Author Archives: WomenAgainstRape

Secret policy change by CPS cut number of rape trials, high court told

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Application on behalf of women’s group follows concern over fall in number of charges

Owen Bowcott and Caelainn Barr  The Guardian  Tue 17 Mar 2020

A legal challenge over alleged changes to Crown Prosecution Service policy on bringing charges in rape cases has been dismissed by the high court.

The judges, Dame Victoria Sharp, president of the Queen’s Bench Division, and Lord Justice Singh, denied permission for the case to proceed to a full hearing on Tuesday.

The challenge by a coalition of victims’ organisation sought to prove that the CPS had raised the bar for charging suspects in rape cases.

The high court heard arguments that there had been a “precipitous drop” in the number of rape cases brought to trial due to a secret and unlawful change in policy adopted by the CPS.

The CPS adopted an internal conviction rate target of 60% of cases charged and became increasingly risk averse although it consulted with no one outside the organisation about the new approach, Phillippa Kaufmann QC told judges.

Her application on behalf of the End Violence Against Women Coalition follows concern over steep falls in rape charges and convictions in recent years at a time when an increasing number of women have been making rape complaints to police.

“This change [in policy] was brought about in secrecy and no one was told even afterwards,” Kaufmann told the court.

The changes were introduced from late 2016 after an internal review by the CPS’s director of legal services, Gregor McGill, it was alleged.

It resulted in refresher training of prosecutors that in effect abandoned the established policy of a what is known as a “merits-based approach” to assessing whether to charge suspects in rape cases, Kaufmann said.

“The easiest way to [raise the conviction rate],” she added, “is to whip out those cases that are a bit weaker … No one knew about it until it was leaked by an individual inside the CPS.”

The consequence, Kaufmann said, was that some prosecutors reverted what had been known as the bookmakers’ approach – guessing the probability of a jury convicting on the evidence and becoming reluctant to press ahead with more difficult rape cases.

But the CPS, which successfully, resisted the challenge, argued that courts should not become “an arbiter of prosecutorial policy”.

In written submissions, lawyer for the director of public prosecutions (DPP), Max Hill QC, said it was factually wrong to allege that prosecutors have now adopted a “bookmaker’s test” approach.

The CPS maintained that the courts should dismiss the claim at this preliminary stage and not proceed to a full judicial review of the arguments.

“There has not been a change in policy,” Tom Little QC, for the DPP, told the court. “The fall on conviction rates is due to a far wider range of factors involving the police that are now the subject of a government review.”

Rape victims who donated to the legal challenge, because they felt failed by the CPS, are set to see their donations go towards the institution’s legal costs.

The CPS is pursuing legal costs against the women’s rights’ charity the End Violence Against Women Coalition, and asked for a request to cap legal costs to be denied. The CPS were awarded £35,000 – £41, 000 in legal costs by judges ruling on the request for a judicial review into the claims.

The coalition’s director, Sarah Green, said: “We have no regrets about bringing this case. It was the right thing to do, and it was entirely necessary to challenge our justice system institutions when they are failing to keep women safe and deliver access to justice.

“We have been approached by so many women who have been let down by the CPS as we prepared this case. We know there are really serious problems. But instead of working with us, the CPS chose to fight us.

“It is a long way from the kind of leadership we need in our public institutions … The CPS is arguably failing to keep with the times on expectations for justice after sexual violence. The situation as it is cannot hold, it amounts to the effective decriminalisation of rape.”

The charity received hundreds of donations, many for £10 and £20, via a crowd justice campaign ahead of the hearing. Many messages left with the donations were from women who said they had been raped but denied justice. One donor wrote: “Having been through the system myself and being failed on every level I so wish you every success.” Under the anonymous donation of £10, someone simply wrote: “I never got justice.”

The legal challenge also received £10,000 from the family of Jill Saward, the Ealing rape victim who became a leading figure in the fight against sexual violence.

Harriet Wistrich, director of the Centre for Women’s Justice, who supported the claim, said: “We are deeply, deeply disappointed that [the judges] didn’t see there was a basis on which the case arguable.

“We feel they were just not prepared to grapple with all the detail and ultimately they saw it as a factual dispute. The court was not prepared to get involved.”

Wistrich said they were considering appealing against the ruling at the court of appeal. “We don’t see this as a loss because we think we won in the court of public opinion.”

On the heavy costs of £41,000 imposed on the claimants, she added: “ It’s astounding that the CPS have pushed for as much in costs against a small women’s charity.”

Eminent jurists write to UK Prime Minister Boris Johnson calling for Julian Assange’s immediate release.

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A delegation of women handed in the Jurists letter to 10 Downing St., including from Legal Action for Women and Women Against Rape who signed the letter.

FOR IMMEDIATE RELEASE 22 February 2020

With Julian Assange’s extradition hearing set to begin on Monday, February 24th more than 40 international jurists have written to British Prime Minister Boris Johnson.

