I believe that, where one gives out criticism, one should also give out praise.
Therefore for all the brickbats thrown at the media, today the Daily Record has broken free of the hers.
You will find their story here, and I suspect that, by the time I come back to a keyboard, matters might have moved along today.
In which case, I will offer my further unnecessarily detailed and wordy analysis!
Later!
Here!
On this Blog!
Filed under Craig Whyte's Companies, Daily Record, Football, HMRC v Rangers, Press, Rangers
As the prospect of Rangers FC ceasing to exist looms ever larger, and is now openly discussed in the mainstream media, it is interesting to see the line which is being taken.
Recently I have had the pleasure of attending a couple of meetings of the Scottish Press Club, where some of the machinations of the media are laid bare. Two recent speakers are, I think, relevant to this discussion.
First of all James Doleman wrote the terrific Sheridan Trial Blog. That had a large part to play in making me start my own, so he is the man to blame!
James sat in the Tommy Sheridan trial for its entire duration, reported thoroughly and correctly every day, and was able to observe the antics of the traditional media. He noticed that there was a “herd instinct” whereby there seemed a reluctance to be the person striking out in a different direction with the story. James had the feeling that there was a “safety in numbers” approach. If a reporter took a different tack from the rest, then he ran the risk of being wrong – if the general “spin” on the story was the same, them slight variation was in order, but no-one could be faulted for sticking to the “party line”.
It was also James’ view that this was not because of journalists trying to fit the story within their particular organisation’s viewpoint, but a recognition that there is “safety in numbers”. (James – if you feel I have misinterpreted what you said, apologies, and I will correct it.)
Secondly, I was very impressed by Professor Greg Philo from the Glasgow University Media Group. His point (one amongst many) was that what the media failed to report was more important than what actually made it into the papers and on to the TV. He discussed various stories, dating back to the 1970’s, where the facts were simply not reported at all, leading to people forming views about, for example, Trades Union power or productivity of British workers, which (a) were factually incorrect and (b) have formed the general view of these matters in the UK now, almost 40 years on.
What does this have to do, you might ask, with the state of Scottish football and the media coverage thereof?
The story of the tax case facing Rangers was broken, I understand, on the Kerrydale Street website. It seems to have been picked up soon afterwards by Darrell King of the Evening Times. My knowledge of it came through the Rangers Tax Case Blog and via Phil Mac Giolla Bhain’s website.
The mainstream reaction to the story seems, from my observations at the time, to have been to ignore it. Bearing in mind that, in a time of financial austerity, it was being alleged that “one of the two most important institutions in Scotland” (as I believe some refer to Rangers) had taken part in a scheme (a) illegally to reduce its tax liabilities by over £20 million and (b) which had the effect of giving them a massive financial advantage over even its closest rivals, it seems astonishing that the media were not poring over the story, and having comment from tax lawyers and accountants about what it meant. The fact that the tax appeal took place in private did not mean that the issues raised could not be discussed.
There were no issues of contempt of court, as long as the privacy of the hearing was respected. If, for example, RTC had detailed the evidence of a witness to the appeal, then I am sure that some form of action would have been taken. Governments and law enforcement agencies can easily penetrate the anonymity of the Internet, if so required.
If an anonymous blogger can provide huge amounts of analysis, and have contributors who are versed in the various areas chip in with their thoughts and input, why not the mainstream press?
I do not think that a message went out from the various editors saying “We are all Rangers supporters, so do not write about them.” However, there was probably a “nod and a wink” to the idea of sitting tight on the story, and for letting someone else take the flak. The reaction by some groups of Rangers fans to what they perceive as negative stories r actions about them, such as the threatened boycott of Lloyd TSB for trying to control the Rangers debt situation, probably made editors think that the risk of a drop in sales, even for telling the truth, was not worth it.
In addition, sports writers traditionally have not come from a business or legal background. Would the City Editor of the Herald be expected to pop over to Firhill and write a match report on a Thistle v Hamilton game? But the media has access to all sorts of experts (so-called) and this seems a story ripe for detailed exposition and analysis.
Against that background, what do we see now that the story is being talked about?
