CEDAW/C/62/D/55/2013

United Nations

CEDAW/C/62/D/55/2013

Convention on the Elimination

of All Forms of Discrimination

against Women

Distr.: General

8 December 2015

Original: English

15-21605 (E) 130116

*1521605*

Committee on the Elimination of Discrimination

against Women

Communication No. 55/2013

Decision on admissibility adopted by the Committee at its

sixty-second session (26 October-20 November 2015)

Submitted by:

C.D. (represented by the Howard

League for Penal Reform)

Alleged victim:

The author

State party:

United Kingdom of Great Britain and

Northern Ireland

Date of communication:

13 March 2013

References:

Transmitted to the State party on 2 July

2013 (not issued in document form)

Date of adoption of decision:

2 November 2015

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Annex

Decision of the Committee on the Elimination of

Discrimination against Women under the Optional Protocol

to the Convention on the Elimination of All Forms of

Discrimination against Women (sixty-second session)

concerning

Communication No. 55/2013*

Submitted by:

C.D. (represented by the Howard

League for Penal Reform)

Alleged victim:

The author

State party:

United Kingdom of Great Britain and

Northern Ireland

Date of communication:

13 March 2013

The Committee on the Elimination of Discrimination against Women,

established under article 17 of the Convention on the Elimination of All Forms of

Discrimination against Women,

Meeting on 2 November 2015,

Adopts the following:

Decision on admissibility

1.1 The author of the communication is C.D., a British national born in 1993. She

claims to be the victim of a violation by the United Kingdom of Great Britain and

Northern Ireland of her rights under articles 2 (d) and (g) and 15 (1) of the

Convention on the Elimination of All Forms of Discrimination against Women. She

is represented by the Howard League for Penal Reform, a United Kingdom-based

charitable organization working on penal reform. The United Kingdom ratified the

Convention on 7 April 1986 and acceded to the Optional Protocol thereto on

17 December 2004.

1.2 On 4 December 2013, at the State party’s request, the Working Group on

Communications under the Optional Protocol, acting on behalf of the Committee,

decided, pursuant to rule 66 of the Committee’s rules of procedure, to examine the

admissibility of the communication separately from the merits.

* The following members of the Committee participated in the adoption of the present

communication: Ayse Feride Acar, Gladys Acosta Vargas, Bakhita Al-Dosari, Nicole Ameline,

Magalys Arocha Domínguez, Barbara Evelyn Bailey, Niklas Bruun, Louiza Chalal, Náela

Mohamed Gabr, Hilary Gbedemah, Nahla Haidar, Ruth Halperin-Kaddari, Yoko Hayashi, Lilian

Hofmeister, Ismat Jahan, Dalia Leinarte, Lia Nadaraia, Theodora Nwankwo, Pramila Patten,

Silvia Pimentel, Biancamaria Pomeranzi, Patricia Schulz, and Xiaoqiao Zou.

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Facts as submitted by the author

2.1 The author had a difficult upbringing and was placed in foster care at 12 years

of age and later in a children’s home. On 6 September 2007, at 14 years of age, she

committed a robbery offence, to which she pleaded guilty and for which she was

sentenced on 9 May 2008 at Leeds Crown Court. She was placed on a two-year

supervision order, under which she was required to attend meetings with a youth

offending team and to refrain from committing any further offences.

2.2 The author breached the supervision order and was convicted at Leeds Crown

Court of theft on 19 November 2008 and of three assault offences and two criminal

damage offences on 8 April 2009. The supervision order was nevertheless allowed

to continue.

2.3 In

September

2009,

the

author

was

placed

in

semi-independent

accommodation. According to youth offending team reports of December 2009 and

March 2010, she had “settled reasonably well” and “was demonstrating some

motivation to change by attending college once a week and keeping her youth

offending team appointments”. In December 2009, she became pregnant and was

attending a mother-to-be course.

2.4 In September 2009, the author breached the supervision order by failing to

attend two youth offending team appointments, and in December 2009, breached it

again by failing to attend a third appointment. On 8 February 2010, when she was

brought before Leeds Crown Court, the judge adjourned the hearing and ordered the

author to attend five more appointments. She did not do so and later explained that

the male officer on the team had “behaved inappropriately towards her” and made

her feel uncomfortable, although she did not provide that explanation at the resumed

hearing on account of the presence of the officer in question.

2.5 On 22 March 2010, the hearing resumed and the author was sentenced to a six-

month detention and training order for breaching the supervision order and was

placed in a child detention centre. The judge considered that she had repeatedly

failed to comply with the supervision order, which had been ineffective, and that

“he had no alternative but to revoke the order and send [her] immediately to

custody”, which would be the minimum commensurate with the gravity of the

offence of robbery and bearing in mind her troubled background, her pregnancy and

her age.