The jurists’ letter asks for the rule of law to be upheld and details several issues with the way the case has been conducted to date. These include the difficulties that Assange has encountered communicating with his legal counsel from Belmarsh Prison and the systematic compromise of his legally privileged meetings while he was living in the Ecuaorian Embassy in London.

Icelandic lawyer Olga Margrét Cilia notes that “Everyone has the right to a fair trial and the presumption of innocence.”

The signatories highlight what they see as the disregard shown by the British authorities towards their duties and responsibilities under British and international law. Their letter calls on the UK authorities to deny the US extradition request and urges the UK government to immediately release Mr Assange.

Hong Kong barrister Robert Tibbo points out that “governments have resorted to using their enormous political powers and resources to permanently silence Mr Assange with a clear motivation to create a global chilling effect on journalism and freedom of expression. The US, UK and other nations must be held to account for their unlawful treatment of him, but also for the unlawful acts they have committed as exposed by Mr Assange in publishing evidence provided by whistleblowers.”

The jurists express alarm at the sweeping, extra-territorial claims being made by the prosecution of a non-US citizen for conduct outside the United States. Australian barrister Greg Barns says that “Many Australian lawyers are rightly disturbed by the Assange case. It represents a threat by the United States to abuse extra-territorial reach so it can seek to prosecute individuals who have no link with the US jurisdiction but who simply publish material which displeases Washington.”

Prof. Heather Ellis Cucolo, of the New York Law School, adds that “Mr. Assange would no doubt face a politicized show trial in the United States”.

The signatories call on the British legal community to reclaim professional standards, to condemn the torture of Mr. Assange and to engage in urgent actions to secure his immediate and safe release.

Media queries should be directed to Deepa Govindarajan Driver on + 44 7979 917 197 or deepadriver@protonmail.com

Bridges for Media Freedom

Editors’ notes

Mr Assange’s persecution comes after a decade of smearing and intentionally-prolonged preliminary investigations in Sweden, for which charges have never been raised. Freedom of Information Act (FoIA) requests have since revealed the extent of pressure put on Swedish authorities by the UK Crown Prosecution Service, to keep these preliminary investigations artificially open for many years to ensure Mr Assange remained isolated in the Ecuadorean embassy in London. FoIA requests have also revealed the intentional destruction of evidentiary trails by the CPS.

Prominent UK politicians have engaged in negotiations with the Ecuadorean government to extract Mr Assange from asylum, and have even claimed credit for Mr Assange being deprived of his Ecuadorean citizenship without due process. Since Mr Assange was dragged out of asylum, he has been imprisoned by the UK authorities in the maximum-security Belmarsh prison, in harsh conditions and until recently in isolation, on the flimsy grounds of a purported bail violation arising from seeking asylum. An extradition request has also since been filed with the UK by the United States authorities, and Mr Assange faces charges including under the Espionage Act, and so he continues to be jailed pending extradition to face a potential jail term of 175 years and a trial without First Amendment protections. The Swedish investigations meanwhile have been closed without a charge being raised after a decade of “investigation”.

Serious and multiple conflicts of interest have also come to light in respect of the senior British judge who was involved with Mr Assange’s previous case and to date, there is no record of investigations into these conflicts of interest.

Civil society groups have spoken out against the persecution of Mr Assange by the U.K. authorities. Over 100 international doctors have also publicly condemned Mr Assange’s mistreatment. Women Against Rape (UK), which has supported women fighting for justice for over 40 years say: “We are alarmed at the unusual zeal with which Julian Assange has been pursued. Do the victims of murder, rape and torture by US-UK occupiers in Iraq and Afghanistan not count? How can we find out about state crimes if journalists like Assange and whistle-blowers like Chelsea Manning are silenced?”.

The case holds particularly worrying omens for the profession of investigative journalism. National Union of Journalists (NUJ) executive member Tim Dawson who spoke at a recent public meeting in London on 4 Feb said: “The legal devices being deployed to try and take Julian Assange to the US are unprecedented and terrifying for anyone whose journalism touches on state security, defence or espionage. If Assange is sent from here to start a prison sentence that could be as long as 175 years, then no journalist is safe.”

View Jurists’ letter

Jurists letter to the Prime Minister, Boris Johnson

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Rt. Hon. Boris Johnson MP
10, Downing Street
City of Westminster
London, SW1A 2AA

                                                                                                                                         22 February 2020

Dear Mr Johnson,

As international jurists, with an acute awareness of the responsibilities that our profession demands of us, we call on the British authorities to refuse the request for the extradition of Mr. Julian Assange to the United States.  We also call for his immediate release.

