Annual Lecture to Northern Ireland Medico-Legal Society

Belfast  March 18th 2011
Intriguing Title expressed with the Artful Aid of Apt Alliteration
At the risk of sounding vulgar I think we have one P too many in there.
Think we can put together Perpetrators and Prisoners — though I cant manage a word that does that.
And let’s start there because there are far too many of the latter – women in prison.
I know you have some specific and very contemporary issues in Northern Ireland.
Start In Uk between 1995 and 2005 the proportion of women being sentenced to immediate custody went up by 69% Rates of self harm in particular  there were  6 suicides at Styal  women’s prison in Cheshire
Was a serious concern for a government that was tough on crime and had nothing against imprisonment but since the consequences were so appalling it appeared they were missing a trick about what was causing their crime. It was also the first gov. To have nearly 100 women MPs  and they took interest in womens issues.
Outside gov was Fawcett and inside now well-known Corston Review of women with vulnerabilities in the criminal justice system.

Numbers of women in prison compared to men then and now
Steady at around 85000 and 4-4300
Women have always been a small percentage of a)criminals- 90% male perpetrators and b) prisoners
Corston and Fawcett found similarly that the attitude of the CJS was that they were rare and the system was designed for men. Women were an add on, not recognised as a community within the cjs which had any separate needs or required different provision.
There was no evidence that female offending had got worse – to justify the increase in numbers. So why were the courts not using community punishments? A look at those demonstrated that there was a range of well-thought out provision about anger management, drug rehabilitation, skills monitoring and training availability  but all designed for the majority – men. This doesn’t mean women were not being sent to prison and not sentenced to them. It meant that they didn’t work because they were inappropriate. So women went up the ladder of offending to prison.
Fawcett and especially Corston made 43 recommendations all but one of which UK gov accepted. I was on the COrston response group of Ministers.
Change:
1. gender specific standards for women’s prisons not adapted from those from Dartmoor – everything from clothing to sanitary protection to medical care has a gender based standard;
2. demeaning practice of routine strip searching has gone and   3.There is cross departmental Criminal Justice Women’s Strategy Unit in government which is still working; integration of prison medical service into NHS has brought up standards of medical care especially  for mental health needs.
Overall the big recommendation was that women perpetrators in and out of prison require specific provision for their needs. Different from that for men.It is a statement obvious once it has been made but unrealised it meant that cj system treated everyone as standard ie a man.
Exemplify tha prisons are designed for male needs. They are secure to avoid escape and regimes designed to minimise opportunities for violence and the impact of it
Men who are disturbed fight, women self- harm. And as Jean Corston “ women don’t escape and if they do you will easily find them – they will be with their children”
So a few years on from COrston and that understanding of the needs of women and with the Coalitions rehabilitation revolution and as you in NI look at how to deal with women who are currently imprisoned in Ash House linked to a YOI it is time to redouble the effort to change the way the cj system deals with women, and here is why using figures not form the COrston era but now.
Start where COrston started -47% of self harming in prison was done by women who were only 5% of the prison population. More than one third (37%) of all female prisoners self harmed last year (7% of men)
What offences put them into prison- it being to protect us from dangerous  Theft 34%
63% for non-violent offences.  So short sentences are appropriate.
62% less than 6 months and 72% less than one year
Recidivism – Highest with women who had been sentenced to less than a year
In UK 17700 children have mothers in prison at some time during each year.
And there we look at who these women are

•    mental ill-health (70% have 2 or more mental health disorders) and drug or alcohol abuse (70% needed clinical  de-tox on admission and 35% admitted to hazardous drinking) Higher than men
•    many had had early lives in care;
•    Less likely to have settled accommodation, experience of work or educational qualifications, and more likely to live on a very low income
Overwhelmingly likely to have experienced violence or abuse at the hands of a male partner or family member more than 50% had suffered violence at home – domestic violence about a third had been sexually assaulted.
•    Likely to be a parent, and to have or to have lost primary caring responsibility for their children. Two thirds are mothers of under eighteens.
These are the issues/problems women in prison have.
A point is that most of them have most of them
Women in prison have clusters of problems

There is no one picture but poor education and resources, low skills and low self esteem, broken/inadequate relationships, sexual or physical abuse lead to trauma or isolation, self medication leading to addiction, debt, homelessness, chaotic lives often having children.  Steal/ shoplift/do benefit fraud to keep body and soul together and to feed their kids as well as their habits and they appear in court many times before being sent to prison. Until courts feel have no alternative and also that if they can be taken out of their lifestyle they can be given help – imprison for own good.
Short sentences are all that is appropriate;
give no opportunity for rehabilitation from addiction , no chance to get onto treatment regimes which might help any underlying trauma or maladjustment from abuse, no time to get any needs assessment let alone to be able to take up any of the obvious inputs such chaotic people need – basic budgeting; how to cook to how to care for themselves so that they feel they are worth the bother of making  an effort.
However a short sentence does in 80 – 90% of cases ensure – even at 40 days that they
lose their home – already in debt now gone
95% of children have to leave their home on the conviction of their mother. Lose their children – of course someone has to look after them.
If a woman has a family the women will look after the children and bring them. Many do not have families or have alienated them.
Typical women prisoner;” Its my children they are my biggest concern because I have not spent a day away from them since they were born…..My son’s schoolwork has suffered. I didn’t get the chance to explain to him that i was coming into prison.”
So no help for the multiple problems that she started with; Additionally, no home and either no children or children adversely affected by her absence – with which to start again on a low grade life that gave no hope in the first place. Women should never – says Corston – be imprisoned for their own good.
Imprisoning  such women is damaging and unproductive.
Same arguments about inadequacy apply to a lot of men – complexity and multiplicity of vulnerabilities: women are still primary main primary carers; there is 50% DV and one third Sexual abuse, mainly both together.  Far higher than for men.
And Programmes historically geared to the needs of men offenders because of their greater numbers and the greater frequency and seriousness of their crimes and ironically because do more serious offences and get longer sentences can get onto programmes
Women have distinct and complex vulnerability and underlying needs as offenders.

There are other women in prison. I am not leaving out the dangerous women who must be imprisoned.
Fine defaulters- 20% – same point.  (Average no in NI is one for four days)
Remand- 48% population in Northern Ireland. Perhaps it takes  longer to get to trial with smaller c j system.  18% on remand overall.
60% do not get custodial sentences. There is a proportion that don’t get custody because they have had in effect a sentence on remand but the court is given a fait accomplit and probably can’t justify even an additional positive programme when already been imprisoned.
Green Paper “Breaking the cycle” proposes to remove remand for people not likely to get custodial sentence. We should support that
Remand is the worst. Remanding women breaks up homes and separates children as much as a short sentence but it may also by that sentencing conundrum keeping women out of positive programmes too.

