Participation in criminality and the Covert Human Intelligence Source (Criminal Conduct) Act 2021
By Simon McKay | Barrister
The Covert Human Intelligence Source (or CHIS), previously known, amongst other things, as an informer, briefly became the least likely subject of conversation in millions of households throughout the United Kingdom recently following the latest series of Line of Duty where the sudden and violent demise of a CHIS formed a key part of the increasingly implausible plot. There was even a voice over at the end of the first episode, explaining the acronym, although for the reasons that follow, it is hardly a self-explanatory term. Behind the drama, a much more serious issue surrounding the CHIS played out in parliament in the form of the enactment of the Covert Human Intelligence Source (Criminal Conduct) Act 2021 (the 2021 Act).
The practice of “informing” might be the world’s second oldest profession. Sun-tzu referred to spies in the Art of War (so the 6th century BC). There are a number of different terms, excluding the vernacular, for the individual performing this role. The correct statutory term is now Covert Human Intelligence Source or “CHIS” or abbreviated to “Source”. The CHIS was created by the Regulation of Investigatory Powers Act 2000 (RIPA) and was described as “inelegant” by the former Chief Surveillance Commissioner Sir Andrew Leggatt and is both unattractive as a term and a concept. It is not difficult to see why the name has not readily caught on. By far the most significant difficulty it has caused is that it subsumes within its definition both informants, what Lord Coke described as “viperous vermin”, and undercover officers and agents of the state.
This confluence of legal concepts is not illuminated by the statutory definition of a CHIS. This is found in section 26(8) of RIPA and defines a person as a covert human intelligence source if “he establishes or maintains a personal or other relationship with a person for the covert [i.e. secret] purpose of facilitating the doing of anything” falling within two types of secret conduct. First, “he uses such a relationship to obtain information or to provide access to any information to another person (i.e. the police or intelligence services); or, second, discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship”. The definition is complicated yet further by an earlier provision which states references to the conduct of a CHIS includes any incidental conduct arising from the main purposes or anything amounting to inducing, asking or assisting a person to engage in the conduct of a CHIS, or to obtain information by means of the conduct of the CHIS.
The use and conduct of CHIS has given rise to a vast spectrum of legal challenges engaging privacy and fair trial rights and moral and ethical crises: undercover police officers have conceived children whilst in “legend”, have adopted the identities of dead children, and in Australia a Royal Commission was launched after it emerged police were using a defence barrister to inform on the activities of her clients. The issue has recently arisen in the context of using juveniles as CHIS. The headlines in the Guardian following the publication of a Select Committee’s report in 2018 on the subject read, “UK intelligence and police using child spies in covert operations”. Entrapment and the role of the agent provocateur have always been legally problematic as where it arises in the course of proceedings it will generally result in an application for a terminating ruling. The related issue of a CHIS’s participation in crime has, until recently, occupied the grey area of law, policy and constitutionality. A recent challenge in the Investigatory Powers Tribunal (the UK’s surveillance court), in Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others  UKIPTrib_17_186_CH, upheld by the Court of Appeal earlier this year has led to an unprecedented change in the legal landscape that has largely gone unnoticed.
Participation in criminality before the Act
The regulatory framework in section 26 of RIPA previously provided no express provision to permit a CHIS participating in criminality. Section 27 makes lawful ‘for all purposes’ conduct if an authorization under Part II of RIPA confers an entitlement on the part of a source to engage in such conduct providing he or she does not exceed the terms of any such authority. As Starmer et al made clear (Criminal Justice, Police Powers and Human Rights, 2001) this provision ‘is intended to provide a lawful basis for activity previously lacking in statutory regulation, rather than to confer immunity from otherwise illegal criminal activity by making such activity lawful’. In Re McE  UKHL 15, Lord Hope held that ‘the whole point of the system of authorisation that [RIPA] lays down is to interfere with fundamental rights and to render this invasion of a person’s private life lawful’.
A former iteration of the Code of Practice on Covert Human Intelligence Sources stated that a use and conduct authorization may ‘in a very limited range of circumstances’ render unlawful conduct that would otherwise be criminal lawful [Para 2.10]. It now states circumspectly, ‘neither Part II of the 2000 Act nor this code of practice is intended to affect the existing practices and procedures surrounding criminal participation of CHIS’ [Para 1.9].
The common law position
The common law has for some time recognized the need for police officers, investigators or others acting on their behalf to engage in criminal behaviour. In R v Birtles  1 WLR 1074, for example, Parker LCJ noted that although ‘it may be perfectly proper for the police to encourage the informer to take part in the offence, or indeed for the police officer himself to do so, the police must never use an informer to encourage another to commit an offence he would not otherwise commit’.
Admitting the evidence of a participating source is likely to give rise to similar considerations to those that arise in cases where entrapment is alleged. The leading authority remains R v Pipe (1966) 51 Cr App R 17. However, the admissibility of accomplice evidence may give rise to Article 6 arguments where there has been a failure to treat the evidence with caution and is subject to suitable warnings by the trial judge to the jury.
It was argued in the Privacy International case, amongst other things, that the current regime breached the European Convention on Human Rights on the basis that the use of participating sources is not ‘in accordance with law’ and it was always likely that at some stage the courts will have to grapple with arguments of both immunity and incompatibility on legality grounds. However, whilst the immunity issue is potentially problematic by virtue of the construction of RIPA, the question of participation has historically not one of privacy but of public policy. In summary, the conduct of a CHIS (whether participating in criminality or not) is the subject of what is, at least absent authority to the contrary, a human rights-compliant regime. The question of participation will need to be considered both evidentially (ie whether the individual will testify against those he or she was deployed against) and from a prosecutorial perspective (ie whether to charge or not).
