Weekly Notes: legal news from ICLR — 15 May 2017

This week’s roundup of legal news and commentary includes election crimes, legal services, and law in the gig economy. Plus: licensing legalised cannabis in Canada (the giggle economy), and the not so funny use of Pokemon Go.

Election [f]law

Tory election expenses: it’s all right, the CPS won’t charge

CPS declines to prosecute over Tory election funding

On 10 May the Crown Prosecution Service announced that it would not be pursuing criminal charges in respect of allegations, based on evidence provided by 14 police forces, relating to Conservative Party candidates’ expenditure during the 2015 General Election campaign. The allegations, based on persistent and dogged investigations by Channel 4 News, related to the activities of party workers, travelling around marginal constituencies in the party’s “Battle Bus”, whose expenses were said not to have been properly reported under the relevant legislation.

The Conservative Party has already been fined by the statutory election regulator, the Electoral Commission, in March in relation to its party campaign spending returns in three 2014 by-elections, the 2014 European parliament elections and the 2015 General Election. The fine was a record £70,000, partly because of the party’s “lack of cooperation” with the investigation. You can read the Electoral Commission Report here.

Some commentators have expressed surprise as the CPS decision not to prosecute, in view of the commission’s clear findings of wrongdoing, implying there must have been some sort of cover-up; while others (mainly Conservative supporters or members) have suggested that the CPS decision is effectively a verdict of innocence. Conservative party chairman Patrick McLoughlin claimed the pursuit of the complaints had been “politically motivated and a waste of police time”. Theresa May, the sitting Prime Minister, was quoted (eg in the Guardian) as saying it “confirmed what we believed all along and said all along which was the local spending was properly reported and the candidates have done nothing wrong”. Neither view is correct.

It’s important to clarify that, in crude terms, there are two separate regimes and two separate statutes involved. The Electoral Commission is a regulator, operating under the Political Parties, Elections and Referendums Act 2000 (PPERA), concerned with national party spending. It sets limits on spending and scrutinises returns to see that they have been complied with. It can fine, as it did in this case, but it does not prosecute. However, it can pass information from an investigation (which may have originated with the police) to the CPS, who can then decide whether individual candidates and agents can be prosecuted for criminal offences under the Representation of the People Act 1983 (RPA).

It is, of course, much easier to prosecute an individual than a national party. Under the PPERA there are offences for which a party’s treasurer can be prosecuted as an individual, such as knowingly or recklessly making a false declaration under section 83(3), but the commission cannot itself pursue the prosecution. However, it can impose fines for an offence committed under the PPERA, eg, by a party’s treasurer, which is what happened here. The RPA, broadly speaking, targets electoral (mis)conduct at constituency level (as well as other matters, such as voter fraud, etc).

The CPS announcement contained two elements. First, in relation to the offence under section 82(6) of the RPA of “knowingly making a false declaration”, it said:

“Under the Representation of the People Act, every candidate and agent must sign a declaration on the expenses return that to the best of their knowledge and belief it is a complete and correct return as required by law. It is an offence to knowingly make a false declaration. In order to bring a charge, it must be proved that a suspect knew the return was inaccurate and acted dishonestly in signing the declaration. Although there is evidence to suggest the returns may have been inaccurate, there is insufficient evidence to prove to the criminal standard that any candidate or agent was dishonest.

The offence is described as a “corrupt practice” and requires proof of dishonesty, of which the CPS did not think there was enough evidence to proceed. Secondly, in relation to the offence under section 84 RPA of the “illegal practice” of failing to deliver a true return as to election expenses as required by section 81, it said:

“The Act also makes it a technical offence for an election agent to fail to deliver a true return. By omitting any ‘Battle Bus’ costs, the returns may have been inaccurate. However, it is clear agents were told by Conservative Party headquarters that the costs were part of the national campaign and it would not be possible to prove any agent acted knowingly or dishonestly. Therefore we have concluded it is not in the public interest to charge anyone referred to us with this offence.

This part of the decision may have been “charitable” as the Secret Barrister suggests in an excellent explainer, Myth-busting the “Tory election fraud” — A 10-point guide, or it may simply have been realistic. To run a case only on the lesser offence which looks more like a technicality, than on the greater one that looks like wilful deviance, is a hard call at the best of times, and to do so in the midst of or just after another general election might lead to unpredictable consequences. Moreover, CPS decisions are based on all the evidence available to the CPS, whereas popular outrage and criticism of their decisions is often based on publicly reported information, some of it necessarily partial or incomplete.

What the decision reveals, however, is the “extremely complex” and unsatisfactory state of election law in this country, as noted in Joshua Rozenberg’s explainer for Full Fact: Democratic deficit? The rules on election spending

The CPS announcement itself may be convenient and a relief to the Conservative party, but its timing was not ideal. One of the reasons Theresa May was said to have called the snap election — in what could have been a master-stroke of strategy or simply a panic putting-off of the vexed Brexit negotiations— was to avoid the risk of damage to her party’s slender majority in the House of Commons if any of these threatened election expense prosecutions resulted in the loss of a seat. Perhaps she needn’t have worried, and the whole damn shouting-match will have been a waste of time.

