A trial for rape

If I’ve been inactive during the last week, it’s not least because I’ve been otherwise engaged.  I’ve been on the jury for a trial in the High Court, where a man was accused of rape.  I am not at liberty to reveal any part of the jury’s discussions, but I can comment on the law.

The law relating to rape was restated in Scotland in the Sexual Offences (Scotland) Act 2009.  Section 1 begins in these terms:

If a person (“A”), with A’s penis—

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.

There are several elements in this. The most important are

  • the identity of the person,
  • the act of penetration,
  • consent,
  • intention, and
  • the ‘reasonable belief’ of the perpetrator.

The case was found to be ‘not proven’: a  verdict available in Scottish law that is treated in practice as equivalent to acquittal, but which is distinctly not the same as ‘not guilty’.   There is a presumption of innocence, and it is for the prosecution to establish the case. That must extend to every aspect of the crime, and in this case it did not.

I’ve commented previously on some of the problems with the law relating to rape, particularly the focus on consent.  This case has made me aware of another.  The statute adds the rider of a ‘reasonable belief’ in consent to a whole slew of sexual offences, including rape, exposure, voyeurism and drugging people.  “Even the devil”, the legal proverb runs, “knows not the mind of man.” Rape and most other sexual offences should be a matter of strict liability: what matters is how people behave.

The US Supreme Court offers some very sloppy reasoning

Although I studied law for the Bar once upon a time, I never made anything of it.  After a first degree including philosophy, the claims of lawyers to be engaging in rigorous reasoning seemed at best flattering, at worst forced.

It does come as a shock, however, to read a legal judgment from America’s most senior lawyers that is not just sloppy, but destructive and slightly deranged.  It is, of course, Dobbs v Jackson Womens’ Health, the revision of settled law on abortion. There are four obvious problems with it.  The first lies in the dismissal of the relevance of the principle of  privacy – quite rightly noted, in this judgment, to cover “the right to make and implement important personal decisions without governmental interference.”  This concept is what the decision in Roe v Wade relied on. It was first laid out by Justices Warren and Brandeis in an article in the Harvard Law Review in 1890: they called it “inviolate personality”.   Justice Thomas, in this judgment, dismisses such ideas  as ‘ethereal’, for which read airy-fairy.   In doing that, he is jettisoning more than a century of legal reasoning.

Second, there is the simple objection that this judgment throws stare decisis out of the window – not just precedent, but the principle that judgements should not have to be repeatedly revisted and laws should not have to be constantly reinterpreted.  There are now nearly fifty years of intervening case law, all of which are being invalidated.

The third problem rests in the dismissal of the relevance of the 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …” Note the language: not liberty, not rights, but privileges and immunities. There are more than a hundred references to the 14th Amendment in the judgment, and every one of them refers either generally to ‘liberty’ (the main reference) or ‘rights’ (in order to deny the existence a ‘right to abortion’).  The word ‘liberty’ occurs   in the second part of the 14th Amendment – that no State shall “deprive any person of life, liberty, or property without due process of law.”  That clause is  considered more than once and its relevance is rejected – but it was not the point at issue.  The effect of the ‘Privileges or Immunities’ clause, by contrast,  is relegated to the footnotes in the judgment, and not directly discussed.

In a classic US legal article, Some fundamental conceptions (1913),  Wesley Hohfeld explains what a privilege is, and cites legal cases to back that up. A privilege is a special form of legal liberty: when people have a privilege, he explains, they are legally “under no duty to do otherwise”.    Ever since Roe v Wade, women seeking an abortion have been under no duty to do otherwise.  Roe v Wade established a specific privilege that has been the law for nearly fifty years. The 14th Amendment explicitly extends protection to people’s privileges, for the express purpose of ensuring that the States cannot resile from them, and the Supreme Court has flatly refused to apply it.

The fourth problem stems from the bizarre reading of the 14th Amendment as a purely historical document relating to a single point in time.  The judgment complains, more than once, that Roe v Wade did not review the law as it stood in 1868, the year when the 14th Amendment was passed.  At this point, the reasoning tips from strained into sinister. In 1868, women could not vote – an 1875 judgment, Minor v Happerset,  explained that being citizens did mean that women had voting rights. Votes for women are protected by a further constitutional amendment, the 19th, but votes for African Americans aren’t – those have been assumed to be protected by the 14th. If the interpretation of the 14th has to go back to its pristine state in 1868, then by the same argument, the Court could now throw out the 1964 Civil Rights Act or the 1965 Voting Rights Act – and we know there are politicians out there who would love that to happen.

