy”. The former included this:

4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate … unless there are exceptional circumstances, as would be the case for biological women.

Section 9 reads:

(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

Those words seem to have been interpreted by the prison service as imposing a duty on it to treat a man holding a GRC as if he were a woman (and vice versa).

This betrays a fundamental misunderstanding of section 9, which has a much more limited effect. It confers a status: it deems to be true, once certain conditions are met, something that is not true. It does not purport, in itself, to attribute consequences to the legal fiction it creates except in relation to privacy of information. If it did, the consequences would need to be defined, and supported by a carefully thought-out account of what it is to be “treated as a woman” and in what contexts the law could properly require such treatment; and it would need an enforcement mechanism. In general, after all, where the law makes provision about the different treatment of men and women, it does so not by requiring it, but by prohibiting it. 

In truth, apart from the privacy provisions, the GRA is better understood as an ancillary enactment about the interpretation of other enactments than as the kind of legislation which in itself requires people to do things, or not to do things.

As Choudhury J confirmed in Forstater v CGD [2021] IRLR 706 at para. 97, “for all purposes” at section 9 means “for all legal purposes”. The GRA does not itself, for example, compel anyone to think of a man who holds a GRC as a woman, or to treat him as such for social or dating purposes, or to ignore his true sex when providing him with sex-specific medical treatment or screening, or to give him access to women-only spaces, etc. If and to the extent that section 9 of the GRA confers on a man a positive right to be treated as a woman (or vice versa) it must do so through the medium of some other enactment or common law rule which attaches concrete consequences to a person’s legal status as a man or a woman. The obvious example (according the ruling of the Outer House of the Court of Session in For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90) is the Equality Act 2010.

The E Wing Policy considered in FDJ also proceeded on the assumption that any male prisoner who had a GRC must be housed in a female prison unless the wholly exceptional circumstances in which a female prisoner would be held in the male estate applied in his case.

FDJ in her challenge argued that these policies were unlawful because they indirectly discriminated against women contrary to art. 14 of the Convention read with arts. 3 and/or 8, and contrary to section 29 of the Equality Act; and that the prison service, in formulating its policy, had failed to take account of exceptions in the Equality Act permitting discrimination on grounds of both sex and gender reassignment. But she did not take the point that the policy misunderstood the effect of section 9 of the GRA by treating it as in itself conferring positive rights about treatment by other people; on the contrary, her counsel is recorded at para. 68 of the judgment as conceding that it does. (That concession finds some faint support in an obiter remark in Green v Secretary of State for Justice [2021] EWHC 1746 (Admin), para. 68, but the remark is better understood merely as an acknowledgment – foreshadowing the For Women Scotland case – that a GRC deems a person to have changed sex for the purposes of any comparison in a sex discrimination case under the Equality Act.) 

The court proceeded on the basis that paragraphs 26 and 28 of schedule 3 to the Equality Act permitted — but did not require — men and women to be housed in separate prisons. (There is a curiosity here, which is that it is not self-evident that schedule 3, read literally, is applicable at all to the performance of public functions like those of the prison service. But the assumption that schedule 3 was applicable to the allocation and management of prisoners has been made not only by a powerful Divisional Court in FDJ but also by the Court of Appeal in Coll v Secretary of State for Justice [2017] 1 WLR 2093, a case about the more restricted provision of approved premises for the accommodation of female prisoners released on licence than for male prisoners. That being so the point can probably be regarded as settled for all practical purposes.)

FDJ’s argument was that allocating prisoners to the estate corresponding to their gender identity instead of making full use of the schedule 3 permission to hold male and female prisoners in separate establishments had a disproportionately adverse effect on female as compared to male prisoners. That was because male prisoners in female prisons increased the risk of sexual assault to which female prisoners were exposed, whereas female prisoners in male prisons did not (or would not) increase the risk of sexual assault to which male prisoners would be exposed. The Secretary of State was therefore called upon to justify his policy. He could not do so because there were less intrusive measures which he could have taken to care for and manage male prisoners who identified as women.

The Secretary of State argued that the single-sex exceptions in the Equality Act should be used in a manner that is compatible with the art. 8 rights of transgender prisoners, and relied on B v Secretary of State for Justice.

Importantly, FDJ did not challenge the correctness of the decision in B (Mark/Karen Jones’s case), nor did she argue that there should be no men in women’s prisons. She argued instead that the Secretary of state should have struck a different balance between the rights of men who say they are women to be treated as women, and the rights of incarcerated women not to be exposed to the risk and the fear of sexual assault.

The court accepted as valid and understandable the fears of female prisoners held with male sex offenders, but declined to interfere with the balance that the prison service policies had struck. Paragraph 83 reads as follows:

The difficulty which the Claimant faces, in my view, is that it is not possible to argue that the Defendant should have excluded from women’s prisons all transgender women. To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the Claimant herself says the Defendant should have taken. The submissions on behalf of the Claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the Care and Management Policy specifically requires the LCB and/or CCB to consider. More generally, once it is acknowledged that a policy could not require the total exclusion of all transgender women from the female prison estate, then in my view the policies require consideration of all the relevant factors to enable the risks to be assessed and managed on a case by case basis. 

This, to my mind, is the heart of the matter. By limiting herself to arguing that convicted male sex offenders should be excluded from women’s prisons, FDJ had put herself in an impossible position. If it is accepted that the rights of some men to “live as women” entitle them to be held in women’s prisons, decisions about which men should be admitted, and which should not, become exactly the kind of delicate and sensitive judgements in which the courts will be understandably slow to interfere. 

No men in women’s prisons? 

So was the court right that it was “not possible to argue that the Defendant should have excluded from women’s prisons all transgender women”?   

The schedule 3 exceptions deal with situations in which, for privacy, decency etc, it is necessary to provide services separately for women and men. Even assuming that the FWS2 decision is correct and sex in the Equality Act means sex except where modified by the application of a GRC, those exceptions provide expressly for the exclusion of all men – including men with GRCs – from women’s services or spaces, where circumstances justify it. The Explanatory Note to the Act gives counselling services for victims of rape as an example; prisons too are an obvious case where a blanket rule is likely to be justified.

Despite the existence (and accepted applicability) of those express exceptions, the court in FDJ seems to have assumed – without hearing argument on the point, but perhaps obedient to the earlier judgment in B – that their use could not be defended in relation to prisons. 

No doubt some men with GRCs would like to be treated for all purposes as if they were women, even in those cases where there is a plain necessity to exclude them from something provided specifically for women. Possibly exclusion will cause them upset, increased dysphoria, rage or even anguish. But as the court in FDJ acknowledges at paragraph 76, it is also understandable that women imprisoned with men may suffer acute fear and anxiety. The qualified art. 8 rights of male prisoners who say they are women may be engaged; but so too are the qualified art. 8 rights and the unqualified art. 3 rights of female prisoners.

Even if the art. 3 rights of female prisoners can be disregarded so that the balance needed is simply between the art. 8 rights of female prisoners and those of male prisoners who say they are women, the numbers involved should be noted. Placing one man in a women’s prison in order to give effect to his art. 8 rights will infringe the art. 8 rights of all the women with whom he is imprisoned.

The schedule 3 exceptions

With those points in mind, we can consider paragraphs 26 and 28 of schedule 3 to the Equality Act, and ask whether it really is impossible for the prison service to make use of them: 

Paragraph 26

(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—

(a) a joint service for persons of both sexes would be less effective, and

(b) the limited provision is a proportionate means of achieving a legitimate aim.

Paragraph 28

(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

(a) the provision of separate services for persons of each sex;

(b) the provision of separate services differently for persons of each sex;

(c) the provision of a service only to persons of one sex.

It is clear that in relation to prisons, a “joint service” would be less effective; and that the limited provision – that is, the provision of separate prison accommodation for men and women – is not merely a proportionate means, but the only possible means of achieving the legitimate aim of providing a humane and safe environment for female prisoners, respecting their privacy and dignity, and complying with international standards. That is the reason for the existence of separate men’s and women’s prisons, and it is – necessarily – ample justification for the exclusion from women’s prisons of all male prisoners without GRCs, including those who self-identify as women. 

So far as male prisoners with GRCs are concerned, paragraph 28 applies. Under paragraph 28 the question assumes the prior existence of separate services for persons of each sex and simply asks whether the exclusion of men with GRCs from the women’s service is a proportionate means of achieving a legitimate aim. But once again, and for exactly the same reasons, the exclusion of men with GRCs is in pursuit of the legitimate aim of providing a safe, humane and dignified  environment for female prisoners, and is not merely a proportionate means but the only means of achieving that aim. 

Once the arguments are set out plainly, away from the noise of the thought-quelling chant “trans women are women” and in defiance of the related insistence that we speak and write of men who say they are women as “trans women” and refer to them with female pronouns, the result is clear.

Conclusion

The law in this area has already gone very bonkers indeed. Adam Graham’s initial placement in a women’s prison was not an anomaly, swiftly corrected when it came to light; it was a routine decision in conformity with a policy that had been in place for 9 years. A more forthright challenge to the presence of men in women’s prisons using clear language and centring the human rights of female prisoners cannot come too soon. Let’s hope that this time, the courts will be sensible.

Governance and groupthink

What is corporate governance and why is it relevant?

Corporate governance refers to the system of rules, practices, and processes by which a company is directed and controlled. It involves balancing the interests of a company’s many stakeholders, such as members, employees, service users, suppliers and the community. The primary objective of corporate governance is to enhance corporate transparency, accountability, and to ensure the company’s purpose is fulfilled.