However, there is still one investigation on which the CPS have not yet reached a decision: the expenses relating to the South Thanet constituency in which the Conservatives defeated UKIP candidate and one-time party leader, Nigel Farage. If, as is sometimes contended, the Conservatives are now “New UKIP” (NUKIP) or “True BluKIP” a conviction there might set them at each others’ throats again.

See also, by the Secret Barrister in the iPaper, Tory Election Fraud: The reason why Theresa May is wrong to say the party is not at fault

For the avoidance of doubt (with apologies to those who dislike that phrase), the image above is a stock image from Shutterstock and does not to our knowledge represent any particular candidate or agent in the 2015 election.

Gig economy

Uber opinion

People have varied opinions about Uber, the ride-sharing app (if such it is) which turned into a massive commercial behemoth. London’s Black Cabs protest about it, and regular minicab services (such as Addison Lee) aren’t too happy about it either; but why should they be? Now the European Court of Justice has published an opinion about Uber, written by its Advocate General Maciej Szpunar, which is more concerned with what sort of thing it is, than with whether it is a good or bad thing.

According to the opinion in Asociación Profesional Elite Taxi v Uber Systems Spain SL (Case C‑434/15) EU:C:2017:364 (emphasis added)

a service that connects, by means of mobile telephone software, potential passengers with drivers offering individual urban transport on demand, where the provider of the service exerts control over the key conditions governing the supply of transport made within that context, in particular the price, does not constitute an information society service …

within the meaning of Article 2(a) of the Electronic Commerce Directive (2000/31/EC) read with other relevant provisions. However, such a service “constitutes a transport service” for the purpose of the Article 58(1) TFEU and Article 2(2)(d) of the Services in the Internal Market Directive (2006/123/EC).

The issues have yet to be determined by the Court of Justice (ECJ) itself, to whom Commercial Court No 3 of Barcelona, Spain referred two questions on whether Uber is a transport service provider, information society service provider, or a combination of both. The issues arose in a claim brought by a Spanish taxi drivers association (APET) contending, inter alia, that Uber is not properly regulated as a transport service in Spain.

Deliveroo ‘no tribunal’ clause to go

The Law Society has welcomed reports that the delivery company Deliveroo will be removing a controversial clause in its contracts with riders prohibiting them from challenging their self-employed status at the employment tribunal, and requiring the rider to pay Deliveroo’s costs if they do make a claim.

The Law Society Gazette also reports that later this month the Central Arbitration Committee ( the tribunal that oversees the regulation of UK collective bargaining law) will determine the employment status of Deliveroo riders. It follows an application by the Independent Workers Union of Great Britain.

Clearly, the employment status of those engaged in the gig economy, and the regulatory status of the organisations with whom they engage, continue to cause issues both here and in other jurisdictions.

Legal services

Review of the Role of the Inns of Court

The Bar Standards Board has begun a review of the role of the Inns of Court in the qualification of new barristers. The BSB’s new Authorisation Framework, which will assess Bar training against the principles of accessibility, affordability, flexibility and sustaining high standards, will apply to the role of the Inns and will need to describe (amongst other things) the role that the Inns will have in any requirements for qualification as a barrister.

The BSB are also launching a Pupillage Pilot later this year, in relation to pupillage supervision alongside the 2017–18 intake of pupils. You can read more here.

Pros and Cons of Pro Bono

Largely concentrating on the Cons, the blogger CrimBarrister in a post entitled I’m Not Free responds to a campaign by the Bar Council (the representative organisation for barristers in England Wales) “calling upon barristers to engage in pro bono work”. Supported by other barristers responding on twitter, the blogger points out that many if not most barristers already do large amounts of unpaid work (legal aid work is often unpaid) and does not think it is the representative body’s job to lay on a guilt trip about doing even more. Instead, it should be trying to improve the payment for the work already done. It’s a good rant but there’s a serious point behind it.

Indeed, why SHOULD we be expected to offer our services for nothing at all? When I had my car serviced a couple of days ago, I didn’t dream of asking the garage if they wouldn’t mind awfully doing it for nothing as it was a bit pricey and I had some other bills to pay.
At the criminal Bar we have had nothing but cuts to our fees in the last decade. The payments made to us for cases are now at around 30% less than people were getting paid for the same work 20 years ago — possibly even less than that.

Pros and Cons of Late Court Sittings

Again, I fear rather more Con than Pro, a blog by Mark George QC entitled Why Lawyers Should Reject HMCTS Early Start/Late Finish Court Scheme explains why late sitting courts are a Bad Idea. He attended a meeting of South Yorkshire criminal lawyers with civil servants from HMCTS — Her Majesty’s Courts and Tribunals Service in full — and we less than impressed.

