Launching the draft Defamation Bill, Justice Secretary Ken Clarke said: “The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society. In recent years though, the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate, and investigative journalism. However it is never acceptable to harm someone’s reputation without just cause, so the Bill will ensure defamation law continues to balance the needs of both sides and encourage a just outcome in libel cases.”

The draft Bill includes provision for a new ‘public interest’ defence which can be used by defendants in defamation cases. It also includes a new statutory defence of truth which will replace the current common law defence of justification, and a statutory defence of honest opinion replacing the current common law defence of fair and honest comment. There will be a requirement for claimants to demonstrate substantial harm before they can sue. ‘Libel tourism’ will be reduced by making it tougher to bring overseas claims which have little connection to the UK in the English courts. In addition there will be a single publication rule, meaning repeat claims for libel cannot be made every time a publication is accessed on the internet. The bill signals an end to the use of juries in libel trials, apart from in exceptional circumstances.

The draft bill has produced a generally favourable press. Roy Greenslade’s blog in the ‘Guardian’ gave it three cheers. He is “particularly delighted that the bill includes a ‘public interest’ defence in order to strengthen the position of people who raise concerns about malpractice or dangerous products.” Slightly more reserved is Dr Evan Harris of the Libel Reform Campaign, who said: “Those campaigning for libel reform will want to see cross-party recognition that the draft bill is a welcome step forward, but also that it does not yet reflect the extent of full libel reform that is required to properly protect free expression.” And Jonathan Heawood, Director of English PEN said: “Our libel laws allow big corporations to silence their critics even though they do not ‘suffer’ damage in the same way that a libelled individual does. Whilst we’re delighted that the government has delivered a wholesale draft bill, for the first time in a generation, it’s essential that this opportunity delivers real reform that protects free speech for writers, publishers and the citizen critic.”

A consultation paper has also been launched alongside the draft Bill, which includes questions on a number of other areas. These include the role of the internet, and a new court procedure to cut the sometimes overwhelming court costs associated with libel actions by encouraging early resolution of key issues. The consultation is open until 10 June. The full text of the Draft Defamation Bill and the Consultation can be found at:

http://www.justice.gov.uk/consultations/docs/draft-defamation-bill-consultation.pdf

So said Lord Young of Graffham in his report ‘Common Sense – Common Safety’ following his review, commissioned by the Prime Minister, of the operation of health and safety laws and the growth of the perceived compensation culture in England & Wales. The Ministry of Justice quote examples of advertising by claims management businesses that promote inducements and which are currently permitted:

“We’ll pay you £200 immediately after our solicitors approve your claim.”
“As soon as we accept your claim, we promise to give you a £150 cash advance.”
“If the solicitor believes they can win the case for you and accepts it, we will award you £300 as an up-front payment.”
The Ministry intend to put a stop to all this by preventing claims management businesses from offering any kind of financial or similar benefit as an inducement for making a claim at any stage throughout their dealings with a client. The proposal is to amend Rule 6b of the Conduct of Authorised Persons Rules 2007 by deleting:

“6. In soliciting business through advertising, marketing and other means a
business must –
b) Not offer an immediate cash payment or a similar benefit as an inducement for making a claim.”

and inserting:

“6. In soliciting business through advertising, marketing and other means a
business must –
b) Not offer any cash payments or similar benefits as an inducement for making a claim.”
MoJ have launched a consultation exercise on this proposal and are seeking contributions by 10 February.
For the full text of Lord Young’s report “Common Sense – Common Safety” see:

http://www.number10.gov.uk/wp-content/uploads/402906_CommonSense_acc.pdf

The MoJ consultation paper is at:

http://www.justice.gov.uk/consultations/docs/consultation-claims-man-reg-cp1910.pdf

