Cases

Below is a list of the original judgments that will be rewritten from a feminist perspective. Where possible, the name of the case is linked to a publicly accessible version of the judgment. You can read the feminist judge’s abstract alongside the case too:

McKearney v HM Advocate (2004 JC 87)

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Ferguson author abstract:

The appellant had been convicted of breaking in to the home of the complainer in the middle of the night, assaulting her, threatening her, and thereafter raping her. The appeal was allowed on the basis that the trial judge had misdirected the jury by instructing it to disregard the question of whether the accused may have had an ‘honest belief’ that the complainer consented to have sexual intercourse. This ruling was in line with the decisions in Meek (1982) and Jamieson  (1994), in which the Scottish appeal court had followed the English case of Morgan (1976) in holding that a mistaken belief in consent need not be a reasonable one in order to exculpate the accused. The feminist judgement in this case will argue that Meek and Jamieson ought to have been over-ruled in McKearney; an error as to consent should have to be both honest and reasonable. The harm caused when a man has sexual intercourse with a woman who is not consenting to this is a particularly grave one. It is therefore incumbent on him to take especial care to ascertain that she is a willing participant.

Smith v Lees (1997 SCCR 139)

Cairns author abstract:

The appellant was tried for lewd, indecent and libidinous practices and behaviour towards a 13 year old year old girl. He and his brother in law took five children (two girls and three boys) camping overnight. The complainer gave evidence that she woke up to find the appellant’s penis in her hand, to his putting his hand on top of her hand and to him moving his penis up and down against her hand. She stated that she left the tent crying and upset, but was too upset to tell her uncle, but the uncle saw her coming out of the tent, was concerned about what may have happened in the tent and took the complainer to see his sister-in-law the next day. The complainer told her what had happened, and the incident was reported to the police. The complainer was found to be a credible witness by the sheriff, who was satisfied that there was sufficient corroboration of her evidence.  However on appeal to a full bench of 5 male judges, it was held that a complainer’s distress can only show that she was subject to distressing conduct, but cannot confirm the nature of the distressing conduct. Distress could not therefore corroborate the crucial fact that the precise crime libelled (lewd, indecent and libidinous practices) was committed. Because the crucial facts in a case need to be proven by corroborated evidence, the conviction was overturned.

The feminist judgement will provide missing context to the problem of sexual assault and the issues at stake in the case e.g. the difficulties with proving sexual offences generally; the impact of the corroboration requirement in sexual offence cases; the long history of disbelieving complainers in sexual offence cases. In the original judgement, the focus is very much on the legal points, meaning that the wider consequences of the decision (i.e. how it would impact on the proof of sexual offences in Scotland) were obscured. The judgment will also draw attention to the unintended consequences of allowing distress to corroborate and the precise way in which the doctrine operates in potentially  reinforcing rape myths, such as a truthful claim will always be accompanied by distress. The court’s focus on the victim (rather than the accused) means that a woman’s behaviour following a sexual offence is subject to scrutiny. In short, the judgement will illuminate how important it is to be realistic about the extent to which a different result for the individual complainer in Smith v Lees would make a meaningful difference in terms of proving sexual offences, and thus improving conviction rates in this area.

Rape Crisis Centre v Secretary of State for the Home Department (2000 SC 527)

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Kagiaros author abstract:

The petitioners, a support group providing assistance to survivors of all forms of sexual violence, sought to challenge the decision of the Home Secretary to allow entry to the UK to a boxer convicted of rape in the US. Their petition for judicial review failed, primarily due to the particularly restrictive test for standing that applied in Scotland at the time. In spite of the lack of standing, the judgment also addressed the substance of the claim. The petitioners had argued that the impugned decision of the Home Secretary was procedurally improper. This claim was also unsuccessful. The feminist judgment intends to revisit both aspects of the case. Does the seemingly neutral test of standing disadvantage women from seeking a judicial remedies for administrative action? Was there any room for the judge to decide otherwise? Similarly, in relation to the substance of the claim, did the circumstances of the case allow for an alternative approach?

Commonwealth Oil and Gas Co Ltd v Baxter no 10 ([2009] CSIH 75)

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Belcher author abstract:

Company law includes some fundamental legal principles that apply to every company and to every director.

