In June 2019, the Advertising Standards Authority (ASA) and the Committee of Advertising Practice (CAP) announced it was banning adverts featuring “harmful gender stereotypes” or those which are likely to cause “serious or widespread offence”.

The new rule was introduced because the advertising watchdog believed certain gender portrayals could play a part in “limiting people’s potential”.

One of the most controversial advertisements in recent time is Aptamil formula milk ‘Babies of the Future. It portrays baby girls growing up to be a ballerina and two baby boys who have futures as an engineer and mountain climber.

The advert sparked multiple complaints to the ASA. However, following an investigation, it was concluded that no further action could be taken as the advertisement did not break any current rules.

The Aptamil advert went on to form part of the ASA’s review prior to drafting the new rules. Focus groups were asked to give their opinion on the advertisement.

The ASA found some parents:

“felt strongly about the gender-based aspirations shown in this advert specifically noting the stereotypical future professions of the boys and girls shown.
“These parents queried why these stereotypes were needed, feeling that they lacked diversity of gender roles and did not represent real life.”

The ASA said the review had found evidence suggesting that harmful stereotypes could “restrict the choices, aspirations and opportunities of children, young people and adults and these stereotypes can be reinforced by some advertising, which plays a part in unequal gender outcomes”.

What are the new rules on gender stereotype advertising?

CAPs Regulatory Statement on Gender Advertising, which should be read in conjunction with the Advertising Guidance on Depicting Gender Stereotypes adds a new rule to the advertising code, which states:

“[Advertisements] must not include gender stereotypes that are likely to cause harm, or serious or widespread offence.”

The rule does not seek to ban gender stereotypes completely, but to “identify specific harms that should be prevented”.

The following scenarios featured in an advert could trigger an investigation:
• A man relaxing, children making a mess around the house, and a woman left with sole responsibility for cleaning up.
• People failing to manage certain tasks simply because of their gender; i.e. a man being unable to cook a meal or a woman having difficulty with DIY.
• A person with a physique that does not match an ideal stereotypically associated with their gender shown as not being successful in their professional, social, or romantic life because of their physique.
• Any ads which show new mothers as prioritising looking perfect or having a spotless home over their own emotional wellbeing.
• A man being ridiculed for taking on traditionally ‘feminine’ roles.

Furthermore, any advertisement that seeks to emphasise the contrast between a boy’s stereotypical personality (e.g. daring) with a girl’s stereotypical personality (e.g. caring) needs to be handled with care.

The new rules do not prevent advertisers showing women cleaning or men doing DIY. Also, it will not prevent the use of showing glamourous, attractive people leading healthy lifestyles or stop advertisements only using one type of gender for products specifically aimed at them. However, advertisers will need to think very carefully about the message an advertisement is sending. This is particularly pertinent with adverts aimed at or including children and adolescence.

In a press release, Guy Parker, Chief Executive of the Advertising Standards Authority, said:

“Our evidence shows how harmful gender stereotypes in ads can contribute to inequality in society, with costs for all of us. Put simply, we found that some portrayals in ads can, over time, play a part in limiting people’s potential. It’s in the interests of women and men, our economy and society that advertisers steer clear of these outdated portrayals, and we’re pleased with how the industry has already begun to respond”.

In summary

CAP will carry out a review of the new rule in 12 months’ time. Advertisers and marketers in the meantime will need to review any proposed creative projects to ensure they comply with the regulations to avoid reputational damage and sanctions resulting from a breach.

Tanveer Qureshi is a Legal 500 barrister, specialising in ASA compliance, business to business fraud, health and safety, food standards, civil litigation, and corporate crime. If you require legal representation, please contact directly on 020 3870 3187.

Unexplained Wealth Orders (UWO) are the UK’s new weapon in fighting money-laundering and organised crime.  Introduced by the Criminal Finances Act 2017, they are aimed at fighting Britain’s reputation as a welcoming port for dirty money.

And what a haven it is.  Between 2008 and 2018, £68bn has flowed from Russia into Britain’s offshore satellites such as the British Virgin Islands, Cayman, Gibraltar, Isle of Man, Jersey, and Guernsey.  And the 2015 Dark Money report, prepared by Deutsche Bank showed that since the early 1990s, £133bn had arrived in the UK without ever being publicly accounted for.   Deutsche Bank was subsequently fined $425m (£317m) in the US and £163m in the UK after traders in Moscow were caught secretly dispersing $10bn (£7.5bn) of client money out of Russia through illegal exploitation of the stock market.

