62 minute read
The role of machine translation in the legal sector
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Whether dealing with business owners with enterprises overseas, receiving evidence from non-english speakers or simply trying to manage large volumes of legal documents as efficiently as possible, reliance on translation services across the legal industry is rising. However, given that even the most inconspicuous of inaccuracies in court documents can lead to delays in hearings or the undermining of evidence once discovered, there’s a real and definite need to utilise translation services which offer the highest levels of precision possible. machine translation is growing in popularity in legal sectors around the world, but how useful is this technology for the industry in practice? At its core, machine translation offers significant time and cost saving efficiencies for those managing large volumes of multilingual documents, which can be incredibly useful for those dealing with international cases. For legal firms that have an international footprint of their own, using machine translation to convert masses of legal documents into various languages quickly and easily enables them to focus on the key priority – achieving justice for their clients. enquiries into and uptake in machine technology are surging. Online searches for ‘machine translation’ have increased 16 per cent in the last five years, while its related search term ‘machine learning’ has increased 135 per cent1. Over the last six years, UK-based translation provider the translation People has experienced a 2,016 per cent increase in the volume of work it carried out with machine translation, while website enquiries for this service increased 1,130 per cent. Accurate and efficient processes within the legal sector require a deep understanding of legal translation and terminology issues across different countries and thanks to state-of-theart machine translation technology now available, it is possible for translation providers to play a key role in streamlining the ways in which barristers work both in court and out of it. However, some barristers will consider machine translation with trepidation following several recent high profile examples of basic machine translation technology not being put to best use.
For example, a thread of tweets about Google translate’s capabilities recently went viral and saw them accused of making sexist assumptions about gender neutral language2 . there’s also been a study3 that suggests free translation tools contribute to significant misunderstandings of legal terms with conflicting meanings for some words. meanwhile, after Amazon recently used its own automatic translation technology to launch its first ecommerce site in sweden, it hit the headlines when the translations outputted were lewd and vulgar in nature, bringing attention to the launch for all the wrong reasons4 . In reality, machine translation technology only comes into its own – providing the most accurate and effective translations – when delivered as a hybrid solution together with skilled language and translation professionals with a specialism in the legal sector. machine translation centres on processing input and producing output. Words, sentence structure, subject and grammatical information are all analysed, before being translated into the desired language. However, the accuracy of the output is determined in large part by the size of the language database sitting behind the machine. the more bilingual material fed into the engine by base engineers, the better the result will be, whilst the quality of the output is also determined by the nature of the text, as some content types work better than others. Direct and straightforward language – such as that found in instructions and user manuals – is well suited to machine translation with less input needed from linguists; emotive copy or complex language, such as that we see in legal documents, requires greater support from specialist, legal posteditors to achieve optimum results. Within the legal field, customised machine translation engines should be developed for clients on an individual basis, with a legal language expert assigned to train the engine over time. this way of working enables the machine to achieve a greater understanding of legal terminology and language. If any element of a translation is incorrect, it’s spotted and edited by the translator. these edits can be used over time to train the machine not to make the same mistake again in the future, driving a continuous improvement in its output, achieving a more efficient process and greater accuracy in output. Where large volumes of documents are received in a different language, raw machine translation can be used to create a first draft of the translation to determine which documents may be needed as a priority. those which require greater input from a human translator will then receive a full post-edit, to achieve 100% accuracy in output for the client. machine translation must be carefully
applied and not used in isolation as part of a blanket approach to translations. currently, there is no universally agreed-upon or standardised approach to machine translation to help ensure accuracy across the board and, until that happens, the technology will always benefit from the expertise of a human translator. Not taking this step can lead to errors which, given the high stakes barristers work in every day, is something that can’t be risked. Additionally, given the sensitivity of much of the materials used or presented in court, and the need to meet the individual regulations of parties located around the world, barristers should utilise technology which places security and data protection central to their processes. banks and intelligence firms, for example, are prohibited from sharing information or transferring it without permission; if their data is to be translated for use in other languages, they will require assurances which prove a translation provider is taking all necessary steps to keep the information protected and confidential. machine translation can support in this. Using a free, online tool typically involves having to input client data to a cloud storage space where it’s combined with translations from other businesses and firms. All these materials are then utilised to improve the engine’s overall capabilities, so such a platform would be unsuitable for barristers translating confidential data or materials. However, reputable translation providers will arm their machine translation technologies with secure data technology, offering clients dedicated storage of their materials to eradicate the risk of data breaches and the revealing of highly sensitive information.
Ultimately, legal firms and barristers should work with a translation provider that collaborates to understand the scenarios where machine translation would be a benefit, and where human input is required, depending on the type of text and language combination required. many legal texts may not have their objectives met with machine translation solution at all; in this case, clients would save time and money by having an expert, human translator work together with them in a more manual capacity, rather than spending several weeks or months nurturing a machine system, which requires quality time and expertise being invested to achieve optimal results. Assuming machine translation will work perfectly every time is to risk materials becoming erroneous, and therefore risk a positive outcome of a case. As experts, we’re on hand to ensure every situation is handled as a bespoke requirement, with the most suitable processes and procedures applied individually based on the potential of machine translation will continue to become more sophisticated in its capabilities as time goes on. However, today, a true consultative approach, combining machine technology with human expertise can achieve excellent results for clients translating material that can’t be anything less than 100 per cent accurate. And as societies become more multilingual, and businesses continue to expand, whether a barrister is working on a criminal, civil or commercial case, machine translation is going to become a routine part of every day. making it a part of a strategy to set your stall as the firm that takes personal service most seriously, will pay dividends in the long run.
1https://explodingtopics.com/topic/machinetranslation 2https://www.indy100.com/news/googletranslate-language-sexist-b1820580 3https://www.itnews.com.au/news/googletranslation-ai-botches-legal-terms-563558 4https://www.theguardian.com/ technology/2020/oct/29/amazon-hitstrouble-with-sweden-launch-over-lewdpussy-translation
Defendants’ rights to a fair trial may be compromised unless the Government invests in the criminal defence sector
seventeen years ago, as a young barrister, I was lucky enough to represent the south eastern circuit on the Florida Advocacy course. Along with three other juniors, I made my way to Gainesville, Fl. and spent a week conducting mock trials and advocacy exercises alongside over one hundred public defenders and states attorneys. there are many stories that arise from that week. Almost all of them positive, with some of them…probably untellable, even now. It was a unique experience and undoubtedly the most enjoyable way to meet my New Practitioners cPD requirements. seven days of fairly effortless fun for me and my british-based colleagues, and an opportunity to make connections in the Us that stand to this day. but above all else what those seven days proved was enormous enlightenment. And not, I am afraid to say, enlightenment that fills me with confidence for the future of criminal practice in england and Wales. before boarding the plane I knew little of the Us criminal justice system. shamefully, even that came from tV and film and John Grisham novels. I had done no research; in my defence, I had a burgeoning junior practice which took up essentially every hour of every day. Or, in other words, I was just another junior barrister doing exactly what we all do. And so I was extremely surprised, upon arrival, to learn how criminal law really works across the pond. I take no pleasure in providing too negative a critique of that we found on the first day and of what was confirmed as the course progressed. suffice it to say, the ability of those who were supposed to be our ‘peers’ - of the state attorneys and the public defenders, all of whom were senior in terms of years in practice than me or the other three barristers - was not what we would have demanded of even the greenest of criminal practitioners back home.