The main issue on which one might say the justices have a point is that the judgment in Roe is very prescriptive about implementation: they could have opined that the Court had previously exceeded its authority, loosening the straps by delegating more authority to State governments to interpret the law.   What the Court has done instead is, metaphorically speaking, to set fire to the building – they have begun a  bonfire of the precedents, and it is not going to stop here.  The decision, to borrow a phrase from the judgment, is ‘egregiously wrong’.

Additional note, 4th October 2022.  After I wrote this, I read Common Good Constitutionalism by Adrian Vermeule.   Writing before this judgment, he identifies two of the issues which I was complaining about here: the doctrine of ‘originalism’, which is delusional, and the degree to which the Court allows precedents to build before junking them.  If he’s right, and I’ve no reason to think he isn’t, this sort of nonsense has become par for the course.


Sumption on the rule of law

While Jonathan Sumption’s Reith lectures offer some food for thought, some of his claims are  questionable.  This is from this morning’s lecture:

Democracies operate on the implicit basis that although the majority has authorised policies which a minority deplores, these differences are transcended by their common acceptance of the legitimacy of its decision-making processes.

Well … up to a point, m’lord.  It’s true that democracies depend heavily on legitimate processes in order to deliver legitimate outcomes. But it’s also true that those processes are not enough in themselves to ensure legitimacy.  Majorities, and apparently legitimate processes, authorised policies by Hitler and Mussolini.  Sumption cites James Madison in another context; this is what Madison has to say about majority rule:

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure…. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects … In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger …

It’s fundamental to democracy that the rights of minorities are protected; if they are not, it is no longer a democracy.

Sumption’s view of the legal process, oddly for someone in his position, veers at times towards an ideal.

Law is rational. Law is coherent. Law is analytically consistent and rigorous.

If law was rational and coherent, it would be predictable.  We should be able to state with confidence what the law is as soon as we have seen an unequivocal statement in a statute, without waiting for confirmation from the courts.  Look at Sumption’s own comment on a Supreme Court decision:

The majority’s reason, however dressed up, was that they didn’t approve of the power that parliament had, on the face of it, conferred on ministers. Three of the judges thought that it was such a bad idea that parliament could not possibly have meant what it plainly said.

If the law was consistent and rigorous, it should be the case that the Supreme Court would deliver consistent, clear thematic judgements – but even when  they say they agree with each other, they can’t bring themselves to say the same things.

More fundamentally, if the law was consistent and rigorous, whether or not people’s interests are protected shouldn’t depend on whether or not they contest it.  Courts routinely rubber-stamp oppressive orders relating to debt simply because the debtors don’t make a submission. The big utility companies notoriously can afford to play the odds – losing a few cases they don’t seriously argue about because they routinely win so many without an argument.  The law, as Sumption says, has certain biases: “in favour of individual rights and traditional social expectations “.  But it also has a ferocious bias towards people who can afford to hire lawyers.


The Court of Appeal decision on NDAs is difficult to take

I never used my legal training, and in some important ways I’m sadly out of date: this is one of them. Confidentiality agreements used to refer to the protection of internal information relating to a business; they have become  a means of silencing criticism, something quite different. I was sufficiently perplexed by the reports of the current affairs relating to Philip Green to want to read the Court of Appeal’s judgment.

The fundamental problem, barrister Jolyon Maugham has written, is that the Court of Appeal has failed to take account of the imbalance of power.  Obviously enough, the gagging orders are taken by people in a position of privilege against less powerful employees, usually women.   “How did the Court miss this?”  It didn’t miss it, but it did wave it aside.  In paragraph 42, the Court notes that it is hard to get a settlement of litigation without an NDA; in paragraph 43, they refer to agreements as valid if they are not subject to pressure.  Pressure is built in to the process.

The Court takes the view that a settlement of litigation can routinely include a rule of confidentiality.   At the start of the judgment, the Court considers the NDA as a subordinate part of the Settlement Agreement.  “There were terms in each of the Agreements under which both sides undertook to keep confidential the subject matter of the complaints themselves and various associated matters, including the amounts paid by way of settlement. … We will refer to this aspect of the Settlement Agreements as non-disclosure agreements (NDAs).”  After that, however, it refers consistently to “the duty of confidentiality”.  The Court took it that confidentiality should be presumed to be upheld unless there is a strong element of public interest which requires otherwise – and held the hearing in private session on that basis. That should not be taken for granted.

