Skip to content Skip to sidebar Skip to footer
Cyclefree
Cyclefree
Close

What reputation?

26 April 20240Comments

In which inquiry into which institution (and, for a bonus point, when) were the following failings reported?

– warnings or concerns raised by junior staff were ignored or hidden away

– senior staff and colleagues were aware but turned a blind eye

– complainants, both internal and external, were treated as troublemakers

– a tendency to close ranks against those raising concerns

– missed opportunities: all too many moments when something could have been said, should have been said but was left unsaid

– retaliation (or threats of it) against staff

– a culture of deference: both to senior staff and to the institution

– viewing the protection of the institution’s perceived reputation as more important than dealing with its failings.

No: not the Post Office Inquiry – though all these factors, and plenty more – outright lying (by omission, at the very least), a veritable epidemic of amnesia, an inability to read or understand any sort of written document and a quite remarkable failure to understand that work in a paid job involves actually doing things, ideally useful ones – could, on the evidence of the last fortnight, be added to the list.

No – all these were the findings of an inquiry into the Gosport War Memorial Hospital in 2018 where over very many years 450 patients had their lives shortened because of the unjustified actions of clinical staff. It is a reminder that such behaviour is not a one-off, not confined to any one atrociously run institution.

That affair had something else in common with the Post Office matter. 12 different sorts of investigations over 27 years failed to uncover the full facts or lead to effective action. How can this be? Well, different bodies with different agendas, powers, without access to all the information and sometimes lacking the relevant skillset do not result in the ideal investigative set up.  

But in truth, institutions do not always really want to know about their failings. Such investigations, reviews, audits and reports are often designed to create the impression of feverish activity while uncovering nothing and giving the desired – but usually false – reassurance. So it was with Gosport Hospital – and so it was with the Post Office.

And so it has been in pretty much every other scandal, failing or other disaster: whether it is at a Boeing, a police force (too many to mention), NHS trusts (again too many to mention), charity, government department or any of the bodies where serious problems have been uncovered. The same problems, the same human failings recur in very different organisations and sectors. They recur in how mistakes happen or problems arise and, crucially, in how such organisations and those working in them respond to such mistakes and problems when they do happen.

Not if. When. Things do go wrong. But this is rarely the reason scandals happen. They happen because of how those organisations, the leaders within them and those advising them behave in response. It is how organisations – and those working in them – deal with failure, problems and mistakes which cause scandals.

Of all the WTF moments at the Post Office Inquiry in recent days, the revelation that the Post Office’s response to the suicide of a subpostmaster (Martin Griffiths, under stress because of discrepancies he blamed on Horizon and after having been made to repay money stolen by robbers who beat him up) was to appoint a media lawyer to advise it as he lay dying in hospital and then to “drip feed” compensation payments to his widow to buy her silence is one of the worst. The cynicism, the exploitation of grief and weakness, the bullying, the determination to avoid scrutiny, to prevent the facts – even when a tragedy happens – coming out are bad enough. That this was done by senior executives with the help and advice of professionals, none of whom seem ever to have asked themselves whether what they were doing was right makes it infinitely worse.

One of the key executives involved in this – Angela Van Den Bogerd – gave evidence at the 2019 “Common Issues” trial in the Bates litigation. Mr Justice Fraser said of her that she had sought to mislead him and, in future, he would only accept evidence from her if it was “clearly and incontrovertibly corroborated by contemporaneous documents“. This is the judicial equivalent of “Liar, liar, Pants on fire.” There was no investigation by the Post Office into her conduct following that trial, no adverse effects for her at all. On the contrary, she received a bonus for her work.

Organisations and professionals behaving like this show us who and what they really are. They have no reputation worth preserving.

Photo by MARK ADRIANE on Unsplash

Leave a comment

The Manuscript, The Notary and The Forgetful Publisher

21 April 20240Comments

This week I became a character in a story that might have been written by Balzac and found myself part-owner of a work of national cultural importance.