We can’t just  say – these are the sentence of the courts and  so they are untouchable.
We have to offer courts an alternative to custody.
There are some positive programmes now.
One success story is conditional caution.
You are all familiar with caution regime: – avoid prosecution for offence on list if over 18, is evidence to charge and admit it. The backup is to prosecute.
When I was S-G from 2007 we designed a “Women Specific Condition” (WSC) to require a woman offender to attend a Women’s Centre for a needs assessment.
There are Women’s Centres. You have a stronger legacy of WC probably  than in England. In 2005 when Fawcett presented “One Year On” its second report on women and CJ I was PPS to Charles Clarke, Home Secretary, he attended the launch giving us £5.2 M to set up Centres which he couldn’t define to give the inputs women needed.
They are called Together Women. Run by women. Independent of police and authorities and so trusted. Work with low level low risk women offenders and non- offender women with problems of the kind I have mentioned – possible offenders but anyway women needing help.
TWPs in West Yorkshire and Liverpool were involved.
As organisations they networked into public and voluntary input, so the can offer either within their four walls or otherwise – self esteem, budgeting childcare, anger management, cognitive behavioural therapy or other talking therapies to cope with psychological issues or depression, skills training, though often pre-work skills – by way of examples.
I launched TWP and I have been. They are well located for access, friendly sympathetic well organised and professional.
We could only require attending for an assessment as the condition because of a need to keep the condition proportionate  and I wondered if women would return after the assessment if they didn’t have to do. TWP said to me. DOnt worry if we get them to come in and see what we can do, they will come. And they did.
There are now 45 community projects of this kind funded by the Ministry of Justice mainly since 2009. They are there to support women and divert them from crime. These now have the term integrated women offender services are rooted in  local and regional charities. The vast majority are voluntary sector-run but have a strong interface with the criminal justice system. The projects practise all-stages diversion – that is, women at any stage in the criminal justice system can access their services, whether they be at risk of offending; offending as yet unsanctioned; in receipt of a conditional caution or community sentence; on bail awaiting trial or sentence; in prison (through in-reach); or resettling from prison.
Evaluation so far : Evolve at Calderdale Women’s Centre enhanced women’s skills to make decisions and be in control of their lives, and strengthened relationships with their children and families. Reduced the likelihood of women re-offending through providing holistic support. Between July 2007 to July 2008, only 4 women of 87 who accessed the project reoffended. Together Women projects’ self-reported re-offending rates in the first year of operation in the north-west were 7% and in the projects in the Yorkshire and Humberside region were 13%
This compares to a reoffending rate of 33 per cent for women offenders overall in the same period.
The SWAN project in Northumberland has made a 70 percent reduction in the rate of re-offending of the women who have engaged with the project.
•    Alana House in Reading – 3 women of 96 self-reported reoffending during their engagement with the project
And similarly in Stoke, Salford , Plymouth Derby and Leicester

It is important to note that these models only came on stream recently and so evaluation  is somewhat provisional
May I pause and consider the Northern Irish position where the women’s prison Ash House is attached to HydeBank, a YOI. I would respectfully suggest that you do not build a big women’s prison because it will soon get full. These projects are new and little known. Would it not be better to invest in your existing and new womens centres following this model.

Women as Prey
Women as victims and witnesses. The opposite side of women’s involvement in the criminal justice system.  At Fawcett we put out a bid for evidence. And we got back a lot of evidence about rape and domestic violence.
So we put out another bid for evidence NOT about rape and dv since we wanted to look broadly at women in these roles.
But we got back —  none.
Women’s engagement with cjs is dominated by violence against women.
I was Solicitor General in a Labour Government, deeply committed to improving performance on violence against women prosecutions  over a long years. we made progress.
We worked hard to increase reporting and to improve conviction rates; to ensure that victims are supported, that the criminal justice responds well. Turned to prevention. Work needs to continue.
However the situation today is that 3million women across the UK experience rape, domestic violence, forced marriage, trafficking for sexual, servitude and prostitution.
The total annual cost of violence against women is estimated to be £40billion. Costs to the CJS costs to the health service, lost days at work or working at poor capacity because of trauma, damage to business from that debilitated input.
Violence against women is a consequence of gender inequality and also a cause of gender inequality continuing. Work to encourage women into highly paid jobs, to get better careers advice, develop part time work opportunities, pursue equal pay are all at naught for 3 million women who suffer domestic violence and rape by a possessive husband, sexual harassment at work or is rape on a date – futures may be seriously jeopardised by trauma.
Violence against women has a devastating effect on victims.
Rape can deeply traumatise women, prevent women from living where they were if the offence was nearby or at home, stop their studies through shock and trauma, make them unable to work, be thrown into poverty, chaotic lifestyle, be less able to care for their children, find sexual relationships too daunting to attempt or that they fail. It is the most damaging crime short of murder.
Domestic violence can make women terrified in their own homes where they are subjected to the power and control of another. They feel shame that it is their fault, exhausted, isolated;suffer low self esteem by being ground down, doubt that they will be taken seriously if they complain because perpetrators of dv are often quite likeable people outside. Blame her for staying or think that the dv must be exaggerated. The most dangerous time is when someone is planning to leave.
All WA and advisory services have a “leave this website quickly” button so if he comes she can move off.
Womens Aid puts its phone no on till rolls at Tesco, something everybody had since women are beaten if such a phone no is found on them. 40% of women are assaulted or stalked when they leave
One in four women suffers it in her lifetime with one in 6 to 8 in any one year. 2 women a week are killed by dv.in GB every year. Every minute of every day is a call to a police station about domestic violence – even though we believe that less than half of it is reported.
We did much: Made it a crime to breach a DV injunction so that police could take over enforcement to lift the burden from women having to take action themselves.
We trained police. So they no longer fail to interfere in a “domestic”. They must report it back to a specialist officer the following day for follow up. The CPS established  Special Prosecutors. The dynamics of DV need to be understood. For instance women do not make a complaint until the violence has been going on for – we used to say 35 incidents, but now we think it may be nearer 20 because access to help has got better. So Magistrates are also trained to preside over Special Domestic Violence Courts of which are now 104. Each one has an Independent Domestic Violence Adviser who She befriends and helps cope with the house move, end of childcare, benefits changes, job problems or whatever have followed from her reporting it and which were probably holding her back from it and chases the court case.
Court powers are increased by the availability of restraining orders on conviction and also on acquittal if there is a fear that she is in danger or needs protection – this latter has in effect moved the county court injunction power into the criminal court.

