The Future Lawyer Weekly Update – w/c 20th July

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Private Life

Paedophiles and the right to private life

Reported by Laurence Tsai 

On 15 July 2020, the UK Supreme Court unanimously ruled in the case of Sutherland (AP) (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland), that gathering evidence in covert sting operations conducted by “paedophile hunters” (“PH”) groups, and the subsequent use of such evidence by public authorities, does not breach a person’s right to private life and correspondence under article 8.

Article 8(1) provides that everyone has the right to respect for their private life and correspondence. In this case, an adult member of a PH group, “Groom resistance Scotland”, created a fake profile on the Grindr dating app using a photograph of a 13-year old boy to attract communications from paedophiles. In 2018, Mark Sutherland matched with the decoy. Believing him to be a real child, Mr Sutherland sent him sexual messages and images, and eventually arranged a face-to-face meeting. Members of the PH group confronted him at the meeting point at the arranged time and handed the resulting evidence to the police.
Mr Sutherland was charged with the following offences:

i. Attempting to cause an older children to look at a sexual image to gain sexual gratification;
ii. Attempting to communicate indecently with an older child; and
iii. Attempting to meet with a child to engage him/her in unlawful sexual activity.

He appealed to the Supreme Court against his conviction on the basis that the covert investigation (and the use of the resulting evidence by the prosecuting authorities) was obtained without authorisation or reasonable suspicion of criminality, and thus, breached his article 8 rights. Lord Sales dismissed Mr Sutherland’s appeal for two reasons. Firstly, the court held that there was no interference with Mr Sutherland’s Article 8 rights because “the reprehensible nature of the communications means paedophiles do not attract protection under article 8(1)”.

Implicit in article 8(1) is the protected features of private life and correspondence must be worthy of respect. The state has a positive obligation to enforce criminal law provisions effectively to protect children against sexual exploitation by adults. Clearly, as children are young, impressionable and vulnerable, their interests “have priority over any interest a paedophile could have in being allowed to engage in criminal conduct.”

Secondly, the court held that Mr Sutherland did not have a reasonable expectation of privacy, due to the lack of prior relationship between him and the “child”. His request that the decoy keep the communications private did not establish a relationship of confidentiality either.

Lord Sales added that since the state has a positive obligation to deter offences against children, the public prosecutor was entitled to introduce the evidence from the decoy at the trial to try to secure a conviction.

Even if Mr Sutherland had successfully appealed his case, article 8(2) provides that the use of evidence provided by the decoy by public authorities would have been justified and necessary in a democratic society, as a measure proportionate to promoting the legitimate objectives of the prevention of disorder or crime and the protection of the rights and freedoms of others.

Earlier this year, HM Inspectorate of Constabulary in Scotland (“HMICS”) found that almost half of all online grooming cases that were reported to the police resulted from the activities of PH groups. However, the nature of PH groups is dangerous. They are self-appointed vigilantes who impersonate children to lure, and thus, expose paedophiles and provide the resulting material to the police. Such groups are unregulated and untrained, meaning their activities could potentially jeopardise the safety of children and ongoing investigations, or that any evidence they hand over to the police may be inadmissible if the means of obtaining evidence is unlawful. Accordingly, HMICS recommended the police should consider resourcing their own covert work to reduce the opportunities for vigilante groups.

As lockdown measures are easing, we could see a surge in PH group activities. Indeed, within a week of the strictest lockdown rules being eased in Scotland, police were called to three separate incidents that were locally attributed to PH groups’ activity.

You can find more here or here.

Reform

‘The Rough Sex Defence’: Vital Reform or Political Move?

Reported by Oliver Murrell

The proposals to ban the so-called ’rough sex defence’ are set to pass through Parliament, but will it actually change anything?
The Domestic Abuse Bill 2019-2021 is currently being debated in the House of Lords and contains a great number of regulations and guidance that will afford domestic abuse victims greater protection under the law. However, all of this has been overshadowed by the so-called ban on the ‘rough sex defence’. The amendment, which was added to the Bill by MPs on both sides of the bench, has been lauded by MPs and lobby groups as much needed reform. But not everyone agrees, with legal commentators noting that the law will not actually be changed and ‘rough sex defence’ was never actually a defence to begin with.

Lobbyists assert the current form of the ‘rough sex defence’ operates to allow perpetrators of violence to defend their actions by stating they had consent from the victim, and that harm was incurred during rough sex gone wrong. The women’s advocacy group We Can’t Consent to This report since the defence was first used in 1972, there have been over 60 women whose killers have utilised the defence. However, as any law student will know, the infamous case of R v Brown made it very clear that consent is no defence to grievous bodily harm, and the House of Lords have repeatedly refused to allow people to consent to death in the context of euthanasia. So, what effect will the ban have?