It seems to be the “party line” that Rangers must survive in the SPL in some form, whether as a newco or the existing team. This is not, of course, for the good of Rangers, but for the “good of Scottish football”.
As has been predicted on RTC by various contributors for some time now, this is the “herd instinct” kicking in. The accepted wisdom is that, of course, there must be a “Rangers” in the SPL. There has been little or no mainstream analysis of the issues behind the question.
I try, when writing, to start with a question, look at the evidence, and then reach a conclusion. That might seem old fashioned, but the media view of Rangers and their present predicament seems to have jumped straight to the answer without any analysis to get there.
We are told that Scottish football will wither and die without Rangers on the SPL.
It is funny, but I cannot seem to recall the floods of stories from Messrs Traynor, Keevins, English et alia warning that the desire of Celtic and/or Rangers to leave the SPL and play in England, or the Atlantic League, or the Inter-Galactic Footie Bowl would kill Scottish football stone dead.
I may well be wrong, and there are archives full of articles warning of this very fate, but my recollection is that the media saw this generally as (a) a good thing for the Old Firm as they would have better competition and more money and (b) a good thing for Scottish football.
Now, with the prospect of Rangers disappearing entirely, or else dropping all the way to Division 3 of the SFL, the absence of the Ibrox team (for what might only be three years) will be fatal for Scottish football.
I will leave the analysis of this to wiser people, but it seems to me that the following “logic” lies behind the present media view.
A If Rangers AND Celtic leave the SPL, this would be a good thing.
B If only Rangers leaves the SPL, that will be a bad thing.
C Therefore Celtic remaining on its own in the SPL is a bad thing.
Frankly that “logic“ can only be the result of (a) flawed thinking or (b) anti-Celtic bias. If the contention is that it would leave an uneven playing field and that Celtic would win all of the trophies all of the time, then, frankly, why does Scottish football not turn into a competition where Rangers and Celtic play only each other?
There were no clamours for the playing field to be levelled when Rangers were winning nine consecutive Championships, nor indeed when Celtic won their nine in a row. (In the late 1960’s and early 1970’s the standard of Scottish football was very high, and there was a lot of European success).
At the end of the day, it appears that Rangers, through financial mismanagement, have brought about a situation, no matter what happens with the tax case, where it cannot live within its means. Motherwell, Dundee (twice), Gretna, Airdrieonians and, in the mists of time, Third Lanark all paid the price for similar failure.
Would the media be clamouring for the rules to be changed if, as a result of bad play and bad management, Celtic or Rangers faced relegation? Logic would suggest that the same arguments should be deployed. However, that shows the moral bankruptcy of the argument.
We still need, perhaps even more than ever, the likes if Phil and RTC to keep up their coverage of these issues, or else the facts will be drowned out by the pre-set media agenda.
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And talking of the pre-set media agenda, I note today that the Scotsman website has a story regarding some of Rangers “targets” including Jorge Claros, the midfielder from Honduras who had a trial with the team earlier this month.
Ally McCoist is quoted as saying “We are not just in a position to offer him a contract yet”. He then goes on to suggest that other areas of the team are a higher priority.
The article goes on to say:-
“Claros has returned to his Honduran club Motagua and their manager, Pepe Trevino, is unhappy at the player’s treatment. He said: “Jorge has a great future and will sign for a good club in Europe soon. Maybe it was not his time at Rangers – I don’t know why they didn’t sign him. Rangers took him for two weeks and now say they have money problems. They should have told him before that. He is a very good player and deserves to be treated better than this.” (Emphasis added)
Mr McCoist’s words ”We are not just in a position to offer him a contract yet” seems to corroborate what Senor Trevino has to say. It does not appear that he was asked why Rangers was not in position to offer a contract, rather than saying that they did not want, just now, to do so.
It might be seen as worthy of comment that Rangers cannot afford to sign Senor Claros. But no.
It is all business as usual – nothing to see here – move along please.
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I am sure that the tide will turn and that the media will give this story the attention is deserves. Probably though, it will not happen till the liquidator or receiver is installed in the fine offices at Ibrox.
The days of the Christmas holidays are light for news. Newspapers are desperate for articles to take up column inches. Private Eye’s own Polly Filler columnist would be engaged 24/7 at this time of year, should she wish.