It started with a beautifully written letter from a firm of genealogists working for the French government, complete with official stamps. They were writing to me as one of the heirs of my great-great-grandfather, André Adolphe Sala, Count Sala. A scam? No – the firm was genuine. One of the key details was wrong, however. There was a missing “great”. He was my great-great-great-grandfather. Tsk. Unlike many, I can trace my ancestors back very many generations because many of them are famous and so others have taken an interest and done all the hard work. I knew they were famous but growing up they were simply family characters, a source of stories, as everyone sooner or later was.

André Alphonse Saladduchin was born in Florence in 1802 later moving to Paris. His god-father was Ferdinand de Lesseps, the engineer who built the Suez Canal. André Sala wrote a book about the 1830 revolution which overthrew Charles IX and put his cousin, Louis-Philippe on the French throne – Dix Jours De 1830: Souvenirs de La Dernière Révolution. He was part of a corps of engineers who went to Egypt with de Lesseps, died and was buried there. His eldest child, Jeanne, was my grandmother’s grandmother: five generations of eldest children – all female. Jeanne married Alexandre Colonna Walewski, the French Consul-General to Turin (and son of the French-Jewish actress, Rachel Felix), had two children and died aged 35 in Palermo. But her eldest child – Madeleine, my great-grandmother, known by all as “Grand-mère” – lived to 86, dying only 3 years before my birth. She was very close to her father, who wrote a loving book to her on her marriage: a sort of guide to and advice on life. One day I must translate it. 

Then came my grandmother – also called Jeanne, my mother and me. All formidable, fierce and, in the case of my mother and grand-mother, fiercely loving women with a zest for life and a sense of fun. Grand-mère was rather stricter and keen on the social proprieties. She did not get on particularly well with her daughter, was teased by her grand-children and, despite living with them, must have been a glowering family presence.

They were born into well off, socially respectable, aristocratic Franco-Italian families, with a keen sense of their place in the social structures of their day. As happened to so many, the expected rhythms of their lives were disrupted by tumultuous political changes, especially in France, wars, its privations and diseases. Social appearances and public conduct mattered but behind that there was much disgraceful misconduct: affairs, illegitimacy, an actress in the family and so on. Despite all the changes, when I was growing up with my grandparents in Italy, many of the rhythms of that 19th century/pre-WW2 life remained – clothes for “best”, afternoon tea with aged distant relatives, chamber pots next to the bed to avoid night-time walks down long draughty corridors to the bathroom, the children brought to the adults’ drawing room to be admired and cooed over and told how much they’d grown then sent back to the playroom to our relief and, I suspect, theirs, the silver polished for special occasions, a reverence for French culture, noisy arguments about current affairs, long-standing family quarrels and historical events as if all mattered equally and an admiration for Britain: tea, tailoring, tartan and novels by long-forgotten lady novelists later revived by the Virago Press. Their bookshelves were an eclectic mix: Radclyffe Hall’s “The Well of Loneliness” was mixed in with the Fables de La Fontaine, Hector Malot, Sorrell and Son and AJ Cronin. Pearl S Buck too. I read them all voraciously and the life described in 19th and early 20th century novels did not seem that unfamiliar.

Why is the French government writing to me? 

A few years back, the descendants of a Parisian notary tried to sell the only remaining manuscript of Mémoires d’Outre-Tombe by François-René de Chateaubriand, the father of French romanticism and a key influence on Victor Hugo. (It had remained undisturbed in a notary’s safe for 180 years). The sale was stopped and after a lot of arguments between the descendants of the notary and the writer, the French government established that the manuscript belonged to a publishing house, one of whose partners was André Sala. How many engineers owned publishing houses then? Or now?

The letter went on: the French government wished to “acquire” the manuscript and needed the heirs’ permission to do so. There are many heirs: 8 from Jeanne Sala through her daughter – Grand-mère; another 10 through Grand-mère’s brother, André, and who knows how many from Jeanne Sala’s brother. He, Maurice, married (like so many aristocrats of his generation) an American – Emily Sanford – known to my mother and grandmother as Tante Sala. I have a portrait of her in old age when my mother would have known her: faded as it is and despite the damp spots, she was beautiful.

