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Easing Lockdown: What it means
Boris Johnson, the Prime Minister of the United Kingdom, announced the next steps to ending lockdown on 11th May 2020. The message, which was broadcasted on television, has caused confusion because it was not clear enough. This is my brief attempt at explaining its meaning. I will only cover Stage One of the government’s plan though. The Five Alert Levels Boris set out the five alert levels. These are how the government is gauging the threat of the current coronavirus pandemic. This version of the virus is being called COVID-19, although it is also known as SARS-CoV-2. The levels are on a scale of one to five and will be assessed in different parts of the country by a new “joint biosecurity centre”. The new system will be able to detect a raise in infections in your area and inform the national situation. This will determine what protective measures are needed to balance safety and freedom. There is some doubt, however, as to how independent the biosecurity centre can be, given there is political influence and objectives. We will be at Level One (Low Risk) when the virus is no longer present in the UK. This is unlikely to happen for a very long time, if ever. Unless we all become immune to COVID-19 via recovery or a vaccine, it will be here to stay, and we will have to learn to live with the risk. We will be in Level 2 (Moderate Risk) when there is low transmission and the NHS is operating normally. At this point, schools and businesses will be open with open some special measures. Social distancing will still apply, and vulnerable people will continue to be shielded. Level 3 (Substantial Risk) will be in place when the virus is in general circulation and the NHS is operating at extra capacity. We are now moving into this level, which is also the first stage in the government’s plan. Restrictions will remain on the public sector, business and everyday life. What these restrictions will look like remains unclear. There are some indications of what this means; I talk about these below. We have been in Level 4 during full lockdown. People had to stay at home unless they had reasonable excuse. The regulations also provide some examples, which can be found in Regulation 6. I will not include them here to avoid overcomplicating this article. Level 5 will be in place if the NHS gets overwhelmed, which is unlikely at this point. The Value of ‘R’ The “R” value, which is the infection rate, is the average number of people that can get the virus from one infected person. COVID-19 has a natural reproduction number of 3, which can result in a rapid increased in infections if measures are not taken. The Prime Minister said, during last night’s announcement, that the value of R is currently between 0.5 and 0.9. The virus will die out as not enough new people will be infected to sustain the outbreak if the value of R remains under 1. The value of R will be heavily monitored and determine how the UK moves forward. Work The government’s position on work will change on Wednesday. The current advice is that ‘you should work from home if you can, and only go to work if you must’. The new position is that ‘anyone who can’t work from home, for instance those in construction or manufacturing, should be actively encouraged to go to work’. If you work in sectors of the economy that are allowed to be open, you will be expected to go to work if you cannot work from home. This includes food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. Further guidance on this is expected soon. How you should get to work is causing confusion. The Government previously announced it will be spending 2 billion pounds on a walk/cycle to work initiative to deter people away from public transport. This is supported by the new guidance but is not an option for some. The government is still working on getting public transport back to normal though. Even when full services resume, public transport will only be able to carry 10% of the usual capacity with social distancing in place. Outdoor Activities The Prime Minister said that ‘from this Wednesday, we want to encourage people to take more and even unlimited amounts of outdoor exercise’. He continued to say, ‘You can sit in the sun in your local park, you can drive to other destinations, you can even play sports but only with members of your own household’. The guidance makes clear that you can now also spend unlimited time outdoors alone. You can also meet with one person from outside your household as long as you remain outdoors. The government believes we are safer to meet outdoors than inside a building. You have to remain two metres (6ft) away from people outside your household though. You can only exercise with up to one person from outside your household. Team sports are only allowed with people from your household. You can drive to outdoor open spaces irrespective of distance. When travelling to outdoor spaces, it is important that people respect the rules in Scotland, Wales and Northern Ireland. Face Coverings People should aim to wear a face-covering in enclosed spaces where social distancing is not possible. The guidance says: ‘Homemade cloth face-coverings can help reduce the risk of transmission in some circumstances. Face-coverings are not intended to help the wearer, but to protect against inadvertent transmission of the disease to others if you have it asymptomatically.’ ‘A face covering is not the same as a facemask such as the surgical masks or respirators used as part of personal protective equipment by healthcare and other workers. These supplies must continue to be reserved for those who need it. Face-coverings should not be used by children under the age of two, or those who may find it difficult to manage them correctly, for example primary age children unassisted, or those with respiratory conditions. It is important to use face- coverings properly and wash your hands before putting them on and taking them off.’ Vulnerable People Clinically vulnerable people are over 70 or specific chronic pre-existing conditions and/or are pregnant. If you are in this group, the government advises that you should minimise contact with people from outside your households, but you do not need to be shielded. The conditions in this group are: · Chronic (long-term) mild to moderate respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis; · Chronic heart disease, such as heart failure; · Chronic kidney disease; · Chronic liver disease, such as hepatitis; · Chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), or cerebral palsy; · Diabetes; · A weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets; and · Being seriously overweight (a body mass index (BMI) of 40 or above) Clinically extremely vulnerable people are strongly advised to stay at home at all times and avoid any face-to-face contact. Clinically extremely vulnerable people may include the following people: · Solid organ transplant recipients; · People with cancer who are undergoing active chemotherapy; · People with lung cancer who are undergoing radical radiotherapy; · People with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment; · People having immunotherapy or other continuing antibody treatments for cancer; · People having other targeted cancer treatments which can affect the immune system, such as protein kinase inhibitors or parp inhibitors; · People who have had bone marrow or stem cell transplants in the last 6 months, or who are still taking immunosuppression drugs; · People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary disease; · People with rare diseases that significantly increase the risk of infections (such as SCID, homozygous sickle cell); and · People on immunosuppression therapies sufficient to significantly increase risk of infection. International Travel The Government will require all international arrivals to give their contact and accommodation information. They will also made to self-isolate for 14 days unless they are on the list of exemptions. Accommodation will be arranged by government where international travellers are unable to demonstrate where they would self-isolate. Conclusion The situation is forever changing, and more information keeps becoming available. I have tried to set out the next steps as simply as possible. You will need to read around each section of this blog post, Stage Two and Stage Three to have a comprehensive understanding, but I hope this help.
Eweida: The Shift Away From ‘Resignation as a Guarantee of Religious Freedom’ Limited by the Proport
Introduction [endif]--[endif]--![endif]--![endif]--![endif]--[endif]--[endif]--[endif]-- The Eweida and Others v United Kingdom  judgement brought positive change to negating restrictions on freedom of religion under Article 9 to an assessment of proportionality. In Ms Eweida’s and Ms Chaplin’s cases, the women’s respective employers had refused to allow them to continue in their role unless they removed crosses that they considered to be religiously required. This in itself is a significant change in approach and is an important victory for the recognition of religious manifestation under Article 9. The first point made was that, while there must be a ‘sufficiently close and direct nexus between the act and the underlying belief’, there was no need for the practice to be religiously mandated. Secondly, the Court disclaimed the specific situation rule, holding that it would be better to weigh the possibility of leaving employment at the balancing stage under the Article 9(2). All restrictions, even those with the best motives, should have their justifications analysed and explained (Pearson 2013, Article 9 at a Crossroads). This is an important aspect of human rights law and is more likely to get the applicant on side. The ECtHR held that the UK courts had failed to strike the right balance as they had accorded the factor of the company’s image too much weight. This article will assess the assessed statement in two parts. Firstly, in relation to ‘resignation as a guarantee of religious freedom’, the article will applaud the abandonment of this principle and set out the issues that arise from this approach. Secondly, the article will look at the new proportionality based assessment to highlight the benefits of it but will also consider where it may fail. Part 1: The Shift Away From ‘Resignation as a Guarantee of Religious Freedom’ The traditional and draconian approach involved no violation of Art.9(1) if there was the (false) element of choice in that the applicant has the option of manifesting his/her belief in a different way or elsewhere. In its narrowest sense, it has been ruled that there will not be a violation of article 9 manifestation unless the act is legally forbidden. In the unusual case of Cha'are Shalom Ve Tsedek v. France , the claim failed because eating meat in the proscribed way was not made impossible by illegality and it could be imported from Belgium. It sets excessively high standard that would permit severe burdens on beliefs without considering the justifications given the case would fall at the first hurdle. If this standard were to be applied outside of this context, it would allow all restrictions that did not make the practice illegal without the need for justification. This is clearly draconian, unnecessary and unfair and the Eweida change was much needed. There remains an issue of whether the matter must concern a mandatory religious rule, even if the impossibility test is rejected. Requiring a religious obligation requires an arbitrary line as to what is required by a religion and what is a religious motivation. This approach is equally unsatisfactory and leads to unfair results. In X v Austria , for example, there was no interference, by not allowing the setup of legal association, with the rights of members of the Unification Church because it was not strictly required by religion. This assumes that religion is a set of rules and all affirmative spiritual and communal aspects are assumed away (Laycock 1990, The Remnants of Free Exercise). It is clear how one’s right to religion and belief under Article 9 is not sufficiently respected and considered in this way. One particularly problematic case was Valsamis v Greece , where a Jehovah’s Witness child refuse to parade in her school commemorating an early war. The Court held that it was unable to determine anything ‘either in the purpose of the parade or in the arrangements for it, which could offend the applicant’s pacifist convictions.’ The Court substituted its judgment for the conscience of those involved, defining what was ‘reasonable’ for them to believe. Such a narrow approach allows justification to be avoided. In the context of Employment, in which Eweida was decided, the position was that there would be no infringement if the employee could resign from their job and (by implication) find new employment. The Commission for example, in Ahmed v UK , rejected a Muslim teacher’s request for an extended Friday lunch-break so that he could attend Mosque for prayers. The Commission found that he was free to resign ‘if and when he found that his teaching obligations conflicted with his religious duties. In Stedman v UK , similarly, there was no violation where a Christian working in a travel agency refused to work on Sundays because it is the day of rest and worship in her religion as she could resign from the job and did so. The ‘resignation as a guarantee of religious freedom’ approach was an inadequate means of protecting basic human rights. This approach under Article 9 defeated the object of the human rights framework as it places the onus on the victim to ‘go elsewhere’ with their manifestations. A move away from ‘Resignation as a Guarantee of Religious Freedom’ is welcomed as the emphasis should be on the protection from interference rather than the individual’s opportunities to seek alternative employment. The shift is also an acknowledgement that the ‘option’ to resign is a fantasy given that finding new employment swiftly is unrealistic as there are high unemployment rates across Europe (Harris et al). An individual cannot be expected to resign from her job, which is providing her, and possibly her dependents, with financial security, in the hope that she can find another that will respect her manifestations. The duty is on the state to ensure freedom of religion, rather than expecting individuals to take jobs that will respect their religious manifestations. Freedom of contract, in this situation is a myth and does not exist in substance. The individual will rarely be able to negotiate the offered standard form contract, there will be overwhelming financial pressure to take the role despite the restriction and there is added gravity given the recent welfare cuts. Part Two: The New Proportionality Based Assessment The Court’s new focus on justification via balancing through proportionality as three parts. Firstly, this involves looking at whether the restriction is prescribed by ‘adequately accessible and ‘precise’ law to enable the citizen to regulate his behaviour’ (Sunday Times v UK ). The restriction must secondly have a legitimate aim, which includes public order, public health/safety and protecting the rights and freedoms of others but does not extend to national security (Nolan and K v Russia . are all legitimate aims. Thirdly, it must be necessary in a democratic society. This is often applied in religious dress and proselytism where states have a wide margin of appreciation. The proportionality based assessment will allow the court to recognise manifestations and avoid dictating which practices are religions. Restrictions will be then assessed through a balanced approach that will maintain the floodgates but balance different beliefs and rights in a multicultural society and a diverse democracy. The proportionality test, however, is unlikely to allow for more successful claims. For one, there have also been a series of legitimate aims that have hampered the progression of the freedom to manifest. The need to maintain public order has been held to justify restrictions on access to a Druid summer solstice festival at Stonehenge (Chappell v UK ), a public protest against alcohol and pornography (A v Sweden  and the removal of a religious book containing a chapter on martial arts from a prisoner (X v UK ). Public health and public safety has also proven to be a significant restriction. On these grounds, a high-caste Sikh could be made to clean his prison cell floor (X v UK ) and a Sikh could be forced to wear a crash-helmet instead of a turban for public safety (X v UK  14 DR 234). Some of these restrictions will be necessary for the good of the person and the collective. Some, however, will give too much weight to the justification, as the ECtHR ruled in Eweida and provides an example of how legitimate aims can be used both correctly and incorrectly to restrict manifestation. This, therefore, limits the progress made in Eweida. Protection of the rights and freedoms of others is another legitimate aim used to restrict manifestation and prevent the floodgates from opening. In Eweida and Others, the claims of Ladele, a Council Registrar refused to officiate civil-partnerships because of her Christianity, and McFarlene, a Relate Counsellor who refused to offer psycho-sexual counselling to same-sex couples on the basis of her Christianity, were dismissed. The state had a wide margin of appreciation in striking a balance between the rights of the Applicants to manifest their beliefs and the duty on employers to protect the rights of others. The right balance had been struck, on account of the employers’ policies to promote equal opportunity, and the ban on employees from acting in a way that might discriminate against others. This demonstrates how the Eweida development will not open the flood gates and has limited effect. Sometimes a balance is needed but, with this approach, the applicants are made aware as to why their religious freedom has been restricted. Secondly, a wide margin of appreciation is afforded to member states giving them a lot of discretion. The margin of appreciation is an allowance for states to determine the democratic necessity of a particular measure, given the principles of subsidiarity, according to which the member states have the primary responsibility of ensuring the protection of human rights and are in touch with the local realities. It is practical & effective (Gross & Aolain) means of keeping member states content in their own sovereignty and it respects cultural diversity. The margin of appreciation, as Lord Lester explains has many problems that relate to Article 9. It creates a geometry of rights in how it is applied and it is an abdication by the court of its duties to judge complex issues (court abdicates by deferring to national systems. It also introduces a strong subjective element and is fraught with moral and cultural relativism that undermines the universality of rights. Member states are given wide discretion in two areas. The first is religious dress. This is the underline reason why the ECtHR accepted France’s public health aim as legitimate, prescribed by law and necessary in a democratic society in SAS v France  under Article 9(2). It was argued that “the barrier raised against others by a veil concealing the face is perceived by the respondent… as breaching the right of others to live in a space of socialisation which makes living together easier”. The Court accepted that the state may find it necessary in a democratic society to ban the niqab and burka in public– according to the requirements of “living together” in French society – to give particular weight to interaction between individuals and “may consider this to be adversely affected” by people concealing their faces in public. This decision was clearly decided to appease the French since the wearing of veils has become a controversial and much debated topic across Europe in light of thriving, yet unfortunate, Islamophobia. Bratza states that the Court pays ‘close attention to the particular requirements of the society in question when examining complaints that a law or practice in that society violates the Convention.’ This seems, however, as if misguided public opinion should set the standards of human rights. This is problematic for the new approach set out in Eweida as although it could allow a range of factors to be considered in order to limit the wider remit. It also demonstrates that Article 9 remains limited. Conclusion This new approach is welcomed but it does not give greater protection to Article 9 rights as the justification element under Article 9(2) allows for significant restrictions. The new approach is significant, however, because restrictions should be challenged via justification rather than setting an impossible or unfair standard. This allows the applicant to understand why they have been burdened and why they cannot manifest their religion in the way that they want. This gives greater respect for the manifestation and the Court does not have to decide what is obligated by religion and what is only motivated by religion. The ECtHR must look to why the manifestation is restricted and determine whether they are legitimate, proscribed by law and necessary in a democratic society.  Martínez-Torrón and Navarro-Valls (2004), ‘Protection of Religious Freedom in the System of the Council of Europe’ in Lindholm, Durham, and Tahzib-Lie,eds, ‘Facilitating Freedom of Religion and Belief: A Deskbook’ p234 ![endif]--![endif]--![endif]--
The Magna Carta's 800th Anniversary
15th June 2015 is the 800th anniversary of one of the most significant and eldest human rights charters in the world. The Magna Carta, which translates to ‘The Great Charter’, became the cornerstone for Britain’s uncodified constitution and one of the most recognised documents worldwide. Despite being created as a peace agreement between King John II and the barons in 1215, it set out key rights and principles to which all ‘free men’ could expect. It failed as a peace agreement, but it set the foundations for a new concept that everyone, including the King, is subject to the law and they had to respect and abide by the principles set out in its 63 clauses. Only three of which remain in force. Clauses 39 and 40 are the most significant today and they state that: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.[…]To no one will we sell, to no one deny or delay right or justice.” The Magna Carta clearly states a right to a fair trial, arguably by jury, and financial wealth, whether strong or poor, has no bearing on this principle. It is unfortunate that justice through the courts does come at a cost. The state should, however, help those who cannot afford this justice to access it by easing the financial burden. This was achieved, at least to some degree, by legal aid. The heavy cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders Act, which came into force from April 2013, takes away that vital support. The cuts to legal aid have had a profound effect on legal practice in England and Wales. Legal aid is an essential pillar of democratic society and important part of the welfare state as it helps ordinary people, who may not be able to afford a solicitor or barrister, to access justice. Very often the most vulnerable people find themselves in situations that reach a point where only the intervention of a lawyer or specialist caseworker can resolve the problems. A 68% in legal aid each year means that those in welfare benefit and family disputes, people in need of help sorting debt demands and individuals who have housing problems cannot get the legal help that they need. This causes the power divide between the poor and rich becomes wider, more prominent and has greater significance. These cuts do not allow some people to receive “lawful judgment of his equals or by the law of the land” due to a lack of funding. Rights and justice can, as a result, be delayed or denied because of a lack of funding. This allows justice to be bought and sold. Justice is not a concept that should be bought or sold. It is an objective ideology that allows for the fair outcome. We find ourselves on a five-year path of austerity and cuts will continue. It is possible that we are witnessing legal aid’s slow death, new limitations on the right to a fair trial and a clear swift in power towards those with greater financial resources. But the fight must continue. Have your voices heard, fundraise for free legal advice, go on legal walks, go on the marches. We must protect access to justice so that it can last another 800 years.