I should make it clear that this gulf - and it was a gulf - was not the result of some innate difference in natural talent. certainly there was some of that. but in the main it came from the stark contrast between the American system and criminal justice in england and Wales.
back when I took this trip the cuts to our own criminal justice system had already begun to accelerate. but they had not yet had the impact we see today. And so, at the time I was making this comparison, it was from a point where our home criminal practice was still close to its best.
Our Us colleagues, unfortunately, could make no such claim. they were already operating in a system where both the
prosecution and the defence was, in most cases, provided by the state. And so they were operating in a system where lawyers on both sides were under-funded, under-resourced, underpaid, under-motivated and - to cap off that fatal combination - fundamentally over-burdened.
sound like anywhere we know in 2021?
the result of the differences between the two systems was unmistakable. the brits, self-employed and reasonably paid, were used to having conduct of their cases from an early stage. We might not ultimately be trial counsel on every case we prepped, but we always assumed we would be. And so we would advise and prepare and draft and make everything case ready, all with the guaranteed sterling support of properly funded solicitors. We would get to court trial ready, with one case to defend or to prosecute, having had ample time to properly prepare our client and ensure that if a plea were to be entered, it would generally have been entered at the right time, i.e. the earliest opportunity. read through that again now, in 2021. read through what we used to be able to do in even publicly-funded work; the world-class, private-level service we used to provide. that system was in place to ensure that even the poorest amongst us had access to the very best the criminal justice system had to offer. Now compare that to the American system we encountered. because as I said above, the gulf in ability was not about talent. It came because of the inequitable, fundamentally flawed Us system. Unlike us, our Us counterparts did not have the luxury of self-employment and decent payment. those two factors which allowed us to focus so intently on each and every case were denied to them, because as state employees they had to deal with whatever caseload they were given with nothing like the resources required to do so properly. this alone made it impossible for them to properly prepare their cases before court, and nor could they have the confidence that some competent colleague had prepared it for them; if anything, they could be sure that the opposite was true. the experience of our American peers, then - defence and prosecution - was turning up to court under-prepared and over-burdened with far too many cases on any given day. the result of this is inevitable: poor representation and so a lack of confidence from a client who - when offered the chance to avoid the risk of conviction by pleading to a lesser offence that would guarantee a tenth of the sentence (the result of the still-bizarre Us practice of plea bargaining) - would jump at that lifeline, guilt or innocence be damned. With this being the common outcome, where is the trial experience going to come from? How can we expect the same level of expertise and skill from lawyers who had collectively, amongst thirty of them, conducted fewer jury trials than I alone had personally defended at only three years call? (For those doubting that statistic, it’s
seventeen years ago, then, I flew home with absolute confidence in our criminal justice system. sure, it wasn’t perfect. but just look at the alternative. Well, it seems to me that someone did look at the alternative. And that someone shamefully saw a system to which they aspired. this is why england and Wales are closer to ‘Us justice’ in 2021 than we have ever been.
some would argue otherwise, of course. the Public Defender service exists, they would say, but it has yet to take off. most accused are still defended by the self-employed bar and by independent solicitors, they would posit. And that is true. but it is also misleading. Almost two decades of cuts have seen to it that in every other respect, those who cannot afford to pay privately for their defence now face a level of representation that - whilst still ahead of what the poorest would expect in the Us - is now running America far too close. It is for this reason that I personally work so closely with private criminal defence specialists ewing Law; because only for privately paying clients are the necessary resources still available to ‘defend at all costs’.
With fees cut to the bone, publicly funded defence lawyers - both solicitors and barristers - are now working on a shoestring. Where possible they will still provide the very best representation they can; thankfully there are many still left from the ‘good days’ who will not allow themselves to do their job any other way. but pure determination and an understanding of professionalism can only carry them so far. With the threat of insolvency or bankruptcy hanging over far too many heads, how long can dedicated practitioners’ drive to defend be expected to overcome the financial reality where - for publicity-funded work - only ‘stack em high’, ‘volume over quality’ can pay the bills? And what about when those who knew the ‘good days’ are gone? When all that’s left is the minuscule amount of newer recruits, lawyers who have only seen the ‘bad times’ and the ‘bad ways’? the direction of travel could not be clearer. Publicly-funded firms are disappearing at a shocking rate and, as sad as it is to admit this, the two-tier system already exists. All because some faceless mandarin with zero experience of a courtroom decided to emulate the Us ethos of ‘Justice for the rich and Just this for everyone else’. Is it too late to stop this rot? Who knows. but while some of us still remember the ‘good days’, should we not at least try?
The Bribery Act: The First 10 Years
Ten years after it came into force in the UK, John Binns and Umar Azmeh of the Financial Crime team at BCL Solicitors LLP, review the performance so far of what has been called ‘a landmark of legislation’, including its most important innovation – the ‘failure to prevent’ offence.
Introduction
the bribery Act 2010 (the ‘2010 Act’) received royal Assent in April 2010 and came into force on 11 July 2011. Its 10th anniversary gives us a good opportunity to reflect upon the impact that it has had within the criminal justice system, with one eye to the future as it becomes more entrenched and even inspires other legislation. Whatever its effects, it is certainly clear that it modernised the UK’s out-dated corruption laws, which had not been updated for almost 100 years, and which clearly struggled to deal with more modern iterations of bribery and corruption.
Background to Reform
Prior to the 2010 Act, the law of bribery comprised various common law offences, including event-specific offences such as embracery [bribing a juror], attempting to bribe a privy councillor, and attempting to bribe a police constable, along with a number of statutory offences. the most significant statutes were the Public bodies corrupt Practices Act 1889 (the ‘1889 Act’), the Prevention of corruption Act 1906 (the ‘1906 Act’), and the Prevention of corruption Act 1916. A UK Government consultation Paper in 2005 (bribery: reform of the Prevention of corruption Acts and sFO Powers in cases of bribery of Foreign Officials) noted that the law was “fragmented and out of date and needs to be reformed.”
the OecD had also been critical of the UK’s bribery and corruption laws, describing them as being “characterised by complexity and uncertainty” (OecD Phase 2 report on the Application of the convention on combating bribery of Foreign Public Officials in International business transactions).
