PIP between the social and medical models of disability

Aisling O'Sullivan
Aisling O’Sullivan

 

If we are to look at the controversies over Personal Independence Payment (PIP) in the UK, it is necessary to be alert to the fact that the concept of disability in UK law is not an inevitable occurrence. Rather it is an exercise in political choice between many concepts or models of disability, which during the 20th century fought to dominate the discourse on disability. Carol Thomas explains that in the UK the different models (medical and social) fall broadly into a disciplinary divide between disability studies and medical sociology. Invariably, this choice in UK law has repercussions for how policy and further legal regulation is conceived and thus, it is not an incidental matter.

For example, in the UK Equality Act, the definition of a person with a disability has a number of elements – there must be a physical/mental impairment with long-term substantial effects on the ability to carry out normal day-to-day activities. This definition draws on what Michael Bury refers to as a socio-medical model, which defines disability as ‘a restriction or lack of ability to perform an activity in a normal manner’. This is the current strand of the medical model. It differs from earlier medical models in that it acknowledges the influence of social and cultural barriers in conjunction with the emphasis on the physical or mental ‘impairment’. Thus, disability is a restriction on “normal” ability caused by the ‘impairment’, albeit with an influence by ‘culture and context’. Yet, the latter is a cause for social disadvantage of persons with disabilities rather than oppression. As Thomas explains, Bury recognizes disability as ‘both biologically and socially caused, though the more significant causal weight lies with the former’. Thus, the aim of law and policy is the provision of a treatment, care and protection ‘to change the person so that they may be assimilated to the social norm’. In Ian Duncan Smith’s interview with the BBC’s Andrew Marr, we can hear in the undercurrents of this notion of disability.

Yet the medical model (including the current strand) ‘privileges normalcy over “abnormal”’ and supports the assumption that ‘able-bodied norms are inevitable’, valuing economic productivity ‘as an essential aspect of personhood’. It does not recognize the significance of the role of the social environment in disabling persons and how this leads to a ‘disabling culture’ that preserves negative social responses and discriminatory practices.

In contrast, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) ) is underpinned by the social model of disability although the Preamble states that disability is an evolving concept. The social model emerged in the 1970s from the work of Finkelstein and Hunt, who founded the Union of the Physically Impaired against Segregation (UPIAS) and from the work of sociologist Mike Oliver. In its earliest form, the social model conceived disability only as oppression by the social environment and in its radical form, rejects ‘impairment’ as the cause of disability. According to Kayess and French, the social model refocuses the agenda to accepting impairment as a positive dimension of human diversity and to challenge and reject a social norm that results in exclusion of people with disabilities. Nevertheless, they criticize the CRPD as having internal inconsistencies as some provisions seem better explained by either the medical model or the radical social model. In parallel, the World Health Organization describes its 2001 International Classification of Functioning, Disability and Health as adopting a concept of “disability” which acknowledges disability as a ‘universal human experience, sometimes permanent, sometimes transient’ –‘that every human being may experience some degree of disability in their life through a change in health or in environment’. Although, it suggests that the concept takes into account critical factors other than purely medical, such as the impact of environment. But this does not necessarily suggest that the social environment is a significant or dominant factor.

How does the above discussion have relevance for the PIP assessment? When we consider the concept of disability in UK law, we can see how it translates into an assessment by Capita that tries to test the extent of the impairment, such as ‘Can you walk 20m unaided?’ which Ian Duncan Smith tries to defend in the Andrew Marr interview. This doesn’t acknowledge that underpinning the assessment is a particular model of disability that is contested by a competing model. It also doesn’t acknowledge that one of the key criticisms of the chosen model is that it fails to challenge the ‘social norm’ or the dichotomy of “normalcy/abnormalcy”.

