Papers by Felicity Gerry KC
In addition to an overview of the background and history, this article will consider Timor-Leste'... more In addition to an overview of the background and history, this article will consider Timor-Leste's progress through public laws, its judicial independence and the role of customary law. We conclude that access to justice through effective investigation, charging, legal advice and judicial training is absolutely vital for the protection, health and positioning of women and girls in any future economic prosperity for Timor-Leste. Finally, some policy recommendations are made.
The prerogative of mercy is an ancient power to forgive, or temper the punishment of, a legal wro... more The prerogative of mercy is an ancient power to forgive, or temper the punishment of, a legal wrong. In the Middle Ages in England, and later in colonial Australia, it was regularly used to spare the lives of persons found guilty of offences carrying mandatory death sentences. Scholarship and case law considering the prerogative of mercy in the United Kingdom and Australia have almost exclusively focused on its application to pardon persons whose convictions are attended by doubt, irregularity or other infirmity. This article takes a different perspective, highlighting the continued, albeit limited potential application of the prerogative of mercy to alleviate the injustices occasioned by mandatory sentencing. This potential application of the prerogative of mercy is explored in its historical, theoretical and contemporary dimensions, with the contemporary discussion focusing on a recent Australian case study. Drawing upon the case study and the historical and theoretical discussion, this article concludes by making practical recommendations as to how defence lawyers might begin to more regularly petition for mercy in mandatory sentencing cases.
Special measures for victims of trafficking
Journal of human trafficking, Dec 16, 2019
The discourse around non-liability for Human Trafficking Victims (HTVs) who commit crime has been... more The discourse around non-liability for Human Trafficking Victims (HTVs) who commit crime has been largely altruistic. However, there is a limit to altruism where there is also a victim of crime, which may explain why global implementation of commitments to protect HTVs has been haphazard. This article uses mathematics and modeling to attempt to prove why to achieve non-liability for HTV's who commit crime, specific legal frameworks are necessary, not merely policy considerations. We begin by outlining the international legal commitment under the United Nations Trafficking Protocol, then contrast implementation in the United Kingdom and Australia. We then evaluate the effectiveness of implementation using Nash's seminal solution to noncooperative games and the mathematical framework described by Slantchev through the social behaviour typology established by Martin Shubik and others in Game Theory and Related Approaches to Social Behavior (1964). Finally, we remark that the failures in implementation are exacerbated by traditional systems which tend to see any vulnerability as mitigation of sentence not non-liability. We conclude that, logically, only a combination of diversionary policy together with complete legislative defenses implemented at domestic level will fulfill international commitments to protect those trafficked to commit crime. Game theory helps to prove the obvious.
OPCAT, places of detention and COVID-19: Joint submission to the Select Committee on COVID-10
Nazi flag flying over Victorian home condemned amid calls to ban public display of the symbol
Emerging and Future Technology Trends in the Links between Cybercrime, Trafficking in Persons and Smuggling of Migrants
An analysis of the links between human trafficking, smuggling of migrants and cybercrime, we sugg... more An analysis of the links between human trafficking, smuggling of migrants and cybercrime, we suggest, exposes the overlap between legal principle and technological methodology This paper focuses on the role of emerging technological trends can have in the paradigm that may involve the protection of those who commit crime. We suggest that these issues should be considered at the development stage of technology and the proposal stage of an investigation, particularly where data is both harnessed and collected to tackle organised crime. The tension that trafficking and smuggling creates in the context of cybercrime is a challenge to rules-based order and rights-based policy because it requires a focus on protection rather than prosecution of those hitherto considered to be perpetrators. This in turn requires a greater interaction between the disciplines of law and technology.
Practitioner perspective Feminism in court – practical solutions for tackling the wicked problem of women’s invisibility in criminal justice
Edward Elgar Publishing eBooks, Apr 26, 2019
A reproductive rights framework supporting law reform on termination of pregnancy in the Northern Territory of Australia
This article describes the reproductive rights framework underpinning the campaign to reform the ... more This article describes the reproductive rights framework underpinning the campaign to reform the law on termination of pregnancy in the period 2013 to 2017 in the Northern Territory of Australia. We begin by outlining the pre-reformed legislation governing abortion in the NT. We then evaluate the reformed 2017 law using the typology established by Cook and Ngwena,[1] namely: (1) whether the law provides evidence-based access to health care; (2) whether it provides transparent access to health care; and (3) whether it provides fair access to health care. We finish by remarking on the continuing problems with the legislation and conclude that only complete decriminalisation will fulfil Australia’s commitments under the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) and other human rights instruments. [1] Rebecca J Cook and Charles G Ngwena, 'Women's Access to Health Care: The Legal Framework' (2006) 94(3) International Journal of Gynecology & Obstetrics 216.
Issues in Legal Scholarship, 2017
Increasing globalization means that some actions or events transcend national boundaries and ofte... more Increasing globalization means that some actions or events transcend national boundaries and often require harmonization of responses. This is increas ingly apparent in the context of violence against women and girls as movement of people and culture creates new challenges. News of accusations of dowry harass ment against actress Smita Bansal caused a sensation in December 2015. The alle gations arose during her brother's divorce in London. It was suggested that her family had taken away jewelry and money from her sisterinlaw during marriage to her brother. The allegations were refuted. True or otherwise, the issue of dowry has been catapulted onto the world stage. Whilst the demanding and giving of dowry has been effectively illegal in India since 1961 (The Dowry prohibition Act, 1961), the practice continues and has been exported globally with migration. No similar pro visions appear outside India to protect extra territorial dowry demands or harass ment. Research is scant but news reports suggest that women are burned, poisoned, beaten and forced to commit suicide. Female children suffer infanticide and foeti cide when dowry is unpaid or deemed insufficient. This paper explores these issues.
