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The Gender Recognition Act 2004 and s.22 Privacy

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  • Prosecutions under s.22 of the Gender Recognition Act 2004 and Time Limits

    If someone has disclosed that you have a Gender Recognition certificate, or information that would lead a third party to believe that you have gender recognition certificate, or a new birth certificate because you are trans , then they have committed a criminal offence and you can report it to the police and expect the police to pursue the possibility of a hearing by the Magistrates Court, and a possible conviction .  (As to people affected under the act who are not in possision of a GRC) but are undergoing RLE, have changed their name and gender status there is still a requirement to respect confidetiallity the specifics of the law rrgarding this are vague regarding the GRA in that no common offence is listed only deemed an expectation of privacy.

    However, to date, 10 years after the Gender Recognition Act came into force, there have been no successful convictions  (source - freedom of information act)- in fact there has been nobody who has appeared before the Magistrates charged with this offence.  There are 2 key problems:

    There is only 6 months, after the offence, in which the police must put before the evidence before a magistrate.

    Frequently individuals do not know immediately that an offence has taken place, they may not hear about it for several months.

    Police Officers do not realise the seriousness of the Offence

    Police Officers find it hard to think of it as an offence; they are looking for gun shot or knife wounds, not someone saying something out of place.

    Can I bring a Private Prosecution under s.22 of the Gender Recognition Act 2004?

    If it looks like the Police will fail to start a prosecution under a s.22 offence within 6 months you can commence a private prosecution. The courts prefer you not to do this, but you are able to do it so long as you have very clear and good evidence, which the offender cannot deny.

    There is high authority that a private prosecution is a valuable safeguard against misbehaviour by official prosecuting authorities. [Lord Diplock in Gouriet v Post Office Workers [1978] AC 435 at 497 H to 498 B]
    Bringing a Private Prosecution

    A Private Prosecution is when an ordinary person who is the victim of a crime, or acting on behalf of a victim of crime, approaches a Court to ask that a Justice of the Peace (a magistrate) or a District Judge, issue a summons for the alleged 'guilty party' to address the question of the innocence or guilt in court.

     

    A Trans Person who is either

    Applying for a Gender Recognition certificate,  

    (so if a person states they are going to apply for the certificate, upon completion of RLE *intending to*) this is the vague bit  or must one be in the process of applying having made the statutory decleration required

    Or Who has been awarded a Gender Recognition certificate,
    may request a summons from the Magistrates Court, to be issued if:

    a person, X, who has obtained the knowledge in an official capacity, does something unlawful to disclose the transgender status of the trans person, and
    the trans person has good evidence of who X is, and
    the trans person has already approached the police , but
    the police are being reticent in either investigating the matter or in issuing the summons within a timely manner, and
    it looks like a summons will not be issued by the police within the 6 month period required for prosecution by the magistrates court.

    However, the Magistrates are

    entitled to consider all of the facts of the case before
    using their discretionary power to issue the summons, and
    the magistrates may choose not to do so, when they feel the circumstances do not warrant the summons because it is a hopeless case. (see below the case of Barry v Birmingham Magistrates Court)

    Barry v Birmingham Magistrates' Court [2009] EWHC 2571 (Admin) (2 October 2009)M

    This was a claim from a father's rights campaigner, B, who had sought a judicial review, having claimed that the decision of a District Judge, who had refused to issue a summons against his ex-wife, was incorrect.

    The District Judge who had refused to issue the summons, had suggested in court that it is a requirement that the person take the matter first to the police (which B had not done)

    B advanced his arguments clearly, skilfully, and with moderation in the Appeal court and won his case.

    Lord Widgery, in the Appeal Court, found for B. This is what Lord Widgery said:

    The District Judge was wrong in law.
    There is no requirement for a person seeking to have a summons issued to approach the police first.
    A person can approach a member of the Judiciary (incl. a Justice of the Peace at the Magistrates Court) directly and ask them to issue a summons.
    In making a decision as to whether to issue a summons, a Justice has discretion to issue the summons him/herself, however,
    This discretion is not without some limits.

    As Lord Widgery said, the magistrate:

    "should consider the whole of the relevant circumstances" and "must be able to inform himself of all relevant facts." [quoting from R v West London Metropolitan Stipendiary Magistrate [1979] 1 WLR 933. At pages 935 H to 936 B]

    What can a Relevant Circumstance be?

    Lord Widgery went on to say that in any particular case:

    Whether (or not) a person has approached the police to seek a summons, may be a relevant circumstance.
    The Justice or District Judge may find that if the police have failed to proceed in a case, that could demonstrate that it the case is hopeless and unlikely to succeed. As such
    The Justice or District Judge may not issue a summons in those circumstances.

    PFC has found that as the evidence of unlawful disclosure is generally straightforward, in prosecutions, under s.22 of the Gender Recognition Act 2004, the cases would be anything but hopeless cases.

     

    More recently, in another case, the House of Lords (now the Supreme Court) expressed greater scepticism about private prosecutions. In Jones v Whalley [2006] UKHL 41, [2007] 1 AC 63, 90, Jones was seeing the judicial review of the decision of a District judge who had refused to commence proceedings in a private prosecution. In the House of Lords, Lord Rodger said:

    "Nowadays public prosecutions are the rule. So, usually, the court will be concerned to prevent its process being misused by a public prosecutor. But, in times gone by, when private prosecutions were the rule, the court must have had the power to guard against the corresponding danger of its process being misused by a private prosecutor." [Jones v Whalley, para 24]

    However, despite Lord Rodger's reticence in the case, the Lords, overall, held for Jones had clearly made out his case. The district judge had breached principles for public law, and as such, the judicial review was granted to Jones. The matter was sent back to be considered again by the magistrate

    Conclusion: Bringing a private prosecution is not easy, and takes up an immense amount of energy and time. But, if the police will not adequately investigate, or issue a summons for, the unlawful disclosure of your status then if you have very good evidence including details of the disclosure, and the identity of the person who made the disclosure, it is well worth considering private prosecution, if you can get no other satisfaction of your complaint.

    Private prosecutions are not easy to bring but on many occasions the police do eventually pick up the case once a private prosecution has been started.

    But, you must ensure that the evidence must be clear, in hand, and straightforward, in order to avoid prosecution yourself as a vexatious litigant.

     

    Cristine Jennifer Shye.  B/L.  B/Acc
    This post was edited by Cristine Jennifer Shye. BL at September 5, 2015 2:17 PM BST
      September 4, 2015 3:48 PM BST
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