It is therefore not surprising to see political stories running in the press because, as most politicians are on holiday, and Parliament is not sitting, there is little chance of stories being questioned seriously.
This morning there are three stories I have seen (there may be more elsewhere too) about criminals being compensated for their injuries. These can be found in the Daily Mail, the Daily Telegraph and the Independent. Click on the names of the papers for the respective stories.
On the face of it, there is a “scandal” taking place which must be stopped. No right thinking person reading the articles could fail to agree that “something must be done”. However, the pieces all seem to be blatant attempts at government spin, ignoring the present legal position, and in fact, apparently, though inadvertently disclose a far greater “outrage”.
What we have, it appears, is a Ministry of Justice (MoJ) attempt to look tough on criminals by denying them compensation for ridiculous injuries, including, for example, Ian Huntley being compensated for being attached in prison, as this keeps money from innocent victims who in fact are left owed huge sums by the Criminal Injuries Compensation Authority (CICA). The “official sources” quoted however fail to disclose the reality of the rules of the CICA scheme just now, and attempt to conflate two entirely different issues in an effort to appear even tougher on the convicts and jailbirds. The spin is to create a sense of outrage, and having done so, to emphasis that the Coalition is not going to let this continue.
The “source” has also taken the chance to take a kick at Legal Aid, which is generally not a topic people want to support, unless they, or someone close to them, are being denied help for a vital legal battle.
The MoJ seems successfully to have worked on the basis that hard pressed newspapers, especially those without correspondents with relevant legal backgrounds, simply cannot devote the time and resources to having a Government inspired “story” subjected to detailed critical analysis.
The articles are written by Tim Shipman, Martin Evans and Oliver Wright respectively. I do not intend to criticise any of these journalists who, I am sure, are excellent practitioners. However the story seems to me anyway to be an exercise in the Government getting out a story for headline effect, whilst hoping no-one will actually look too closely at what they are saying.
A Brief History of Criminal Injures Compensation in Britain
In 1964 the Government established the Criminal Injuries Compensation Board (CICB), to pay compensation to victims of violent crime, based on an assessment of what victims would have received for their injuries if pursuing claims in a civil court. This was the commencement of what was, and remains, the most comprehensive system for compensating victims of crime in the world, a fact of which successive governments should be proud.
In the mid 1990’s, as a result of concern about the increasing costs, the Conservative Home Secretary, Michael Howard, brought in a revised “Tariff Scheme” where set amounts of compensation were to be paid for specified injuries. The new scheme was overturned by the High Court, after a challenge by various Trades Unions, but was, with some amendments, reintroduced and in 1996 the CICA was born and took over from the CICB.
The Scheme has been revised on various occasions, most recently in 2008, though it seems further revisions are on their way.
Now victims of crime who suffer injury can receive a maximum award of £250,000 for their injuries and a maximum additional sum of £250,000 for financial losses, as long as various conditions are satisfied.
However, as a function perhaps of present day society, the numbers of claims continue to increase year after year, and despite various efforts to streamline the claiming process, there are delays endemic in the system.
The CICA only makes news after a large tragedy, like the London bombings, when it gets criticised for delays, or hen apparently perverse decisions are made. An understanding of the scheme would render these apparently odd decisions clear (in most instances).
As the Annual Report of the CICA for 2010-2011 said, over 65,000 claims were resolved in the last year, and over £280 million paid out in compensation.
The Details
It is of note, before we get to the legalities, that the pieces have the following similarities.
1 Each is illustrated with a picture of convicted murderer Ian Huntley.
2 All three refer to him claming £15,000 for having his throat slashed in prison.
3 Each quotes “a senior source close to Kenneth Clarke”. The Telegraph attributes its quote to what the source told the Mail, but the Independent does not.
4 Each has the same quote from a “Ministry of Justice spokesman” (presumably not the senior source close to Mr Clarke).
5 All the articles refer to £5 million per year being paid out to convicted criminals, or “jailbirds” as the Mail refers to them.
6 Two of the pieces (Mail and Independent) also have a quote from Philip Davies, a Conservative MP complaining about the “outrage and scandal” of taxpayers’ money being “wasted on compensating criminals”.