The treatment of Mr. Assange, the circumstances surrounding his continued detention in Belmarsh maximum security prison, and the circumstances surrounding British attempts to comply with the US request for his extradition, highlight:

  1. the involvement of the United Kingdom in long-term, severe, psychological ill-treatment of Mr. Assange (ECHR Article 3)
  2. the disregard shown by the British authorities towards their duties and responsibilities under international law
  3. the disregard by the British authorities of British law, including Mr. Assange’s right to a fair trial (ECHR Article 6), for protection of his private life (ECHR Article 8) and his right to freedom of speech (ECHR Article 10)
  4. the sweeping, extraordinary, extra-territorial claims now being made by the United States, who are seeking to prosecute in the US and under US laws, non-US citizens for conduct outside the United States (including in jurisdictions such as the United Kingdom where that conduct is lawful).
  1. UK involvement in the psychological torture and mistreatment of Mr. Assange (infringement of ECHR Article 3):

International human rights experts ,  healthcare professionals and the UN Special Rapporteur on Torture, Prof. Nils Melzer,  have all found that Mr. Assange has been subjected to arbitrary confinement, and cruel, inhuman and degrading treatment amounting to torture. They note that the torture poses grave risks of significant physical, psychological, neuropsychological harm, withlife-changing and potentially fatal consequences for Mr. Assange. Prof. Melzer has found the British state responsible for Mr. Assange’s torture “through perpetration, or through attempt, complicity or other forms of participation”. This involvement of the British authorities in the psychological torture and mistreatment of Mr. Assange violates his rights under ECHR Article 3 and takes various forms:

a. Interference in the Swedish investigations, and inordinate protraction of Mr. Assange’s detention:

Mr. Assange originally sought asylum in the Ecuadorean embassy – as was his right – because he was concerned that if extradited to Sweden where he was being investigated in relation to (now-abandoned) sexual assault allegations, he might be subjected to onward rendition from Sweden to the United States (or another state with a US interrogation facility / black site), for which there were precedents. Whilst physically present in the embassy, Mr. Assange offered to make himself available for interview by the Swedish authorities, whether in person or by video link, so as to facilitate the investigation of the sexual assault allegations.  Mr. Assange also offered to go to Sweden, subject to an assurance from the Swedish authorities that he would not be rendered to the United States.

Information obtained under the Freedom of Information Act reveals that the Swedish authorities may have been minded to accept Mr. Assange’s offers of interviews in the embassy or by video link.  However, they were dissuaded from doing so by the British authorities. The Crown Prosecution Service repeatedly urged Swedish authorities not to interview Mr. Assange in the United Kingdom and suggested they insist instead on his extradition to Sweden. This compelled Mr. Assange to remain in the embassy for many years, despite the injury this was known to be causing to his health. Even the Stockholm Chief District Prosecutor has described the Swedish extradition effort, now known to have been urged on the Swedish authorities by the United Kingdom’s Crown Prosecution Service (CPS), as: “… unreasonable and unprofessional, as well as unfair and disproportionate.”

Requests under the Freedom of Information Act show that the CPS specifically and repeatedly urged the Swedish authorities to keep their investigation of Mr. Assange ongoing. In such missives, the CPS made extraordinary comments such as, “….do not think this case is being treated as just another extradition” and “Don’t you dare get cold feet!!!”, discouraging the Swedish authorities from concluding their investigations.
Mr. Assange was therefore unduly confined to the Ecuadorean embassy, on the urging of the UK authorities, when in fact, there were no charges to answer in Sweden. The United Kingdom therefore shares responsibility for the severe injury to health that Mr. Assange suffered as a consequence of this protracted and unnecessary stay at the embassy, and the consequent damage which the British authorities, in part caused, through their arbitrary, disproportionate and illegal treatment of Mr. Assange.

b. Denial of Medical Treatment whilst in the embassy:

Mr. Assange had to endure debilitating and painful medical conditions in the embassy. These conditions included an excruciating tooth abscess and a serious injury to his shoulder, both of which remained untreated for several years.
Mr. Assange was denied permission by the Foreign and Commonwealth Office to leave the Embassy to receive hospital treatment. This was despite a request from the Ecuadorean embassy to the British government for such access to be provided on medical grounds.

c. Conditions of Mr. Assange’s detention since his forced removal from the embassy and subsequent denial of proper medical treatment
Disregarding the well-established principle of ‘proportionality’, Mr. Assange, an award-winning journalist with complex healthcare needs (some of which are the result of the mistreatment he endured whilst forced to remain in the embassy), was given a custodial sentence of 50 weeks in the maximum-security Belmarsh prison for the offence of skipping police bail. This sentence was not only harsh and disproportionate; in the circumstances, given Ecuador’s granting of asylum and the findings of the UN Working Group on Arbitrary Detention (see above), it was vindictive.

