The Domestic Abuse Act (Scotland) of 2018 came into force on April 1, 2019. It modifies and expands upon portions of the Criminal Procedure (Scotland) Act of 1995. The act expands the definition of domestic abuse to include psychological abuse and coercive and controlling behavior. It criminalizes both psychological and physical harm directed to a partner or an ex-partner. Section 11.2 defines a “partner” as a spouse or civil partner, a person with whom one lives as a spouse, or a person with whom one is in an “intimate personal relationship.” Section 2 defines abuse as “violent, threatening, or intimidating” behavior that may consist of controlling a victim’s daily activities, causing the victim to become subordinate or dependent on the perpetrator, isolating the victim from friends or family, depriving or restricting a victim’s actions, or frightening, humiliating, degrading, or otherwise punishing the victim. Section 3 contains an extraterritoriality clause covering such conduct occurring partly or wholly outside the country, and thus the abusive behavior need not take place within the United Kingdom. Section 5 creates a is the only UK legislation with a specific statutory sentencing aggravation for the harm that can be caused to children growing up in an environment in which domestic abuse takes place. Section 2.2.n., likewise, includes a victim’s child under the age of 18 as a potential additional victim of abuse. Section 5.3 clarifies that the aggravation can be applied both in cases in which abusive behavior is directed at a child, and in scenarios in which a child “sees or hears, or is present during, an incident of behavior that A directs at B as part of the course of behavior.” The Domestic Abuse Act has been lauded by women’s rights organizations as a “welcome change” that “should increase the opportunity [for victims] to obtain protection and seek justice through the criminal justice system."
United Kingdom and Northern Ireland
Legislation
The Female Genital Mutilation Act of 2003 restated and amended the law prohibiting female genital mutilation, and further prohibits assistance in mutilation, failing to protect a girl from risk of mutilation, and assistance in transporting girls overseas for the purpose of female genital mutilation. It establishes a maximum penalty of 14 years imprisonment.
The Domestic Violence, Crime and Victims Act of 2004 was enacted to protect victims of crime and specifically domestic violence. It amends non-molestation orders under Family Law Act 1996 to provide a criminal sanction for non-compliance, with a maximum sentence of five years' imprisonment and fines. See Section 1. It amends the Protection from Harassment Act 1997 to allow restraining orders to be imposed upon even acquitted defendants, if the court “considers it necessary to do so to protect a person from harassment by the defendant.”
Abortion Act (1967)
The Abortion Act broadly legalized abortion for up to 28 weeks gestation. The Human Fertilisation and Embryology Act 1990 lowered the gestation limit from 28 to 24 weeks for most cases.
Equality Act (2010)
This Act is a comprehensive act that replaced several pieces of legislation, including the Sex Discrimination Act of 1975. In general, The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society, and provides equality provisions, including the following:
the basic framework of protection against direct and indirect discrimination, harassment and victimization in services and public functions, work, education, associations and transport changing the definition of gender reassignment, by removing the requirement for medical supervision protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic clearer protection for breastfeeding mothers applying a uniform definition of indirect discrimination to all protected characteristics harmonizing provisions allowing voluntary positive action allowing claims for direct gender pay discrimination where there is no actual comparator making pay secrecy clauses unenforceable extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment introducing new powers for employment tribunals to make recommendations that benefit the wider workforceThe Domestic Violence and Matrimonial Proceedings Act of 1976 allows women to obtain a court order against abusive husbands without the need for divorce or separation proceedings. In addition, women can obtain a court order to remove a co-inhabitant from matrimonial home, regardless of whether the co-inhabitant owns the home. Case law has extended this Act to cover joint tenancies outside of marriage. See Case Law Section below.
Domestic Case Law
Skills Development Scotland Co Ltd v Buchanan & Anor Employment Appeal Tribunal (Scotland) (2011)
Here, the Employment Appeal Tribunal upheld the appeal of the respondent employer and rejected a prior holding of the Edinburgh Employment Tribunal that found the respondent employer liable for having violated Section 1(3) of the Equal Pay Act for having given a male staff member a more favorable employment contract than two female co-workers and having done so without genuine, material, and sex-neutral factors accounting for this disparity. The claimants in this appeal were two female employees of Scottish Enterprise, a non-departmental public body of the Scottish Government focused on economic development. The women alleged that a male co-worker doing work of equal value had a more favorable employment contract, and that there were no genuine, material, and sex-neutral factors accounting for this disparity. The Employment Appeal Tribunal accepted respondent’s argument that the reason for the disparity in compensation between the claimants’ contracts and that of their male comparator was due to the fact that the terms of the male comparator’s contract were protected under Scotland’s Transfer of Undertakings (TUPE) regulations. These regulations protect an employee’s contract from modification in the case of a business transfer. While the lower tribunal had accepted that this explanation for the disparity was genuine, it held that the respondent should have frozen the male comparator’s salary and not granted him pay increases after a certain period to keep his pay equal to that of the claimants. The Employment Appeal Tribunal rejected this holding and granted the appeal, noting that it was not the respondent’s practice to freeze salaries for any employees. Furthermore, the Employment Appeal Tribunal stated that the lower tribunal had made “no finding that the Claimants suffered discrimination on grounds of sex.” Neither had it made any finding that respondent committed any form of “culpable inactivity” motivated by sex. Finally, the Employment Appeal Tribunal found that the respondent established a valid defense under the Equal Pay Act. The Equal Pay Act states that an employer must show that “that the difference in pay or other conditions is explained by something that has nothing to do with sex.” The Employment Appeal Tribunal found that the respondent made a “causal link between a non gender related explanation and the difference in pay complained of,” and that, therefore, respondent had established a defense. Therefore, it rejected the decision of the Edinburgh Employment Tribunal, upheld the appeal, and dismissed the claims.