• Issues with the previous law (as highlighted by the Law commission in its consultation Paper, No.185, reforming bribery (2008)) included the following:
• The distinction between public sector and private sector
bribery: the law drew a distinction between bribery in the public and private sectors. the 1889 Act was concerned with public sector bribery (members, officers and servants of public bodies). the
1906 Act was concerned with general bribery of both public and private sectors actors. there was also a presumption of bribery in cases in which a public official and an individual seeking a public sector contract were engaged.
Whether such a presumption, along with the public/private distinction, was necessary or desirable was open to question.
• Incorrect statutory charges:
Although the 1889 Act was restricted to public sector bribery, it confusingly did not cover all cases of bribery where the defendant worked in the public sector.
• Terminology: the 1889 and 1906
Acts used different terminology. • Definitions: the 1906 Act noted an agent as any person “employed by or acting for another”, a definition criticised for being vague; and both the 1889 and 1906 Acts failed to define “corruptly,” a term used in both statutes.
• Extra-territorial application:
Until the Anti-terrorism, crime and security Act 2001, it was not an offence for a british national or a UK-company to commit bribery abroad.
the Law commission noted that any reform of the law ought to apply the principle of equal treatment, i.e. those in the private sector ought to be held to the same standards as those in the public sector; any new law ought to comply with the UK’s international obligations; any new offence(s) must be as clear and simple as possible; any new offences must not distort the operation of other well-established offences, e.g. competition law offences; and simply immoral conduct must not be criminalised. What ought to underpin the offences were breaches of loyalty and good faith. Prosecutions (and Deferred Prosecution Agreements) relating to the 2010 Act One of the objectives of the 2010 Act was to pursue companies that were engaging in bribery, either actively or, effectively, by ‘turning a blind eye’ to prohibited behaviour. One manner in which the 2010 Act sought to do this was with the offence contrary to section 7, namely failure to prevent bribery, with a defence of adequate procedures. Prior to the 2010 Act, it was extremely difficult for a prosecutor to prove corporate criminal liability in bribery cases, due to the identification principle. the offence contrary to section 7, removes that hard requirement, along with effectively reversing the burden of proof in connection with its defence. However, far from the expected slew of corporate convictions for the offence contrary to section 7, there have only been two companies convicted of that offence: sweett Group PLc and skansen Interiors Limited.
statistics within the criminal justice system are somewhat difficult to obtain. However, in 2020 and in response to a Freedom of Information request, the sFO revealed that it had taken 5 cases under the 2010 Act to court (excluding DPAs), and in 2019 it was revealed that the crown Prosecution service had instituted criminal proceedings in 16 cases under the 2010 Act. Hardly the flood of cases that was perhaps envisaged as part of a revamped drive to tackle bribery and corruption there has, however, been more success from the 2010 Act where Deferred Prosecution Agreements (‘DPAs’) are concerned (under the crime and courts Act 2013). there have so far been nine DPAs that have involved the offence contrary to section 7 of the 2010 Act: standard bank PLc (2015); sarclad Ltd (2016); rolls royce PLc and rolls royce energy systems Inc (2017); Guralp systems Ltd (2019); Airbus se (2020); Airline services Ltd (2020); Amec Foster Wheeler (2021); and two involving as yet unnamed companies (2021). the total sums ordered by the court to be paid under those DPAs exceeds £1bn.
It is worth noting that the DPA regime potentially provides the best of both worlds for companies and prosecuting authorities alike. As far as companies are concerned, they are able – even in circumstances where they would almost certainly be convicted – to admit wrongdoing and avoid a criminal conviction, with all of the negative consequences that would follow e.g. prohibitions on public procurement contract tenders, and reputational damage. Prior to the 2010 Act, the company would either have had to plead guilty or take the case to a jury – if convicted, that would have been on the basis that a ‘guiding mind and will’ had committed the offence. the company is effectively permitted to take a commercial decision on a potentially criminal matter. As far as the prosecutor is concerned – thus far just the sFO – it is able to pass significant investigative costs onto the company, avoid the vagaries of a jury trial which may – as it has done in the case of every individual it has prosecuted where a DPA has been awarded to a company – result in acquittal, and also obtains significant financial penalties and its costs where appropriate.
Section 7 – A Template?
In 2017, the ministry of Justice published a call for evidence on corporate Liability for economic crime; however, the evidence submitted in response was considered inconclusive. In November 2020, the Government asked the Law commission to examine the issue again and to publish an Options Paper providing an assessment of different options for reform. the Law commission intends to provide that Paper by the end of 2021. meanwhile, the Law commission published its Discussion Paper in June, the responses to which will influence the Options Paper. effectively, the central considerations of the Paper are whether, and how, the law relating to corporate criminal liability can be improved so that it appropriately captures and punishes criminal offences committed by corporations, and their directors or senior management. As part of that process, it will be considering to what extent the ‘failure to prevent’ offence can be applied to other types of socalled ‘economic crime’, such as fraud, committed by an employee and from which a company might benefit, this template has already been deployed in the criminal Finances Act 2017 in the offence of failure to prevent the facilitation of tax evasion.
Assessing Success
clearly, the 2010 Act has its influential supporters, and has both changed attitudes and raised revenues for Hm treasury. but perhaps its most important criteria of success are also the hardest to judge. the question of whether incidences of bribery are now more likely to face justice rather depends on whether DPAs are included within that term; otherwise, it is surely hard to make the case that they are. What about the question of whether the 2010 Act has genuinely prevented bribery? We might hope that, ten years into the life of the 2010 Act, contracts are now granted on a fair basis without the need for bribes. A cynic might doubt whether either hope is realistic; they may wonder instead whether bribery methods have simply adapted to work around corporate procedures more effectively, thus making them harder to detect.
One of the drivers for the 2010 Act, and where perhaps it has been most successful, is in changing the perception of bribery, particularly in the corporate world. Whilst the 2010 Act has not led to a torrent of prosecutions, it has brought about a sea change in how corporates consider and mitigate against bribery. this may, ultimately, be the most important change the 2010 Act has brought about.
John binns is a partner and Umar Azmeh an associate in the financial crime department of bcL solicitors LLP.
employment law barrister ben Williams is an equality and Diversity Officer at Kings chambers. Here he tells us more about what the role involves and why the bar must continue to make strides in seeking a truly representative profession. I have now held the eDO role in chambers for approximately eight years, although I have now thankfully, been joined by another member of chambers, Anisa Niaz-Dickinson who has helped set up the equality, Diversity and Inclusion team in chambers. Whilst it is no coincidence that both Anisa and I are employment team members, such a background is by no means a prerequisite for the role. most people know that the overall aim of our role is to reduce workplace discrimination, but I suspect most people do not know what that actually entails in practice.
