Abhishek Phadnis of LSE students’ Atheist, Secularist and Humanist Society gave the funniest speech at yesterday’s “One Law for All” protest outside the Law Society.

What’s the world coming to, if a man has to undertake the task of drafting his will without the state holding his hand through the process, guiding him, and helping him be as bigoted and chauvinistic and spiteful as he possibly can? As it happens, this question … occurred to the people behind you over there, and they … couldn’t bear to see this inconvenience being visited on chauvinists and bigots everywhere, and so they sought to smooth their path.

He imagined a solicitor acting on the Law Society’s sharia wills practice note when meeting a new client:

Oh, he looks a bit Muslim – where’s my bigoted wills folder?

In response to the argument that the Law Society’s practice note is no cause for concern since it does not change the law, he said

the law didn’t change when the first sharia courts opened for business in this country. The law didn’t change when over the past 30 years our law enforcement agencies arrived at a consensus that it wasn’t worth their while prosecuting people who take a razor to the genitalia of young girls.

The Law Society’s guidance, he said, rests on “two assumptions that are corroding our belief in human rights”:

first, you can get away with the most extraordinary offences to goodness and decency in this country if you do it in the name of religion, and in fact … the state will bow and scrape before you to facilitate your caprice and spite; but secondly … you can get away with the most extraordinary offences to the principles of equal rights if you limit your discrimination to discrimination against minority women.

The human rights and equality campaigner Peter Tatchell told yesterday’s protest at the Law Society that the demonstration was “just the start”. It would be better, he said, for the Law Society to concede now, and withdraw its practice note on sharia-compliant wills.

What the Law Society has done with its guidance on sharia-compliant wills is to say that it is prepared to collude with, to promote, to accept a different set of standards; it’s prepared to comply with … a set of principles that discriminates against women, non-muslims, adopted children and children born to parents who are unmarried.

He would clearly reject any suggestion his stance was somehow “anti-Muslim”:

First and foremost, this guidance is an attack upon sections of the Muslim community who do not share sharia law, who do not share its principles, who do not want to be subject to sharia law principles. So we are here to defend the Muslim community against those who would impose sharia upon it; we’re also here to stand in solidarity with all those Muslim people who are, have been or will be victims of sharia law.

At yesterday’s protest at the Law Society, Maryam Namazie of One Law for All told her audience that Algerian feminists have called that country’s use of sharia family law “twenty years of madness”, and that Iranian lawyers opposed the introduction of sharia law to the point of being arrested, exiled and even charged with apostasy – with the risk of the death penalty.

It’s “tragically ironic”, then, she said, that the Law Society of England and Wales should “side with the Islamists”

by issuing sharia-compliant guidance that matter-of-factly endorses discrimination against females, non-muslims and so-called “illegitimate” children.

Sharia, she said, is

based on a dogmatic and regressive philosophy, and a warped understanding of the concepts of equality and justice; it is primitive, patriarchal and based on inequality, retribution and religious immorality.

Following the Law Society’s publication in March of a “Practice note on sharia succession rules”, a protest was held in Chancery Lane yesterday evening, organised by One Law for All, Southall Black Sisters, the Centre for Secular Space and LSE students’ Atheist, Secularist and Humanist Society.

The problem with the practice note, in the view of the protesters, was that by publishing it the Law Society (which is publicly committed to equality and diversity) has not only got involved in religious matters that should not be its concern, but has lent its name to the argument that sharia should somehow be “recognised” in our legal system, and has legitimised an extreme and discriminatory approach to inheritance. The practice note says:

Certain principles of Sharia are different to English succession laws. For example … illegitimate and adopted children are not Sharia heirs.

The male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all, and only Muslim marriages are recognised …

This means you should amend or delete some standard will clauses.

About 70 people gathered outside the Law Society to protest, and heard speeches from Pragna Patel of Southall Black Sisters, Maryam Namazie of One Law for All, Charlie Klendjian of the Lawyers’ Secular Society, Peter Tatchell and others. I’ll be posting one or two of those speeches later. In the meantime, here’s the sound of the protest before the speeches began. You can hear Chris Moos, then Pragna Patel, leading the chants. This sort of thing can’t happen very often in Chancery Lane.

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:

@carlgardner No, that’s precisely what she should have done.