We Can’t Consent to This state the ‘rough sex defence’ causes a number of problems. Juries are more able to sympathise with a defendant’s actions in the context of rough sex, as it is easy to see how something can go wrong. The group also state it can lead to charges being reduced from murder to manslaughter. High profile cases have shown this to be true, such as the death of Natalie Connolly, who had 40 separate injuries including fractures and internal bleeding. Yet, her partner received just under 4 years in prison following his assertion these injuries were all caused by sex games gone wrong. While the common law is clear that consent is no defence to murder, the ‘rough sex defence’ has led to jury acquittals, reduced charges and in some cases a failure to even charge or investigate perpetrators of violence. It is this that the proposal seeks to amend.

Yet, what cannot be prevented in these cases is an accused simply claiming they did not intend to commit serious bodily harm. The Bill only prevents an accused from asserting the victim consented to serious bodily harm for sexual gratification. But what if the accused merely asserts the victim consented to something lesser, such as a battery, and in the course of rough sex something went wrong? This would leave the accused in the position of having to explain how, in the course of sexual intercourse, a battery went wrong and ended up causing serious bodily harm. Following this, however, if an intention to cause serious harm cannot be proven, then they lack the mens rea to be tried for or convicted of murder. This then creates the opportunity for abusers to state they did not have the required intention and try and aim for a manslaughter charge, or no charge at all.

While banning the ‘rough sex defence’ does not theoretically change the law, it may bring about change to charging attitudes. The Bill may cause the police and CPS to look closer at the victims of abuse and their abusers, and perhaps reconsider charging decisions. However, what the Bill will not do is prevent abusers seeking either reduced or no charges through other methods and may also lead to genuine cases of rough sex gone wrong go unjustly treated as murder. As with every law, it has its foibles and cannot cover every ‘loophole’. So, while the ban may bring about reform to charging decisions and change jury attitudes, it is still being heralded by politicians as something it’s not.

Find out more here or here.

Equal Pay

Asda Equal Pay Case goes to the Supreme Court – A major case that could mark the end of a long running battle for retail workers in the
fight for equal pay.

Reported by Jasmine Cracknell and Katie Henderson

The ongoing equal pay dispute between Asda and some 35,000 employees headed to the Supreme Court last week. The virtual appeal began on 13th July and was heard over two days.

The claims were first brought against Asda in 2008 by employees working on the shop floor, the majority of whom are women. They are arguing that under the Equality Act 2010 they should be paid the same as staff working in the distribution centres, who are mostly men.

A tribunal in Manchester first heard the case in 2016 and found in the employees’ favour, ruling lower paid women working on the shop floor can compare themselves to the men who work in Asda’s distribution centres. The Court of Appeal agreed with the tribunal’s decision on appeal in 2019.

Asda subsequently appealed to the Supreme Court, who are currently considering the first stage of the claim. This is whether the store worker and distribution centre roles are comparable. If successful, the employees will then have to prove the roles are of equal value and that gender discrimination was the reason for the difference in pay. This second stage is currently being considered by Manchester Employment Tribunal.

Should the employees be successful, they are seeking several years’ worth of pay backdated to the date they lodged their respective claims, totalling between £10,000 and £20,000 each.

The case is the biggest private sector pay claim ever seen in the UK and the decision will be highly anticipated by other big supermarkets, namely Tesco, Morrisons and Sainsbury’s, who also have equal pay disputes with around 8,000 employees. London firm Leigh Day, who are representing the workers, estimate the supermarkets would face a total compensation pay-out of £8bn if the employees are successful.

Lauren Lougheed, a partner in the employment department at Leigh Day said: “Shop floor workers have always had a demanding job, but in the current climate it’s not only physically challenging but also mentally and emotionally exhausting.

“We want these hardworking women and men to know how much we value and appreciate the work they do. That’s why we are as determined as ever to continue their fight for equal pay.” David Pannick QC, who is representing Asda, said in relation to the in-store staff and distribution centre workers: “The different types of establishment operate in different geographical locations, in different industries and with different pay-setting
processes.”

Asda also said: “pay rate in stores differ from pay rates in distribution centres because the demands of the jobs in store and the jobs in distribution centres are very different; they operate in different market sectors and we pay the market rates in those sectors regardless of gender.”
“Our hourly rates of pay in stores are the same for male and female colleagues and this is equally true in our distribution centres…”

The Court of Appeal judge held that there were common terms between the claimants and comparators and a broad correlation between the terms of employment in retail and distribution.The Supreme Court’s judgement is expected towards the end of the year.

You can find out more here and here.