Years of outdated practices
In the context of the legal profession, and specifically the bar, there are years of outdated practices to unpack and this was always going to be a complex task. It is plainly a long path to walk. the bar ought to be an attainable profession to all – in truth, it is not. this is something that saddens me, but also worries me greatly. A key strength to a successful bar, like a successful judiciary, is one that is representative. this does not mean compromising on standards in any way, but it does mean that the profession has to continually look to ways it can improve. In my view, each chambers has a part to play also. this is not idealistic, but realistic. the question is how we can do this.
At Kings we have been asking this question of ourselves for some time. We do not profess to know all the answers, but we do acknowledge that there is plenty we can be doing. It starts with internal chambers processes and procedures. Having a dedicated eDO is but one part of this.
this means that there are various aspects to the role of eDO on any month to month basis, including reviewing staff and member policies; dealing with general and specific employee related enquiries; recruitment of staff and pupils; organisation of the eD&I team meetings and assisting in any relevant initiatives or events that we may run or partake in. It is also essential that we keep up to date with any bar councilled updates and circuit initiatives. It is a time consuming role and would not be possible without the team ethos that chambers encourages. I am very fortunate to have a proactive chambers’ Director and compliance manager who ensure that we properly diarise events and tasks. Without them it would simply not be possible to do the role effectively.
regular reporting on equality and Diversity
It is equally essential that the managing committee of chambers, led by our Head of chambers, is able to dedicate time to e&D matters generally and specifically. I have been fortunate that this has been a consistent pattern of support for me in chambers and that the current Head of chambers has made further improvements, always looking to build on his predecessors excellent work. by way of illustration, to ensure consistency across chambers, both eDOs are now members of the executive committee in chambers and report back on e&D at every meeting. It is this systemic approach that is essential to ensuring chambers works as one to improving e&D across the organisation as a whole. It also means that chambers can look beyond its own organisation to assist the profession as a whole. 10,000 black Interns Initiative
On this note we have been looking to a number of superb initiatives that we might be able to endorse and assist with. One such initiative is the 10,000 black Interns programme. this initiative seeks to offer 2000 interns each year for five years and has partnered with a number of organisations from different sectors. It is but one superb initiative which we as a chambers feel can only breed positive change for the profession. I am delighted to say that there are many more excellent examples of projects and initiatives out there, whether they are run by third parties, the bar or the various circuits. this has been one of the clear improvements I have seen in recent times. It never ceases to amaze me what incredible work is being done and it has made it difficult for us to determine which we can join without spreading ourselves too thin.
this only gives a snap shot of the types of things that I am involved with as chambers’ eDO. I would say that anyone wishing to undertake this role would be wise to ensure that they have sufficient time set aside to enable them to embrace it fully. the truth is that, because of the clear need for everyone to play their part in improving equality and diversity at the bar, the role requires a good deal of time and effort. I suspect that it is rarely a one person role, regardless of the size of chambers. that said, the role is extremely rewarding in that I
Using privilege in a positive way
I am not immune from the obvious irony of a white male preaching about the need for change, however, it occurs to me that I am able to use my privilege in a positive way and that no single barrister is any less qualified than the next to do this role. For my part, this role can routinely take you outside of your comfort zone and that is a positive thing. It is uncomfortable to address certain topics such as race, ethnicity, sexual orientation or disability, for they can be difficult and emotive topics to approach. I do not profess to have any of the answers to the hurdles such protected characteristics may present, but I do know that through the hard work of our team here, we are in a position to improve our awareness of the same and work towards reducing the risk of such discrimination, whether it be conscious or not.
It is fair to say that the profession as a whole has made great strides in what is now a positive approach to equality and diversity. Whilst I was initially uncomfortable about holding this role as someone who, frankly, epitomises the look of the typical ‘lawyer’ in many people’s eyes, I recognise the need for everyone to play their part. As an employment lawyer who deals with the concept of discrimination regularly, and as someone who therefore sees both the good and bad in respect of the same, I consider that I have plenty to contribute. I think that works perfectly when I have another experienced employment lawyer alongside me, offering an entirely different perspective at times. this can only add to the strength of chambers’ approach to eD&I.
Positive role models
Despite the fact that the bar is becoming evidently more diverse we also acknowledge that there is a long way to go yet. by having a cohesive structure in chambers we feel that this is the best way to perpetuate such diversity and equality. Aspiring barristers need positive role models to look to and to relate to. I am proud to say chambers has such role models at all levels of seniority, as does circuit as a whole. I am certain that there will be continued improvements and I am equally certain that my chambers will be at the forefront for the same. We must never become complacent. I know this is a view shared by my Head of chambers who has been extremely supportive of our eD&I team. Whilst I have seen vast improvement overall, there is clearly still a long way to go in seeking a truly representative profession. this will in turn, have a domino effect on a genuinely representative judiciary. the bar has been honest in acknowledging the lack of diversity and this of itself it an essential component for achieving change. You must acknowledge the problem and then look to tackle it in as many ways as you can. It is not simply about having more women or more ethnically or racially diverse barristers; it is also about helping achieve a profession to which all people can aspire to join. I know that this is still some way off, but every positive change is a step forward.
University discipline hearings – will universities learn from past mistakes and make changes, and is there a role for barristers?
by Nick Hawkins, barrister, Normanton chambers
Almost 50% of 18-year-olds move on to university on leaving school or college. statistics from Universities UK show that there were 2.38 million students attending 165 Higher education Institutions [HeI]1 . each of these 165 institutions have their own statutes, policies, and procedures and significantly their own discipline hearings. there have been a number of high-profile cases involving allegations of sexual misconduct both physically and through social media that have not been handled well by universities, even though individuals involved have acted with integrity. In a number the perceived interests of the universities have been put before the interests of the students involved ultimately causing reputational harm to the university, but more significantly real trauma to victims. It is the view of the author that the time has come for barristers to play a more significant role.
It is likely that most lay people would think that student discipline concerns itself with academic misconduct and low-level misbehaviour in the student union bar and sports clubs. Whilst this is true, universities also deal with serious offences that, if reported to and investigated by the police, could end up in the crown court resulting in prison sentences. If the person on the clapham omnibus would be surprised to hear that university disciplinary hearings deal with allegations of non-consensual sex, they would be even more surprised to hear how the allegation made its way to a hearing and to hear how the hearing was conducted. I have worked with a number of universities advising senior members of university staff on policies and procedures for misconduct hearings as well as training panel members. I have reviewed investigations carried out by university staff and carried out by skilled external investigators. However, I have never appeared at a university misconduct hearing! this might cause the reader to question my credibility. How can a barrister who has never appeared at a tribunal write about that tribunal? this would be a valid question if the author were writing about (e.g.) hearings involving medical or accountancy professionals. but the difference in this scenario is that barristers do not routinely appear at university misconduct hearings. It is worth looking at the relationship between students and universities. Legally the relationship is a contractual, rather than employment, relationship. students sign a contract on joining a university and, as well as agreeing to pay fees in return for tuition, they agree to a term in the contract that will require them to abide by all university statues, rules policies and procedures. the landscape is complicated by the fact that each HeI has its own unique set of rules. Pulling all of this together, a student will have signed up to following all policies including a sexual conduct policy and will have signed up to the disciplinary framework which the particular HeI has in place. It is highly unlikely that this was at the forefront of the students mind as they excitedly said farewell to parents. three things that feature in many young students’ lives are alcohol, sexual adventures, and social media. For most young people at university their three years pass without a serious incident. sadly, for a small minority, things go badly wrong, and students involved in the university disciplinary process. Whilst no two cases are the same and whilst I in no way wish to stereotype a typical case will involve two students who are likely to have consumed alcohol. they meet and strike up a conversation or dance together. they then return to one or others’ room and some consensual sexual activity takes place. Full sexual intercourse then takes place but one party [hereinafter referred to as the reporting student] alleges that the other party [the reported student] had sex without their consent.
