Last week, a Dyson television advertisement was banned by the Advertising Standards Authority (ASA) on the grounds it was misleading. A ‘modest’ budget for a TV advert is around £25k. Thanks to rigorous due diligence prior to an advertisement being made, most commercials are fully compliant with ASA rules.

However, the Dyson case shows that even the biggest companies who have the kind of marketing and advertising budgets most of us can only dream of, can fall foul of ASA compliance.

The problem with the Dyson TV advertisement for the Pure Hot + Cool Fan

The advertisement for Dyson’s Pure Hot + Cool Fan was shown from several angles – from above, the side and front-on – no cord or power outlet was visible, the ASA said. The regulator stated that this could mislead viewers into believing the appliance was cordless, when in fact it needed to be plugged in.

Clearcast, the agency responsible for checking advertisements against the UK Codes of Advertising (the BCAP and CAP Codes), stated that said Dyson had invested heavily in cordless products, such as its series of vacuum cleaners, “so one could be confident” that it would promote any new addition to the range. This demonstrates that the watchdog will consider past strategies and promotion of recent products when deciding whether an advertisement is potentially misleading.

Following complaints, the ASA stated:

“if the fan had a cord that plugged into the mains electricity, viewers would expect to be able to see it in those shots”.

The regulator acknowledged that the final segment of the advertisement showed a cord leading from the base of the fan, but it was very difficult to see. It concluded:

“For those reasons, we considered that it could be easily missed and seen as part of the background by viewers.
“We concluded that, overall, the ad was likely to give consumers the misleading impression that the fan was cordless, and therefore that it breached the code.”

What constitutes misleading or false advertising?

According to the ASA, around 70% of the complaints it receives annually are related to misleading advertisements.

The Consumer Protection from Unfair Trading Regulations (CPUT), which implement the Unfair Commercial Practices Directive (UCPD) and the Business Protection from Misleading Marketing Regulations 2008, are the main laws controlling business to consumer advertising. Certain products such as tobacco and baby milk have specific regulations. The prohibitions in CPUT are reflected in the CAP Code.

Schedule 1 of the CPUT contains a ‘blacklist’ if 31 commercial practices that are always considered unfair, including:
• falsely claiming that a code of conduct is endorsed by a public body
• bait advertising
• falsely stating that a product will only be available for a limited time
• not declaring that you have paid for editorial content (false advertorials)
• false ‘closing down’ sales

The CPUT sets out three types of misleading practices in a commercial transaction, which includes the lifecycle of the seller/consumer relationship and therefore covers advertising:

• False or misleading practice – you cannot provide false information or deliver a false impression that could mislead the average consumer. An average consumer is defined as one who is “is reasonably well informed, reasonably observant, and circumspect.” The false or deceptive information must be of a kind that causes or is likely to cause an average consumer to make a purchase when they would have otherwise refrained. The Dyson advertisement falls within this category.
• A confusing comparison with the product of a competitor – an example of this is copycat packaging, designed to give your product the look and feel of a competitor’s. Note that this type of breach can also result in a trademark infringement.
• Failing to comply with a code of conduct – if you undertake to comply with a code of conduct and fail to do so if this failure leads to an average consumer making a transactional decision they would otherwise have not have made, you may be in breach of the CPUT.

You can also breach the CPUT via a misleading omission. This can occur if you:
• Omit or hide relevant information from the consumer.
• Provides material information in a way which is unclear, unintelligible, ambiguous, or untimely.
• Fails to identify its commercial intent, unless this is already apparent from the context.

To be in breach, the omission must cause or be likely to cause an average consumer to make a transaction they would not have otherwise made.

How to protect your business from a claim of false or misleading advertising

The key to avoiding an expensive claim of non-compliance is to ensure that all your advertisements:
• Include all the information consumers need to make an informed decision to purchase a product. This includes any conditions on the offer. These should be stated closely or via a clear link, to the main claim.
• Have clear pricing that includes VAT and booking fees.
• Do not overclaim the abilities of the product.
• Do not hide important information in the small print.
• Ensure you have evidence to back up any claims you make in an advertisement. For example, if you are advertising a fitness apparatus, ensure any claims you make about results can be corroborated with independent, professionally run trials.

In summary

Advertising is a significant investment for any business. Therefore, having an advertisement banned for being misleading is costly, both financially and reputationally. It is imperative that due diligence is performed throughout the creative stages of the process to ensure regulations are adhered to. The old saying, “an ounce of prevention is worth a pound of cure” is one that applies wholeheartedly to advertising compliance.