Dr Aisling O’Sullivan is a Lecturer in Law, University of Sussex

Part 5: Judicial review- Capping of costs: Environmental cases

Donald McGillivray
Donald McGillivray

Part IV of the Criminal Justice and Courts Bill introduces a number of important changes to the judicial review process. The proclaimed

Emanuela Orlando
Emanuela Orlando

objective is to reduce costs and delays from the asserted instrumental use of judicial review. According to the Government (but not its critics) a large proportion of judicial review applications are weak or unmeritorious, with significant implications in terms of public costs and delays in the administration of justice and in the decision-making process.

 

In order to tackle this problem, clause 52 of the Bill limits the possibility to apply for judicial review to those claims which the Court considers worthy. In particular, it requires the Court to dismiss applications for judicial review “if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. This is a subtle but potentially significant shift from the current practice of the judges, who already weed out unmeritorious cases.

Subsequent sections introduce specific financial deterrents for prospective claimants by increasing the financial risks that they can incur in relation to judicial review. Claimants are now required to disclose at the outset how their claim is being funded and the resources available, while the courts shall consider making orders for costs against third parties who are providing financial support to claimants or who are likely and able to do so. Additionally, the Bill restricts the courts’ ability to make protective costs orders (cost capping orders) to more narrowly defined public interest cases, and only where a claimant would otherwise withdraw the claim and would be acting reasonably doing so. Separate provision is made for costs in environmental cases, which are distinct because of the Aarhus Convention which the UK and the EU are signatories to.

Are these proposed changes desirable?

This question appears particularly relevant when examining the reform from an environmental justice perspective. Although the proposals are not targeted to a particular area of the law, or to specific types of claims, challenges against planning permissions, especially for development and infrastructure projects, are among the main targets. One of the underlying arguments is that by reducing the number of challenges to planning and infrastructure authorisations, and by ensuring that those cases are dealt with in a more swift and expeditious manner, there will be benefits for development and economic growth. Thus, clause 59 of the Bill reduces the time limit to bring judicial proceedings in planning cases from 3 months to six weeks.

But what are the costs of these reforms in terms of environmental justice? And are those “costs” justified?

The public inquiry into Heathrow Terminal 5 is often cited as an example of how long and drawn out the planning process can be; yet, the thoroughness of its deliberations were an important factor in there not being any judicial review of its decision. It is also worth mentioning that judicial reviews in planning cases have the highest success rate. As these cases will be the ones most affected by the reform, the proposed changes have as their main effect of discouraging citizens, who will be affected by a government decision, to express their opinions. This seems evidently a backward step in a democratic society.

Going back to basics, judicial review exists to ensure that public authorities are accountable and to preserve good administration, and is a vital protection for the rule of law. The key issue is whether the new measures are about making judicial review more effective, or whether they are trying to make it more difficult to pursue.

Limitations to access to judicial review can have a significant impact in public interest cases—such as are typically environmental cases in relation to planning and infrastructure—where a collective, diffuse interest is at stake. Here, judicial review is often the only means for members of the public to challenge a public authority’s decision, given that they are often only third parties, and cannot rely on property or other types of individual rights.

The proposed cuts to time limits suggest that in the difficult balancing between greater access to justice, on the one hand, and greater certainty and efficiency in public decision-making on planning matters, on the other, the Government is inclined more toward the latter. It is no surprise that this proposal was strongly supported by business and public authorities, while being widely contested by academics, NGOs, members of the public, and perhaps significantly – by the cross party Joint Committee on Human Rights.

Many public interest cases, such as environmental cases, are pursued by charitable NGOs or community group who may not have the resources and the facilities to get access to lawyers. They may rely on free legal services, such as that offered by some university law clinics. Given that the latter do not usually have the required expertise in-house, and that even in high profile law firms pro bono work is usually not the priority, shortening the time limits to bring the claim is likely to hamper most those with fewer financial resources, putting them even further at a comparative disadvantage against better resourced opponents.