We were told at the start of the meeting that the civil servants wanted to hear our views on the practicalities of this proposed scheme and that the scheme was definitely “not a done deal”. I know many of you cynics will immediately equate that phrase with the phrase “oh yes it is” especially when uttered by an MoJ employee.
Although we had been invited to consider “the opportunities” as well as “the challenges” of early and late court sittings, during the presentation the officials from HMCTS did not put forward a single suggested benefit to anyone from such a scheme. The reasons for that are also obvious. There aren’t any. Having asked for our views, over the course of the next 55 minutes or so the civil servants were bombarded with all the many good reasons this scheme not only won’t work but should never have been thought up in the first place.

He goes on to list some of the most obvious objections, such as availability of child care, preparation time before early hearings, lack of compensation for working unsocial hours etc. The scheme, he concludes, has largely been necessitated by the closure of so many courts and a desire to shoehorn all the work into a smaller number of venues. (No doubt these will be encouragingly described as “centres of excellence” to make everyone feel better.)

We reported on the pilot scheme for late-sitting courts in our edition of 3 April 2017 and on a protest outside Highbury Mags on the following week’s edition.

Law (and injustice) from around the world

America

Trump [insert latest outrage here]

It’s been hard to keep up with the Trumpathon that is the White House these days, but the last week has been particularly hectic.

It began with a decision to fire the director of the FBI, currently investigating Russian interference in the election that resulted in Trump’s becoming president. LawFare described it as The Nightmare Scenario: Trump Fires Comey, the One Man Who Would Stand Up to Him

The Executive Director of the American Civil Liberties Union (ACLU), Anthony D. Romero said:

“The independence of the FBI director is meant to ensure that the president does not operate above the law. For President Trump to fire the man responsible for investigating his own campaign’s ties to the Russians imperils that fundamental principle.
“Regardless of how one judges the performance of James Comey in either the Hillary Clinton or Russia investigations, President Trump’s dismissal of a sitting FBI director raises serious alarm bells for our system of checks and balances.

The week ended with a new story, that President Trump had shared classified information with Russian diplomats at a meeting in the White House, as noted in a report from Talking Points Memo. See also, The Guardian, Donald Trump ‘shared highly classified information with Russian officials’

Canada

Cannabis legalisation

Canada may be first country in the G7 to legalise cannabis for recreational use, according to Volteface Canada Dispatch. Legislation in the form of a bill, titled An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (C-45), has been drafted and has currently had its first reading in the House of Commons.

Under the new regime each province will have to legislate for and regulate the sale and use of cannabis within its borders. The bill is not particularly controversial. Prime Minister Justin Trudeau, as leader of the Liberal Party of Canada, undertook to decriminalizing cannabis for personal use while campaigning during the Canadian federal election, 2015, which he won.

The legislation would make it easier for genuine users aged over 18 to purchase and enjoy cannabis for recreational use, but penalties for criminal activities involving the drug, such as dealing to minors, would be strengthened. Cannabis products would be federally taxed and licensed and there will be restrictions on where cannabis may be smoked, as there are for tobacco. Edible cannabis products will not be included in the current legalisation proposals (partly because of the difficulty of controlling dosage for such products, apparently). Medical use is already permitted (with a physician’s prescription) and the medical use will co-exist with the recreational system without being merged for now, though that is likely to be reviewed.

Incidentally, LEGISinfo, the Canadian legislation database is an excellent resource for researching bills etc before their enactment, and for reading the official enactment once it has been passed. There is also CanLii for legislation (enacted) and case law, which is the Canadian equivalent to BAILII. Both are bilingual, ie French and English, at least for legislation. (We can boast bilingual Welsh and English legislation via ICLR Online and on the official legislation site, Legislation.gov.uk — but sadly not bilingual caselaw, as far as I know.)

Russia

Pokemon Go — directly to jail

Human Rights Watch reports that a Russian court on May 11, 2017, convicted Ruslan Sokolovsky, a 22-year-old blogger on criminal charges of incitement of hatred and insult to the religious feelings of believers, after he had posted to YouTube a prank video in which he plays Pokemon Go in a church. He also blogged mocking or satirical articles about the Orthodox church, citing French satirical magazine Charlie Hebdo as his personal inspiration. It didn’t go down well with the authorities.

He was charged, inter alia, with incitement to hatred and insult to the religious feelings of believers, criminal offenses under articles 282 and 148 of Russia’s criminal code. Although he was eventually sentenced to a three-and-a-half-year jail sentence, he spent considerable time in pre-trial custody after his arrest.

The offense of “insult,” one of the crimes of which Sokolovsky was convicted, was added to Russia’s criminal code in 2013, a year after several members of the feminist protest punk group Pussy Riot were convicted of criminal “hooliganism” in retaliation for their anti-Putin performance in a Moscow cathedral.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

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