UWOs are designed to assist police and government agencies such as the National Crime Agency, HMRC, and Serious Fraud Office investigate the financial activities of people whose assets far exceed what could be bought by their ‘legitimate’ income.

But do they work?  When we examine the effectiveness of similar orders in other countries, it appears not.

What is an Unexplained Wealth Order?

Dubbed “McMafia Orders” after the hit BBC series, UWOs are a civil order and one of its key features is that the burden of proof is on the Respondent rather than the issuer.

If a person is issued with a UWO, they must provide a statement:

• Detailing the nature and extent of their interest in the property in respect of which the order is made.
• Explaining how they obtained the property.
• If the property is held in Trust, setting out such details of that Trust.
• Providing any further explanations related to the property as requested.

A UWO can only be granted if the recipient is a Politically Exposed Person, or someone involved in or connected to a person involved in serious crime.  There does not need to be any evidence of criminal behaviour.

UWOs have been utilised twice in the UK.  The first time was in 2018 against Zamira Hajiyeva, the wife of an Azerbaijani banker who is currently serving time in prison.  Despite having no identifiable source of income, Mrs Hajiyeva spent £16.3 million at Harrods between 2006 and 2016.  She also held extensive properties in exclusive London postcodes.

She is currently appealing the Orders.

In May 2019, a UWO was issued against a Politically Exposed Person who has an £80 million property portfolio in the capital.

Assets subject to a UWO can be frozen whilst an investigation takes place.  If the Respondent cannot provide a credible explanation as to how the assets were legally acquired, they can be confiscated.

UWOs are draconian, but are they effective in tackling the enormous problem of money laundering?  One way to understand their value is to look at their use in Columbia and Italy, two countries racked by organised crime over the past 100 years.

Colombia

Prior to the death of Pablo Escobar, Colombia was a hell-hole of drugs, cartels, kidnapping and violence.  It is now one of the strongest economies in South America and tourists flock to enjoy its beautiful beaches and laidback culture.

However, be under no illusion, the cocaine trade is still flourishing in Colombia.  In 2002, the government adopted the Civil Asset Forfeiture Law, widely referred to as Law 793.  It made illicit enrichment an illegal activity and provided prosecutors with the power to confiscate assets if the owner could not point to their legitimate origin.  Like UWO, the burden of proof is on the Respondent to prove the legitimacy of targeted assets and the Court can order confiscation regardless of any criminal prosecution.

Despite Law 793 and Law 785, which introduced several policies to strengthen the management of seized assets, and being the most sophisticated seizure laws in South America, they have not proved very effective.  The Fiscalia (the General Prosecutor) has a large backlog of cases, and there is not enough police and prosecutors to carry out money laundering investigations[1].  Also, attempts to seize property are often frustrated because land deeds are inaccurate and local officers are corrupt and refuse to co-operate with over-stretched prosecutors.  It can also take many years for the Courts to make a final decision on assets subject to Law 793.

Italy

Few countries have had more experience in combatting organised crime than Italy.  It was one of the first nations to introduce legislation to go after the financial gains of dirty money.  The measures, known as Misure di prevenzione personale, were brought in during the 1950s to combat organised crime in Southern Italy, have been heavily criticised for potential human rights violations.

A 1982 amendment to Misure di prevenzione personale authorised the seizure and confiscation of property and assets of the suspects belonging to mafia organisations.  According to Article 2-bis of the 1965 amendment to Misure di prevenzione personale , the source of income of those suspected of belonging to a mafia organisation is assessed in terms of their lifestyles, financial means, property, and economic activities.

The effectiveness of Misure di prevenzione personale and its subsequent amendments are said to be minimal.  Only around one third of seized assets are permanently confiscated.  Like Colombia, one of the problems is protracted judicial proceedings.

Staying one step ahead of organised crime is a never-ending challenge for law enforcement agencies.  But the biggest concern with UWO is not only that they have not been proven effective, but that they potentially put innocent people in the position of having to explain how they acquired their property.  With no requirement for a criminal prosecution, the recipient of a UWO is faced with the intimidating presence of police or government agencies demanding information.  Assets are also frozen, which may not only affect the Respondent but also innocent third parties.

