Beneath The Wig

If you haven’t heard, next week is the London Legal Walk, where legal types from the Lord Chief Justice to law students walk 10k to raise funds for law centres and legal charities – in the days of LASPO, now needed more than ever.

Team Justice Gap, now 25+ strong, has a Virgin Money page here if you want to sponsor them – and note I said them. I have been diagnosed with a chest infection and can no longer do the walk. My role is now limited to counting them in, counting them out, and getting the drinks in. Herding cats, basically.

If you sponsored me personally, please contact me and I will arrange a refund – my email is wiggy@beneaththewig.com. If you are content for your donation to go to the team generally, that is great news, and thank you very much.

Louise Mensch took to Twitter this morning, proclaiming that the Human Rights Act 1998 is loathed by the public, is drafted too broadly, and is a terrible law:

Is it a badly drafted law? In very simple terms (and it is a very simple Act), all the HRA says is that we have to take notice of the European Convention on Human Rights when interpreting law and interpret it in line with the Convention. If that cannot be done, the judge must issue a declaration of incompatibility, which is to say, asks Parliament to have a re-look at it. By my maths, there have been about 20 declarations which have been upheld and lead to a change since the Act came into force. The Act also states that public bodies cannot act in a way incompatible with the Convention.

The Convention was drafted after World War II to ensure the horrors of that era were not repeated. The Convention itself is incredibly simple to read, and in terms of drafting it, er… well, we are largely responsible for that, via Sir David Maxwell Fyfe. But you know, history, who needs to know that?

Do the public loathe it? What is to loathe? The rights protected are:

The right to life -which talks not only about capital punishment, but also about the right to defend yourself using necessary force;

The prohibition of torture and inhuman and degrading treatment;

The prohibition of slavery and forced labour;

The right to liberty and security, with limits placed on the infringement of the right to liberty where the detention is lawful;

The right to a fair trial – which every advocate I know has used at least once;

No punishment without law, which means that you cannot be punished for an act which was lawful at the time of commission, nor can you be sentenced greater than the sentence which would have existed at the time of the act should it have been unlawful;

The right to respect for your private and family life. Some of the first cases using the HRA were under this provision;

The right to freedom of thought, conscience and religion – I may not believe in sky fairies, but I will defend your right to;

The right to freedom of expression – which albeit qualified, means I can write stuff like this;

The right to freedom of assembly and association;

The right to marry – which sadly has so far been read to mean opposite sex marriage, although the Convention as drafted is not explicit;

The right to an effective remedy – that is, when rights under the Convention are breached, there must be a remedy before a national court;

The prohibition on discrimination;

There are a few other articles – for instance, allowing states to limit the political activities of ‘aliens’ (that’s foreigners, not little green men), and allowing states to derogate from the Convention in times of war or public emergency.

What the public seem the loathe is the Daily Mail/Conservative Party version of the Human Rights Act – that which tells us that owning a cat allows an illegal immigrant to stay here. However, as has been demonstrated, that version of the HRA just simply isn’t true.

Is it a terrible law? I fail to see how it is, although I will accept it seems to be a law which annoys governments – especially this one. To me that makes it a good law, one which is doing the job it was intended to do. It is a law which requires fairness, basic standards and refuses to allow public bodies to over-step the mark. For the life of me, I can’t think why they don’t like it.

Amid my hangover (yes, it is 9pm, and yes, it is still lingering) I am grinning broadly and sqeeeeeing loudly, and saying in a very affected tone that I am a writer. Last night the shortlists for the Orwell Prize were announced and oh my golly aunt they included me – hence the new badge over on the right.

The competition is stiff – I have had a nosy. They are:

Baroque in Hackney

Benefit Scrounging Scum

Alex Massie

Rebecca Omonira-Oyekanmi

Rangers Tax Case

Lisa Ansell (who happens to be a mate of mine)

Massive thanks to the Prize, and the judges, Hopi Sen and Suzanne Moore. More details of the Prize, and the shortlists for the book and journalism prize, are here.

Good luck to all, especially Lisa – if I don’t win, I sincerely want her to

The Award Ceremony thingy is open, so if you fancy coming, details are here:

On Friday afternoon, Sheffield United footballer Ched Evans was sentenced to five years for raping a 19 year old woman.

Almost immediately, the #ChedEvans hashtag appeared on Twitter, and later, #JusticeForChed. Some tweets displayed confusion, questioning why one defendant was found guilty, and one not. Others displayed varying levels of victim blaming; some could only be described as vile.

This continued all weekend. Then, on Sunday, someone named the woman who was apparently the complainant. The insults became more personal, and the levels of abuse directed at the alleged victim increased throughout the day.

Rape survivors fall into a special category of victims of crime, entitled to life long anonymity, applying to the survivor’s name, address, image and any other matter, if the publication could lead to the public identifying the person. A breach occurs if a person causes identifying matter to be published in England and Wales in a written publication available to the public. Whilst this legislation has not been tested when applied to Twitter, courts have found newspaper websites guilty of contempt of court, which, it can be argued, is analogous to this situation.

Several people contacted North Wales police; a spokeswoman for whom said they were collating all the relevant information.

