"Rape is Rape" - Judge Mary Mowat

When reading an article in the Spectator this week, I came across this case.  With my current reading material including 'Everyday Sexism' by Laura Bates, and 'Eve Was Framed' by Helena Kennedy, it all seemed incredibly relevant and completely built on what I have been seeing more and more: there needs to be more clarity in the law regarding rape and sexual assault.

The main vein of the article revolved around the fact that implying that all rape is the same cheapens the incredibly violent or degrading experiences of some women, when comparing with other situations where perhaps the woman consented - but only after consuming a large amount of alcohol. This seems to make sense: not only might it help for courts to take some rape cases more seriously, but it would allow even women who are in the situation of having been plied with alcohol know where their case stands in the eyes of the law.

Basically, the issue of alcohol and consent is always going to plague us.  Alcohol is a drug that lowers inhibitions, and we have to decide whether or not that should act as a mark against the victim (for making themselves vulnerable) or whether it should be a mark against the perpetrator (for taking advantage).  Personally, I'm in the camp that 'no' means 'no', and that it's frankly a little insulting to men in general to argue that men can't help themselves if a woman is looking particularly attractive.  If a woman is drinking (of her own volition) and then says 'yes' - then any later regrets are her fault, not the man's.  If a woman says that she's not interested, but then the man hangs around until she is drunk and then propositions her again, then maybe it's a bit more murky. For me, it hinges on whether the man knows that if she was in her right mind, she would have said no.

There's a reason that such a small proportion of rapes are taken to court, and it's not just because the subject - to many - is taboo.  The system needs clarifying for women to be fully protected by the law - any ambiguity leaves wiggle room for guilty people to be released on a loophole.  For me, I think this could be done to some extent through case law - if a few standout cases are looked at, where the case is a clear example of a scenario, then this could be used as something to gauge the guilt of people in similar situations.  Difficulty arises when different judges have such polarised views - and ideally, I would argue that perhaps a panel of judges might be appropriate - but I don't really know whether that would be feasible.

How should judges be appointed?

If how = on what grounds

If we take this to mean - 'on what grounds should somebody be appointed a judge,' as with any position, it is usually judged best to appoint somebody on merit.  There may be, however, some debate as to what constitutes merit - pointedly, whether it is success in cases, academic repute, or years in service, but regardless; the best candidates should get the job.  However, in recent years, there has been increased debate as to whether the gender or ethnic minority of the judge in question should allow them to gain some weight over other candidates - i.e. judges should be appointed due to experience gained by natural or cultural differences.  Some studies have shown that female judges, for example, are likely to judge in a differing way to their male counterparts in issues of family and children - and this might be seen as favourable, or otherwise.  It should be argued that while having as many varieties of cultures and opinions in the profession might be seen as an expression of society, there needs to be some solidarity within the beliefs of the top judges - magistrates are supposed to follow precedent and not be seen as acting "out of the norm," and this must be seen to carry throughout the profession - with the principle that a case could be brought before any number of judges and reach the same judgement. 

If how = in what way

There is also some argument hinging on who appoints judges and how the system of appointments should be made.  For example, should judges be appointed by a system of government, should this be by election by peers, or should there be some independent commission to complete this task?  In this case, we might immediately reject the idea of the government selecting these judges, after all, the whole idea of a 'separation of powers' entirely relies on an independence of the judiciary from the legislature.  It would be difficult to argue that the system is entirely independent if the top jobs were allocated by the government, and as such, the top lawyers trying to curry favour with the top politicians.  A legal system, indeed, is to hold the legislature - to some extent - to account, and it requires such independence to achieve this.  A free and fair election, to some, might also be seen as preferable; with some degree of transparency.  However, if we look at how society sees politicians, often as corrupt and not to be trusted - it might be seen that this type of system does not guarantee high quality people in the highest positions.  We might even argue that the "common man" is neither interested enough nor educated enough in law to make such a decision - if we take the low turn out at mayoral elections and the AV referendum in 2011 as an example, and even low turnouts at general elections, then we might argue that it would be irresponsible to put such an important decision in the hands of the uninterested commons. 

Conclusion

Therefore, such an important decision should be left in the hands of those who are most directly affected by it: every day, lawyers refer to judgments as precedents in everyday cases, and would therefore have a vested interest in electing competent and effective judges.  Judges elected by their peers would most likely be the most knowledgeable, personable and have the best track record - those who work beside them or have read articles written by them would be the most qualified to judge their merit, and to decide whether they would be best suited to the role.

Community Assets and Blencathra

What are Community Assets, and what does this mean for Blencathra?