The History of Human Rights
This article was written for Queen Mary Legal Advice Centre's blog in celebration of Human Rights Day: 10th December 2014 This article intends to take you on a journey through the history of human rights, providing interesting facts about the legal instruments that protect our most fundamental liberties. It does not aim to provide legal analysis. It is, simply, a celebration of my human rights, your human rights and everybody’s human rights. It is an appreciation of human rights, which ‘are [universal and] premised on the inherent dignity of all human beings whatever their frailty or flaws.’ Britain’s Magna Carta is a fitting first call in this human rights time travelling mechanism. The ‘great charter’ was initially enacted in 1215 but was drastically altered in the following years. Much of the original charter, however, has now been overruled but many of its fundamental principles are now enshrined in numerous human rights instruments. Values from the Magna Carta can be found in the United States Bill of Rights (1791), Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950). This includes the concept that everyone is subject to the law. The Magna Carta also introduced the very basics of legal systems around the world as it states that: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice. It soon becomes apparent that some of the fundamental rights that we take for granted date back to the Magna Carta and its revised versions. The United States Bill of Rights is no different in that it also provided an elaborative notion of liberties that are relied upon today. The Bill of Rights protects rights that are respected in constitutions around the world and contained in numerous international human rights instruments. Freedom of speech, religion, and of assembly and to petition is now respected worldwide. It also gave birth to key constitutional principles such as the prohibition unreasonable search and seizure, cruel and unusual punishment and compelled self-incrimination. The federal government is prohibited from depriving any person of life, liberty or property without due process of law that are fundamental human rights around the world. The Declaration of Independence (1776) is equally significant. The Declaration, a means of breaking away from the British Empire, placed much emphasis on individual rights and the right of revolution to which many American’s hold value. These themed have dispersed internationally, and had particular influence on the French Revolution. The Declaration of the Rights of Man and of the Citizen (1789) was adopted after the abolishment of the absolute monarchy and the birth of a republic. The Declaration, considered the first step towards a French constitution, guaranteed, to all citizens, the rights to ‘liberty, property, security, and resistance to oppression.’ It also extends itself to explaining the concept of human right and, in fact, law in general as it states that ‘the natural rights of each man has only those borders which assure other members of the society the enjoyment of these same rights. The law, as explained in the Declaration, is an “expression of the general will,“ and aims to promote equal rights and to only prohibit “actions [that are] harmful to the society.’ This placed equality, human rights and control over power at the centre of society and became hugely influential to human rights mechanisms around the world. Human rights were being declared around the world. This, however, did not stop the atrocities of the World Wars that saw so many treated inhumanly. Action was taken to help ensure that they were never repeated as delegates from fifty countries met in San Francisco in the April of 1945. Their aim was to create an international body with the purpose of promoting peace and preventing conflict in the future. The Charter came into force on the 24th October 1945 and gave birth to the new United Nations (“UN” hereafter) organisation; a date celebrated yearly that has become United Nations Day. The UN Human Rights Commission was created in 1946 and, although replaced in 2006 by the Human Rights Council, remains a key part of human rights history. The Commission, led by Eleanor Roosevelt, a fundamental human rights advocate and the United States delegate, drafted, introduced and adopted the Universal Declaration of Human Rights (“UDHR”) on December 10, 1948. The Declaration attracted the world’s imagination and was considered the ‘international Magna Carta for all mankind’ given that it compiled 30 articles of human right. This was revolutionary as it was the first instance of human rights being assembled in this way. It sets out, in the preamble and Article 1, that all human beings are born free and enjoy equal dignity and rights, including freedom of speech and belief and freedom from fear. More specific UN human rights conventions were born out of the success of the UDHR. Such conventions often protect minorities and those who are most vulnerable to defend those who are most at risk. Significant examples include the Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities, Convention on the Elimination of All Forms of Discrimination against Women and International Convention on the Elimination of All Forms of Racial Discrimination. The realisation that particular social groups require certain protection in order to achieve equality is a step forward from universal rights. Universal rights, however, remain as the fundamentals of society. More specific rights, on the other hand, protect minorities and the vulnerable from discrimination. Domestic anti-discrimination laws that play a similar role have mirrored this approach. The European Convention of Human Rights (“ECHR”) illustrates two further developments: individual court hearings and the emergence of regional human rights instruments. The ECHR came into force on 3 September 1953 after being drafted by the newly formed Council of Europe (“CoE””). All member states are signatories to the Convention and new members should ratify it at the earliest opportunity. It is hugely influenced by the UDHR as it adopted similar rights. It was also enacted with the same ambitions as the UDHR; to avoid the atrocities of the world wars from being repeated. It protects 21 rights, though not all are enforceable. The key rights include the right to life, freedom from torture and inhuman treatment, privacy and liberty. This represents a development from the UDHR in that it has a court in which individuals can bring a case once they have exhausted domestic options. This is different from the UN procedures that often involved reporting from selected non-governmental organisations and the observance of specialist UN committees. In the UN, reports are written explaining the member state’s compliant and contravening behaviours and advice as to how to make amends. This is, however, often ignored by states. Individual complaints and remedies provide for a more intimate solution. The ECHR is also a development as it is an example of a regional treaty. Regional treaties on human rights appear globally and include examples such as the CoE’s Social Charter, the European Union’s Charter of Fundamental Rights, African Charter on Human and Peoples' Rights and Asian Human Rights Charter. Human rights have enjoyed gradual development in the last one hundred years. These progressions are under threat and human rights in Europe face a bleak future. Failures of the welfare systems and a rise in right-wing parties have seen citizens question the nature of human rights and are asking for reform. Many simply lack a human rights education and a well-informed opinion. The rise of the right-wing also threatens international and supra-national human rights as they seek more domestic independence. Much emphasis has been placed on the importance of human rights in the last decade and it is hoped that the reasoning for their introduction will be remembered, ensuring a safe passage through this difficult times. Human rights are fundamental and will play a vital role in the protection of the individual until the end of time. Let us, in this month of joy and reflection, celebrate and appreciate OUR human rights.  P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) and P and Q (by their litigation friend the Official Solicitor) v Surrey County Council (Respondent)  UKSC 19 at  per Baroness Hale  Council of Europe (1994), Resolution 1031 on the honouring of commitments entered into by member states when joining the Council of Europe.
Domestic Violence: A Public Matter to Which the State Has Responsibilities To Prevent
This article was written for Queen Mary Legal Advice Centre's blog. Introduction The correct terminology for violence that takes place in close adult relationships is all but settled, given that it is a wider problem than the term ‘battered wives’ would suggest. ‘Domestic violence’ (“DV” hereafter) will, therefore, be used in light of the definitions provided in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Yemshaw v Hounslow LBC  UKSC 3. ‘DV’ will, therefore, be engaged as meaning any incident of or continuing behaviour that is controlling, coercive or threatening, whether violence or abuse (whether psychological, physical, sexual, financial or emotional). Such behaviour is between individuals who are associated with each other and any other form of abuse that give rise to a risk of violence, either directly or indirectly. Associated persons will be given the same meaning as that under section 62 (3) Family Law Act 1996 (FLA). Associated persons are or have been married or civil partners, cohabitants, lived in same household, relatives, agreed to marry, or have been in an intimate relationship of a significant length where they have not lived with each other. Historically, the concept of privacy had been considered important. O’Donovan argued that one’s home is a private place; a refuge from society, where relationships can flourish uninterrupted by public interference. It was considered inappropriate to legislate on DV as it was thought of as being part of marital life.  There was a reluctance to intervene in the domestic situation as a result, as it was considered inappropriate for the state to interfere in private matters. This is an archaic argument that falls back to the days when there were seemingly two levels of Government; the state, and the household. The head of the household would make decisions and his word would be law of private matters. Behaviour that is now considered DV, such as a husband hitting his wife with a stick the width of a finger, was considered a husband’s right to control his household. Just as marital rape, similarly, was only considered a crime in 1991 having been thought of as a husband’s right. This paper intends to illustrate the public nature of DV by looking at state responsibilities towards the citizen and those deriving from international agreements, with a particular focus on the European Convention of Human Rights (“ECHR”). The ECHR is implemented, in the United Kingdom, though the Human Rights Act 1998 (“HRA”). The HRA was enacted with the intention of ‘bring[ing] rights home’.  Numerous Convention rights places both negative and positive duties on the state. It is the latter that is most relevant to DV. ‘A positive obligation requires states to undertake specific preventive or protective actions […], whereas they must refrain from taking certain actions under a negative obligation.’ The positive duties imposed by the Convention rights compel the state to act to prevent and protect against DV. The HRA, similarly, via section 6, makes it unlawful for public authorities, such as local authorities, the police and the courts, to act in a way that is not compatible with Convention rights, including failure to act. Section 3 of the Act states that legislation must, so far as possible, be read and interpreted in light of the Convention rights unless it is not possible, in such cases a declaration of incompatibility should be made under section 4. The UK also has relevant obligations under the European Union and the United Nations. Part one of this paper will consider the duty to provide protection against death, the risk of death, torture and "inhuman or degrading treatment or punishment. Protecting the right to respect for private and family life will be analysed in part two. Part three will look at housing rights. Discrimination against women will be discussed in part four. Maximising state resources, patriarchy and sex equality will be the focus of part five. Part 1: Protection against Death, the Risk of Death, Torture and "Inhuman or Degrading treatment or Punishment" The positive obligations in Article 2 ECHR, the right to life, place a duty on the state to protect citizens with a risk of death at the hands of other people.  