The conditions in which Mr. Assange continues to be detained whilst on remand also appear harsh, disproportionate and vindictive. Mr. Assange poses no threat to the public.  Given the significant breakdown in his health he is not a flight risk. Yet the court, even before his lawyers had initiated any application for bail in the extradition proceedings, said that he would be remanded in custody because of his behaviour “in these proceedings”. Yet, at the time there had been no proceedings in the extradition case. He has been kept in custody in a maximum-security prison which the UN special rapporteur referred to, as “oppressive conditions of isolation involving at least 22 hours per day in a single occupancy cell… [He] is not allowed to socialize with other inmates and, when circulating in the prison, corridors are cleared and all other inmates locked in their cells. Contrary to assurances …..by the prison administration….., and contrary to the general population of the prison, Mr. Assange reportedly still is not allowed to work or to go to the gym, where he could socialize with other inmates.”
Visitors to Mr. Assange have reported that he was wearing prison uniform despite only being a remand prisoner, that he is denied civilian clothes, and that his access to his prescription glasses was “inexplicably delayed” for months, after they were sent to him at Belmarsh . Coming after 9 years of arbitrary and illegal detention in the embassy, the harsh and disproportionate conditions in which Mr. Assange is being held have unsurprisingly caused further grave injury to his health. An international group of doctors has expressed serious concern for his present and future safety and wellbeing. They too have called for him to urgently receive appropriate treatment there. British authorities bear responsibility for the ongoing situation.

2.Disregard for international law and infringement of Mr. Assange’s rights as a refugee:

Sweden, the United Kingdom and Ecuador are parties to the Convention relating to the Status of Refugees, which places on States an obligation to respect non-refoulement with no reservations. Not only have Mr. Assange’s rights as a refugee been ignored, U.K. authorities have helped undermine Mr.  Assange’s rights as an Ecuadorean citizen to protections under Ecuadorean law such as a protection against extradition. In addition, the U.K. authorities have not paid due regard to the clear findings of the UN Working Group on Arbitrary Detention on the arbitrary detention of Mr. Assange. Importantly, the U.K. authorities have repeatedly ignored their duty to investigate the serious concerns raised by the UN Special Rapporteur Prof Nils Melzer in relation to the prohibition against torture and other cruel, inhuman or degrading treatment or punishment.

3. Disregard for Mr. Assange’s right to a fair trial (ECHR Article 6), and for protection of his private life (ECHR Article 8)

a. Mr. Assange has suffered sustained infringement of his private life, whilst the conduct of the legal proceedings which have been brought against him, has been riddled with procedural irregularities that call into question the possibility of a fair trial.a.Intrusive Surveillance: It is now known that Mr. Assange and his visitors, including his lawyers, were put under extraordinary levels of covert surveillance within the Ecuadorean embassy at the behest of the US. Evidence has now emerged to prove that this surveillance breached not just the diplomatic sovereignty of the Ecuadorean embassy, but also Mr. Assange’s human rights in respect of privacy, and attorney-client privilege. It also intensified his torture. Prof. Melzer notes, “relentless surveillance for 24 hours a day is often used deliberately in psychological torture in order to drive victims into paranoia, except that the victim’s perception actually corresponds to reality”.

b. Destruction of Evidence: When the actions of the British and Swedish authorities came to be scrutinised via Freedom of Information Act requests and through other channels, it emerged that evidentiary trails – including communications with the US Federal Bureau of Investigations (FBI) – have been destroyed by Swedish and British prosecutors, with no plausible explanation provided.

c. Political interference: Senior UK governmental ministers have boasted about using their diplomatic skills and clout to broker a deal with Ecuador’s new government to rescind Mr. Assange’s asylum so that he could be taken into custody.

d. Inability to Prepare Defence: Mr. Assange has been subjected to material and repeated disruptions both with respect to his access to the documents he needs in order to prepare his case and with respect to the facilities he needs in order to consult with his lawyers so that he can prepare his defence.

e. Concerns about impartiality: Officials responsible for key decisions about various aspects of Mr. Assange’s case have made inappropriate comments about him, suggesting high levels of prejudice and bias.  For example, Mr. Assange has been called a ‘narcissist’ by a judge during a court hearing. There are also concerns that the senior judge who dealt with his previous case appears to have had serious, multiple conflicts of interest.  All this has led to doubts about whether an attempt to deny Mr Assange a fair investigation of his case may be underway.

f. Failure to respond to UN and other experts: UN officials have stated publicly that Mr. Assange has been detained illegally and arbitrarily and has been tortured. The British authorities have an obligation to engage with and to investigate these criticisms.Insteadtheir responses to UN officials have been belated, improper and inadequate.  Moreover, those responsible for these inadequate replies are those – in the British government and the criminal justice system – who are specifically responsible for ensuring that justice is served.

4. US extra-territorial overreach and the dangers to Mr. Assange from extradition to the United States

The extradition request made by the US authorities in itself gives rise to serious concerns.  Mr. Assange is an Australian citizen and a journalist based in the United Kingdom.  There is no suggestion that he has ever broken any British law whilst undertaking his work as a journalist in the United Kingdom.

Mr. Assange, however, faces an extradition request from the United States in which the US authorities claim that he has committed offences including under the US Espionage Act, which applies exclusively to the jurisdiction of the United States.  The charges the US authorities are seeking to bring against Mr. Assange are seen by many journalists around the world as an open assault against investigative journalism as it is practiced. These demands by the US authorities for the extradition to the United States of an Australian journalist based in the United Kingdom must inevitably give rise to serious concerns about the extraordinary extra-territorial demands which the US authorities are now making. The consequences if such demands are accepted by the UK to facilitate the extradition of a multi award-winning journalist and publisher are a matter of great concern.