It could be argued that UWOs breach a recipient’s right to private life under Article 8 of the European Convention on Human Rights and Article 6, which protects the right to a fair trial.  As more are issued, it is likely the courts will need to decide if they are worth the stress and financial damage they cause.

Tanveer Qureshi is a Legal 500 barrister, specialising in ASA compliance, business to business fraud, health and safety, food standards, civil litigation, and corporate crime.  If you require legal representation, please contact directly on 020 3870 3187.

[1] Francisco E. Thoumi & Amrcela Anzola: Extra-legal Economy, Dirty Money, Illegal capital inflows and outflows and money laundering in Colombia

Part 1

In the weeks following 9/11, smart sanctions went, as President George W. Bush aide Juan Zarate put it, “on steroids”.  Following the deadliest terrorist attack to date on American soil, President George W. Bush threatened to ban any foreign bank that refused to freeze terrorist assets from trading in the country.  The United Nations Security Council, still licking its wounds after being predominantly blamed for the human catastrophe in Iraq, caused by economic sanctions, imposed enormous counter-terrorism obligations on its member States, including insisting on travel bans and asset freezes being placed on certain known terrorists and their supporters.

Almost 20 years after 9/11, the use of smart (sometimes known as targeted) sanctions has grown exponentially.  But are they effective?  And how does their use stack up against the human rights of the individual targeted?

In this three-part blog series on smart sanctions, we examine their effectiveness, the impact on the target’s human rights, and the complexities involved in having a targeted sanction lifted.

A brief history of smart sanctions and how they work

The United Nations introduced sanctions against individuals and entities unrelated to any State or government with Resolutions 1267,1333, and 1390 between 1999 and 2002.  Their purpose was aimed not only at the financing of terrorism but targeting its root causes.

In 2004, the UN raised concerns about the potential hardships resulting from targeted sanctions.  It was pointed out that the sanctions were hard to challenge, and people could languish for years on the UN ‘blacklist’.  Even death provided no guarantee of having a person’s name removed from the blacklist, as pointed out by the Chairman of the 1267 Committee (a body tasked with monitoring Afghanistan sanctions) in 2010.

“It’s not easy to get dead people off the list,” he pointed out. “We have to have convincing proof that they are really dead and also we have to have information on what happened to their assets, and this in many cases takes some time, but this is work that will have to continue.”

In 2011 -12, the international community, led by the United States, issued brutal sanctions on Iran including an oil embargo and sanctions on Iran’s Central Bank — over its nuclear programme.  In 2016, the UN lifted nuclear-related secondary sanctions against Iran; however, the primary US sanctions remained in place. These prohibit most commercial activity between the United States and Iran, including export to Iran of most goods or services from the United States.

Following the lifting of the secondary sanctions, the Iranian economy experienced significant growth with GDP rising by 12.3%.  However, most of this growth was fuelled by the oil and gas industries.

In 2018, President Trump reinstated US sanctions on Iran.  The measures exclude any company that trades with Iran from doing business in the United States.  In addition, under far-reaching secondary sanctions, any US company faces punishment if it does business with a company that does business with Iran.

Following the reintroduction of the Iranian sanctions, foreign investment has plummeted, and oil exports have more than halved.

Are smart sanctions effective?

The logic behind the use of smart sanctions is that they target those responsible for breaking international law without causing undue hardship to the general population, as was evidenced by the pitiless sanctions imposed on Iraq.

Daniel W. Drezner states that two ways of evaluating smart sanctions are to ask:

1. Do smart sanctions limit the human cost created by comprehensive country sanctions, and
2. Do they encourage compliance?

It has been noted that smart sanctions still impose harsh consequences on innocent people.  For example, Michael Brzoska, Senior Fellow at IFSH and author of numerous books on the arms industry states that arms embargoes increase the cost of obtaining weapons, leading “to a major shift in government spending priorities and a consequent reduction in the economic well-being of the general population in the targeted State”.

However, research shows that comprehensive sanctions tend to last longer and increase repression in authoritarian regimes.  But on the flipside, if the targeted State is a democracy, comprehensive sanctions achieve swifter concessions.  The same applies if the issuer of the sanction’s goal is regime change.  In addition, studies show comprehensive sanctions are more effective in ending civil wars.

Smart sanctions appear to be less effective in getting targeted regimes to make concessions (Libya is a noted exception, although back-room negotiations and the unsaid threat of invasion probably aided Khaddafi’s acquiescence).