— Dan Hodges (@DPJHodges) April 15, 2014

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

@carlgardner @drwollastonmp The police first. — The Steeple Times (@SteepleTimes) April 16, 2014

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:

@allanholloway @LouiseMensch This is the problem. Fact “victims” thought it was disciplinary issue should have governed response. — Dan Hodges (@DPJHodges) April 15, 2014

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 –

@carlgardner @ian_pace @Emmabarnett Right. So why didn’t she respect that. — Dan Hodges (@DPJHodges) April 15, 2014

@carlgardner @ian_pace @Emmabarnett Right. So why did she keep encouraging them to go to the police. — Dan Hodges (@DPJHodges) April 15, 2014

– 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:

@carlgardner No, that’s precisely what she should have done.

— Dan Hodges (@DPJHodges) April 15, 2014

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)

@carlgardner @Emmabarnett It was wrong for her to involve the speaker, it was wrong for her approach the police. Self-evidently.

— Dan Hodges (@DPJHodges) April 15, 2014

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):

@DPJHodges Hardly any. It’s far too fine to make the difference between “exactly what she should have done” and “wrong”. @Emmabarnett

— Carl Gardner (@carlgardner) April 15, 2014

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.

I’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.

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.

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 lot to him, and he must have felt his personal life has been paraded in front of the entire public, and cast in a misleadingly negative light. Nothing will ever be the same for him, as he said shortly after his acquittal. Being cleared comes at a terrible price.

Here’s an account of the trial from two Guardian journalists who say the prosecution case “fell apart”, and recount how at least three of the men who gave evidence did not regard themselves as having been victims of sexual offences. And here are two accounts of the evidence given in cross-examination of the complainant who said he’d been raped.

The Crown Prosecution Service is far from perfect, and it makes mistakes. It can be perfectly reasonable to accuse it of wrongly prosecuting someone; I’ve done it myself, accusing them of an unlawful prosecution in fact. But the fact that he’s been cleared does not mean the CPS was wrong to charge Nigel Evans in this case.

Yet from some politicians and journalists – a group which often makes a significant contribution to the pain of those cleared in court – we’ve seen overreactions to his acquittal that have been ill-considered, and even dangerous. The former minister Crispin Blunt raised the old chestnut of anonymity for rape defendants, which is a bad idea in any case. And can you imagine the outrage of newspapers if an MP were charged with rape, and his identity kept a secret? For the most part, though, the overreactions have consisted of accusations that the CPS was obviously wrong to prosecute, from people who were not in court and have not had access to the CPS file.

Dan Hodges at the Telegraph wrote that

when it came to the Nigel Evans case, the police and Crown Prosecution Service decided to take [the] basic principles of justice, rip them up, and scatter them to the winds.

His piece led Mark Reckless MP to suggest the CPS should be put under political control:

The CPS isn’t working.It’s time for operationally independent Chief Prosecutors in each area to report to electedPCCs http://t.co/1XFpAA3zmo

— Mark Reckless MP (@MarkReckless) April 11, 2014

And Daniel Hannan MEP joined in the criticism of the CPS:

Nigel Evans happened to be an MP. How many less well known people have had their lives destroyed by the bungling of the police and CPS?

— Daniel Hannan (@DanHannanMEP) April 11, 2014

One criticism that’s been made is that the CPS should never have charged Nigel Evans because some of the men involved did not regard themselves as victims. That is I think a reasonable criticism of the charge based on an attempted kiss, which I too find it difficult to see as having been in the public interest to prosecute. To see an attempted kiss as a criminal matter, when its “victim” does not, seems to me to be going too far.

But not all these charges were about alleged kisses. As I understand it, at least two of them were about allegations that he’d put his hand down men’s trousers. That isn’t quite so trivial, especially once you think about how the same sort of thing should be dealt with by the CPS if alleged to have happened to a woman. Is it right to assume that the law should give less protection to men, including those in their early twenties?

Nor are the feelings of the alleged victims themselves necessarily decisive. It is not part of the the offence of sexual assault that the victim should feel the law has been broken.

It’s also important not to fall into the assumption that none of these men felt they’d been the victim of an offence. As I understand it, Nigel Evans was accused of assaulting seven men in all; I’ve not yet read a claim that more than four of them were reluctant to give evidence. So painting with too broad a brush about them can be misleading. There seem to have been at least two actual accusers.