All HeI’s have a reporting mechanism, and all will provide support to the reporting student, who will be informed that they could report the matter to the police. many chose not to and ask the university to investigate. most investigations are carried out by university employees with a very small minority handed over to outside specialist investigators who are typically ex police detectives with extensive experience. University investigators come from a variety of backgrounds within their institutions. the author has seen cases investigated by security staff, Hr staff, academics and even Pr staff. Very few have had any general investigative training and virtually none will have had training on investigating sexual offences or dealing with vulnerable witness.
After an investigation, in which the reported person may or may not give an account, a decision is made on whether to proceed to a disciplinary hearing. It is worth noting that the reported person does not have the right to legal advice during any interview, even when under investigation for serious sexual misconduct.
the decision maker does not have the benefit of a document such as the code for crown Prosecutors2 to assist in helping them reach their decision in a structured way but will make their decision based on what feels right and fair to them. As many cases will be a word-on-word case this is a challenging decision to make, although it is not uncommon for there to have been social media chatter about the alleged incident or about previous contact between the two students.
If the case goes to a hearing it will be conducted in accordance with the particular rules of the institution. Although broadly similar there is no gold standard laid down by the regulator of universities (the Office for students) nor by the complaints body (the Office of the Independent Adjudicator). both bodies have issued guidance but neither has issued a set of model rules to govern investigations and, disciplinary hearings. In practice a hearing will be before a panel of 3 members of staff. the case will be presented by a university member and the reported student may have the assistance of another member of the university. this is where a real anomaly arises. If the reported student knows a legally qualified member of the university they can ask them for assistance, but they cannot ask for counsel of their choice3. If a reported student does have legal assistance there will be an inequality of arms as the presenting officer is highly unlikely to be legally qualified, and even if they are, may have no experience of adversarial proceedings requiring high level advocacy skills. to make things worse the Panel are unlikely to have the benefit of a legal adviser – in contrast to both magistrates in criminal courts and most professional discipline bodies.
the potential for mistakes by well-intentioned people involved in such hearings are almost self-evident. the consequence of mistakes ruin lives – an unjustified adverse finding can stop the career of a student before it starts, whilst an unjustified finding that the allegation is not proved causes further trauma to an already vulnerable victim. If you were the parent of the reporting student you would want the case professionally investigated and presented by a lawyer with appropriate skills, knowledge, and experience. If you were the parent of the reported student, you would want appropriate legal representation of your choice. If you were a Panel member you would want the benefit of legal advice during the hearing. Yet many universities’ rules actively prohibit this ideal situation. It is highly likely that there is a judicial review waiting to happen, and it is clear that universities are subject to judicial review as quasi-public bodies4 . so, what can be done to prevent this and where do barristers fit in?
the first thing is for universities to hire or employ competent investigators to carry out the investigation. barristers who present cases in courts and tribunals know they are only as good as their evidence and many current investigations miss evidential opportunities. the second thing is for universities to review their policies and procedures and barristers with experience of professional discipline are ideally placed to assist.
the third and most important change is for universities to change their rules to allow for legal representation for both parties and legal assistance to the Panel. this should only be reserved for the most serious allegations and for matters that carry the most serious sanctions, but it should be possible to draft a set of rules that set this out clearly and fairly. to conclude, universities want to do the right thing but need help. the interests of universities and their students will be best served by modernising disciplinary rules and involving the professionals. Anything less risks more ruined lives. Nick Hawkins Normanton chambers
1https://www.universitiesuk.ac.uk/facts-and-stats/Pages/highereducation-data.aspx 2https://www.cps.gov.uk/publication/code-crown-prosecutors 3If a barrister was studying for a part time LLm they would have rights of audience in their university but would lose them upon graduation! 4r(Zahid) v the University of manchester and the Office of the Independent Adjudicator for Higher education [2017] eWHc 188 (Admin)
Racial Inequality in Maternity Care - Action Needed
the evidence
there has been repeated evidence of racial inequality and injustice in maternity care in the NHs for many years. strikingly, there is a clear link between the number of women dying during and following pregnancy, and their racial background.
most recently, racial inequality has been demonstrated by mbrrAce (mothers and babies: reducing risks through Audits and confidential enquiries across the UK). mbrrAce audits and confidentially reports on issues affecting mothers and babies in the NHs and across the UK. the most recent report considers maternal deaths. the report considered the factors that lead to maternal death in the UK, reviewing statistics between 2016 and 2018, including the 566 women that died during or up to a year after their pregnancy. the report released in January 2021, found that there were many different biases that led to maternal death in these cases. belonging to a minority ethnic group was a significant factor. When compared to white women, during, or in the year following, childbirth:
• Asian women are two times more likely to die; • mixed ethnicity women are three times more likely to die; and • black women are four times more likely to die
Heart disease is the leading cause of death, followed by thrombosis and blood clots. maternal suicide is the fifth most common cause, either before or after birth. the amount of maternal deaths in women who have involvement from social services in their lives is also increasing. these statistics are based on data collected before the pandemic, but it is likely that coronavirus will have made things even worse because of the lack of face to face services available.
As remarkable as these figures are, this isn’t new information. racial disparity in maternity services has been known for a long time.
Investigations into maternity Units
A number of investigations have been carried out considering maternity services across the NHs. An investigation into the maternity services at shrewsbury and telford trust considered cases over a 40 year period and found there was a longstanding culture that is “toxic” to improvement. the investigation found that there was a failure to recognise serious incidents, with many families having to wait a long time to learn what happened during their care. they found that there were long term failures to involve families in the investigations when serious incidents were recognised. When reports were carried out into serious incidents, the reports were brief and defensive. the duty of candour was not followed. there was a catalogue of other concerns raised by the investigation regarding the treatment provided and the failures of the units to monitor patients.
the most concerning failure is the inability to learn from mistakes. this seems to be the consistent theme throughout maternity scandals. these include the investigations into the maternity services at the basildon University Hospital, cwm taf
morgannwg Health board and most recently the Worcestershire royal Hospital. the news is littered with similar stories.