“Acquire”. What does that entail? A polite “merci” accompanied by the assurance of “sentiments les plus distinguées”? Filthy lucre? Who knows? The family tree and names of heirs will be sent to the Ministry of Culture who will then contact us. If they are all as argumentative as my family, the Ministry will be trying to herd cats. For my part, I look forward to a ceremony (I shall wear the bracelet André Sala bought for his daughter in Egypt, an entirely worthless example of Egyptian gift shop workmanship ca. 1860) where I will be presented with a cheque (a banker’s draft would be comme il faut) for some magnificently irrelevant sum which I can frame and hang next to Tante Sala.

A lawyer would say that this is what comes of not making clear wills. Pfft! And miss out on such a story, nearly 2 centuries in the making. Non!

Leave a comment

The Heart of the Matter

13 April 20240Comments
The Watergate Senate hearings – 1973

Senator Howard Baker’s question: “What did the President know and when did he know it?” went to the heart of the Watergate scandal. But it was another question, asked almost as an aside, which provided the damning evidence: the question to Alexander Butterfield, a Nixon aide, about whether, in addition to the taped instructions given by Nixon to his secretary every evening, there were other recording devices in the White House. That “yes” and the content of those tapes provided the evidence that the conspiracy went right to the top and right from the start.

Something similar seems to be happening now in the Post Office Inquiry with the release of numerous recordings, involving conversations between the external investigators, Second Sight, and the Post Office’s General Counsels, Susan Crichton and, later Chris Aujard. Much of the focus has been on what they show about Paula Vennells’ knowledge of Horizon’s failings and its consequences for subpostmasters, contrary to what she later claimed to a Parliamentary Select Committee.

There has been an understandable focus on what Vennells, her Chairs, Alice Perkins and Tim Parker and the lawyers knew and did from 2013 onwards when Second Sight were telling them what they were finding. But this has two dangers:

  1. Ignoring the role of those who were in charge long before Ms Vennells became CEO. They were told very specifically of the problems. I have written more here about what Allan Leighton, Chair in 2003 was told by Alan Bates. Mr Bates was also telling others in the Post Office from 2000 onwards. Alas, there are none so deaf as those that don’t want to hear.
  2. Not asking questions of those further up the chain of command: those who held the purse strings, who owned the company – the government – which had a director representing its interests on the Board.

Some Questions

– How far were the Board’s actions – and failures to act – influenced by the government’s push to make Royal Mail profitable and ready for privatisation?

Remember: by the time of privatisation the majority of the prosecutions, the miscarriages of justice had happened. The Post Office was still part of Royal Mail. The evidence of Sir Michael Hodgkinson this week made it clear that the Post Office was still relying on committees of the Royal Mail Board to do detailed consideration of matters which the Board should have been considering (though how effective this was is open to question). Those in charge of Royal Mail were ultimately responsible.

– Did the Board fail to act because it did not know or want to know?

– Or did it act in the way it did – which looks remarkably like an attempt to cover up what had been happening – because that was what its owner, the government, wanted?

– Is it plausible that Parker, Vennells and others would have acted as they did – from the statements made to Parliament, the instructions to lawyers in relation to the Bates litigation, the evidence given to the court, the decisions made about what not to reveal, the decision to try and get Mr Justice Fraser removed from the case, the involvement of a senior retired Supreme Court judge in that failed venture and so on – if they hadn’t been confident that the government had their backs?

– Was this really a rogue organisation which misled its owners or kept them in the dark throughout this 20 year period while nonetheless managing to persuade it to provide ever increasing amounts of money to fight the subpostmasters and defend it in Parliament?

– And, if so, what does that say about the governance – the competence, curiosity and integrity – of the Business Department and its Ministers over this period?

– Or is it possible that the government, that Ministers and civil servants in the Business Department and elsewhere (remember the Post Office’s Chair, Tim Parker, was also Chair of the Courts and Tribunals Service at the same time as he was authorising his lawyers to try and get the judge thrown off a case involving a company he chaired) knew about – and may have been actively involved in or tacitly or explicitly approved of – the cover up of the miscarriages of justice?