The opening sentence of this 3/2 majority judgment gives an indication of its importance: the case ‘raises one of the most profound issues which can face a democratic society governed by the rule of law’. It related to a challenge brought by a group of civil liberty organisations to a policy of the intelligence services only publicly avowed as recently as 1 March 2018. The policy concerned what was known as the ‘Third Direction’. The reference to the term ‘Direction’ is an allusion to the power (now) contained in section 227 of the Investigatory Powers Act 2016 providing for the Prime Minister to give ‘directions’. The Third Direction was issued on 22 August 2017 and is more correctly described as the Investigatory Powers Commissioner (Additional Directed Oversight Functions) (Security Service’s Agent Participation in Criminality) Direction 2017. It provides in paragraph 3 that the Investigatory Powers Commissioner ‘shall keep under review the application of Security Service Guidelines on the use of agents who participate in criminality and the authorisations issued in accordance with them’.
There were a number of grounds advanced challenging the lawfulness of the Policy. In summary these were: (i) it lacked any lawful basis in statutory or common law; (ii) it amounted to a de facto power to dispense with the criminal law; (iii) its secret nature was unlawful and it was not in accordance with law for the purposes of the European Convention on Human Rights (the Convention); and (iv) it was in other significant respects in violation of the rights set out in Articles 2, 3 and 5 of the Convention.
The Guidelines remain secret. However, extracts were published in the course of the judgment or a gist provided. They were provided for agent-running sections of the Security Service on the use of agents who participate in criminality. It recognised that Part II of RIPA applies to the Security Service’s use of agents and that it ‘conducts its agent operations in accordance with RIPA, its subordinate legislation and the CHIS Code of Practice issued under it’. In addition, the Guidelines stated: (a) RIPA does not provide any immunity from prosecution for agents or others who participate in crime, although section 27 RIPA provides that conduct specifically authorised under a Part II authorisation is ‘lawful for all purposes’; (b) subject to this, neither RIPA nor the Codes of Practice provides for the authorisation of participation in criminality; and (c) participation in criminality was likely to necessary and proportionate in some cases, in particular those involving sophisticated terrorists and others who pose a threat to national security or involve the commission of serious offences. Such conduct was essential to maintain access to life-saving intelligence or to disrupt more serious criminality or to ensure the agent’s safety, security and ability to pass on intelligence to the Security Service.
The Guidelines, provided for ‘authorisation of use of participating agents’. This was an internal, parallel authorisation regime that the Service established to operate alongside the statutory scheme in RIPA. This provided that those officers empowered to authorise under RIPA could also concurrently authorise participation in criminality. This was subject to three criteria: (i) there is a reasonable prospect that the agent will be able to provide information concerning serious crime; (ii) the information cannot readily be obtained from any other means; and (iii) the need for the information that may be obtained by the use of the agent justifies this use notwithstanding the criminal activity likely to be engaged in. A balancing exercise must then be carried out where the authorising officer weighs ‘the potential harm to the public interest from the criminal activity’ engaged in by the agent versus ‘the benefit to the public interest from the information’ it is anticipated the agent will provide. Unless, having carried out this exercise, the authorising officer is satisfied that the public interest is served by authorising the participation, no authorisation should be granted.
The Guidelines go on to make clear that the authorisation has no legal effect and does not confer immunity from prosecution. The purpose of authorisation was to provide an explanation and justification for the Service’s decision-making should this be required at a later date (for example to law enforcement or prosecutorial bodies).
Procedural requirements included the completion of an authorisation form and specifically, ‘that full and accurate records are made of everything said to an agent on the subject of participation and of his response’. There was also a requirement to explain no immunity was being given from prosecution and that individual officers ‘may be called to account for their decisions and actions’. There was a prohibition on encouraging, counselling or procuring the commission by an agent of a criminal offence, other than the offence to which the authorisation related.
It emerged during the proceedings that the guidelines had been in place ‘since the early 1990s’. Home Secretaries had been briefed on their existence during their tenure but it was not until 2011 that the Security Service first apprised the Intelligence Services Commissioner of them and 2012 before the Prime Minister invited the Commissioner to keep them under review, though he emphasised ‘such oversight would not provide endorsement on the legality of the policy’. In 2014, this, (and other) extra-statutory functions, were placed on a statutory footing within section 59A RIPA (since replaced by section 230 Investigatory Powers Act 2016). As a consequence of the first notification to the Commissioner and at his direction, the Security Service wrote to the Crown Prosecution Service in 2012 providing them with the guidelines as ‘cases may arise in which our two Services need to discuss participation by a Security Service agent’. The existence of the guidelines remained secret until a Prime Ministerial statement on 1 March 2018.
The judgment held that the policy was lawful for a number of reasons but principally as it was underpinned by an implied power in the Security Service Act 1989 (the legislation placing MI5 on a statutory footing). The Court of Appeal later agreed. However, it identified lacunae in the existing law, in particular as far as non-intelligence agency public authorities were concerned. It was considered that participation in crime by CHIS required a statutory footing. The 2021 Act does this but goes much further. On issue two, the argument that authorisation amounted to dispensation from the effect of the criminal law the IPT noted that there was in fact no immunity provided. Arguably this is no longer the case since a participation in criminal conduct authority under section 26, confers under section 27(1), ‘an entitlement to engage in that conduct on the person whose conduct it is’ and provided the conduct is in accordance with the authorisation, it ‘shall be lawful for all purposes’. Although there is no express immunity from criminal law the new provisions amount to this in practical terms.
The 2021 Act
The ‘profound issue’ for democratic society has been resolved by the 2021 Act, a short amending piece of legislation consisting of fewer than ten provisions. Criminal conduct (of any kind, from the minor to the most serious) can now be authorized, under section 26 of RIPA, in certain circumstances. The conduct is that engaged in ‘in the course of, or otherwise in connection with’ the conduct of a CHIS, and so broader than merely the ‘use and conduct’ itself. Section 29 of RIPA now makes it clear that what would be a standard ‘use and conduct’ authorization does not authorize criminal conduct.