As reported in the ‘Observer’, analysis by the London School of Economics and the Open Society Justice Initiative found that there are 41.6 Section 60 searches for every 1,000 black people, compared with 1.6 for every 1,000 white people, making black people 26.6 times more likely to be stopped and searched. Asians were 6.3 times more likely to be stopped than whites, according to the analysis of Ministry of Justice figures for 2008-09. This analysis of government data has brought claims of discrimination from campaigners who say the findings corroborate concerns that black and Asian Britons are being unfairly targeted. The data reveal a marked escalation in relative searches of ethnic minorities in England and Wales. In the previous year blacks were 10.7 times more likely to be stopped than whites, and Asians 2.2 times more likely. US civil rights activist Jesse Jackson, recently arrived in London to launch a campaign aimed at curbing what he says is stop and search discrimination, described the figures as “astonishing”. Interviewed on ‘Newsnight’ on Monday, he said that this race profiling, indicative of basic structural inequalities, produced a “racial dragnet that is immoral and illegal.” Not the least effect, he said, is that it deprives the police of their moral authority and credibility.

In July, Home Secretary Theresa May told Parliament that the government would change how stop and search powers under section 44 of the Terrorism Act are used with immediate effect. The move was in response to a decision by the European Court of Human Rights, which found that the use of stop and search powers under section 44 of the Terrorism Act 2000 amounted to a violation of the right to a private life. The court said the powers were drawn too broadly at the time of their initial authorisation and did not have enough safeguards to protect civil liberties. However, the police can still rely on powers granted by section 60 of the Criminal Justice and Public Order Act 1994, which allows police to stop individuals without reasonable suspicion “in anticipation of violence,” and by schedule 7 of the Terrorism Act 2000, which allows stops in ports and airports for counterterrorism purposes.  Police use of these powers has given rise to similar problems as seen with section 44, with a disproportionate impact on ethnic minorities.
 
The National Council for Civil Liberties, now known simply as Liberty, report that a consultation on amending PACE Codes, not published on the Home Office website but only made available to certain interested organisations, includes a statement that whilst officers must take particular care not to discriminate, there “may be circumstances…where it is appropriate for officers to take account of an individual’s ethnic origin in selecting persons and vehicles to be stopped.” Isabella Sankey, Director of Policy for Liberty, said: “Stopping and searching individuals without suspicion is divisive enough without telling police they can directly discriminate on the grounds of race. Significant progress has been made since the Lawrence Inquiry but the Home Office’s planned changes to PACE will set the clock back and jeopardise race relations in the UK.”

The new Act is widely seen as a response to the BAE Systems case, where the prosecution against the defence company was dropped after the intervention of Lord Goldsmith, then attorney general. Earlier this year, BAE agreed to pay £300m in fines after signing up to a plea bargain with Britain’s Serious Fraud Office and the US department of justice. But the case has had a long-term impact on Britain’s reputation as its position in the international “corruption index” has slipped to 17th, behind Japan, Hong Kong and Austria. A survey in 2006 by Control Risks, a consultancy, estimated that a quarter of UK-based international companies have lost business to corrupt competitors in recent years, while figures from the World Bank suggest that bribery adds up to 10% to the total cost of doing business globally.

The Act is intended to make it significantly easier for enforcement agencies to bring successful prosecutions, including against UK corporate entities, in respect of corruption offences committed at home and abroad. The Act introduces four new statutory offences – giving or receiving bribes, bribery of foreign public officials and failure of a commercial organisation to prevent bribery by persons working on their behalf. This last offence is entirely new and is a strict liability offence. The Act will have a considerable impact on foreign companies who do business in the UK, particularly those which have a place of business in the UK and/or UK employees. It is not limited to acts of bribery committed in the UK by British citizens or commercial organisations. It extends to acts committed anywhere in the world by UK corporates or individuals if the act of bribery would amount to an offence in the UK.

Penalties for individuals under the Act will be more severe than they are at present. The maximum term of imprisonment is increased from seven to ten years, in line with other fraud offences. There is also the prospect of an unlimited fine for individuals or commercial organisations convicted of the two general bribery offences or the offence of bribing a foreign public official and for organisations convicted of the offence of failure to prevent bribery. The only defence to a corporate entity’s liability for bribery committed by an individual acting on its behalf is that “adequate procedures” designed to prevent bribery are in place. The Secretary of State will issue guidance as to what “adequate procedures” are.