The Director of End Violence Against Women, Holly Dustin, issued a statement saying:

“It has long been law that rape complainants are protected by lifetime anonymity and those who have named her have been reported to the police for committing a criminal offence. This raises serious questions about the adequacy of the criminal justice system to deal with offences that occur online and we are calling for an urgent review of laws and practices.”

Does it? Or actually does this statement simply display a misunderstanding of how law works?

Law isn’t a shield preventing a bad thing happening – it cannot stop people behaving in a certain way; it can only simply prescribe a punishment or remedy should people behave in a certain way. Our modern digital world enables us to see more easily behaviour we knew existed in any event. We have already criminalised that behaviour because we knew it existed.

In addition, the provision for life-long anonymity isn’t the only law which would apply to those tweets – there is the possibility of offences having been committed under section 127 Communications Act 2003, if the tweets can be deemed to be grossly offensive or of an indecent, obscene or menacing character, and under section 4A Public Order Act 1986 if the tweets can be deemed to contain threatening, abusive or insulting words.

While I have every sympathy for the complainant in this case, we really must stop and think about calling for new laws every time something we don’t like happens – especially when the call goes out before the criminal justice system has even had the opportunity to show what it can do in this situation. It really isn’t helpful, and it lessens the remainder of the message.

*** It has been pointed out to me by @Pam_nAshes that the name was first mentioned on Twitter on Friday.

#FreeTheBexleyOne the hashtag goes.  ‘Man faces jail for swearing on Twitter’ the Twitterati say.  ‘Stop the assault on freedom of speech’ they implore.

Has there been an assault on freedom of speech? Is a man about to go to jail for swearing on Twitter? Should indeed the Bexley one, John Graham Kerlen, who tweets under the name @Sir_Olly_C, be freed, although he has not yet been sentenced? Is this a ‘bad law’ story demonstrating that the law is, as it sometimes can be, an ass, or is the story more complicated than may at first appear?

John Graham Kerlan was found guilty on Friday 13^th April of an offence contrary to s127 Communications Act 2003, which reads:

(1) A person is guilty of an offence if he—

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

I have asked the CPS for the charge sheet, which has been so far unforthcoming – should it arrive and render the rest of this post incorrect, I will of course post corrections.

The conviction relates apparently to two tweets, posted by Mr Kerlan. The first was a picture of a house belonging to a Bexley councilor, saying:

Which c*** lives in a house like this. Answers on a postcard to #bexleycouncil.

The second said:

‘It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit.’

Globally, the legal test for whether a message is grossly offensive, or of an indecent, obscene or menacing character is the ‘reasonable man’ test – that is, would a reasonable man, seeing that message, consider it grossly offensive, or of an indecent, obscene or menacing character. In order to determine this, the judge puts himself in the place of a reasonable man and asks himself that question.

So, assuming we are reasonable people we can ask ourselves that question. Looking at those two tweets, would we say that they were:

Grossly offensive?

Indecent in character?

Obscene in character?

Menacing in character?

Using my internal moral compass, I say yes, no, no, yes.  The test for ‘grossly offensive’ is whether the message would cause gross offence to those to whom it relates, regardless of whether they were the recipient.  Would the reasonable man, looking at that, be able to say that the person to whom those tweets relate, would find them grossly offensive? I’d say so.

Are they menacing? Would the reasonable man, looking at those tweets, consider that the person to whom then related would find them menacing? Again, I’d say so – I certainly would.

Are they indecent, or obscene? I’d say not. But the law doesn’t require all points to be made out – the law requires the messages to be either grossly offensive, or indecent in character, or obscene in character, or menacing in character. That a message is more than one is a bonus for the prosecution frankly.

Finally, turning to the cries of assaults upon freedom of expression, it has to be remembered freedom of expression is a qualified right. The higher courts have already considered the balancing of freedom of expression with section 127, and came to this conclusion:

‘Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.’

Lord Bingham, DPP v Collins (here).

In summary, swearing on Twitter is not a crime. Frankly, only a silly c*nt would think so. But being menacing, or being grossly offensive? That is.

You know what I am on about without me finishing the title. Yes, yes, it is *that* woman, in *that* series of Daily Mail articles.

Much has been written, pretty much everywhere, with reactions ranging from astonishment to frankly, the downright nasty, not least of which by the Daily Mail itself today, using a series of photographs that can at best be described as unflattering – causing folk who comment there, not usually the kindest set of people one can find on the ‘net to suggest that the paper itself is now being less than kind.

However, I digress. To summarise her point (I think there was one), she seemingly suggests that she is discriminated against by other women, due to her looks.

The shame is, that if she hadn’t written that piece about herself – if she had simply written an opinion piece that some women discriminate against other women based on looks, she would have a fair point.

Not only fair point, but an important one. In a piece entitled “Don’t hate me because I am beautiful” The Economist this week reports that research by two Israeli academics suggests that whereas for men, attractiveness increases their chances of employment, for women it decreases it (here).

The pair sent out similar CVs in response to job adverts – one containing a photo and one not. They discovered that for applications direct to a company (i.e. not via a recruitment consultant) attractive women made 11 applications before being invited to an interview; the less attractive being invited after making 7.