Under the amended section 29, authorization to engage in criminal conduct can only subsist concurrently with a standard use and conduct authority. Participation in crime can only be authorized on the grounds of national security, preventing or detecting crime of disorder or in the interests of the economic well-being of the United Kingdom. Authorisation must be necessary and proportionate and only where the operational objective cannot be achieved without the commission of the criminal conduct that is the subject of the authorization.
There are special provisions in the amended section 29 in respect of juveniles. There must be a risk assessment that concludes there is no ‘foreseeable psychological or physical harm’. This is a subjective test of reasonableness by the authorizing officer. An extra layer of ‘protection’ exists for sources under sixteen (so the new regime contemplates authorizing a child under this age to engage in criminal conduct). Similar provision exists for ‘vulnerable adults’.
There is no ‘double lock’ (to adopt the language used in respect of the IPA) for the new regime although there is a requirement in an amended section 32 of RIPA to ‘notify’ the Investigatory Powers Commissioner’s Office (IPCO) of the grant or cancellation of an authority. IPCO’s oversight powers are expanded to accommodate superintendence of both the authorizations and the exercise of the powers in general: section 229 of the IPA is amended by the 2021 Act.
In many respects the 2021 Act asks more questions that it answers. No doubt some clarification will be provided in the obligatory regulations that follow and an amended Code of Practice in due course. However, there are a number of pressing issues arising out of the new provisions.
First, the absence of judicial approval is both anomalous and inconsistent with the safeguards in the IPA. Judicial approval is required where a CHIS is likely to acquire material subject to legal professional privilege, and is difficult not to equate the authorising participation in crime, with all its constitutional importance, as at least demanding a similar layer of protection. Judicial approval is now required for use of the majority of communications surveillance resources available to the State under the IPA.
Second, there is no limit to the nature of the criminality that can be engaged in. Although in the course of argument in the IPT, the Government made it clear it would never sanction murder under the existing arrangements, there is no prohibition to this in the provisions set out in the 2021 Act. Of course it is unlikely that to do so could ever meet the threshold of necessity and proportionality but this will be the ultimate judgment call of the authorising officer, with retrospective oversight carried out by IPCO. The change of position therefore is tectonic: from no legal basis for law enforcement to authorise participation in criminality to being able to authorise in principle any kind of participation.
There is a third and related point and that is the relatively low threshold forming the basis of authorisation. This is the prevention and detection of crime (not, as appears in other provisions of RIPA and the IPA, serious crime).
The fourth issue is the position in relation to juveniles and vulnerable adults. The Select Committee report on the use of children as CHIS sets out legitimate concerns about oversight and the frequency of risk assessments. Their anxieties are unlikely to be assuaged by the new provisions sanctioning a minor’s involvement in criminality.
Anecdotally there is some evidence that IPCO is now requiring any police force to authorise participation in criminality where the CHIS is engaging in criminality outside use and conduct (i.e. they are criminals, who inform about the activities of other criminals but do not participate in crime as part of their function as a CHIS). This blurs the lines of participation – a matter that will inevitably be exploited by the CHIS – and is unlikely to assist either public authorities, lawyers or the courts in delineating where general criminality or state-based authorisation for participation in criminal conduct begins and ends.
The 2021 Act does more than codify the ‘existing practices’ referred to in the Code of Practice and presents an epoch-changing moment for UK law, which has generated little controversy. The practicality and utility of CHIS participating in criminal conduct is self-evident but this does not justify legislative complacency but rather, should demand exacting standards both in terms of how proposed legislation is introduced, debated and voted on but also in terms of the forensic rigour of what is enacted. This issue, foreshadowed by serious judicial pronouncements about democracy, the constitution and the rule of law, demanded more of parliamentarians. The role of juveniles, absence of judicial approval and a lack of specificity raise serious concerns and trivialise the judicial context. As with much of our recent legislation a raft of regulation will follow and a revised Code. But it is unlikely these will go much further in addressing the concerns. This new law authorising statutorily participation in criminal conduct by a CHIS has arrived not with a bang but a whimper.
Protecting domestic abuse survivors who offend
By Paramjit Ahluwalia
Originally published 5 June 2020 in The Law Society Gazette, Commentary and Opinion
In recent years there has been increased awareness of the reality of domestic abuse and how it impacts and pushes victims/survivors to extremities. This is particularly post Sally Challen’s appeal, the criminal offence of coercive and controlling behaviour in 2015 and amendments to the Equal Treatment Bench Book.
It is hoped the landmark Domestic Abuse Bill goes even further - especially as its aims include making the justice system more effective in protecting victims/survivors.
The harsh reality is that a number of those who suffer domestic abuse are trapped in a dual role in the criminal justice system, that of both victim and suspect. Conceptually it may be something we choose to ignore, but to do so is to fail in protecting this vulnerable group who are trapped in a ‘vicious cycle of victimisation and criminal activity’. Statistics highlight that nearly 60% of women in custody have been victims of domestic abuse.
Many lawyers working in police stations and courts recognise that vicious cycle. The types of offending driven by domestic abuse vary - from shoplifting to supplement an inadequate allowance from an abusive partner; being coerced into benefit fraud; holding a weapon or drugs for an abuser; or engaging in violent resistance.
The need for statutory protection for a ‘suspect’ who may also be a ‘victim’ is neither an alien nor an impractical concept. Section 45 of the Modern Slavery Act 2015 offers protection for victims of modern slavery, in a measured and specific fashion. It protects individuals who have been compelled to commit a criminal offence as a result of their exploitation, but is limited through excluding offences (Schedule 4).
