Sexual history mitigates rape? It does in Scotland...

In 2011, Ken Clarke, then serving as Lord Chancellor and Justice Minister in the UK government, got into serious bother when he referred to "serious rape" in a radio interview. Labour called for his resignation, he eventually got the heave-ho, replaced by Chris Grayling, and the row died down.  Rather less likely to hit the UK news headlines is a decision of the Court of Criminal Appeal, handed down this morning, in Her Majesty's Advocate v. Cooperwhite. 

It transpires that, according to Scots criminal law, raping someone with whom you have any sexual history, even years after you ceased to have sexual contact, actually mitigates the seriousness of the offence on sentencing.  

In February of this year, Cooperwhite was convicted of sexually assaulting two women, and was sentenced to six years in prison.  The Crown appealed, arguing that this sentence was unduly lenient, given the facts.  A panel, consisting of Lords Carloway, Eassie and Bracadale rejected the appeal, holding that the sentence, while lenient, fell within the "range of sentences which a trial judge, applying his mind to all relevant factors, could reasonably have considered appropriate." In the course of their submissions, and with reference to authorities of the court, Cooperwhite's lawyers argued that: 

'... "familiarity" between a rapist and his victim was regarded as something justifying a more lenient sentence than might normally have been thought appropriate.'

Ultimately, the appeal was rejected on other grounds, but in an unusual move, Lord Carloway appended "further considerations" to his opinion, on the question of whether, as a matter of law, raping a sexual partner, friend, or person known to you represented a mitigating factor in determining the punishment to be imposed. Discussing the Appeal Court's past cases, Carloway concluded - to my mind, shockingly - that:

"It is undoubtedly correct, as the respondent submitted, that the existence of both a pre-existing and an existing sexual relationship has been regarded by the court, in the past, as a mitigating circumstance."

He gave a couple of examples. The 1999 case of Ramage, where the the convicted man and the complainer "had been in a relationship of a sexual nature, but that this had ceased some six years" before the sexual assault of which he was convicted. Reducing his sentence from five years to three and a half years imprisonment on appeal, Lord Caplan made this outrageous statement:

"... there are factors in this case which could perhaps justify treating the case as being less serious than would normally be the case with a rape offence. The appellant and the complainer were not in any sense strangers. They had been in an intimate relationship before and, indeed, at one point they had been in a sexual relationship. Moreover they had resumed friendship and were seeing each other regularly (although it must be acknowledged that the complainer in no way gave the appellant to understand that she was prepared to resume a sexual relationship with him). Nevertheless, there was perhaps room for the appellant to delude himself as to what the position was on that point. Beyond the rape itself there had been no serious degree of personal violence and the appellant was not likely to repeat this conduct with other women".

As Carloway notes in today's opinion:

'It may be that the repetitive use of the word "perhaps" shows that the court may have felt somewhat uncomfortable with what it was saying and, indeed, with the import of its dictum. Nevertheless, that dictum seems to be clear authority for the proposition that, if there has been a prior sexual relationship, that is a mitigating factor. Indeed, following the logic of the dictum, mere acquaintanceship may be such a factor, at least when compared with the rare "stranger rape".'

The principles have also been applied more recently, in the 2012 case of Petrie, in which the appeal court reduced another sentence from seven to five years, illustrating, said Carloway:

"... the court being prepared to regard the existence of an on-going sexual relationship as a significant factor in reducing a sentence imposed by a trial judge, who regarded the existence of that relationship as one of trust and hence an aggravating feature of the crime."

Many of you will, I'm sure, sympathise with the trial judge's sentiments. Ken Clarke's ill-judged and clumsily-phrased observations represented only his own opinion. These statements are the law of Scotland. Carloway's opinion, rightly, expresses muted unease with these authorities, and their outmoded logic. The idea that being raped by your sexual partner, husband or boyfriend counts in their favour if and when it comes to sentencing is a disgusting juridical principle, whose elimination from our sentencing book is long overdue.

Who are human rights really for?

In Brighton in 2012, the governments of the forty-seven member states of the Council of Europe assembled to discuss how the European Court of Human Rights could best be reformed.

In the United Kingdom, as many of you will recall, the issue suddenly caused a big stramash.  David Cameron, Ken Clarke, and his replacement as Lord Chancellor, Chris Grayling, all rallied to argue that the Court was interfering inordinately in Britain's affairs, usurping the primacy of states, as protectors and guarantors of the human rights of their citizens.  

The fruits of their deliberations was Protocol No. 15 to the Convention which, amongst other things, will cut the period of time available to applicants to lodge their cases in Strasbourg, from six months to four.  Superficially just an administrative reform, reflecting developments in human communication since the 1950s, in a piece for the Firm today, I argue that these reforms pose a real risk to the most vulnerable folk in Europe, subject to the worst outrages against human rights, least able to access legal advice.  It is a theme I touched on in a Scotsman piece earlier in the year.   An excerpt:

The “original” European Convention on Human Rights “was a laudable document, written at a time when Stalin was in power and people were being sent to the gulags without trial.  What has happened is the jurisprudence of the Court has moved further and further away from the goals of its creators.”