There is a risk of death wherever there is physical violence, making Article 2 relevant to the physical aspect of domestic violence. The state will breach Article 2 if it does not take reasonable, adequate or effective steps to protect citizens from violence. An obligation is, therefore, placed on the state to ‘intrude’ into what was considered a private matter in order to provide protection against the risk of death. The home in this respect is no different than another location, making DV a public matter and placing a duty on the state to intervene.. Article 3 ECHR, similarly, places DV into the public light as it requires the state to protect citizens against torture and "inhuman or degrading treatment or punishment" from other people. This was emphasised in E v UK where it was considered a fundamental value and, as a result, must include ill-treatment by private individuals that attains a level of severity. Relevant factors for determining this severity include the nature and the context of the treatment, the manner of its execution, its duration, and its mental and physical effects, including positive and negative health implications. Actual bodily harm and intense physical or mental suffering are of sufficient severity while humiliating, demeaning or debasing an individual is encompassed in ‘degrading treatment’. The latter also includes showing a lack of for, or diminishing, human dignity, arousing fear, anguish or inferiority to the extent where it breaks a person’s moral and physical resistance. DV is more likely to be covered by Article 3 if it involves physical abuse or occurs over a long period. This is not conclusive, however, as conduct that is insufficiently degrading of one person, may be degrading for another and so mental effects age, sex and state of health of the victim can be relevant. This is linked to the particular duty to protect vulnerable people, such as children. Children need to be protected from domestic violence in order for the state to comply with Article 3 as it may arouse fear, anguish and inferiority to the extent that their moral and physical resistance is broken. The public nature of DV is, therefore, self-evident, given that the positive obligation imposes state duties where they have failed to take reasonable measures when they knew or ought to have known that a person is being subjected to article 3 ill-treatment. For one, it puts a duty on the police, prosecuting authority, the courts and other state bodies, such as social services, to take reasonable measures in order provide protection to an applicant suffering torture or degrading or inhuman treatment. This can be achieved through pro-arrest and mandatory prosecution policies. There is also a duty to provide an effective legal deterrent. Failure to do so will constitute a breach of Article 3. Effective legal deterrence, in the UK, can be found both in the civil and criminal law. Under the criminal law, a victim of DV may be able to argue that she has fallen foul of one or more of the offences contained in the Offences Against the Person Act 1861. Similarly, there are offences under the Protection of Harassment Act 1997 relating to harassment and making a person fearful of violence being used against them. It is also a criminal offence to breach a non-molestation order. The fact that conduct amounting to DV can constitute criminal offences supports the fact that DV is a public matter. Criminal behaviour offends society and therefore needs to be stopped. Within the civil law, non-molestation orders, which can be made under section 42 of the FLA are a measure protecting against ill-treatment and the risk of death. It is order to prevent respondent from molesting another person who is associated with the respondent or a relevant child. An associated person here is as described above. Part 2: Protecting the Right to Respect for Private and Family Life Article 8 ECHR protects the individual’s right to respect for private and family life. ‘Family’, for the purpose of Article 8, can be a husband, wife and children, unmarried couples subject to circumstances, a child and one parent and where there are close personal ties between individuals. The positive duty places DV in the public domain as the state must ensure that family life is respected. Occupation orders, as a protective measure, help to maintain the victim’s family life with other people that are not involved in the violence, which can be affected if the victim is forced to leave the home. Such measures aid the State’s compliance with the duty to ensure such respect for family life in regulatory frameworks and adjudication. Furthermore, allowing violence to continue could severely disrupt that parent’s family life with her child. There is also a duty to reunite where the victim parent is no longer able to enjoy her family life with a child as they do not live together due to the violence. It is, therefore, clear to see that occupation and non-molestation orders are measures that facilitate enjoyment of family life. The right to unification is, however, not absolute. A reunification must be in the child’s interests as well as the rights of all parties involved. There are also duties to respect private life that illuminate the public nature of DV. It should be noted that personal integrity, whether physical or psychological, is included in the right to a private life. Physical and psychological harm imposed by DV could, therefore, infringe this right. Such harm could also interfere with the right to family life if it hampers a mother’s capability in caring for her children. The positive obligation compels the state to protect a person’s Article 8 rights and the state will breach their obligations if they do not intervene. An occupation order is one measure that is taken in order to protect the person from DV and is a measure that makes the state compliant with the above rights. An occupation order may remove the abuser from the dwelling house, which is usually the family home, or exclude him from an area of home and gives the victim the right to enter or remain. It is often the only way of supporting the non-molestation order and giving the applicant effective protection. There are two processes by which an occupation order can be obtained by an applicant against a person to whom she is associated in relation to a dwelling house that was, is or intended to be the home of the applicant and the person with whom she is associated. The appropriate process depends upon whether the applicant is one that is entitled or non-entitled. An entitled applicant, set out in section 30 of the Family Law Act 1996 (“FLA”), is a spouse or civil partner with home rights by reason of beneficial estate or interest, contract or statute under section 33(7) the court have a duty to make an order if it appears that the applicant or any child is likely to suffer significant harm if an order is not made, unless it appears that the respondent or any child is likely to suffer as great or greater harm as a consequence of the order being made (‘the balance of harm test’). A person who does not fall within either of the two categories described above can only apply for an occupation order, as a non-entitled applicant, if he or she is the former spouse, cohabitant, or former cohabitant of the person who owns the property. The making of an occupation order may, however, infringe the perpetrator’s rights to his home given that it is the place in which he is violent to others. This is clearly linked to the right to respect for the home, under article 8. The definition of ‘home’, under article 8, is an establishment to which the person has, namely, ‘sufficient and continuing links’. Of relevance will also be other factual circumstances. It could, therefore, be argued that DV belongs in the private sphere as state action may deprive him of his home. Justifications, however, can be found in paragraph 2 of article 8. Non-compliance with article 8 can be justified on the grounds of public safety, prevention of disorder or crime, protection of health or morals or protection of rights and freedoms of others. Occupation orders can, therefore, be justified as it protects the rights of the applicant or a child. Departing from the right to private life suggests that a view regarding DV as a private matter is archaic and no longer reflects modern law given that the breach can be justified in order to protect the applicant or child. It is important to note, however, that, in order to prevent unjustified infringements of the perpetrators rights, the qualifications for an occupation order are hard to satisfy. The threshold for the required ‘significant harm’ is particularly high, given the fact that an occupation order would remove the perpetrator from his home. The conduct has to be sufficiently severe to justify such an order. Part 3: Discrimination Against Women As stated in the Home Office’s paper, Living Without Fear, one in four women experience DV at some point in their lives. The state, therefore, has a responsibility to take action against DV in order to prevent discrimination against women. Article 14 of the ECHR, prohibiting discrimination, imposes state responsibility in relation to DV. DV is a public matter as a failure to respond to it is considered discrimination against women, given that inadequate legal response disproportionately affects women as they are far more likely to be victims of DV. The notion that DV is a public matter is reinforced, on the supranational, by the UK’s obligations toward the EU, which place additional responsibilities upon the state. Declaration 19, accompanying the Treaty of Lisbon, states that in its effort to eliminate inequalities between men and women, the EU will combat DV. It states also that Member States should take necessary measures to punish such criminal acts and to protect and support victims. The UK, as a EU Member State, is obliged to act against DV, under the Lisbon Treaty, in the forms of criminal law, support and protection. The UK, similarly, has obligations under international agreements under articles 2 and 5 of the United Nations’ Convention on the Elimination of All Forms of Violence Against Women (“CEDAW”). Article 2 places an obligation on the state to embody the principle of sex equality through law and other appropriate means. They must do so to give practical realisation to this principle; to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting discrimination against women; to establish legal protection of the rights of women on an equal basis with men and effective protection against discrimination and to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise. Article 5 places an obligation on the parties to modify social and cultural patterns concerning gender roles, with the view of eliminating the idea of inferiority and superiority between sexes. This includes introducing legislative protection against DV. The importance of introducing legislative protection that aims to removes power relations cannot be understated. It sends an unequivocal message of condemnation inside and outside the home that illustrates DV as a public matter. Part 4: Housing Rights Looking beyond the HRA, domestic violence continues to be considered a public matter. There is a duty, under the Housing Act 1996, that is placed upon local authorities to house a person who is in ‘priority need’, and not intentionally homeless. A person is ‘homeless’ if she has no available accommodation in the UK or elsewhere. The accommodation must be available for her or any other person reasonably expected to live with her. She cannot be reasonably expected to continue to occupy accommodation where she, a residing family member or any other person who might be reasonably expected to reside with her is victim of DV. They, therefore, will be considered homeless. A victim of DV will be considered as a priority need under section 189(1) Housing Act 1996. This requires public funding and resources and therefore is no longer a private matter as the State is assuming the responsibility of protecting victims by providing them with the means of escaping the violence. Part 5: Maximising State Resources ‘Battering’ causes public problems as it increases NHS costs, uses police time and lowers labour productivity as victims take time off work.  