In 2020, the east Kent Hospital trust faced a criminal prosecution for failing to provide safe care and treatment, resulting in the death of a baby boy. the trust was accused of failing to provide safe care, exposing the baby and his mother to significant risk of harm. the trust plead guilty to a breach of regulation 12 of the Health and social care Act 2008 (regulated Activities) regulations 2014. the trust were fined over £1million. the Kent Police are also considering charges of corporate manslaughter.
the results from the series of investigations carried out in relation to maternity services has frustrated me enormously. these investigations show that lessons are not being learnt despite the NHs being made aware of such failures.
When clients come to me to investigate a medical negligence claim, the collective desire is to raise the failings with the hospital to prevent the same mistakes being repeated. my clients don’t want others to go through what they have.
What is being done
Owing to the number of investigations and reports published highlighting the problems with maternity units, conversations are now taking place at the top table to try to resolve these systemic failings. this is in no small part because of organisations fighting tirelessly for the people suffering these injuries.
the charity birthrights is determined to protect the dignity and human rights of birthing people. they fight to empower women by arming them with the necessary knowledge. they campaign to give women access to, and knowledge of, their human rights during a very vulnerable time in their lives. they campaign to make change.
birthrights have recently set up a national inquiry into racial injustice in maternity care. this inquiry will investigate how racism in the NHs is impacting mothers and babies, and maternity care. the aim is to determine exactly what needs to be done at all levels to effect change.
‘Five X more’ is an organisation founded by two mothers determined to change maternal outcomes for black Women receiving care in the NHs. Five X more focuses on empowering black women to make informed choices and to advocate for themselves throughout their pregnancies and after childbirth. In 2020 a petition to the Government to change outcomes for black Women had over 187,000 signatures.
the petition focussed on four areas:
1. to highlight to the government and those making decisions about women’s health, to be aware of the disparity in outcomes due to racial ethnicity and be aware of this when making decisions 2. to promote education for the healthcare providers giving black women information about their treatment options. the right information must be given so black women can make informed decisions about their pregnancy and childbirth. 3. to improve mental health services for women of ethnic minorities and to make it more available to them 4. to examine the role the NHs plays in maintaining the issues faced by black women e.g. quality of treatment, institutional racism and the ethnic coding systems used.
In response on 25 June 2020, the government has advised that they aim to understand why mortality rates are higher, consider evidence about what will reduce mortality rates and take action to improve equity in outcomes for mothers and their babies.
What more needs to be done
In response to the mbbrAce report, the government confirmed the NHs is working to understand why death rates are higher for people from a black or ethnic minority background. they plan to consider evidence about what will reduce mortality rates and take action to improve outcomes for mothers and their babies.
by 2024 the government aims to provide 75% of women from black and ethnic minority background with continuity of care from their midwife throughout pregnancy, labour and the postnatal period. the government points to evidence that shows that continuity of carer models helps reduce pre-term births, hospital admissions, the need for intervention during labour, and to improve women’s experience of care.
the royal college of Obstetricians and Gynaecologists (rcOG) are also acting. they have set up a race equality taskforce, to tackle this enormous issue from the foundations. this is starting to bring positive change through awareness and training. the previous mbbrAce reports (2018 and 2019) found black women were five times more likely to die in pregnancy than white women. the latest mbrrAce report has found these numbers have now fallen to four times more likely.
these figures are completely unacceptable. clearly more change is required to reduce these inequalities. However, it is encouraging that these statistics have started to change in the right direction. the small improvements are likely to be due to a positive response to the previously horrendous figures and the race equality taskforce.
the NHs has also acted by setting up a working group of women, families and healthcare providers called maternity Voices Partnership. together the aim is to review and contribute to the development of local maternity care.
All of this costs money. Funding is promised to support these changes but we must not rest. the conversation has been started, but there is a long way to go and a lot to be done to make permanent change.
I recently responded to the government’s consultation, Women’s Health strategy: call for evidence. the government asked for ideas and input from individuals and organisations with the relevant expertise in the area to ensure that women are listened to and the ideas raised can be considered and incorporated into the new plan for england for women’s health.
As part of my firm’s response, I implored the government to listen to women and place their voices at the centre of their health and care review. Never is this more important than before, during and after childbirth.
With each maternity scandal or news piece of an injured baby and damaged family comes more evidence of harm. behind each one of these statistics, is a grieving family whose lives have been changed forever.
Awareness and education are the first steps on a long road to bring about the change so desperately needed in the NHs maternity sector.
Sexual Harassment in the Legal Profession – a review of the subject post #MeToo
by rachel Lewis and maria strauss, Farrer & co
the #metoo movement shone a spotlight on harassment across all sectors, and the legal profession is by no means an exception. #metoo, which brought rolling coverage of headline-grabbing cases, led to a general uptick in disclosures and complaints (quite often historic ones) about workplace sexual misconduct. In this article we explore the risk factors, the benefits of taking a preventative approach to harassment as well as other considerations when handling cases in law firms and at the bar. How far have things come since 2017? the landscape has changed considerably in a short space of time, though some issues still remain.
Sexual harassment: risk factors in the profession
In pre-pandemic days, our profession – in part at least – operated in ways which could prove fertile ground for a culture open to harassment: late nights, long hours and lone working; deal culture; parties, entertainment and alcohol; hierarchical structures and power differentials; ambition and authority. All these factors historically led to an environment where sexual harassment could occur, and indeed, become normalised.
the pandemic has brought new challenges for everyone in ensuring safe workplaces. Whilst the enforced migration to virtual (and now, hybrid) working has brought many benefits, sexual harassment too moved online and for those back in the physical office, fewer colleagues around means less staff to intervene when and if needed.
Taking a preventative approach
Adopting a preventative approach is key. that has to be a priority, not least given recent media coverage of cases, disciplinary action by our regulators, reputational concerns and the damage to individuals who have suffered from harassment. Implementing steps to prevent sexual harassment does not require an overly legalistic approach and both law firms and the bar will find practical guidance both in the eHrc technical guidance and a recent UN report on ending harassment and changing culture.
the UN guidance in particular talks about the importance of high-quality, engaging and bespoke training, recommending an audit/culture check which we know many clients have done and have found useful in identifying issues. It also suggests training some individuals in appropriate ‘bystander interventions’ has proven effective in the military and university campuses, for example.
the consequences and risks of failing to take a preventative approach should not be underestimated.
For example, in a recent employment Appeals tribunal (eAt) case (Allay (UK) Limited v Gehlen), the eAt held that an employer could not rely on the “reasonable steps defence” to a claim (s 109 equality Act 2010) because their training (on equality and diversity) had gone “stale” following a two-year period in which there was no refresher training provided.