A. v. Bonmarche Ltd. (in administration) Employment Tribunal (Scotland) (2019)
Here, the employment judge found that the claimant was entitled to lost wages for the period between her resignation in December 2018 and the start of her new position in September 2019 on the grounds that the claimant “suffered a substantial reduction in her mental wellbeing” as a result of improper treatment and discrimination from her employer in relation to the claimant’s onset of menopause and was thereby entitled to damages emanating from injury to feelings. The claimant alleged that her store manager discriminated against her for being a woman of menopausal age. The claimant had a long work history in retail, had received multiple awards for her excellent performance, and had gotten along with her store manager until the claimant’s onset of menopause. At that point, the store manager would frequently harass and humiliate the claimant in front of her colleagues and customers, specifically commenting about her menopause. The store manager’s disparaging treatment of the claimant weakened her mental state, resulting in a nervous breakdown in November 2018 that required her to begin anti-depressant treatment. Her doctors recommended that she work reduced hours. The store manager ignored this request and told the claimant that if she could not work her full hours, she would be forced to use vacation and sick time to account for the remainder of time. The store manager continued his harassment of the claimant until she resigned on December 4, 2018. After her resignation, the claimant continued to suffer from severe mental distress and anxiety as a result of her treatment and could not find employment until she accepted a part-time position at a charity shop in September 2019. The respondent employer did not contest the evidence presented by the claimant and was absent from the proceedings. The Employment Judge “found it established on the facts that the respondent, by the actings of [the store manager] for whom they were liable, had treated the claimant less favourably than he would treat someone who was not a female of menopausal age.” Furthermore, while the claimant had not made a constructive dismissal claim, the Employment Judge accepted claimant’s position that she “resigned as a result of the discrimination against her.”
R. v. R. House of Lords (1991)
In R v. R, the House of Lords determined that spousal rape is not exempt from criminal punishment. The defendant, R, was convicted of attempting to rape his wife. He appealed the conviction pursuant to the marital rape exemption under common law, arguing it was not legally possible for a husband to rape his wife. Both the Court of Appeal and the House of Lords upheld the rape conviction, holding that no marital rape exemption exists under English law.
Davis v. Johnson House of Lords (1978)
This case held the Domestic Violence and Matrimonial Proceedings Act of 1976 allows the court to issue an injunction against a man to order him out of the home, even in a non-marital joint tenancy.
R(F) v. DPP [2014] Q.B. 581 Queen's Bench (2014)
The claimant, who did not wish to become pregnant, consented to her husband, whom she had married in an Islamic ceremony, having sexual intercourse with her on the basis that he would withdraw his penis before ejaculating. He decided that he would not withdraw, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. She became pregnant as a result. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape. In this case, following the conditional consent established in Assange, he was found guilty of rape.
R v. Bree [2008] Q.B. 131 Court of Appeal of the United Kingdom and Northern Ireland (2008)
The complainant had been severely intoxicated while the defendant had sex with her. It was found that in order for sex to be consensual the victim must have the capacity (the ability) to say no. If one is so inebriated as to be incapable of refusing intercourse, such intercourse is rape. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.
R v. Jheeta [2008] 1 W.L.R. 2582 Court of Appeal of the United Kingdom and Northern Ireland (2008)
The defendant and the complainant had been involved in a sexual relationship for some time when the complainant started to receive threatening text messages and telephone calls. The complainant, who was unaware that the defendant was sending the messages, confided in the defendant and allowed him to contact the police on her behalf. He did not do so but over a long period sent her text messages purporting to be from a succession of police officers dealing with the bogus investigation, and he obtained £700 from the complainant for security protection which he pretended to arrange. Eventually the complainant wanted to break off the relationship with the defendant, but on approximately 50 occasions over a four-year period the defendant, posing as a police officer, sent text messages telling the complainant that she should have sexual intercourse with him, and that she would be liable to a fine if she did not. The complainant complied, although she would not have done but for those messages. Subsequently, the complainant approached the police, following which the defendant was arrested. During a police interview the defendant admitted that he had been responsible for the fictitious scheme and that on numerous occasions the complainant had not truly consented to intercourse. Since the complainant had been persuaded by deceptions, the court held the defendant guilty of rape.