One of them accused Nigel Evans of rape. His evidence seems to have been undermined in the witness box where he admitted he had not been completely truthful to the police. So perhaps it’s not surprising the jury acquitted on this charge; Nigel Evans always said they’d had consensual sex. But the fact that his evidence changed in the witness box does not mean the CPS could or should have foreseen that. The strength or weakness of evidence is tried in court in a way that it cannot be by any other method. That’s what a trial is for.

Two themes can be perceived in some of the criticism of the CPS, that I think are dangerous and important to counter. The first is the assumption that wherever a defendant is acquitted, some public servant must have done wrong: a charge should only be made where it leads to a conviction –

@carlgardner @MarkReckless No, it shows I understand that if a prosecution wasn’t secured by definition it shouldn’t have been brought.

— Dan Hodges (@DPJHodges) April 11, 2014

Proponents of this view may feel they’re standing up for the presumption of innocence. Actually the reverse is the case: it’s the equation of charge with guilt, which rests on the assumption that guilt can and should be effectively determined by the CPS before a case comes to court, that undermines the presumption. Real belief in the presumption of innocence involves accepting that prosecution evidence is capable of being shaken, and that even apparently solid allegations may not be made out at a trial.

The second theme is that the CPS is being too zealous in pursuing rape and sexual assault cases these days, something many people feel about historic allegations in the wake of revelations about Jimmy Savile. Remembering what didn’t happen to Jimmy Savile and what has happened since should make it obvious how easy it is for armchair critics to attack the CPS (like social workers) for acting, or not acting, or once again for acting – according to the transient Zeitgeist. Journalists and MPs should both beware of this.

But this wasn’t a historic case anyway. It involved an accusation of rape alleged to have happened just over a year ago. It’s widely accepted that relatively few rapes result in a conviction, and the main cause of this seems not to be the behaviour of juries, but the “attrition” of cases which fall at various stages before trial, because they’re unreported, or uninvestigated, or unprosecuted – and not always for good reasons. Not long ago two women obtained compensation for the failures of the police in investigating their complaints of rape, and concerns have recently been expressed that too strict an approach to charging by the CPS may be deterring the police from referring rape cases to them.

If we want to reduce unjustified attrition at the CPS stage, we must accept this means the CPS will charge rape more readily – less reluctantly, in other words – than they have done in the past; and that they won’t only prosecute the very strongest cases. Once you see the Nigel Evans case against that background, you begin to realise that political and media pressure on the CPS to “back off” or “ease up” on rape may be dangerous to women.

Nor is it right to pressurise the CPS to react to recent experiences of acquittals by playing jury percentages, and dropping cases on a probabilistic basis. That would be to adopt the “bookmaker’s approach” to prosecution decisions, rejected by the High Court in the FB case in 2009.

I’ve been impressed by Alison Saunders’s calm defence of the CPS over this case. I note that she quite rightly says she intends to review it, and that the CPS should learn lessons from it. If you’re interested, incidentally, here’s a speech she gave in 2012, before she became DPP, on the prosecution of rape and serious sexual offences. I think on this issue she is far above the level of many of her critics.

Bob Stewart MP has said 

the evidence clearly wasn’t enough for a prosecution

which is a classic case of wisdom after the event from someone who I doubt knows any more about the evidence than I do. But I’m more interested in his unhappiness about Nigel Evans’s outstanding legal bill. He said:

it’s wrong – we’ve got to sort that.

On this, I agree with him. The more I think of it, the more I feel it’s wrong for someone cleared at a trial to face a big legal bill. There might be a few exceptions (for instance if someone brings themselves under suspicion by in effect wasting police and court time) and I think it’s right for the state to limit its liability to acquitted defendants by reimbursing only the amount it would have paid had the acquitted defendant been legally aided. That is I think essentially the new system that’s been brought in since January this year (too late I think to apply in Nigel Evans’s case).

But Nigel Evans’s inability to reclaim any legal costs is a result of a change brought in by this government, for which Bob Stewart voted.

Photo: courtesy of TheApiarist

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 barristers … then they may end up having to represent themselves. That’s just not fair.

and she was concerned about the impact of self-representation on the criminal courts:

That’s going to increase costs to the criminal courts, because that’s going to increase time, delays … we need to be properly supported – and we’re not.

She surprised me with her confidence about the chances of further action shifting the government, and she was clearly up for further action.

The message needs to be sent loud and clear, as it is today, that this can’t go on. The courts can’t run without our assistance.