That verdict, from Chris Grayling MP, has been a consistent feature of the Lord Chancellor’s assault on the European Court of Human Rights over the last twenty-four months. Grayling depicts a tribunal which has lost its way, corrupting its vocation as a bulwark against serious state outrages to focus instead on frivolous points of law, upturning perfectly decent British judicial decisions, and aggrandising its jurisdiction.

Despite Grayling’s comments, Stalin’s Soviet Union formed no part of the Council of Europe, and the Court never enjoyed authority to investigate the regime’s treatment of its citizens. Today, the tribunal’s jurisdiction extends east from Iceland to the Baring Strait.  The Russian Federation joined in 1998 along with a wave of eastern European states, as the dust from the fallen wall in Berlin settled during the 1990s. A fragment stands in the Court’s gardens in Strasbourg, in mute recognition of Europe’s shifting geo-politics.

It has suited Conservative UK ministers to project an image of “pushing for reform in Europe” to their domestic constituencies. In truth, international debates on reform of the Court have only ever stalled, and not really stopped, since the middle of the 1980s.  Over three decades, the member states of the Council of Europe have been puzzling over how to deal with the runaway scale of the Court’s jurisdiction and the mountainous quantity of correspondence which it has generated.  Dipping in 2012 for the first time in a decade, the Court’s backlog of undecided cases still numbers over 100,000.

The questions are simple, but intractable. How is a single court, with an operating budget of just over 66,800,000 euros, to cope with and respond adequately to a population of more than 800,000,000 potential litigants? Why do we have a European Court of Human Rights anyway, and what is it for? Should it be a tribunal concerned with compliance with the Convention in the last instance in every case? Should it focus instead on “serious” cases? But what then does “seriousness” mean in this context? Alternatively, ought the institution to concentrate its efforts on what some commentators have described as its “constitutional” function, dealing with new issues, elucidating norms and clarifying human rights standards for the whole continent?

Read the whole thing, and the threat posed by Protocol No. 15 to the most vulnerable applicants, here.

A Tory victim-fantasy...

Ken Clarke's replacement as Lord Chancellor, Chris Grayling, was one of the blacker suits promoted in David Cameron's recent reshuffle. Clarke's moderating influence shouldered out of the way, the Daily Mail and their ilk are salivating at the prospect of Grayling "showing his mettle" to those pesky Euro judges which every authoritarian British nationalist seems ardently to believe are "taking over" - or "waging war" - on British justice. At the very least, with Grayling in charge, we can expect more rhetorical firecrackers of this hue to be thrown, no doubt attracting volleys of applause from the UK's right-wing, nationalist press. 

But to be fair minded about things, is there any evidence whatever that the UK has been subjected to particularly harsh, or intrusive review by the European Court of Human Rights as Grayling as his ilk believe? This is a central contention of the now-familiar argument advanced by parts of the Conservative Party, and significant segments of our national press.  And, if you dip into the statistics, it's inveterate nonsense.  

I've a wee post up at the UK Human Rights blog this morning, comparing Britain with the other forty seven member states in the Council of Europe now subject to the Court's jurisdiction.  It turns out that the UK government actually loses a smaller percentages of cases in Strasbourg than forty two other states, enjoying the fifth lowest percentage of adverse judgments, finding at least one violation of the Convention has occurred. Embattled Britannia? Just a victim fantasy.

See my full post here.

Misleading anti-Nationalist invective, Vol. 56...

Someone’s been nibbling the bitter almonds. In the Telegraph this morning, BBC lawyer Alistair Bonnington has written an extraordinary gouge-piece attacking the SNP, and Kenny MacAskill, under the headline “SNP’s arrogance leaves Scottish libel law stuck in the past”.   

My interest was piqued by the queer combination.  There has been little to no commentary on the fact that the Defamation Bill currently wending its way through Westminster means only means to apply in England and Wales.  As usual, the press commentary has tended to forget that we live in a union state, not a unitary state, and that the Bill’s provisions as introduced – limiting defamatory statements to those whose publication has or is likely to cause ‘serious harm’ to reputations, enhanced protections for writing published in peer-reviewed academic journals, for operators of websites attracting potentially defamatory comments – would only reform the English and Welsh law of slander and libel, leaving Scotland’s defamation law intact. Back in June, I speculated on the consequences which these English reforms might have for Scottish courts.

In his piece this morning, Bonnington sketches an ugly picture.  For him, the Defamation Bill is ‘a reasonable set of rules for the modern world’. Rules which Bonnington believes the SNP have conspired to defeat for suspect reasons.  He writes:

“Scots media lawyers have noted with some disquiet that Kenny MacAskill, the Scottish Justice Minister has decided to reject almost all of the Bill’s liberalising provisions and include only one minor subsection.”

“In libel, Scots law is miles behind English law.  That gap is about to become wider still courtesy of Mr MacAskill.” 

He buttonholes this with the suggestion that...

"... the Legislative Consent Memorandum announcing this decision came out in June at a point when the parliament at Holyrood was going on holiday – a ploy possibly aimed at preventing any opposition MSPs from having the effrontery to ask questions about this daft decision."