R v. Dica [2004] Q.B. 1257 Court of Appeal of the United Kingdom and Northern Ireland (2004)
The defendant, knowing he was HIV positive, had unprotected sexual intercourse with two women who were unaware of his disease. The women were both subsequently diagnosed as HIV positive. He was found guilty of inflicting grievous bodily harm. As a general rule, unless the activity is lawful, the consent of the victim to the deliberate infliction of serious bodily injury on him or her does not provide the perpetrator with any defence. The effect of this judgment is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.
Stack v. Dowden [2007] UKHL 17 House of Lords (2007)
The parties began a relationship and the defendant bought a house in her sole name in which the parties lived together as man and wife and had four children. The defendant, who throughout their time together earned more money than the claimant, and sometimes almost twice as much, made all the payments due under the mortgage and paid the household bills. The parties then separated and the claimant left the property while the defendant remained there with the children. The claimant successfully applied to the judge for, inter alia, an order for sale of the property and an equal division of the proceeds. In this case it was held that where a domestic property is conveyed into the joint names of cohabitants without any declaration of trust there is an assumption that interest is equal. To prove interest is not equal, it must be proved that the parties held a common intention that their beneficial interests be different from their legal interests; to discern the parties' common intention the court should look at the parties' whole course of conduct in relation to the property, including more stereotypically feminine input such as redecoration, contributions to household expenses, etc and not just the initial contributions to purchase price, thus allowing some women more opportunity to claim an interest in their family home.
Hayward v. Cammell Laird Shipbuilders Ltd [1988] A.C. 894 17 House of Lords (1988)
The applicant, a woman, was employed at a shipyard canteen as a cook and was classified as unskilled for the purposes of pay. She claimed that she was doing work of equal value to male comparators who were shipyard workers paid at the higher rate for skilled tradesmen in the yard. The industrial tribunal, at a further hearing, rejected the applicant's contention that, in considering whether her contract of employment should be modified, it was sufficient to compare her basic pay and overtime rates with that of the male comparators and held that without a comparison of all terms and conditions of employment she was not entitled to a declaration that she should receive a higher rate of pay. The Employment Appeal Tribunal dismissed the applicant's appeal and, on her appeal, the Court of Appeal upheld that decision. The Court of Appeal dismissed the applicant's appeal. When deciding whether a woman’s contract is equal to a man’s it is sufficient for certain terms to be less advantageous for the woman for the contract to be unfair. It is not necessary for the overall woman’s contract to be less advantageous than the overall man’s contract.
R v. Tyrrell [1894] 1 Q.B. 710 Crown Case Reserved (1984)
The defendant was tried and convicted at the Central Criminal Court on an indictment charging her, in the first count, with having unlawfully aided and abetted, counselled, and procured the commission by one Thomas Ford of the misdemeanour of having unlawful carnal knowledge of her whilst she was between the ages of thirteen and sixteen, against the form of the statute, and, in the second count, with having falsely, wickedly, and unlawfully solicited and incited Thomas Ford to commit the same offence. In this case it was held that one cannot be found guilty of aiding and abetting a law that is solely in place to protect them. A girl between the ages of 13 and 16 aided and abetted a man over 16 to have intercourse with her, however she was found not guilty of aiding and abetting by law because this law was in place to protect her and her peers.
Macarthys Ltd v. Smith [1980] 3 W.L.R. 929 Court of Appeal [United Kingdom and Northern Ireland] (1980)
Mr. M., the manager of the stockroom in one of the warehouses of the employers left his employment. After four months of the post remaining vacant the employee, Mrs. Smith, was appointed as the manageress of the stockroom. Her duties differed slightly from Mr. M's duties. She was paid about £10 less than he was. She argued that this breached the UK’s Equal Pay Act 1970. The Court of Appeal held that that Act does not allow comparisons with former colleagues; however, the ECJ held that EU law allows such comparison, reversing that Court of Appeal’s judgment. The ECJ decided that article 119 of the Treaty was directly applicable in the national courts of each country. It was submitted that under article 119 of the Treaty there was no requirement that the man and the woman should be employed contemporaneously at the same time and that, under that article, the woman was entitled to equal pay even though the man had left before she joined and the woman had taken his job afterwards.
Wijesundera v. Heathrow 3PL Logistics Ltd [2014] I.C.R. 523 Employment Appeal Tribunal (2014)
The claimant, a Sri Lankan national, was working in England with a valid work permit when she was made redundant. The claimant claimed that she had been subjected to sex discrimination and harassment on numerous occasions. She also claimed that her dismissal was a further act of sex discrimination. In this case it was held that a worker knowingly employed under an illegal employment contract could bring a sex discrimination claim as the claim was not so inextricably bound up with her employment as to be defeated by a defence of illegality.