That last is the question which now needs answering. Not avoiding by blaming the whole farrago on Vennells and others, however blameworthy they may be.

A troubling, current, conflict of interest

I have written elsewhere about some odd conflicts of interest which appear not to have troubled the government, despite the obviously concerning issues raised. One in particular seems ever more untenable.

How can one of the Post Office’s Board directors also be on the Board of the Crown Prosecution Service, chairing the Risk and Audit Committees of both bodies, given the very real prospect of the former’s ex and current employees being investigated and possibly prosecuted by the latter?

– How can the Business Department and the Ministry of Justice possibly think this is right? Or wise?

– How can they not see that it creates, at best, the perception of a potential conflict of interest and may create an actual conflict of interest in future?

Unless they don’t care? And why might that be?

Will the Williams Inquiry get to the bottom of this? Unlikely. Unless the executives and lawyers now being held out to dry decide to talk freely. What the Business Department was doing, what it knew, what it approved, what it turned a blind eye to, what civil servants knew, what Ministers were or were not told are not within the Terms of Reference. Unsurprisingly.

But we need to know because, bad as this scandal is on the evidence we have seen so far, it would be infinitely worse if it were the government which was in part responsible for the miscarriages of justice and their cover up.

50 years on from Watergate the key question for the government remains: What did it know? When did it know it?

Leave a comment

A Lost Decade

10 April 20240Comments

Scandals and misconduct do not come out of nowhere. When people misbehave there is usually a clue, often more than one, usually ignored (even if carefully collected and correctly filed) or hand-waved away as unimportant (see the Angiolini Report on Wayne Couzens, for instance). The same applies to scandals involving organisations and actions (or a lack of action) by many people. There were warnings; there were whistleblowers; people were told. Coupled with this is a failure to take this information seriously, a failure to investigate properly or at all, a determination to ignore evidence and, often, a decision to remove, ignore or badmouth those raising concerns. Out of these two ingredients are our scandals made.

This is the case in the Post Office scandal and – this is critical – very much earlier than 2013 when the independent investigators, Second Sight, were telling senior managers some uncomfortable truths. The understandable focus on this period is making us forget there were explicit warnings of the issues much earlier on – and to people right at the top of the Post Office. This became clear from Alan Bates’ evidence yesterday at the Williams Inquiry (during the morning hearing – here – from about 1 hour in until 1:52).

Two key pieces of evidence came out.

The Letter

The first was a letter he sent in August 2003 to the then Chair of the Royal Mail, Allan Leighton. (The Post Office was still part of Royal Mail.) Mr Bates’s contract had been terminated following extensive correspondence with managers from 2000 onwards in which he pointed out that “the Horizon system cannot be relied upon to give 100% accurate figures” (a letter dated 19 December 2000), he could not check the data being produced by Horizon (nor seemingly could anyone else) and therefore could not be legally held liable for so-called shortfalls if the transaction data in Horizon could not be checked and verified. He also says that he was not the only one facing problems. In that correspondence, copied to the Chair, he described – in essence – the two problems which are at the heart of the scandal:

(1) Horizon data was unreliable; and

(2) the Post Office did not properly understand its own contracts with subpostmasters. It acted as if all losses were the responsibility of the subpostmasters whereas in fact it was only ones caused by their negligence, carelessness or error. This faulty understanding lay behind the decisions to prosecute or bankrupt some subpostmasters, such as Lee Castleton.

It was Mr Justice Fraser’s judgment in the Bates litigation in 2019 which spelt out how right Alan Bates had been: Horizon was unreliable and the Post Office’s understanding of its own contracts was wrong. It should not have taken 16 years, two exceptionally long, detailed judgments and endless, ruinously expensive litigation for this to be established. Allan Leighton was alerted to these issues in 2003: a full decade before the Second Sight investigation. Various Post Office managers from 2000 onwards had also been told repeatedly of both the Horizon problems and the contractual issues but had never addressed them.

