Women and Justice: Jurisdiction

Domestic Case Law

Detention Action v. Secretary of State for the Home Department (SSHD) High Court of the United Kingdom and Northern Ireland (2014)

Sexual violence and rape, Trafficking in persons

DFT, or Detained Fast Track, involves the placement of asylum seekers in detention while the outcome of their claim is determined. The claimants identified numerous issues in the DFT system with respect to female asylum-seekers and asserted that “the [DFT] system as operated created an unacceptable risk of unfairness for asylum seekers” and especially for vulnerable populations. These populations include pregnant women and trafficked women, who may find the detention period traumatic and who are likely to present complex cases. The Court held “that the DFT as operated carries with it too high a risk of unfair determinations for those that may be vulnerable applicants,” but emphasized that detention periods in and of themselves are not unlawful.

Hall v. Incorporated Society of Law Agents Court of Sessions (1901)

Employment discrimination, Gender discrimination

Margaret Hall appealed to the Court of Sessions regarding the decision of the Society of Law Agents in Scotland to deny her permission to take the preliminary examination for the Society. Hall argued that she should be given permission because the statute permitted “persons” to become law agents and so, by its terms, did not exclude women. The Society had found that women did not have a legal right to practice law given that “[a]ccording to inveterate usage and custom in Scotland, that practice has in all departments of the law been hitherto confined exclusively to men.” Upon Hall’s appeal, the Court of Sessions also refused to grant her permission because the statute did not explicitly include women, even though it did not explicitly exclude them either. In support of its decision, the court stated that the word “persons” had to be interpreted according to its customary usage; because women had been ineligible to become law agents when the statute was enacted in 1873, the court found the customary usage of “persons” to mean “male persons” and accordingly refused Hall’s appeal.

R v. O United Kingdom Court of Appeal (2008)

Trafficking in persons

O, a Nigerian national and apparently only 17 years old, appealed against a conviction for the offence of possessing a false identity document. One of the submissions on her behalf, supported by a senior outreach worker for The Poppy Project, was that she had been the victim of trafficking for sexual exploitation and used the false identity document in an attempt to escape. The Court of Appeal granted her appeal, stating that it regretted that neither the prosecution nor the defense had considered her age or the possibility that she might have been a victim of sex trafficking at first instance. It was unlawful to impose a prison sentence as such on a person aged 17. Further, the Court of Appeal noted that common law and article 6 of the European Convention on Human Rights alike require far higher standards of procedural protection than were given to O at first instance. The Court of Appeal expressed the hope that the case would drive home the message that proper inquiries need to be made where there is doubt about the age of a Defendant who is a possible victim of trafficking.

Davis v. Johnson United Kingdom House of Lords (1978)

Domestic and intimate partner violence, Sexual violence and rape

The House of Lords ruled that in domestic violence cases, no distinction should be made between married and unmarried couples and that the Domestic Violence and Matrimonial Proceedings Act 1976 s.1 gave jurisdiction to all county courts to grant an injunction and exclude a violent person from the home, whether married or not, irrespective of any property right vested in the person excluded. However, this exclusion should only be temporary until other arrangements have been made. Such an injunction can be permanent, but will in most cases be temporary.

Regina v. Shahnawaz Ali Khan, Raza Ali Khan and Perveen Khan United Kingdom Court of Appeal (2010)

Trafficking in persons

The defendants recruited nine men from the Middle East and the Indian continent between 2004 and 2008 to work in a restaurant owned by one of the defendants. The men were found to have been subjected to economic exploitation, including many or all of the following: having their documents taken away from them by the defendants upon arrival in the UK, being required to work 12 hours or more a day for 6-7 days a week without adequate recompense for overtime and in some cases without receiving even the basic salary, being asked to arrive with bond money (which was not returned) or accept deductions from income, not being provided with national insurance numbers or wage slips, not being registered with the NHS, being discouraged from visiting the town or talking with customers. The Crown Court convicted the defendants of conspiracy to traffic people for exploitation under s. 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and sentenced each to three years’ imprisonment. The Attorney General and the defendants appealed against the sentences.