If you require legal representation, please contact us on 020 3870 3187.

Deferred Prosecution Agreements (DFA) provide a powerful tool for defence lawyers to prevent a company from being prosecuted by the Serious Fraud Office (SFO).

In July 2019, outsourcing company, Serco, was fined nearly £23 million as part of a  Deferred Prosecution Agreement  with the Serious Fraud Office (SFO) over electronic tagging contracts.  Serco’s UK subsidiary, Serco Geografix, took responsibility for three offences of fraud and two of false accounting between 2010 and 2013, related to understating profits from its electronic monitoring contracts with the Ministry of Justice (MoJ).  It was fined £19.2 million and ordered to pay £3.7 million in costs.

The case has been running since 2013, when Serco self-reported irregularities.  At the time of writing the DFA had been approved in principle by Mr Justice William Davis but still requires formal sign-off.

How do DFAs work

A DFA is an agreement reached by an organisation (they cannot be applied to individuals) and prosecutor – the Director of Public Prosecutions (DPP) or Director of the Serious Fraud Office (SFO) – under the supervision of a judge.  They set out that if certain conditions are met, prosecution will be suspended indefinitely.

An organisation can be invited to enter into a DPA by the Prosecutor who will only do so if they are receiving full cooperation with the corporate concerned.  Likewise, the defence lawyers can approach the prosecutor to enter into DPA negotiations.  The agreements are entirely voluntary, so either side can reject the offer.  In addition, either party can withdraw from negotiations at any time without providing a reason; however, the prosecutor will normally provide a reason for doing so unless disclosing such information would prejudice the investigation.

Why would a company elect to enter into a DPA?

According to the Serious Fraud Office, DPAs:

• Allow a corporate body to make full reparation for criminal behaviour without the collateral damage of a conviction (for example sanctions or reputational damage that could put the company out of business and destroy the jobs and investments of innocent people).
• Are created under the supervision of a judge, who must be convinced that the DPA is ‘in the interests of justice’ and that the terms are ‘fair, reasonable and proportionate’
• Avoid lengthy and costly trials
• Are fully transparent and public

How does the prosecution decide if DPA negotiations should be offered?

The test for whether a DPA is appropriate is set out in the DPA Code of Practice and comprises of two stages:

Stage One

The evidential stage of the Full Code Test in the Code for Crown Prosecutors must be satisfied, and there must be a realistic possibility of a conviction based on the evidence procured.

Stage Two

The prosecutor must decide if it is in the public interest to enter into a DPA rather than prosecute the organisation. The Code for Crown Prosecutors states how public interest may be evaluated.  Factors to be evaluated include the scale of the offence, the impact of the offence on the community, and the defendants alleged culpability.

Will a DPA be offered if a company does not self-report?

Ben Morgan, Joint Head of Bribery and Corruption at the SFO initially stated in various talks (see, at a Bird and Bird seminar: DPAs and the UK Aerospace and Defence Industry (1 July 2014); the Global Anti-Corruption and Compliance in Mining Conference 2015 (20 May 2015)) that the regulator would only offer to negotiate a DPA with an organisation which self-reported on a matter the SFO was unaware of.

However, Mr Morgan has said more recently (Annual Bar and Young Bar Conference 2016, London (17 October 2016)) he was not aware of a case where a DPA would be automatically ruled out.  However, he said that the key factor in determining whether to offer a DPA or prosecute is “the stance the company takes once it becomes aware of the issue”.  It is likely that whether a company self-reported or not will be a deciding factor.

There is no hope of being offered a DPA if an organisation does not fully cooperate with the investigator.  For example, a DPA was offered to Rolls-Royce PLC and Rolls-Royce Energy Systems Inc even though they did not self-report.  What triggered a willingness to negotiate was the “extraordinary” cooperation given by the company.

What are the advantages and disadvantages of a DPA?

For corporate bodies that rely on public procurement as part of their business model, the avoidance of prosecution is a significant advantage of a DPA as convictions can result in debarment from public tenders.

DPAs also allow the organisation to control the PR around the wrongdoing.  In addition, DPAs provide for a quicker result than a prosecution (especially if it is defended).

The fine given to the company will be broadly similar to one which would be imposed by the Court in a successful prosecution.  However, the two most recent DPAs suggest that the discount obtained can be up to 50%.

The disadvantages of a DPA include the fact that if a DPA is not agreed or approved by the Court, the Prosecution can use certain documents related to the DPA in later Court proceedings.