The current laws, contained in a combination of statutes dating back to the 19th Century and the common law, will be abolished when the new Act is brought into force. The Act, however, does not have retrospective effect so will apply only to offences committed after it comes into force. In the meantime the old bribery laws will have continuing relevance.

The full text of Bribery Act 2010 can be found at:

http://www.legislation.gov.uk/ukpga/2010/23/contents

Explanatory Notes are at:

http://www.legislation.gov.uk/ukpga/2010/23/pdfs/ukpgaen_20100023_en.pdf

Now it would seem that the government has abandoned these plans. When asked in the Commons last week if he will conduct a public consultation on whether to grant anonymity to defendants in rape cases, justice minister Crispin Blunt said: “The Government are minded to strengthen anonymity before charge. We want to hear the views of those who may have any new evidence to assist our deliberations, and we will bring our conclusions to Parliament in the autumn.” However, he went on to say: “Since the principal points of judgment around the issue are clear and very narrow…the Government do not propose to manage a full, formal public consultation.” Crucially he added: “We want in the first instance to try to find a non-statutory solution, and given that we had 21 Criminal Justice Acts passed over the 13 years of the last Administration, I am sure that Labour Members will understand why we are loath to find even more statutes to put on the statute book.”

Instead the government will negotiate with the Press Complaints Commission to persuade newspapers and websites to grant anonymity to suspects. “It was agreed on both sides of the House when the Sexual Offences Act 2003 went through Parliament that all people charged with offences ought to have their identity protected until the point of charge. That is the guidance that the Press Complaints Commission put into effect in 2004.” He added that there is an issue around the strength of that guidance which required attention. According to the ‘Guardian’, Government sources said the minister had not performed a U-turn because ministers had not committed themselves to changing the law. Ministers are still committed to granting anonymity to suspects between arrest and charge and believe that a change in the PCC code is the best way of achieving this.

The move is in response to a decision by the European Court of Human Rights,  which found that the use of stop and search powers under section 44 of the Terrorism Act 2000  amounted to a  violation of the right to a private life. The court said the powers were drawn too broadly at the time of their initial authorisation and did not have enough safeguards to protect civil liberties. The Home Secretary told the House of Commons: “I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of the civil liberties of every one of us.” She added that the new government had been concerned about the use of section 44 powers for some time. The changes are designed to comply with the Strasbourg ruling and provide clarity for the police before a review of all counterterrorism legislation this summer. The terms of reference for the review are expected to be announced next week.

The Home Secretary has sought urgent legal advice and consulted police forces, and interim guidance for the police has been introduced which sets a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers. Instead they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist. Police may search only vehicles under section 44 of the law, and then only if they have reasonable suspicion of terrorist activity. The changes will bring the operation of counter-terrorism use of stop and search powers fully into line with the European Court’s judgment. Theresa May concluded: “The first duty of government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights.”

In reply, Alan Johnson, the former Labour Home Secretary, said he was ‘amazed’ that his successor had not tried to appeal against the Strasbourg ruling. He went on to say: “I am deeply concerned about the Home Secretary’s intention to restrict section 44 powers to searches of vehicles. That quite clearly restricts the powers of the police.” But Lord Carlile, the government’s independent reviewer of anti-terror legislation, speaking on BBC’s ‘World at One’ yesterday, said section 44 had been ineffective in combating terrorism, had caused community tensions and was used arbitrarily and for incorrect purposes. He added: “You don’t have to search people to discourage terrorists, the evident availability of police officers in the area, obvious uniformed policing, is just as much of a deterrent.” And Shami Chakrabarti, director of the human rights group Liberty, said: “Liberty welcomes the end of the infamous section 44 stop and search power that criminalised and alienated more people than it ever protected. We argued against it for ten years and spent the last seven challenging it all the way to the Court of Human Rights. It is a blanket and secretive power that has been used against school kids, journalists, peace protesters and a disproportionate number of young black men. To our knowledge, it has never helped catch a single terrorist. This is a very important day for personal privacy, rights to protest and race equality in Britain.”

