Honesty and Integrity

When I applied for admission to the roll of solicitors in 1974 it was a requirement that applicants be interviewed by a panel of the Law Society. At my interview I was asked what the two most important qualities were of a solicitor. I replied that I thought honesty and integrity were the most important qualities. The panel asked me what was the difference between honesty and integrity. Continue reading

The Crime of Assisting in Evasion of Foreign Tax

Hundreds of volumes of our laws are written to ensure that the government may successfully collect taxes. A large amount of people are employed in collecting those taxes. Whole industries have been created about the collection of taxes and about the avoidance of taxes.

Under new laws that came into force on 30 September 2017 two new criminal offences have been created, dealing respectively with facilitating the evasion of UK tax or the evasion of foreign tax. These offences can be committed by those working in these tax industries. Continue reading

Problem Solving

Many people like puzzles. They become expert in crosswords or sudoku or similar recreations, which can be a pleasant way to spend time, but real life legal puzzles are not an entertainment; for those clients caught in the midst of a legal puzzle they endure great stress. Most people who find themselves being sued or having to sue never, when they started on a course of business or a relationship, envisaged that it would end in tears. They suddenly, and these things often happen suddenly, discover that their life’s work is at risk, and the stress of many thousands of hours being wasted. Continue reading

Making Too Many laws

In ancient times people started with custom, a way of doing things, which morphed into law. As people developed, so law developed. In some places custom became precedent, and frequently whole bodies of precedent were turned into codified laws. Continue reading

Are Social Media Platforms Publishers?

We all have something to say and social media provides a platform from which we can speak. Platforms amplify speech. Social media platforms allow individuals to publish whatever they choose, generally without censorship, or editorial interference. They are a useful and cheap way to communicate to the world at large. They are also an environmentally friendly way to communicate.

There is a long tradition of people wanting to communicate; centuries ago some published pamphlets; others wrote books. These communications could only reach a mass audience because of the invention of the printing press. Today even the President of the United States of America frequently communicates through twitter.

Most nations have laws which prevent, or seek to prevent, the dissemination of material which is defamatory or severely pornographic or which induces hatred or which espouses violence in some form or other. If such material were printed in a newspaper or in a book the publisher would face the same legal sanctions as the author. However, if such material is communicated on a social media platform the social media company faces no legal sanction. It may, if the material is drawn to its attention, take it off the platform, but the internet is a complex beast and once something is published on it, the material usually stays on it, somewhere or other.

Governments are now looking to see how such material can be regulated on the internet. One way is to make the platform liable in the same way that traditional publishers are responsible for their publications equally with the author. However the sheer volume of material put on to social media is a problem. Perhaps social media companies could spend much more of their vast resources policing their own platforms, but they are loathe to do this voluntarily. Germany has enacted laws which require a stringent policing by social media companies, so I am sure that this could be done in other jurisdictions.

We do not want to get to a state where platforms are censoring what people put on social media. There are many opinions which I personally find extremely offensive and disgraceful, but I do not want to prevent people expressing their ideas. The expression of an idea is the right of everyone in the world; free speech, however, is limited to the expression of ideas: hatred, propaganda (now fashionably called fake news) instructions to build bombs and encouragement to violence are not ideas.

 

Pensions and Carillion

The sudden (and in some quarters) expect collapse of Carillion has left many people who thought that they had a pension of a certain amount from the conglomerate finding that their pensions will be significantly less than they expected. It is astonishing that the law seems to permit companies to ignore their pension obligations and give priority to the payment of dividends over their legal obligation to make payments into their own pension funds. Pensions are wages, in reality, deferred wages, and I cannot understand a position where Carillion’s pension funds are in deficit, and apparently have been in deficit for many years, while dividends have been continuously paid to shareholders.

After all, when a person works for a company and it is a term of the employment that the person will get a pension based on final salary or average earnings, what is really happening is that the employee works for lower wages on the basis that he or she will get the agreed pension.

Pension fund deficits seem to be widespread among many large companies.  It is hard to understand how auditors manage to give such companies a clean bill of health. In Carillion’s case it seems that the pension trustee warned that there was a shortfall of around £990 million in the fund. Collectively the Pension Protection Fund’s review of pensions showed that although there were 1,878 schemes in surplus, there were more than double that amount in deficit, and that in the aggregate the deficit was more than £100 billion.