In Commonwealth Oil & Gas Co Ltd v Baxter a group’s founding director (Baxter) was being removed from active involvement in managing the group. For his future Baxter needed to generate a personal income and to minimise the taxable capital gain arising on the sale of his group shares.

In pursuit of the two aims (income generation and tax minimisation) Baxter drilled down into the details of each separately. He successfully negotiated the removal of the “non-compete” clause in a consultancy contract that he held with a group company, thus freeing him up to generate income in competition with group. He also pressed for appointment as a non-executive director within the group, and thus preserved his entitlement to a relevant, significant, tax relief. He failed to pay attention to the general directors’ duties that came along with that appointment. The feminist judgment will agree with the Court of Session that Baxter was in breach of duty, but will do so by contrasting a (masculine) drilling down approach with a (feminist) all enveloping approach.

Ruxton v Lang (1998 SCCR 1)

Cowan and Munro author abstract:

The accused, Fiona Lang, was charged with an offence under the Road Traffic Act 1988 s5(1) (a) – driving with excess alcohol. The accused pled a defence of necessity, arguing that in line with the recent decision of Moss v Howdle, she had driven because she was in immediate danger of life threatening or serious injury.

The accused had recently broken up with her partner, Callum Scott, with whom she shared a flat, and she had moved into the spare room. There had been a history of domestic violence. Having been out drinking with work colleagues one evening she returned home in the early hours of the morning with one of her male colleagues. Callum Scott woke up and confronted them, slashed the jacket of the colleague and assaulted him before throwing him out. Scott then threatened the accused with the knife, and in fear for her life she ran to the car in the driveway and drove away, at which point Scott called the police to report her driving under the influence. The accused drove the car almost all of the 2 miles to her brother’s house before the police pulled her over and arrested her.

The sheriff at first instance accepted that she was in reasonable fear for her life when she left the house, but that she should have stopped driving sometime before the police stopped her, since by then the danger had subsided and was no longer immediate. She was convicted and given 11 penalty points and a fine of £400. Leave to appeal was refused.

The feminist judges in this case will hear an appeal in this case and will explore whether the Sheriff adequately accounted for the fear, violence and coercive control that the accused had experienced. They will also assess not only if and how these factors impact up on the reasonableness of the accused’s fear of immediate danger, but also whether the test of immediacy applied by the Sheriff was too narrow. To address that question, the judges will consider whether the immediacy test can and should be interpreted contextually; and if so, the appropriate role  our knowledge about the problem of domestic violence should play in assessing the point at which a victim’s fear of life threatening or serious injury subsides.

Scottish Special Housing v Lumsden (1984 SLT (Sh Ct) 71)

Robson author abstract:

The doctrine of joint and several liability is a standard neutral doctrine applying to those with various joint rights such as debts and tenancies. A version of the doctrine has been extended to the institution of marriage. It has been assumed by the courts that when a husband acts he does so in the name of his wife and vice-versa. Hence in the case of Lumsden, the actions of Mrs Lumsden were deemed to be treated as those of her husband. The antisocial actions, in this instance of Mrs Lumsden, meant that the property of which Mr Lumsden was the tenant, could be repossessed by the landlord even though, at the time of the antisocial actions, the tenant had been in prison for some time.

Similar sorts of decisions were reached in cases involving homeless applicants in terms of the Housing (Homeless Persons) Act 1977 resulting in one partner being treated as responsible  for the actions of the other partner and denied assistance due to the actions of their partner. A feminist approach to these kinds of relationships would produce rather different results. The question of when joint and several liability might be applicable needs to be addressed in a directed manner rather than by applying concepts which are out of tune with the nature of relationships today. Such a re-evaluation would be of general social benefit and challenge the sexism embodied in the traditional approach encountered in Lumsden.