Acknowledging that further research is needed, Drezner states that smart sanctions are no better than comprehensive sanctions when in comes to gaining concessions from a particular State or regime.

In the next article, I will examine how targeted sanctions not only affect the person, company or organisation, but also others who deal with them, such as suppliers and contractors.

Tanveer Qureshi is a Legal 500 barrister, specialising in sanctions, ASA compliance, business to business fraud, health and safety, food standards, civil litigation, and corporate crime.  If you require legal representation, please contact directly on 020 3870 3187.

The NHS Counter Fraud Authority (NHSCFA) is launching an investigation into GPs in England who they suspect are claiming for “ghost patients”. The investigation has come about because there are 3.6 million more patients on the system than there were people in England.

GPs receive £150 a year for each patient on their list.

A full analysis of records held by NHS England and the NHS Business Services Authority, which administer the payments systems to GP practices, will be conducted to see if doctors have been fraudulently claiming for patients.

The NHSCFA has the power to investigate suspicions of fraud, not only of health professionals working within the NHS, but management and administrative staff, and dentists and opticians who have NHS contracts.

It is estimated that fraud costs the NHS £1.3 billion per year, a shocking sum, given that every penny is needed to provide care and support to patients. However, all investigative authorities are fallible, and the NHSCFA is not immune to making mistakes.

Is there an abundance of ghost patients on GP lists?

A 2014 research paper published in the British Medical Journal showed that the disparity between population figures and the number of patients on GP’s lists was not due to fraud.

Dr Patrick Burch, Research Fellow at The University of Manchester and practicing GP authored the paper published in the Journal of Epidemiology and Community Health.

He told Michael Addelman at the University of Manchester:

“It is certainly true that there are more people registered with a general practice in England than are estimated to be resident in the country. But our detailed and substantive research shows a plethora of reasons for this – and GP fraud is not one of them.
“We conducted a cross-sectional study and calculated levels of patient registration with English primary care, in relation to census-derived population estimates. We did indeed find an over-registration rate in England at 3.9% or 2,097,101 people – but there was wide regional variability.
“And our findings show quite clearly that high mobility of patients and health need are likely to be the underlying causes of over registrations, not fraud. Higher levels of over-registration were associated with greater proportions of non-White British residents, women, elderly people and higher levels of social deprivation.
“Non-White British populations are more mobile and more likely to move to and from the UK. When a person has left the UK, the practice has no way of knowing this has occurred so the patient will remain registered. Under-funded and overworked GPs are in no position to regularly check the status of each of their registered patients. Female patients, elderly patients and those patients from areas of social deprivation are higher users of health care services. Their association with over registration may reflect lower levels of registration amongst men, younger and more affluent patients.
“If registration levels are incorrect, we argue it would be very dangerous to reduce practice funding. Removing ineligible patients from practice lists is a complex process and it will not lead to reductions in practice workloads.”

However, NHSCFA insists that around £88 million may be wrongly claimed for and are continuing their investigation.

The damage caused by a wrongful allegation of GP fraud

In 2013, Dr Lucia Gibson returned to practise as a GP after winning a six-year-long battle against the General Medical Council and the NHSCFA (then known as the NHS Counter Fraud Service).

It was alleged she had faked medical records and her list contained ghost patients. She was suspended by the PCT from practising as a GP in Surrey, struck off the PCT’s performers list and suspended by the GMC. In addition, she was arrested and held at Staines police station in 2007 as part of the investigation.
In 2009, Dr Gibson was cleared of fraud at the Kingston High Court. The judge said he agreed with the jury’s verdicts and warned the NHS Counter Fraud Service to think “long and hard” before bringing a similar case to court. The GCM also apologised for the length of the suspension and admitted Dr Gibson was treated with “manifest injustice”.

Tragically, as a result of the allegations, along with accruing £180,000 in legal fees, Dr Gibson lost her GP practice.

Dr Gibson’s case is not an isolated incident. Many GPs, midwives, dentists, pharmacists, and opticians have suffered financial and reputational ruin due to mishandled or unnecessary investigations and hearings.

Government to take tougher measures against NHS fraud

The situation has the potential to get worse. In October 2018, the Government announced that it would commit to tougher action on NHS fraud over the next five years.