There must also be serious concerns, whether in the context of such demands, Mr. Assange has any realistic prospect of a fair trial if he is extradited to the United States.  This is especially concerning given the disproportionate, cruel and inhuman punishment with which Mr. Assange is being threatened if he is convicted in the United States. His alleged accomplice and whistleblower Chelsea Manning, after already serving a lengthy prison term in often inhumane conditions, is now being held in indefinite detention in order to coerce her into giving evidence against Mr. Assange. Mr. Assangefaces a possible prison sentence of 175 years. Extraditing Mr. Assange to the United States would in such circumstances not only be inhumane and wrong; it would set a disastrous precedent, legitimising the US authorities’ practice of extra-territorial overreach, whilst infringing Mr. Assange’s human rights in the most fundamental way, putting his very life at risk. It would also set the scene for a trial whose eventual outcome might set extraordinarily dangerous precedents which could endanger the entire practice of journalism.

Conclusion

Under the rule of law, a State is required to afford all defendants their human rights and to honour international law whether “deriving from treaty or from international custom and practice”.

Such considerations are not intended to be optional or dependent on the nature of the crime.  Nor are they justified by the nature of the circumstances; nor are they implemented at the discretion of the judge or the State.

As Lord Bingham eloquently reminds jurists in his eponymous 2006 lecture on the subject, the constitutional principle of the ‘Rule of Law’ is statutory and paramount.

Yet time and time again in Mr. Assange’s case, we have seen the law ignored, manipulated  or summarily rejected.

We call on the British legal community to reclaim professional standards, to condemn the torture of Mr. Assange and to engage in urgent actions to secure his immediate and safe release.

Signed by:

Alberto Alemanno, Professeur de Droit, HEC et NYU, France
Ahmed Aydeed, Director of Public Law, Duncan Lewis Solicitors, UK
Greg Barns, Barrister & former National President of the Australian Lawyers Alliance, Australia
Professor Eirik Bjorge, University of Bristol Law School, UK
Heidi Boghosian, Esq., Executive Director, A.J. Muste Institute, Inc., USA
William Bourdon, Avocat au Barreau de Paris, France
Vincent Brengarth, Avocat au Barreau de Paris, France
Nick Brown, Barrister, Doughty Street Chambers, UK
Julian Burnside AO, QC, Australia
Heather Ellis Cucolo, Distinguished Adjunct Professor of Law, New York Law School, USA
Marie-Anne Cohendet, Professeure de Droit Public, L’Ecole de Droit de la Sorbonne, France
Marjorie Cohn, Professor Emerita, Thomas Jefferson School of Law, USA
Fabiano Cangelosi, Barrister, Tasmanian President of the Australian Lawyers Alliance, Australia
Olga Margrét Cilia, Lawyer and Deputy MP, The Pirate Party of Iceland 
Dominique Custos, Professeure Droits Fondamentaux, l’Université de Caen, France
Marie-Joëlle Fichrot-Redor, Prof. honoraire, Droits Fondamentaux, Université de Caen, France
Géraldine Giraudeau, Agrégée des facultés de droit, Professeure de droit public à l’UPVD, France
Ms. Elísabet Guðbjörnsdóttir, Attorney at Law at Consilia ehf., Iceland
Marit Halvorsen, Professor of Jurisprudence, University of Oslo, Norway
Dr Thomas Harrè, Barrister, New Zealand
Leonard Hartnett, Barrister, Gorman Chambers, Australia
Charles Hector Fernandez, Advocate and Solicitor, Messrs Charles Hector, Malaysia 
Fredrik Heffermehl, Lawyer and author (Nobel Peace Prize Watch, IALANA), Norway
Arlette Heymann-Doat, Prof. émérite de Droit Public, Spécialiste des libertés fondamentales, France
Nancy Hollander, Lawyer, USA
Toufique Hossain, Director of Public Law, Duncan Lewis Solicitors, UK
Colin Hutchinson, Barrister, Garden Court Chambers, UK
Eva Joly, Lawyer, Paris Bar & former judge, Paris Court, France
Ögmundur Jónasson, Former Minister of Justice, Iceland
Mamadou Konate, Avocat au Barreau de Bamako et Paris, Ancien Garde des Sceaux, France
James Lafferty, Executive Director Emeritus, National Lawyers Guild, Los Angeles, USA
David Lewis, Professor of Employment Law, Middlesex University, UK
Lisa Longstaff, Women Against Rape, UK
Nina Lopez, Legal Action for Women, UK
Carl J Mayer, Esq., Lawyer and consumer advocate, Mayer Law Group Llc, USA
Thomas Perroud, Professeur de Droit Public, Université Panthéon-Assas, France
Diane Roman, Professeure à l’école de Droit de la Sorbonne, Université de Paris 1, Spécialiste de libertés fondamentales, France
Catherine Teitgen-Colly, Professeure émérite de l’Université de Paris 1, Droit public, Panthéon-Sorbonne, France
Philippe Texier, Magistrat, Ancien Conseiller à la Cour de Cassation, France
Robert Tibbo, Barrister, Eastern Chambers, Hong Kong
Craig Tuck, Human rights Lawyer, Director of LawAid International, New Zealand 
Michael Tuck, Barrister, New Zealand
Mara Verheyden-Hilliard, Esq., Human rights Lawyer; President of the Partnership for Civil Justice Fund, USA
Richard J. Whitney, Attorney, USA

cc:

Jeremy Corbyn, MP
Priti Patel, MP
Dianne Abbott, MP
Suella Braverman, MP
Shami Chakrabarti
Robert Buckland QC, MP
Richard Burgon, MP

Keir Starmer’s record on rape

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Camden New Journal  Letters  6 February 2020

The record on rape

We take issue with the letter from MARTIN PLAUT of NW5 (‘Errors in attacks on Starmer’, January 30).  

He claims that rape “is one of the issues [Sir Keir] feels most strongly about and has worked on most assiduously. His determination has been applauded by the victims of these crimes. When he left office as DPP in 2013 prosecutions for these appalling offences were at their highest.” 

Sir Keir has been applauded by some, but others, including ourselves who work with many victims, have criticised his refusal to end the Crown Prosecution Service policy of prosecuting rape survivors who are disbelieved by the police.

[Cut from the letter we submitted: Such cases are similar to the shocking prosecution of a young woman in Cyprus who reported rape by a group of Israeli men but was forced to retract and was herself jailed.]

We have worked with a number of women the British police bullied to retract: some did, others refused but all were treated as criminals.

One woman raped at age 15 was charged with lying when police claimed to have found no sperm on her T-shirt where her rapist had ejaculated. We helped get a second investigation by another police force who found the sperm and the man was finally prosecuted. She was saved from prison and later sued the police for £20,000.

Many are not so fortunate and face long sentences – often longer than convicted rapists; one woman is in prison for 10 years. Another woman, attacked by strangers on her way home, was given a three year sentence while evidence of the assault was lost or not pursued; her brother had complained of police racism – did that play a part?

We raised such cases at a meeting with Sir Keir Starmer when he was Director of Public Prosecutions (2008-2013), demonstrating how the prosecution of disbelieved victims skews police investigations and undermines women’s ability to report rape.

To no avail – the policy remains.

That police and CPS have got worse since Sir Keir left is not evidence that he was good.

Their decision that victims must hand over mobile phones and social media history, medical and counselling records, which are disclosed to their attacker, has of course led to a further drop in rape prosecutions.

In most British cases it is not the rapists who are on trial but their victims.

Add to this austerity which has made women and children more vulnerable to violence, and has cut escape routes – refuges, benefits, etc.

When under 3 per cent of reported rapes lead to a conviction, rapists have almost complete impunity. Sir Keir didn’t feel strongly enough against rape to confront police sexism, racism and other prejudices, and press for better investigations when he had the power to do so.

LISA LONGSTAFF

Women Against Rape

Campaign Against Sexual Harassment in the Workplace

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IN JANUARY 2019 the Bakers Food and Allied Workers Union launched a public campaign against sexual  harassment with  support from  Women Against  Rape (WAR).

We had our first regional meeting with union reps at Region 5 in January and are invited to speak in other BFAWU regions. The feedback was very positive.

A 2016 TUC survey (Still just a bit of banter? 2016 research by

TUC and Everyday Sexism Project) found over half of women in the UK had suffered sexual  harassm bi.t at work.

We suspect  that  figure  is even  higher  in the fast food  and hospitality industries, as many victims can ‘t afford to talk about it or report it for fear of losing their jobs, their accommodation, their children or even be deported . . . read more [PDF]

A message of Love

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WAR is speaking at St James Church Piccadilly on Wed 15 Jan from 6-8pm at a public meeting called ‘A message of love (Luke 4:18): Why should we support Julian Assange?

Book seats here  https://www.eventbrite.com/e/a-message-of-love-luke-4-18-why-should-we-support-julian-assange-tickets-88112762645.

Venue: Church Hall, St James Church, 197 Piccadilly, W1J 9LL (access from Church Place).  Other speakers: Deepa Driver , Joanne Morrison, and Maxine Walker (Committee to Defend Julian Assange).  Followed by discussion.  Organised by Rebecca Francesca who is a congregant at St James Church.

In our secret family courts, judges still don’t understand what rape means

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Louise Tickle The Guardian 5 January 2020

It’s a scandal. Away from scrutiny, courtrooms are failing mothers by not taking evidence of sexual assault seriously

When is rape, you know, real, proper rape? Shockingly, in our family courts, it seems it’s only when you put up a fight and have the injuries to show for it. Never mind that you might clearly not consent to sex but in the end submit, terrified of what might happen if you were to actively resist.

In one recently reported case in the family courts a woman had complained to the court that she was a victim of domestic violence and had been raped.

Judge Robin Tolson ruled that because the woman had taken “no physical steps” to stop the man from raping her, “this did not constitute rape”, and consequently ruled against her.