R & F v UK (Application 35738/05 2005)

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Gray author abstract:

On 28 November 2006 an application to the European Court of Human Rights, brought by a married couple living in Scotland challenging the UK law that required them to divorce prior to one of the parties being able to obtain a full Gender Recognition Certificate (GRC) under the Gender Recognition Act 2004 (GRA 2004), was rejected on the basis that the application was manifestly ill-founded. When the parties married they were respectively male and female. Following the marriage the partner who had been assigned male at birth underwent gender reassignment and was living as a woman. The couple had argued that the provision requiring divorce prior to obtaining legal recognition of one’s gender identity within the GRA 2004 violated their Articles 8, 12, 13, 17, and Article 1 of Protocol 1 rights under the Convention. The Court, in exploring the scope of Articles 8 and 12 and the provisions within UK and Scots law at the time of the application, determined that there was no violation of any of the rights contained in the applicants’ argument and declared the application inadmissible. However, in so doing the court gave a very cursory analysis of the issues in question and, given the state of the law at the time of the judgment and the growing recognition of transsexuals’ rights within Europe at that time and thereafter, it is disappointing that the court did not more fully engage with some of the questions raised by this application; questions which are being considered now in 2017. This feminist rewriting of the judgment in R & F v United Kingdom will engage with the issues raised in the application; what does it mean to be female for the purpose of Scots marriage law, how gender identity and legal sex can arguably be different legal concepts separable from one another, and how Article 17’s right to personal development could have been more fully explored in the decision.

Coyle v Coyle (2004 FAM LR 2)

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Mair author abstract:

From campaigns of the 1960s and ‘70s for wages for housework to the shared parental care agenda of the 21st century, who cares and how we value care remains a consistent concern for feminists and feminist debate. In Scots family law, the question of how to value care arises most often in the context of relationship breakdown. The Family Law (Scotland) Act 1985, which sets out a legal framework for financial provision on divorce, was built on the premise of equality of spouses both at work and in the family. It recognised, however, that there could be gains and losses throughout the course of a relationship and noted in particular the possibility that one spouse might suffer economic disadvantage through contributions to the family of a non-financial nature, including the contribution made by looking after the family home or caring for the children.

While the 1985 Act raised the possibility of domestic labour being appropriately valued on divorce, the Outer House decision in Coyle v Coyle made it clear that there was to be no entitlement, on divorce, to compensation for caring. A feminist reworking of this pivotal judgment will offer the opportunity to imagine how domestic care within marriage could be valued, while also exploring the inherent tensions in feminist discourse towards the role of homemaker.

Rainey v Greater Glasgow Health Board (1987 AC 224)

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Busby author abstract:

The Greater Glasgow Health Board (GGHB) wished to expand the prosthetics service offered by an NHS hospital. The only applicants were employed in the private sector where much higher rates of pay were available than those paid to NHS staff. The vast majority of those employed by the NHS were women and the vast majority of those employed in the private sector were men. The incoming (male) workers were offered high rates of pay whereas the existing (female) workers continued to be paid at the lower rate giving rise to a prima facie case of unequal pay under the Equal Pay Act 1970. At the House of Lords the GGHB successfully invoked the defence available under the Act arguing that market forces amounted to a ‘material factor’ which justified the different pay rates. The Court assumed that the difference in gender of the private and public sector workers was accidental, thus overlooking the possibility that the female NHS workers may have been denied highly paid jobs in the private sector due to discrimination. Furthermore the Court’s acceptance of market forces as a material factor capable of justifying different pay rates opened the door for employers in subsequent cases to make use of this defence which has subverted the original intention of the UK’s equal pay legislation and had a negative impact on the development of the law in this area.

Helen Johnson (AP) v IAT (2004 P340/04)

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Craig and Loughran author abstract:

A Sierra Leonean woman, accompanied by her two daughters, made an asylum claim based on gender specific persecution in the form of Female Genital Mutilation (FGM). In 2004, the Court of Session dismissed her claim for Judicial Review of the Immigration Appeal Tribunal’s refusal of her case.

Mrs Johnson came from the same country as the applicant in Fornah v SSHD [2007] 1 All ER 671, a landmark case on FGM decided by the House of Lords in 2006, and whose conclusions drew heavily on the feminist approach taken by Baroness Hale in that case.

Our judgment will take an approach informed firstly by UNHCR Gender Guidelines, secondly by consideration of the child’s best interests and thirdly by precedent which existed in 2004, including a Country Guideline case.

Rafique v Amin (1997 SLT 1385)

McCarthy author abstract:

The law of common property defines the rights held by persons who share ownership of property with others. Two rules are central. First, no common owner may alter the property without consent of the other(s). Secondly, any common owner may insist on a remedy of division and sale, whereby the property is sold and proceeds divided amongst the owners. These two rules balance one another: if owners reach an impasse on appropriate management of the property, the relationship is ended by the property being sold on.