New measures to be introduced include:
• a new partnership between the NHS Counter Fraud Authority (NHSCFA) and the fraud prevention service Cifas, allowing NHS counter-fraud professionals to access Cifas data
• more collaboration and data sharing between the NHS Business Services Authority and NHSCFA to identify the small number of pharmacists and dentists claiming payments for services they have not carried out
• the introduction of a new counter-fraud profession in central government, bringing together around 10,000 counter-fraud specialists, including 400 focused on fraud in the NHS

With more focus on NHS fraud, the risk of innocent people being caught up in investigations increases. If you find yourself being subject to NHS fraud allegations, it is imperative you seek legal advice immediately. Having legal representation at investigative interviews and during searches mitigates the risk of allegations of fraud reaching trial. For the sake of your reputation, finances, and health, it is crucial that you invest in the support to have an NHS fraud investigation shut down as quickly as possible.

Tanveer Qureshi is a Legal 500 barrister, specialising in fraud, ASA compliance, business to business fraud, sanctions, health and safety, food standards, civil litigation, and corporate crime. If you require legal representation, please contact directly on 020 3870 3187.

A new Court ruling has determined that a fireplace installer could be prosecuted under the General Product Safety Regulations 2005 (GPSR). This has serious implications for tradespeople, who can now be prosecuted under the GPSR, even if the product itself was perfectly sound.

Under the GPSR, all ‘producers’ of a product must ensure the product is safe for the purposes of their normal or reasonably foreseeable usage. If this requirement is not met, enforcement authorities can take appropriate action, which includes bringing a criminal prosecution.

Under section 2 of the GPSR, ‘producer’ includes:
• The manufacturer of a product who is established in the EU;
• A person established in the EU, holding himself out as the manufacturer, for example by selling private label products under his own brand (“own-branders”);
• A person established in the EU who reconditions the product;
• A person established in the EU who represents a manufacturer from outside the EU;
• Where there is no EU representative of the manufacturer, the importer into the EU;
• Other professionals in the supply chain who affect the safety of the product.

“Other professionals in the supply chain” is not legally defined. And it was on this point, i.e. was the installer an “other professional” for the purposes of the GPSR, that the case made the ground-breaking ruling.

The facts

The Defendant supplied and fitted fireplaces. His work included the removal of old stoves, plates and chimney liners and replacing them with new equipment including flue liners and canopies. In October 2016 he quoted the Complainant for the removal of the current stove, plate and chimney liner and its replacement with a fire basket and fire back.

On 8th November 2016 the old stove, register plate and old chimney liner were removed by the Defendant and a colleague. The chimney was then swept and a few days later the new basket and back were installed. The Claimant lit a fire and smoke billowed out above the beams. Furthermore, fumes from the open fire rose through the boards and into the upstairs room.

The Claimant contacted the Defendant who stated the chimney required a new liner. This work, along with the installation of a canopy was completed by 8 March 2017.

The Claimant lit a fire twice in March 2017 and both times the room filled with smoke. An engineer who inspected the installation found that the fittings had been installed incorrectly. The hood and flue liner were too small and did not comply with Part J of the Building Regulations.

The local authority brought a summons alleging an offence under the GPSR. It argued that whilst the fireplace was being renovated, the Defendant installed a flue liner and a canopy in such a way to render them unsafe products.

The Defence stated that the safety properties of the product were not affected by the Defendant’s activities. Such an act must involve a physical alteration of the properties of the product, so that in normal and foreseeable conditions of use the item created a risk which was not consistent with a high level of protection for the safety and health of persons. The defence counsel also submitted that an installer only assumes responsibility for the safety of the product if they alter or interfere in any way with the item prior to sale to the consumer. It is accepted that a product can be rendered unsafe by the manner of its installation but only in so far as it is altered or changed in any material fashion.

The Court’s decision

The Court ruled that a “professional person” as set down in section 2 would include an installer because the act of installing a product can affect its viability and safety. Crucially, this is the case even if the product itself is free from defects.

Although the Defendant ultimately won his case on the facts, therefore escaping prosecution, anyone who installs a product must be aware that this decision means they can be prosecuted under the GPSR. This should be taken seriously, as failure to comply with the GPSR can lead to fines and/or imprisonment.

Tanveer Qureshi is a Legal 500 barrister and acted for the Defendant in this case If you require advice or representation on the General Product Safety Regulations 2005 or health and safety matters, please contact directly on 020 3870 3187.