So far, so not obviously feminist. However, as more and more feminists in the UK begin to organise using corporate structures, it is important they understand the UK corporate framework. With that in mind, this is intended as the first of several articles about different aspects of UK company law.

It is essential that those assuming the role of director or trustee for the first time understand how governance contributes to a company’s success or failure. As a corporate lawyer and non-executive director, I have seen poor corporate governance lead to, sometimes irreparable, financial and reputational damage. On the other hand, strong corporate governance flows through an organisation, promoting good decision-making and adherence to the company’s purpose; this is why lenders and investors thoroughly review a company’s corporate governance systems before backing it.

A slightly depressing practical point is that companies organised by feminists have a more than usual number of activists seeking to distract, obstruct or suppress them. Good corporate governance and thoughtful, properly-recorded decision-making will provide the best defences against allegations of wrongdoing.

This topic therefore merits the attention of those of us privileged to serve as directors and trustees, whether of listed leviathans or of grassroots growth groups.

Types of company

Firstly, a word on types of companies. Companies come in various forms; the most common is the company limited by shares but in the context of the charitable, not-for-profit or voluntary sectors, companies limited by guarantee are also frequently used, as are charitable incorporated organisations (CIOs) and community interest companies (CICs). For the purposes of this article, the law on directors’ duties is the same, regardless of the type of the company. To confuse matters further, in some charitable organisations, the terms trustee and director may be used interchangeably; in any event, in broad terms, trustees of an organisation, whether or not it is strictly a company, will be subject to duties very similar to those covered in this article.

Directors’ duties

Directors and trustees have legal responsibilities that are regarded as “fiduciary” in nature. This means that a director or trustee must put the interests of the organisation she serves above her own interests and must think about the organisation’s stakeholders in all the decisions that she makes. In addition, she must act honestly and responsibly, with the skill and care that would reasonably be expected of a person in her position.

The Companies Act 2006 sets out seven specific duties that directors must adhere to, including:

To promote the success of the company.
To exercise independent judgement.
To exercise reasonable care, skill, and diligence.
To avoid conflicts of interest.
Not to accept benefits from third parties.
To declare interests in proposed transactions or arrangements.
To exercise powers for proper purposes.

The duty to exercise independent judgement

The duty to exercise independent judgement means that directors must not uncritically adopt the views of others, and must make decisions based on their own informed judgement. In making their decisions, they must consider all relevant factors and think critically; this may involve seeking out and considering alternative viewpoints.

Why focus on this particular duty? Where an organisation has been established to pursue a particular campaign or to promote a particular cause, the board is likely to comprise directors who all feel the same way about that cause. This type of cause-driven organisation therefore seems particularly exposed to the risk of “groupthink” interfering with the board’s independent judgement.

Groupthink occurs when members of a group conform to the opinions of the majority, rather than considering alternative viewpoints. This can lead to directors overlooking important information or ignoring potential risks. This may be from fear of disagreeing with a majority view or from a lack of diversity on the board meaning that the directors all agree with each other.

The former is unforgivable in a director. Accepting the responsibilities of a director means you have to be prepared to put forward an unpopular view or to ask difficult questions. Indeed, on some boards, where a thorny issue is being discussed, one director is sometimes designated to present the opposing view to help the board to ensure they have considered all viewpoints.

Diversity of perspective

Lack of diversity is the particular feature of campaigning and charitable organisations that increases the risk of groupthink. The directors of a company may be drawn from a pool of leading founders or their associates; the work and responsibility involved in being a director (usually on a voluntary basis at this level) is such that it will only be undertaken by strong supporters of the cause; and those who disagree, or are neutral, are unlikely to want to take on the commitment.

The executive team – those carrying out the company’s mission day-to-day – may well be motivated by great passion. The directors (or other directors if the executives are also on the board) must remain alive to the possibility that this could blind the executive team to potential risks or challenges. The role of directors, particularly non-executive directors, is to adopt a more dispassionate approach and not let their respect for, and often friendship with, the executives prevent them from discharging their duty to constructively, but robustly, challenge the executives’ proposals. A good executive team will welcome this challenge and appreciate the value added by strong corporate governance.

Practice points

Disagreement in the boardroom is healthy. A cosy boardroom is a risky boardroom. That said, disagreement should always be expressed politely and discussions should be constructive.
Try not to recruit new directors in your own image. If the company is large enough, the directors should prioritise achieving diversity of views and backgrounds. This does not mean that you have to recruit people whom you know to be actively opposed to the company’s purpose!
If you know the directors all feel the same way about a particular issue, make a point of honestly considering opposing perspectives.
Keep minutes! Minutes of a meeting signed by the Chair of that meeting are a definitive record of the proceedings of that meeting. Minutes should summarise the discussion, rather than trying to create a verbatim record but should encapsulate the range of views considered.
Keep the best interests of the company at the top of your mind. Consider whether a particular course of action or campaign is promoting the purpose of the company or could in fact harm it.
Avoid the trap of thinking that, because your cause is noble, anything you do in pursuit of that cause must be justifiable.
Consider complaints honestly. The board may receive complaints that it thinks have been made in bad faith, but it should take the time to reflect on whether any may have merit. The directors may decide (and record their decision!) to apply a filter, focussing on complaints that demonstrate knowledge and genuine concern on the part of the complainant, while ignoring those at the more, shall we say, ranty end of the spectrum or those that are all in identical terms, suggesting a spamming campaign.

Questions to ask, especially when the directors are in vehement agreement, include:

What are the arguments against this course of action?
What factors might we have failed to consider?
To whom might we have failed to listen?
Is it possible we are mistaken?

Closing

The issues outlined in this article are relevant to all campaigning groups, not just feminists; moreover, I should clarify that no individual feminist group has inspired this article. However, we can probably all identify campaigning or charitable organisations that appear to have closed their ears to opposing views and their minds to the possibility that they have lost their way. Some of their actions are so transparently self-harming that it is hard to believe that the board can have considered a full range of viewpoints and asked robust questions about the potential risks. These organisations are often large and well-established, with the contacts and resources to recruit (and pay) experienced directors and trustees with diverse backgrounds. If, even with these advantages, they can exhibit such poor corporate governance, how much more must our fledgling organisations guard against falling into the same traps.

Response by Legal Feminist to Consultation on the Deception as to Gender section in the Rape and Serious Sexual Offences (RASSO) legal guidance

Written by a multidisciplinary team of feminist lawyers headed up by Sarah Vine KC

INTRODUCTION

  1. The existing legal framework in respect of consent obtained by deception establishes two authoritative positions:

 (i)       Where consent to a sexual act has been obtained by a deliberate deception as to a matter sufficiently proximate to the nature or purpose of that act, that consent may be vitiated; and

 (ii)      The fact of a sexual partner’s biological sex is so fundamental to the freedom and capacity of a person to agree to sexual activity[1] that a deliberate and operative deception as to biological sex is capable of vitiating consent.[2]

2.         The CPS is a creature of statute. It has no function other than to uphold the law by prosecuting criminal offences as stipulated in the Prosecution of Offences Act 1985. The CPS is a public authority which must operate within the law, and it has a duty to act in compliance with the European Convention of Human Rights[3]. It has no power to create or change the law.     

3.         The CPS may adopt policies to ensure that its charging decisions are consistent with the relevant rights engaged. In the context of this consultation, the relevant rights are those under Articles 3, 6, 7, 8 and 14 ECHR. Policies must operate within the confines of the existing law; the CPS cannot make or change the law through its policies.    

4.         The current CPS charging policy is irrational and unlawful. The proposed changes exacerbate these faults. Both current and proposed guidance invite lawyers tasked with making charging decisions to take account of matters which are irrelevant, prejudicial, unreliable and ideological.     

5.         The guidance undermines the effect of McNally in relation to a suspect who expresses a belief in a gender identity and asserts a gender identity at variance with his or her biological sex.

6. The guidance elides two matters which are categorically different in both fact and law. 

(i) A suspect’s knowledge of his or her biological sex;         
(ii) A suspect’s belief that he or she has a gender identity.

The former is something which any person over the age of criminal responsibility can be taken to possess. The latter is a subjective and metaphysical belief. It can be claimed by anyone but can be neither verified nor falsified. 

7. It is apparent that the guidance is drafted based on one or both of two false premises:

 (i)       That gender identity allows a person a discrete category of heightened privacy;

(ii)       That the belief in gender identity is capable of eclipsing, for all material and legal purposes, a person’s understanding of their own biological sex.

8. The introduction of either of these premises into the determination of criminal liability is a significant departure from the law as articulated in McNally, and enjoys no legal authority from any source. It is a purported change in the law which would almost certainly require primary legislation, and which on any view the CPS is not competent to make.

DEFINITIONS

Sex

9.         Sex is an objective, fixed and verifiable characteristic[4]. It is biological and binary in its nature; people with ‘intersex’ or DSD conditions are male or female, irrespective of those conditions. Sex is one of the protected characteristics under the Equality Act 2010[5].

Gender Identity

10. Gender identity is a disputed notion. The proposed guidance demonstrates the nebulous character of gender identity in the various attempts to define and illustrate it. Gender identity has no legal definition. It is a wider concept than the legally defined ‘gender reassignment’[6] which, itself, is wider than the category of people with a Gender Recognition Certificate pursuant to the Gender Recognition Act 2004.           

11. A GRC grants the holder the right to be treated as their acquired gender. The scope of this right was described by Choudhury J. in Forstater v CGD Europe[7] in the following way.           