Why did Mr Bates contact the Chair? In his own words:

“I thought it was well worth trying to write to the Chairman to make him aware of what was going on because he may well have not known…..hoping that he might be able to undertake some sort of review into it and look into the case for us and take it on board a little more seriously.”

“I can’t force them to read it but if you don’t write to them then they’ll never know.”

Allan Leighton could not have been expected to look into these matters himself. But there should have been a proper investigation into what Mr Bates was saying. There wasn’t. The inadequacy of the response makes this clear. It was simply a justification of the decision taken: a polite “we’re right, you’re wrong; no we’re not going to explain anything or answer your questions.” brush-off.  In part, this was because there was no proper investigations team within Royal Mail. What was called that was in reality a debt recovery team. It had neither the authority, capability, willingness or independence of mind to investigate concerns or complaints to the organisation.

It is worth noting that when asked why he thought his contract had been terminated Mr Bates said:

“They didn’t like me standing up to them, in the first instance; they were finding it awkward; and I don’t think they could answer these questions. I think they had a feeling I was going to carry on in a similar vein going forward.”

His answer summarises succinctly why whistleblowers are mistreated by organisations, why challenge is so unwelcome and why an investigation, so that you can answer the questions put to you, is so essential. Any person, any organisation, any sort of body or ideology unwilling to be challenged is a red flag, a sign of a poor culture and one well on its way to becoming a toxic and, often, a dangerous one.

The Loss Authorisation Form

Mr Bates had rolled over in a suspense account the shortfalls he could not explain. After 2 years, the Post Office wrote this sum off using a Loss Authorization Form which stated that the loss “was attributable to Horizon system/software/equipment/training failure.” It was a standard template, a document which came to light in disclosure. By 2002 the Post Office had in place a form – and procedure – for writing off sums attributable to a variety of causes, one of which was the “Horizon system“. Yet it continued to claim that Horizon was “robust” etc., (what does “robust” even mean, here?) even while it had recognized from an early stage that losses might be caused by it and be written off. Look not at what organisations say but at what they do – especially when they think no-one is looking.

Had there been any sort of proper investigation into what Mr Bates had been saying, had his letter to the Chair been taken seriously – as should have happened – the scandal would very likely never have happened, or not to the extent it has. The majority of the miscarriages of justice happened long before Ms Vennells became CEO and for a long time after Allan Leighton had been informed of the problems.

As Jason Beer KC put it, in August 2003:

“many people had yet to be terminated, many people were yet to be prosecuted, many people were yet to be convicted and many people were yet to go to prison.”

When you strip away the reports, the millions of documents, the interviews, the evidence, the court cases and judgments, the lawyers, the documentaries, the dramas, remember this. At the heart of all these scandals – whether in the police, the post office, the NHS, childrens’ homes or elsewhere – are people (often vulnerable people) whose lives have been ruined, people who have been harmed, people who have suffered and whose suffering could and should have been stopped if only those who had the power and the responsibility to do so had paid attention to the clues waved under their noses and acted. This failure to do so and the accompanying lies – by so many bodies from government down – has degraded trust in our public and private institutions. There is still far too much resistance and denial by those responsible for the problems. It will be quite the effort to rebuild that trust. There is little sign that the scale of the task or its overriding necessity are fully understood.

Photo by 愚木混株 cdd20 on Unsplash

Leave a comment

Action not words

9 April 20240Comments

What should in-house General Counsels do when they become aware that their organisation – or senior people within it – are, or may be, behaving unlawfully?

It is not a new question.

Back in the USA

In 1991 the head of Salomon Brothers’ Government Trading Desk, Paul Mozer, deliberately breached the rules at 5 separate auctions of US Treasury bonds between December 1990 and May 1991, falsified trading records then lied to supervisors as US regulators started to ask questions. What made the firm’s behaviour worse was that, despite the GC, Donald Feuerstein, the Chair, John Gutfreund, and two other senior executives (John Meriwether and Thomas Strauss) being told of Mozer’s behaviour during the February auction in April 1991, despite them agreeing that his conduct should be reported to the US Treasury, they did nothing. It was only in August that the Treasury was informed and, even then, the firm failed to say that top executives had known for months but failed to act, a delay described as “inexplicable and inexcusable” by Salomon Brothers’ new Chair, Warren Buffet. 3 of those 4 executives had resigned by then but not the GC who had repeatedly told senior management that they must act but had failed to make any reports himself. Eventually, he too resigned.