2.6 The author appealed against the decision to the Court of Appeal, arguing that

the sentence imposed was manifestly excessive, that the judge had failed to properly

consider the child welfare principle, in particular given her vulnerability as a child

in care, pregnant and with a history of self-harm and suicide attempts, and that the

prison sentence should have been imposed only as a measure of last resort and for

the shortest appropriate duration, namely four months. Although it was not a ground

of appeal, in her written statement to the Court, the author described the stressful

period that she had spent in custody, in particular as the only pregnant child, for

which she had been bullied verbally and physically by other inmates, and with

regard to losing her semi-independent accommodation and not being able to attend

prenatal classes.

2.7 On 25 May 2010, the Court of Appeal dismissed the appeal and upheld the

sentence, stating that the judge had done “all that could realistically have been

expected of him, and that his final reluctant decision to pass a custodial sentence

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[could] not be properly criticized”. As to the duration of the custodial sentence, the

Court considered that the “judge had a number of factors to balance and … it

[could] not be said that he was wrong to conclude that a six-month term was

appropriate for her and for society”. The Court also considered the author’s

subsequent progress in her behaviour and education and her pregnancy, but

determined that, “balancing these various considerations, they [were] not persuaded

that this [was] one of those exceptional cases where [the Court] should intervene

with the completion of the order made by the judge”.

2.8 The author argues that she has exhausted domestic remedies, noting that for a

criminal case to be reviewed by the Supreme Court there must be a reference by the

Court of Appeal to the effect that a point of law of general public importance is

involved, which should be considered by the Supreme Court.1

2.9 The author applied to the European Court of Human Rights, arguing that the

sentence was a violation of her right to a family and private life under article 8 of the

Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights). On 31 October 2012, the Court declared her application

inadmissible, without providing any reasons. The author claims that her application to

the Court does not constitute an “examination” under article 4 (2) (a) of the Optional

Protocol given that it was declared to be inadmissible without reasons being given. She

adds that in her complaint to the Court she did not raise the issue of discrimination,

which is being raised before the Committee, although she advanced two grounds,

namely her pregnancy and her sentence to detention for a significant proportion of her

pregnancy contrary to her best interests and, second, her distressing experience during

custody and the degrading treatment meted out to her. She also invoked the international

standards enshrined in the Convention on the Rights of the Child.

Complaint

3.1 The author alleges that, in the circumstances of her case, the availability of a

custodial sentence represents a national penal provision that constitutes

discrimination against women. She cites the Corston Report2 and rules 64 and 65 of

the United Nations Rules for the Treatment of Women Prisoners and Non-custodial

Measures for Women Offenders (the Bangkok Rules),3 and submits that the potential

repercussions of imposing custodial sentences on pregnant minors are exceptionally

grave, such that it is wholly disproportionate to impose a custodial sentence for a

breach of a pre-existing community penalty. The sense of isolation that can develop

(as it did in her case) while institutionalized has a far greater impact on a young

woman who is pregnant, as she is unable to develop key supportive relationships.

The inability to share key events, communicate or prepare for her child in a

practical sense can have significant negative repercussions for both mother and

child, as well as the wider community. The author further contends that it is not

__________________

1 The author cites section 13 of the Criminal Appeal Act (1995).

2 Jean Corston, The Corston Report (United Kingdom Home Office, 2007). This is a report in

which the situation faced by women with particular vulnerabilities in the criminal justice system

in the United Kingdom was reviewed.

3 Rule 64: “Non-custodial sentences for pregnant women … shall be preferred where possible and

appropriate, with custodial sentences being considered when the offence is serious or violent or

the woman represents a continuing danger”. Rule 65: “Institutionalization of children in conflict

with the law shall be avoided to the maximum extent possible. The gender-based vulnerability of

juvenile female offenders shall be taken into account in decision-making.”

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possible for a pregnant woman in prison to choose not to go through degrading

processes such as those she experienced when she was handcuffed for medical

appointments and strip-searched upon return; that such processes were imposed

because she was pregnant; and that, because the exceptionally grave repercussions

could never apply to males, the availability of a custodial sentence in such

circumstances was a penal provision that constituted discrimination against women,

in contravention of article 2 (g) of the Convention.

3.2 The author further claims that the imposition of a custodial sentence in her

circumstances violated her rights under article 15 (1) of the Convention. Again

citing the Corston Report, she contends that the disproportionately detrimental

effects for women of the penal provisions as compared with the effects for men

demonstrate that women are not accorded substantive equality before the law in the

State party.