Credit for this photo goes to borrowdalehouse.co.uk "Blencathra from Catbells"

Simply put, a community asset is an area of land or a building owned by a community organisation.  This was implemented under the Localism Act in 2011 - community groups or parish councils can recommend "assets" to the community list held by the council.  In this case, because it is already owned by a private individual, this Act gives the community group up to 6 months to raise the money to make a higher bid than the one currently accepted - but by no means does this mean that they will raise the necessary amount of money, nor does it guarantee them the sale.

However, bear in mind that the successful bid this week was said to be "significantly" higher than the alternative bids, and the asking price - the tax that is being paid off by the sale was £9million, and any bid would need to be as close to this as possible in order to be successful - Friends of Blencathra would have to raise a significant amount of money in order to buy the mountain.

To find out more about the Localism Act, click here!

What is Consent?

Definition Round Three!  So, consent, Google dictionary says "Permission for something to happen or agreement to do something."

 Unfortunately, it's not that simple.  There are a whole plethora of complications when it comes to the application of consent, and sometimes although you "actually" consent, you "legally" do not.  The example I'm going to use for this is the example that was used at the Cambridge Open Day in the Law sample lecture.

I have £1, and you need to borrow it from me.  I know that you always play the lottery on a Friday (and in this hypothetical situation, it is Friday) and I also know that you left your wallet at home.  I can gather that you're ashamed that you're playing the lottery with my money, so I'm still happy to give you my pound coin even though you told me that you needed to buy a birthday card for your mum.  I feel that I'm consenting to you using my money to buy the lottery ticket, even though you're currently lying to me.  In fact, by giving you the £1 despite knowing that you're lying, I'm making you a thief - as there was an attempt to mislead me, and I was "cheated" out of my money.

In fact, I'd be doing you more of a favour if I randomly gifted you my money.  The premise of borrowing makes matters even worse.  It would be seen as stealing if you didn't give me that exact pound coin back, as the law doesn't allow for  exchange of similar or equivalent property.  The intrinsic value of the money is superfluous, as I had specific ownership over that exact £1, and the law would expect for me to receive it back. 

This makes sense, if you think about it.  If you were to lend me your car, and I brought back a different car of the same value, you wouldn't be too happy, would you?  (Let's presume this is a particularly unattractive car).  So, for the law to protect your rights over your property, it has to count for the small things as well as the big things.

And even then, when does consent count in the first place?  You might consent to me chopping your arm off for no reason, but that doesn't mean that I'm not going to be prosecuted for it.  There is some area where the law protects us from things that we may have given consent to.  This idea is about a paternalistic government is condemned by those of a liberalist standpoint, as the restriction of freedom should be avoided in all circumstances.  This would mean then, that the condemnation of sado-masochistic activities would be seen as wrong, although by mainly liberalists.

Despite this, consent is still questioned or challenged in court every day.  Yes, the old man with dementia did give "consent" to the blonde money-grabber to empty his bank account - but should that have been allowed to happen?  Consent only matters if it was informed and non-destructive, I can gather - but should the government ever have a right to interfere in your choices, or claim that you were incapable of making them?

Your thoughts please :) 

Law 2013 at Nottingham Uni

A fascinating and incredibly well put together programme of events at Nottingham University!  There were some late nights (lectures until 11.30pm), and some early-ish mornings (6am in order to beat the queue for breakfast), but all in all a fantastic event.  Plus, there was a bonus of a blanket of snow covering the city!

I had a practise interview: it went quite well, forced me to think on my feet - I was asked whether legal professionals should be able to report each other for incompetence.  So, let's consider it: what do they mean by incompetence?  Does it mean that you lose too many cases?  Or does it mean that you come into work ill one day, and say entirely the wrong thing in court?  The main issue with it, I thought, was that beginning a culture of reporting other professionals may have some major negative impacts upon the legal profession.  To a certain extent, any workplace needs to have a foundation of trust for professionals to work with one another, though it can equally be said that any legal professional needs to be competent in order to represent their clients effectively.  Perhaps the best option would not to have barristers and solicitors reporting one another, but for clients to be able to do so if they believe they were not represented in the best possible fashion.  This would mean that the client could make the judgement, and lawyers would not have to watch their back against potentially power-hungry colleagues who want their job.

Beyond the interview, there were many other legal questions that we had to ask ourselves.  We considered euthanasia, lowering the drinking age, and many more specific cases where we had to decide upon sentencing or guilt.  Amongst hilarious lectures from barristers, focussed talks from Solicitors, and an informative insight from a Detective Inspector, we heard a lecture from Ben Wilson, a representative from the Supreme Court, and it showed a whole new line of work that I may consider in the future - I quite like the sound of Lady Justice Woolnough, don't you?