Women and Justice: Jurisdiction

Domestic Case Law

R v. Tyrrell [1894] 1 Q.B. 710 Crown Case Reserved (1984)

Trafficking in persons

The defendant was tried and convicted at the Central Criminal Court on an indictment charging her, in the first count, with having unlawfully aided and abetted, counselled, and procured the commission by one Thomas Ford of the misdemeanour of having unlawful carnal knowledge of her whilst she was between the ages of thirteen and sixteen, against the form of the statute, and, in the second count, with having falsely, wickedly, and unlawfully solicited and incited Thomas Ford to commit the same offence. In this case it was held that one cannot be found guilty of aiding and abetting a law that is solely in place to protect them. A girl between the ages of 13 and 16 aided and abetted a man over 16 to have intercourse with her, however she was found not guilty of aiding and abetting by law because this law was in place to protect her and her peers.

Macarthys Ltd v. Smith [1980] 3 W.L.R. 929 Court of Appeal [United Kingdom and Northern Ireland] (1980)

Gender discrimination

Mr. M., the manager of the stockroom in one of the warehouses of the employers left his employment. After four months of the post remaining vacant the employee, Mrs. Smith, was appointed as the manageress of the stockroom. Her duties differed slightly from Mr. M's duties. She was paid about £10 less than he was. She argued that this breached the UK’s Equal Pay Act 1970. The Court of Appeal held that that Act does not allow comparisons with former colleagues; however, the ECJ held that EU law allows such comparison, reversing that Court of Appeal’s judgment. The ECJ decided that article 119 of the Treaty was directly applicable in the national courts of each country. It was submitted that under article 119 of the Treaty there was no requirement that the man and the woman should be employed contemporaneously at the same time and that, under that article, the woman was entitled to equal pay even though the man had left before she joined and the woman had taken his job afterwards.

Wijesundera v. Heathrow 3PL Logistics Ltd [2014] I.C.R. 523 Employment Appeal Tribunal (2014)

Gender discrimination

The claimant, a Sri Lankan national, was working in England with a valid work permit when she was made redundant. The claimant claimed that she had been subjected to sex discrimination and harassment on numerous occasions. She also claimed that her dismissal was a further act of sex discrimination. In this case it was held that a worker knowingly employed under an illegal employment contract could bring a sex discrimination claim as the claim was not so inextricably bound up with her employment as to be defeated by a defence of illegality.

Assange v Swedish Prosecution Authority [2011] EWHC 2849 High Court of Justice (2011)

Sexual violence and rape

Mr. Assange visited Sweden to give a lecture. He had sexual relations with two women there. In the home of the injured party, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's sexual integrity. Mr. Assange was accused of rape. Allegedly, the women agreed to sex on the condition Mr. Assange wear a condom. He did not do so throughout intercourse. Although the English courts had previously ruled that one cannot give conditional consent, in order to be able to allow extradition to Sweden, the Supreme Court ruled that his actions would constitute a crime under English law – thus allowing conditional consent to become valid in English law.

R(F) v. DPP [2014] Q.B. 581 Queen's Bench (2014)

Sexual violence and rape

The claimant, who did not wish to become pregnant, consented to her husband, whom she had married in an Islamic ceremony, having sexual intercourse with her on the basis that he would withdraw his penis before ejaculating. He decided that he would not withdraw, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. She became pregnant as a result. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape. In this case, following the conditional consent established in Assange, he was found guilty of rape.

R v. Bree [2008] Q.B. 131 Court of Appeal of the United Kingdom and Northern Ireland (2008)

Sexual violence and rape

The complainant had been severely intoxicated while the defendant had sex with her. It was found that in order for sex to be consensual the victim must have the capacity (the ability) to say no. If one is so inebriated as to be incapable of refusing intercourse, such intercourse is rape. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.