Moreover, on the point of costs, the Campaign to Protect Rural England—a national charity whose mission is to protect the English countryside—has voiced concernthat the required information concerning financial resources, including about external funding, could significantly and unduly deter campaign groups and charities from applying for judicial review and deter potential donors and financial supporters. Although costs in environmental cases must not, under the Aarhus Convention, be prohibitively expensive, it is interesting that reforms are being proposed which, whilst not obviously making access to justice harder, seem capable of doing this (and seem inequitable insofar as they require financial transparency from one side only).

Are those potential threats and limits to access to environmental justice justified? One of the bases of the reform of judicial review system for planning permissions cases is that the increasing number of judicial review applications, and the associated delays in the administration of justice, had affected the implementation of infrastructure projects, with negative consequences for development and economic growth. However, the steep rise in the numbers of judicial reviews that have been witnessed in recent years are almost exclusively due to rises in asylum and immigration cases – often taken because the law has been in such a mess and appeal routes are restricted. This leads to a final thought – is it not the quality of decision-making that should be the focus, rather than raising the spectre of unmeritorious or costly litigation?

Donald McGillivray is Reader in Law, University of Sussex

Dr Emanuela Orlando is Lecturer in Environmental Law, University of Sussex

Part 4: Juror Misconduct

Abenaa Owusu-Bempah
Abenaa Owusu-Bempah

In a report published in December 2013, the Law Commission recommended the creation of a new statutory criminal offence of a sworn juror in a case deliberately searching for extraneous information related to the case he or she is trying. This was, in part, a response to some high profile cases in which jurors had used online search engines and social networking sites to find out more about the case they were trying. Such matters are currently dealt with as a contempt of court and subject to a maximum sentence of two years’ imprisonment. As noted earlier on this blog, the benefits of a single criminal offence could include greater awareness that such conduct is prohibited, greater protection of the defendant’s right to a fair trial, and greater procedural protection for jurors who are found to have conducted extraneous research. The Criminal Justice and Courts Bill, however, contains not one, but three new offences dealing with this type of misconduct by jurors. Arguably, the Government’s proposed legislative response to juror misconduct has gone too far.

The first proposed offence is one of ‘research by jurors’ (Clause 44). This offence is similar to that recommended by the Law Commission. It applies where the juror intentionally seeks information about the case. ‘Information’ can be sought by whatever means (including internet searches). Perhaps controversially, it includes not only information about the defendant and the facts of the case, but also about the judge, lawyers, the law relating to the case, the law of evidence, and court procedure. There may be some very limited situations in which searching for information about a judge or lawyer could influence the jury’s deliberations (for example, finding that the lawyer had represented the defendant on a previous occasion). Yet, whether it is appropriate to go so far as to prosecute someone for looking up the judge or lawyers, or for seeking clarification about the law and court procedure, is questionable. Such conduct has yet to form the basis of a finding of contempt of court.

The second offence is one of ‘sharing the research with other jurors’ (Clause 45). The commission of this offence takes place after the first offence has been committed. Sharing extraneous information is detrimental to the defendant’s right to a fair trial, as it could be used to influence the jury’s deliberations; the evidence may not be reliable and the defence will have had no opportunity to explain or put it into context. This is a key reason for prohibiting the initial act of research. Once the act of research has come to light, it is likely that a new trial, with a new jury, will be ordered. Under the proposed reforms, the juror would be liable for two separate offences arising out of what currently seems to be treated as one course of conduct, subject to one penalty. The contempt of court cases which have so far arisen have focused on whether the juror committed an act or omission calculated to, and intended to, ‘interfere with or prejudice the due administration of justice’ (see, for example, A-G v Davey and A-G v Beard [2013]). It seems both excessive and unnecessary to impose liability for two separate offences, each carrying a maximum sentence of two years’ imprisonment.

The third offence is one of ‘engaging in other prohibited conduct’ (Clause 46). It covers situations such as that in A-G v Davey, in which a juror in a case of sexual activity with a child had acted in contempt of court by posting the following status on Facebook:

‘Wooow I wasn’t expecting to be in a jury deciding a paedophile’s fate, I’ve always wanted to fuck up a paedophile & now I’m within the law!’