Yet no parallel legal framework exists to protect victims of domestic abuse who commit offences as a result of their abuse. Oddly, if victims of domestic abuse can show they have been moved internally in the UK or into the UK by an abuser, then they might receive protection, but only by deeming them as victims of trafficking.
The legal concept of duress is outdated. Take the example of a woman forced by her partner to drive a car whilst disqualified. Whilst driving, she is being punched by her partner who is in the passenger seat, making threats to kill her if she stops. The police stop this vehicle and the driver is prosecuted. Despite running duress, and despite her being viewed as credible, she is convicted (R v YS  EWHC 2839).
Duress is ill-fitting in the prism of domestic abuse. It requires the threat of death or serious injury to be imminent. It doesn’t recognise psychological, sexual or financial abuse. There is no specific category for victims of ‘domestic abuse’. Instead ‘relevant characteristics’ have merely pathologized women, using outdated concepts of ‘battered woman syndrome’ and ‘learned helplessness.’ Duress fails to understand the basis for extinguishing culpability is the domestic abuse itself, rather than the mental health vulnerabilities caused as a result of abuse.
Self-defence also fails to understand and appreciate the context of violent resistance by a survivor of domestic abuse against their abuser. A jury may well conclude that a response was disproportionate without taking account of the long history of abuse. Self-defence doesn’t make allowance for the fact that domestic abuse is ‘entrenched, unpredictable and random’ (Janet Loveless).
I have been working with the Prison Reform Trust and other experts to develop proposals to amend the Domestic Abuse Bill by introducing two new provisions to protect victims/survivors whose offending is attributable to their experience of domestic abuse.
The first is a statutory defence modelled on Section 45 of the Modern Slavery Act 2015, which would provide equivalent protection to victims of domestic abuse who are compelled to offend. The second is an amendment to the law on self-defence, modelled on the provisions for householders in Section 76 of the Criminal Justice and Immigration Act 2008. This would allow survivors acting in self-defence against their abuser the same protection as householders defending themselves against an intruder.
These provisions should be accompanied by a policy framework, drawing on existing policies in place to support Section 45. It should include support for survivors and special measures to protect vulnerable defendants. Statutory guidance, training for criminal justice agencies and judicial directions would also be required. This would encourage earlier disclosure of abuse and access to support and help break the cycle of victimisation and offending.
At present the government is not persuaded that our proposals are ‘practical and proportionate’. It regards them as unnecessary in light of existing defences, yet has provided no evidence in support of why. Instead the government intends to ‘monitor the use of the existing defences and keep under review the need for any statutory changes’.
There is already ample evidence of the inadequacy of existing defences. These proposals are closely modelled on provisions already in use in courts, offering effective protection for other vulnerable groups.
If such protection is afforded and recognised as necessary to householders and victims of trafficking, then why not to victims of domestic abuse?
If the government fails to take up this opportunity to establish effective criminal defences for victims of domestic abuse who offend, it must provide detailed reasons and a clear alternative course of action to redress current injustices.
“Abolition” of the “Rough Sex” Defence: Hurried Legislation and Missed Opportunities
Dr Jonathan Rogers (CLRNN Co-Director)
Quick summary – I share some of the concerns of We Can’t Consent to This, but I do not think that clause 65 of the Domestic Abuse Bill will meet their objectives. I propose two other reforms instead.
Introduction to clause 65 of the Domestic Abuse Bill
On the website of the campaign group We Can’t Consent To This is an account of 59 women killed in sex games gone wrong, where the killer claimed that the deceased had been an enthusiastic participant. There are seven male victims too; all died by the acts of another man. In the UK, every known killer during sex games is a man. Many of them were likely murderers who invented any notion of a consensual sexual encounter, let alone of a sex game that went wrong.
The group also says that it knows of 115 living victims who have had to deny in court that they consented to acts including
'waterboarding, wounding, electrocution, strangulation and asphyxiation, slapping, beating, punching and kicking, and, in one case, a shotgun fired intimately at a woman'
all of whom but one was a woman.
This is grisly but valuable research, and we should all be pleased that it has come to public attention.
The main concern for the group is the extent to which the matter of consent is raised in murder trials, the so-called ‘rough sex defence’. But what does this mean? “Rough sex” has never been a defence to murder. A jury might well hear evidence of consent in such cases, but it does not mean that consent is an answer to the charge in itself. It is not. The legal issue is instead whether the defendant had intended to kill or cause serious harm. But hearing evidence of consent might help to persuade a jury to accept a defendant’s denial that he had such intent, in which case he can only be convicted of manslaughter.
So instead, legal attention has shifted to whether consent might be a defence “in itself” to lesser charges, say of causing serious bodily harm, if done for sexual pleasure. Criminal lawyers will know that the House of Lords decided in R v Brown that a person cannot give legally effective consent to injury inflicted to satisfy sado-masochistic desires. But this was a narrow decision and the cause of some dissatisfaction. We Can’t Consent To This suggest that Brown is not faithfully applied in all Crown Courts.
When Ms Harriet Harman MP presented a range of reforms to be put to the vote during the passing of the Domestic Abuse Bill, the government moved quickly to find a reasonable compromise that would avoid any difficult votes. The upshot is that the ruling in R v Brown is now likely to be confirmed in statute. The Bill has completed its stages in the House of Commons, and so unless the House of Lords brings its own independent scrutiny to this clause, it is likely to pass.
The relevant part is clause 65 of the Domestic Abuse Bill. This is the text:
65 Consent to serious harm for sexual gratification not a defence
(1) This section applies for the purposes of determining whether a person (“D”) who inflicts serious harm on another person (“V”) is guilty of a relevant offence.
(2) It is not a defence that V consented to the infliction of the serious harm for the purposes of obtaining sexual gratification (but see subsection (4)).