Furthermore, where employers do not seek to foster a “speak up” culture (ie: where everyone understands the expected standards of conduct and individuals are confident to report issues), then cases will go undetected. In the long run this might mean:
• Issues not being reported for investigation; • Lower-level sexual harassment potentially escalating to more serious or violent forms; • complaints, grievances and employment tribunal cases; • damage to reputation and press interest; • the loss of clients or commercial partners; • staff departures;
In July 2021, the Government published the outcome of a consultation into workplace sexual harassment that began in 2019. the consultation recommended a new legal duty on employers to “prevent” sexual harassment and further guidance on this new duty is awaited. It remains to be seen whether this will (or can) be a requirement with any real teeth, but the principle reflects the direction of travel in this respect.
Specific considerations in relation to case handling
sexual harassment cases can throw up a plethora of practical and legal issues.
First, due to the often sensitive nature of these disclosures, victims or witnesses may be reluctant to come forward. this can lead to delayed reports; years can go by before someone might make a disclosure. It is well known that a range of factors can contribute to delayed disclosures including fear of impact on careers, concerns about reputation and fear of not being believed. However, even historical cases should be investigated and proper process followed, including supporting those involved; conducting risk assessments where necessary
secondly, in serious cases where a sexual assault may have occurred, the disclosures may well not always be made in a linear, logical fashion, which lawyers as managers can find particularly difficult and can lead to early doubts about the credibility of the allegations. However, disclosures should always be taken seriously from the outset. there is also an important distinction between receiving a disclosure of harassment for the first time versus being the impartial investigator appointed to establish the facts of the case.
In the UN report, a “victim-centred approach” is recommended at every stage in the process. this means ensuring that complainants are given as much control as possible, that they are advised about issues such as privacy and confidentiality as soon as possible, and taking a nonjudgemental approach. they should be kept informed of any actions (preferably before the actions are taken), ensuring that there is timeliness in communications and investigations, that victims are aware of specialist support (and likewise support plans should also be in place for those accused) and finally assuming neither guilt or innocence but starting from the possibility that what the victim is reporting may be true and carrying out a robust investigation.
Organisations should always follow their policies and procedures in the case of any complaint or allegation, as well as eHrc and AcAs guidance. Whether the case is a recent or a historical allegation, these steps should help ensure fairness which in turn helps law firms and chambers to protect their reputations.
thirdly, language issues can be contentious. A range of terms are used in this sphere to describe the individuals involved in the case (accuser, complainant, victim, survivor and accused, perpetrator) as well as words to describe what happened (allegation, disclosure, report, case, testimony). We have found that language issues are important to iron out and should be consistent from the beginning; it is important to avoid potentially biased language.
Finally, investigations. the following issues tend to come up frequently in law firms and chambers investigations:
• Informal resolution. Whilst the response to a complaint of sexual harassment must be proportionate, informal resolution of complaints will rarely be appropriate as even in lower-level cases there is likely at the very least to be a need to review matters with a focus on training needs and culture. complainants should never be expected to resolve their complaints informally and directly with an alleged perpetrator.
• Failures in planning.
Investigations which are not properly scoped and planned can (and often do) go wrong. Project management is key, and it is critical to have a clear sense of the process that is being followed.
For example, will the investigator review records and documents first, or meet the complainant first?
• Interviews. Problems also arise where interviews are not conducted properly and notes are not clear and thorough. In some cases an independent, external investigator will be appropriate particularly where the allegations are against someone very senior.
Independent lawyers can be good investigators or legal advisors may be helpful for ensuring a robust interview or drafting frameworks of questions. Good Hr consultants are also used for their experience of procedures and familiarity with the AcAs code. more recently, we have used specialists from the area of sexual violence to conduct and support investigations and carry out interviews. they are generally experienced in meeting victims and bring a wealth of knowledge.
• Reports. We have seen many examples of poorly drafted investigation reports which open the business to challenge. consult the AcAs code and Guidance and take advice on the report. think about privilege – the report itself is unlikely to be privileged: advice on process and on outcomes may well be.
• Flexibility. terms of reference that lack flexibility can also cause problems. It is advisable to insert clauses into the terms of reference which give the investigation team, by agreement with the employer, the latitude to adjust the scope of the investigation, should that become necessary. Investigations should in some ways be responsive processes that have the flexibility to respond to new information.
• Referring to regulators. In certain cases, reports may be made to Police and the professions’ regulators. Law firms and the bar should always be alive to the fact that the underlying complaints may be criminal and/or regulatory matters in which case care must be taken to liaise with those agencies to ascertain who will lead an investigation.
In addition, sexual harassment investigations can be particularly complex because:
1. serious sexual misconduct is often not committed in front of witnesses, although during an investigation it is useful to look through employee files or, when interviewing witnesses, look for indicators of behaviours which are relevant and might build a picture of someone who poses a risk; and 2. anonymity crops up more commonly in sexual misconduct investigations. the reasons for witnesses seeking anonymity should always be carefully explored with them. AcAs advises that guarantees of anonymity should be avoided as they are likely to disadvantage the person who is the subject of the investigation on the basis that it is more difficult for them to challenge anonymous evidence - so care needs to be taken in this area.
Finally, non-disclosure agreements have been the subject of much press interest and the use of these has significantly changed in recent years as a result. the srA issued a warning notice about the use of NDAs in march 2018 and recently updated this in November 2020. We have found that in settlement agreements, whilst NDAs/ confidentiality provisions are still present (and can still provide benefits to both parties), they should contain substantial exclusions allowing reports to be made to the police and others and for the purposes of seeking medical advice and talking to family about what happened. care should be taken in relation to confidentiality clauses in the employment contract itself: we have seen examples of restrictive confidentiality agreements that do not contain all of the necessary carve outs.
Overall, we have seen huge progress in the landscape in the last few years in this respect. Having sexual harassment issues at the forefront of our collective minds is critical and has led to behaviours being called out at an early stage. Knowledge and training are key – but we cannot be complacent: there is still a way to go and progress to be built on the steps already taken.
rachel Lewis and maria strauss Farrer & co
Corporate crime and the regulatory approach
corporate criminal liability has been transformed beyond all recognition, with companies now having to behave ‘responsibly’ or face not merely reputational damage but criminal prosecution and punitive fines.
tom mcNeill, senior associate at bcL solicitors analyses the current position and identifies the corporate risks.
corporate criminal liability has been transformed beyond all recognition from what it was just 15 years ago. Not only have fines increased very significantly, the expectations placed on corporates have changed fundamentally. companies are now expected to behave responsibly. that doesn’t just mean doing no wrong, it means preventing others from doing wrong. And if they do not, they risk not merely reputational harm but criminal prosecution and highly punitive fines.