The juror must intend to engage in the prohibited conduct but need not know that the conduct is prohibited. ‘Prohibited conduct’ means ‘conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue’. This offence appears to be aimed at protecting the defendant’s right to be tried by an independent and impartial tribunal, but it is drafted too widely.The definition of ‘prohibited conduct’ goes beyond the type of conduct exhibited in Davey. It will likely be difficult for a judge to explain to a jury precisely what it means. This, coupled with the fact that the juror need not actually know that the conduct is prohibited, makes for a potentially uncertain and far-reaching offence. In addition, it seems that the mere perception of intention would be enough to satisfy the requirement of intention to ‘try the issue otherwise than on the basis of the evidence presented’. The Law Commission’s report suggested that it may be appropriate to extend the proposed offence to cover conduct such as that in Davey, but this was not an official recommendation, nor did it call for an entirely separate, and so far-reaching, offence.

The measures in the Bill exceed that which is necessary to achieve the legitimate aims of the single offence recommended by the Law Commission. The additional offences are unlikely to increase jurors’ awareness of the type of conduct which is prohibited. Nor are they likely to increase protection of the defendant’s right to a fair trial.

Dr Abenaa Owusu-Bempah is Lecturer in Law at the University of Sussex

 

Part 3: Single Justices

Richard Vogler
Richard Vogler

So often a seemingly benign legislative adjustment promising a virtuous union of cost-saving and efficiency, turns out to be a Trojan Horse. Clauses 26-30 of the Criminal Justice and Courts Bill, setting out the proposed single justice procedures for uncontested, low level, “regulatory” offences such as non-imprisonable motoring, TV licence or fare evasion prosecutions, is one such example. Under these proposals, an estimated 750,000 such cases will no longer be heard before a bench of magistrates sitting in open court but by a single magistrate in private. The justification for this transfer of almost half the business of the summary courts, is primarily financial. A government “impact assessment” published on 5th February 2014 foresees a “net present value” of the reforms of between £34.8m and £64.1m at today’s prices, over a ten year period from 2013/14. In order to achieve such savings, the existing procedure in open court (dismissed by the bill’s supporters as a “rigmarole … reading out the facts to an empty courtroom”) would be routinely waived by defendants unless they specifically requested otherwise. The proposal’s “factsheet” maintains that an open hearing is “disproportionate, expensive and wasteful when compared with the seriousness of the offence” (paragraph 1) and the Justice Minister, Chris Grayling, has promised that the new procedure will be “smoother”.

As a matter of principle, we should always be wary of “smooth” and “streamlined” justice. It is not the function of procedure to smooth out the irregularities of real life and such a policy has always been the default position of oppressive justice. The proposed clauses offend against the principles of both open justice, memorably apostrophised by Lord Chief Justice Hewart in R v Sussex Justices, Ex parte McCarthy as the rule that justice should undoubtedly and manifestly “be seen to be done” and the principle of collegiality. Curiously, Chris Grayling has announced that “we cannot allow the new process to take place behind closed doors … we cannot have secret judgements” but this seems to be exactly what is envisaged, with the Magistrates’ Association enthusiastically offering “an office in the court building, a retiring room or a regular courtroom which is simply closed to the public”.  All that the bill’s sponsors are prepared to concede in return are non-statutory assurances that a list of cases will be posted and that “as part of a wider transparency agenda, the Government is considering further ways of making the court processes and outcomes more transparent to the public” (para 11 & 12). Such casual dismissals of the principle of open justice are utterly unacceptable. As is the proposal that a single lay justice, with no discussion, no opportunity to consider sentencing precedent or contrary views, should wield such secret, absolute power. How will we ever know if decisions have been reached on the basis of all the appropriate evidence or  acceptable grounds? Appeals against such sentences may well consume all the costs savings referred to above. Regulatory offences may seem trivial to the Justice Minister but to the vulnerable poor or those with language or communication difficulties, stripped of legal advice by recent reforms, the outcome can be devastating. Open, fair and considered justice is never dispensable.