“Although section 9 of the GRA refers to a person becoming “for all purposes” the acquired gender, it is clear from these references in decisions of the House of Lords and the Court of Appeal, that this means for all “legal purposes”. That the effect of section 9 of the GRA is not to erase memories of a person’s gender before the acquired gender or to impose recognition of the acquired gender in private, non-legal contexts is confirmed by the comments of Baroness Hale PSC in R (C) v Secretary of State for Work and Pensions [2017] 1 WLR 4127 .”

  1. Accordingly, a GRC does not change someone’s sex biologically. Biological sex in humans is immutable[8]. It is not changed by gender identity. Gender identity is not sex. It is not a universally accepted idea, nor even a broad social consensus. It is a subjective and metaphysical position assumed by an individual.    
  2. The Gender Recognition Act requires only that the applicant obtain a diagnosis of gender dysphoria; no surgical, chemical or other medical interventions are required. Intervention by way of hormones or cosmetic remodelling of secondary sexual characteristics is optional and, in any event, incapable of changing a person’s biological sex. The vast majority of those who describe themselves in terms that fall under Stonewall’s ‘trans umbrella’ (to which the authors of the guidance refer) have had no surgical alteration. 

DECEPTION

Deception and Consent: The Current Position

14.       The law relating to deception as to one’s sex is clear and settled. The statutory framework comprises s.74 of the Sexual Offences Act 2003, which defines consent, and s.76(2), which sets out the limited circumstances in which an operative deception will be held conclusively to vitiate both consent and any claim of reasonable belief in consent. Those circumstances are:

(i) deception as to the nature or purpose of the act, or 

(ii) impersonation of someone known to the complainant.

15. Beyond the conclusive presumptions, litigation has focused on the impact of deception on the freedom and capacity of a person to give consent (per s.74 SOA 2003). The determinative line held by the CACD has been one of proximity to the nature and/or purpose of the act[9]. The circumstances in which deception vitiates consent are narrow, and Parliament decided not to widen it by including in the 2003 Act any prohibition analogous to the terms of s.3 of the Sexual Offences Act 1956 (Procuring a Woman by False Pretences).           

16. The extent to which the CPS has strayed from legal authority is brightly illustrated in the fallacious assertion that an active deception may have occurred:

“where a suspect [with a GRC] falsely asserts that their gender identity is the same as their birth gender/assigned biological sex.”       

17.       This is a difficult concept. Those who have drafted the guidance appear to have in mind a situation in which a person who possesses a GRC and therefore may be presumed to have a gender identity at odds with his or her biological sex claims to have a gender identity congruent with his or her biological sex. So, for example, a trans-identifying male with a GRC declaring him to be a woman, but who falsely asserts that his gender identity is male; or vice versa.

18. The only deception in such circumstances would be as to gender identity. The guidance advises that a deliberate deception as to gender identity can vitiate consent. This must proceed from a position that gender identity is as close to the nature and/purpose of a sexual act as biological sex itself. This is a wholly fanciful proposition for which there is no legal basis. 

Gender Identity & Deception

19.       The idea of deception as to one’s gender identity is meaningless, because gender identity is neither verifiable nor falsifiable. With the exception of an expressed preference for opposite-sex pronouns, everything that might be relied on as proof of ‘living as a woman’ / ‘living as a man’ refers to inherently sexist imposed social codes and norms.         

20.       Gender identities are necessarily formulated by reference to a person’s biological sex. They cannot eradicate a person’s knowledge of his/her own sex. A belief that biological sex is of no importance, or that it is of subordinate importance to a person’s gender identity, does not alter the fact that every person knows their own sex. The same applies to the belief that gender identity should be allowed to take legal and social primacy over biological sex. A belief that one is ‘born in the wrong body’ is an acknowledgement of one’s biological sex. A belief that compliance with social codes of femininity and masculinity are what define men and women does not alter a person’s knowledge of their own sex. The assertion of a gender identity may be a signal that the person does not believe sex is of any real importance, but it also recognises that society at large believes otherwise. 

21.       A Gender Recognition Certificate creates a legal fiction that a person is for most legal purposes, the sex that s/he, objectively and scientifically, is not. A legal fiction is a ‘deliberate deception’, in circumstances where the latter term is stripped of its pejorative weight.            

22.       A person (with or without a GRC) who is ‘living as a man’ or ‘living as a woman’ may be presumed to be engaged in a deliberate deception, assuming that they seek to ‘pass’ as the opposite sex. Legally and socially, there is a broad consensus that such a deception should be accepted, or treated as acceptable, for many purposes in that person’s public life. (That person’s use of, and access to, single-sex spaces does not fall within the consensus, but will not be addressed here.)

23.       ‘Identifying as’ a man or as a woman cannot be equated with a genuine belief that one is male or female. In order genuinely to believe that s/he is biologically the other sex (as opposed to, for example, believing that sex is not biologically defined), a person would have to be suffering from a delusion. Some proponents of the ideology which underpins the idea of gender identity (‘gender ideology’) will assert that there is such a thing as a ‘female penis’ and a ‘male vagina’. These are ideological emanations which seek simply to reorganise biological facts in line with the philosophical position that the categories of male and female are subjective and independent of biology; since such a position refuses to recognise the law, it cannot amount to a genuine belief for the purposes of the law.

24.       The proposals advise prosecutors to treat what they regard as a genuine assertion of a gender identity as evidence of a genuine belief about a person’s sex in assessing an allegation of deception as to sex. This would be analogous to treating a man’s sincerely-held religious belief that wedding vows function as a perpetual consent to sex as evidence of both consent and a reasonable belief in consent in assessing an allegation of the rape of his wife.            

25.       The guidance turns on the idea that a person’s gender identity, if genuine, may render a deception as to their sex inadvertent. It advances the staggering proposition: 

“If a suspect genuinely perceives their gender identity to be different to their birth assigned sex or if their gender identity is in a state of flux and/or emerging, this may be evidence there was not a deliberate deception.”        


26.       This is irrational and amounts to a breach of Article 14 in respect of relevant substantive rights (paragraphs 30 to 35 below) for both complainants and suspects. It results in a situation in which the philosophical beliefs of one cohort of suspects will or may:

(i) impact on the likelihood of charge;

(ii) determine the availability of a defence to any suspect;

(iii) undermine the accessibility and foreseeability of the law for suspects; and

(iv) diminish the legal protection for complainants from inhumane treatment.

27.       As a defence it could only be afforded to people who believe in gender ideology or purport to do so (the availability of such a defence could be expected to encourage false declarations of belief). Its success or otherwise at trial would depend on the ideological beliefs of a jury, because a jury will only be able to accept that gender identity renders a deception inadvertent if the members subscribe to specific precepts of gender ideology. It would not, therefore, be a question of whether the members of the jury accept a defendant’s account, but whether they agree with its ideological premise. That is an invidious position in which to place both a complainant and a defendant, and a wholly unreasonable approach to the assessment of evidence in making a charging decision. It is doubtful that so arbitrary an operation of the law would satisfy the definition of an impartial tribunal for the purposes of Article 6 or the qualitative requirements of legality for the purposes of Article 7.

RELEVANT CONSIDERATIONS UNDER THE ECHR

Article 3: Prohibition of Inhumane Treatment

28.       Rape and Sexual Assault amount to inhumane treatment for the purposes of Article 3. The right not to be subjected to such treatment is absolute, and the effect of Articles 3 and 8 is to impose on the State an obligation to provide protection from, and legal redress for, rape and sexual assault committed by private individuals[10]. To the extent that the guidance precludes or impedes a positive charging decision on an unlawful basis, it runs contrary to Article 3 amounting to a failure by the State to meet those obligations.

Article 8: Respect for Private and Family Life 

29.       The most prominent legal error in respect of Article 8 is the silence as to a complainant’s rights to a private and family life (in particular as they interact with Article 3 rights). Article 8 rights apply to all individuals in the context of consent obtained by deception and the investigation into, charging decisions about, and the prosecution of such an allegation. The interference with rights to a private and family life involved in the prevention of crime[11] (as well as the protection of rights under Article 3) is justified where it represents a proportionate means of achieving a legitimate aim, necessary in a democratic society. The guidance views rights to a private and family life exclusively through the prism of the deceiver’s experience without any apparent regard for that of the deceived.         

30.       The sections entitled ‘Gender Dysphoria’ and ‘Gender Recognition Act’ disclose two further errors of law. One is to extend, without any legal basis, the protected characteristic of gender reassignment to include anyone with a stated gender identity which is at variance from their biological sex. The other is to treat privacy , again without any legal basis as a freestanding matter to be taken into account in assessing the factual matrix of an allegation, specifically the question of privacy as to a suspect’s biological sex. Both of these errors are in concert with the legal changes contended for by lobbying organisations such as Stonewall, Mermaids, Gendered Intelligence, Global Butterflies etc (all primarily concerned with the promotion and legal adoption of gender ideology).    

31.       In support of the erroneous approach to rights to a private and family life, the guidance cites the ‘CPS Trans Equality Statement’ from 2019 and the Equal Treatment Bench Book 2021. Neither has any legal force. The former was promulgated shortly before the short-lived CPS LGBT Hate Crime guidance for schools[12]. Emphasis is also placed on s.22 of the GRA which provides that it is an offence for a person who has acquired information about a person’s GRC in an official capacity to disclose this information to another person. Whilst the citation of this provision is not inaccurate, it discloses a partiality in the perspective of those drafting the policy. The restrictions on data processing set out in s.22 GRA add nothing to the provisions of Article 9(1) of the UK GDPR and s.170 Data Protection Act 2018 in respect of those holding, or applying for, a GRC. Article 9(1) of the UK GDPR, however, applies equally to all suspects and all complainants in allegations of sexual offending. In the context of a document suffused with the language of gender ideology, this choice does not present as inadvertent or politically neutral.   