Furthermore, a DPA can contain conditions that would not be imposed by the Court, for example, steps to improve compliance, which may be expensive and difficult to implement within the timeframe set.

Remember, just because a company avoids criminal prosecution in the UK under a DPA, it does not preclude other jurisdictions from investigating allegations of wrongdoing or civil claims from being brought.

Final words

The decision to propose or enter into a DPA must be taken with care and following expert advice from a corporate crime barrister or lawyer.  They will provide the advice and representation required to ensure you make the best decision for your organisation.

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.

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.

Getting caught speeding is perhaps the most common criminal offence. After all, it is so easy to creep over 70mph when passing on the motorway unintentionally or fully slow to 30mph in a village after entering from a 60mph open road.

In most circumstances, if you are caught speeding by a speed camera or a police officer, you will receive a Fixed Penalty Notice, a fine, and perhaps penalty points on your driver’s licence. It is inconvenient, but nothing more.

However, if you already have numerous penalty points, the new points may result in you being banned from driving for a period, as David Beckham discovered last week after receiving a six-month driving ban after pleading guilty for using his mobile phone while driving.

There is little doubt, the threat of prosecution significantly raises the consequences of a speeding offence.

For some, losing their licence means not being able to earn a living. And if you are successfully prosecuted, you may then have a criminal record (if the speeding was part of a more serious offence such as dangerous driving), which can impact on almost every area of your life, including limiting your employment opportunities and which countries you can enter.

Contesting a speeding fine is not easy as there are almost no defences available for driving too fast.

However, with the aid of experienced legal advice and representation, there are ways to lessen the impact of a speeding prosecution and/or successfully argue that you must retain your right to operate a vehicle so you can work.

Defences available for speeding

If you’re caught speeding by either a traffic officer or a camera, you will be:
• Given a verbal warning (if caught by a policeman)
• Offered the chance to attend a speed awareness course, which you’ll have to pay for
• Issued with a Fixed Penalty Notice (a speeding ticket), with a fine of £100 and penalty points
• Prosecuted for speeding. You will have to go to court and could face a fine of up to £1,000 (£2,500 if you were caught speeding on a motorway), between three and six penalty points on your driving licence, and a possible driving ban.

If you are prosecuted, or the totting up of your points means you will likely be disqualified from driving, you may be tempted to defend yourself in Court. This is almost always a mistake. Court’s have heard every excuse for speeding there is; from it being an emergency to not knowing the speed limit of a particular area. Trust me; these will not work.

The best chance of defending a speeding offence is on a technicality. The three main examples are:
• The Fixed Penalty Notice was missing certain details or issued incorrectly.
• You were not driving the vehicle at the time of the offence.
• The speed limit signs where you were caught were obstructed, damaged or incorrect.

Let’s examine these in more detail.

Incorrect Fixed Penalty Notice

There is a lot of information on the internet suggesting that if there are mistakes on the Fixed Penalty Notice, it is not valid. This is incorrect. The fact your name was spelt wrong or date of the alleged offence is recorded incorrectly will not invalidate the Notice. What an experienced barrister or solicitor will normally do is use the evidence of mistakes to build an argument that the officer was sloppy at performing his or her duties, thereby throwing reasonable doubt on whether an offence of speeding was actually committed.
You were not driving the vehicle at the time of the offence

To succeed in this defence, you must be able to prove you were not driving. For example, if your car was stolen, you need to show copies of police reports and evidence that you have contacted your insurers. It is not enough to simply say “it wasn’t me”.

The speed limit signs were obstructed, damaged or incorrect

Again, to achieve a positive result, you need to provide proof. This could include photographs of the obstructed signs and/or evidence from the Highways Authority responsible for the road of an obstruction or incorrect signage.

Mitigation

In most cases, there is no defence available in a situation where you have been caught speeding. But if your licence is at risk, you can present a plea of mitigation to have the sentence reduced.

This is where the expertise of a barrister or solicitor comes to the fore. They know the court system and are likely to have been before the Magistrates or Judge before. A Plea of Mitigation is usually made in the form of a letter, which is read by the clerks to the Magistrates before sentencing.

A well-drafted mitigation letter has an excellent chance of resulting in your penalty being reduced. It should contain the details of the offence, genuine remorse, and reasons why the penalty should be reduced (for example, you will lose your job if you cannot drive or you have a child with special needs and need to take them to various appointments).

Taking legal advice before writing a Plea of Mitigation letter will dramatically improve your chances of success.