Assange v Swedish Prosecution Authority [2011] EWHC 2849 High Court of Justice (2011)
Mr. Assange visited Sweden to give a lecture. He had sexual relations with two women there. In the home of the injured party, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's sexual integrity. Mr. Assange was accused of rape. Allegedly, the women agreed to sex on the condition Mr. Assange wear a condom. He did not do so throughout intercourse. Although the English courts had previously ruled that one cannot give conditional consent, in order to be able to allow extradition to Sweden, the Supreme Court ruled that his actions would constitute a crime under English law – thus allowing conditional consent to become valid in English law.
Detention Action v. Secretary of State for the Home Department (SSHD) High Court of the United Kingdom and Northern Ireland (2014)
DFT, or Detained Fast Track, involves the placement of asylum seekers in detention while the outcome of their claim is determined. The claimants identified numerous issues in the DFT system with respect to female asylum-seekers and asserted that “the [DFT] system as operated created an unacceptable risk of unfairness for asylum seekers” and especially for vulnerable populations. These populations include pregnant women and trafficked women, who may find the detention period traumatic and who are likely to present complex cases. The Court held “that the DFT as operated carries with it too high a risk of unfair determinations for those that may be vulnerable applicants,” but emphasized that detention periods in and of themselves are not unlawful.
Reed & Bull Information Systems v. Stedman (1999, IRLR 299 EAT) Employment Appeal Tribunal (1999)
S was employed by Bull as a temporary secretary and was subsequently given a permanent placement responsible to the Marketing Manager, R. S resigned on the ground that she found working with him intolerable as R allegedly sexually harassed her. S never confronted S nor made any identifiable protests about his behavior with the exception of complaint she made about him telling dirty jokes to colleagues in her presence. But she had made complaints to her mother and colleagues at work. Although the tribunal decided that no single incident was serious enough to be capable of constituting sexual harassment, they did find that there had been a series of sexual inferences with a pervading sexual innuendo and sexist stance and that R realized that they were unwanted and were bullying in nature. With regard to the liability of Bull, the tribunal found that colleagues in the personnel department were well aware of the applicant's deteriorating health and that she had made complaints to other members of staff which had been dismissed. In those circumstances there should have been an investigation into the cause of the illness and the complaints that had been made. By failing to implement this, Bull committed a repudiatory breach of contract as they failed to deal with the issue of sexual harassment adequately. The tribunal concluded that the applicant was entitled to compensation for unfair dismissal by reason of sexual discrimination. The Employment Appeal Tribunal dismissed the appeal and added that whilst not “gross: the behavior of R towards S was most inappropriate in the workplace. The EAT placed the burden on the victim to place the harasser on notice that she does not welcome his conduct and endorsed the reasonable person perspective in assessing a victim’s rejection. The question at issue should be was the victim subjected to a detriment on the grounds of her sex. A one-off ace may suffice. The Court also directed tribunals to pay attention to the impact of totality of successive incidents, individually trivial.
Vent-Axia v. Wright (1999, EAT) Employment Appeal Tribunal (1999)
A department head accused of harassing four women was not permitted to learn the names of his accusers due to confidentiality issues. The EAT re-affirmed that the primary test when ordering disclosure of documents is whether disclosure is necessary for fairly disposing of the proceedings, not whether the document is confidential in nature. The Court ruled the alleged harasser must demonstrate that this information is necessary in the context of his specific case.
Hall v. Incorporated Society of Law Agents Court of Sessions (1901)
Margaret Hall appealed to the Court of Sessions regarding the decision of the Society of Law Agents in Scotland to deny her permission to take the preliminary examination for the Society. Hall argued that she should be given permission because the statute permitted “persons” to become law agents and so, by its terms, did not exclude women. The Society had found that women did not have a legal right to practice law given that “[a]ccording to inveterate usage and custom in Scotland, that practice has in all departments of the law been hitherto confined exclusively to men.” Upon Hall’s appeal, the Court of Sessions also refused to grant her permission because the statute did not explicitly include women, even though it did not explicitly exclude them either. In support of its decision, the court stated that the word “persons” had to be interpreted according to its customary usage; because women had been ineligible to become law agents when the statute was enacted in 1873, the court found the customary usage of “persons” to mean “male persons” and accordingly refused Hall’s appeal.
Bebb v. Law Society Court of Appeals of the United Kingdom and Northern Ireland (1914)
Gwyneth Bebb, upon being denied admission to the Law Society to take the preliminary examination to become a solicitor, took the matter to court. In Bebb v. Law Society, the Court of Appeal stated that the question of whether the gender-neutral language of the statutes meant that women could gain admission to the bar was settled through “long usage” in the common law and found that women were not included under “persons” in the Solicitor’s Act of 1843. Additionally, women were considered to have an additional disability at common law, namely that after marriage they are not able to enter into contracts with third parties. As every woman held the potential of being married, this disability was also applied to unmarried women.