Richard Vogler is Professor of Comparative Criminal Law and Criminal Justice at the University of Sussex

Part 2: ‘Rape porn’: What will be criminalised and why?

Tanya Palmer
Tanya Palmer

Clause 18 of the Criminal Justice and Courts Bill proposes an extension to the existing offence of possession of extreme pornographic images, to cover images of rape and assault by penetration.

The existing offence, contained in the Criminal Justice and Immigration Act 2008, was a response to ‘increasing public concern’ about the availability of ‘extreme’ pornography, particularly in the wake of the murder of Jane Longhurst by Graham Coutts, a man ‘addicted’ to violent pornography. However, while the initial government consultation proposed to criminalise possession of images of ‘serious sexual violence’, the resulting offence was limited to pornographic material that portrays bestiality, necrophilia, or acts which are life-threatening or likely to result in serious injury to a person’s anus, breasts or genitals. The proposed amendment seeks to remedy this perceived loophole in the law by criminalising the possession of depictions of (some) non-consensual sexual activity.

The justification for criminalising possession of ‘rape porn’ images has been framed by proponents of the new law in terms of ‘cultural harm’. Professors Clare McGlynn and Erika Rackley of Durham University claim that while ‘arguments of direct, causal links between pornography and violence are over-simplistic’, depictions of rape normalise sexual violence and ‘sustain a culture in which a ‘no’ to sexual activity is not taken seriously, in which sexual violence is seen as entertainment, and in which equality and dignity are not protected.’

The use of ‘cultural harm’ as an appropriate target of the criminal law is, however, contentious. Myles Jackman describes it as a ‘nebulous concept’ which is not sufficiently strong to justify criminalisation, while Alex Dymock argues that a criminal offence ‘atomises and individualises the problem’ and is therefore an inappropriate response to a harm that is cultural rather than individual. I would add to these concerns a question about the extent to which the proposed offence will challenge cultural attitudes to rape, when assessments of whether an image depicts non-consensual activity will be made by those same police officers, prosecutors, magistrates, judges and jurors whose ability to recognise (non)consent in the case of a rape complaint is regularly called into question. Given the questionable nature of the basis for criminalising possession of extreme pornography, it is crucial that any extension to the existing law is limited to those images that can be most closely shown to manifest the cultural harm described by McGlynn and Rackley.

Under the amended law it will be an offence punishable by up to three years in prison and inclusion on the sex offenders register to possess a ‘pornographic’ image which ‘portrays, in an explicit and realistic way’:

(a) an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis, or

(b) an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else,

and a reasonable person looking at the image would think that the persons were real.

In addition the image must meet the separate criterion that it is ‘is grossly offensive, disgusting or otherwise of an obscene character’.

Despite the seemingly careful wording, there are important questions to be asked about what, precisely, the offence will cover. Pornographic depictions of non-consensual sexual penetration could apply to a wide spectrum of materials. It would clearly apply to images that are explicitly advertised as involving sexually violent content and which are marketed in such a way as to encourage viewers to believe that they are watching an actual (as opposed to simulated) rape. It may also apply to images of ‘consensual non-consent’, also referred to as ‘rape play’, which involve staged scenarios of non-consensual sex within pre-agreed limits, often bookended by clips of the performers negotiating their boundaries prior to the scene and reflecting on it afterwards.

