"The Alternative Guide to SLAPPs" - Putting the victim at the heart of the justice system
“The task is ... not so much to see what no one has yet seen; but to think what nobody has yet thought, about that which everybody sees.”
Erwin Schr?dinger 1887 - 1961
This is a preview from the working draft of a chapter in my forthcoming book "The Alternative Guide to SLAPPs", which will include the issue of psychological damage and other injuries caused by SLAPPs and abuses of process in litigation.
On 22 September 2022 I posted about the psychological harm and other injuries that can be caused to the victim of a SLAPP lawsuit, as acknowledged by the results of the UK government's consultation on SLAPPs published on 20 July 2022. (1)
Since then the UK government has followed through with the results of its consultation and enacted §§194 and 195 of the Economic Crime and Corporate Transparency Act 2023, which require that the power to make Civil Procedure Rules must be exercised so as to secure that the Rules include provision for ensuring that a claim may be struck out before trial where the court determines —
(a) that the claim is a SLAPP claim (see section 195), and
(b) that the claimant has failed to show that it is more likely than not that the claim would succeed at trial.
For the purposes of section 194 a claim is a “SLAPP claim” if—
(a) the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech,
(b) any of the information that is or would be disclosed by the exercise of that right has to do with economic crime,
(c) any part of that disclosure is or would be made for a purpose related to the public interest in combating economic crime, and
(d) any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant—
(i) harassment, alarm or distress,
(ii) expense, or
(iii) any other harm or inconvenience,
beyond that ordinarily encountered in the course of properly conducted litigation.
In a major development, on 23 February 2024 the UK government also indicated its support for a landmark Private Members Bill to extend the SLAPP protections to a wider range of lawsuits, described in a press release as being designed to prevent corrupt elites from making spurious legal claims to gag journalists and silence critics. (2)
Lord Chancellor and Justice Secretary, Alex Chalk KC, said:
This Government has already proved its commitment to cracking down on those with deep pockets who abuse our courts, so we thank Wayne David for bringing forward this important legislation.
Wayne David, MP for Caerphilly, said:
Well-heeled corrupt and malicious elites have been using SLAPPs to intimidate and threaten journalists, community campaigners, academics or anyone challenging them and speaking out in the public interest.
The Bill which had its second reading in the House of Commons on 23 February 2024 has cross-party support, and will update the measures in the 2023 Act to cover a broader scope - blocking SLAPPs across all types of litigation, including sexual harassment, not just economic crime.
It will create a new dismissal mechanism to stop other SLAPP claims as early as possible. Claimants will be required to prove they are likely to succeed before it goes to trial, allowing SLAPPs to be rapidly thrown out by judges and making them less effective as a tool with which to threaten free speech advocates.
Today (29 March 2024) we also see an update on the Victims and Prisoners Bill in Parliament with the stated object of fundamentally transforming victims’ experience of the criminal justice system and placing them at the heart of the system. Legislation will enshrine the principles of the Victims’ Code in law, give ministers powers to direct the inspection of justice agencies that are failing victims, and create better oversight of those agencies. (3)
Justice Minister, Edward Argar MP, said of the Bill:
We want victims going through the justice system to feel listened to, supported, informed, and to be treated fairly, properly, and with dignity.
The Bill will make it easier for victims to make complaints to the Parliamentary and Health Service Ombudsman (PHSO) by removing the need to go through an MP, where their complaint relates to their experiences as a victim of crime. The PHSO can handle complaints against public bodies including the Crown Prosecution Service, His Majesty’s Courts and Tribunals Service (HMCTS) and His Majesty’s Prison Service but excludes judges, magistrates and the police.
It has also been announced that legislation will be introduced to make it clear that non-disclosure provisions that try to gag victims not to report crimes will be void (3a).
Lord Chancellor and Secretary of State for Justice, Alex Chalk, said:???
We are bringing an end to the murky world of non-disclosure agreements which are too often used to sweep criminality under the carpet and prevent victims from accessing the advice and support they need.??
Legislation will be introduced as soon as Parliamentary time permits.
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Prior to section 13(1)(a) the Criminal Justice Act 1967 the abuse of process by means of a SLAPP was a potential criminal offence in England as "barraty". The offence was described as "persistently stirring up quarrels in the Courts or out of them". However in 1967 it was abolished at the recommendation of the Law Commission on the basis hat there had been no indictments for the offence for "many years" and that, as an indictable misdemeanor, it was "wholly obsolete". There was an assumption that lawyers were sufficiently regulated by their professional bodies.
How wrong did that prove to be, with the problem of abusive litigation in the form of SLAPPs climbing until it was finally challenged by Bob Seely, MP for the Isle of Wight, in the House of Commons in January 2022. He clearly blamed lawyers.