Yemshaw v. Hounslow LBC United Kingdom Supreme Court (2011)
The appellant (Y) appealed against a decision that the respondent local authority had been entitled to find that she was not homeless. Y had applied to the local authority for housing assistance, claiming that although her husband had not physically assaulted her or threatened to assault her she was scared that he would, and had left him. Under the Housing Act 1996 s.177(1) a local authority was obliged to rehouse a person where it was not reasonable for that person to continue to occupy accommodation if it would lead to domestic violence. The local authority decided that it was still reasonable for Y to occupy the matrimonial home. A review of that decision was unsuccessful as the panel considered the probability of domestic violence to be low. Upon appeal, the county court and the Court of Appeal concluded that the term "violence" in s.177(1) required some sort of physical contact. The issue in the instant appeal was whether the word "violence" in s.177(1) included other forms of violent conduct.
Davis v. Johnson United Kingdom House of Lords (1978)
The House of Lords ruled that in domestic violence cases, no distinction should be made between married and unmarried couples and that the Domestic Violence and Matrimonial Proceedings Act 1976 s.1 gave jurisdiction to all county courts to grant an injunction and exclude a violent person from the home, whether married or not, irrespective of any property right vested in the person excluded. However, this exclusion should only be temporary until other arrangements have been made. Such an injunction can be permanent, but will in most cases be temporary.
Regina v. Shahnawaz Ali Khan, Raza Ali Khan and Perveen Khan United Kingdom Court of Appeal (2010)
The defendants recruited nine men from the Middle East and the Indian continent between 2004 and 2008 to work in a restaurant owned by one of the defendants. The men were found to have been subjected to economic exploitation, including many or all of the following: having their documents taken away from them by the defendants upon arrival in the UK, being required to work 12 hours or more a day for 6-7 days a week without adequate recompense for overtime and in some cases without receiving even the basic salary, being asked to arrive with bond money (which was not returned) or accept deductions from income, not being provided with national insurance numbers or wage slips, not being registered with the NHS, being discouraged from visiting the town or talking with customers. The Crown Court convicted the defendants of conspiracy to traffic people for exploitation under s. 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and sentenced each to three years’ imprisonment. The Attorney General and the defendants appealed against the sentences.
R v. O United Kingdom Court of Appeal (2008)
O, a Nigerian national and apparently only 17 years old, appealed against a conviction for the offence of possessing a false identity document. One of the submissions on her behalf, supported by a senior outreach worker for The Poppy Project, was that she had been the victim of trafficking for sexual exploitation and used the false identity document in an attempt to escape. The Court of Appeal granted her appeal, stating that it regretted that neither the prosecution nor the defense had considered her age or the possibility that she might have been a victim of sex trafficking at first instance. It was unlawful to impose a prison sentence as such on a person aged 17. Further, the Court of Appeal noted that common law and article 6 of the European Convention on Human Rights alike require far higher standards of procedural protection than were given to O at first instance. The Court of Appeal expressed the hope that the case would drive home the message that proper inquiries need to be made where there is doubt about the age of a Defendant who is a possible victim of trafficking.
A-G Ref (No. 44 of 2010) United Kingdom Court of Appeal (2010)
Two offenders were convicted at first instance of (i) trafficking AH, a 19 year old girl, from Romania to the UK for sexual exploitation (s 57(1) of the Sexual Offences Act 2003) and (ii) controlling the prostitution of AH for gain (s. 53(1) of the Sexual Offences Act 2003). The first offender received a sentence of 30 months imprisonment for the first offence and 24 months’ imprisonment for the second offence. The second offender was sentenced to 24 months imprisonment for the first offence and 18 months imprisonment for the second offence. The Attorney General appealed to the Court of Appeal to review the sentences on the grounds that the judge at first instance had not taken account of aggravating factors and the impact of the offences on AH. The Court of Appeal agreed that the sentences did not reflect the totality of the offences, which involved bringing AH into the UK by deception and then coercing her to work as a prostitute and corrupting her in the process. Therefore, the Court of Appeal imposed a harsher sentence of 4 years’ imprisonment on the first offender and 3 years’ imprisonment on the second offender for the first offence. The sentences in relation to the second offence were not changed.
R. v. R. House of Lords (1992)
The defendant appeals his conviction for attempted rape on the grounds that a husband cannot rape his wife. The House of Lords overturned the old common law rule that marriage automatically gave consent for sexual intercourse and held that a husband could be convicted of rape or attempted rape of his wife where she withdrew her consent to intercourse.
Regina v. Olugboja Court of Appeal (Criminal Division) (1982)
The defendant was convicted of rape and appealed on the grounds that there could only be an absence of consent if the victim's mind had been overborne by fear of death or duress. The victim only began to struggle in earnest after penetration had occurred. The Court held that it is not necessary for the prosecution to prove that what appeared to be consent was actually submission induced by fear, force or fraud, but only that the jury should be instructed to focus on the victim's state of mind immediately before the act of sexual intercourse, in light of all the circumstances. The conviction was affirmed.
