Sarah Wollaston MP

Sarah Wollaston MP has come in for some criticism over how she dealt with two men who told her, last year, that they’d been in one case sexually assaulted, and in another case raped, by Nigel Evans MP. He was acquitted of rape and a number of sexual assault charges last week, and is not guilty of any of them.

Dan Hodges, in the Telegraph (I’m on his case again, I’m afraid), explains his criticism of Sarah Wollaston by saying

Partly because of her actions, a wholly innocent man had his reputation destroyed and his career ruined, and now faces crippling debts to cover the cost of his legal fees.

What she did was wrong, his argument seems to run, because she triggered the chain of events that led to where Nigel Evans is now.

And in I think the worst article I’ve seen written on this whole affair, the Steeple Times says

This maliciously reckless woman is amongst those responsible for having ensured our contributor Nigel Evans was wrongly brought to trial by the Crown Prosecution Service … Here is a woman who has helped cost Nigel Evans his career and £130,000 in legal fees.

Again (this time in immoderate terms) the complaint is that the case reached court because of her involvement. So what did Sarah Wollaston do to justify condemnation like this? Just as importantly: what do these critics say she should have done?

Wollaston explained what she did do in an article she wrote, also in the Telegraph, on Monday. In it, she says a man told her he’d been sexually assaulted, and came to her office – at her invitation – to recount more fully what he said had happened. Then another man telephoned her, saying he’d been raped.

Neither wanted to go to the police, but both asked for my help, as they wanted a disciplinary process to take place – in their words, because they felt other individuals were at risk.

It’s worth wondering, for a moment, how Sarah Wollaston knew these men didn’t want to go to the police. Presumably they told her so. In the article she doesn’t say she asked: but either she did ask, and got this answer; or else the answer came without her needing to ask. She goes on:

I made appointments for both men to see the Speaker, John Bercow. After the first meeting, he took legal advice, then sent a member of his staff to tell me that he could not become involved.

I’m not surprised by the Speaker’s legal advice. Had I been Counsel to the Speaker I too would have advised that he had no disciplinary role as an employer or regulator, and that criminal matters were for the police. Wollaston says

As a former forensic medical examiner, I am completely aware that the decision to report sexual violence to the police must be made solely by the complainants. That is why, when I was approached by the police following the first appointment with the Speaker, I declined to pass over the men’s names or contact details. I did, however, pass the officers’ contact details to the two young people concerned.

She herself did not contact the police, then. She raised the allegations with the Speaker, after which the police contacted her (which I can only explain by assuming Parliamentary staff got in touch with them). When the Speaker’s staff told her he could not get involved, she passed police contact details on to the two men. This is the only thing she did which can be said to have triggered the involvement of the criminal justice system.

What’s odd is that, although criticising Sarah Wollaston for setting off the chain of events that led to the trial, both critics I’ve quoted say they’d prefer her to have suggested the police be involved earlier than they actually were.

In response to my question whether it would have been wrong for her to say “You should go to the police” or ask Why don’t you go to the police?” (either of which could just as easily have led to the investigation, charge, trial and acquittal as what she actually did) Dan Hodges on Twitter replied to me like this:

The Steeple Times for its part says she should have gone directly to the police herself:

In these tweets, Dan Hodges and the Steeple Times flatly contradict the broad thrust of the criticisms they themselves have made (as well as contradicting each other). Dan Hodges complains that Sarah Wollaston passed on police contact details; yet had she simply told the two men to go to the police as he suggests, that could just as well have meant that

because of her actions, a wholly innocent man had his reputation destroyed and his career ruined, and now face[d] crippling debts to cover the cost of his legal fees

to quote Dan Hodges himself. It almost certainly would have, had she unilaterally gone to the police as the Steeple Times says. These criticisms make no sense. The incoherence of Dan Hodges’ position is made even clearer by his later suggesting Wollaston ought to have treated the allegations as a disciplinary matter:

On that approach, she was right to go to the Speaker (or do something else similar, but unspecified) and should not have done anything about the police. That fits with his complaint that Wollaston should not have encouraged the two men to go to the police –

– and with the broad implication that she was wrong to do anything to trigger the involvement of criminal justice; but not with his saying telling them to go to the police, or at least asking them why they hadn’t (something we know she was given the answer to) was precisely what she should have done:

Criticism of Sarah Wollaston does not stand up to scrutiny, as these two examples show. It would have been wrong for her to have done nothing when these men approached her. Journalists are among the first to criticise anyone in public life or in business (in the BBC, for example) who hears about an allegation of rape or sexual assault, and chooses to do nothing. The very least she should have done was encourage the men to go to the police (which Dan Hodges criticises her for doing, while at the same time saying suggesting she should have told them to go to the police).