GOOD RESULTS; In 2004 37% of victims retracted if they could be persuaded to go to court. Now about 17% retract their cases. The conviction rate from charge then was 25% and now it is 78%.
Rape – less than half of women report DV but only about 10% report rape or sexual assault.
Again we did a lot in government
We removed much of the right to cross examine about previous sexual history, a major deterrent to women and largely irrelevant to the issues in a case. We changed definition of consent to make it simpler and fairer
We trained police and CPS after a dreadful Joint Inspection of by the Police and CPS Inspectorates, in 2002 which was comprehensively critical of the way in which the authorities dealt with rape.

Multitudes of cases were no-crimed where there was a criminal allegation that officers did not think would produce a conviction.
Women were asked about PSH when it was irrelevant
78% of detectives investigating rape allegations did not send any DNA sample obtained from the complainant to the national database if the parties knew each other, presumably because they thought in such a case the accused would not be a criminal;

Here we are dealing with attitudes. A report by Amnesty in 2005 showed that 70% of people asked thought woman who flirted, wore a short skirt, or drank alcohol was responsible if she was raped.   Of course the training was to alter those attitudes in the  professionals.
Having started to get a body of trained professionals we had to get women to them. So we built Sexual Assault Referral Centres, the Rolls Royce model of how to care for rape victims, non-judgmentally, as if a complainant is a patient. She will be examined by a specialist forensic medical examiner. If she wants to complain it will be a specialist police officer who comes. It is an unlike as possible to what used to happen, that she would have to go to a police station, make her complaint through a glass from a, perhaps full, waiting room, get a local detective, with no rape-specific skills or experience and, often being examined by an FME who could have just certified someone dead at a road traffic incident.
We also aimed to ensure that all victims should have access to an Independent Sexual Violence Advisor They are befrienders. Judges have looked at what they can say in directions to bust unfair myths in court trials.
There is a well-known myth that if someone is raped they will complain to the first person they come to or run straight to the police. If a complainant does not do that, the defence will  suggest at trial that she was happy to have sex at the time but something made her change her mind later. That is the defence say that a late complaint is a false complaint. We know that it is common for women who have been raped not to report the matter at once because they are traumatised, full of guilt and shame, questioning their own judgement about being with the man in the first place. Jurors do not know this.
In a case called Doody in the Court of Appeal, when I was Solicitor General it was agreed that a judge should give a direction to the jury that it was the general experience of the courts that women did not complain at once.
The propagating of such a directions is important. If police or  CPS think that a defendant saying that a late complaint is self-evidently untrue will be accepted by a jury, they won’t prosecute but if they know the judge will give a direction that helps redress the balance, they might.
There were nearly 11500 rape convictions in 2004 with a conviction rate form complaint to conviction of 5.3%. Last year there were around 16000 convictions and the rate had climbed a little to 7.2%. So that is approximately 1200 total convictions compared to 590 and they have roughly doubled in 6 years. This is probably a mark of some success in persuading women are being to come forward. However, the drop out rate from report to court is still vast.

We have done all of that but still one in four suffers dv and half don’t report – that is one in eight women. Only 10% report rape and the conviction rate is 7% which means 7% of people raped get justice and there are thousands of women raped every year who do not.

I have rehearsed the traumas it causes and there is a hidden group of women suffering from these impacts.

And those are the consequence of our failure historically to have recognized the prevalence and profound impacts of these appalling offences on women and their families. And to intervene early enough. It is a fact that DV and rape are inter-related and that is one driver to call the whole thing VAW. There is never a case of DV abuse and demeaning without sexually demeaning – as a moments pause would help one to understand. So rape and dv victims are women cjs has failed.
They won’t come to court. We started with that and went forwards trying to get judges then police then SARCS to help them and if there could be no co-operation at all in a case with the CJS, we funded some rape crisis and women’s aid projects who if the post code is right will be available to help with trauma. But there is twice produced report called Map of Gaps which shows that this is patchy and so we must accept that there are a lot of traumatized women who are not being helped at all.

We are now looking at women as victims/ prey are looking at one end of the criminal justice system and how it deals with these blameless women. We have moved away for the perpetrators/defendant.

Let me recap what I said about the impact of rape:
Rape can deeply traumatise women, prevent women from living where they were if the offence was nearby or at home, stop their studies through shock and trauma, make them unable to work, be thrown into poverty, chaotic lifestyle, be less able to care for their children, find sexual relationships too daunting to attempt; have broken relationships. It is the most damaging crime short of murder. Mental health issues and addiction
Domestic violence can make women terrified in their own homes They feel shame that it is their fault, exhausted, isolated; suffer low self esteem by being ground down, doubt that they will be taken seriously if they complain. Can become PTSD and drink or drugs or fall into debt. Too hopeless to manage.
Characteristics of women in prison: let me recap: There is no one picture but poor education and resources, low skills and low self esteem, broken/inadequate relationships, sexual or physical abuse lead to trauma or isolation, self medication leading to addiction, debt, homelessness, chaotic lives leading them to crime.

About a third of women in prison have been raped, probably several times higher than in the general population.

About half have suffered domestic abuse, at least twice as high as in the general population.

And at Fawcett Commission and in Corston Review there emerged a quite surprising realization which is that when we examine the women who are blameless victims of crime in the cjs and those who are wicked defendants – we are looking at the same people.

And the women who go to prison have multiple needs too– no qualifications no work experience, low self esteem few coping skills. And so it is worse than merely rape and abuse victims becoming defendants it is mainly those who already have very complex needs who end up in prison.

Experiences of violence and sexual abuse are key factors in such women\’s pathways to crime; if the issue is not addressed early enough by health and support services, and by the justice system righting the wrong, we do little to support such women and some of them, in their chaos, turn to offending.

We doubly wrong those women we haven’t, historically, supported to make early complaints and then go on to imprison when their trauma drives them into chaotic lifestyles and crime, usually repeat low-level financial offending.

A 2007 study estimated that people with chaotic lifestyles and those with multiple needs together are 0.2 per cent of the population. This would imply that there are around 84,000 women with both chaotic lifestyles and multiple needs.
Many will end up in contact with the criminal justice system.