Legally speaking, this means that when it comes to that same judge deciding whether or not, say, it is safe for a father to have contact with his child, claims of sexual violence will not be taken into account. Because, in the eyes of the court, that rape simply didn’t happen.

The fact that the family law system in this country is hidden behind a veil of secrecy means that these offensively vintage attitudes to rape and domestic violence can persist in courts that tens of thousands of separating couples must pass through every year. And it raises the question: what other outrageously sexist decisions are being made by out-of-touch judges behind closed doors?

The woman in the above case was so horrified at the judge’s finding that she challenged it via appeal. Unlike in a normal family court hearing, appeals are heard in public, and findings can be openly reported.

It is only because of this tiny chink in the family justice system’s protective shield that we are able to glimpse inside Judge Tolson’s courtroom, and see such attitudes for what they are. The usual level of secrecy in the family courts stifles investigation and reporting of what goes on.

I am typically contacted several times a week by women who say family judges have not taken their evidence of domestic abuse seriously. These women, often mothers fearful of the man they say abused and sometimes raped them, are without question retraumatised by a system presided over by some judges who have simply not accepted a modern understanding of what is and is not domestic abuse or sexual assault.

Women point particularly to difficulties in proving coercive control, a dangerous pattern of abusive behaviour that can indicate a risk of homicide. Coercive control is now a criminal offence; but in family courts, I am repeatedly told, judges are reluctant to name it, even if they find that emotional and psychological abuse has occurred.

Not only that. Women say that judges can even agree domestic abuse has occurred but not consider it serious enough to protect the victim and child from what we now know to be its damaging continuing effects: an abusive ex can easily continue their controlling behaviour throughout many years of court-ordered contact with a child.

If it were “just” scores of women telling me that this is happening, then these allegations would be exactly that: allegations. However, I recently sat through days of evidence in a family court case involving claims of domestic abuse and a dispute around child contact arrangements. The judge in that case made it clear he is unlikely to publish a judgment, and it is therefore unlikely at this stage that he will agree to allow the media to publish any part of what went on in court.

But I can say that I emerged from that courtroom astonished, dismayed and alarmed for very similar reasons to those that prompted the woman described above to appeal against a different judge’s findings about what constitutes rape.

In the year ending March 2019, more than 58,000 allegations of rape were made to police in England and Wales. It is an uncomfortable fact that many women are forced to have sex without their consent within relationships. It may be inconvenient for a family law system that operates on the principle that children are better off having contact with both their parents to acknowledge this truth. But surely any judge who grasps the mechanisms and psychological effects of coercive control should understand that you don’t need to be physically forced, there don’t need to be bruises, and you don’t need to scream, in order for it to be rape.

This is 2020, not 1920. Society has moved on. So have the criminal courts, which are open to scrutiny and would be instantly challenged should any barrister or judge articulate such archaic attitudes. Unless you have the courage and the cash to go to appeal, however, the family courts are essentially unaccountable to the public they serve.

Thanks to one of the most senior judges in the land coming firmly down on the side of the woman in the Judge Tolson case, she won her appeal. But it may well feel like a hollow victory. She will now have to relive every aspect of her evidence of domestic abuse and sexual assault at a new fact-finding hearing. This will be in front of a different judge. But that court will, once again, sit in private. How can we – or she – know what attitudes to sexual violence lie in store for her there?

• Louise Tickle is a journalist who specialises in social affairs and family law

https://www.theguardian.com/commentisfree/2020/jan/05/secret-family-courts-judges-rape-evidence-sexual-assault

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Abusive men using child contact as way to carry on subjecting women to domestic abuse

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See quotes here and below from WAR SNS, and a mum called Becky who we helped get contact with her (then) baby after she was snatched by her father who she still lives with; Becky is fighting to get her back.

‘We are also aware of instances where women have suffered physical and sexual assault from their abuser when children are being picked up or dropped off,’ says campaigner

Thousands of domestic abusers are preying on their victims during meetings with their children ordered by the family courts, The Independent can reveal.

Women are being subjected to coercive control, and physical and even sexual assault from their ex-partners when children are being picked up or dropped off. 

Campaigners say abusers also carry on terrorising their victims during child custody battles in the family courts and harassing them via emails, and report the problem is getting worse. 

Julian Watkins, senior research analyst at Safe Lives, said: “We started collecting data on this issue over the last couple of years because domestic abuse services and the survivors they support were increasingly telling us it is a problem.”

The domestic abuse charity has found abusive former partners use childcare arrangements to carry on targeting their victims in around a third of cases where children were cited as the reason for ongoing contact. 

Parents can face fines or even jail sentences if they do not make sure their child sees an ex-partner on a supervised or unsupervised visit when court-ordered contact is in place.

Angela* said the post-separation abuse her ex-husband has subjected her to has been even worse than the actual relationship. 

The 43-year-old domestic abuse survivor, who had one child with her former spouse, said she suffered emotional, financial and online abuse from him while they were together.