If you require legal advice on defending a speeding offence, you can contact me directly on 020 3870 3187.

On 7 May 2019, the British government officially announced what we all knew – the UK will have to hold the EU elections on 23 May 2019.

One element of these elections which will be under close scrutiny is how much control is exerted over political Facebook advertisements. In a powerful Ted talk, journalist Carole Cadwalladr, who, along with Emma Graham-Harrison broke the Cambridge Analytica story in the Observer, told Silicon Valley billionaires that they had “broken democracy” following the EU Referendum and President Donald Trump campaigns. Her speech has been viewed by over 1.5 million people.

We all know something has gone very badly wrong with the democratic process and the door is wide-open for electoral advertising abuse.

But can it be stopped?

“What happens on Facebook stays on Facebook”

In her talk, Ms Cadwalladr states:

“What happens on Facebook stays on Facebook. Because only you see your news feed and then it vanishes so it’s impossible to research anything. So we have no idea who saw what ads or what impact they had, or what data was used to target these people. Or even who placed the ads, or how much money was spent, or even what nationality they were.”
“Our democracy is broken, our laws don’t work anymore, and it’s not me saying this, it’s our parliament published a report saying this. This technology that you have invented has been amazing. But now, it’s a crime scene. And you have the evidence. And it is not enough to say that you will do better in the future. Because to have any hope of stopping this from happening again, we have to know the truth.”

In a report following an 18-month investigation into disinformation and fake news on Facebook, the Digital, Culture, Media and Sport Select Committee called the company and its executives “digital gangsters”. The investigation found Facebook deliberately obstructed the Committee’s inquiry and failed to tackle attempts by Russia to manipulate elections.

The report also warned that British electoral law is now unfit for purpose and cannot prevent interference by hostile foreign countries which set out to interfere in the democratic process.

Who regulates political advertising?

Up until the 1997 General Election, the Advertising Standards Authority (ASA) had some jurisdiction over non-broadcast political advertisements. However, in 2003, following a consultation, the Electoral Committee ruled the ASA should not be responsible for regulating election advertising.

For now, if you were to ask (and I did) “who regulates social media advertising”, the answer you invariably receive is “no one”.

According to the Electoral Commission, the rules around political advertising are now out of date. They are pushing for changes, such as rules stipulating that parties must provide evidence of their financial spend on digital advertising and all political adverts leave an imprint, so their source and content can be tracked and examined.

However, a new study, published in Political Quarterly, by Dr Katharine Dommett, from the University of Sheffield and Dr Sam Power, from the University of Exeter, claims that any introduced regulations must also consider how Facebook algorithms mean the same advertising spend has different results.

Dr Dommett said:

“As digital political campaigning grows it is now increasingly difficult for existing regulators to capture the true extent of what is happening online, let alone whether these practices violate democratic norms. The unreliability of existing data on the use of Facebook needs to be acknowledged by regulators if campaigning spending is to be effectively interpreted and understood.
“The lack of clear information should concern anyone responsible for overseeing the conduct of modern campaigns.”
“Although Facebook has introduced some new transparency measures, nobody can fully monitor both how it is being used by political parties and the inequalities of access they can face, added Dr Power. “It is also not Facebook’s role to regulate elections. We need to recognise these limitations to think about whether and how existing reporting requirements need to change.
“Regulators around the world need to think about how to monitor and respond to spending principles that are creating inequalities in the electoral market place.”

Facebook’s EU election war room

Facebook has committed itself to cleaning up its act around fake news, setting up a ‘war room’ in Dublin, complete with 40 employees targeted with overseeing the European Union’s parliamentary elections. This comes after the company has come under pressure from regulators. European leaders are considering new policies to force tech giants to rid their platforms of misinformation, hate speech and extremist content and Facebook faces several investigations related to its handling of user data.

The company has taken some action, it recently banned several high-profile public figures, including far-right U.S. commentator Alex Jones and Nation of Islam leader Louis Farrakhan, because of perceived hateful comments. This has led to President Donald Trump accusing the tech giant of interfering with free speech.
However, Politico has reported that numerous groups have already circumvented Facebook’s new political transparency tools.

Final words

Political advertising law is now grossly unfit for purpose. There needs to be clear regulation, enforced by bodies such as the ASA and Electoral Commission to control the content and the spend of such ads.
Only then can we see free and fair elections across the globe.

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.