He said: “If we allow the cancer of the selling of intimidation services by high-end legal firms, it will not do us any good in the long run, just as in the long run letting mafias launder money would also be bad for us…
“Let me be clear. Although these tactics are sold by law firms to many different actors, including organised crime and corrupt corporations, I think they are very much part, as some members have said, of the Russian state playbook and Russian hybrid war tactics: the tools of non-military conflict in the west against the west.
“I will argue for significant reform of this corrupting cottage industry, which enriches the few at the expense of the whole.”
Mr Seely said the website of “all these big fancy posh firms” made them look like “butter would not melt in their mouths”.
He said: “I am sure they do pro bono work. This sort of work, offering these sorts of services to some of the most unsavoury human beings and organisations on the planet, is deeply immoral and is deeply corrupting to those otherwise upstanding firms, which should be doing more to protect and not corrupt our legal system.
“What is being offered is a cottage industry of lawfare — legalised intimidation by some of the most deeply unpleasant individuals and organisations on the planet. These companies are going out trawling for business because it is so well paid.
“The lawyers who do this sort of work should, to put it bluntly, be deeply ashamed of what they do, because they destroy the integrity of the UK legal system, not uphold it. They charge double or triple, but it is a moral abuse of the law, and they know it.”
As well as anti-SLAPP legislation, “we need to go after those lawyers — dare I call them slappers — who use such tactics”, Mr Seely said." (4)
The Solicitors Regulation Authority (SRA) has since (28 November 2022) published a Warning Notice on SLAPPs making clear that they can amount to professional misconduct. (5)
Exactly a year later (28 November 2023) the legal profession was told that the SRA is investigating at least 50 potential SLAPP cases. (6)
However the Legal Services Board (LSB), the super regulator for solicitors and barristers, has expressed its concern that not enough is being done to regulate SLAPPs and sought an explanation for why this is so. Following a task force announced on 11 September 2023 to clamp down in SLAPPS, involving the Ministry of Justice and the professional bodies and regulators for barristers and solicitors, it is working on identifying the gaps in regulation that allow unethical conduct to persist.
The outgoing chief of the LSB has more recently described the situation as "mildly ridiculous". In a frank presentation he expressed concerns about the failure to tackle abusive conduct. (7). The Law Gazette quoted his as follows:-
"In what sounded like a parting shot, Hill called on the frontline regulators to turn good intentions into achievements. He added: ‘You can have all the guidance, warning notices, codes of conduct you like, but if you can’t turn that into real visible results, so that people who have suffered harm can see that there are consequences for wrongdoing, it’s all a bit pointless. So if you publish a warning notice on SLAPPs, for example, or NDAs, and then dismiss all the complaints that are brought under those notices, pretty soon people are going to lose faith and confidence. And if that happens, it would likely be, or should be, a matter of grave concern to everybody in this conversation today.
‘The final point I’ll make is that I think there is cause for scepticism about [whether] the hundreds, even thousands, of rules that make up the various regulatory processes are? actually capable of driving the positive behaviours and values that the public has the right to expect from legal professionals. I know it’s a slightly provocative thing to say, but I do find myself wondering whether it might be possible to be in apparent full technical compliance with, say, the BSB [Bar Standards Board] or SRA handbooks and codes of conduct, and still be a pretty bad barrister or solicitor.
‘It may be that there’s been too much focus on individual transgressions by individual lawyers, and not enough focus on identifying societal risks, issues of leadership, culture, ethos, and values.’
Hill wants to see legal services regulation becoming ‘much more productive and actively shaping the sector by focusing robustly on how it is led’."
Meanwhile, harassment is a two way offence; it can be addressed as a civil matter or as a criminal matter under the Prevention of Harassment Act 1997. Unscrupulous lawyers have not been slow to threaten victims with criminal allegations of harassment when they report misconduct by their employers ( or to put it more accurately the staff and/or agents of their employers). Yet victims are rarely able to secure even the timely support of regulators whilst the criminal act of harassment is actively in progress in the court system causing them active psychological injury. Often a regulator will wait until a ruling by the judge at the end, by which time the SLAPPer will have done their job and oppressed the victim unscrupulously into settlement (often requiring they do not report the SLAPP) or into bankruptcy.
There seems to me to be no good reason why, if the victim is truly at the heart of the criminal justice system, those who pursue SLAPP strategies by way of offence or defence should be exempt from the criminal law when the damage they cause, psychologically or economically, is sufficient to merit it.
(3) https://www.gov.uk/government/news/victims-placed-at-heart-of-justice-system-under-radical-shakeup
Amended on 1 Apri 2024 to make clear that the NDA changes will be in separate legislation and to add footnote 3a.
Blacklisted & criminalised International School of Geneva whistleblower with impeccable career Education Consultant (Curriculum, Compliance, Child Protection) change.org/HelpWhistleblowerSue #whereismarkpoole
8 个月This: "Well-heeled corrupt and malicious elites have been using SLAPPs to intimidate and threaten journalists, community campaigners, academics or anyone challenging them and speaking out in the public interest."