(3) In this section—“relevant offence” means an offence under section 18, 20 or 47 of the Offences Against the Person Act 1861 (“the 1861 Act”);“serious harm” means—
(a) grievous bodily harm, within the meaning of section 18 of the1861 Act,
(b) wounding, within the meaning of that section, or
(c) actual bodily harm, within the meaning of section 47 of the 1861Act.
(4) Subsection (2) does not apply in the case of an offence under section 20 or 47 of the 1861 Act where—
(a) the serious harm consists of, or is a result of, the infection of V with a sexually transmitted infection in the course of sexual activity, and
(b) V consented to the sexual activity in the knowledge or belief that D had the sexually transmitted infection.
(5) For the purposes of this section it does not matter whether the harm was inflicted for the purposes of obtaining sexual gratification for D, V or some other person.
(6) Nothing in this section affects any enactment or rule of law relating to other circumstances in which a person’s consent to the infliction of serious harm may, or may not, be a defence to a relevant offence.
Although it is possible to make various comments on the clarity of the drafting, it seems safe to assume that the courts will decide that it is meant to ensure the consistent application of Brown and to do nothing else. Indeed, in the words of Home Office Minister Victoria Atkins
We've been clear that there is no such defence to serious harm which results from rough sex. But there is a perception that such a defence exists and that it is being used by men, and it is mostly men in these types of cases, to "avoid convictions for serious offences or to receive a reduction in any sentence where they are convicted."
Now, does it matter that the government did not consult at all widely about clause 65 but rather hurried to implement it? My answer is yes, and not only because the true aims of We Can’t Consent To This will not be realised, but also because valuable chances to make real improvements have been squandered. Let us get there with a Questions and Answers session:
Question 1: Will the clause mean that defendants will no longer be heard to say that the complainant consented to serious harm?
This is the main aim of the group, not only in law but also, preferably, even in testimony at trial. Families of the deceased are naturally repulsed at hearing how their daughter or sister died without also hearing spurious testimony by the defendant to how she welcomed the activities in question. No doubt, at first sight, clause 65 might satisfy both aims. But it does not. The clause will not have the desired effect at all.
Recall that a defendant charged with murder will seek to deny intention to kill. In doing so, he will give his own account of what he was doing at the time – that cannot be prevented – and he will likely testify to a consensual sex game because, if that is credited at all, it may be easier then to believe that the death was a tragic accident rather than a murder.
Now, here is the point – exactly the same can happen if the defendant is charged with causing serious bodily harm (if charged under s.18 Offences Against the Person Act 1861); or, if charged under s.20 Offences Against the Person Act 1861, if he seeks to deny that he foresaw any risk of injury. Again, his state of mind will be the focus of attention in legal terms. But he will claim that it is relevant to this to testify that he was playing a consensual sex game and thus had no intention or foresight to cause serious injury in the process; that the victim had encouraged him to do what he did, also not perceiving any risk of injury, and so on.
This is an important point to grasp. Clause 65 may confirm the current law that consent is no “defence” to such offences, but a denial of the offence – a claim that ‘I didn’t foresee causing such harm’ – still allows the same evidence to be heard, as relevant to his state of mind. Nothing in Clause 65 effects this, nor even purports to do so.
There is another problem! A defendant who must have intended to cause serious injury may prefer to plead guilty, say, to inflicting grievous bodily harm under s.18 Offence Against the Person Act 1861. But it will still be open to him to insist at the sentencing stage that the complainant had in fact consented, and so, whilst still guilty in law, he should not be sentenced as though he was a pure aggressor. The trial judge may then need to hear evidence, including from the complainant, to reach a decision on this highly material fact. Again, the assertion will be made, and the truth of it determined, in public.
Question 2: Still, if the principle in Brown is good, why not at least consolidate its message in statute?
A fair question. It is always possible to argue that even if clause 65 makes little difference in practice, its endorsement in statute still carries intrinsic weight. It is a decision of Parliament, which takes into account the worrying gendered evidence which divides perpetrators and sufferers. It implicitly recognises that even women who do give agreement may be doing so because they felt pressure to satisfy male sexual demand and that this caused them to accept risks which they would much rather not have been asked to take.
But when legislation is passed, the picture nonetheless changes. Those who are adversely affected no longer have an opportunity to disagree; any hope that the Brown decision might be reversed, or refined for example regarding the scope of injuries covered by Brown, by a future Supreme Court, which hope previously they had, has now quite receded. So, to the extent that they have legitimate grounds for objection, they should be invited to express them, and Parliament should consider them before making its final decision.
Who might have legitimate grounds for objection? Certainly, not violent men who enjoy degrading women. But women who genuinely are curious to experience BDSM are affected. In law, people who encourage such games could be regarded as accomplices to those injuries caused to them, and the legislation makes no exception for women (as it would need to do).
Moreover, clause 65 applies as much to women who beat men, and to sex workers. Some might be surprised that the female dominatrix who offers to whip or tread on male clients is equally affected. There is reason to believe that those who work as such do not feel in the slightest exploited, and in some cases they may feel empowered. The argument for criminalising their trade too has never been made out, but clause 65 confirms it in any event.
So, the case for confirming Brown was not all one way. If it had been understood that clause 65 does not prevent baseless assertions of women consenting to their own beatings, and is more likely to have an effect on the lives of others, such as the dominatrix, whom we might have little interest in punishing, it may well not have passed. But no proper consultation was attempted and no one in government appears to have sought plausible dissenting voices.
And the government did fully appreciate that not all of Ms Harman’s views can be described as mainstream. It seemingly did what it did to avoid a more divisive vote. Many of Ms Harman’s other original proposals were, in turn, quietly shelved. We turn to one such proposal now, which regrettably looks like a missed opportunity on all sides.
Question 3: Was anything else proposed that should have found its way into clause 65?