There are three problems with applying a rule of confidentiality.  First, it has not been established whether there is such a duty; the Settlement Agreements apparently make exceptions for certain lawful actions and, as the Court itself recognises, “confidentiality could not be relied on to conceal wrongdoing.”  The rules are supposed to protect confidential information, but there is no “information” in this case; the main thing being held in confidence is the agreement.  Openness is fundamental to justice.The presumption of confidentiality  on the basis of a Settlement Agreement is illegitimate; it has to be justified.

Second, if there is a duty, it is not owed by the Daily Telegraph, which on the face of the matter had already been informed about the existence of the Settlement Agreements and the NDAs.  That already constitutes, in the terms of another set of laws, publication: the knowledge in question has been conveyed to a third party.  If there is any breach, the breach is by signatories, and action lies against them.  The substance of this action depended on a supposition that if there had been a leak by one of the parties to an NDA – that has not actually  been established –   any duty of confidentiality they owed to the other party must be extended to the newspaper.  I think it could be argued that talking to a newspaper magnifies the offence of  someone breaching an agreement; I cannot see that the newspaper owes any duty of confidentiality to either party.  There is no justification for preventing publication, unless in some way the newspaper itself violates the complainant’s rights in the process.  In this case, there is no indication that the Telegraph has acted improperly in any way.

The third point is the one that runs deepest.  The Court of Appeal has taken a view about the confidentiality of settlements which is inconsistent with the Rule of Law.  The Supreme Court’s recent judgment in the Unison case emphasises the essential nature of access to justice.

The constitutional right of access to the courts is inherent in the rule of law. … Access to the courts is not … of value only to the particular individuals involved. … it is not always desirable that claims should be settled (my emphasis) … the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations.

It seems to me that the Court of Appeal has lost sight of this fundamental principle.  They have treated a settlement agreement as virtually equivalent to access to justice; it cannot be.   A private agreement to avoid litigation may be beneficial, but it cannot bind others, it cannot remain secret, and it cannot be treated as the last word.

Defamation: an argument for academic freedom hits the buffers

The Scottish Law Commission has published a lengthy report on defamation.  I raised a couple of points in my blog last year, when I thought I wasn’t going to make a submission; but then I started to feel guilty about my indolence, changed my mind, and dashed off an e-mail to the consultation (complete with typos).  As it turns out, I’m cited at length in a paragraph in the report: only 15 submissions picked up the point about academic freedom, on both sides, and that is hardly enough to derail an argument.

5.37 Paul Spicker pointed out that, in terms of material subject to peer review, the net is much wider than journals – books and academic bids for funding tend also to be peer-reviewed. He observed that it is, in any event, questionable to what extent a focus on peer-reviewed material offers protection against defamation. The primary focus of peer review tends to be recognised as being to make judgements about the rigour and validity of a submission. This does not generally include any sort of duty to notify the editor as to whether or not academic comment or criticism might operate to the detriment of a person’s commercial interests. He further commented that it was not clear why safeguards should only be applicable at the point of formal publication of material or submission to other bodies. Academic papers may, for example, be presented at seminars and conferences during the course of their development, before formal  publication. It seemed that what was called for
was a general exemption for all bona fide academic discourse. The nature of the discourse should be determined on a case by case basis rather than being treated as occurring only in specified locations or outlets. …

5.41 On the other hand, the Law Society of Scotland took a different angle, namely that the coverage of peer-reviewed statements in scientific or academic journals was practical enough to meet the aim of promoting freedom of expression within the academic and scientific community. On that basis, they did not support any expansion of section 6.

The Commission concludes:

5.42 Having weighed up these competing arguments, we recommend that the scope of section 6 should be left as it stands. It appears that more would be needed to make it fully effective than a simple extension of its application in terms of the types of publication that it covers. Fundamental questions have been asked about whether the focus on peer-reviewed material is sufficient in offering protection against defamation. There may be a need for a wider protection covering academic discourse in general. It seems preferable that any such changes be made at UK level, rather than the same provision applying in a different manner as between Scotland and England and Wales.

I’m not sure whether this amounts to a rejection of the case I made, because it seems to accept the main argument, but regardless the law is not going to protect routine academic discourse in the foreseeable future.  Mark it up as another failure.