It is thought that DV costs the economy £5.8 billion per year once these three issues are taken into account. Additionally, half of the women seeking help for mental health problems are victims of DV. This, therefore, shows that DV has a significant impact on the public purse and state resources. It, then, becomes the responsibility of the state to manage its resources. It is required, therefore, to provide protection towards victims of DV in order to limit the impact that it has on State resources. The home has clearly become a dangerous place, especially for women and children, and so is not exempt from state intervention. Conclusion Given the UK’s obligations under the ECHR, EU and CEDAW and general state responsibilities, it is clear that DV is a public matter. It has become a public matter because the state is obliged to act against DV and to provide support and protection to victims. Domestic violence never stays a private matter as it has a detrimental affect on the wider public. It affects the victim’s happiness and capabilities to participate in the outside world, forcing the victim to live in fear and intimidation. It can also affect the future of children involved or affected by DV. The obligations placed upon the state not only make DV a public matter but also ensure that domestic law protects victims. This highlights the importance of state responsibilities and why DV can no longer be considered a private matter that hides behind closed doors. The state must open such doors and protect its citizens from violence and abuse. Bibliography  Sched. 1 (9); Defines domestic violence ‘as any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.’  In para 28, Baroness Hale’s leading judgement stated that domestic violence ‘includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to a risk of violence’; The case saw Ms Yemshaw who was married and had two children, aged 6 and 8 months, and was fearful of her husband. He had never been physically violent but had emotionally, financially and psychologically abused her. The purpose was to find out whether it was unreasonable, via domestic violence, not to rehouse them under the Housing Act 1996  S62(3) (a) Family Law Act 1996  S62(3)(aa) Family Law Act 1996; including same-sex couples who are living as husband and wife.  S62(3) (b) Family Law Act 1996  S62(3)(c) Family Law Act 1996  S62(3)(d) Family Law Act 1996; ‘relative’ is defined in section 63(1) as meaning: (a) the father, mother, stepfather, stepmother, son , daughter, stepson, stepdaughter, grandmother, grandfather, grandson, granddaughter of that person or that person’s spouse or former spouse. (b) the brother, sister, uncle, aunt, niece or nephew (whether of full or half blood or by affinity) of that person or the their spouse or former spouse.  S62(3)(e) Family Law Act 1996; for an agreement of marriage, section 41(1) requires evidence in writing although subsection (2) provides the gift of an engagement ring or a ceremony in the presence of one or more witnesses, may be evidence.  S62(3)(ea) Family Law Act 1996;  See Schneider, E. (1994), The Violence of Privacy, in Fineman, M. and Myktiuk, R. (eds) Public Nature of Private Violence, London: Routledge  O’Donovan, K. (1993), Family Law Matters, London:Pluto, p.107  Herring, J. (2013), Family Law, Pearson Education Limited (6th Edn), p.291  Cabinet Office, Living Without Fear, (The Stationery Office, London, 1999), p4  Cited in Doggett, M. (1992), Marriage, Wife-Beating, and the Law in Victorian England, London: Weildenfeld & Nickelson;  R v R  UKHL 12;  Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5  See “Rights Brought Home” [CM 3782]  http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/47/4705 .htm [Accessed on 30/01/14]  Opuz v Turkey (Application no. 33401/02);  Z v United Kingdom  2 FCR 246, para 73;  A v United Kingdom  3 FCR 597, para 24;  Z v United Kingdom  2 FCR 246, para 73;  See A v United Kingdom (Human Rights: Punishment of Child)  2 FLR 959;  E v United Kingdom (2003) 36 EHRR 31;  Ireland v United Kingdom (1978) 2 EHRR 25 at ;  R (on the application of B) v Responsible Medical Officer, Broadmoor Hospital  EWCA (Admin) 1936 at   Ireland v United Kingdom (1978) 2 EHRR 25;  Edwards, S (1996), Sex and Gender in the Legal Process, London: Blackstone, ch. 6  Price v United Kingdom (1978), no. 33394/96 (1988) 55 D&R 1988, paras 24-30;  Opuz v Turkey (Application no. 33401/02);  Choudhry, S. and Herring, J. (2006), Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention, Public Law 752;  Costello-Roberts v United Kingdom (1995) 19 EHRR 1 1120;  A v United Kingdom  3 FCR 597 para 20;  See Osman v United Kingdom  EHRR 101;  MC v Bulgaria (2005) 40 EHRR 20;  See Choudhry, S. and Herring J. (2006), Righting Domestic Violence, IJLP&F 20 (95), p7 & 8  Ibid, p2;  The offences include common assault, assault occasioning actual bodily harm, wounding and causing grievous bodily harm and wounding and inflicting grievous bodily harm;  S1 Protection of Harassment Act 1997;  S4 Protection of Harassment Act 1997;  s.42A FLA;  The meaning of molesting has been discussed at length and limitations do not allow for discussion. However, C v C states that a high level of harassment is required;  S42(1)(a) Family Law Act 1996; An associated person is as described above;  S62(2) Family Law Act 1996;  See XYZ v UK  2 FLR 892;  Lebbink v Netherlands (Application no. 45582/99) 1 June 2004;  Choudhry, S. and Herring, J. (2006), Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention, Public Law 752;  Eriksson v Sweden (1990) 12 EHRR 183 at   Kosmopoulou v Greece (Application no. 60457/00) 5 February 2004  Anfrijeva v Southwark LBC  3 FCR 673  Ibid  s33(3)(b) Family Law Act 1996  s33(3)Family Law Act 1996  s33(1)(b)(I and ii) Family Law Act 1996;  S30(2) Family Law Act 1996;  The court must first ask itself what will happen if the court makes no order. The court must consider whether applicant or relevant child will suffer significant harm attributable to the conduct of the respondent. If the answer is ‘no’ then the test is not satisfied. If the answer is ‘yes’ then the court must consider whether the respondent or any relevant child suffer significant harm if the court does not make an order. If the answer to that question is ‘no’ then the court must make an occupation order. If the harm the applicant or child will suffer is greater than that which the respondent will suffer then an order must be made. Harm must be attributable to the conduct of the respondent. Harm is defined in Section 63(1) to mean ill-treatment or the impairment of health (and in relation to a child impairment of development).  There is much more detail and relevant case law that could be discussed. It, however, is not the key focus of this paper.;  Choudhry, S. and Herring, J. (2006), Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention, Public Law 752;  Gillow v United Kingdom (1986) 11 EHRR 335;  Buckley v United Kingdom (1996) 23 EHRR 101;  Herring, J. (2013), Family Law, Pearson Education Limited (6th Edn);  Cabinet Office, Living Without Fear, (The Stationery Office, London, 1999), p4  Opuz v Turkey (Application no. 33401/02)  See Lamont, R. (2013), Beating Domestic Violence? Assessing The EU’s Contribution To Tackling Violence Against Women, Common Market Law Review 50: 1787–1808.  On Article 8 of the Treaty on the Functioning of the European Union.  UN Committee on the Elimination of Discrimination Against Women (CEDAW),  Article 2 (a)- (e), UN Committee on the Elimination of Discrimination Against Women (CEDAW),  UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendations No. 12, adopted at the Eleventh Session, 1992 (contained in Document A/47/38), 1992, A/47/38,  S. 175(4) Housing Act 1996; there are other duties that are less relevance to DV;  Herring, J. (2013), Family Law, Pearson Education Limited (6th Edn), p.320;  S177(1)(a) & (b) Housing Act 1996  Bond v Leicester City Council  1 FCR 566;  R v Kensington and Chelsea LBC, ex parte Kihara (1996) 29 HLR 147;  Herring, J. (2013), Family Law, Pearson Education Limited (6th Edn), p.330  Walby, S. (2004), The Cost of Domestic Violence, London: Home Office;  Home Office (2003a), Safety and Justice, London: Home Office, p.10;  Diduck, A. and Kaganas, F. (2012), Family Law, Gender and the State: Text, Cases and Materials, Hart Publishing (3rd Edn)
Revenge Porn: The Case for Reform
This article was written for Queen Mary Legal Advice Centre's Blog. 1. Introduction The uploading of intimate still or moving photography of former sexual partners, an act commonly referred to as ‘revenge porn’, is becoming an ever-increasing problem. Official statistics are yet to be released but, according to eight British police forces, there have been 149 allegations of revenge pornography related crimes in the last two-and-a-half years. Few of which have led to convictions. Victims, across numerous jurisdictions, include high-profile celebrities such as Jennifer Lawrence and Kelly Brook, whist many more non-celebrities are finding their intimate photography online, hosted by dedicated sites such as www.myex.com. Such sites also make it difficult to have the images removed and this allows the humiliation to continue. Publishing such images has a negative impact upon the victim’s ‘well-being, career and standing within the community [whilst] affect[ing] future relationships and naturally attracts criticism of the victim rather than the perpetrator.’ It is also used to ‘out’ those who opt to conceal their sexuality, causing humiliation and distress. This also attracts criticism of the victim, especially given society’s homophobia. This article will identify, and provide an analysis of, the current law governing ‘revenge porn’ and make comment on the proposed introduction of a specific criminal offence for uploading intimate photography of another without consent. It will also make suggestions as to how the issue of proving consent can be solved whilst also dealing with the problem of anonymity. It will also argue that the criminal law should also make website administrators criminally liable. 2. Internet Jurisdiction A discussion of internet jurisdiction is, however, necessary, as a preliminary issue, given that boundaries do not exist in the worldwide web. Websites can be accessed in many different countries, creating complexities when problems arise. Internet users can access information from various jurisdictions without knowing the exact source. Any activity on the internet, therefore, if illegal may attract legal action in numerous jurisdictions where either the user resides, the server hosting the material is located and the victim lives. The ‘sovereign state’ retains the power to use its domestic law in cases involving its legal subjects, especially its criminal law, unless otherwise agreed by way of international convention. Conflict between states may occur when numerous states asserts jurisdiction over a particular criminal act. States, in such instances, may agree on mutual assistance. States can, if an agreement between states cannot be reached, submit a case to the International Court in The Hague. This is, however, unlikely. The United Kingdom, as a result, can enact domestic laws to deal with ‘revenge porn’. 3. The Civil Remedies Victims, in the United Kingdom, can find redress in with a civil claim and in the criminal justice system. A civil action in respect of private information can be made when intimate photography is uploaded onto the internet. This is because the action is established when a person is given information that is ‘fairly and reasonably’ regarded as confidential or private. An action in respect of private information is very much established in line with Article 8 of the European Convention of Human Rights, the right to a private and family life, which is accessed in the UK through the Human Rights Act 1998. The basic understanding of ‘private life’ is that what occurs in the home. Article 8 does, however, have two separate but related fundamental values. The first, protecting the home and personal communication from official snooping, interference and entry without good reason and personal space in all communication and life. The second relates to the physical and psychological private space within which individuals can develop and relate to other around them. ‘Revenge porn’ is likely to constitute the autonomy arm of Article 8 as photography taken without consent will violate the right to private life. This is particularly probable if the person publishing the revenge porn knew or ought to have known that, in light of all the circumstances of the case, there was a reasonable expectation, by the victim, that the images would be kept confidential and private. There is such an expectation that sexually explicit images shared with a partner will remain private and confidential rather than publically available and will not be "known by anyone other than the participants" There is also a significant duty of confidentially between intimate couples. ‘Revenge porn’ violates this duty of confidentiality. Even on the rare occasion that a public interest defence could be used, the ‘gory details’ will go beyond the boundaries of the defence. There is also a civil claim for copyright infringement as the copyright of such images is owned by the victim. The claim can be brought against legal entities or person publishing or sharing images owned by others. This can also lead to criminal sanctions when another publishes such images for profit. There are a number of difficulties with making a civil claim, according to Mitchell. The first is the fact that the claimant is required to pay the legal costs with the hope that they will be refunded once she wins. This is not, however, guaranteed and, therefore, a big financial risk. Many victims, furthermore, would not have the financial resources to bring a claim. There may also be an impossible burden on the defendant to pay the damages ordered by the court. Damages, secondly, cannot be truly quantified to right the humiliation and suffering caused by the publication of such images. In regards to a claim in copyright infringement, there is also the problem of identifying the person that submitted the photography and, therefore, it can be difficult to bring a claim against that person given that the publisher is often afforded anonymity. 