R v. Jheeta [2008] 1 W.L.R. 2582 Court of Appeal of the United Kingdom and Northern Ireland (2008)

Sexual violence and rape

The defendant and the complainant had been involved in a sexual relationship for some time when the complainant started to receive threatening text messages and telephone calls. The complainant, who was unaware that the defendant was sending the messages, confided in the defendant and allowed him to contact the police on her behalf. He did not do so but over a long period sent her text messages purporting to be from a succession of police officers dealing with the bogus investigation, and he obtained £700 from the complainant for security protection which he pretended to arrange. Eventually the complainant wanted to break off the relationship with the defendant, but on approximately 50 occasions over a four-year period the defendant, posing as a police officer, sent text messages telling the complainant that she should have sexual intercourse with him, and that she would be liable to a fine if she did not. The complainant complied, although she would not have done but for those messages. Subsequently, the complainant approached the police, following which the defendant was arrested. During a police interview the defendant admitted that he had been responsible for the fictitious scheme and that on numerous occasions the complainant had not truly consented to intercourse. Since the complainant had been persuaded by deceptions, the court held the defendant guilty of rape.

R v. Dica [2004] Q.B. 1257 Court of Appeal of the United Kingdom and Northern Ireland (2004)

Sexual harassment

The defendant, knowing he was HIV positive, had unprotected sexual intercourse with two women who were unaware of his disease. The women were both subsequently diagnosed as HIV positive. He was found guilty of inflicting grievous bodily harm. As a general rule, unless the activity is lawful, the consent of the victim to the deliberate infliction of serious bodily injury on him or her does not provide the perpetrator with any defence. The effect of this judgment is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.

Stack v. Dowden [2007] UKHL 17 House of Lords (2007)

Property and inheritance rights

The parties began a relationship and the defendant bought a house in her sole name in which the parties lived together as man and wife and had four children. The defendant, who throughout their time together earned more money than the claimant, and sometimes almost twice as much, made all the payments due under the mortgage and paid the household bills. The parties then separated and the claimant left the property while the defendant remained there with the children. The claimant successfully applied to the judge for, inter alia, an order for sale of the property and an equal division of the proceeds. In this case it was held that where a domestic property is conveyed into the joint names of cohabitants without any declaration of trust there is an assumption that interest is equal. To prove interest is not equal, it must be proved that the parties held a common intention that their beneficial interests be different from their legal interests; to discern the parties' common intention the court should look at the parties' whole course of conduct in relation to the property, including more stereotypically feminine input such as redecoration, contributions to household expenses, etc and not just the initial contributions to purchase price, thus allowing some women more opportunity to claim an interest in their family home.

Hayward v. Cammell Laird Shipbuilders Ltd [1988] A.C. 894 17 House of Lords (1988)

Gender discrimination

The applicant, a woman, was employed at a shipyard canteen as a cook and was classified as unskilled for the purposes of pay. She claimed that she was doing work of equal value to male comparators who were shipyard workers paid at the higher rate for skilled tradesmen in the yard. The industrial tribunal, at a further hearing, rejected the applicant's contention that, in considering whether her contract of employment should be modified, it was sufficient to compare her basic pay and overtime rates with that of the male comparators and held that without a comparison of all terms and conditions of employment she was not entitled to a declaration that she should receive a higher rate of pay. The Employment Appeal Tribunal dismissed the applicant's appeal and, on her appeal, the Court of Appeal upheld that decision. The Court of Appeal dismissed the applicant's appeal. When deciding whether a woman’s contract is equal to a man’s it is sufficient for certain terms to be less advantageous for the woman for the contract to be unfair. It is not necessary for the overall woman’s contract to be less advantageous than the overall man’s contract.

Reed & Bull Information Systems v. Stedman (1999, IRLR 299 EAT) Employment Appeal Tribunal (1999)