Division and sale is not available, however, where the property concerned is “of indispensable use”, such as a staircase in a tenement. In Rafique v Amin, a common owner of indispensable property argued that equitable considerations should therefore apply to the balancing consent rules in this context. The court disagreed, indicating that an owner should simply sell his own share if such an impasse arose.

Could a different conclusion have been reached by understanding shared ownership through a feminist lens? Work by Rose and Radin will be drawn on to suggest the long-term relationship consequences of property rights could and should have been recognised here.

HM Advocate V Drury (2001 SLT 1013)

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McDiarmid author abstract:

Drury v HM Advocate changed, or developed, the Scots law of murder in two respects: the principles of the partial defence of provocation and the mens rea (which was redefined as a “wicked” (rather than a simple) intention to kill.  This decision concentrates on the provocation issue.  For this, the case’s facts were legally characterised as falling within the concept represented by the “heat of passion” excuse recognised in a number of states in America.  In reality, however, this was, at best, a one-sided view. This feminist judgment will seek to give a voice to the perspective of the female (deceased) victim, Marilyn McKenna, which is not currently heard in the other judgments and also to consider the law’s response more generally to a crime which seems to have been precipitated by the male accused’s sexual jealousy.  The other judgments in the case take as a starting point that the accused was in a relationship with the victim from which he was entitled to expect sexual fidelity.  This one will re-examine both the alleged ‘factual’ basis of that claim and also the efficacy of the law in treating a murderous rage arising from such jealousy as a human frailty for which it mitigates conviction and, consequently, punishment.  It will consider the potential for the law’s approach to have the (possibly discriminatory) effect of rendering the provocation defence more accessible to male accused than to their female counterparts.  Taking the opportunity presented by the facts to re-examine more generally this form of the partial defence, it will appraise and re-define the acceptable bases for returning a verdict of culpable homicide on a murder charge taking into account the evolution of the legal principles from their historical roots in gentlemen’s honour codes alongside the needs of a 21st century society for non-gendered defences to murder.

Jex Blake v Senatus of Edinburgh University (1873 11 M 784)

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Kennedy author abstract:

This feminist judgment will reconsider the landmark case in which the Court of Session (Scotland’s highest civil court) held that women did not have the right to study, and graduate in, medicine at the University of Edinburgh. The case caused a great deal of legal and social consternation and its resolution required the input of the whole court. This judgment will be written from the perspective of one of the judges who heard the appeal and my determination in favour of the appellants (the women) will have the effect of altering the final preponderance of judicial opinions from 5-7, in favour of the respondents, to 6-6.

The main issues before the court were i) whether the women had an abstract right to study and graduate in medicine (which turned on the question of whether the university constitution permitted women to be admitted at all) and ii) whether the women had the right to study and graduate in medicine according to regulations passed by the university court to allow women to study medicine (subject to certain stipulations e.g. that they be taught in separate classes). None of the judges, even those in the minority, concluded that the women had the right to study and graduate in medicine in the abstract, and the majority denied the women had this right on the basis of the university regulations.

My feminist judgment will hold that women had a right to study and graduate from medicine in the abstract, based on the university’s founding documents and the lack of inherent wrongfulness in admitting women to study and graduate in this discipline (both of which were considerations raised in the case). It will hold that this right was not lost through disuse, as even the judges most sympathetic to the women’s claims held. It will do so by undermining the other judges’ speculations as to why women had not availed themselves of their alleged right in the past, and about the significance of graduation throughout the history of university education. It will go on to state that, even if this opinion is not accepted, the right of the women to study and graduate in medicine was clearly secured by the passing of the university regulations. In the course of my judgment, I will explicitly reject the opinions of some of the other judges, i.e. that women are not capable of, or unsuited, to the study of medicine; that mixed classes would have negative consequences; that women were too venerated to engage in such pursuits; and that anything other than jealousy underpinned the exclusion of women from this field. It will counter these views by drawing on the more radical, egalitarian conceptions of gender relations that existed, but were not mainstream, at the time and other social and contextual information from this period.