State party’s observations on admissibility

4.1 On 23 September 2013, the State party submitted its observations on the

admissibility of the communication and requested the Committee to examine the

issue of admissibility separately from the merits.

4.2 The State party contended that the communication was inadmissible under

article 4 (1) of the Optional Protocol because the author had failed to exhaust

domestic remedies. It noted that the substance of the discrimination complaint

raised before the Committee should have been raised before the national courts. It

cited the jurisprudence of the Committee to the effect that “the substance of their

complaints that were subsequently brought before the Committee should first be

made to an appropriate domestic body. Otherwise the motivation behind the

provision would be lost. The domestic remedies rule was designed so that States

parties have an opportunity to remedy a violation of any of the rights set forth under

the Convention through their legal systems before the Committee addresses the

same issues.”4 It noted that the author’s claims before the Committee under articles

2 (g) and 15 (1) turned on assertions of discriminatory treatment, which had never

been raised before the Court of Appeal or the European Court of Human Rights,

even though such a claim had been available to her. Under the Human Rights Act,

the author could have invoked article 14 (prohibition of discrimination) of the

European Convention on Human Rights. She instead invoked alleged breaches of

her rights under articles 8 and 53 thereof.

4.3 The State party also contended that the communication was inadmissible

because the same matter had already been examined by the European Court of

Human Rights. It noted that the procedure before the Court clearly involved an

examination of the complaint and therefore fell within the scope of article 4 (2) (a)

of the Optional Protocol. The State party noted that the author had submitted no

authority in support of her contention that the lack of reasons provided by the Court

negated the “examination” status of the procedure and that her assertion was flawed

__________________

4 The State party cites, in this connection, the jurisprudence of the Human Rights Committee,

European Court of Human Rights case law and the Committee’s views and decisions in

communications No. 5/2005, Goekce v. Austria, views adopted on 6 August 2007; No. 10/2005,

N.F.S. v. the United Kingdom of Great Britain and Northern Ireland, decision of inadmissibility

adopted on 30 May 2007; and No. 8/2005, Kayhan v. Turkey, decision of inadmissibility adopted

on 27 January 2006.

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inasmuch as, where the procedure, as in the present case, was of a judicial nature,

the mere absence of reasons could not exclude it from the scope of article 4 (2) (a).

4.4 Lastly, the State party submitted that the communication was manifestly ill

founded and therefore inadmissible pursuant to article 4 (2) (c) of the Optional

Protocol. In her claim to the Court of Appeal and the European Court of Human

Rights, the author did not challenge the lawfulness of any statutory provisions. She

accepted that the detention order was lawful but contended that her detention as a

pregnant child was not necessary or proportionate and that her sentence should have

been for the briefest possible period. The State party suggested that what the author

was challenging before the Committee was in fact the application of the statutory

regime (the availability of a custodial sentence) to her case, thereby merely

challenging the discretionary decision of the sentencing judge. The challenge to the

exercise of judicial discretion thus fell outside the scope of article 2 (g), which deals

specifically with national penal provisions.

Author’s comments on the State party’s observations

5.1 On 18 November 2013 and 4 February 2014, the author challenged the State

party’s observations on the admissibility of the communication. She argues that the

substance of her claims, namely her condition as a pregnant minor, which made her

particularly vulnerable to, and disproportionately affected by, the custodial sentence,

was raised before the Court of Appeal. Her experience of discrimination in custody

was also put squarely before the Court. Implicit in this factual and legal nexus is the

contention that she was subjected to discriminatory treatment. The author notes that,

while article 14 of the European Convention on Human Rights was not formally a

ground of appeal, it was clear that the issue of discrimination was before the Court.

In such circumstances, and given the context of seeking to protect human rights, she

submits that the exhaustion rule should be applied with some degree of flexibility

and without excessive formality.5

5.2 As to the use of international procedures, the author reiterates that the

complaint submitted to the European Court of Human Rights could not be said to

have been examined because it was not the same matter inasmuch as discrimination

had not been explicitly raised before the Court and because the Court provided no

reasons for its decision.

5.3 The author also disputes the State party’s contention that the communication is

ill founded. She argues that the statutory provisions that allow the imposition of a

custodial sentence in circumstances such as hers constitute discrimination against

women contrary to article 2 (g) of the Convention, and that the State party’s failure

to take positive action to eliminate the gender discrimination inherent in its criminal

justice system and to recognize the need to make adjustments to ensure substantive

equality before the law constitutes a failure to accord women equality with men

before the law, in contravention of article 15 (1) of the Convention.