Employment discrimination

S was employed by Bull as a temporary secretary and was subsequently given a permanent placement responsible to the Marketing Manager, R. S resigned on the ground that she found working with him intolerable as R allegedly sexually harassed her. S never confronted S nor made any identifiable protests about his behavior with the exception of complaint she made about him telling dirty jokes to colleagues in her presence. But she had made complaints to her mother and colleagues at work. Although the tribunal decided that no single incident was serious enough to be capable of constituting sexual harassment, they did find that there had been a series of sexual inferences with a pervading sexual innuendo and sexist stance and that R realized that they were unwanted and were bullying in nature. With regard to the liability of Bull, the tribunal found that colleagues in the personnel department were well aware of the applicant's deteriorating health and that she had made complaints to other members of staff which had been dismissed. In those circumstances there should have been an investigation into the cause of the illness and the complaints that had been made. By failing to implement this, Bull committed a repudiatory breach of contract as they failed to deal with the issue of sexual harassment adequately. The tribunal concluded that the applicant was entitled to compensation for unfair dismissal by reason of sexual discrimination. The Employment Appeal Tribunal dismissed the appeal and added that whilst not “gross: the behavior of R towards S was most inappropriate in the workplace. The EAT placed the burden on the victim to place the harasser on notice that she does not welcome his conduct and endorsed the reasonable person perspective in assessing a victim’s rejection. The question at issue should be was the victim subjected to a detriment on the grounds of her sex. A one-off ace may suffice. The Court also directed tribunals to pay attention to the impact of totality of successive incidents, individually trivial.

Vent-Axia v. Wright (1999, EAT) Employment Appeal Tribunal (1999)

Sexual harassment

A department head accused of harassing four women was not permitted to learn the names of his accusers due to confidentiality issues. The EAT re-affirmed that the primary test when ordering disclosure of documents is whether disclosure is necessary for fairly disposing of the proceedings, not whether the document is confidential in nature. The Court ruled the alleged harasser must demonstrate that this information is necessary in the context of his specific case.

Bebb v. Law Society Court of Appeals of the United Kingdom and Northern Ireland (1914)

Employment discrimination, Gender discrimination

Gwyneth Bebb, upon being denied admission to the Law Society to take the preliminary examination to become a solicitor, took the matter to court. In Bebb v. Law Society, the Court of Appeal stated that the question of whether the gender-neutral language of the statutes meant that women could gain admission to the bar was settled through “long usage” in the common law and found that women were not included under “persons” in the Solicitor’s Act of 1843. Additionally, women were considered to have an additional disability at common law, namely that after marriage they are not able to enter into contracts with third parties. As every woman held the potential of being married, this disability was also applied to unmarried women.

Yemshaw v. Hounslow LBC United Kingdom Supreme Court (2011)

Domestic and intimate partner violence

The appellant (Y) appealed against a decision that the respondent local authority had been entitled to find that she was not homeless. Y had applied to the local authority for housing assistance, claiming that although her husband had not physically assaulted her or threatened to assault her she was scared that he would, and had left him. Under the Housing Act 1996 s.177(1) a local authority was obliged to rehouse a person where it was not reasonable for that person to continue to occupy accommodation if it would lead to domestic violence. The local authority decided that it was still reasonable for Y to occupy the matrimonial home. A review of that decision was unsuccessful as the panel considered the probability of domestic violence to be low. Upon appeal, the county court and the Court of Appeal concluded that the term "violence" in s.177(1) required some sort of physical contact. The issue in the instant appeal was whether the word "violence" in s.177(1) included other forms of violent conduct.

A-G Ref (No. 44 of 2010) United Kingdom Court of Appeal (2010)

Trafficking in persons

Two offenders were convicted at first instance of (i) trafficking AH, a 19 year old girl, from Romania to the UK for sexual exploitation (s 57(1) of the Sexual Offences Act 2003) and (ii) controlling the prostitution of AH for gain (s. 53(1) of the Sexual Offences Act 2003). The first offender received a sentence of 30 months imprisonment for the first offence and 24 months’ imprisonment for the second offence. The second offender was sentenced to 24 months imprisonment for the first offence and 18 months imprisonment for the second offence. The Attorney General appealed to the Court of Appeal to review the sentences on the grounds that the judge at first instance had not taken account of aggravating factors and the impact of the offences on AH. The Court of Appeal agreed that the sentences did not reflect the totality of the offences, which involved bringing AH into the UK by deception and then coercing her to work as a prostitute and corrupting her in the process. Therefore, the Court of Appeal imposed a harsher sentence of 4 years’ imprisonment on the first offender and 3 years’ imprisonment on the second offender for the first offence. The sentences in relation to the second offence were not changed.

R. v. R. House of Lords (1992)

Sexual violence and rape

The defendant appeals his conviction for attempted rape on the grounds that a husband cannot rape his wife. The House of Lords overturned the old common law rule that marriage automatically gave consent for sexual intercourse and held that a husband could be convicted of rape or attempted rape of his wife where she withdrew her consent to intercourse.