Yes, if only there had been interest in adapting it. Ms Harman had proposed the following:
"Prohibition of reference to sexual history of the deceased in domestic homicide trials
If at a trial a person is charged with an offence of homicide in which domestic abuse was involved, then—
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the deceased.”
Member’s explanatory statement: This new clause will prevent the victim’s previous sexual history being used as evidence to prove consent to violence in a domestic homicide case. This draws on the legislative measures in the Youth Justice and Criminal Evidence Act 1999 to prevent rape defendants raking up or inventing complainants’ previous sexual history.
At this point, we need to make a small digression and explain what is meant by the “legislative measures in the Youth Justice and Criminal Evidence Act 1999”, as referred to in the explanatory statement.
For many years, men who were charged with rape and who claimed that the complainant consented, would try to use as much material as they could about the complainant’s sexual behaviour and habits on other occasions, suggesting that they were relevant because a jury which heard that other evidence might be more inclined to believe his present account. Let us call this “other sexual behaviour” for now. This used to be quite freely admitted and was quite unnecessarily humiliating for many complainants.
So, in common with many jurisdictions, it was thought necessary to create “rape shield” legislation: ours is to be found in section 41 Youth Justice and Criminal Evidence Act 1999. It does not forbid the defendant from giving his version of what happened at the time of the event in question – that much must be allowed – but it does prevent him from giving evidence, or asking questions in court, about other sexual behaviour of the complainant, unless certain exceptions arise and where the judge accepts that he might not have a fair trial otherwise.
There are those who criticise judges in rape trials for allowing evidence of consensual encounters between the same parties. But the House of Lords has ruled that s.41 must be interpreted to allow this in cases where to do so is necessary to give defendants a fair trial. Most legal practitioners regard trial judges to have exercised their judgment sensibly under s.41 when such similar arguments are raised in rape trials. The Ministry of Justice started to consider reform to s.41 some time ago but clearly the prevailing consensus from practice has caused it to shelve any reforms.
But s.41 only applies where a person “is charged with sexual offence”, and the definition of “sexual offence” in section 62 of the Act quite clearly excludes charges under s.47, 20, and s.18 Offences Against the Person Act 1861. So, to exclude similar evidence from these trials as well, we would need to amend either s.41 or s.62 of the Youth Justice and Criminal Evidence Act 1999 so that it applies also to injuries alleged to have been caused for the purpose of sexual gratification of any person.
This is very much within the skill of a Parliamentary draftsman. The necessary amendment to either s.41 or s.62 Youth Justice and Criminal Evidence Act 1999 could easily have been included with clause 65 of the Domestic Abuse Bill. Its effect would have been that the defendant would not be able to refer to unsubstantiated claims of the complainant willingly undertaking BDSM activity with other people, or to make claims relating to purchases of sex toys, or visited websites, unless they were thought to be of critical importance to the defendant having a fair trial.
But in Ms Harman’s proposal (above), we see something quite different. There were no exceptions and no allowances for trial judges to allow evidence to be given in order to receive a fair trial.
Suppose that the defendant had, say, authentic video recorded activity of him and his partner gladly indulging in BDSM activity over several years, and wished to use them in order to insist that he was careful to minimise risks of injury and had drawn on the benefit of earlier experiences with the complainant. This would seem to be necessary if he were to get a fair trial on his assertion that he neither intended nor foresaw injury. But under Ms Harman's proposal, he could not give it, not even if the complainant were denying all such previous activity. To say that such a proposal “draws on” s.41 is hardly right - at least, not as s.41 is read today, after the House of Lords decision in 2001.
In the recent past Ms Harman proposed that the ban on other sexual behaviour in s.41 should be absolute and so in proposing the original clause 65, she stuck to her convictions. But insisting on this extreme view of what s.41 ought to say, and trying to smuggle it into clause 65, has proved to be damaging. At the end, we have no legislation on the matter at all. Admittedly I think that the government too should have tried to compromise. It could simply have extended the current (non-absolute) protection offered in s.41 to charges of violence too. Probably the explanation why they did not do so lies within the hurried nature of agreeing the clause and, again, the failure to consult more widely.
Question 4: Might any other ideas have merited consideration?
I believe that the following idea might have appealed to all sides. It is this:
“Where a person (A) has died from injuries inflicted by another person (B) for the sake of sexual gratification by that other person (B), there shall be a presumption of fact that that person (A) had not consented to receiving those injuries, unless the contrary is proven”
Such a presumption would not be redundant by virtue of the rule in Brown that consent is not a defence in itself to receiving the injuries. Recall that defendants may still assert instead that they had not intended or foreseen the injuries; or they may assert the fact of the victim’s agreement as a powerful argument in mitigation in sentencing. In both these situations, there is still some use for the above presumption of non-consent.
So, where a man, charged with murder, argues that he had not actually intended to cause death or serious bodily harm, and refers to the victim’s consent to what he did, the jury will still focus on what his true state of mind was – but, the judge will add, they should not be quick to accept what they had heard about the victim’s consent and should only take account of it if they think it more likely than not to be true.
So, the direction may not be decisive. But it will highlight the general unlikelihood of that particular part of the man’s account. At the moment, even a suggestion of likely falsity would probably be regarded as improperly usurping the role of the jury. Further, if the man, convicted of manslaughter, sought to persuade the judge that it had only been a consensual sex game, the family of the deceased relatives might be assured to know that the judge will be required to consider the evidence from a starting point that the claim is untrue.
This is not a dramatic proposal, for three reasons.
For a start, it applies a presumption of non-consent only to fatal injuries. This assumes that – generally – most BDSM activities which did cause death were likely to have carried a high risk of death in their matter of operation, and so were unlikely to have been agreed to. I admit that I lack empirical evidence as to this, but if such evidence is altogether absent, then law makers might rely on common intuitions. Other presumptions of fact (e.g. that a person who vanished seven years ago is dead) rely on little more than that and have stood the test of time.