The report into this matter – and the conduct of the GC – was one of the first things I read when joining Salomon’s Legal Department a few years later. It was made crystal clear that, when it came to legal issues, especially reporting to authorities, lawyers could not, should not satisfy themselves with telling others that something had to be done but had an obligation to ensure that it was done and, if necessary, by them. Lawyers were not just there to advise others. Sometimes they had to act too.

And now?

Some 30 years later that lesson still needs learning, judging by what we are learning from the never-ending revelations of the Post Office Inquiry and, lately, the release of numerous recordings, involving conversations between the independent external investigators, Second Sight, and the Post Office’s General Counsels, Susan Crichton and, later Chris Aujard. Much of the focus has been on what they show about Paula Vennells’ knowledge of Horizon’s failings and its consequences for subpostmasters, contrary to what she later claimed to a Parliamentary Select Committee.

Worse is what they show about the response of the Post Office’s General Counsel, their most senior lawyer and the person who should, if they understand their responsibilities properly, be ensuring the company complies with the law even if this adversely impacts its commercial interests or is deeply embarrassing (whether for the organisation or him personally or his team).

The latest recording, released by ITV, is worth dissecting. The new GC, Chris Aujard, was told by Second Sight, that his organisation may have pressured subpostmasters improperly into pleading guilty to serious criminal offences on the basis of false or non-existent evidence, failed to carry out investigations and misled the court.

“It’s that serious.” he is told.

He responds:

“My focus now is on dealing with each case as it comes through. So yeah, the macro, macro issues are another pot. They’re not in my pot. They belong to other parts of the organisation. I can feed through some of the thoughts on this call into that pot.”

And

“… I will absolutely relay on to the right people.”

What is this garbage management-speak? He was the chief lawyer. He was one of the “right people“. He had an overriding duty to ensure that the organisation of which he was the GC did not behave unlawfully. He had an overriding duty to the court to ensure that it is not misled, whether expressly or by omission, a duty overriding any other duty to his client. If there was – as he was clearly told – the slightest chance of his organisation misleading a court during litigation and/or in criminal prosecutions, he should have been all over this. Not wittering about “pots”, “macro issues” and dumping his responsibilities on others like some latter-day Pontius Pilate. “Not my job” is not what a GC should be saying when told of unlawful, potentially criminal behaviour. A GC is not a passer-by at the scene of an accident.

What should have happened

He should have informed the full Board, including the non-executive directors, of what he’d been told and what needed to be done. Did he? If he was either not listened to or told to do nothing or that it was none of his business, he should have resigned and told the legal regulatory authorities, the courts and the government why. Of course, this would have required a sense of professionalism, some ethical sense and courage. Were these qualities more widespread in public and commercial life, our organisations would be in a much better state than they are.

What does this show us?

What this vignette (and the other recently released recordings) suggest is a Board lacking the necessary curiosity alerting them to what was happening at the executive level. Or, just as likely, a Board not wanting to know, making that clear and thereby stifling any chance of independent ethical action by managers from the executive level down.

It suggests also a legal department unwilling or unable to take full and proper responsibility for the company’s investigations team and the consequent prosecutions. What sort of an investigations team the Post Office actually had and whether it really did any investigations in the proper sense of that word will be for another time. (Spoiler: no.)

It is worth noting that this approach did not start with Mr Aujard. In 2010 the Post Office’s Head of Criminal Law, Rob Wilson, when asked for his views on having an independent investigation into Horizon said:

“To continue prosecuting alleged offenders knowing that there is an ongoing investigation to determine the veracity of Horizon could also be detrimental to the reputation of my team.” (Emphasis added).