The only other things she could have done were either to attempt to find some sort of disciplinary process for dealing with the allegations (something Dan Hodges has said she should have respected – and which she did respect; and something that, even so, Dan Hodges also criticises her for)

or else to approach the police herself, which Dan Hodges yet again also criticises for her, although it seems she didn’t actually do it; and which the Steeple Times says she should have done (although it criticises her for triggering the police investigation, prosecution and so on). For these critics, everything she did and could possibly have done would seem to have been wrong.

Standing back and trying my best to be fair to Dan Hodges, I think his real position must be that Sarah Wollaston was wrong to have contacted the Speaker and wrong to have passed police contact details to the men, and should simply have suggested they go to the police themselves. I think he sees real significance in the distinction between giving someone police contact details, and suggesting they should contact the police (something we disagreed about in our Twitter exchange):

But even having said that I cannot help (at the risk of extreme repetitiousness) reminding myself than Dan also says she was wrong to encourage the men to go to the police.

I’ve already posted a Storify of the Twitter debate between Dan, me and others about this (which was necessarily selective, I admit, but which I tried to make fair), and of course have linked to his Telegraph article: you can make up your own mind whether I’ve been unfair to him in this post.

Different people, faced with what faced Sarah Wollaston, would have done different things. I think I’d have approached it slightly differently myself. But I have no criticism of her at all. She acted perfectly reasonably, and did what she could to ensure these men’s allegations were taken seriously, and in accordance with their wishes. She was quite right to pass on police contact details to them. It’s not her fault that one of them gave the police an account that he admitted in court was untrue.

Awful things can happen, and innocent people can suffer, without a public servant or representative of the people necessarily being to blame.

As for the Steeple Times, which has outrageously accused Sarah Wollaston of malice – well, I think those of us who have sympathy with Nigel Evans ought not to be so quick with unfair, baseless and self-contradictory accusations.

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Rod Herrea | CreativeCommonsI’ve not seen much coverage over here of an important case, Sebelius v Hobby Lobby Stores, heard by the United States Supreme Court three weeks ago. The opinion is expected in June. It’s a case of what in the past I’ve called religitigation – people using litigation to assert their religious beliefs – but whereas in Britain we’re used to employees (like Nadia Eweida) trying to claim religious entitlements to defy their employers’ policies, and to business owners (like the Bulls) trying to defend themselves against discrimination claims from customers, we’re not so used to employers using religious rights arguments in an attempt to exempt themselves from statutory duties. But that’s what’s happening here.

Hobby Lobby is a retail chain set up by the Green family, and committed to “Honoring the Lord”. Its owners object to a requirement, flowing from President Obama’s Affordable Care Act, that Hobby Lobby should provide health insurance to its employees that covers the cost of the “morning after pill”, and contraceptive intrauterine devices. Hobby Lobby says this “mandate” breaches the company’s right to freely exercise its religion under section 3 of the Religious Freedom Restoration Act, “RFRA”, which says –

(a) IN GENERAL. – Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) EXCEPTION. – Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –

(1) furthers a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Hobby Lobby’s argument is that it is a “person” exercising religion for the purposes of RFRA (and the “free exercise clause” of the First Amendment to the Constitution), and that having to cover employee’s use of these contraceptives (or face substantial financial penalties) puts a “substantial burden” on its religious freedom. It argues that the federal Department of Health and Human Services (Kathleen Sebelius has been President Obama’s Health Secretary since 2009 – as it happens she resigned recently) can’t have any compelling governmental interest in the contraceptive coverage mandate since it has created exemptions for non-profit religious organisations as well as transitional “grandfathering” arrangements, and that in any case the mandate is not the least restrictive means of furthering that interest.

The federal government argues that while a profit-making company is a “person”, it can’t exercise religion, and that in any case the mandate does not impose a substantial burden. Ensuring proper health coverage for women is a compelling government interest, and Hobby Lobby can identify no less restrictive means of achieving it than the ACA, which allows Hobby Lobby to choose to pay a tax instead of providing contraceptive coverage, if it prefers to. At more than one stage of the legal analysis, the government asks the Court to take account of the competing right of employees and their dependents to health care, including contraception.