Background
A key change has been the growth and development of the ‘regulatory’ approach. traditionally, the most serious offences were ‘mens rea’ offences. these offences require proof of the relevant mental element (e.g. knowledge or intention) as well as the relevant act.
regulatory offences, previously seen as less serious, are to the effect that if the proscribed thing happens, or the required thing does not, an offence is committed, and it doesn’t matter whether an organisation meant it or even knew about it.
sometimes regulatory offences have a due diligence provision – so that it wouldn’t be an offence if the person did all they reasonably could, but the proscribed thing still happened. However, it is the nature of regulatory offences, even those with a due diligence defence, that they’re easy to commit and difficult to defend.
Identification doctrine
It’s hard for companies to commit mens rea offences because it typically requires a directing mind, usually a director, to commit the offence which is then attributed to the company. Often directing minds aren’t involved with the relevant conduct – sometimes not provably so. Legal scholars used to query the justification for fining corporations, effectively the shareholders, for conduct they might not have approved or been aware of i.e. of which they were innocent.
It was also doubted that the shareholders would be moved (or be in a position) to take steps to address the offending. In any event, it was thought curious reasoning that an innocent person should be punished in order to compel him to do something which the law could do directly. In more recent years the concern became that identification doctrine was shielding companies from criminal liability. the response has been the extension of the regulatory approach to mens rea offences.
Failure to prevent In 2010, the UK introduced a failure to prevent bribery offence which makes commercial organisations criminally liable if a bribery offence is committed by an ‘associated person’ – a very broad term that could include subcontractors or suppliers – so long as that person intended a business advantage for the organisation. there is no minimum level of culpability – the draft bill required proof of negligence, but that requirement was removed during the legislative process. It doesn’t matter if no one within the company knew about the offending or the organisation did gain an advantage. the only defence for the company is to show that it had adequate procedures to prevent such conduct. In other words, commercial organisations are made criminally liable if someone else commits an offence, subject to a defence which requires them to prove that they did all they reasonably could to prevent the offending. In 2017, a failure to prevent the facilitation of tax evasion offence was introduced, in similar though not identical terms. there is currently an ongoing Law commission review which is considering extending the offence to other economic crimes, such as fraud, false accounting and money laundering. FcA-regulated persons are already subject to substantial ‘regulatory’
(i.e. non-criminal) penalties that are frequently higher than those imposed by the criminal courts,1 including for shortcomings in anti-money laundering controls and for failing properly to assess, monitor and mitigate the risk of financial crime.
Deferred Prosecution Agreements Introduced in 2014, DPAs have dovetailed perfectly with the failure to prevent offence. Under a DPA, a prosecutor will lay but not immediately proceed with criminal charges against an organisation, pending successful compliance with onerous conditions including a punitive financial penalty and measures to prevent future offending. Applying to various financial crimes (which often do not have the selfreporting structures that exist in a number of regulatory contexts), it incentivises corporates to self-report early and unreservedly with a view to avoiding a criminal conviction and securing a quicker and more certain conclusion than a lengthy investigation and prosecution. With failure to prevent offences very difficult to defend – and in any event for reasons of commercial certainty – a number of organisations have pursued the DPA route. Nine of the twelve DPAs agreed to date have concerned bribery offences.
since their introduction, DPAs have collected £1.67 billion for the treasury.
size of fines
At the same time that the regulatory approach is being extended, punishments for regulatory offences have been significantly increased. One factor in this increase is that fines now much better account for the financial circumstances of the organisation – large companies can now expect large fines. but the more fundamental change is that regulatory offences are now treated much more seriously, even when failings are merely systemic. there was a time when it was considered that the criminal law should not concern itself with companies trying to do the right thing – guidance and instruction were thought more appropriate. the robens report, which underpins the UK’s health and safety law, set out the reasoning:
“the fact is – and we believe this to be widely recognised – that the traditional concepts of the criminal law are not readily applicable to the majority of infringements which arise under this type of legislation. relatively few offences are clear-cut, few arise from reckless indifference to the possibility of causing injury, few can be laid without qualification at the door of a particular individual. the typical infringement or combination of infringements arises rather through carelessness, oversight, lack of knowledge or means, inadequate supervision or sheer inefficiency.
In such circumstances the process of prosecution and punishment by the criminal courts is largely an irrelevancy. the real need is for a constructive means of ensuring that practical improvements are made and preventative measures adopted. Whatever the value of the threat of prosecution, the actual process of prosecution makes little direct contribution towards this end...We recommend that criminal proceedings should, as a matter of policy, be instituted only for infringements of a type where the imposition of exemplary punishment would be generally expected and supported by the public. We mean by this offences of a flagrant, wilful or reckless nature which either have or could have resulted in serious injury…”.2 However, that approach has long since passed. When serious harm occurs, it is commonplace to see prosecutions of even the most conscientious organisations.
culpability All else being equal, organisations which are much less culpable should pay much smaller fines – if prosecuted at all.
However, with criminal regulatory offences in place, if harm occurs, the first question is, Why didn’t the company prevent it? cognitive bias is now well understood. Unfortunately, that understanding is rarely applied in the criminal justice system.3 so, a system which failed to prevent harm risks being judged a bad system. What might be viewed as a remote possibility before the event will afterwards be considered an incident or crime waiting to happen. If people didn’t follow the required systems, it is assumed because the company did not train them, or lead them, or monitor them properly. Organisations are expected to be able to overcome the everyday failings of people. If they do not, the organisation is not merely held responsible: it is judged to have committed a very serious crime.
risk management Organisations have two main routes to address these risks. the first, which is the principal legislative intent, is to properly fund, resource, audit and monitor preventative procedures. Organisations should do this. It is unlikely however that organisations will ever be able to fully protect against human error.
the second is when things go wrong. expert advice will help avoid own goals, such as in relation to selfreporting and disclosure. beyond that, it will be necessary to properly investigate what happened and what went wrong, engaging experts where required, and to persuasively explain the organisation’s position. With regulatory offences, however, damage limitation will sometimes be the best possible outcome, even for well-run organisations.
conclusion
For the criminal law to be fair and robust it should ensure that culpable persons are prosecuted, whether organisations and/or individuals, and that any punishment imposed is proportionate to that culpability. the extension of the regulatory approach, however, will see more organisations pay highly punitive fines for harm or wrongdoing which they have limited ability to prevent. by one route or another, it may also result in fewer culpable individuals being prosecuted.
tom mcNeill, senior associate at bcL solicitors
1Ubs & Deutsche bank were fined £160 million and £227 million respectively by the FcA for manipulation of LIbOr; barclays bank was fined £284.4 million by the FcA for manipulation of the currency exchange market (FOreX). standard chartered bank was fined £102.2m by the FcA in relation to shortcomings in the bank’s AmL controls relating to customer due diligence and ongoing monitoring. 2safety and Health at Work: report of the committee, 1970-72, chairman Lord robens, p.82. 3 the author discussed cognitive bias here: https://www.hsmsearch.com/cognitive-biashealth-safety-investigations.