We need to consider 3 things. If such women do become defendants, prison will not change the but make them worse. We must ensure that there is an ever-present awareness of this in the criminal justice system from now on and women must never again be an add-on to men
We should do all we can to make the public  authorities in touch with people aware that there is a hidden population that is being abused and cant find a way out. There should then develop outreach to help as early as possible before permanent harm is done
We must ensure that Women’s Centres are resourced. They do not  categorise women since they know that a wicked defendant may underneath be a blameless victim and what is need is to tackle their problems.
If the first two parts of my talk could be called, after the Fawcett Commission’s labelling  “Women Need Justice” I would refer to this part as “Justice Needs Women”
So I turn to women working in the criminal justice system.
Women are making inroads at lower levels in cj agencies but the higher positions remain male dominated. These echelons are where the rules of the game – the norms are set which deal with women as victims or as defendants.
Here is a checklist of 3 reasons why Justice needs more women.
•    Women make up half the population and as such should be fairly represented within the high level decision making roles in the justice sector
•     Justice needs to be responsive and accessible to all citizens irrespective of gender. Suspects, defendants, offenders, victims and witnesses jurors all interacting with the cjs are of diverse backgrounds across gender class race religion disability and sexual orientation. It is therefore important that senior staff within the system are equally diverse so that the system is perceived as relevant and responsive.
•    The increased visibility of women in senior roles as role models in this very public arena can help reshape gender role expectations.

I was once in Manchester Crown Court when all the judges assembled in one court to pay tribute to someone who was retiring. Their ushers brought them in and took them out and I must have looked worried at the gender balance because one usher said to me “ Don’t worry you might  live to see the day when all the judges are women and all the ushers are men”  However I would settle for a mixture in both groups.

•    Women’s experience of justice and of everyday life frequently differs from those of men. The participation of women within cj agencies is therefore crucial to ensure that those difference perspectives and approaches can be applied to important issues.

Let me exemplify by reference to a Court of Appeal case
It was I believe the CA level of the case of R v A about previous sexual history in rape cases with the defendant. In that case there was allegedly a history of sexual behaviour and the trial court had left it out. It seems to me that it should have been put in on an agreed basis if the facts were agreed, rather than try the case in a vacuum about their previous history. However the issue in the court of appeal became its relevance to consent and the male judge delivering the judgment said that it was obvious to he and his (male) colleagues that the fact that complainant had had sex with a defendant before made it far likelier that she would have agreed to the sex alleged in the case. Any woman on that Court would have said that having had sex with a man once might make it infinitely less likely that a complainant  would agree to it again. It might have been a poor experience. She may have fallen in love with someone else since. She may have feared that she would fall for him if she did it again and decide not to do. There are many possibilities but it is not obvious that it makes her consent more likely.

If we look at women workers in the criminal justice agencies, in the police , 27% of PCs are women but only 12 % of chief inspector grades and above are women.

Parenthood issues are the main problem for women
There is a need for a clear and well understood flexibility policy.

Spending weeks away on a strategic command course is impossible for a primary carer and better ways of training for promotion need to be found.

Some specialist  squads have outdated requirements  – like  a level of upper body strength – perhaps the shot putting squad.
This is a throw back to days when all Met police had to be 5” 11” tall, presumably because that was generally as big as men were and so they should be able to hand any fight. It  discriminated against most average-sized men, not just women.
According to Fawcett’s last report police shirts are ordered by collar size and stab vest have no shaping for women – very uncomfortable
Women have a job to do in all aspects of policing. For instance are excellent in public order situations. Out in town on a late night there is often somebody who wants to fight the world and would see a male PC as a challenge, they calm down if it is a woman.
In the Legal Profession, a Law Society survey in 2008 found that male solicitors earned on average £19000 a year more than females, representing the problems women have in progressing to senior levels. Although there are 62% approx of women students and of trainees there are only 19.6% of women partners in the top 100 firms.
The long hours culture, inflexible hours and lack of family friendly policies seem to be to blame. and maternity leave or career breaks impact on opportunities for promotion.
In the Government Legal Service where there is greater emphasis on flexibility there is a far higher proportion of women solicitors in senior positions.
In the top 30 sets at the Bar there are 42 female silks and 479 male silks and women silk applicants have fallen to their lowest for ten years, though more are successful.
It is the same story. Women now join the Bar in roughly equal numbers to men but at 15 years call only 19.5% of practitioners are women. On average a male barrister earns almost £100000 more than a woman.
Since judges are drawn predominantly from the last two categories it is not surprising that of the 3820 judges under 20% are women. In the senior judiciary the figure is about 11% and has increased though EHRC estimates that at the current rate of progress parity will take 55 more years.
The Lord Chief Justice in London says that he and the Judicial Appointments Commission wants is the widest possible choice of candidates from which to make selections based purely on merit.”
But Professor Dame Hazel Genn’s recent report into the attractiveness of the senior judiciary as a career said that the chief concern raised by women was that the predominantly male environment of the judiciary might be hostile to them. City commercial lawyers showed reluctance to have to prove themselves again “in a world they perceived to be even more antediluvian than city commercial practice”
The success story is the magistracy where, being voluntary, there is no career progression to be interrupted by family life and the structure is flat. There is good gender balance and the only complaint was that childcare reimbursement should be more highly publicised. This suggests that the aim is younger people rather than any sex bias to overcome
The important point is that if some women are in powerful roles, bullying men as we discussed in the earlier part of my talk will feel less able to victimize women on thebasis that they are all weak.
And if women lawyers get onto the bench there may be a clearer understanding of the need for  support  for victims and for fair treatment for women defendants.

Breaking Up: Breaking Through
Commonwealth Women in Science and the Professions
Panel Contribution by Vera Baird QC, former Solicitor General of England and Wales and Co-Director of Astraea:Gender Justice (Research and Training)
In the UK, Women are making inroads at lower levels in justice agencies but the higher positions remain male dominated. These echelons are where the rules of the game – the norms are set which deal with women as victims or as defendants.
Here is a checklist of 3 reasons why Justice needs more women.
•    Women make up half the population and as such should be fairly represented within the high level decision making roles in the justice sector
•     Justice needs to be responsive and accessible to all citizens irrespective of gender. Suspects, defendants, offenders, victims and witnesses jurors all interacting with the cjs are of diverse backgrounds across gender class race religion disability and sexual orientation. It is therefore important that senior staff, within the system are equally diverse so that the system is perceived as relevant and responsive.
•    The increased visibility of women in senior roles as role models in this very public arena can help reshape gender role expectations.

I was once in Manchester Crown Court when all the judges assembled in one court to pay tribute to someone who was retiring. Their ushers brought them in and took them out and I must have looked worried at the gender balance because one usher said to me “Don’t worry you might live to see the day when all the judges are women and all the ushers are men”. However I would settle for a mixture in both groups.

•    Women’s experience of justice and of everyday life frequently differs from those of men. The participation of women within justice agencies is therefore crucial to ensure that those difference perspectives and approaches can be applied to important issues.