__________________

5 The author cites the Court’s case law to support her statement, for example in the cases of

Ringeisen v. Austria (application No. 2614/65), Lehtinen v. Finland (application No. 39076/97),

Cardot v. France (application No. 11069/84) and Kozacioglu v. Turkey (application No. 2334/03).

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State party’s additional observations

6.1 On 28 February 2014, the State party reiterated that the issue of sex

discrimination had at no time been raised before the national courts and that those

courts had therefore not had the opportunity to assess or remedy the alleged

violation. The State party argues that the case law of the European Court of Human

Rights invoked by the author to suggest that the rule of exhaustion is neither

absolute nor automatically applicable is irrelevant in her case and relates to

exceptional circumstances where, for example, there are no effective remedies in

national courts or where there is some relevant legal or political context.

6.2 The State party notes that, to comply with the rule on exhaustion of domestic

remedies, it is sufficient for the complaint to be raised in substance and challenges

the author’s contention that the substance can be considered to have been raised

where a complainant simply relies on the same facts before the national courts and

the Committee. The State party argues, on the contrary, that the complainant must

have made the substance of the complaint in both fact and law to the national

authorities.

6.3 Lastly, the State party notes that neither of the author’s arguments — that the

statutory provisions pursuant to which a custodial sentence was imposed on her

were inherently discriminatory against women and that the United Kingdom failed

to ensure substantive equality before the law by failing to take positive action to

eliminate discrimination inherent in its criminal justice system — were ever raised

before the national courts.

Issues and proceedings before the Committee concerning admissibility

7.1 In accordance with rule 64 of its rules of procedure, the Committee must

decide whether the communication is admissible under the Optional Protocol.

Pursuant to rule 72 (4), it is to do so before considering the merits of the

communication.

7.2 The Committee recalls that, under article 4 (1) of the Optional Protocol, it is

precluded from considering a communication unless it has ascertained that all

available domestic remedies have been exhausted unless the application of such

remedies is unreasonably prolonged or unlikely to bring effective relief.

7.3 The Committee takes note of the State party’s contention that domestic

remedies were not exhausted in the present case because the author at no time

presented her claims based on sex discrimination before the national courts, which

she could have done under the Human Rights Act, and that therefore those courts

had no opportunity to assess or remedy the alleged violations of the Convention as

invoked by the author before the Committee. The author has contended that the

issue of discrimination was implicit in her arguments and in the facts presented to

the Court of Appeal, even though at no time did she invoke her discrimination claim

as a ground of appeal. The Committee recalls that, in line with its established

jurisprudence, authors of communications are required to raise in substance before

the national courts the alleged violation of the provisions of the Convention, thereby

enabling a State party to remedy an alleged violation before the same issue is raised

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before the Committee.6 By “substance”, the Committee understands that the alleged

violation or violations should be invoked in the claims before national courts and

not appear merely in the facts of the case.

7.4 In the present case, the Committee notes that, under the national law in force,

the author could have put forward arguments that directly raised the issue of

discrimination on the ground of sex before the Court of Appeal. The Committee also

notes that at no time was a claim of sex discrimination made by the author before

the Court and that her grounds of appeal were based solely on the sentence, which

she claimed was manifestly excessive in view of her age at the time of the offence

and the failure of the judge to properly consider the child welfare principle,

especially in the light of her vulnerability as a pregnant child with a history of self-

harm and a suicide attempt. In that regard, the Committee is of the view that the

author’s mere reference to her pregnancy does not constitute, implicitly or

explicitly, a claim of discrimination on the ground of sex. The Committee further

notes that the author has not supported her argument that the remedies available

would have been ineffective to address such claims on the grounds of

discrimination. In the circumstances, the Committee concludes that, for the purposes

of admissibility, the author has not exhausted domestic remedies and that the

communication is therefore inadmissible under article 4 (1) of the Optional

Protocol.

7.5 In the light of its conclusion, the Committee decides not to examine any of the

other inadmissibility grounds raised by the State party.

8.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 4 (1) of the

Optional Protocol;

(b)

That this decision shall be communicated to the State party and to the

author.

__________________

6 See, among others, the Committee’s decisions in communications No. 11/2006, R. Salgado v. the

United Kingdom of Great Britain and Northern Ireland, decision of inadmissibility adopted on

22 January 2007, para. 8.5; No. 8/2005, Kayhan v. Turkey (see footnote 4), para. 7.7; and

No. 10/2005, N.F.S. v. the United Kingdom of Great Britain and Northern Ireland (see footnote 4),

para. 7.3.