In a written statement to the Commons on 23 June, Secretary of State Kenneth Clarke said that Her Majesty’s Courts Service (HMCS) currently operates out of 530 courts, some of which do not fit the needs of modern communities. Their number and location do not reflect recent changes in population, workload or transport and communication links over the years since they were originally opened. Consultation papers have been published setting out proposals to close 103 magistrates courts and 54 county courts and inviting views on how best to provide local justice services in communities across England and Wales. He said: “In reaching decisions on closures I will ensure that we keep courts in the most strategically important locations, communities continue to have access to courts within a reasonable travelling distance, that cases are heard in courts with suitable facilities and that there is an overall reduction in cost.” Closure of the courts covered in the consultation would achieve running cost savings of around £15.3 million per year. These courts also have backlog maintenance of around £21.5 million, costs that can be avoided if the closures go ahead. “I believe that as well as savings to HMCS there will also be savings for other criminal justice agencies by focusing their attendance at a single accessible location within a community.”
 
The Secretary of State added that current arrangements are historical and now need to be reassessed to see if they meet the needs of today’s society. Modern communications and greater transport facilities mean that providing access to justice does not require a courthouse in every town or city. He said that, across the civil and criminal courts, there are great opportunities to harness technology more effectively so people do not necessarily have to physically attend court when they give evidence or access court services. Not all disputes need to be resolved in court. “I will also examine ways of enabling more people to resolve their disputes in a way that leads to faster and more satisfactory solutions. We will continue to develop proposals for introducing alternatives that deliver a better service for less money.”

Courts Minister Jonathan Djanogly said: ‘The Lord Chancellor and I are keen to hear the views of everyone with an interest in local justice arrangements. He will take all views into account before making any decision on which courts ought to be closed and when. As well as consulting on the courts we need today I want to begin a conversation about how the courts service could be modernised to improve the justice system as well as reduce its costs.”
The closing date for consultation responses is 15 September 2010. The full list of courts threatened with closure, together with links to the consultation documents, can be found at:

http://www.justice.gov.uk/news/announcement230610a.htm

 This proposal has produced a storm of adverse publicity. Granting anonymity to defendants accused of rape could lead to serial attackers slipping through the net, campaigners, victims and lawyers have warned. Women who had not previously had the confidence to report a rape were often inspired to do so after seeing media reports naming and picturing the same man. Ruth Hall, a spokeswoman for Women against Rape, said that the proposal could put women off coming forward to report rapes, hitting the already low conviction rate. Concern has been expressed that the proposal, intended to protect men from the damaging impact of false allegations, gave the impression that women frequently lie about rape. Baroness Stern, in her review of rape (see blog posted on 25 March), said that the subject of false allegations came up so often in discussions about rape, and the information about the prevalence of false allegations is so scanty, that research should be undertaken to establish their frequency before any view was reached on anonymity for defendants. As reported in the ‘Guardian’, Labour peer Helena Kennedy QC said the naming of accused rapists helped police investigations. “People who commit crimes like rape and serious crimes of violence, particularly sexually motivated ones, are often repeat offenders,” she said. “What the police will tell you is that very often the exposure of the identity of the accused brings forward other people.”

Speaking in the adjournment debate in the House of Commons on 7 June, Caroline Flint said: “Those proposals, if implemented, would deter victims from coming forward and make it far more difficult for the police to charge offenders and convict rapists. We know that many rapists are serial offenders; their trail of victims often runs into double digits. Many women – for a variety of reasons – do not come forward straight away. They are afraid; they want to pretend it never happened. They are embarrassed; they feel as though they did something wrong. They are ashamed; they believe that what happened was their fault. They feel alone.” She will have been aware that she was pressing on a door which, if not open, was certainly not locked. Earlier in the day, also in the Commons, Deputy Prime Minister Nick Clegg signalled a new willingness to drop the government’s plans. He said: “Everybody is united in wanting the conviction rates for rape to increase. Everybody wants more support to be provided to victims of rape so that they come forward in the first place, while also wanting to minimise the stigma attached to those who might be falsely accused. However, I want to make it clear that, although the Government have proposed the idea, we want to listen to everybody who has a stake or expertise in or insight into the matter. If our idea does not withstand sincere scrutiny, we will of course be prepared to change it.”