His full response (see Note (1) below) shows someone more concerned with adverse publicity, the Post Office’s reputation and damage to the business, as well as to his own team. His team’s reputation simply should not have been a factor when determining whether or not to have an independent investigation into a system whose data was being relied on in criminal prosecutions. In any event it took another 2 years before such an investigation was commissioned.

What this recording also suggests is an organisation splitting up its management of – and responsibility for (“They’re not in my pot.”) – its response to what was being alleged in a way which weakened the GC’s authority, made it harder for any one senior person or department to see the full extent of what was happening (or easier to turn a blind eye and disclaim responsibility, depending on how cynical you’re feeling) and easier to treat the constituent parts of the scandal as problems to be managed away rather than fully understood and properly handled.

Bad stuff happens

Employees will often break the rules, whether deliberately or by mistake. Sometimes they will try and cover up what they have done. Or say nothing, hoping the problem will go away. Or lie when asked. There is nothing unusual about this. But that is precisely why we have gatekeepers – in-house lawyers – to act when others don’t, when others are foolish or malicious or afraid to act. It is why the best test of an organisation’s culture is how it – its senior managers, its lawyers – respond when bad stuff happens, when things go wrong, when misfeasance, misconduct or just plain stupid mistakes come to light.

The Williams Inquiry resumes its hearings on 9 April with the interviews of a number of senior Post Office lawyers. It will be interesting to hear from them how they understood the scope of their role, whether they understood that they might sometimes be in a position where their duty to the court was in conflict with what their client wanted and what they should do in such a situation. And whether what they actually did was in line with the high standards which ought to be expected of them.

This is something all lawyers, especially in-house ones, have to have an answer to, even if you hope never to be put in such a position. An “I can’t remember.” or an “I see no ships” answer will not be good enough.

Note (1): See https://www.postofficescandal.uk/post/criminal-conspiracy-slowly-joining-the-dots/

Photo by Jan Canty on Unsplash

Leave a comment

A Crime of a Law

1 April 20240Comments

“You do not examine legislation in the light of the benefits it will convey if properly administered but in the light of the wrongs it would do and the harms it would cause if improperly administered.” (LBJ)

Wise advice. A great pity it was not heeded by Scotland’s Justice Minister in 2021 when The Hate Crime and Public Order Act was passed. It is one of the SNP’s most badly drafted, illiberal and dangerous laws, despite stiff competition from the Named Persons scheme (scrapped in 2019 after defeat in the Supreme Court), the Offensive Behaviour at Football and Threatening Communications (Scotland) Act (scrapped in 2018) and the Gender Recognition Reform Act, scrapped after a S.35 Order and, again, defeat in the courts.

It is fundamentally naive (at best) and a serious dereliction of duty (at worst) to propose a law creating new criminal offences without ensuring that it uses clear precise language, complies with other relevant legislation, does not create loopholes and can be effectively and fairly enforced. Worse is to airily dismiss any concerns about its misuse, on the basis that no-one will ever do the thing that the law permits or abuse the loophole created or use the law to achieve an end its proponents never intended. Yet worse is to bring the law into force after a three year delay without consultation with a wide range of stakeholders, including those you have publicly named in Holyrood you will consult, without having ensured proper training for the police and while also making misleading statements about what the law says. Kudos to Humza Yousaf: he’s achieved all this. All by himself. He must be so proud. 

What the law says

(1) It adds a number of characteristics which will aggravate existing offences committed because of prejudice either to a specific victim or a group with that characteristic, regardless of whether there is a victim. In addition to race, the characteristics are age, disability, sexual orientation, transgender identity and variations in sex characteristics (DSDs). Note what is not included: sex. If women are attacked because of their sex, this will not aggravate the crime and affect the sentence. This was contrary to the recommendation of Lord Bracadale whose proposals to consolidate and clarify hate crime laws started this process. Apparently, this will all be looked at from 2026 onwards. Women and men will have to wait until the 2030’s for crimes against them because of their sex to be taken seriously by the criminal law. The SNP deemed cross-dressers ( within the definition of “transgender identity”) a priority over women. Put that in context: In 2021-2022 there were 86 crimes with transgender aggravation, falling to 55 in 2022-2023, out of 289,352 recorded crimes. Scotland’s population is 5.4 million, of which 2.7 million are women.