4. The Existing Criminal Law The criminal law, therefore, plays an important role in protecting people from such behaviour. ‘"The purpose of the Criminal Justice System … is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent." Publishing revenge porn is also a crime. The Crown Prosecution Service, in light of recent cases and subsequent calls for legal reform, has published new guidance as to which offences the perpetrator should be charged. Plans to create a new criminal offence, with a maximum punishment of 2 years, have also been revealed. The Crown Prosecution Service’s new approach of charging under sections 4 and 62 of the Sexual Offences Act 2003, where intimate photography is used to coerce the former partner into continuing sexual relations, will have limited effect. The former will be engaged in successful attempts and the latter in failed efforts. Section 4 protects against a person from having to engage in sexual activity without consent. Section 62, on the other hand, prohibits committing an offence with intent to commit a sexual offence. This new approach, however, is limited to situations where the perpetrator uses the photography to continue sexual activity with the victim. This represents a small number of cases as using the photography to degrade and humiliate is more common. Law reform, therefore, is a more appropriate means of deterrence. The statute book already has provisions that protect against such behaviour but they are outdated and many precede this trend and, indeed, common use of the internet. Section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 are commonly used provisions that prohibit communications which are grossly offensive, indecent, obscene or false. The former requires intention to cause distress or anxiety to the recipient but the communication does not have to be received. This Act was evidently enacted prior to popular use of the internet and is not designed for protecting against intimate photography uploaded by former partners. It also holds a relatively light punishment as those found guilty will be to imprisonment for a term not exceeding six months or to a fine or both. Section 127 of the Communications Act 2003 acknowledges the use of the internet and social media. It protects against the ‘sending or causing, through a "public electronic communications network" a message or other matter that is "grossly offensive" or of an "indecent, obscene or menacing character"’. It is also an offence, under this provision, to send or cause to be sent a false message "for the purpose of causing annoyance, inconvenience or needless anxiety to another". This explicitly includes messages sent on Twitter. This too, however, is slightly detached from revenge pornography as it is not a message. It is the publication of private and intimate photography on the internet, which is largely a public place, to hurt, humiliate and get revenge against former sexual partners. Relevant offences of harassment and stalking, under the Protection from Harassment Act 1997, are also off the mark. Harassment is committed when repeated attempts are made to impose unwelcome communications or contact upon the victim in a way ‘that could be expected to cause distress or fear in any reasonable person.’ Stalking, on the other hand, includes attempting to contact or successfully contacting, a person by any means. These offences demand a ‘course of conduct’ requiring conduct on at least two occasions as part of a sequence of events. Communication sent via social media is just one manifestation of a range of unwanted behaviour that is included in a ‘course of conduct’. This is problematic where the uploading of intimate photography is the only act as it is not a sufficient ‘course of conduct’ to amount to harassment or stalking. It is too unlikely to be considered ‘contact’ when using its natural meaning. 5. The Criminal Law Going Forward With outdated laws and new guidance that only covers a small number of cases, a new criminal offence, designed to protect against revenge pornography, is required to combat the issue and make a stand against its perpetrators. The current law is incapable of tackling the problem without such reform. Arguments could be made for expansion of the current laws. This would, however, enjoy limited effect, as such provisions were not designed to prohibit such behaviour. The Communications Acts were designed for communications rather than the uploading of intimate behaviour. The Malicious Communications Act makes it an offence to send a letter, electronic communication or article of any description conveying an indecent or grossly offensive, a threat or false information. ‘Revenge porn’ does not fit naturally into the remit of the Act, even with the amendment to include electronic communication as it involves images. This could be considered as communication but this would cause the law to become technical as ‘communication’ would attain an unnatural meaning. It does fit more comfortably with ‘other matter that is grossly offensive or of an indecent, obscene or menacing character’ covered by the section 127 of the Communications Act 2003. This, however, does not naturally prohibit this new phenomenon as it refers to public electronic communications network. The uploading of intimate photography does not seem to fit into the natural meaning of ‘public electronic communications network’. There is a risk of confusion when the law becomes too technical and words attain specialist meaning. It is also difficult to establish a ‘course of conduct’ required for the offences of harassment and stalking, making it impractical to extend the offences. The law needs to specifically state that the uploading of intimate photography without consent is illegal and will not be tolerated. This is, however, not for the common law to find a solution through case judgement. Parliament needs to place an offence in the statute book that governs this unfortunate phenomenon. The amended Criminal Justice and Courts Bill is a step forward in achieving this aim as it makes a criminal offence ‘for a person to disclose a private sexual photograph or film […] without the consent of an individual who appears in the photograph or film, and with the intention of causing that individual distress.’ The penalty for this offence exceeds those under the Communications Acts as a person guilty of the new offence faces imprisonment for up to 2 years. Significant obstacles remain, however, that need to be overcome. The first is the difficulty in proving that the images were uploaded without consent as evidential hitches are foreseen, especially if the burden of proof is placed on the accuser. This would require the victim to prove that she did not provide consent. This could be achieved by looking at previous correspondences and text that accompanies the images. To avoid the evidential difficulties that arise with offences that hinge on consent, such as rape and other sexual offences, it is suggested that the burden of proof is split into two parts. It is proposed that the victim would bear the burden of proving that the images were provided by the defendant but the defendant ought to have to prove that the uploading was consensual. This article is aware that this would be a different approach to most criminal offences but it has sufficient safeguards in place to protect against false allegations in that the victim still has to prove that it was the defendant provided the Images. This, in turn, leads into the second problem that is found in the fact that people who upload the said images are often provided with anonymity. This makes it difficult to locate the source, which is required in order to commence criminal proceedings. An obligation, in order to solve this problem, ought to be placed on the website administrators to provide information as to whom provided the images. Such information should include a full name, an email address and an (IP) Internet Protocol address: false information can be provided for the name and email address but the IP address remains true. Failure to comply should be met with a charge of aiding and abetting in the new offence, under section 8 of the Accessories and Abettors Act 1861, which, as amended, states that: Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender. This approach is necessary to truly suppress this despicable behaviour. Allowing such sites, that are dedicated to ‘revenge porn’, to continue to operate without imposing such responsibilities allow such spite and humiliation to continue. Such sites should also be held accountable for publishing the images despite knowing what they contain and how they were obtained. The owners of such websites ought to be held criminally responsible for the publication of such photography. The Criminal Justice and Courts Bill is an improvement to the current situation but it is insufficient as only a person disclosing such photography is liable for the new offence. Any website that knowingly publishes revenge porn should also be liable if the problem is to be seriously tackled. It is suggested that there be another offence as follows: The owner of any website that knowingly or with reasonable suspicion publishes a private sexual photograph or film, without the consent of the individuals who appears in the photograph or film, will be liable for an indictable offence with a maximum sentence of 2 years. There are reasonable concerns when making operators liable. Analogy is made to the law of defamation in addressing such concerns and adopting this new approach. The law is sceptical in regards to making websites and search engines liable for defamatory statements. A claim in defamation cannot be ‘brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.’ It is a defence, under section 5 of the Defamation Act 2013, ‘for the operator to show that it was not the operator who posted the statement on the website [… unless] (a) it was not possible for the claimant to identify the person who posted the statement (b )the claimant gave the operator a notice of complaint in relation to the statement, and (c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.’ It is argued that the law should not adopt such a soft approach in relation to the criminalisation of ‘revenge porn’. Websites are often dedicated to publishing such photography and should be punished accordingly. It is submitted that the publication of ‘revenge porn’ has a greater severity than defamatory statements as ‘revenge porn’ is posted in spite and infringes upon the most private lives of the victims. Websites need to be held accountable. 6. Conclusion It is hoped that the Criminal Justice and Courts Bill will end the confusion caused by the application of outdated laws and will serve as an added deterrence against ‘revenge porn’ and protect the privacy of the individual. It is feared, however, that it may not go far enough. Making the providers of such images is a step forward and will deter people from posting images but they are often afforded anonymity, making the individual from being identified and preventing justice from being served. Issues of proving a lack of consent are also foreseen but placing the burden of proof onto the defendant can solve them. Safeguards would be in place by giving the victim the burden of proving that the defendant provided the images. Websites should also be held liable as many knowingly publish the said images. It is proposed that a criminal offence be created to impose liability. Websites should also have an obligation to provide information regarding to whom provided the images. Only by taking this extra step can the criminal law truly stamp out this disgusting behaviour that abuses the trust the provider was given, exploits an individual’s private life once relationships end and is used to ‘out’ those who are not open about their sexuality. Until robust action is taken, individuals are at risk of severe humiliation and distress. This affects the ‘well-being, career and standing within the community [whilst] affect[ing] future relationships’. It also has a detrimental effect on the professional standing of that person. The law cannot continue to allow such victimisation of individuals. 