Chalmers v. Johns Court of Appeal (Civil Division) (1999)
Mr. Johns, the appellant, and Ms. Chalmers, the respondent, began their relationship in 1972; it has become increasingly troubled, in part from the respondent's alcoholism, leading to Mr. Johns being charged with assault, of which he was later acquitted. Ms. Chalmers obtained an occupation order requiring Mr. Johns to vacate their family home, which he appeals. The Court held that the circumstances of this case were a mild form of domestic violence and an occupation order was an unjustifiably drastic measure to take and that occupation orders are only justified in exceptional circumstances.
Fornah (FC) v. Secretary of State for the Home Department House of Lords (2006)
The appellant arrived in the UK in March 2003, aged 15, and claimed asylum on the basis that she would be at risk of subjection to female genital mutilation if she was returned to Sierra Leone. The House of Lords held that women in societies who practiced female genital mutilation were 'members of a particular social group' for the purposes of the Refugee Convention and affirmed that FGM was considered a form of torture.
M.Z. (Rape, Stigma, UNHCR Advice) Kosovo UK Asylum and Immigration Tribunal (2002)
The applicant arrived in the UK in January 2000, claiming asylum on arrival, and appealed a decision to have her removed to Kosovo following the refusal of her claim to asylum after she was raped by a Serbian soldier. The Tribunal acknowledged that adequate facilities for rape victims exist in Kosovo but in light of the stigma attached to rape victims and the applicant's very real fear that her husband would leave her on finding out about the rape, granted her request for asylum.
P. and M. v. Secretary of State for the Home Department Court of Appeal of United Kingdom and Northern Ireland (2004)
The first appellant, P, was seeking asylum from being returned to Kenya on the grounds of a fear of persecution because of the violence that both she and her children had suffered from her husband in Kenya, especially as domestic violence tends to be accepted in Kenya and the police had not effectively protected her against her husband. The second appellant, M, seeks asylum on the grounds of fearing that she would be subjected to female genital mutilation at the hands of her father, who is a member of the Mungiki sect that practices FGM, and who had already previously performed FGM on her mother, causing her mother's death. The Court allowed both appeals for asylum, but did stipulate that not all cases of either domestic violence or FGM would automatically give rise to a claim to protection and asylum.
R. v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) House of Lords (1999)
The two conjoined appeals both involve married Pakistani women who were forced by their husbands to leave their homes and seek asylum in the UK as refugees on the grounds that they fear being falsely accused of adultery and thus in danger of flogging or being stoned to death on being returned to Pakistan. The Lords granted the appeals, giving the appellants refugee status, on the ground that the appellants are part of the particular group as women in Pakistan who fear being accused of adultery.
R. v. Ireland; R. v. Burstow House of Lords (1998)
In the Ireland case, the appellant was convicted of three counts of assault occasioning actual bodily harm for harassing three women by making repeated silent telephone calls to them. In the Burstow case, the appellant was convicted of unlawfully and maliciously inflicting grievous bodily harm for harassing a women after she broke off their relationship, in behavior ranging from silent telephone calls, offensive notes, taking photographs of her and her family, and being frequently at her house and place of work. The House of Lords held that silent telephone calls can amount to an assault as long as the victim is made by them to fear some physical harm.
R. v. K House of Lords (2001)
The appellant, K, was convicted of a single count of indecent assault against a girl aged 14; his defense was that the intercourse between the two was consensual and that she had told him she was 16. The House of Lords allowed the appeal on the grounds that the appellant's honest belief that the complainant was over the age of 16 was a defense to the charge of indecent assault.
R. v. Malone Court of Appeal (Criminal Division) (1998)
The appellant appealed his conviction on the count of rape for allegedly having sexual intercourse with the complainant without her consent when she was too drunk to put up any physical resistance. The Court upheld the conviction and the sentence on the grounds that the complainant's evidence was sufficient for a jury to find that the appellant was reckless as to the question of the complainant's consent, even if he did not know at the time that she was not consenting.
B. v. Director of Public Prosecutions House of Lords (2000)
The appellant, a 15 year old, was charged with inciting a girl under 14 years old to commit an act of gross indecency for asking a 13 year old girl to perform oral sex with him several times; the girl repeatedly refused. The defense argued that the appellant honestly believed the girl was over 14 years old. The prosecution submitted the offense was one of strict liability. The Lords held that a reasonable belief, even if mistaken, as to the victim's age was a defense to the charge
Burris v. Azadani Court of Appeal (Civil Division) (1995)
Mr. Azadani, the appellant, was under an injunction not to go within 250 yards of a specified address, after he had repeatedly sought a close and intimate relationship with Ms. Burris, which she refused, leading to repeated telephone calls and threats. Ms. Burris sought and obtained an interlocutory injunction prohibiting Mr. Azadani from pestering or contacting Ms. Burris, her children or her friends, or of going within 250 yards of her house. He breached the injunction and was committed to prison; he appeals the injunction. The Court held that an order prohibiting the defendant from being in a defined area in which the plaintiff's home was situated was possible in support of an injunction forbidding tortious harassment.