It seems as if people have woken up from a deep slumber. For the past 30 years or more, scientists have been warning about the devastating effects of climate change. Now, in part thanks to 16-year-old Swedish school-girl Greta Thunberg, climate change activism has exploded.

In April 2019, Extinction Rebellion (XR) held several civil disobedience peaceful protests across London and other areas of the UK. Although condemned by many, the actions realised something that, up until now, eminent scientists have struggled to achieve. Climate change and its effects finally dominated the headlines, continuously, for over a week. In addition, MPs have approved a motion to declare an environment and climate emergency.

Many are now asking, “could XR’s protests change the environment law landscape?”

To answer that question, we need to look at where the UK sits at present on environmental laws.

Environment laws in the UK

Much of UK environmental law comes from the European Union (EU). The principal environmental regimes are:
• Environmental Permitting Regime (EPR), combining the pollution prevention and control (PPC) regime and waste management licensing and industrial emissions
• Water
• Waste (in relation to aspects not dealt with under EPR)
• Contaminated land
• Conservation of nature, wildlife, and habitats.
• Environmental impact assessments (EIAs)

Environmental liability can arise under:
• Criminal law
• Civil law
• Public or administrative law
• Company law

The sanctions for breach of environmental laws are harsh. In July 2014, the Independent Sentencing Council issued guidelines for sentencing in environment cases. The guidelines introduced a 12-step sentencing process for organisations intended to reduce inconsistencies in sentencing and ensure that sentences match the seriousness of the offence, the harm caused, and culpability. It also sought to remove any chance of an organisation profiting from an environmental breach.

Thames Water has been the recipient of some of the biggest fines to be handed down since the sentencing guidelines came into place. In 2017, the company was fined £20 million for pumping 1.9 billion litres of untreated sewage into the River Thames. It was fined a further £2 million after “reckless failure” led to raw sewage flowing into a brook near Milton-under-Wychwood in Oxfordshire in 2015. The pollution led to the death of 150 bullhead fish across a 50-metre stretch.

Company directors also face substantial fines for breaching environmental laws. In late 2017, the director of Atlantic Recycling Ltd was fined £30,000 and given a sentence of 18 months’ imprisonment, suspended for one year. He was also ordered to pay prosecution costs of £20,000. Both the company and its director were found in breach of various sections of the Environmental Permitting Regulations 2010.

The good, the bad, and the ugly

When it comes to certain environmental standards and climate change action, Britain is a world leader. For example, the use of coal as an energy source has been drastically cut, and there are plans for it to be phased out completely. And ten years ago, the Climate Change Act was passed, which binds Ministers to cutting carbon emissions by 80% by the year 2050. Also, a Climate Change Committee was formed to advise the government on the most efficient ways to cut emissions. And in an unprecedented move, Mark Carney, and François Villeroy de Galhau, the Governor of the Banque de France, said financial regulators, banks, and insurers around the world had to “raise the bar” to avoid catastrophe.

Writing in the Guardian, they said:
“As financial policymakers and prudential supervisors we cannot ignore the obvious physical risks before our eyes. Climate change is a global problem, which requires global solutions, in which the whole financial sector has a central role to play.”

However, the UK has a long way to go on many fronts when it comes to strengthening environmental laws and policies to truly deal with the challenge humanity is facing. For example:

• although onshore wind farms can provide the cheapest source of green energy, in 2015 the government blocked all new developments after back-bench MPs stated they were ‘unpopular.’
• rail and roads are starved of funding, meaning potholes are not filled (discouraging cycling) and high-speed rail developments are prioritised over local commuter routes
• grants to help low-income families better insulate their homes have been cut as has a government plan for zero-carbon homes

These are bad. But the ugly comes from the very foundations which capitalism is built on. Although it has resulted in millions of people in developing countries rising out of poverty, the focus on GDP growth and company laws which dictate directors are under a legal duty to maximise profit for shareholders means our current capitalist system may need drastic reconfiguration.

But as company laws currently stand, directors are in a no-win situation. And frankly, although there are a few bad apples who deliberately or recklessly cause environmental damage in pursuit of profit, most business owners are committed to acting in an environmentally responsible way. Even if only to preserve their organisation’s reputation. However, company laws effectively demand companies increase profits for shareholders year on year. And it is difficult to see how this can continue on an already straining planet.

Perhaps it is not environment laws that need to change. Maybe to save the planet and allow directors the freedom to put environmental concerns before the demand for growth, it is company laws which need to be overhauled.

Tanveer Qureshi is a Legal 500 barrister, specialising in environment prosecutions, 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.