Bonnington then goes on to summarise the measures proposed in the Bill in warm terms: various new defences and the welcome reframing of definitions of defamation. The sting:

“MacAskill’s policy seems to be to deprive Scots law of these important liberalising and modernising measures – for no other reason than to be different from England.”

Reading this, I thought I’d been seriously remiss.  Bonnington’s trenchantly accusatory piece makes three critical allegations and insinuations. Firstly, he implies that comprehensive defamation reform was put to the Scottish Government by Westminster, to liberalise the law on both sides of the Tweed, to protect freedom of speech and melt the perceptible "chilling effect" of the current law on defamation. Secondly, that the Scottish Government knocked back this request from Westminster, grudgingly instead accepting only a peripheral subsection in their legislative consent motion.  Thirdly, Bonnington suggests that that the Cabinet Secretary’s motives for this limited motion were scurrilous, allowing atavistic legal nationalism to trump a sensible and liberalising reform. As neatly as these allegations fit with certain cherished suspicions of Scottish Nationalists, and as satisfying as Mr Bonnington clearly seems to find it to fulminate and froth against such perfidy, there doesn’t seem to be a breath of truth in any of these claims.

Pick up the Defamation Bill which Ken Clarke introduced to Westminster in May this year on behalf of the UK government. Bounce your eyes down the page, to section sixteen, “short title, commencement and extent”: “This Act extends to England and Wales only”. That seems tolerably categorical. So when and how did Scotland get roped into this, you might well wonder? Bonnington’s brain is haunted by reactionary SNP ministers, haughtily rejecting the overtures of Westminster’s solicitous, sensible modernisers.  If that were the case, a dip into the House of Commons' Public Bill Committee records should surely uncover a word or two about them and their activities, and critically, an amendment proposing that the whole Bill be extended to Scotland. You won’t find one. You can’t. It doesn’t exist. 

Here’s what Jonathan Djanogly, Tory MP Huntingdon and Parliamentary Under-secretary to the Ministry of Justice, contributed on Tuesday 26th June 2012, lodging government amendments which would extend the Bill’s protection for academic publications to Scotland.  Djanogly said:

“Amendments 1, 2 and 3 extent certain provisions of the Bill to Scotland.  The civil law on defamation is generally a devolved area, and the Bill reforms the law in relation to England and Wales only.  However, we have been requested by the Scottish Government to extend certain specific provisions to Scotland, and these amendments are intended to fulfil that request.  The Scottish Government have confirmed that a legislative consent motion will be put before the Scottish Parliament on a timely basis following these amendments being moved in order to secure their consent.”(Col 170)

One doesn’t have to be an honorary professor to see that asking for sections of the Bill to be extended to Scotland isn’t easily constructed as rejecting “the Bill’s liberalising provisions” for the idle sake of being different from the English. To double-check, I rummaged around Holyrood’s archive for June, and up popped the pertinent legislative consent memorandum, from Kenny MacAskill’s hand. The Scottish Government don’t see reform of the Scots law of defamation as a priority, he writes, but having considered extended privilege to scientific and academic activities, it was concluded that:

“…the parity of protection across the UK was desirable given that much scientific and academic research is done collaboratively and without reference to national borders. Therefore, limiting these provisions to England and Wales only could potentially inhibit constructive and robust scientific and academic exchange.” [para 26].

Despite Bonnington’s preferred narrative of nationalist mischief, I can find no evidence whatsoever suggesting that Westminster has ever proposed to Scottish ministers that the Defamation Bill should simultaneously reform Scottish and English law, nor that they ever enjoyed the formal opportunity to accept or reject such a proposal.  You might well think that this is for the bad, and that it would be preferable if Scots law mirrored the English proposals, which will substantially shrink the scope of defamatory speech, and enlarge on the defences available to those sued in particular scenarios.  I have some sympathy with that perspective.

Each man may be guilty of the good he does not do, and the inactivity of the Scottish Government on defamation reform may well be complacent, but the scenario which Bonnington so ill-temperedly promotes in this Telegraph piece is simply fictional. To avoid Bonnington’s wroth, MacAskill would presumably have been obliged unilaterally to ask Westminster to pass defamation legislation for us. The distinction between acts and omissions may be of philosophical interest, but the impression aggressively cultivated by this piece of invective is seriously misleading.

Juxtaposition of the day...

Ed Miliband, on the 28th September 2010, on short prison sentences...

“Wisdom is not the preserve of any one party. Frankly, the political establishment too often conducts debate in a way that insults the intelligence of the public. When I disagree with the government, as on the deficit, I will say so loud and clear and I will take the argument to them. But when Ken Clarke says we need to look at short sentences in prison because of high reoffending rates, I'm not going to say he's soft on crime.”

Richard Baker (Swine Pursuivant) on the 31st of January 2011, as a presumption against short sentences comes into effect in Scotland...

“The SNP have proved themselves time and time again not fit to run Scotland’s criminal justice system. They are soft-touch and out of touch and our communities deserve much better than this.”