International Case Law
L.R. v. United Kingdom European Court of Human Rights (2014)
The applicant is an Albanian national who was abducted and brought into the UK where she was forced to work as a prostitute. She escaped and requested asylum for fear of retribution from her abductor if she returned to Albania. Her request for asylum was rejected by the UK government and she complained that her removal was in violation of Articles 2, 3, 4, and 8 of the Convention. The UK did grant her application though, so the issue was resolved without having to consider whether there was a violation of the Convention.
Case C-243/95, Hill and Stapleton v. Revenue Commissioners [1998] ECR I-3739 European Court of Justice (1998)
Job-sharing was introduced into the Irish Civil Service in 1984. Job-sharers work half the number of hours of full-time workers and are paid the same hourly rate. The scale of annual incremental salary increases for job-sharers are parallel to that for full-time workers with each point on the job-sharers scale representing 50% of the corresponding point on the full-time scale. 98% of job-sharers in the Irish Civil Service are women. According to the national referring tribunal a job-sharer can acquire the same experience as a full-time worker. When H and S transferred from job-sharing to full-time work they were initially assimilated to the same point on the full-time incremental scale as that which they had occupied on the job-sharers' scale. They were both subsequently reclassified at a lower point on full-time scale on the grounds that two years on the job-sharers' scale represented one year on the full-time scale. The questions posed to the ECJ by the Labor Court in Ireland arose from the decision by H and S to contest their reclassification. The Court took the view that workers who transferred from job-sharing, where they worked 50% of full-time hours and were paid 50% of full-time pay, to full-time work, were entitled to expect both the number of hours that they worked and the level of their pay to increase by 50%, in the same way as workers converting from full-time work to job-sharing would expect these factors to be reduced by 50%, unless a difference of treatment can be justified. Such development did not occur in this case, with the result that, as former job-shares are paid less than twice their job-sharing salary, their hourly rate of pay as full-time workers is reduced. Within the category of full-time workers, therefore, there is unequal treatment, as regards pay, of employees who previously job-shared, and who regress in relation to the position which they already occupied on the pay scale. In so finding, the Court observed that the use of the criterion of actual time worked during the period of job-sharing fails to take account, inter alia, of the fact that job-sharing is a unique category of work, given that it does not involve a break in service, or of the fact that a job-sharer can acquire the same experience as a full-time worker. Furthermore, a disparity is retroactively introduced into the overall pay of employees performing the same functions so far as both the quality and quantity of the work performed is concerned. In such a case, application of provisions of the kind at issue before the national tribunal result in discrimination against female workers which must be treated as contrary to Article 119 of the Treaty. The Court of Justice concluded that it would be otherwise only if the difference of treatment which was found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination on the grounds of sex. It added that it is for the national tribunal to decide if any such objective factors exist.
Driskell v. Peninsula Business Services & Others Employment Appeal Tribunal (2000)
D described, amongst others, how her manager suggested the day before her appraisal interview that, at that discussion, she should wear a short skirt and a low-cut or see-through blouse – the inference being that doing so would further her chances of a favorable appraisal. The EAT held that the “lewd words” acted as a detriment. The Court concluded that the correct approach when dealing with a course of conduct of harassment should be to limit judgment to the finding of all facts that are prima facie relevant. The judgment said that the facts of a case in which harassment is alleged “may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow”. The Court confirmed that the ultimate judgment of whether there was sexual discrimination reflects an objective assessment by the tribunal of all the facts, however important the applicant’s subjective perception.
Carole Louise Webb v. EMO Air Cargo (UK) Ltd., United Kingdom European Court of Justice (1994)
Carole Louise Webb v. EMO Air Cargo (UK) Ltd., United Kingdom, European Court of Justice, 1994. Gender discrimination, employment discrimination. Mrs. Webb learned that she was pregnant two weeks after starting with EMO Air Cargo, where she was hired to cover for another employee, Mrs. Stewart, during her maternity leave. Mrs. Webb expected to stay with EMO Air Cargo after covering for Mrs. Stewart, but was dismissed from the company after notifying EMO of her pregnancy. A letter from EMO clearly stated pregnancy as the reason for her dismissal. An industrial tribunal and the Court of Appeal dismissed Mrs. Webb’s claims of direct and indirect discrimination on the grounds of sex. An appeal to the House of Lords was referred to the European Court of Justice, and the European Court of Justice determined that Mrs. Webb’s dismissal was contrary to Article 2(1) and Article 5(1) of the Equal Treatment Directive. The ECJ also noted that Article 2(3) of the Equal Treatment Directive recognizes the importance of protecting women during pregnancy and after the birth of children, by allowing individual Member States to introduce protective legal provisions. Lastly, the ECJ acknowledged that the dismissal of pregnant women during pregnancy and maternity leave is prohibited, noting that exceptions to this prohibition are available only in exceptional cases in which the dismissal is unrelated to the pregnancy.