7. Bibliography  http://www.theguardian.com/law/2014/oct/07/revenge-porn-14-year-sentence-cps-guidelines;  Ibid;  Mitchell, J (2014), ‘Censorship in cyberspace: closing the net on "revenge porn"’ Ent. L.R. 283, p10;  Dwivedi, S. ‘Jurisdictional issues in Cyber Crimes’ [accessed at https://www.academia.edu/3700793/Jurisdictional_Issues_in_Cyber_Crime on 9th November 2014)  Council of Europe (2009), ‘Cybercrime and Internet Jurisdiction’ [accessed at http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/T-CY/2079_rep_Internet_Jurisdiction_rik1a%20_Mar09.pdf on 9th November 2014], p4;  Ibid,p6  ibid;  ibid;  Attorney-General v Guardian Newspapers Ltd (No.2)  1 AC 109 at 281 per Lord Goff  Campbell v Mirror Group Newspapers Ltd  UKHL 22 at  per Lord Nicholls;  R (on the application of Countryside Alliance and others and others (Appellants)) v Her Majesty’s Attorney General and another (Respondents)  UKHL 52  Ibid at  per Baroness Hale;  Ibid;  Ibid;  Douglas v Hello No.1  2 WLR 992;  Murray v Big Pictures (UK) Ltd  1 FLR 704 at ;  Campbell (Appellant) v. MGN Limited (Respondents).  UKHL 22  A v B & C  EWCA Civ 337 at  per Lord Woolf C.J;  Ibid;  Mitchell, J(2014), p4  Sections 1 & 9 of the Copyright, Designs and Patents Act 1988  Ibid, s16 and s18;  Ibid, s107;  Mitchell (2014),  Centre for Crime and Justice Studies at www.crimeandjustice.org.uk/resources/purpose-criminal-justice-system [Accessed 9th November 2014].  Crown Prosecution Service (2014), ‘Guidelines on prosecuting cases involving communications sent via social media’ [accessed at http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/ on 08/10/14);  http://www.bbc.co.uk/news/29596583  CPS (2014), para 45;  See Chambers v DPP  EWHC 2157 (Admin);  CPS (2014), para 31;  Ibid;  Chambers v DPP  EWHC 2157 (Admin);  CPS (2014), para 20;  Section 1 Malicious Communications Act 1988; it is also an offence to send information the sender believes to be false;  Clause 33 of the Criminal Justice and Courts Bill;  Section 10 of the Defamation Act 2013;
Reasonable Adjustments Explained
This piece was written for Being Disabled in a Normal Society. Due to formatting issues, this article does not have citation, but these can be found on the original piece. Please visit their website www.beingdisabledinanormalsociety.co.uk . This is an ongoing project. 1. Introduction The duty to provide reasonable adjustments originates in two concepts. Firstly, the social model of disability has played a key role in the development of disability rights and is central to reasonable adjustments. The social model defines disability in terms of being unnecessarily isolated and excluded from full participation in society by its barriers. It, therefore, places less emphasis on the impairments and more on the obstacles found in society. Reasonable adjustment responds to this definition by aiming to remove such barriers allowing for equal participation in society. Secondly, this is achieved by advancement of asymmetrical substantive equality, giving preferential treatment to disabled people to limit the disadvantage they face. It is recognised that formal equality is not sufficient. Formal equality is based on the liberal principle of treating everyone alike regardless of his or her differences. Equal treatment does not take the disadvantage of having impairments into account, which has the unintended effect of giving the non-disabled person a greater opportunity to fulfil her potential. In some circumstances, disabled people may need preferential treatment as a platform to achieving equality. This concept has been clearly explained by Baroness Hale in the following way: ‘Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the differences between the genders are generally regarded as irrelevant. The [Disability Discrimination Act 1995], however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment.’ The duty to make reasonable adjustments in UK law is now contained in the Equality Act 2010. The Act, that is comprehensive and unitary across nine protected characteristics, harmonises and tidies up the previous duties contained in pieces of equality legislation. Most changes regarding disability were made in the non-employment context . The Disability Discrimination Act 1995 introduced Reasonable Adjustments into United Kingdom law. Reasonable adjustments also appear in many other jurisdictions albeit with various titles, the most common being ‘reasonable accommodations’. Reasonable adjustments in UK law place a duty on employers, services and public functions, premises, education providers and associations to recognise that people with particular characteristics are disadvantaged by conventional requirements or systems. Society is designed for non-disabled people and so fails to meet additional needs. The disadvantage comes as an inherent characteristic of which renders a person incapable of performing a function or job in the usual way, creating barriers that prevent the person from benefitting from an opportunity available to those without their characteristic. The duty requires reasonable steps to be taken to remove the disadvantage by treating the disadvantaged differently to others. The influence of substantive equality, therefore, becomes evident. The duty to provide reasonable adjustments is also found at the supranational and international levels. European Union member states have been required to introduce reasonable accommodations in the contexts of employment and occupation into their legal systems by the Employment Equality Directive 2000 since 2006. The UK already had such a provision and was influential in the spread of this approach across the European Union. The notion of reasonable adjustments can also implicitly be found throughout the Council of Europe’s European Convention of Human Rights (ECHR) and revised European Social Charter (ESC). Article 14 states that all ECHR rights must be enjoyed by all, free from discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Although disability is not expressly identified, it is covered by ‘other status’. For example, a violation of Article 3 ECHR, the prohibition of torture and inhuman or degrading treatment or punishment, was found for failing to make accommodations for the needs of a disabled prisoner as it lead to degrading treatment. The revised ESC places emphasis on integrating and mainstreaming disabled people, with provisions that resemble the concepts of reasonable accommodation. Internationally, the duty to provide reasonable accommodations is contained in Article 5 (2) of the United Nations Convention on the Rights Persons with Disabilities. The recognition of the need to make accommodations at the national, supranational and international level illustrates the need for such measures and their importance. It is, however, argued that greater access and health issues and a fear of facing disadvantages when complaining, physical barriers to courts, indifferent judges and unsympathetic institutions make accessing these rights more difficult. This guide is written with the aim of giving you a comprehensive understanding of the law on reasonable adjustments in the UK. 2. Reasonable Adjustments in the UK The duty to provide reasonable adjustments ‘applies to situations in which a disabled person is put at a substantial disadvantage in comparison to non-disabled persons by a provision, criteria or practice, a physical feature, or the absence of an auxiliary aid’. There are two types of reasonable adjustments: reactive and anticipatory . 2a. Reactive Duty In the context of employment and let premises, the duty is reactive in nature as it is only triggered when the disabled person demonstrates a need for assistance. There is no duty to anticipate difficulties and possible barriers before receiving a request for reasonable adjustments by an interested disabled person. The first requirement of the reactive duty is that there must be an ‘interested disabled person’. For determining who should be offered employment, it is defined as ‘any disabled person who is, or has notified the employer that he may be, an applicant for that employment’. It is an applicant or employee after the application as been made. Relevant disabled persons in the context of associations are slightly different. In this context, relevant disabled persons are those who are, or are seeking to become or might wish to become, members; are associates; or are, or are likely to become, guests. There will be no duty if the person fails to meet this requirement. Secondly, the disabled person concerned must be placed at a ‘substantial disadvantage’ in comparison to a non-disabled person . This regards the particular interested disabled person rather than disabled people in general . To be ‘substantial’, the disadvantage must be ‘more than minor or trivial’ . There is confusion as what is termed the role of the comparator. This is the person in which the substantial disadvantage is compared. It is thought to be a non-disabled potential applicant, applicant or employee. This, however, does not cover situations where the employer is compelled to place the employee in a different role by the reasonable adjustment duty. In employment, sick pay is an area of difficulty in regards to ‘substantial disadvantage’ concerning those already employed. Granting more sick pay to a disabled person as a means of making a reasonable adjustment will only happen in rare cases, as the aim is to recognise the dignity of the disabled person and to make modifications that allow them to play a full part in the workplace. It is not to treat them as objects of charity and to provide a ‘positive disincentive to return to work’. Nottinghamshire County Council v Meikle is one such case, where a disabled employee’s sick pay was reduced after she was absent for one hundred days due to her employer’s failure to provide her with appropriate job-related adjustments. As it was the employer’s fault that she was absent, the court found in her favour. When concerning them, services and public functions can also adopt a reasonable alternative method of providing the service or exercising the function. ‘Being placed at a substantial disadvantage in relation to the exercise of a function means (a) if a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefit, or (b) if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment.’ In order to trigger the reasonable adjustment duty, the cause of the substantial disadvantage must be a practice/provision/criterion applied by A, a physical feature of premises occupied by A or the failure to provide an auxiliary aid. For example, the duty is not triggered if somebody is made redundant for reasons unrelated to one’s disability. Similarly, a prospective employer is not required to change job specifications where the disabled person lacks the required degree of expertise. Where it is feared that a person may be medically unfit for the job, possible adjustments ought to be considered. In regards to associations, Schedule 15 of the Equality Act 2010 states ‘this requirement applies in relation to access to a benefit, facility or service; members or associates retaining their rights, or avoiding having them varied, or being admitted to membership or invited as a guest'. A physical feature is (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality. It includes parking and toileting facilities and so does not have to be linked with job performance. To avoid substantial disadvantage A can (a) remove the physical feature in question, (b) alter it, or (c) provide a reasonable means of avoiding it. The requirement for associations set out in schedule 15 applies here too. The Act states that where the provision, criterion or practice, or the need for an auxiliary aid or service, relates to the provision of information, the steps, which it is reasonable to take, include steps to ensure that the information is provided in an accessible format. Thirdly, A is only expected to make reasonable adjustments if she knew or ought to have known that the applicant or employee would be at a substantial disadvantage as a result of their provisions, criteria, practices or premises. The duty will not, therefore, arise if A does not know or does not have the means of knowing that the person is disabled. If a disabled person states that they are not put at a disadvantage by their disability, the duty will not be triggered. For example, a claim made by a person with an artificial arm failed because he said that he was not having difficulties connected with his impairment when asked. Similarly, in Ridout v TC Group, the argument failed despite the applicant making the employer aware of her medically controlled photosensitive epilepsy prior to the interview and indicating that the bright, florescent lighting, during the interview, may place her at a substantial disadvantage. The employee took this as an explanation as to why she was carrying sunglasses and made no