It is the former type of image that the campaign to ban ‘rape porn’ led by Rape Crisis South London and the End Violence Against Women Coalition (EVAW) had in mind. Their research highlights ‘discernable stylistic differences’ between the two types of content. However, no such distinction exists in the proposed wording of the law. McGlynn and Rackley recommend the inclusion of a clause modelled on Scottish law on “extreme pornography”, which allows the image to be looked at in context when deciding whether it is a depiction of non-consensual sex. Such a clause should be adopted as a bare minimum. Ideally, the Act and accompanying guidance should carefully spell out what types of imagery are to be covered, perhaps defining ‘realistic’ portrayals of rape such that it would clearly exclude those images that are obviously staged.

An additional concern about the proposed law, fuelled by high profile cases such as the trial of Simon Walsh, is the possibility that it prevent adults from possessing images of sexual activity in which they consensually and legally participate. The proposal to criminalise possession of ‘rape pornography’ is accompanied by a version of the existing ‘participation in consensual acts’ defence which allows the defendant to escape liability where s/he directly participated in the act portrayed, provided that s/he additionally proves that ‘what is portrayed as non-consensual penetration was in fact consensual’. Where a person has engaged in perfectly lawful sexual role play and kept an image of that activity for personal use, it is unfair to place the onus on that person to prove that their activity was consensual, and therefore lawful, in order to avoid a possession charge. Where the images appear to portray genuinely non-consensual activity featuring the defendant, the proper course of action should be to investigate the defendant for rape or assault by penetration, with the onus on the Crown to make out its case. Such defendants should not be diverted to a less serious charge of possession of extreme pornography, which mislabels their wrongful conduct.

Parliament must learn from the criticisms of the 2008 Act so as not to misfire a second time. It would be deeply disappointing if a law intended to target pornography that normalises, condones or glorifies sexual violence ended up catching materials that promote negotiation and clear boundary-setting, or images of defendants’ private consensual sexual activity. Moreover, if the coalition government is serious and sincere about addressing the cultural roots of rape and sexual assault, solutions must be sought beyond the reactive mechanisms of the criminal law, most obviously through comprehensive sex and relationships education.

Dr Tanya Palmer is a Lecturer in Law at the University of Sussex

Part 1: Dangerous Offenders – Some Recent History and Some New Proposals

Robert Sullivan
Robert Sullivan

In 1993, speaking in character as a hard-line Conservative home secretary Michael Howard famously (or, for some, infamously) asserted that “prison works.” Among other things these two words may be read as an implied rebuke to Kenneth Baker, a less draconian Conservative predecessor in the office of home secretary, who, in that capacity, had overseen the passing of the Criminal Justice Act 1991. This is a legislative measure remarkable for its penal restraint, at least when looking back from 2014. Under its terms the primary determinant of the duration of a prison sentence and other penal measures was based on a restrained version of the retributivist theory of punishment. Under the Act the calculation of the defendant’s (D) just deserts was based on the gravity of the criminal offences and the attendant circumstances on which D’s convictions were based. Previously, D may have been found guilty of criminal offences committed at an earlier stage of his life and served time or suffered some other penalty for this offending. By dint of this previous punishment, D was considered to have paid his dues and he would start with a clean sheet when next up for punishment. In other words, the default position under the Criminal Justice Act 1991 was that previous offending would have no aggravating effect on determining a proportionate punishment for current offending (It should be noted, however, that The 1991 Act did make provision for the imposition of “longer than commensurate” sentences for dangerous offenders but in a more limited form than in later legislation).

The restraining impact of the 1991 Act was short lived. Michael Howard’s enthusiasm for longer prison sentences played well with the electorate judging by the opinion polls and the (New) Labour party decided to get in step. Tony Blair’s slogan – “tough on crime; tough on the causes of crime” – also went down well with potential voters, particularly the first part. The restrained retributivism the 1991 Act was doomed following this two party consensus (By and large the Liberal Democrats did not enter the penal populism stakes).Indeed, a rivalry ensued as to which party was toughest. Whether or not prison works depends on what you are seeking. What prison can do is radically reduce D’s opportunities for offending against members of the general public while he is incarcerated, something well understood by everyone. Risk prevention became far more salient in penal policy. Applying the plausible generalisation that the past is a reliable guide for the future, D’s past offending as well as his current offending featured in the risk assessment. The more adverse the risk assessment, the longer D should spend inside if crime prevention rather than retributive justice is the aim.