The nature of a hate crime: Google thinks that incitement to racial hatred passes its tests

In the Home Affairs Committee last week, a baffled Yvette Cooper politely and repeatedly asked Peter Barron, a spokesman for Google in Europe, ‘In  what  circumstances  is “Jews  admit  organising  white  genocide” not  a statement of hate speech? ‘  The response from Google was as follows:

Peter  Barron:  There  is no  clear  definition  of  hate speech  in  British  law. We  have  our  own  guidelines  around  hate  speech.  The  guideline  that  we follow, which is very close to the law, is that a general expression against a  country,  for  example,  wouldn’t  qualify  as  hate  speech,  but  if  you  are promoting or advocating violence against a particular group based on their race or ethnicity, that would constitute hate speech. … I am not going to defend the content of the video; I found it abhorrent and offensive. However, the important question, which relates to wider issues of freedom of expression, is whether that content is illegal and whether it breaks our guidelines. Our policy and legal experts arrived at the conclusion that it didn’t. I think everyone in this room would agree that it was deeply distasteful.
Chair:  But  your  own  guidelines  say  that  it  is  “not  acceptable  to  post malicious,  hateful  comments  about  a group  of  people  solely  based  on their race” or religion or so on. How on earth is the phrase, “Jews admit organising white genocide”, as well as being clearly false, not a statement that  is  a  malicious  or  hateful  comment  about  a  group  of  people  solely based  on  race,  religion  or  the  other  protected  characteristics  that  your own guidelines and community standards say are unacceptable?
Peter Barron: The test that our legal and policy experts are looking at is whether  there  is  an  incitement  to  violence  against  a  particular  identified group.  I  accept  that  these  are  borderline  cases;  we  often  see  debate among our teams. The conclusion in this case was that it didn’t break our policy guidelines.

The response from Google seems to have divided commentators. One one hand, there are those who defend the principles of free speech – among them Spiked Online, which calls Yvette Cooper the ‘Witchfinder General’, and the editor of the Jewish Chronicle.  On the other, there are many, most obviously the members of the Home Affairs Committee, who find this difficult to take.

Barron’s assertions that there is no definition of hate speech, and the argument that the content is not illegal, are mistakes.  The expression “hate speech” may not be used in UK law, but ”incitement to racial hatred” is, and incitement to hatred  is criminal.  There are many things that people are not allowed to say in the  UK – among them laws of public and private libel, incitement, conspiracy and sedition.  Even in the USA,  ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’   (That comes from Schenck v. United States, 1919.)  There is a common confusion about the nature of free speech; it is not the freedom to say whatever one pleases, any more than freedom of movement means an unlimited freedom to swing your fist.

Google’s misreading of the law comes about because it has referred to the laws relating to racial hatred in the USA rather than laws in Europe.  Hate speech in the USA is protected by the First Amendment; to be criminal it has to be coupled with the threat of violence, and in general it will be charged only when it occurs in tandem with another offence.  As the threat of violence is already an offence, that reduces the status of hate crime to an aggravating factor, rather than a cause of action in its own right.  That’s why the Internet hosts other material, much worse than the example discussed in the Home Affairs Committee,  which more or less says, get these people before they get you (and no, I’m not going to post the links to the examples I’m thinking of, or even to identify the three words in Google that will bring them up).   It seems that Google is able to take down links and caches of sites questionably accused of infringing copyright, but not of sites that openly breach European laws on racial hatred.

A review of sharia law in Britain: why should we assume it’s being ‘misused’?

An independent review for the Home Office has appealed for evidence about the application of sharia law in the UK.  While Muslims may reasonably expect a balanced report from the Chair, Mona Siddiqui,  and the inquiry is beginning with evidence from people with experience of sharia in practice, the terms in which the inquiry is framed are extraordinary.  It does not begin by asking how sharia law or how the courts work, but whether sharia law isn’t  dangerous and liable to misuse.

“Individuals with experience of sharia law are being urged to take part in an independent review examining whether the religious code is being misused within Britain.  The government-commissioned sharia law review is exploring whether the application of sharia is incompatible with the law in England and Wales.  It will also examine the ways in which the practice may be being misused, or exploited, in a way that may discriminate against certain groups, undermine shared values or cause social harms.”

I have no direct interest in sharia law, but I grew up in a world where people could always go to a rabbinical court if they chose; while I have may lots to say about the unreasonable bits in my own community’s law, I can’t see any fundamental objection to a system of mediation  based in shared principles and voluntary consent.   In the febrile and sometimes toxic atmosphere surrounding the current clash of cultures,  a less tendentious brief might have been better judged.