Having discounted what they call the ‘dumb-blonde hypothesis’ by having the photographs they used ranked for intelligence, they looked at why this was occurring. They found that 93% of those who made the decision as to whether an interview should be offered were female, leading them to the conclusion that some women will discriminate against attractive women candidates.

Here in the UK, it is unusual to send out a CV containing a photo. However, we live in the age of Google, where if you have even the most mediocre of digital footprints, there is likely to be an image of you online – and it is known that those responsible for recruitment do engage in a little digital investigation of prospective candidates.

This then raises two points. Firstly, is there discrimination, and if so, how do we counteract it; and secondly, come on girls, life is hard enough without us having this sort of crack at each other. However, judging by the reaction to a certain female this week, the civil war in our gender is alive and very well.

Sigh.

I am hugely proud, and grinning a ridiculously large grin, to be able to put the badge above on here.

I have been longlisted for the Orwell Prize, along with 17 other bloggers, all of whom are amazing – in particular, my two good friends, David Allen Green, a fellow legal blogger, and Lisa Ansell, who blogs purely on politics.

The full longlist is here, with links to the journalism long list, and book longlist too.

May the best man, or gobby bird, win!

The posts I entered are:

Justice RIP

In screwing Ken Clarke, Victoria Derbyshire fucked rape victims

RIP Helen and Mark

Rape is Rape, Right?

Adoption Stories from the Tories Part 1

F**k You, Bad Reporting

Shoesmith and Baby P: Who does have blood on their hands?

The Sun, that picture, and that headline

Slutwalk: Just more noise in an already noisy space

Calm Down Dear

It would appear, that rather like the economy, the discourse around domestic violence has this week returned to the 1970s.

The week kicked off with The Mirror reporting an interview Dennis Waterman gave to Piers Morgan, in which Waterman not only puts forward his view that clever women ask for a slap because, being bright, they ‘win’ arguments by being verbally quick; he also attempts to suggest there are bands of domestic violence; the occasional slap being somehow different to being a ‘beaten wife’.

Demonstrating his complete lack of acceptance of responsibility in his own words:

‘It’s not difficult for a woman to make a man hit her. She certainly wasn’t a beaten wife, she was hit and that’s different.’

…

‘The problem with strong, intelligent women is that they can argue, well. And if there is a time where you can’t get a word in… and I… I lashed out. I couldn’t end the argument.

The Daily Mail, as the Daily Mail is wont to do, rolled out the estrogen factor in finding a possessor of a womb willing to act as a clumsy apologist in an attempt to explain away Waterman’s stance that violence is sometimes contained to one woman only, as if in some way, that makes it ok.

To demonstrate the point, the writer uses the example of her ‘fiercely clever friend’, Jean, who had three relationships involving violence. Apparently the men had never hit a woman before or after Jean, and Jean would never put up with ‘a proper beating’. Jean’s view was:

‘with a bit of a slap, at least you know who wears the trousers, don’t you?’

Did she, perhaps, encourage her friend to get some help examining her relationship model? Doesn’t appear so.

Quoting an unnamed psychiatrist, she develops her point, by telling us that apparently research shows that the common denominator in cases of domestic violence is women having an IQ at least 10 points higher than their partner. Additionally, she goes on to say that the psychiatrist told her that the problem is:

They don’t want to ‘wear the trousers’… It doesn’t make them feel womanly enough. However much goading it takes, they’d rather be slapped than be victorious. When push — quite literally — comes to shove, these women prefer to have a dominant man to whom they might defer as an authority figure.

Of course, she eventually pulls it back (she really has little choice otherwise) saying well below the line that we have to have zero tolerance in domestic violence and making the important point that:

Not every two-little-slaps turns into routine, full-blown domestic violence. But almost all routine, full-blown domestic violence began with two-little-slaps.

In fairness to her, she made the point rather more firmly on the Jeremy Vine show (today hosted by Aasmah Mir, available on iPlayer here from around 70 onwards), although she did also have a wee giggle about her friend ‘Jean’. So if she pulled it back, what is the problem?

Well, look at the front page. How many perpetrators do you reckon will have seen that and nodded in agreement? How many survivors do you think will have seen it and mentally added it to the ‘I deserve it’ monologue that runs through their minds, put there by the perpetrators?

Judging by the comments BTL on the Mail piece, and listening to some callers on Jeremy Vine, quite a few see this as endorsement of their views – that sometimes, a woman* deserves it, and the man* is justified if he is pushed into using his fists to make a point. We are unlikely to know how many survivors add it to their internal monologue because, of course, they are the last people who are going to speak out.

I know I have laboured this point in respect of rape, but can we please start to watch what we say, how we say it, and consider the impact the language used has on both perpetrators and survivors.

To challenge and to change the behaviour we have to change the mindsets. While not all of us can go out and do direct work with perpetrators and survivors, we can make a difference in our own way by taking more care of not only how we talk about it, but in refusing to accept the way the media do, too.

*I have used gender terms in the way I have due to largely talking in this instance, about male perpetrators. I of course acknowledge that domestic violence involves female perpetrators and male survivors too.