Binyam Mohamed and five former prisoners are claiming damages against the Government for alleged complicity in torture and extraordinary rendition. The Government and security services wanted to use confidential information in their defence at the High Court, which in effect would have meant the case being held in secret. They filed an “Open Defence”, in which, while admitting that each of the claimants was detained and transferred, the defendants put in issue any mistreatment which the claimants allege, and, in any event, denied any liability in respect of any of the claimants’ detention or alleged mistreatment. “The issue on this appeal is whether Silber J was right to conclude, as the defendants contend, that it is open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty”.

The men’s lawyers argued that use of the “closed material” procedure, normally confined to criminal cases, would undermine the basic concepts of a fair and open trial. The court of appeal agreed with them, stating: “We have concluded that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties that the action should proceed on such a basis, to order a closed material procedure in relation to the trial of an ordinary civil claim, such as a claim for damages for tort or breach of statutory duty”. They gave as their primary reason for their conclusion that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles. Under common law a party to litigation should know the reasons why he won or lost, and trials should be conducted, and judgments should be given, in public. “In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. It will fall to the new government to decide whether or not to appeal, but, according to the ‘Guardian’, the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements, that being preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

The full text of the judgement by the Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Sullivan in Neutral Citation Number: [2010] EWCA Civ 482 can be found at:

http://www.bailii.org/ew/cases/EWCA/Civ/2010/482.html

The reforms will build on the work of the Libel Working Group, which was established by the Ministry of Justice in January to consider reforms to the law of libel, and whose report was also published last week. The report focuses on four principal areas in which the case for reform has been urged with particular emphasis: libel tourism; the role of public interest considerations in establishing a defence to a libel action; the rules about multiple publication, with particular reference to the internet; and procedural and case management issues relating to the conduct of libel litigation.

Under the MoJ’s proposals, the current multiple publication rule will be replaced with a single publication rule. This will ensure that claimants in libel proceedings cannot bring a case against every publication or download of a story repeating the same claims. Instead, claimants will only be able to bring a single action, within one year of the date of the original publication. The interests of people who are defamed will be protected by giving the court the power to extend this period where necessary. Consideration will also be given to a statutory defence to protect publications that are in the public interest. It is claimed that this would help address the ‘chilling effect’ that the threat of libel proceedings can sometimes have on investigative journalism, which occurs when media outlets and NGOs are cautious about publishing important information due to the threat of legal action. The government also plan to move to prevent the growth of ‘libel tourism’, when foreign claimants use English courts to make libel claims against foreign publications outside the EU which can be accessed in the UK. This will include asking the Civil Procedure Rule Committee to consider tightening the rules where the court’s permission is required to serve defamation cases outside England and Wales. The aim is to head off inappropriate claims at the earliest stage and stop them from reaching court.

Many commentators welcome the proposed reforms but feel that they do not go far enough, particularly in regard to a public interest defence, where more commitment is sought. The Libel Reform Campaign claims that our libel laws are stacked in favour of claimants, reporting that none of the 154 libel proceedings in 2008 identified in the Jackson Review of Civil Litigation Costs (see blog posted on 19 January) were won by defendants. On costs, they state that the most expensive libel action cost £3,243,980; that the average cost for the 20 most expensive trials was £753,676; and that the average cost of a libel trial in England & Wales is 140 times the European equivalent. An earlier government attempt to reduce the costs of libel cases – reducing the success fees that lawyers can charge in defamation cases from 100% to 10% – has been held up in the Lords by a “motion of regret” tabled by the former Commons speaker Lord Martin. The Ministry of Justice is planning to make parliamentary time available to prevent the order being killed off before the election.

The full text of the Libel Working Group report can be found at:-

http://www.justice.gov.uk/publications/docs/libel-working-group-report.pdf