inquiries as to the implications of the condition. This ruling should be treated with suspicion as it appears as if the employer ought to have known that the lighting would have placed her at a substantial disadvantage by simply asking the applicant what could be done to limit the disadvantage. This would nor have been unfairly burdensome and may well have been dealt with easily. It too undermines the purpose of the legislation. An assessment to explore the needs and circumstances of the disabled person is ‘a necessary pre-condition’ to the fulfillment of the duty to provide reasonable adjustment. Failure to assess would not constitute a breach but would jeopardise the legal position of the employer as it ‘may well result in a respondent failing to make adjustments which he ought to make’. Fourthly, the adjustment must be reasonable, an objective concept based on the determined facts and circumstances rather than what a particular employer subjectively believed reasonable. If a possible adjustment is suggested or discovered, the burden to prove its unreasonableness passes to the defendant. There are a number of factors that need to be considered when assessing the reasonableness of the adjustment and the DDA offered much guidance as to the factors. Each factor is taken into consideration as the adjustment is judged in light of all the factors. The first is the extent to which the adjustment would remove the substantial disadvantage. Unlike the other factors, it is solely focused on the impact on the disabled person. The fact that it may lead to preferential treatment towards the disabled person is irrelevant. The second factor is practicality. This is linked to financial expense but is not wholly part of it. One example is the length of time it may take to alter an entrance may go beyond that during which the employer can conveniently wait for the employee’s services. When considering the financial expense of an adjustment, the expenditure that would otherwise be undertaken when employing any new person is considered. The Access to Work scheme plays a significant role in the reasonableness of an adjustment due to the fact that the employer’s financial implications can be supported by public money. As a result, what was an unreasonable adjustment is now a viable one, allowing disabled people to work and so reducing the benefits that they may claim if out of wor . In regards to who bears the cost, it will never be the disabled person regardless of wealth. In addition to the financial cost, disruption to the employer’s business is another burden that is considered. There is a balance of equality and private and family life in relation to those who work in private homes. Here, the court will consider the need for reasonable adjustments in balance with the impact on the lives of the people who live in the private homes. In regards to reasonable alterations to physical features of premises there are two things to consider: the basic building regulations and the legal obstacles to making alterations. When a new building is constructed or an existing building is materially altered, regulations set basic access requirements. Additional adjustments can also be made to remove the disadvantage that would otherwise be experienced by the disabled employee. It is unlikely that it will be reasonable for the employer to make additional adjustments if the premises are compliant with the regulations, which are more rigorous. There are three legally imposed obstacles, which without overcoming, the employer will not be able to make the required physical alterations to carry out the reasonable adjustment duty. The first is that the employee is still required to obtain statutory regulated consent; for example, planning permission. The employer may be able to make interim adjustments until she obtains the necessary consent. The second is that it will always be reasonable for the employee to get the permission of another person if they are legally obliged to do so. Such cases include a charge, mortgage or restrictive covenant. The third, in relation to leases, is that it will be implied from the lease that the employer will be able to apply to the landlord for consent to the carrying out of disability-related physical alterations. The landlord’s unreasonable withdrawal of consent is prohibited but he can attach reasonable conditions to it. The reactive duty to provide reasonable adjustment usually appears in the employment and education context. It is designed to meet the needs of a particular disabled person. This, therefore, requires a disabled person to inform the duty-bearer of their disability and needs. Without this person, there is no duty to provide reasonable adjustment. The anticipatory duty, however, compels the duty-bearer to foresee the needs of broad groups of disabled people. 2b. Anticipatory Duty The anticipatory duty to provide reasonable adjustments relates to services and public functions , education providers and associations. It does not apply in the employment context, although it is argued that adjustments may be made through indirect discrimination. The duty acts differently to reactive duties as duty-bearers are required to anticipate barriers that their operations present and take steps to reduce or remove the obstacles. It, therefore, acts in advance of the appearance of a disabled person. This, however, does not mean that the duty-bearers will not be required to make additional adjustments in reaction to the appearance of a disabled person where necessary. The distinction between reactive and anticipatory duties to provide reasonable adjustments is not clear from the Act itself but is inferred given the use of the phrase ‘disabled persons’ as opposed to the singular ‘a disabled person'. The first requirement of the anticipatory duty to provide reasonable adjustments is ‘disabled persons’ that are at a substantial disadvantage (as described above) when using the service, being involved in the association’s goings on, or the education provider or their use of it would be facilitated by the provision of an auxiliary aid or service. It is, therefore, the on-going responsibility of the duty-bearer to gauge how easily the service can be used by broad groups of disabled people, not individuals. Wheelchair users are an example of such a board group of disabled people. An individual is required, however, to bring a claim in discrimination, as the anticipatory duty is not enforceable in its own right. The argument for such a claim lies with the fact that the person is at a substantial disadvantage due to the duty-bearer’s failure to comply with the duty; firstly, for ‘disabled persons’ and secondly for the individual. In ascertaining a broad group, the judges should ‘rely on their own appraisal of the situation’, taking expert evidence into account where necessary, as opposed to statistics. Anna Lawson welcomes this approach as it reinforces the group aspect of the anticipatory duty and its role in breaking down structural barriers. Lawson praises avoiding complex and expensive collection and analysis of statistics by relying on the judges’ assessment in a particular case. There is also a reactive element to the anticipatory duty where the duty-bearer will be required to respond to the particular needs of one disabled person when they become aware of that person and the specific difficulty faced by the person. This is more likely to occur in the context of education where the relationship is ‘long-lasting and close’. Despite this, there is no requirement of knowledge, with the exception for education providers. This is likely to be due to the fact that there is a closer relationship between the provider and the disabled person and they will be expected to meet more specific needs. This is similar to the requirement of knowledge in the employment context but education providers will also have to create an open, supportive and welcoming atmosphere that entices disabled persons and encourages disclosure of impairments. Reasonableness applies here and is as previously described. It is, however, important to consider that the purpose here is not to ensure some access for disabled persons but to provide the service as closely as the general public would enjoy it. It is not expected that steps be taken that fundamentally alter the nature of the service or A’s profession, trade or business. In relation to education, the code of practice for schools provides a list of factors. It include the need to maintain academic, musical, sporting and other standards; the financial resources available to the responsible body; the cost of taking a particular step; the extent to which it is practicable to take a particular step; the extent to which aids and services will be provided to disabled pupils at the school under Part IV of the Education Act 1996 or Sections 60-65G of the Education (Scotland) Act 1980; health and safety requirements; the interests of other pupils and persons who may be admitted to the school as pupils. The code of practice for post-16 education omits the needs for maintenance of standards. Associations, similarly, will not be required to take steps that alter the nature of the benefit, facility or service concerned or the nature of the association. Those exercising public functions will not be required to take steps that are outside their powers. When considering the reasonableness of physical alterations, education providers are in the same position as employers as described in the reactive duty above. Service providers are exempt from having to make physical alterations if those features comply with the regulations set out in the Disability Discrimination (Providers of Services) (Adjustment of Premises) Regulations 2001 and ten years have lapsed since the installation of the feature or completion of the work. This is due to the fact that the regulations set out the access requirements. They still, however, need to provide a reasonable means of avoiding the feature or provide the service in another way . In relation to third party consent, it is the same as the reactive duty described above. Reasonable adjustment to physical features will not be required of the homeowner where association meetings are held at a member’s home. A defence of material and substantial justification applies to providers of post-16 education who have failed to take reasonable steps. ‘Material’ requires a ‘reasonably strong connection’ between the reasons for the failure to take reasonable steps and the facts of the particular case. The meaning of ‘substantial’ remains ‘more than trivial or minor’. As it is such a low standard, the courts have diminished it and so it is unlikely to be used. There is a specific belief justification defence for service providers, associations and public authorities. In order to satisfy it, they must show that they believed that one or more specified conditions were satisfied and it was reasonable for them to hold that opinion. Two of the specified conditions apply to service providers, public authorities and associations. They state that the alleged discriminator must have believed one of two things. Either that refraining from taking the reasonable steps in order to protect the health or safety of all persons or failing to take reasonable steps because the disabled person is incapable of entering into and enforceable agreement, or of giving informed consent. One other specified condition applies to public authorities that fail to provide reasonable adjustments. It justifies the failure if the public authority can show that it reasonably believed the refusal to provide reasonable adjustments was necessary to protect the rights and freedoms of others. The first of two of its elements is a demonstration of the belief in the existence one or more specified conditions (subjective). The second is a demonstration that the belief was reasonably held. Public authorities have also the objective justification defence to rely on where showing that it was a proportionate means of meeting legitimate aim will justify failing to provide reasonable adjustments. In order to rely on it, it must be demonstrated that there is a pressing policy need supporting the aim that the treatment is designed to achieve and so is legitimate, the authority action is related to achieving that aim and a solution with less detrimental impact on the rights of disabled people could not be found. If all the requirements can be met and a defence cannot be used, the failure to make reasonable adjustment is unlawful discrimination . The anticipatory duty does force duty-bearers to think about broad needs of disabled people in advance of the presence of a disabled individual. It, however, does not meet the particular needs of one disabled person. Criticisms aside, the duty to provide reasonable adjustment does force duty-bearers to consider the needs of disabled people, breaking down many barriers in society.