Let me exemplify by reference to a Court of Appeal case
It was I believe the CA level of the case of R v A about previous sexual history in rape cases with the defendant. In that case there was allegedly a history of sexual behaviour and the trial court had left it out. It seems to me that it should have been put in on an agreed basis if the facts were agreed, rather than try the case in a vacuum about their previous history. However the issue in the court of appeal became its relevance to consent and the male judge delivering the judgment said that it was obvious to him and his (male) colleagues that the fact that complainant had had sex with a defendant before made it far likelier that she would have agreed to the sex alleged in the case. Any woman on that Court would have said that having had sex with a man once might make it infinitely less likely that a complainant would agree to it again. It might have been a poor experience. She may have fallen in love with someone else since. She may have feared that she would fall for him if she did it again and decide not to do. There are many possibilities but it is not obvious that it makes her consent more likely.

If we look at women workers in the criminal justice agencies, in the police, 27% of PCs are women but only 12 % of chief inspector grades and above are women.

Parenthood issues are the main problem for women
There is a need for a clear and well understood flexibility policy.

Spending weeks away on a strategic command course is impossible for a primary carer and better ways of training for promotion need to be found.

Some specialist squads have outdated requirements  – like  a level of upper body strength – perhaps the shot putting squad.
This is a throw-back from days when all Met police had to be 5” 11” tall, presumably because that was generally as big as men were and so they should be able to hand any fight. It  discriminated against most average-sized men, not just women.
According to Fawcett’s last report police shirts are ordered by collar size and stab vest have no shaping for women – very uncomfortable
Women have a contribution to make to all aspects of policing. For instance they are excellent in public order situations. Out in town on a late night there is often somebody who wants to fight the world and would see a male PC as a challenge, they calm down if it is a woman.
In the Legal Profession, a Law Society survey in 2008 found that male solicitors earned on average £19000 a year more than females, representing the problems women have in progressing to senior levels. Although there are 62% approx of women students and of trainees there are only 19.6% of women partners in the top 100 firms.
The long hours culture, inflexible hours and lack of family friendly policies seem to be to blame. Maternity leave or career breaks impact on opportunities for promotion.
In the Government Legal Service where there is greater emphasis on flexibility there is a far higher proportion of women solicitors in senior positions.
In the top 30 sets at the Bar there are 42 female silks and 479 male silks and women silk applicants have fallen to their lowest for ten years, though more are successful.
It is the same story. Women now join the Bar in roughly equal numbers to men but at 15 years call only 19.5% of practitioners are women. On average a male barrister earns almost £100000 more than a woman.
Since judges are drawn predominantly from the last two categories it is not surprising that of the 3820 judges under 20% are women. In the senior judiciary the figure is about 11% and has increased though EHRC estimates that at the current rate of progress parity will take 55 more years.
The Lord Chief Justice in London says that he and the Judicial Appointments Commission wants is the widest possible choice of candidates from which to make selections based purely on merit.” Let us see what the profession has to overcome if he is to achieve that laudable aim.
The Legal Services Board (LSB) commissioned a qualitative study of females in the profession (it did so in a project which also dealt with the experience of BME lawyers, but I deal with only the aspects on women)
They interviewed 64 women

Though there were regional, organization and sectoral variations in experience there were clear commonalities. In fact they found that the profession is inherently masculine in character. These are some random points: –

•    The preference of employers for the graduates of “old‟ universities means that sections of society are filtered out of the profession.  In addition, a number of females gave accounts of job interviews in which the interviewer, instead of focusing on their technical ability, had asked inappropriate questions based on assumptions
•     Women faced difficulties flowing from working patterns based on male models of working. Flexible working patterns are either not permitted, or damage future promotion prospects.
•    Similarly, while there was widespread agreement that women were now more likely to be able to work part-time, and also progress to partnership, the resilience of a culture of “presenteeism‟
•    A persistent theme was that it was hard to be recognized  at all, as either a candidate for promotion, or even, on occasions, an authentic member of the profession. Those with power to allocate rewards and status did not need deliberately to discriminate, since the possibility that, for example, women with children or Asian women could achieve significant status on the basis of merit frequently did not appear to occur to them.
•
A major obstacle is the profession’s informal culture and in particular the key significance of personal relationships. This is exemplified by the informal mentoring which was reported as characterizing  most respondents’ workplaces. Powerful senior figures (generally white men) tended to foster the careers of young white men.

•    The importance of networking outside the firm also – predominantly male activities which were also numerically dominated by white men.

They recommended (amongst other proposals)

Disclosing and Monitoring Diversity Data
To place an obligation on frontline regulators to publish aggregated diversity data for each branch of the legal profession. Crown Prosecution Service do that now.
Formal Mentoring, Role Models and Networks
Firms and chambers should adopt formal mentoring schemes in order to counter the informal mechanisms which privilege traditional members with partners and those of influence, at the expense of others.
Flexible Working/Structural Reforms
Improved willingness to experiment with flexible working patterns, to support work-life balance for everyone but so that women with the primary caring role can nonetheless be seen as full members of firms and chambers. Firms appear to have been willing to adopt flexible working strategies when work was scarce during the recession as a way of avoiding redundancies; maintaining these arrangements once the recession is over would be beneficial, including career breaks, sabbaticals, longer periods of unpaid leave over summer months and four day weeks.
Formal Diversity Training as part of all levels of training, but in particular from pre-qualification

It is clear that the figures of women and men entering the profession are comparable and this is clear progress and good evidence of the optimism and high expectations which young women now have.

The problem is in SUSTAINING women in the professions. It is the male culture, obvious to all but specifically highlighted by the LSB that crushes them.

As women they are seen as an oddity, from the outset. An anecdote from my experience is that until very recently the Court of Appeal Criminal Division would send a letter to each barrister when s/he had drafted Grounds of Appeal about what they should do next. It was phrased that “Counsel should ensure that his client….. He should ….. The terminology was always “he” Some people will say that it doesn’t matter but it does. It makes women feel that they are outsiders, with a struggle to enter into from the start to show that they are appropriate people to be in that forum.

Women’s experience worsens with parenthood, if they are to take a primary caring role. There is utter inflexibility about managing this. It is seen as the woman’s problem and though more liberal firms and chambers will make allowances, it is always at the expense of such women being seen as part-time, disengaged, out of the ambitious career profile. In fact society needs children and it needs the work of women for the reasons I set out at the start and so it ought not to be that the individual is seen to be failing to match out-of-date work patterns but that the profession leads the way in promoting the flexibility needed to get the best from and for everybody.

Women need to champion women and should do so from the start. They are at their most high status at the outset, when they are bright, young, almost male-equivalent assets to the business, with influence that they can use to prescribe a better future course for themselves and other women.

This can best be done as part of a women’s campaigning group so that women are not forced to take their identity only from their professional role, where they need to fit into a man’s world, but can also have a specific female reference point from a community of similar campaigning women.