International Human Rights Law and Sexual Violence Against Men in Conflict Zones
Sexual violence is an abhorrent, and sadly prevalent, feature of many conflicts. The widespread o... more Sexual violence is an abhorrent, and sadly prevalent, feature of many conflicts. The widespread occurrence of sexual violence has a devastating impact on the victims and society at large. Although international treaties seek to prevent such violence occurring these are often ineffectual at times of socio-political flux and therefore protection is required for the victims of these atrocities. Current discourse on sexual violence arising in conflict zones focuses almost exclusively on violence perpetrated against women and children - these groups making up the large majority of reported incidents. However, the current figures do not accurately reflect the number of male victims of sexual violence. A lack of reporting by male victims, for reasons of shame, guilt and fear of not being believed or of being denounced for what has occurred, has created an inaccurate representation of the dynamics of sexual violence in conflict zones. This lack of accurate primary data contributed to the development of a culture of silence amongst governmental organisations and NGOs on the subject of male victims. In the past decade this silence has begun to break but there still remains a reticence to fully engage with the realities of male victims of sexual violence. Efforts have been made to create international legal instruments to provide recourse for victims of sexual violence. However, the positive steps taken to develop an effective framework of legal protection have been focussed almost exclusively on the protection of female and child victims. The lack of recognition of male victims of sexual violence has resulted in an international legal blind spot that needs to be addressed. The gender imbalance of current legislation should be rectified by the UK working towards a UN General Assembly resolution recognising sexual violence against men and demonstrating the UN’s commitment to a gender-neutral approach to sexual violence. Greater protection for the victims of sexual violence can be achieved by the UK accepting the right of individual petition under the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture – allowing those whose rights under the treaty have been violated to bring their case directly to the treaty body. The recommendations of this paper seek to: raise awareness within the international community of the male victims of sexual violence in conflict zones; clarify the legal landscape; and provide access to legal redress for previously underrepresented victims.
British journal of midwifery, Jul 2, 2020
Performing Female Genital Mutilation (FGM) is prohibited within the United Kingdom by the FGM Act... more Performing Female Genital Mutilation (FGM) is prohibited within the United Kingdom by the FGM Act 2003. A mandatory reporting duty for FGM requires regulated health and social care professionals and teachers in England and Wales to report known cases of FGM in under 18-year-olds to the police. An Application to the Court for an FGM Protection Order (FGMPO) can be made to keep individual women and girls safe from FGM. This paper reveals the significant disconnect between the number of FGMPO applications and known recorded cases of FGM. The introduction of FGMPOs requires critical exploration as there is insufficient evidence to show that FGMPOs are effective in protecting women and girls from FGM. It is therefore unclear what impact, if any, FGMPOs are having upon the protection of women and girls at risk of FGM. The barriers to the implementation of FGMPOs and possible solutions are discussed.
Exposure to the elements : Secondary stress for lawyers
Solicitors Journal, 2015
The letter had begun: ‘Dear Lee Moore, my grandmother used to sew my clothes into my skin with ye... more The letter had begun: ‘Dear Lee Moore, my grandmother used to sew my clothes into my skin with yellow cotton…’. These words, written in black biro, on narrow, lined paper torn from a notebook, plus the intrusive imagery which accompanied them, prevented me from sleeping. I went downstairs at three in the morning, ate some hot-buttered toast, tried watching TV, then reading, but the imagery and words would not leave me. I could not concentrate. Self-medication was not a successful antidote. Abandoning my resolve not to bring work home or into my marriage, I woke my husband and asked him to talk to me. It proved a temporary solution for neutralising what I was shortly to discover was a symptom of secondary traumatic stress (STS). This is a natural stress that can occur in those exposed to traumatic material on a regular basis. STS strikes suddenly and without warning. It is an event, unlike burnout, which is a slow process.
Computer Law & Security Review, Aug 1, 2015
A case involving Microsoft that is currently before the US courts has raised important issues bet... more A case involving Microsoft that is currently before the US courts has raised important issues between the respective legal regimes in the European Union and the United States, particularly in relation to the protection of personal data. The case in question has given rise to a degree of legal uncertainty and the outcome could have potentially serious implications for data protection in the EU. By seeking direct access to data held in the EU through the US judicial system, existing legal mechanisms for mutual assistance between jurisdictions may be being effectively bypassed. There are fundamental issues at stake here as regards the protection of personal data that is held within the European Union. This is clearly an area where technological advances have taken place in a very rapid fashion. The right to privacy should be afforded maximum protection whilst ensuring that law enforcement agencies have the necessary mechanisms at their disposal to effectively fight serious crime. 2
Ethics and professional conduct
Contraception, Oct 1, 2016
Why the Kim Jong-nam assassination raises the need for a human trafficking framework
Sexual Offences Handbook: Law, Practice and Procedure
The law and procedure relating to sexual offences is notoriously complex. Since the advent of the... more The law and procedure relating to sexual offences is notoriously complex. Since the advent of the Sexual Offences Act 2003, the law (both as to the offences and as to sentencing) changes depending on when the offence was committed, the age of the parties involved and the nature of the act committed. This new guide deals with historic and recent sexual offences, providing a step-by-step approach to the relevant law and procedure, including matters arising before and during trials, from the perspectives of both prosecution and the defence. It also provides coverage of proposed amendments and new legislation arising from the Policing and Crime Bill 2008 and the Coroners and Justice Bill 2009. Written by two practitioners with extensive experience of preparing and presenting sex crime trials, this practical and accessible work will prove an invaluable reference for all practitioners working within this specialised area of criminal law.
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Papers by Felicity Gerry KC