She said: “He was very aggressive towards me. It was an insidious thing. All of a sudden I realised I had no control over my life. I was basically a slave. Anytime I had an opinion that was different to him, he got angry. if I left a toy out, he went into a rage. I would be back terrified hiding in the flat with the child because he would be on the rampage and skulking around and ready to blow. 

“My money wasn’t my own. My thoughts weren’t my own. I had to check in with him on everything. He was living off me but if I went out and bought a lipstick I was a really bad person. He borrowed thousands of pounds that I never got back. He is very angry with the world. The world is against him. It’s all a conspiracy. Women are out to get him. We are all b*****s. We are all trying to trick the courts. 

“Part of the issue was my ex was using drugs and doing so in proximity of the child. I didn’t know he was taking drugs until very far into the relationship. He would leave lighters strewn around the room and weed out. With a toddler that is unacceptable. He would leave doors and windows open.”

She said her ex would send emails every few days threatening to get the authorities to take her child away after she left him. He was initially only allowed supervised contact with their child due to his drug use but is now allowed to have unsupervised contact.

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“When he was in the home, he didn’t bother with our child but as soon we broke up, access was the most important thing in his life,” Angela recalled. “He would turn up late to contact with our child. He wouldn’t change his nappy. Later, when he was older, he would let him wet himself. He had to do a handover with staff at contact centres when the visits were supervised and he would get aggressive with them.” 

She said they have a contact book where they write notes to each other about practical issues but he has used this to write abusive messages to her. 

Becky*, another woman who was subjected to coercive control by her ex-partner, said he now has custody of their young child and has used childcare arrangements to continue the abuse.

The 47-year-old said: “After I left him, he put her in his car and said he wanted one last bit of time with her on his own and never gave her back. I drove four hours to see her on Mother’s Day for a meeting the court had scheduled, but he said ‘You are not going to see her’ and drove home. He was shouting at me and laughing. He mainly abuses me through emails – mostly he says I am crazy and a bad mum. He doesn’t think that, he says it because he knows it will affect me. She cries when it’s time to go back to him at the end of visits.”

Anne Neale, of Legal Action for Women, said: “Men have been empowered by the family courts being more in their favour to pursue more cases and be more adversarial than they used to be

“This creates a climate in which men feel more emboldened to harass women through the courts and continue exerting controlling behaviour through the courts. It is also linked to the wider fact that women are increasingly speaking out about abuse wherever it takes place, including through the family courts.”

The campaigner, who supports women going through family courts, argued the presumption in law that it is in the best interests of the child to have contact with both parents “enables” the family courts to override a man’s history of violence towards both the mother and children. 

The warning comes after more than 120 MPs wrote to the government in May demanding an inquiry into how family courts in England and Wales deal with victims of domestic abuse.

Lisa Longstaff, a campaigner who is part of the Support Not Separation Coalition, said abusive ex-partners use contact as an opportunity to often verbally and sometimes physically abuse the mother.

She said: “They continue exerting coercive or controlling behaviour with the pretext of making arrangements or cause problems such as making the mother travel long distances, or not returning the child at the agreed time. 

“Violent men also continue to exert control over ex-partners and their children through the family court, enabled by Children and Family Court Advisory and Support Service (CAFCASS), social workers and judges who routinely dismiss rape and domestic violence as either false or irrelevant to a child’s welfare. This is confirmed by official figures: 70 to 90 per cent of cases in the family court involve domestic violence or abuse, yet only one per cent of contact applications from fathers are refused altogether. 

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Tens of thousands of ‘abuse victims at risk over NI number’

“Mothers who report rape or domestic violence are not only disbelieved and their children forced into contact with fathers they may be terrified of, they risk losing the children they are trying to protect. For spelling out the dangers the children face, mothers are accused of ‘parental alienation’ or of causing ‘emotional harm’ by ‘poisoning’ the children against the father.”

Sandra Horley CBE, of national domestic abuse charity Refuge, argued the way family courts deal with child contact cases involving domestic abuse places women and children at risk and called for “urgent reform” to ensure their protection is prioritised.

Refuge, the largest provider of specialist domestic violence services in the UK, is calling for a reversal of the legal presumption child contact in cases of domestic abuse is always in the best interests of a child.

She added: “All too often, violent partners are using child access meetings to continue their abuse. We see cases where violent partners fail to collect or drop off children at the agreed time, causing some women to fear the perpetrator has kidnapped their children, and disrupting women’s lives – causing them to miss work or cancel plans. Shockingly, we are also aware of instances where women have suffered physical and sexual assault from their abuser when children are being picked up or dropped off.”

A Ministry of Justice spokesperson said: “No child or parent should ever be in danger because of a partner’s access to their child, which is why we are reviewing the family court system to make sure they’re protected.

“We have also introduced legislation to ban abusers from cross-examining their victims in the family courts and throughout our review we have engaged survivors across the country to ensure we are doing everything we can to safeguard them further.” 

Children and Family Court Advisory and Support Service did not want to comment when approached.

*The names of the women in this article have been changed to protect their identity

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