(2) It creates a new offence of stirring up hatred against anyone within the above categories plus religion or perceived religious affiliation for a social or cultural group. Again, note what is not included: belief as well as sex. So stirring up hatred against people for having or expressing a legally protected belief under the Equality Act (that sex is immutable, say, or veganism or independence for Scotland) is fine. The offence includes behaviour or communicating material. It applies to activity within the privacy of your own home. It applies to communications which, even if created and communicated outside Scotland, can be read in Scotland. 

(3) There are some defences: a person charged with stirring up hatred is not guilty if the behaviour or communication was “reasonable” (Article 10 of the ECHR is referenced, though whether the law is compatible with the ECHR is open to doubt). Discussion or criticism of matters relating to all the categories other than religion do not necessarily make behaviour/material “threatening or abusive”. Well, that’s bloody nice of them. But note: for religion, the defence is wider and includes “antipathy, dislike, ridicule or insult”, proselytising and telling people not to be religious. So you can express dislike of religion and not commit an offence. But if you express a dislike of one of the other categories it might well be an offence. 

(4) Reports can be made anonymously. Police Scotland have stated they will investigate every single one made. They have the power to enter people’s homes to seize any material which might be evidence e.g. computers, phones etc.,.

The problems 

1. Extremists / activists / those with malign intent will always exploit badly drafted laws and loopholes for their own ends, if given the opportunity to do so. The worst case will happen at some point. 

The fact that those ends were not intended by those enacting the legislation is irrelevant. Activists have already threatened women over material relating to the debate on women’s rights / trans rights. The fact that the government has explicitly chosen to protect people on only one side of that debate is particularly pernicious. A law which protected the other side of the debate only would be equally offensive and dangerous. The likely misuse of this law has been made more likely by the fact that those groups which lobbied hard to exclude women from the law and to narrow the free speech defences have, apparently, been providing training material to the police. The police now risk appearing to be the enforcement arm of activists. Police Scotland has yet to share its training with Holyrood’s Criminal Justice Committee and its most senior officer organisation has expressed very serious concerns about the law and its effect on trust in the police. 

2. The process of investigation is itself the punishment.

Investigation can often taken an inordinate length of time, be costly and upsetting for the person under investigation and their family. This is so even if no prosecution or other action occurs. It is made worse here because, even if no criminal charge is brought, the police will record all such reports, regardless of how unjustified, malicious or vexatious they might be, as a Non-Crime Hate Incident against a person’s name. Remember the reports are entirely subjective; the police will have made a decision that objectively no crime has been committed. But you will still be put on a database of non-crimes. Such a database is statistically meaningless, of no investigative use and wide open to manipulation. 

A person has no right to know that this has happened though they can make a SAR to find out. Such records will be revealed by the police when certain types of checks for jobs are made, with potentially serious consequences but with no opportunity for the individual to defend themselves.

Bluntly, the law permits anonymous malice and nonsensical allegations based on the reporter’s perception only without any supporting evidence and their recording as black marks against an individual, without any recourse to the courts or any sort of “reasonable person” or Art. 10 free expression test. It will have a chilling self-censorship effect, even if no prosecution is ever brought.

3. Injustice takes a long time to be reversed.

Police Scotland have been aware since mid-June 2022 that this NCHI recording policy is unlawful following the Miller case. They have had 18 months to change their policy and have publicly said they know they must do so. Nonetheless, only last week Humza was defending this unlawful policy. So yet another court case looms. 

To those who say no-one would do awful things with this law, the response is: “How can you be certain?” If they wouldn’t do them, the powers are not needed. If they exist, they will be used. If they can be used, they will be abused.

Photo by K. Mitch Hodge on Unsplash

Leave a comment