Bracebridge Engineering Ltd. v. Darby Employment Appeal Tribunal (1990)
Sexual harassment. Two of Mrs. Darby’s male supervisors, Mr. Daly and Mr. Smith, grabbed and sexually assaulted Mrs. Darby in the works manager’s office at Bracebridge. Mr. Smith threatened Mrs. Darby with a written warning when she attempted to get away from him, but she was eventually able to run away from the men. Mrs. Darby reported the incident, but the general manager did not take action against the men and Mrs. Darby subsequently resigned. An Industrial Tribunal upheld Mrs. Darby’s complaints of sex discrimination and unfair dismissal, awarding £3,900 to Mrs. Darby. Bracebridge appealed to the Employment Appeal Tribunal, and the Employment Appeal Tribunal dismissed Bracebridge’s appeal. The EAT found no error in the Industrial Tribunal’s finding of sex discrimination by Bracebridge, noting that the single incident of sexual harassment was sufficiently detrimental to Mrs. Darby and therefore no pattern of harassment was necessary to reach this finding. The EAT also noted that the incident took place in the workplace and was perpetrated by Mrs. Darby’s supervisors, further supporting a finding of sex discrimination under s.6(2)(b) of the Sex Discrimination Act. The EAT also found no error in the Industrial Tribunal’s finding of constructive dismissal (unfair dismissal) by Bracebridge, because the company failed to respond appropriately when Mrs. Darby reported the incident and Mrs. Darby left her position at the company as a result of Bracebridge’s failure to act.
Salgado v. United Kingdom CEDAW Committee (2007)
Constance Ragan Salgado, a British citizen, moved to Colombia with her husband, a Colombian, and gave birth to a son. Salgado attempted to obtain British nationality for her son, but the British Consul in Bogotá stated that British nationality passed only though the paternal line. Although the British Nationality Act of 1981 amended British law to confer equal rights to men and women, Salgado’s son did not qualify because he was over 18. The Legislation again changed in 2002 with the passage of the Nationality, Immigration and Asylum Act which allowed children born to British mothers between 1961 and 1983 to register as British nationals if they satisfied certain other conditions. Salgado’s complaint alleged sex-based discrimination under the British Nationality Act of 1948 which restricted nationality descent to British fathers. Salgado raised issues under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, which calls for the elimination of all discriminatory laws, regulations and customs that discriminate against women, and article 9 paragraph 2 under which State parties must grant women equal rights with men with respect to the nationality of their children. She claimed that the discrimination was ongoing because her son failed to qualify for citizenship under the various amendments to the Act. Although the Committee held that the complaint was inadmissible ratione temporis because the events occurred before the Covention’s entry into force in the United Kingdom, it based its decision on the fact that Salgado’s son had reached the age of majority, at which time he could have applied for British nationality on his own. The Committee noted that the United Kingdom had enacted the challenged legislation prior to the Optional Protocol’s entry into force. The Committee also recommended that Salgado challenge the legislation by way of judicial review in the British High Court before turning to the Committee for further redress.
N.S.F. v. United Kingdom CEDAW Committee (2007)
N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.
Case of Abdulaziz, Cabales and Balkandali v. the United Kingdom European Court of Human Rights (1985)
Three lawfully and permanently settled residents of the UK challenged the Government's refusal to permit their husbands to join or remain with them on the basis of the 1980 immigration rules in force at the time. The rules applied stricter conditions for the granting of permission for husbands to join their wives than vice versa. These conditions did not apply to the wives of male permanent residents. The Court found that Article 8 encompassed the right to establish one's home in the State of one's lawful residence, and that being forced to either move abroad or be separated from one's spouse was inconsistent with this principle. On this basis the applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and, in the case of Mrs. Balkandali, birth, they had been victims of a violation of Article 14 of the Convention, taken in conjunction with Article 8. The applicants claimed there was no objective and reasonable justification for the difference in treatment, rather the Government's claims ignored the modern role of women and the fact that men may be self-employed and create rather than seek jobs, as in the case of Mr. Balkandali.
Commission of the European Communities v. United Kingdom European Court of Justice (1983)
The Commission brought a charge against the United Kingdom for failing to fully implement the Directive 76/207. The Commission’s complaint is that the legislation enacted in the United Kingdom does not state that provisions contrary to equal treatment in any collective agreement will be void. The UK legislation also has an exception for private households and the practice of midwifery. The Court decided that the UK failed to meet its obligations under the treaty.
Johnston v. Chief Constable European Court of Justice (1986)
A new regulation was instituted that women in the Royal Ulster Constabulary would not be given firearms to carry or trained in them. Johnston was a police officer who filed a complaint of sexual discrimination. The Court recognizes that the policy was instituted by the Chief Constable to protect women from risks and that it is up to a national tribunal to determine whether this type of action meant for public safety is allowed in light of Directive 76/207.
Memoranda
This memorandum discusses the intellectual property rights of a journalist to the photos he has taken outside the course of his employment citing international, United States and United Kingdom law.