In short the Lord Chief Justice, who is unlikely to be able to set up some women’s campaign groups, will need to support programmes that aid the retention of women in the profession if he is going to succeed in having the level playing field he seeks.

Vera’s briefing on the controversial bail case of Police vs Hookway
Salford case of Hookway and Police (Detention and Bail) Bill 2011
Police and Criminal Evidence Act 1984
1.What happened in Hookway case?
He was arrested on suspicion of murder and detained from 12 40pm on 7th November 2010.
(Note detention after arrest is in S37. If there is evidence sufficient to charge that he must be charged but;
S37(2) PACE If the custody officer determines that he does not have such evidence before him the person arrested shall be released either on bail or without bail unless the custody officer has reasonable grounds for believing that his detention without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him
S37(3) If the custody officer has grounds for so believing he may authorise the person arrested to be kept in police detention.
S.41 of allows detention for max 24hours without being charged to start from “the relevant time” i.e the time of arrival at the police station, in this case 12 40pm 7th Nov 2010
S.42 allows a Superintendent to extend detention beyond 24 hours (for similar reasons to those justifying original detention) “for a period expiring at or before 36 hours after the relevant time.”
This was done
S.43 allows application to the court for a warrant of further detention thereafter (WoFD), which has to be made before the expiry of 36 hours from the relevant time and can extend detention a further 36 hours.
This was done.
The timing was such that Hookway could have been kept until 6.22am on 10th November but he was bailed at 22.19 on 9th, leaving a balance of unexpired detention time of 8 hours and 3 minutes. He was required to return to the police station to answer to his bail and did so on 11th Nov, 18th Nov,8thJan 2011,13th Jan 2011 and 9th February 2011 and finally on 5th April.

On 5th April the custody officer authorised his further detention. The police believed that they could use up to the unexpired detention time (authorised by the warrant under S43 in November 2010) of 8 hours and 3 minutes.
As Mr Justice McCombe said in the judgement:
“This proceeds upon the assumption that upon release following the issue of a warrant, if the period of the extension has not expired, that period remains in suspension until used up by later periods of detention”
Further, the police applied to Salford Magistrates Court for an extension of the WoFD to keep Hookway beyond that 8hrs 3 minutes. S.44 allows such an application for an extension to a WoFD, to take the  total detention up to an absolute and final maximum of 96 hours from “the relevant time”.
This is the application the Magistrate refused saying that he could not extend a warrant which had expired. The November warrant was dated 8.11.10 and said:
“You, the constables of Greater Manchester Police Force are hereby authorised to keep the above named defendant in police detention for 36 hours from the time of the issue of this warrant”
Mr Justice McCombe agreed that the warrant had expired and no extension was possible and also looked at the earlier periods of detention.
He decided that:
•    All the sections which relate to police detention without charge refer to timing the detention from “the relevant time”
•    That means that there is a maximum of 96 hours, supposing all possible extensions are obtained which runs from “the relevant time”
•    “The relevant time” in this case was 12 40pm on 7th November 2010
•    Therefore the assumption set out above was incorrect, despite being used for many years. No unexpired balance of detention could remain once  96 hours had passed after “the relevant time”.

Counsel for the police showed him S 47(6) of PACE which says:
“Where a person who has been granted bail under this part and either has attended at the police station in accordance with the grant of bail or has been arrested under S46A (this is arrest for failing so to attend) any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of the Act”

But McCombe rejected that as an answer saying:
“I am afraid that I am unable to see how that subsection can operate to push back the date laid down expressly as the end date for any period of extension or warrant of further detention that has been set out in S44 (3) It simply provides that if a suspect had been released on bail the time in detention must count in any period which “falls to be calculated under this part of the Act” If a period has expired it no longer falls to be calculated at all.”

Thus he found it determinative that the provisions of PACE all require that detention time is counted from “the relevant time”

Professor Zander THE authority on PACE) thinks he is wrong and so do I. The case is poorly decided because he looked only at the specific provisions and not at their purpose or their history.

The Law
S47(7) of PACE says “Where a person who was released on bail under this part subject to a duty to attend at a police station is re-arrested the provisions of this part of the Act shall apply to him as they apply to a person arrested for the first time but this subsection does not apply to a person who is arrested under S46A (for failing to attend in accordance with the grant of bail) or has attended at a police station in accordance with the grant of bail and who is accordingly by section 34(7) deemed to have been arrested for an offence”

This means where someone is re-arrested because there is new evidence, the PACE detention clock starts again and all the periods of extension etc are available as if he were being “arrested for the first time”. But the second part of 47(6) says that that is not the case for someone either arrested for not failing to attend in accordance with the grant of bail or for someone who actually attends at a police station in accordance with his bail.

So if the PACE “detention clock” does not start again for people in those second two categories what does happen when they attend the police station later?

S 34(7) says “For the purposes of this part of the Act a person who
•    returns to a police station to answer to bail granted under this part
Is to be treated as arrested for an offence and that offence is the offence in connection with which he was granted bail.

So he is treated as arrested for the original offence and s47(6) applies so that
“ any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”

In a simple case if someone is detained 10 hours of the original 24 available, then bailed to return to the police station, when he attends he is treated as arrested for the original offence – s34(7)-  and via s47(6) the 10 hours he has already been detained is deducted from the 24 so that he can only be detained again for 14 more.

The Hookway case was just more complicated because of all the extensions

It is not good if legislation requires you  to look for obscure bits of it to make sense but S 47 was originally a lot clearer. It used to have a subsection (5) which was removed by the 1994 Criminal Justice and Public Order Act when it introduced a power of arrest for failing to surrender to bail. Prior to that S47 (5)and(6) said:

S47(5) where a person arrested for an offence who was released on bail subject to a duty to attend at a police station so attends, he may be detained without charge in connection with that offence if the custody officer at the police station has reasonable grounds for believing ( it lists the ordinary grounds for detention)
S47(6)where a person is detained under subsection (5) above any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”
Now there is no subsection (5) and (6) stands says
S.47(6) Where a person who has been granted bail under this part and either has attended  at the police station in accordance with the grant of bail or has been arrested under S46A ( this is arrest for failing to attend in accordance with the grant of bail) any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls    to be calculated under this Part of the Act”
The earlier version was much clearer and makes explicit that the unexpired balance of detention was intended to be available as an absolute rule, irrespective of whether the attendance at the police station in accordance with bail, occurs on a date after the expiry of the maximum of 96 hours from the “relevant time” at which the person was first detained.
The New Bill

The new Bill further amends S47(6)