32.       The obligations of Article 14 apply to the protection of Article 8 rights for both complainant and suspect. Trans identified people have a right not to be discriminated against in the enjoyment of their right to privacy. But a decision not to prosecute based on the legal errors in this guidance would engage the Article 8 and 14 rights of complainants, since the vast majority of complainants in such allegations are female. The scope of deceptions capable of vitiating consent to sexual activity is already extremely narrow; this guidance would limit that scope further, and exclusively to the benefit of trans-identified suspects. In doing so, it would reduce the level of protection afforded to victims whose consent has been obtained by deception as to the accused’s sex. This introduces an asymmetry to the protection against deception, leaving some victims at a material disadvantage against those whose consent has been vitiated by other operative deceptions, or by suspects who do not identify as trans. It creates a further asymmetry in the approach to charging as between those suspects who identify as trans (or claim to) and those who do not, engaging the Article 14 rights of suspects who do not identify as trans in respect of their protection under Article 7.         

33.       The legal position in respect of privacy as it pertains to consent obtained by deception is as follows:

(i)        There is no legal authority for the proposition that a person has a privacy right to withhold the fact of his/her biological sex from a sexual partner.

(ii)       The Article 8 rights of complainants in allegations of sexual offending are engaged; the right to privacy encompasses a complainant’s psychological integrity, bodily autonomy and dignity, all of which are centrally relevant to both the act(s) complained of and any consequential investigation and litigation.

(iii)      Complainants in allegations of sexual offending have an enhanced general position in privacy in domestic law[13].            

(iv)      To the extent that an accused person can rely on the right to respect for his/her private and family life, the right to privacy is generally lost upon charge[14]. Such exceptional cases in which a right to privacy subsists are dealt with by way of reporting restrictions.    

(v)       The right to anonymity for a defendant is a matter of ongoing contention and would require the authority of primary legislation before it could be given effect. 

(vi)      There is no reason why a trans identified suspect (or a suspect claiming to identify as trans) should have an enhanced right to privacy where another suspect would not. Such a proposition enjoys no support from s.22 GRA, the Data Protection Act 2018, the Equality Act 2010, the Human Rights Act 1998 or any case law.

(vii)     If, and to the extent that, both complainant and accused have ECHR rights engaged, the proper approach is the “intense focus” test[15], articulated by Lord Steyn at §17 thus:

“First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

34.       The process of accurately identifying rights to a private and family life as they relate to trans identified suspects has been made significantly more difficult by the way in which the guidance creates a single cohort of people with different legal statuses. Those with a GRC fall under Article 9(1) of the UK GDPR, and s.7 of the Equality Act 2010. Those without a GRC but who are “proposing to undergo, undergoing or ha[ve] undergone a process (or part of a process) for the purpose of reassigning [their] sex by changing physiological or other attributes of sex” fall under s.7 EA 2010. Those who have not undergone, and do not propose to undergo, any process of sex reassignment but who assert a gender identity different from their sex do not fall into the scope of either provision. None of the categories are entitled to an enhanced right to privacy, and the latter two have no access to the data processing limitations of Article 9(1) of the UK GDPR.[16]

UNLAWFULNESS

35.       The introductory remarks state that the proposed guidance is intended to assist prosecutors with a complex area of law. Since the unwavering focus of the proposed guidance is the trans-identified suspect’s right to privacy pursuant to Article 8, as it is said to interact with domestic law on deliberate deception as to sex, it would be reasonable to expect an indication of where, the protection of a suspect’s Article 8 rights is failing in practice. The consultation document is, however, silent as to this. Expressed bluntly, the guidance creates the impression that suspects who identify as trans should be more readily excused criminal liability for deception as to sex, not because the deception was not deliberate, but because they identify as trans.            

36.       The guidance treats a suspect’s gender identity as a relevant, or even determinative, factor in establishing whether a deliberate deception as to sex has occurred. Whether it is right, desirable or workable for this position to be brought into law is an undoubtedly important issue. It remains, however, unlitigated and unlegislated. Embedding a preferred view on the matter into policy in this way represents an overreach on the part of the CPS so startling that it could be described as an attempt to usurp the function of Parliament. The effect of the guidance is to interpret and apply the substantive law as though it had been changed in a number of respects, all of which are so significant that they would require binding judicial authority at the very least, if not primary legislation. This goes far beyond the CPS’s duty to apply the law and trespasses unambiguously into the territory of making law. It is frustrating the legislative function conferred on the CPS and is ultra vires.

37.       The guidance elides two categorically different uses of the word ‘gender’ in circumstances where the distinction between the two is central to the legal issue at hand. ‘Gender’ in the sense that it was used by Leveson LJ in McNally means biological sex, a matter which meets the legal requirement of proximity to the nature and purpose of the sexual act. This is the only meaning of ‘gender’ pertinent to the question of whether a deception as to sex was deliberate. ‘Gender’ in any of its other senses (a societal system of norms used to protect and enforce inequality between men and women, an individual’s metaphysical ‘sense of self’, a political identity etc) is incapable of meeting that same requirement and is wholly irrelevant to the assessment of whether a deliberate deception took place. The elision of these two matters for the purposes of applying the legal test does not serve the stated aim of the consultation (to assist prosecutors to have a better understanding of the law). Instead, it appears to promote an avoidable, unnecessary and legally baseless confusion with the result that prosecutors will be advised to make decisions on the basis of irrelevant considerations. This is an error of law and is, in our view, unlawful.

38.       The guidance expands beyond their legal definition the scope of s.9 of the Gender Recognition Act 2004 (misinterpreting the phrase “for all purposes” as applying far beyond the GRC holder’s public life) and s.7 of the Equality Act 2010 (to construe the protected characteristic of gender reassignment as being coterminous with gender identity), such as to make the legal and practical consequences of those provisions opaque. The combined effect of these misinterpretations is to confer a special status (reaching beyond the protections of the Equality Act 2010, the Gender Recognition Act 2004 or the Data Protection Act 2018) on an expanded cohort of suspects, whose common characteristic (gender identity) is not legally recognised. This further renders the guidance unlawful for errors of law and frustration of the legislative purpose.          

            THE SECTIONS

Gender Dysphoria

39.       Two sentences of this section are dedicated to the explanation of gender dysphoria as a medical diagnosis. The remainder of the section is given over to the somewhat different (and non-medical) topic of gender identity, perhaps to suggest that the two are largely coextensive. The relevant point is that both gender dysphoria and gender identity involve an individual having a clear understanding of what his or her biological sex is. Neither has any impact on the fact or nature of a deception as to sex.      

Evidential Considerations

40.       The point extracted from paragraph 26 of R v McNally [2013] EWCA Crim 1051 is correct, in that the CACD did find that the Appellant’s deception was deliberate. From this, the CPS assumes the position that the ‘inadvertent but operative’ deception as to sex is something of which a suspect should be able to avail him or herself by relying on the authenticity of his or her gender identity to establish inadvertence.            

41.       The axis around which the deception turns is the physical binary of sex; unless and until Parliament decides otherwise, gender identity is immaterial for the purposes of establishing whether there has been such a deception or whether it was deliberate; any guidance must reflect this fact in a way that is logical and immediately comprehensible. Deception as to gender/gender identity cannot negative consent, because a person’s stated ‘internal sense of self’ (sincere or otherwise) does not meet the threshold of proximity either to the ‘nature or purpose of the act’ for the purposes of s.76 SOA 2003 or to the act itself for the purposes of s.74 SOA 2003[17]. One need only consider a scenario in which B (a female) consents to penetrative intercourse with A (a male) on the basis that A has told B that his gender identity is Genderqueer, when it is, in fact, Two-Spirit. However unlikely such a scenario might be, no rational reading of the law would support the conclusion that B’s consent was vitiated by A’s deception.

42.       By contrast, misrepresenting one’s gender identity as one’s sex (where the former is opposed to the latter) is a necessarily deliberate deception. Every person knows their sex from a very young age, long before the age of consent. A person’s feelings or beliefs about the fact of their sex may be a source of great distress and pain to them, but the legal fiction afforded by a GRC cannot trespass into the arena of sexual consent. To operate otherwise would be to prioritise the privacy and dignity of some people at the expense of the privacy, dignity and right not to be subjected to inhumane treatment of their current or prospective sexual partners.     

43.       Virtually everything in the following extract from this section is legally confused or  wrong. This passage is diagnostic of the extent to which the proposed guidance is an ideologically driven attempt to circumvent the law as it currently stands:

“There is no duty to disclose gender history[18], but in some circumstances suspects who are living in a new gender identity at the time of the alleged offending (as opposed to falsely purporting to be a different gender), including those who have obtained a GRC[19], may still be capable of actively deceiving a complainant as to such matters relating to their gender. For example, where a suspect falsely asserts that their gender identity is the same as their birth gender/assigned biological sex[20]; or lies in response to questions about their gender history; or denies being a trans man or a trans woman[21].”