Regina v. Olugboja Court of Appeal (Criminal Division) (1982)

Sexual violence and rape

The defendant was convicted of rape and appealed on the grounds that there could only be an absence of consent if the victim's mind had been overborne by fear of death or duress. The victim only began to struggle in earnest after penetration had occurred. The Court held that it is not necessary for the prosecution to prove that what appeared to be consent was actually submission induced by fear, force or fraud, but only that the jury should be instructed to focus on the victim's state of mind immediately before the act of sexual intercourse, in light of all the circumstances. The conviction was affirmed.

M.Z. (Rape, Stigma, UNHCR Advice) Kosovo UK Asylum and Immigration Tribunal (2002)

Sexual violence and rape

The applicant arrived in the UK in January 2000, claiming asylum on arrival, and appealed a decision to have her removed to Kosovo following the refusal of her claim to asylum after she was raped by a Serbian soldier. The Tribunal acknowledged that adequate facilities for rape victims exist in Kosovo but in light of the stigma attached to rape victims and the applicant's very real fear that her husband would leave her on finding out about the rape, granted her request for asylum.

P. and M. v. Secretary of State for the Home Department Court of Appeal of United Kingdom and Northern Ireland (2004)

Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Harmful traditional practices

The first appellant, P, was seeking asylum from being returned to Kenya on the grounds of a fear of persecution because of the violence that both she and her children had suffered from her husband in Kenya, especially as domestic violence tends to be accepted in Kenya and the police had not effectively protected her against her husband. The second appellant, M, seeks asylum on the grounds of fearing that she would be subjected to female genital mutilation at the hands of her father, who is a member of the Mungiki sect that practices FGM, and who had already previously performed FGM on her mother, causing her mother's death. The Court allowed both appeals for asylum, but did stipulate that not all cases of either domestic violence or FGM would automatically give rise to a claim to protection and asylum.

R. v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) House of Lords (1999)

Domestic and intimate partner violence

The two conjoined appeals both involve married Pakistani women who were forced by their husbands to leave their homes and seek asylum in the UK as refugees on the grounds that they fear being falsely accused of adultery and thus in danger of flogging or being stoned to death on being returned to Pakistan. The Lords granted the appeals, giving the appellants refugee status, on the ground that the appellants are part of the particular group as women in Pakistan who fear being accused of adultery.

R. v. Ireland; R. v. Burstow House of Lords (1998)

Sexual harassment

In the Ireland case, the appellant was convicted of three counts of assault occasioning actual bodily harm for harassing three women by making repeated silent telephone calls to them. In the Burstow case, the appellant was convicted of unlawfully and maliciously inflicting grievous bodily harm for harassing a women after she broke off their relationship, in behavior ranging from silent telephone calls, offensive notes, taking photographs of her and her family, and being frequently at her house and place of work. The House of Lords held that silent telephone calls can amount to an assault as long as the victim is made by them to fear some physical harm.

R. v. K House of Lords (2001)

Sexual violence and rape, Statutory rape or defilement

The appellant, K, was convicted of a single count of indecent assault against a girl aged 14; his defense was that the intercourse between the two was consensual and that she had told him she was 16. The House of Lords allowed the appeal on the grounds that the appellant's honest belief that the complainant was over the age of 16 was a defense to the charge of indecent assault.

R. v. Malone Court of Appeal (Criminal Division) (1998)

Sexual violence and rape

The appellant appealed his conviction on the count of rape for allegedly having sexual intercourse with the complainant without her consent when she was too drunk to put up any physical resistance. The Court upheld the conviction and the sentence on the grounds that the complainant's evidence was sufficient for a jury to find that the appellant was reckless as to the question of the complainant's consent, even if he did not know at the time that she was not consenting.