Second, it does not put the defendant in an unfair position. Since the presumption would be rebuttable, he may still seek to persuade the jury or judge that this was one of the unusual cases where the deceased victim had in fact agreed to the activity.
This need not be impossible for him. Forensic evidence might offer assistance, if his account is true. He might have offered a consistent account to the police soon after the incident. He might be able to call previous partners to BDSM activity to attest to his care to ensure consent. At the end we only demand that his account of non-consent should persuade the jury on the balance of probabilities. It is supposed to be suitably demanding, but not wholly unrealistic for he who tells the truth
Third, I believe that this presumption would be compatible with a defendant’s right to a fair trial under Article 6 (2) European Convention on Human Rights. The presumption of innocence here is not absolute. It matters that the prosecution first has to prove that the defendant did cause the death, and the act in question was done for the purpose of his sexual gratification. They would also still need to prove that he intended to cause death; and it is up to the defendant whether he adopts the tactic of asserting consent as part of his account which seeks to deny this. It matters that the presumption, as a starting point, surely accords with the likely first reaction of many people, and that the defendant, if telling the truth, still has a fair chance to rebut it.
It would be a legitimate legal mechanism of one of the basic messages of We Can’t Consent to this: that, in homicide trials at least, claims of consent to fatal injury by deceased women are likely to be untrue. Nothing in clause 65 is presently concerned with this message.
Clause 65 makes no difference to trials of men accused of beating or torturing women for sexual gratification. Even though not a “defence” as such, the purported consent of the complainant will still be asserted at trial as relevant to other issues. We should instead seek to address the problem both by (1) denying the defendant the facility to make unsupported assertions of the sexual behaviour of the complainant on “other” occasions, and by (2) requiring judges to direct juries that there is a presumption that injuries which caused death were not consented to. To my mind these reforms would at least go some way to meeting the concerns of We Can’t Consent To This. And they would work.
We regret that clause 65 should turn out to be so inconsequential, and that celebrations among campaigners are likely to be short lived. Part of the problem was that it was hurried though the House of Commons at the last minute, and then there is always the possibility of minimal reform being agreed and dressed up as something grander. That, one suspects, is why more effort was not made to find a compromise reform concerning evidence of the complainant’s “other” sexual behaviour.
But there is always time to consult. Even a hurried consultation would surely have drawn some response from groups who seek to practice safe BDSM. Lawyers may well have made some of the points offered above, and maybe the proposals made here would have been added to clause 65 – it is hard to see who could object to them. Indeed, one of the main aims of this network is to respond to requests for assistance where we feel we have the necessary knowledge.
Just recently, on another matter altogether, the Justice Select Committee sought evidence on the conduct of private prosecutions, and received volumes of evidence from interested parties within just two to three weeks. Time is rarely so pressing that consultation is never worthwhile. Let us hope that we can reduce the number of missed opportunities in the future.
From little acorns … criminal law making in Wales
Dr Jonathan Rogers (CLRNN Co-Director)
If you are an English criminal lawyer, you have likely missed the opportunities created by the Wales Act 2017 for the Welsh assembly to legislate on substantive criminal matters within the Welsh jurisdiction. I know of some Welsh criminal lawyers who missed it too. “From little acorns, etc” one later commented.
The end of chastisement?
The competence of the Welsh Assembly is limited, as we shall see, but the First Minsiter’s first topic for reform in the area of criminal law is an eye catching one. It is no less than the outright abolition of the defence of parental chastisement, which will live on as a defence in England (by some kind of automatism, I almost wrote “in England and Wales” just there) to charges of assault and battery (or assault by beating as it seems often to be called). If it happens, then naturally the pressure to remove the defence altogether in England will increase too (and should Labour come to power soon, one could easily imagine a Corbyn-led party taking action where Tony Blair’s party shrank from the task in the 2001-2004 years).
“From little acorns”, quite possibly, then. The proposal did follow a commendable process in public engagement. The Welsh Minister for Children and Social Care, Huw Irranca-Davies, released a consultation paper on 9 January 2018, which included details of plans of how better to educate parents in dealing with their children.
To judge by the written responses, the Welsh public were not much convinced (they had been more convinced of the merits of Brexit), agreeing with the proposal by only 50.3% against 48.1% disagreeing; although fieldwork surveys which included small workshops of participants seemed to have some impact (57% agreeing, against just 25% in opposition).
On 6th August 2018 the First Minister confirmed the intention to bring a bill in the 2018-2019 session to remove the defence. But, reasonably informed opposition to reform (noting that even now, the defence does not automatically succeed to charges of assault and battery) certainly still exists, as can be seen online.
I pause here to say that I myself have not yet seen any version of the Bill as drafted, and would be very grateful if any readers are able to assist.
What exactly are the powers of the Assembly to legislate?
For now, readers may be as curious to know more about the new powers of the Welsh assembly altogether. As from April 2018, the Wales Act 2017 changed the Welsh devolution settlement from a “conferred powers” model to a “reserved powers” model. In other words, no one has expressly given the Welsh Assembly the competence to make criminal law provisions, because it is no longer a question of Westminster “conferring” any such powers in the first place. It is now a question of Westminster “reserving powers” to legislate on matters on which it is most anxious to remain sovereign and to ensure that the same law applies on both sides of the River Severn.
And indeed, Westminster has reserved powers to amend anything connected to criminal procedure: that is, these matters cannot be touched by the Welsh. Schedule 1 to the Wales Act 2017 amends creates a new Schedule 7A to the Government of Wales Act 2006, para 8 of which provides:
8(1) The following are reserved matters—
- courts (including, in particular, their creation and jurisdiction);
- judges (including, in particular, their appointment and remuneration);
- civil or criminal proceedings (including, in particular, bail, costs, custody pending trial, disclosure, enforcement of orders of courts, evidence, sentencing, limitation of actions, procedure, prosecutors and remedies);
- pardons for criminal offences
- private international law;
- judicial review of administrative action.