44.       It is, perhaps, worth noting that at §10 of McNally, the appellant was described as repeatedly expressing the desire for a “sex change”. As previously observed, McNally uses the language of 2013, but the terminology of gender ideology would have little difficulty in describing her as a ‘trans man’. The proposed guidance may well result in a decision not to charge in the circumstances that met the court in McNally. The decision in McNally has drawn criticism from prominent proponents of gender ideology[22], to the effect that deception as to sex does not incur sufficient harm to justify the interference with a transgender suspect’s privacy. The authors of this policy appear to be seeking to overturn McNally without having to wait for any countervailing authority or legislation. 

45.       The legal protection of gender reassignment (not gender identity) creates conflicts with two other protected characteristics; sex and sexual orientation. It is difficult to identify an area of life in which those conflicts have a greater impact than they do in sexual activity. The centrality of a partner’s sex to a victim’s freedom and capacity to choose, and therefore consent, is set out in paragraph 26 of McNally:

“Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common-sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant’s deception.”

46.       In the section ‘Was the complainant deceived and therefore did not consent?’, the influence of the gender ideology lobby is evident once again. Half of the questions invite an approach in which a complainant should be considered responsible for establishing whether s/he is being deceived about a sexual partner’s sex.

“Has the complainant closed their eyes to the obvious or wilfully ignored aspects of the suspect’s gender? For instance, did the complainant have an opportunity to discover or confirm the gender of the suspect but chose not to avail themselves of the opportunity?”          
and

“Is there any evidence that the complainant was exploring their own sexuality at the time of the alleged offending?”

47.       It has been a number of years since so sceptical an assessment of complainants of sexual offending has been considered acceptable at the CPS. This runs counter to the strategy of ‘offender focused’ investigations which the CPS has developed as part of its Violence Against Women and Girls strategy.                 

48.       The adoption of these revisions would expose the CPS to the very real risk of litigation on the basis that the guidance is irrational and unreasonable, that it breaches of the rights of victims under Articles 3, 7, 8, and 14 of the ECHR, the rights of suspects under Articles 7, 8 and 14 of the ECHR, and the Public Sector Equality Duty pursuant to s.149 of the Equality Act. The absence of an Equality Impact Assessment for this consultation is striking; it could be fairly regarded as shorthand for the comprehensive failure – or refusal – to consider the multiple conflicts of rights thrown up by this guidance.  

49.       For all the above reasons, we urge the CPS to suspend the current guidance and to withdraw these proposals. Any replacement must be drafted with the objective of upholding the CPS’s legal obligations as they are, and not as some would wish them to be.

[1] s.74 Sexual Offences Act 2003

[2] R v McNally [2013] EWCA Crim 1051

[3] S.6 Human Rights Act 1998

[4] Corbett v Corbett [1971]; Bellinger v Bellinger [2003] 2 AC 467, HL; Chief Constable of West Yorkshire Police v A (No 2) [2005] 1 AC 51, HL

[5] S.11 and s.212 Equality Act 2010

[6] S.7 ibid

[7] [2022] I.C.R. 1 at §97

[8] R (oao Elan Cane (Appellant)) v SSHD [2021] UKSC 56 at §3

[9] R v Jheeta [2007] 2 Cr. App. R. 34 §24; R(F) v DPP [2013] 2 Cr. App. R. 21; R v McNally (2013) EWCA Crim 1051; R (Monica) v. Director of Public Prosecutions [2018] EWHC 3508 (Admin) at §74, §80; R v Lawrance (2020] EWCA Crim 971

[10] MC v Bulgaria (2005) 40 E.H.R.R. 20 at paragraphs 151-153; D v Commissioner of Police for the Metropolis [2019] A.C. 196

[11] Article 8(2) ECHR

[12] This was withdrawn in 2020 in the early stages of a public law challenge

[13] S.1 Sexual Offences (Amendment) Act 1992

[14] ZXC v Bloomberg [2022] UKSC 5

[15] In re S [2004] HL 47

[16] Article 9(2)(f) UK GDPR

[17] R v Lawrance (2020] EWCA Crim 971, Assange v Sweden [2011] EWHC 2849 (Admin), R (oao Monica) v DPP [2018] EWCA 3508 (Admin)

[18] Assuming that ‘gender history’ includes a reference to a person’s biological sex, this is a somewhat tendentious interpretation of R v B [2006] EWCA Crim 2945 and sits in contradiction to Lawrance at paragraph 41.

[19] This implies, incorrectly, that possession of a GRC entitles a person to deceive a sexual partner about their biological sex.  

[20] See §17ff above

[21] This clearly relates to the fact of a person’s biological sex

[22] See e.g.; ‘Sexual Intimacy and Gender Identity ‘Fraud’: Reframing the Legal and Ethical Debate’; Alex Sharpe, Routledge

CONFLICTS OF INTEREST

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

A thought experiment

Take a religious group – something like Opus Dei, for instance. What might it do if determined enough? Let’s imagine. 

  • It successfully presents itself as the only valid representative of all Catholics, indeed, all Christians in the UK – at least as far as the press and politicians are concerned. 
  • It attracts support from popular celebrities. 
  • It speaks regularly about discrimination against Catholics, how marginalised a minority and about their human rights (“Catholic rights are human rights”). 
  • It says anyone raising concerns about child abuse by Catholic clergy shows hatred. 
  • It describes those who criticize it or Catholics generally as “heretics” and “hate groups” or phobic.
  • It runs schemes whereby, for money, it audits organizations for how pro-Catholic – as determined by Opus Dei – they are. 
  • It advises organizations and trains their employees on language, facilities, policies, the steps they must take – both internally and externally – to promote the faith as promulgated by Opus Dei and earn those points. 
  • It requires organizations to teach all its staff (not simply Catholic ones) to talk about their souls, use religious language in their communications and remove any language or expressions which might offend Catholics. 
  • It publishes league tables identifying which organizations are the most pro-Catholic, as decided by it. 
  • It campaigns for changes in legislation to promote its religious ideals, changes which significantly alter existing equality legislation, especially for those opposed to religion having a say in legislation or affected by the changes it lobbies for. 
  • It lobbies for the abolition of civil and same sex marriage so that marriage will be  based on Opus Dei’s understanding of the Sacraments. 
  • It advises organizations on equality law based on what it would like the law to be.
  • It provides training and information packs to be used by schools. 
  • It has a flag, special days to celebrate what it stands for and regular public events at which employees from its members dress up in its religious habits and use its symbols, on vehicles, buildings and elsewhere. 

Finally, imagine that many of the organizations where Opus Dei do this are state or state-funded organizations – the police, local authorities, government departments, grant-giving bodies and health authorities. They sign up to its creed, use its language, promote its symbols and congratulate themselves not just on not being anti-Catholic but on being proudly pro-Catholic, pro-Opus Dei. 

Reasons for worry?

You’d think, wouldn’t you, that this is a bit odd. You’d be concerned at how a particular ideology was being spread without anyone else having a say. You’d be concerned that this seems to put the rights, interests and views of one group above those of others. You’d worry that it appears to be distorting or misinterpreting equality legislation. You might even wonder at the number of law firms signing up, thinking they’d be well placed to understand the law without the need to rely on non-legal lobbyists. You’d worry that the normal space for disagreement about aims and means was being squeezed out if any disagreement or challenge or questioning was described as “hate” and those expressing such concerns as “hate groups”. Above all, you’d worry that this creates a conflict of interest between what such organizations are legally required to do for all citizens and what they have agreed to do to satisfy Opus Dei and maintain their position in its league tables. 

You don’t, of course, need to imagine any of this because it is happening now. Substitute Stonewall for Opus Dei and it pretty much describes how Stonewall currently operates. 

The consequences

Those state organizations which sign up to Stonewall’s schemes have created multiple conflicts of interest: between themselves as employers and different groups of employees and between their public duties and their legal obligations to all citizens. They have blurred the distinction between a body carrying out public functions under existing laws and campaigning lobbyists. They have failed to recognise that such conflicts of interest exist. They have failed to consider the creation of a perception of such conflicts of interest, even if that was not their intention. They appear not to understand the problems arising when a body implementing the law acts as if changes desired by a lobby group advising it had already happened. Since they have not understood any of this, they have taken no steps to eliminate or mitigate such conflicts of interest. 

This is why we get the usual cycle of some unacceptable action or comment, protest, panic by the organization concerned, withdrawal of the original comment/action accompanied by an apology blaming it all on an underling/a mistake and assurance that whatever happened was not in line with their “values”. The fundamental underlying problem and how to address it seems to pass them by entirely.

The police

Nowhere is the existence of such conflicts of interest more troubling than in the police. The police enforce the criminal law. They have significant powers over us. They have a duty to police “without fear or favour”. They need not just do this but be seen to do this. The reality of bias, the perception of a bias are damaging to proper policing. Such conflicts of interest risk damaging the rule of law and citizens’ faith in it. 

This has been made more acute by three factors: 

(1) Police misunderstanding their obligations as employers under equalities legislation.

(2) Confusing their obligations as an employer with their outward-facing public service obligations.

(3) The police’s approach to non-crime hate incidents. 

Equalities laws and discrimination

Discrimination against police officers from minorities has understandably led to counter-measures. But what the police appear to have forgotten is that the obligation not to discriminate applies to all its staff. It does not simply apply to one group with a strong lobby behind it. In following the diktats of one lobby group, the police risk behaving in a way which discriminates, whether directly or indirectly, against others. For an excellent, detailed explanation of why – and the risks involved -, see Naomi Cunningham’s blog – https://wwww.legalfeminist.org.uk/2021/02/01/submission-and-compliance/.