Legislative provisions based on this preventive rationale culminated in sections 224 to 236 and schedules 15 and 15A of the Criminal Justice Act 2003 which introduced dangerous offender legislation of unprecedented inflexibility and breadth. These provisions replaced the “longer than commensurate” sentences of the 1991 Act and “automatic” life sentence introduced in the Crime (Sentences) Act 1997. All that can be said here is that the combination of extended sentences, automatic life sentences, and imprisonment for public protection (IPP) brought in by the 2003 Act caused a surge in imprisonment, a plethora of appeals, and a logjam at the Parole Board. The late Dr David Thomas, the leading academic authority on sentencing and also an experienced practitioner, described the impact of these measures as “catastrophic” and “the worst disaster (so far) in penal history.” Sticking plaster reforms were brought in by the Criminal Justice and Immigration Act 2008 (ss 13-18 and Schedule 5) and the whole scheme was largely dismantled by sections 122-128 of the Legal Aid, Sentencing, and Punishment of Offenders Act 2012.

Some knowledge of this dismal history is necessary to any informed appraisal of the dangerous offender clauses to be found in the Criminal Justice and Courts Bill (clauses 1-5). The 2012 Act had significantly improved matters, at least for those who favour a sense of proportion in punishment but without disregarding the legitimate public interest in being safeguarded from dangerous offenders. Indeterminate imprisonment for public protection and indeterminate extended sentences are abolished, replaced by a new extended, determinate sentence where dangerousness is presumed on the basis of fewer qualifying offences than before. Two thirds of the extended determinate term must be served before the prisoner is eligible for parole. A life sentence based on a dangerousness assessment can still be passed but only where D is 18 years old, is convicted of an offence which would otherwise merit a determinate sentence of 10 years or more and, additionally, has previously served a sentence of 10 years or more. Moreover judges need not impose a life sentence if in the circumstances it would be “unjust”.

In the light of recent penal history, there is a strong case for leaving the 2012 reforms well alone at least for the medium term. This is not the opinion of the Minister of Justice, Christopher Grayling, another penal populist politician. One cannot resist the feeling that he is trying to recapture some of the ground reluctantly ceded in 2012 under Liberal Democrat pressure. As the Bill currently stands, prisoners serving an extended determinate sentence will no longer be released after serving two thirds of their term. Early release will require a positive safety assessment from the Parole Board. Provision will also be made for prisoners convicted of child sex offences and terrorist related offences who have not received an extended, determinate sentence. No longer will they be released on licence after serving one half of their term but must apply to the Parole Board for early release. If early release is not obtained the whole term will be served and then release on 12 month licence.

No empirical case has been made supporting these changes which are bound to be challenged in the courts if applied to prisoners already serving their terms. No doubt, if these clauses are enacted, some crimes will be prevented. Beyond doubt, many prisoners will be disproportionately punished without any offsetting gain in security.

Robert Sullivan is Professor of Criminal Law at the University of Sussex

Yet Another Furore About Halal Meat

Stephanie Berry
Stephanie Berry

It has been widely reported in the press this week that the chain restaurant Pizza Express has been serving halal chicken on its pizzas, without informing its customers. This has led to wider reporting of the sale of unmarked halal meat in supermarkets in the UK, echoing similar debates that pre-empted the ban of halal slaughter in Denmark, earlier this year. One (Muslim) commentator in the Daily Mail went so far as to claim ‘[t]his is covert religious extremism and creeping Islamic fundamentalism making its way into Britain by the back door’.While the correct marking of meat and animal welfare are both legitimate concerns, the question is still raised: are those objecting to the sale of halal meat really concerned about animal welfare or is the debate just a manifestation of intolerance against Muslims? Why is the serving of halal meat in restaurants ‘creeping Islamic fundamentalism’ rather than a restaurant providing an option for its Muslim customers? How is the sale of unmarked halal meat in supermarkets ‘creeping Islamic fundamentalism’ when the majority of Muslims are unaware that the meat sold is halal?  

