Three stories about comments made by judges in court have caught the attention of the media recently.
The Times reports today on page 24 that the Judicial Conduct and Investigations Office has received complaints about a judge who said that a woman who was attacked by her husband was not vulnerable because she was "plainly intelligent". The judge sentenced the man to an 18 month suspended sentence at Manchester Crown Court.
We also have the story again on page 23 of the Times of the judge in a rape case who warned that drunk women were putting themselves in danger. The survivor is now reported to have said that the judge was right.
Finally there is the story of the judge who warned teenage girls during a court hearing never to send pictures of themselves unless they were "fully clothed and in decent pose" - after he sentenced a man for grooming.
Judges have a difficult job and they are expected to be conscious of the effect of what they might say in court. It is true that their comments are often taken out of context by the media, so in the case of the judge who sentenced the perpetrator of domestic violence, we don't know what else was said during the hearing by that particular judge.
We lawyers are conditioned to approach cases in an objective way (there is a reason for that), and sometimes this approach may come across as callous, uncaring and arrogant to someone who has suffered appalling violence. It may also come across as patronising. I observed this many years ago, when a survivor of abuse was brought along to view a High Court case management conference in a child abuse litigation case and left furious at the cold and calculating way in which his and other survivors' cases had been handled. What might been described as efficient case management obviously came across very differently to him, and after all he was there at the time of the abuse - we weren't.
Likewise the judge who gave advice to teenagers, might be said to be stating the obvious but then again, can we expect children and young people to understand the level of manipulation employed by abusers on and off the internet? I think not, given that history demonstrates that many adults charged with child protection, struggle with the concept of the way in which abusers work.
However these case are supremely sensitive, and there's a message that goes out from the courts. All manner of intelligent people can be very vulnerable in a domestic violence situation. It's not about just getting up and walking out. Women can't be blamed for getting drunk. They should be safe in all situations. Finally many children and young people may have some appreciation of the risks of the internet, but we can't assume that they do.
The Court of Appeal has now handed down judgment in Criminal Injuries Compensation Authority v First Tier Tribunal and Y  EWCA Civ 139.
Y's mother was abused by her own father, who later pleaded guilty to charges of incest. DNA tests showed that Y’s grandfather was in fact also his father. Y’s mother had been awarded compensation from the CICA in her own right in respect of the assaults on her by her father. Y was born with a genetic disorder as a result of his parents' consanguineous relationship.
Medical evidence shows that there is a 50% chance of such problems appearing in those who were born of an incestuous relationship, compared with a 2% or 3% chance in the general population. Y brought a claim to the CICA, which was refused because the CICA decided that Y's disorder was not a "personal injury" for the purposes of their 2008 Scheme. The First Tier Tribunal upheld that decision. However, in April 2016, Judge Levenson in the Upper Tier Tribunal decided that Y's disorder was a "personal injury" within the terms of the CICA Scheme. The CICA appealed to the Court of Appeal.
Sadly the CICA's appeal has been granted. The Court of Appeal decided that Y had not suffered an injury under the CICA 2008 Scheme and consequently, he could not recover compensation.
Lord Justice Leveson said:-
"For my part, I would construe the 2008 Scheme to mean that the victim of the crime of violence in this case could only be M (with the result that she was entitled to receive compensation for the personal consequences to her of her father’s actions). To suggest that Y, who had not been conceived at the time of the crime, was himself a victim of crime (the nature of the crime involved being difficult to discern) or that it is possible to assess compensation on the postulate that Y would otherwise have been born without disability and so should be compensated for the genetic disorder from which he suffers is to go beyond that which the Scheme was seeking to cover. That M (and mothers in her position) should receive compensation to reflect the undeniable difficulties which she has experienced and continues to experience in carrying the responsibility for caring for a disabled child born as a result of the sexual crime of violence committed against her is another matter and one that should be addressed by the Secretary of State: for my part, it is difficult to see why, as a matter of fairness, the common law approach adopted in such cases as Parkinson v St James and Seacroft University Hospital NHS Trust should not be incorporated into the Scheme."
Malcolm Johnson of BL Claims, the solicitor advocate who represented Y before the Court of Appeal said that this was a bitter result for Y and his mother, who had fought so long and hard for compensation.
However, the Court of Appeal said that the CICA Scheme should address the position of mothers who find themselves caring for a disabled child born as a result of a sexual crime.
Lord Justice Leveson also said in his judgment:-
"I cannot leave this case without again repeating my profound sympathy for M and the difficulties that Y experiences. That cannot, however, blind me to what I consider as the only proper construction of the 2008 Scheme. In the circumstances, I would allow the appeal and restore the order of the FTT."
Mr Justice McFarlane in the Court of Appeal also said:-
"The courts are, sadly, familiar with cases in which both the physical and long-term emotional impact of child sexual abuse are all too plain to see……….Although, as a matter of law, we have, in my view, no option but to decide against this claim, I fully understand why M has brought it and I admire her for doing so. She is a survivor who continues to care for her needy and highly disabled son and is a lady who, despite my tenuous encounter with her, commands my great respect."
The Serious Crime Act 2015 received Royal Assent on 1 March 2015.
Section 67 makes it an offence in England and Wales for anyone over 18 to communicate with a child under 16 for sexual gratification. It amends the Sexual Offences Act 2003.
"15A Sexual communication with a child
(1) A person aged 18 or over (A) commits an offence if--
(a) for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),
(b) the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and
(c) B is under 16 and A does not reasonably believe that B is 16 or over.
(2) For the purposes of this section, a communication is sexual if--
(a) any part of it relates to sexual activity, or
(b) a reasonable person would, in all the circumstances but regardless of any person's purpose, consider any part of the communication to be sexual;
and in paragraph (a) “sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person's purpose, consider to be sexual."
However the section has yet to be enacted, which means although it is on the statute books, police are unable to use it to arrest adults sending sexual messages to children.
The section was introduced in order to toughen up the law against grooming offences. Let us hope it is enacted soon.
The BBC reports that there have been concerns about certain Facebook groups. Facebook has been criticised for its handling of reports about sexualised images of children on its platform. There have been reports of users discussing swapping what appeared to be child abuse material.
Back on the 27th February 2017, I commented on a Times report, which talked about a move by government ministers to summon Facebook, Twitter, Apple and others to Whitehall, and demand that they develop new technological solutions similar to those used to thwart paedophiles and terrorists.
The call by ministers and others will be backed by the threat of legislation, with a green paper promised in the summer.
On the 5th January 2017, I also commented on a statement put out by Anne Longfield, the Children's Commissioner.
Facebook is no stranger to legal action. On the 13th September 2016, I reported on a legal claim brought against Facebook in Northern Ireland, which concerned indecent images.
Now government pressure is building up to make internet social platforms responsible for the imagery and material that appears on their websites.
The answer may be an "Occupier's Liability Act" for media sites. The idea that I have put forward is a statute similar to the Occupiers Liability Act 1957, which imposes a duty on property owners 'to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.'
The Act also says that an occupier must be prepared for children to be less careful than adults.
We need something similar for the internet age.
Malcolm Johnson, Specialist Child Abuse Lawyer