Public duties

This approach has extended to its public-facing duties, as a direct result of the reach of Stonewall’s schemes. The training of staff according to Stonewall’s views will inevitably affect how they carry out their duties towards the public. More explicitly, Stonewall’s schemes expressly cover “service users”. For public bodies, this means us. It is astonishing and worrying that any public body – let alone the police – should think it appropriate to allow a lobby group to dictate, influence or advise on the performance of its public functions. The police’s sole purpose is to enforce the criminal law. When it needs advice, it should obtain this from expert criminal lawyers. If it needs advice on complying with equality law, it should obtain this from expert equality lawyers. What it should not do is obtain advice or training from – or be influenced by – a lobby group primarily acting for only one of the groups it polices. What is even more worrying is that in all the time the police have been part of Stonewall’s schemes, it appears not to have obtained legal advice on whether doing so creates a conflict of interest or the perception of one and whether, if so, this creates a risk in how it carries out its public duties.

Non-crime “hate”

The final point relates to the police’s approach to non-crime hate incidents. One might ask why the police are involved at all in matters which are not crimes. Whatever the reason, they have got themselves involved in what Lord Moulton described some 90 years ago as the “realm of manners” – that space between the law at one end and free choice at the other. 

They have allied themselves closely with one lobby group and adopted its view on matters where there are both differences of opinion, a changing scientific context and legislation and case law different to what the lobby group believes or wants. In so doing, the police have put themselves in a position where those who disagree with Stonewall’s position can have little 

confidence that in any incident involving such matters the police will be – and be seen as – compliant with the law, not overreaching their powers and impartial. 

This last point was seen in the Miller case where the Court of Appeal held that police guidance to record non-crime hate incidents –

“is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate”. 

A year later, the College of Policing is proposing (apparently on legal advice) guidance allowing transgender officers to search those of the opposite sex to that of the transgender officer. This appears to be a breach of the relevant PACE provisions. It is, however, consistent with Stonewall’s view that a man who believes he is a woman is one and so should be allowed to carry out an intimate search of a woman. According to reports, the guidance also appears to suggest that a refusal by a woman or request for a female officer could be classed as a hate crime. The underlying assumption appears to be that intimate searches of the public are a service which, say, women should not deny to trans-identified male officers. This is a topsy turvy approach to police compliance with a law, one brought in after miscarriages of justice and police misbehaviour to ensure that evidence is properly collected without a sexual assault being committed and with proper regard for the dignity of the person being searched who is, it should be remembered, innocent. 

We’ve been here before

The police being beholden to groups with an agenda is not a new problem. In Northern Ireland ever since its establishment, the RUC was seen as the explicitly anti-Catholic enforcement arm of a “Protestant Parliament for a Protestant people”. The bias was real and ultimately fatal to the rule of law there. More recently, the issue of Freemasonry raised similar concerns. During the 1960’s and 1970’s, concerns about corruption in police forces arose because of a perception that Masonic officers were putting the interests of fellow Masons above those of the force as a whole or their obligation to obey the law. Membership of a secret organization was eventually seen as creating a conflict of interest between a police officer’s duties and his obligations as a Mason. There is an echo of this in the way that Stonewall’s agreements with members of its schemes are not made public on the grounds of commercial confidentiality, despite the obligations they place on public servants.

Now

This time it is not whether individual officers may have a conflict of interest. Rather it is that police forces – by making themselves beholden to Stonewall’s agenda through its schemes – are explicitly putting themselves in a position where one cannot be confident that police decisions aren’t distorted by their membership of those schemes. For instance, how can women arguing for single sex spaces facing a demonstration by those demanding they include transwomen have confidence in policing of such a demo by police trained by those arguing the latter and turning up in a car painted in Stonewall colours? How can someone objecting to a potential breach of PACE be confident that they won’t be unfairly charged with a hate crime or have a non-crime hate incident recorded against their name if the police force has signed up to guidance permitting this? 

How can one have confidence that the police – or other public authorities (see, for instance, the latest furore over the withdrawal of an Arts Council grant to a lesbian organisation opposed by Stonewall) – will not, in part (maybe unconsciously), be influenced by their desire to please Stonewall? One can’t. There is a clear conflict of interest. There is certainly a perception of one. The police should never have allowed this to arise. Nor should other public authorities. Or private bodies, for that matter. But at least there we have a choice. We do not with state bodies.

It is long past the time for them to stop outsourcing their thinking to – and seeking to comply with the requirements of – lobby groups. If such bodies won’t act, the government should intervene. Conflicts of interest are the sine qua non of all scandals. This one is no longer even hiding in plain sight.

New clause 15A of the Gender Recognition Reform (Scotland) Bill: a chocolate fireguard? 

The Gender Recognition Reform (Scotland) Bill proposes a raft of amendments to the gender recognition process in Scotland. It sounds dry and technical, and of interest only in Scotland. But the changes proposed by the Bill, including sweeping away the requirement for a medical diagnosis and reducing the minimum age to 16, will be of great legal and practical significance south as well as north of the border. This is because Scottish GRCs will be available to anyone who is resident in Scotland at the time of the application, or whose birth or adoption was registered in Scotland. If it goes through, there will soon be many individuals holding Scottish GRCs – granted on the basis of radically loosened criteria – resident in the rest of the UK. 

Similar changes were mooted by the Westminster Government in its 2018 consultation on GRA reform, but abandoned in light of the responses to that consultation. 

There’s much current debate about what exactly a GRC means for the operation of the Equality Act 2010, and especially for the operation of the single-sex exceptions in the Act. As yet, there are no definite answers provided by binding case-law. It has been widely argued that a GRC allows a biologically male holder easier access to all women-only spaces (toilets; changing rooms; single-sex hospital wards – including locked psychiatric wards where some of the most vulnerable and traumatised women in society are detained; rape crisis centres; prisons etc) subject only to very narrowly construed exceptions. Official guidance on the subject is in a state of flux. A statutory Code of Practice published in 2011 by the EHRC, the UK’s equality law regulator, suggests that a person with a GRC must be treated for the purposes of the exceptions as being of the “acquired sex”, which makes it more difficult to justify exclusion. More recent non-statutory guidance is silent on the impact of a GRC, and the 2011 Code is now under review.

If the Bill in its current form is passed, single-sex spaces and services will come under intense pressure from members of the new, larger group possessing GRCs who feel entitled to automatic access. And public authorities and service-providers may well often be intimidated into allowing that access by the complexity and uncertainty of the potential legal arguments. There is already plentiful evidence that providers are struggling to understand the law here. Both the EHRC and the UN special rapporteur on violence against women and girls have raised grave concerns about the impact of the Bill. 

At Stage 2, Labour’s Pam Duncan-Glancy MSP introduced an amendment that purports to deal with these worries. This was agreed, inserting into the Bill a new clause 15A. Having given evidence to the Scottish Parliament on these subjects earlier this year, I want to supplement that evidence to comment on whether the amendment deals with the concerns above. 

 Clause 15A says: 

“For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”

This is vacuous. The Bill couldn’t modify the Equality Act if it wanted to, because equal opportunities is a subject that has been explicitly put beyond the legislative competence of the Scottish Parliament by the Scotland Act 1998 (schedule 5, part II, paragraph L.2). If an Act of the Scottish Parliament purports to do something beyond the Parliament’s legislative competence, the provisions in question are simply ineffective. 

So this new clause does precisely nothing. 

The problem was not that the Bill (before amendment) modified the Equality Act – it couldn’t do that anyway – but that the Bill makes it much easier to get hold of a certificate that may have profound consequences for the way in which the single-sex exceptions in the Equality Act operate. As another witness to the Scottish Equalities, Human Rights and Civil Justice Committee suggested, this is best understood by thinking of those provisions of the Equality Act as creating a locked door to which only a few people have the key. The new clause added by Pam Duncan-Glancy’s amendment says: “For the avoidance of doubt, we’re not removing the door, or changing it or its lock in any way.” That’s irrelevant. The door and its lock are safe in Westminster, and the Scottish Parliament couldn’t change them if it tried. What the Bill proposes to do – and at least arguably can do – is manufacture thousands of extra keys to the door, and hand them out to pretty much anyone who says they’d like one. The amendment doesn’t address that. 

That’s not to say that the Bill couldn’t be amended to make explicit that any GRC issued under it has no effect for the purposes of the Equality Act. The EHRC suggested something very like the amendment proposed at Stage 2 by Foysol Choudhury MSP to achieve this, but the Scottish Government rejected it. 

For such an amendment to be fully effective, it would ideally be accompanied by changes to the privacy provisions in Section 22 of the GRA 2004. This section already creates confusion and fear among service-providers. At least one Scottish health authority has stated that it cannot guarantee female healthcare on the grounds of protecting privacy. The Employment Lawyers’ Association analysed the problem at paragraphs 27-30 of its written evidence to the Westminster Parliament of November 2020. 

A petition lodged at Westminster by Sex Matters earlier this month asks the UK Government to modify the Equality Act 2010 to put it beyond doubt that the terms “sex”, “male”, “female”, “man” and “woman” in equality law mean biological sex and not “sex as modified by a Gender Recognition Certificate”. This is something only Westminster can do, but it is a simple and powerful solution that would bring closure to the heated and sometimes toxic debate about what exactly is the impact of a GRC on the operation of the Equality Act. 