Halal slaughter requires that the animal’s neck be cut in one stroke with a sharp knife, in order to cause the animal the least amount of suffering possible, whilst a prayer is recited. Doctrinal differences mean that there is no agreement in the Muslim community about whether animals can be stunned prior to slaughter. An exemption from the requirement to stun animals has been available for Muslim and Jewish communities in the UK since 1933 (Slaughter of Animals Act 1933 s 6; Welfare of Animals (Slaughter or Killing) Regulations 1995 Reg 22 and Schedule 12). However, the Food Standards Agency reported that 88 percent of animals were stunned prior to halal slaughter in the UK in 2011.

In the UK, the majority of non-halal(and Shechita) poultry is gassed. However, the other method of slaughter, still used, involves the animals being hung upside down by the legs (prior to stunning), having their heads dunked in a water bath with an electrical current running through it in order to stun them and then being decapitated on a conveyor belt using a mechanical neck cutter (which similarly to religious slaughter, cuts the major blood vessels in the neck). Given that the majority of halal meat is stunned prior to slaughter, it is not clear what makes the sale of halal chicken so objectionable to the public. The slaughter of animals is a gruesome business.

Given that the majority of halal meat in the UK is stunned prior to slaughter (including the meat served at Pizza Express and in supermarkets), the concern expressed about halal meat does not appear to be a matter of animal welfare. Indeed, if is was, those concerned about halal meat would also be concerned about whether the chicken being served is free-range and treated humanely during its life, as well as its death. Thus, the furore about halal meat appears to be about Muslims and Islam rather than animal welfare.

A report carried by for the Greater London Authority in 2007 revealed that over 90 percent of media reporting about Muslims has a negative connotation. More recently, the Leveson Inquiry also highlighted the negative portrayal of Muslims in the media to be particularly problematic (paras 8.34-8.45). Sensationalist reporting risks breeding intolerance against Muslims in the UK (paras 8.34-8.45). In 2001 the Advisory Committee to the Framework Convention on National Minorities (AC-FCNM) expressed concern about the British media reporting about Muslims ‘in a manner that is often biased, stereotyped and inaccurate’, going on to note ‘[t]he Advisory Committee is concerned that such negative and prejudicial reporting is contributing to a climate of fear and hostility and aggravating community relations. A feeling of exclusion from mainstream society appears to be prevalent among the Muslim … populations’ (First Opinion on the United Kingdom, para 18). More recently, in 2011, the AC-FCNM continued to express the same concerns, ‘Islamophobia also continues to spread in society, sometimes triggered by politicians and disseminated through the media’ (Third Opinion on the United Kingdom, para 101). The AC-FCNM has consistently requested that the UK government take steps to ‘reduce inflammatory attacks in the media’ and, in particular, make the Press Complaints Commission more effective in this respect (First Opinion on the United Kingdom, para 115). Similarly, the Leveson Inquiry questioned ‘whether articles unfairly representing Muslims in a negative light are appropriate in a mature democracy which respects both freedom of expression and the right of individuals not to face discrimination’ (para 8.45).

There is a reasoned debate to be had about the correct labelling of meat. However, this is a debate to be had with the supermarkets, Pizza Express and other food outlets that have not been upfront about selling unmarked halal meat. There is not a debate to be had about ‘covert religious extremism and creeping Islamic fundamentalism’. On the contrary, there should be a discussion about how the press can report on these issues in a more balanced and accurate manner, that does not stir up intolerance against an already marginalised community.

 

Stephanie E. Berry is a Lecturer in Public Law, University of Sussex