Reforming defamation law in Scotland

The Scottish Law Commission has issued a lengthy consultation paper on the reform of defamation law in Scotland, but I’ve only just seen it and the deadline for responses is set for tomorrow.  This is not my expertise (it’s forty years since I studied torts as part of English law, and I never used it)  and I’m not proposing to make a submission, but there  are issues of concern.  I don’t share the view of the Libel Reform Campaign that “Corporate bodies do not have a private life, personal identity or psychological integrity.” Clubs, societies and charities do have identity and integrity and may well depend very heavily on their reputations.  The law privileges  financial damage over other kinds of reputational damage, and that by comparison with the protection given to commercial traders there is a relative lack of protection for smaller, non-commercial groups, such as a mosque.

The main issue affecting the academic community is the potential suppression of scientific debate or criticism, most notoriously in the action taken against Simon Singh by the British Chiropractic Association.   There is an exemption made in the 2013 Defamation Act, but it only allows for material in peer-reviewed academic journals or conference proceedings.  (For those who don’t know it, academic books are peer-reviewed too – 13 of my books have been peer reviewed anonymously, 2 others were subject to an editorial board.)  The restrictions mean that academics have to rely substantially on defences of public interest and fair comment, and they are likely to be forced to fold long before they get that far.

Does the Supreme Court know how to make sense?

I opted out of legal studies when I was still a student, choosing to a PhD in Social Administration instead, and my only legal qualification expired a long time ago, but on occasion I still like to dip a toe in the water.  I was intrigued enough by a debate reported by Mark Elliott to read a lecture by John Finnis on judicial power.   Finnis thinks the Belmarsh judgment was a ‘debacle’, comparable to the nonsense they got into when the House of Lords was reviewing attempts to do the  impossible. I agreed about the silly rule on impossible attempts, which was the law when I took the exams, so I wondered whether I might also agree about Belmarsh, and read the judgment front to back.   I don’t agree with Finnis, as it happens, but I think I can see the problem.

I’ve only read a handful of judgments like this, but all have followed the same process.  Up to nine judges offer individually written, considered arguments, most of which make sense in their own terms.  There will usually be a statement to the effect that they agree with a particular one of their number, but hardly anyone does what Lord Caswell did in Belmarsh, and stop after saying, more or less, that ‘I agree with that one’.

This process creates two immediate problems.   The first is a problem of over-inclusion. Each of the judges addresses a slightly different agenda.  The longest judgment, by Lord Bingham, addresses a long series of issues:  the statute, human rights law, international obligations, discrimination, public emergency, and proportionality.  In the eight judgements, all the judges consider human rights issues; all refer to the terms of the 2001 Act (which Finnis accuses them of not considering adequately); nearly all consider discrimination (one only indirectly); six consider the public emergency; five refer to proportionality.  The difficulty here is that even when judges are similar things in different words, it can be difficult to determine which is the best or clearest statement of the law.   When they say different things, it is impossible.

The second problem is a problem of exclusion.  Each of the Lords has arrived at an an individual judgment, and to do that they have had necessarily to select the issues that they consider to be most relevant and important.    Two judges thought it relevant to refer to the International Covenant on Civil and Political Rights; the others presumably did not.  It is much more difficult to spot the issues that no-one thought pursuing, but that is the substance of Finnis’s complaint – that there were further considerations in the statute and the Human Rights Act which ought to have been included too.

Both of these problems have a common root.  If the material was ordered thematically, instead of being argued one judge at a time, the contradictions, elisions and omissions would be evident; if there were visible gaps, they could be plugged.  The decisions of the Supreme Court are not the decisions of individual judges; they are decisions of the Court.  Unless and until they are stated collectively, they will never make sense.


Access to justice

Dr Donald Trump, coincidentally an honorary graduate of my university, dislikes windmills, and he is taking a case to the Supreme Court in an attempt to stop them being put up in sight of his golf course in Aberdeenshire. To get to take the case, he has been able to take advantage of a certain laxity in the rules about what is, or is not, an important point of law. The Court of Appeal has already decided that his arguments have no legal merit.

While this is going on, I’ve been trying to get information to back up the case to allow benefit claimants better access to judicial review in the Scottish Courts. Poor people are subject, in the UK, to arbitrary and secret decision making with no effective redress. Justice delayed is justice denied, and the effect of mandatory delays, failures to make decisions and taking actions on decisions without informing people even that the decision has been made has had a devastating effect on people’s welfare. The primary obstacles to access are the requirements to fund senior lawyers, the complexity of the law and the length of time needed to act.

Unfortunately it seems that, regardless of the merits of the respective cases, access to law is still the prerogative of the very rich.