S.47(6) Where a person who has been granted bail under this part and either has attended  at the police station in accordance with the grant of bail or has been arrested under S46A ( this is arrest for failing to attend in accordance with the grant of bail)

any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls    to be calculated under this Part of the Act”
By adding “and any time during which he was on bail shall not be so included”
This is to deal with McCombe’s finding that “any period which falls to be calculated under this part of the Act” (from 24 hours in the first instance through extensions to a maximum of 96 hours) has to run from “the relevant time” and expires as soon as that time passes chronologically whether the person is in custody or on bail during that time.
The Bill says in effect you only count the time in custody “from the relevant time” not a continuous period because you exclude the periods when he is on bail.
What was envisaged in 1984 was a continuous period of custody, starting from “the relevant time” and going to a maximum of 96 hours without charge but with the express provision, in the old s47(5) and (6) that if a person were released on bail during any of the authorised periods, the” detention clock” would not re-start from the beginning when he surrendered to bail . He would get a “credit” for the period he had already been in detention.
PACE has been extensively amended over the years, by all Governments and is now, as typified by section 47 less clear as a consequence.
The trend over the years has been to bail people for long periods and it is likely to be a dislike of police abusing their power under PACE  in this way, often putting  people on prohibitive bail terms for months and months that made Mr Justice McCombe sympathetic to an otherwise poor argument. In this case Hookway was on bail for 6 months, reporting to police repeatedly  AND they wanted to detain him afresh for an extra 36 hours on top of the unexpired balance of detention they had, when they ultimately re-detained him The suspect Mr Jefferies in the Joanna Yeates murder was on conditional  bail without for about three months, long after the culprit had admitted killing her.
It is a shame that neither was McCombe asked to suspend the order nor  the Supreme Court asked to expedite the Appeal. SC said yesterday that they were unsure they could suspend the order themselves and were persuaded against it by the imminence of legislation and the delay from MY 19TH. It is notable that Professor Zander wrote an critique of the judgement published in Criminal Law and Justice Weekly  18th June edition, when the Coalition says it only received the judgment that day 18th June.

A Better New Law
A clearer way of clarifying the law which is not well-drafted after all the amendments would be to put S47(5) back in roughly as below and amend S47(6)to match.
However, the politics of it is all for you!

S47(5) where a person arrested for an offence who was released on bail subject to a duty to attend at a police station so attends, or has been arrested under S46A and is brought to a police station(irrespective of when this happens in relation to the “relevant time” from when his original detention started) he may be detained without charge in connection with that offence if the custody officer at the police station has reasonable grounds for believing that his detention without charge is necessary to secure or preserve evidence relating to the offence for which he is under arrest or to obtain such evidence by questioning him
S47(6)where a person is detained under subsection (5) above any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”

Vera appeared on the Today programme on the 18th of June and wrote this follow up to her comments on Ken Clarke\’s proposed 50% sentence discounts.

Ken Clarke’s comments on rape were not “ a factual statement” that some rapes are more serious than others, as he pretended when doorstepped by TV cameras on Friday.  Crimes vary in gravity, of course, but  in his interview with Victoria Derbyshire he contrasted “classic rape” or “proper rape” which he described as a man jumping out of a bush and raping someone,  with “date rape” for purposes of suggesting that a five year sentence was not the standard for the far more serious first kind. This was his blustering response to being confronted with the reality that rapists may serve only 15 months in prison if his plan to halve sentences for guilty pleas is adopted.
It is that contrast which has provoked the wrath and despair of women campaigners who for years have worked to  overcome the prejudice that by consenting to be in a man’s company or having had an earlier relationship with him, women somehow half-imply consent to sex so that any rape that follows is not a “proper rape”.  Since 80% of rapes are committed by people known to the victim, there are a lot of women who have suffered the consequences of this kind of attack and of the “well what do you expect” tendency in public opinion and criminal justice. This kind of prejudice is a big reason why only about one in ten women who are raped complain to the authorities at all. The rest keep well away, expecting to be greeted by a Ken Clarke-like figure who belittles their suffering by believing that they haven’t been properly raped.
Rape is mostly done by former partners or friends. There is abundant psychological research to show that “acquaintance rape” can have worse consequences on the survivor than “out of a bush rape” because it makes the victim call into question her own judgment for being with the man whilst leaving her with the overall trauma any kind of rape invariably leaves.  The Sentencing Guidelines make clear that acquaintance rape is just as serious as stranger rape but Mr Clarke shares the public prejudices to the contrary. For the record, the starting point for a sentence for any kind of rape is precisely 5 years and defendants serve only have of that in custody so that halving five years will produce a period to serve of the 15 months Mr Clarke got himself in trouble trying to deny.  Don’t take it from me – the Council of Circuit Judges was in the Mail last Wednesday morning saying so.
Thus far Mr Clarke doesn’t know that he is out of date in counting stranger rape more serious than other rape and thinks the sentence for rape is more than five years when it isn’t. His stupidity was brought on by  junior minister, Crispin Blunt who specifically asserted that halving sentences was just the job for rape complainants who would not have to testify since their assailants would be induced to stop” messing about” as Mr Clarke put it and plead guilty. I should think Downing Street is furious with Blunt for focussing the measure on the least suitable crime.
A defendant does not plead guilty and take a discounted sentence for any other reason but that he strongly expects to be found guilty and given an undiscounted one. Of rape cases which are reported 7.5% produce a guilty verdict or plea of guilty in the end. Who will plead guilty when he has at that stage, a 92.5% chance of being acquitted? Try thinking sometimes Mr Clarke.

Vera’s article written for Left Foot Forward on the covert policing of Mark Kennedy. Also available on the Left Foot Forward website

Failure to disclose evidence reminiscent of the dark days of miscarriages of justice

Policing climate change protesters by embedding undercover officer Mark Kennedy with them for seven years looks out of all proportion to the risk they present to the public. Crazier still and seemingly far more wicked is the subsequent attempt to convict many of them by suppressing the very intelligence Kennedy’s sleuthing had disclosed.
Twenty six protesters were charged with conspiracy to occupy Ratcliffe on Soar power station though police had a covert tape from Kennedy making clear that the meeting where they were arrested was merely to outline the plan and request volunteers. They knew, therefore, that many of those arrested were not involved but were hearing of the plan for the first time. Nonetheless six of them were prosecuted and the tape that could have acquitted them was kept back. Last January the CPS, having apparently just discovered the truth, dropped the case at the door of the court.
Twenty others arrested at the same meeting had already been convicted, in a trial in which judge, jury and defendants had been kept totally unaware both of Kennedy and the tape. The 20 had agreed to  occupy the plant but justified it as a minor crime to prevent the greater crime of carbon pollution, a defence which the meeting tape might have supported. After the acquittal of the six and when journalists were circling CPS wrote to solicitors for the 20 asking them to appeal

Police now say that far from CPS acting promptly on discovering the truth, they knew about Kennedy and the tape from the start and were advising, impliedly, against police better judgment, that they should not be disclosed. This conflict echoes scenes before a recent Commons Committee when Deputy Police Commissioner John Yates and Keir Starmer, head of the CPS blamed each other for the poor quality of the original phone hacking inquiry.
This dispiriting case thrusts the criminal justice system back into the dark days of the Birmingham 6 and  Guildford 4, when the prosecution hid material, apparently driven by public clamour to convict someone for terrorist killings. Even that wholly unpalatable  justification for injustice is absent here.