This problem can be solved in various ways, but clause 15A isn’t one of them. 
______________________

Naomi Cunningham is a barrister specialising in discrimination law.  She gave evidence to the Scottish Parliament in June 2022: https://www.scottishparliament.tv/meeting/equalities-human-rights-and-civil-justice-committee-june-14-2022; and to the Westminster Equality and Human Rights Committee.  She was a member of the working group that wrote the response of the Employment Lawyers’ Association to the Women and Equalities Committee’s 2020 call for evidence. The commendably non-partisan working group also included Robin Moira White and Nicola Newbegin, authors of a 2021 book, “A Practical Guide To Transgender Law”.

Chesterton’s Fence

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

“Lessons will be learnt”. How often do we hear this? If only. Lessons are not learnt: not by those who should learn them; not enough to prevent similar problems happening again.

Why?

1.      The memory hole

If a few years ago, who remembers the investigation or report? Or that it might contain something relevant now? Gavin Williamson resigned over bullying allegations against MPs and civil servants. But no commentator mentioned the 2018 Dame Laura Cox report[1] into bullying within Parliament. It was promptly buried with no action taken. So here we are. Again.

2.      This time it’s different

The 4 most dangerous words in the English language. Not true and too often an excuse for ignoring lessons painfully learnt.

3.      Defining the question to get the answer you want

See Credit Suisse in trouble over Archegos[2], a fund run by a man who, when running a different fund, was convicted for insider dealing. How did they get themselves comfortable? Well, by saying this was a different legal entity thus ignoring the character, history of the man in charge and the risks this posed.

4.      La-la-la: I’m not listening. Or asking. Denying evidence, not making inquiries so as to 

avoid getting inconvenient answers, refusing to listen to those raising concerns, retaliating 

against whistleblowers are all too common. Believing what fits with your preconceived

opinions commoner still. As is dismissing concerns as a “moral panic”.

5.      Groupthink: With the latest fashionable cause, it becomes easy to ignore those asking 

difficult questions or challenging the proposals. Easier to go with the flow than be a member

of the awkward squad, especially if retaliation is feared or threatened[3].

Remarkably, the Scottish government has taken all of these routes in its response to those asking questions about the GRR Bill. Consider this by Shona Robison earlier this year –

“There is no evidence that predatory and abusive men have ever had to

pretend to be anything else to carry out abusive and predatory behaviour.”

She went on –

“The evidence is critical in relation to this issue.” 

Indeed. It is. She clarified –

“If we look at the evidence, the threat to women and girls comes from 

predatory and abusive men, not the trans community.”

Note the assumption that not only is there no crossover between predatory, abusive men and those claiming to be trans but there can never be such a crossover.

Still, no evidence? Really? Let’s be kind and accept she was only referring to those countries which had brought in self-ID as planned for Scotland. The Scottish government is always keen to emphasise how in line with international best practice it is. So it must surely have looked at what the evidence actually showed. Yes? Alas, no – as seen in this summary of the international position by MurrayBlackburnMackenzie[4].

It’s worth noting: 

(1)     the Scottish government has admitted that it has not found or done any research on the 

impact of self-ID laws on women in these other countries[5]. Always easiest to claim there is 

no evidence if you don’t bother looking for it, of course.

(2)     In fact, there is evidence of significant problems affecting women, for instance, men ID’ing as women to obtain access to women in places such as prison. In Canada, the US, even Argentina where self-ID was first enacted in 2012.

Let’s look more widely. Is there any evidence in, say, the UK of abusive men pretending to be something else in order to abuse? Or using the cover of something fashionable or respected to carry out abuse? 

–      A celebrity famous for his charitable activities, say? Why, yes: see Jimmy Savile. 

–      Or an inspirational Olympic-winning swimming coach? Yes again – see George Gibney[6], one of many male sports coaches abusing those entrusted to their care. 

–      What about the 19 IICSA Investigation Reports[7] into the multiple ways in which men abused their positions as priests, teachers, social workers, foster carers, sports coaches and so on to harm the vulnerable? An unbearable amount of evidence there.

–      Too long ago, maybe? Well, in the last week the HMICFRS Report[8] into the police has detailed how predatory men have become policemen, using that position to abuse women, girls and children.

–      What about Scotland? How about convicted sex offenders abusing loopholes allowing them to change their identity[9], the essence of the proposed GRR Bill? Yes, this has happened. 

–     Or England? How about someone seeking to dupe a women’s refuge into letting a paedophile who claimed to be transto stay there for 71 days[10]. Again, yes.

But these abusers are not from the trans community, might be the reply. Alas, there is evidence of men claiming to be trans and using that claim to gain access to victims[11]. Or to abuse victims then claim to be trans to avoid or mitigate punishment or gain access to women’s prisons where more victims may be found[12].

What is not yet known – or not with great clarity – is whether those men who are either diagnosed with gender dysphoria or claim to be trans without such a diagnosis have the same rate and type of offending as other men or a higher or lower rate. Getting and understanding such evidence is surely essential before anyone can say that the “trans” community (however defined) poses no risk. Of that, however, there is no sign.

The scale of abuse by male predators is hard to assess. Not all is reported. But that there is overwhelming evidence, accumulated over decades – about how predators operate, how they gravitate to places where victims are found, how they put themselves in positions where it is hard for them to be challenged, how loopholes are abused, opportunities exploited – is undeniable. There is no sector, class, place or profession where it does not happen. There is no group of people immune from being predators. There is no basis for saying that men who are or claim to be trans cannot be – and are not – abusers.

Two facts are clear: overwhelmingly, sexual predators are men; overwhelmingly, their victims are females. The burden is surely on those proposing a reform allowing any man over 16 to change gender purely on his say-so to show why – and how – it will not be abused or exploited by those claiming to be trans.

Two arguments are often used by the reform’s defenders. 

(1)     Equating trans people with predators is unfair and offensive. 

It is no better than those who, opposed to gay rights, claimed that gay men were paedophiles. 

Current concerns are another unjustifiable moral panic. 

A strawman. It is not that trans people are abusers by definition. Of course, they aren’t. Rather, there will be abusers claiming to be trans in order to commit crimes or otherwise gain some advantage. It is they who are being unfair to trans people by using them as cover to exploit the opportunities the reformers will enable[13].

Second, see what IICSA’s final report says: allegations of a moral panic about child abuse allowed a culture of denial of what was happening, giving cover to abusers[14]. There were instances of paedophiles who used councils’ desire to increase “diversity” to get jobs where they could abuse children, jobs they would not have got had there been proper due diligence and a focus on what mattered – safeguarding[15].

The same point was made in last week’s report on the police. The recommendations of previous reports were ignored, the police were largely in denial about the problems, when women officers reported concerns they were not taken seriously, other considerations prevailed and risk assessment was poor. As the Chief Inspector wrote: “The police must be much more sceptical of those who want to wear the uniform.” [16]

(2)     “Ah, but men don’t need to use self-Id to carry out abuse” , say the reform’s defenders. 

After all, these crimes were committed before self-ID is even legally blessed. Well, not quite 

true. But how does that help? If men have already been claiming to be women in order to

commit crimes, avoid punishment or get a lighter regime, why wouldn’t that increase once

self-ID is enshrined in law, with the legal consequences the Scottish government is right now

claiming before the courts?[17] It is not just the police who need to be “much more sceptical”.

This rebuttal misses the point. Of course, predators don’t need self-ID to commit abuse. Sexual predators don’t needto become teachers, priests, sports coaches, entertainers, charity workers or anything else, either. But they do. 

The key questions – those the Scottish government has carefully avoided asking – are:

–        Are there risks that this reform – and how it is enacted – could be abused?

–        How great are those risks? 

–        What are the consequences and for whom, if the risks are realised?

–        Does it prevent or limit challenge, an essential safeguarding requirement?

–        Can the risks be mitigated or eliminated? If so, how?

–        If they can’t, should the reform go ahead at all or in its current form?

Three important lessons from previous reports are these: 

(1)     Boundaries matter – whether physical, safeguarding procedures, vetting, due diligence, 

processes, legal requirements, conditions to be complied with, verifications or, in Matt Parr’s

words, “scepticism” about why someone wants to join a particular group. 

(2)     Ignoring previous reports, recommendations and evidence will make problems much

 worse.

(3)     Scandals happen when those boundaries are abolished, ignored, weakened or seen as

secondary to some more important purpose: “diversity”, for instance, or the reputation of an

institution or group, when challenge is made unacceptable. 

In Chesterton’s words – in their haste to remove the fence, people forget why the fence is needed. 

The final IICSA report says that years ago child abuse was not perhaps as well understood as now. It is not much of an excuse for behaviour which even then was wrong. But it may explain why it was not taken seriously as it should have been. The same can also be said of violence against women. 

There is no such excuse now. It is unconscionable for the Scottish government to ignore evidence, to refuse to listen to women who have suffered abuse[18], to refuse to acknowledge the possibility of risks let alone assess them, to take no steps to mitigate them, not to do the necessary research, to assert what they would like to be true rather than engage and explain. 

If it continues to ignore the lessons of previous scandals and repeat the same mistakes, then the dismal cycle of harm to the vulnerable, scandal, outrage, investigation, report, apology and promises to learn those lessons will inevitably be repeated. This is bad law and even worse governance. Above all, it is an abdication of responsibility those in public office have to citizens, especially the most vulnerable.

[1]  The report can be found here – https://www.parliament.uk/globalassets/documents/Conduct-in-Parliament/dame-laura-cox-independent-inquiry-report.pdf

[2]  See https://barry-walsh.co.uk/same-old-same-old/

[3] See the First Minister’s response to the resignation of Ash Regan. And the decision by 8 SNP MSPs not to vote for or abstain on the GRR Bill.