Although it would not have been possible for the court to give effect to the women’s claims of right (to uphold what are referred to as the petitory conclusions), because the relevant bodies were not party to the action, declaring these women’s rights would have had powerful symbolic and practical consequences. It would have placed the university under a moral duty to recognise these women’s rights and, importantly, would have enabled the women to continue their studies and graduate had they managed to gain the consent of the bodies who had the power to recruit professors who were willing to teach them (there was considerable support for the women’s cause within, as well as outside, the medical profession).

Salvesen v Riddell ([2013] UKSC 236)

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McHarg author abstract:

Salvesen v Riddell was the first civil case in which a provision in an Act of the Scottish Parliament was held to be outwith legislative competence and therefore “not law” in terms of section 29 of the Scotland Act 1998.  The case concerned section 72 of the Agricultural Holdings (Scotland) Act 2003, an anti-avoidance measure inserted into the legislation with retrospective effect in order to prevent agricultural landlords from circumventing the legislative intention to increase the security of tenure of certain classes of agricultural tenants.  The Inner House of the Court of Session, later confirmed by the Supreme Court, found that section 72 was an excessive and arbitrary interference with the landlord’s property rights contrary to Article 1 of the First Protocol to the European Convention on Human Rights.  The consequence was that the tenant farmer lost his tenancy – and therefore his home as well as his livelihood – and, in fact, he committed suicide between the Inner House and Supreme Court decisions.

Both the Inner House and the Supreme Court were notably unsympathetic to the stated aim of section 72, construing it as a punitive rather than an anti-avoidance measure.  In this judgment, I will argue that the proportionality of section 72 was more finely balanced than either court allowed, and I will consider whether approaching the issue through the lens of an ethic of care rather than an ethic of justice might have led to a different outcome.

Greater Glasgow Health Board v Doogan & Anor ([2014] UKSC 68)

Neal author abstract:

The case of Greater Glasgow Health Board v Doogan and another [2014] UKSC 68 concerned the scope of the right to opt out of participation in abortion under section 4 of the Abortion Act 1967. Two Glasgow midwives argued that they ought to be exempt, under section 4, from acting in supervisory roles in relation to abortion. Their arguments succeeded in the Inner House, but their employers successfully appealed to the Supreme Court, where it was held that only ‘direct’ participation in abortion was covered by section 4.

At first glance, it might seem redundant to write a ‘feminist judgment’ in the case of Doogan, given that the original Supreme Court judgment was delivered by Baroness Hale of Richmond, who identifies as a feminist judge. The original judgment misses the opportunity for a feminist analysis, however. Crucially, Lady Hale decides to regard the central question in the case (which she insists is ‘the only question’) as ‘a pure question of statutory construction’. By choosing to understand her task in this way, as what Rosemary Hunter has described as a ‘dry technical matter’, Lady Hale prefers a type of approach in which it is difficult to bring ‘a gender-sensitive approach’ to bear (Hunter, 2015, 134).

Such a ‘nose-to-statute’ approach declines to engage with quintessentially feminist priorities like relationships, care, context, and power; in other words, it leaves little room for feminist judging. By contrast, the alternative judgment offered here will begin with observations about gender and power, and explore questions of professionalism, vulnerability, and identity – and notions of a public/private distinction – from a perspective which keeps gender to the fore.

White v White (2001 SC 689)

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Norrie author abstract:

The Children (Scotland) Act 1995 establishes two principles: (1) that after separation both parents should continue to be involved in the upbringing of their children and (2) that the court should not make any order over a child unless it is persuaded that it would be better to make the order than not to make the order.  But what happens when these principles clash?  Which takes precedence?  What, indeed, is the juristic nature of these “principles”?

White v White was a factually mundane dispute between parents, who had separated, concerning the contact the non-resident parent should have with the child.  The sheriff held that the first principle meant that the onus was on the resident parent to show that terminating contact was in the interests of the child; the Sheriff Principal held that the second principle meant that the onus was on the non-resident parent to show that continuing contact was in the interests of the child.  The Court of Session, on appeal, held that neither principle created any onus.  How, then, are these disputes to be decided, and does anything in the 1995 Act have any counterweight to the concept, meaningless IN ITSELF, of “the welfare of the child”?  Might a better way of looking at such disputes be to focus on the child and the principle of the child’s rights?  How would the reasoning in White v White be affected if the underlying principle were that the child had a right to retain contact, or to have no order?  How would such a judgment be written if the parents’ gender were completely neutralised?