The funds that the pension funds maintain do fluctuate, usually as the stock market fluctuates and as fixed interest investments change. I can understand that fluctuations must be taken into account and over several years you would expect some fluctuation with the company having to put more money in, or if it has put in too much, having a contribution holiday until things were smoothed out. I cannot understand how it is that funds can be in substantial deficit for ten years. Perhaps some regulator is not doing its job properly.

If the pension fund is in deficit, the Pension Protection Fund steps in to help in a limited way. Not all of the pension is covered by the PPF and this means not only does the pensioner not get his or her full pension but also the taxpayer loses the income tax on that part of the pension that is lost.

There needs to be a fix. I would suggest that there should be a more transparent treatment of pension obligations in companies’ accounts and further that companies should not be permitted to pay dividends while pension funds are in substantial long term deficit. This rule will, I am told, deter investment in companies whose pension funds are in deficit, but would that be a bad thing? Should investors be able to reap dividends from companies who do not pay their pension contributions?

We Cannot Rely on the Judges to Safeguard Our Freedoms

There has been a great deal of press comment and scandal in the UK recently about allegations of historic child abuse. There have been quite a lot of cases in which famous people, often entertainers, have been found to have abused children and women taking advantage of their celebrity, but in efforts to catch all such abusers unsubstantiated and sometimes ridiculous allegations of abuse have been investigated with fervour, relying implicitly on the truth of the complainants statements no matter how incredible or uncorroborated they may have been.

Several people have been investigated and their investigations have made the headlines. 92 year old Field Marshall Bramhall had twenty policemen descend on his home to search it thoroughly. Former Home Secretary Leon Britton  suffered similar indignities. There have been others. None of them have been or will be prosecuted, There is no evidence of any wrongdoing on the part of a number of these people, including those I have named, who have had their names bandied around by the media as child abusers and rapists.

Of course the police must have leaked details of their investigations to the press in ways that enabled the press to identify the subject of their investigations. That is quite wrong, but the police frequently misbehave and there is nothing unusual in that. Normally we expect the judges to prevent bad or excessive behaviour on the part of the police.

When the police decided to search Field Marshall Bramall’s home they must have first obtained a search warrant from a judge. They would have had to explain to the judge (at a hearing in chambers) why they wanted the search warrant, what they expected to find and give the judge some details of the evidence that formed the basis of their suspicions.  they would have also told the judge when he considered granted the search warrant that they proposed to send twenty officers to search the Field Marshall’s home.

In my experience police exaggerate but do not lie when it comes to swearing evidence for a search warrant. It is likely that the judge who granted the warrant knew the following facts to be as hard facts and probably nothing else:-

  1. A chap called Nick had accused the 92 year old Field Marshall of abuse said to have happened some 40 years earlier.
  2. Nick’s evidence was completely uncorroborated.
  3. None of Nick’s evidence had been tested in any way – for example an allegation that the Field Marshall had carried out abuse on Remembrance Day, which would have been easy to test.

The test of granting a search warrant is there must be reasonable grounds for believing any of the following:

  • A criminal offence of a serious nature has been committed; in this case the only evidence was an unsubstantiated allegation of something said to have happened 40 years earlier. there are no reasonable grounds for believing any offence was committed.
  • There is material evidence on the premises that is likely to aid a criminal investigation; what did the police think a search would reveal? That the Field Marshall had kept photographs of the offence? That DNA would be available after more than 40 years on clothes 40 years old?
  • It is not practicable to obtain the evidence without a warrant being granted; it is hard to see what evidence the police were expecting to find at the search.
  • That the purpose of the search will be seriously prejudiced if the police officer cannot have immediate access to the property upon arriving at the premises; this ground cannot possibly apply, in my view. It was extremely unlikely that there would be any evidence revealed by the search.

On those facts if I were a judge (and I am not a judge) I would not have granted a search warrant. I would have told the police that their evidence was very thin and insufficient to grant a search warrant, and that they had to get more evidence before a search warrant would be authorised.

However, a judge or a magistrate did grant a search warrant. Sadly, it shows that judges have become too close to prosecutors and frequently do not think carefully enough about issuing things such as search warrants, even though the issue of a search warrant can turn the life of a person against whom no search warrant should be issued completely upside and cause great stress, worry and the inevitable problems that ill health caused by stress and worry brings.

We must draw the conclusion that in these matters some of our judiciary are mere cats-paws for the prosecutors and no longer can be trusted to safeguard our rights.

There is also a point to make that court staff who arrange the search warrant hearings can steer a particular judge known to be sympathetic to a particular prosecution to a particular application.  There is no robust system of allocating judges to hear search warrants on a random basis, and there should be such a system.