[4] https://murrayblackburnmackenzie.org/2021/09/08/gender-recognition-reform-and-international-developments/

[5]  See https://archive2021.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-26950&ResultsPerPage=10

[6]  https://www.bbc.co.uk/sounds/brand/p08njhrm – this podcast details Gibney’s crimes over decades and their impact on his victims.

[7] The reports can be found here – https://www.iicsa.org.uk

[8] See https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/an-inspection-of-vetting-misconduct-and-misogyny-in-the-police-service/

[9] See https://www.scottishdailyexpress.co.uk/news/politics/snp-ministers-urged-close-sex-28360507

[10] See https://www.thesun.ie/news/9679107/transgender-paedophile-duped-staff-domestic-violence-refuge/

[11] See https://transcrimeuk.com

[12] See https://www.scottishdailyexpress.co.uk/news/scottish-news/male-prisoners-changing-gender-under-28149343

[13] Chapter 4 of the 2018 Morgan report on Islington Council is illuminating on how abusers seek to piggy-back on more respectable organisations, to the reputational detriment of the latter. See https://www.islington.gov.uk/-/media/sharepoint-lists/public-records/communications/information/adviceandinformation/20182019/20181107sarahmorganqcreviewreport.pdf.

[14] See the Background and Context section of IICSA’s Final Report’s Executive Summary: “The notion that child sexual abuse was ‘not harmful’ persisted into the 1990s and, in some professional spheres, responses to it were seen as ‘over zealous’ and characterised as a ‘moral panic’.” 

[15] See the 1994 White Report (https://islingtonsurvivorsnetwork2.files.wordpress.com/2021/03/the-white-report-redacted.pdf) and the 2018 report by Sarah Morgan QC on Islington Council (footnote 12)

[16] See the Times article by the Chief Inspector of the Police, Matt Parr – https://www.thetimes.co.uk/article/matt-parr-trust-is-badly-damaged-but-not-beyond-repair-z09gd56r3

[17] See the current judicial review by ForWomenScotland against the Scottish Government – https://forwomen.scot/18/07/2022/judicial-review-2/

[18] See https://www.lbc.co.uk/news/women-survivors-of-male-violence-brand-msps-refusal-to-hear-them-a-kick-in-the-t/

Graham Norton and the Chamber of Chilling Effects

Last week, Graham Norton was asked in an interview about “cancel culture.” He was unequivocal:

“You read a lot of articles in papers, by people complaining about cancel culture. And you think, “in what world are you cancelled? I’m reading your article in a newspaper or you’re doing articles about how terrible it is to be cancelled, so you know – I think the word is the wrong word. I think the word should be “accountability.” You know John Cleese has been very public recently, complaining about this, and it must be very hard to be a man of a certain age who’s been able to say whatever he likes for years, and now suddenly there’s some accountability. You know, it’s free speech but not consequence free.”

The interviewer then asked him about JK Rowling, specifically referencing the “deluge of anger, rage and attempts at censorship which seem to me to be more than a middle-aged man not being able to say something he used to say in the days of empire.” 

He was somewhat more nuanced about this, perhaps recognising – rightly – that whatever he said about cancel culture in respect of JK Rowling was going to be assumed to be a contribution to the debate on sex and gender:

“When I’m asked about it, I become part of this discussion, and all I’m painfully aware of is that my voice adds nothing to that discussion and I’m sort of embarrassed I’m drawn into it. And if you want to shine a light on those issues, talk to trans people, the parents of trans kids, doctors, psychiatrists, someone who can illuminate this in some way. As “bloke off the telly” your voice can be artificially amplified… and most of the time that’s a distraction, and it’s just it’s for clicks, for whatever, to put my name in a headline. “Graham Norton slams,” – “Graham Norton defends“ – “Graham Norton weighs in on” and actually Graham Norton shouldn’t be in your headline. If you want to talk about something then talk about the thing, you don’t need to attach a Kardashian or a whatever to a serious subject, the subject should be enough in itself. You know, it’s the Michael Gove thing about experts, we’ve got enough experts. No, please, can we have some MORE experts. Can we rustle up some f*cking experts and talk to them. Rather than ‘man in shiny pink suit.’” 

Perhaps unsurprisingly, this second point was taken up with less vigour than the first. There has been a persistent analysis from genderists that women (and a few men) who are hounded online or in person for expressing feminist views are experiencing only “accountability” or “consequences,” no matter how grave the threats or how significant the involvement of state bodies (more on this later). This analyis causes understandable anger among those who have been on the receiving end of serious threats. JK Rowling was one of a number to make the point, causing the spotlight to swing back to Norton himself. In particular, his previous attitude towards vulnerable women attracted attention. Norton, now himself the victim of a Twitter pile-on – or “consequences” as he might put it – deleted his Twitter account. 

Legal Feminist is in favour of free speech and deplores attacks on anyone for the lawful expression of their  views. But it does rather illustrate the difficulty with the amplifying effect of social media on freedom of expression, and that brings us to Article 10 of the European Convention on Human Rights, as given effect in the UK by the Human Rights Act 1998. Article 10 protects freedom of expression, but not unfettered freedom of expression – the old chestnut that there is no freedom to shout ‘fire’ in a crowded theatre. It is one of the most detailed Articles and reads as follows:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The argument propounded by Graham Norton is that if one person has the freedom to hold and express her opinion, another has an equal and opposite freedom to impose “consequences” in the form of her own expression of opinion. And where this means that people put forward impassioned arguments from diametrically opposing viewpoints, this is true. Where one person puts forward a well reasoned argument and another replies “lol r u stupid” it is also true. Where it fails is where “consequences” is used in the manner of a headteacher scolding an unruly class – where it means punishment, not disagreement – and where this has a dissuasive effect on others participating in a free exchange of views.

The European Court has long recognised the concept of the “chilling effect” in Article 10 cases. What this means is that where one person suffers serious adverse consequences of their otherwise lawful free speech, others will be dissuaded from following suit. 

There are some examples of gender critical speech in which plainly the state has interfered, or where a classical “chilling effect” of state involvement can be seen in the form of criminal proceedings or the threat of it. An obvious example is that of “Harry the Owl,” aka Harry Miller of Fair Cop, who was expressly found by the High Court and the Court of Appeal to have encountered exactly that chilling effect when he was visited by a police officer to ‘check his thinking.’ The co-option of the state authorities, with the threat of prosecution or recording of a hate ‘incident,’ would undoubtedly have such an effect on others considering contributing similar thoughts to a discussion. 

Typically, chilling effect cases are ones in which the state is involved or implicitly involved in the silencing of a particular view. Other cases aside from Miller which fall within the same category might include the prosecution of Kate Scottow (whose expression of opinion was held to be lawful speech within the meaning of Article 10) and the requirement that Maria McLachlan, herself a victim of a battery, must refer to her male assailant in court using a female pronoun. 

Generally, human rights (save in particular circumstances which are not the focus of this blog) have a vertical, not a horizontal, effect – which means that it is the state prohibited from interfering with the rights of the individual, not individuals prohibited from interfering with one another’s rights. However, the state may have a ‘positive obligation’ to prevent interference with freedom of expression. There is precedent in the case of Fuentes Bobo v Spain 39293/98  that an Article 10 infringement may be found where an employee was dismissed for ‘offensive’ remarks. The Court held that the State has a positive obligation to protect the right of freedom of expression – which meant not just that the State must not interfere with the right to freedom of expression, but that it must actively use its powers to support it. (For more on positive obligations, p50 of the Handbook On Positive Obligations is instructive.) 

In light of Fuentes-Bobo I think it is plainly arguable that the same must apply where the state has failed to take action against online vigilantes. If the state is indifferent to rape or death threats that amount to a criminal offence (malicious communications) and women who express an unpopular view recieve such threats, it is of little value to describe those threats as consequences. Pausing briefly to note that Graham Norton did at least try to distinguish between disagreement (“accountability”) and a deluge of threats and censorship (he swerved the question and moved onto whether any celebrity should contribute to the discussion), it is nevertheless true that women online DO receive these threats, and that the state seems unwilling to investigate or prosecute the people making them, or to take effective measures to compel social media providers to deal with them. If the ‘consequence’ to a well known individual contributing a gender critical view is a deluge of rape and death threats, the chilling effect on everyone else is obvious. That she may later be able to write about her experience is irrelevant: the chilling effect occurs when another woman, finger poised above her keyboard, hits delete instead of tweet. 

At present, the chilling effect on gender critical speech is obvious. Prof. Stock and Maya Forstater lost their jobs. JK Rowling has received enough threats, she says, to paper her house. Harry Miller’s case expressly referenced the chilling effect. A number of women including Kate Scottow (convicted and overturned on appeal) and Caroline Farrow (as yet not convicted, but her critic(s) are working on it) have been prosecuted or threatened with prosecution. Genderists are reluctantly accepting that gender critical views are protected, but maintain that expressing them is forbidden (it is not).

But it is not just gender critical speech which is under threat – there are many views from Brexit to Scottish independence to abortion rights to hijabs on which there will be multiple, opposing views. We have a historically unique situation in which an individual’s ability to express a view has never been more capable of broadcast, and in which the most chilling effect no longer comes actively from the state, but from the moral permission granted to the most censorious and most threatening of the online witch-finders. The state must grapple with this, and soon. You do not have to agree with a viewpoint to recognise that it falls within the parameters of freedom of expression. And as Graham Norton has just discovered, “consequences” is a blandly poor descriptor of a chilling effect.