(See also paragraphs 3 and 4 of Schedule 7B (restrictions on modifying private law and criminal law).)
That last sentence, of course, sends us to the also-amended Schedule 7B to the Government of Wales Act, which clarifies that powers to legislate on matters of substantive criminal law are only partly reserved:
4(1) A provision of an Act of the Assembly cannot—
(a) make modifications of, or confer power by subordinate legislation to make modifications of, an offence in a listed category;
(b) create, or confer power by subordinate legislation to create, an offence in a listed category.
(2) The listed categories of offences are—
(a) treason and related offences;
(b) homicide offences (including offences relating to suicide) and other offences against the person (including offences involving violence or threats of violence) that are triable only on indictment;
(c) sexual offences (including offences relating to indecent or pornographic images);
(d) offences of a kind dealt with by the Perjury Act 1911.
(3) A provision of an Act of the Assembly cannot make modifications of, or confer power by subordinate legislation to make modifications of, the law about—
(a) criminal responsibility and capacity,
(b) the meaning of intention, recklessness, dishonesty and other mental elements of offences,
(c) inchoate and secondary criminal liability, or
(d) sentences and other orders and disposals in respect of defendants in criminal proceedings, or otherwise in respect of criminal conduct, and their effect and operation.
(4) For the purposes of this paragraph, a modification of the law relating to defences to an offence is a modification of the offence.
(5) This paragraph does not affect the reservation, by virtue of Schedule 7A, of the creation or modification of offences in relation to reserved matters.
(See also paragraph 8 of that Schedule (single legal jurisdiction of England and Wales).)
The procedure/substance division
So, there is competence to legislate in areas that are not reserved by virtue of the above. Abolishing the defence of chastisement to assault and battery does apparently escape all the above strictures, including those within paragraph 2 (b) since those charges are not “triable only on indictment”. (Incidentally, much of the rhetoric around the debate in Wales has been about whether the proposals would bring in a “new offence of smacking” or just remove a “defence to an existing offence”. This however is just about persuading the public, one way or the other, and has nothing to do with legislative competence under the new Schedule 7B).
Why, one might ask, should any amendment to the substantive law be possible, while all matters of evidence and procedure are reserved? Where, even, is the borderline? One might assume that matters relating to the burden of proof are to do with procedure, but they are of course specific to the substantive offence itself, and the reservation in para 8 (1) (c) of Schedule 7A teasingly refers to “procedure” but the word “evidence”. Similarly, are some types of abuse of process to do with procedure or as much to do with substance?
Assuming that burdens of proof and abuse of process are reserved matters under para 8 (1) (c) of Schedule 7A, then it seems to be possible for the Welsh to provide that drunk driving should be a matter of strict liability whether D realised that he had consumed alcohol, but not possible for them to reverse the burden of proof on the same matter. It would also be open to the Welsh to create a substantive defence of police entrapment to charges of possessing controlled drugs with intent to supply (that offence not falling within any of the broadly defined categories above) but not to legislate on when the court might stop such prosecutions as an abuse of process. Readers can no doubt think of other examples.
In terms of constitutional competence, the substantive/procedural distinction itself is questionable: it is not at all necessary to restrict ourselves to pointing out apparent anomalies such as those noted above. (For what it is worth, in terms of fair warning, one might expect it to be the substantive law which is the same in both jurisdictions and for matters of procedure to be subject to variation).
The substantive reservations
Then we might wonder about the next division, between those areas of substantive law which are, and are not, reserved. It seems that what criminal lawyers call the “general part” of the criminal law is reserved, by virtue of para 3 (a): so there is to be no separate Welsh jurisprudence on capacity, mens rea or complicity. By contrast only a few sensitive areas of the special part are reserved, under para 2. It is not obvious why this should be. And again, it is easy to unpick the legislation.
One might look at loose definitions, for example. Does the reservation relating to “criminal responsibility” preclude legislation relating to, say, liability for failing to attempt an easy rescue of a person in mortal danger (para 3 (a) of Schedule 7B)? Consider too the point that legislative competence is only reserved for those offences against the person which are triable “only” on indictment (para 4 (2) (b)). The word “only” seems to suggest that offences triable either way are not reserved. Does that mean, then that liability for recklessly transmitted diseases through sexual intercourse, contrary to s.20 Offences Against the Person Act 1861, are not reserved?
Nor is it clear, at least not to me, what the defendant, or even the prosecution must do if they wish to argue that an unfavourable legislative change related to a reserved matter. Must they raise the matter at the criminal trial or elsewhere? Any reader who can assist on this would again be welcome to contact us.
My UCL colleague Professor Rick Rawlings tells me that the substance/adjectival distinction reflects a desperate fight by the MoJ “to maintain the unified England and Wales legal system in the face of continued legislative divergence between Cardiff and London”. In his article “The Strange Reconstitution of Wales” 2018 Public Law 62, he writes that “to put it charitably, scrutiny in the House of Commons of this major constitutional Bill was muted” (at 74) and there was a “lost opportunity in the quest for a stable, secure and intelligible devolution settlement” (at 81).).
I have no doubt that this is right. But at the same time, avenues of substantive law reform are so difficult to open that we should not perhaps be too chary of any new ones that arise. Outlawing chastisement in Wales would undoubtedly embolden further the campaign for abolition in England. One imagines, as in England, further substantive reforms are likely to need to have clear political angles, and it may be that will be little follow-up in the area of criminal law further to the outlawing of chastisement. But who knows what other acorns may grow?