Anyone interested in European human rights law will immediately recognise the “compelling governmental interest” and “least restrictive means” tests as representing something similar to our concepts of legitimate grounds of interference with rights, and proportionality. But perhaps the most interesting question raised by the case is whether a company can have religious freedom at all.

What do I think? Legally, my thoughts come with a health warning since I can’t claim any expertise in American constitutional law. But it seems to me the government has a decent point on ordinary companies (as opposed to churches and religious charities) not having religious freedom. A retail firm does not have beliefs, or carry out religious practices, after all. I’m not sure there’s a substantial burden here: Hobby Lobby could choose to pay tax instead of providing any health coverage, and possibly even save money – a point I thought Hobby Lobby’s counsel, Paul Clement, was in trouble over at the hearing when he seemed to argue that religious freedom requires Hobby Lobby to be able both to choose its own à la carte health coverage and to pay no tax, rather than choose between the options in the Affordable Care Act.

I think there’s a compelling government interest here, and that the limited exemptions, accommodations and transitional arrangements make no difference; and the ability to pay a tax instead seems to be a good point in the government’s favour on proportionality. I would certainly have raised similar questions to those put at the hearing by Justices Ginsburg, Sotomayor and Kagan.

But then, politically I think providing of proper health care for as many people as possible is a vital objective – as is equality and self-determination for women – and that business owners should not be able to abuse their economic power to put their own ideological hobby-horses first. From a narrow British perspective, I’m grateful for the NHS.

If you want to read more about the case, the wonderful SCOTUSblog has brilliant coverage as always – Amy Howe explains the case in plain English, Lyle Denniston recapped the arguments, and you can read the government’s brief, Hobby Lobby’s brief, and the government’s reply. You can also listen to the oral argument in the Supreme Court in the player below, thanks to Chicago-Kent College of Law’s terrific Oyez project. If you have any nerdish feelings about law and a spare ninety minutes, it’s great.

Every time I remind myself of how brilliantly Americans are covering their Supreme Court, and have made its workings so accessible, as a British unbeliever I say God Bless America.

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Dodgy drafting, No. 1

by Carl Gardner on April 14, 2014

What if I have no dog?

You know when something doesn’t quite mean what it’s supposed to mean? At least not when it’s read in a lawyerly way? I may post some examples as I come across them – but thought I really had to begin with what may be the all-time classic, from London Underground.

What if you’ve got no dog?

Feel free to e-mail me with a photo if you see any good ones.

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Nigel Evans MP: justice has been done

April 11, 2014

Nigel Evans is not guilty of the offences he was charged with. I’m pleased for him. I also feel deeply sorry for him: this last year must have been hell, and having been tried and acquitted, he not only faces a big legal bill: he has lost an important job that must have meant a […]

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Gemma Burns: It means injustice for all

March 9, 2014

Outside the Ministry of Justice on “Grayling Day” on Friday, I spoke to Gemma Burns of Thomas Bingham Chambers, who feels “absolutely passionately” about opposing the government’s legal aid policy, because it means injustice for all. She told me that if people can’t afford to pay for themselves, and there’s no access to properly qualified […]

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Hannah Evans: I might not be able to do the job I love

March 9, 2014

Hannah Evans was recently made a tenant at her chambers, 23 Essex Street. But, she told Friday’s “Grayling Day” demonstration on Friday, clouding the entire experience was the knowledge that I might not be able to do the job I love for very long at all. She expressed her concern about the diversity of the […]

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Laura Janes: Children will not get out of jail

March 9, 2014

Laura Janes of the Howard League for Penal Reform spoke at London’s “Grayling Day” demonstration on Friday, about cuts to prison legal aid specifically. Mr Grayling has removed most prison law work from legal aid entirely she said. That means mothers cannot get legal help to remain with their babies inside prison; that means that […]

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Nigel Lithman QC: The whole system is in revolt

March 9, 2014

At Friday’s “Grayling Day” demonstration in London, chairman of the Criminal Bar Association Nigel Lithman QC told the audience that an indispensable part of our democracy is the criminal justice system. It’s taken centuries to build; it is taking this government a blink of an eye to demolish. It’s difficult, he said, to imagine how […]

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Russell Fraser: It’s not about fees

March 9, 2014

Outside the Ministry of Justice on “Grayling Day” on Friday I spoke to Russell Fraser, a third six pupil at 1 Pump Court, about why he’s opposed to the government’s legal aid policy. He mentioned what he called the discriminatory and arbitrary residence test for civil legal aid, which he said must be looked at […]

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