B. v. Director of Public Prosecutions House of Lords (2000)

Sexual violence and rape, Statutory rape or defilement

The appellant, a 15 year old, was charged with inciting a girl under 14 years old to commit an act of gross indecency for asking a 13 year old girl to perform oral sex with him several times; the girl repeatedly refused. The defense argued that the appellant honestly believed the girl was over 14 years old. The prosecution submitted the offense was one of strict liability. The Lords held that a reasonable belief, even if mistaken, as to the victim's age was a defense to the charge

Burris v. Azadani Court of Appeal (Civil Division) (1995)

Sexual harassment

Mr. Azadani, the appellant, was under an injunction not to go within 250 yards of a specified address, after he had repeatedly sought a close and intimate relationship with Ms. Burris, which she refused, leading to repeated telephone calls and threats. Ms. Burris sought and obtained an interlocutory injunction prohibiting Mr. Azadani from pestering or contacting Ms. Burris, her children or her friends, or of going within 250 yards of her house. He breached the injunction and was committed to prison; he appeals the injunction. The Court held that an order prohibiting the defendant from being in a defined area in which the plaintiff's home was situated was possible in support of an injunction forbidding tortious harassment.

Chalmers v. Johns Court of Appeal (Civil Division) (1999)

Domestic and intimate partner violence

Mr. Johns, the appellant, and Ms. Chalmers, the respondent, began their relationship in 1972; it has become increasingly troubled, in part from the respondent's alcoholism, leading to Mr. Johns being charged with assault, of which he was later acquitted. Ms. Chalmers obtained an occupation order requiring Mr. Johns to vacate their family home, which he appeals. The Court held that the circumstances of this case were a mild form of domestic violence and an occupation order was an unjustifiably drastic measure to take and that occupation orders are only justified in exceptional circumstances.

Fornah (FC) v. Secretary of State for the Home Department House of Lords (2006)

Female genital mutilation or female genital cutting, Harmful traditional practices

The appellant arrived in the UK in March 2003, aged 15, and claimed asylum on the basis that she would be at risk of subjection to female genital mutilation if she was returned to Sierra Leone. The House of Lords held that women in societies who practiced female genital mutilation were 'members of a particular social group' for the purposes of the Refugee Convention and affirmed that FGM was considered a form of torture.

International Case Law

Driskell v. Peninsula Business Services & Others Employment Appeal Tribunal (2000)

Employment discrimination

D described, amongst others, how her manager suggested the day before her appraisal interview that, at that discussion, she should wear a short skirt and a low-cut or see-through blouse – the inference being that doing so would further her chances of a favorable appraisal. The EAT held that the “lewd words” acted as a detriment. The Court concluded that the correct approach when dealing with a course of conduct of harassment should be to limit judgment to the finding of all facts that are prima facie relevant. The judgment said that the facts of a case in which harassment is alleged “may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow”. The Court confirmed that the ultimate judgment of whether there was sexual discrimination reflects an objective assessment by the tribunal of all the facts, however important the applicant’s subjective perception.

Bracebridge Engineering Ltd. v. Darby Employment Appeal Tribunal (1990)

Sexual harassment

Sexual harassment. Two of Mrs. Darby’s male supervisors, Mr. Daly and Mr. Smith, grabbed and sexually assaulted Mrs. Darby in the works manager’s office at Bracebridge. Mr. Smith threatened Mrs. Darby with a written warning when she attempted to get away from him, but she was eventually able to run away from the men. Mrs. Darby reported the incident, but the general manager did not take action against the men and Mrs. Darby subsequently resigned. An Industrial Tribunal upheld Mrs. Darby’s complaints of sex discrimination and unfair dismissal, awarding £3,900 to Mrs. Darby. Bracebridge appealed to the Employment Appeal Tribunal, and the Employment Appeal Tribunal dismissed Bracebridge’s appeal. The EAT found no error in the Industrial Tribunal’s finding of sex discrimination by Bracebridge, noting that the single incident of sexual harassment was sufficiently detrimental to Mrs. Darby and therefore no pattern of harassment was necessary to reach this finding. The EAT also noted that the incident took place in the workplace and was perpetrated by Mrs. Darby’s supervisors, further supporting a finding of sex discrimination under s.6(2)(b) of the Sex Discrimination Act. The EAT also found no error in the Industrial Tribunal’s finding of constructive dismissal (unfair dismissal) by Bracebridge, because the company failed to respond appropriately when Mrs. Darby reported the incident and Mrs. Darby left her position at the company as a result of Bracebridge’s failure to act.