The law is clear. The prosecution must disclose all material that may undermine their own case or assist the defence. Any claim to keep any of it secret – and none was made here – has to be decided by a judge.
Danny, one of the “6” told me of the stress and worry he and his family suffered between his charge and his acquittal, afraid that he would be wrongly convicted.

If the public sees this as an attempt to pervert the course of justice, people like Danny will not be the only victims. In the miners’ strike hundreds were charged with picketing offences by police to break the morale of Thatcher’s “Enemy within”. For years thereafter, in counties like Durham, where every family had a mining link, no jury would ever convict a defendant on the word of police, because everyone knew a story of police misconduct.  This case could have a similarly chilling effect.  What better Get out of Jail card could any criminal on trial have than public suspicion that the prosecuting agencies sometimes deceive the courts.

The inquiry which has been announced must be speedy, relentless and above all, independent. If it finds that the powers that be tried to justify the huge cost to the public of Kennedy’s work by stage managing mass convictions, the implications in an atmosphere of huge cuts in police funding will go further again than even the obviously serious consequences of this case.

In Lynne Featherstone’s column of 18th November she described herself as someone who “spends every day fighting for equality”

She wasn’t last Tuesday when Fiona MacTaggart MP asked, in the Commons why her Coalition has scrapped the duty in the Equality Act 2010 for public authorities to assess the impact of their policies on the poor.  This, in sections 1-3, is called “the socio-economic duty”

“This legislation is just words” Ms Featherstone told a startled House of Commons, saying how fully she supported the repeal.

Last year, in the passage of the Equality Act itself, Lynne Featherstone said:

“The Liberal Democrats think the socio-economic duty is a good and important thing “  We fully support its aims (Hansard 11.6.09 Col 131-2)

“It is one of the most important elements of the Bill” (Hansard 11.6.09 Col 132)

And she presented amendments (many accepted) to increase the number of public bodies which would be subject to “one of the most important element of the Bill”. (Hansard 11.6.09 Col 131)
She was right. The socio-economic duty was good.  It would have helped to weaken inequality by protecting the poor from the adverse impact of public policies. But it won’t protect them now, torn from the statute book, by Featherstone and friends, despite her praising it as “a good and important thing” only a year ago. Chancellor Osborne is being sued, by Fawcett, for breach of a similar duty to protect gender. This is for the disproportionate impact on women of his spending cuts. So, the Tories do not want another enforceable duty, especially one on socio-economic equality that they would fail repeatedly. Their welfare and housing benefit cuts, probably tuition fees and, one predicts, many measures yet to come would make them fail it. It is impossible to tell a Court that you have had regard to reducing socio- economic inequality when you are systematically increasing it.
If Ms Featherstone was genuine when she said last year  “Socio-economic disadvantage is the greatest inequality there is and it would have been negligent for the Government to leave (this duty) out (of the Equality Act) (Hansard 11.6.09 Col 129)
How would she then have described a Government Minister who took the duty out? Not, I think, as “someone who spends every day fighting for equality”

Vera’s comment piece for the Solicitors Journal on the Human Right’s Commission. Also available to subscribers on the Solicitors Journal website.

Prepare for Battle
The Coalition Government’s  ” Independent Commission to investigate the case for a British Bill of Rights” is  about politics not law. Backwoods Tories may bay for an end to Foreigners making us give rights to nasty people, but their majority comes from the Liberal party, which has demanded human rights since the days of Jo Grimond. This obliqueness of purpose grows clearer as one recalls that we have a perfectly good British Bill of Rights already.

Many Tories are uninterested in human rights and none of their nominees is an expert.  QCs Martin Howe, Anthony Speaight and Jonathan Fisher are eminent men but in construction, business law and intellectual property. One senior Tory described Mr Howe as anti-Europe; Mr Fisher thinks the ECHR is “fundamentally flawed and lop-sided” and from delivering last year’s Bindman’s Lecture with Tony Speaight I understand his message to be that British commonsense could do a lot better.  They have each written a Tory paper on rights and a very quick, not intentionally disrespectful, tour suggests that each has written essentially the same paper.  The fourth Conservative nominee, Mr Pinto-Duschinsky has more recently again written the intellectual case against the Court but it is really against the  HRA. He sees British law or Parliamentary sovereignty made subservient to an expansionist unaccountable Strasbourg  run by judges, from micro-states  like Andorra or doubtful ones like Albania. At the very least it gives too little regard to the margin of appreciation – the way British society should implement abstract Convention Rights. On the whole he thinks it should be abandoned but that would take us out of the Convention, out of the Council of Europe and probably out of the EU as well.

His sub-text is that the British Judiciary has in turn become too bold and we should pull back from Strasbourg , curb its bad influence and block them from intruding further into Parliamentary territory on economic and social issues. It is probably a unique reason for wanting a Bill of Rights that it should take power away from the courts and give it to Parliament – a.k.a the majority government.

The Lib-Dem nominees- Labour peer Helena Kennedy, Philippe Sands and Anthony Lester are undoubted experts in the rights area – Professor Sands is an international lawyer but one with a well-known and strong human rights bias. And all, so far as I am aware, if they felt the need of another  Bill at all, would want it for the opposite reason, to empower the citizen and further protect him from the over-weaning state.
So these eminent people are not going to agree.  On the face of it the Commission Tories are hand-picked to be right of the mainstream and perhaps that shows there is no strong  political pressure for  change.  Perhaps they are there to assuage the remnants of the Nasty Party and to keep public opinion at bay on prisoners votes and sex offender rights. However nothing can be ceded. Implementation would be second term task, and any second term would be likely to lack the leavening influence of the Liberals.

If I were the Tory Commissioners I would have a concerted attempt to drive the liberals backwards or split them to achieve a majority for regressing rights. If I were the liberals I would find it easy to stand intellectually firm but would go for a boost to our meagre array of semi-entrenched rights. After that they’ll all be friends and their huge intellectual power could tackle the 120000 case backlog at Strasbourg and narrow the courts admission criteria. There is a big case for this practical reform. There is a big case too for keeping Strasbourg, the international guarantee for our sometimes unpopular human rights.