One difference, in keeping with the respective papers’ philosophies, is that the Independent quotes the Prison Reform Trust and NACRO putting the case against the changes. No such “balance” appears in the Telegraph or the Mail. (Though, to be fair, that would not be expected anyway on an issue like this.)
So what is being suggested?
Even though all three pieces come from the one origin, one assumes, the detail is not on all fours.
The Mail states that “Convicted criminals will be banned from claiming compensation for their injuries…Ken Clarke will announce plans to ensure the money goes to victims of crime rather than criminals…Every year criminals claim around £5 million from the CICA”.
The Mail refers to “controversial claims in which burglars have demanded money for injuries sustained while escaping the scene of the crime.” The Mail states “Thousands is (sic) also paid out every year to criminals who sustain injuries in prison as a result of feuds and drug-fuelled violence”.
The Telegraph goes further, stating that “In some of the most extreme cases burglars, who have been hurt as they escape the scene of a crime, have received payments”.
The “official figures” and the detail around them quoted in the pieces are of interest too.
According to the Mail, “340 inmates made successful claims for injuries resulting in payouts and costs of £3.1 million last year. More than 3,000 prisoners made claims…Another £2 million was claimed by convicted criminals who are not jailed. Most of the payouts for jailbirds are for injuries caused by trips, falls or slips as well as accidents while playing sport.”
The Telegraph also refers to the applications covering “a range of injuries and activities, but included slips and falls and also accents while playing sport.”
All three articles refer to the lack of money available to the CICA for compensating victims of crime, and the impression is clearly given that dealing with, and paying, these criminals is a reason for, as the Mail puts it, “Almost 50,000 victims of violent crime have been kept waiting for compensation worth in excess of £600 million because the compensation authority has run out of funds. They include the children of murder victims and others who need the money to cover medical bills and compensate them for their disabilities and lost wages. Some are owed up to £500,000 after being crippled by vicious thugs.”
So what is wrong with the articles?
Why Do All These Criminals Get These Payouts?
They don’t!
First of all, there are two targets, and only the Mail piece makes clear that one of them remains untouched. The CICA only deals, as the name suggests, with “criminal injuries”. Slips, trips and falls, and sporting injuries are nothing to do with the CICA. They are negligence claims. If a prisoner, or indeed anyone else in prison, suffers injury there which is the fault of another party, then a negligence claim can be pursued and, if blame can be established, they would be entitled to compensation. These are civil court matters, dealt with in the normal way. Mr Huntley has as much right to pursue such a claim as anyone else, although ay damages he might receive could result in legal action for damages being taken against him by his victims’ representatives.
The civil courts would not reduce any award of damages because the victim was a convicted criminal. The “source” does not appear to suggest any change in that principle.
The target therefore is the CICA system.
However, the scheme, dating back to the days of the CICB has always taken account of criminal convictions! Under the initial scheme, the CICB was empowered to take account of the applicant’s “character, conduct and way of life, as evidenced by their criminal convictions” even where the convictions had nothing to do with the incident in which the injuries were inflicted. Over the years I conducted a number of appeals for clients where awards of compensation had been either reduced, or refused entirely because of convictions, and, as was said by more than more than one member of the Board “Why should we pay compensation to someone who has probably already cost the CICB in compensation for someone else?” It is hard, in general, to argue with that principle, which has been a part of the criminal injuries regime since 1964! However, the CICB allowed the exercise of discretion. In one case, I acted for a man who had been imprisoned for a number of years at a young age. He had lived his next 35 years after his release as a model citizen. The CICB decided that it was in the interests of justice to make him a full award. He was credited for having made a radical and positive change in his life.
Equally I know of cases where a family member claiming compensation for the death of a child was refused, because of the father’s own criminal record, and also where the family was denied compensation following the murder of their child due to the child’s “offences” which had led him to appear before the Children’s Panel.
Criminal convictions have therefore always been one of the factors to be considered.
When the tariff scheme was created there was also the inception of the “Penalty Points” system. The discretionary element all but disappeared. There is now a sliding scale of percentage reductions from any award based on the number of penalty points the claimant has.
The scale is detailed on pages 62 and 63 of the Guide to the CICA Scheme. The scale make sit clear that the “problem” of criminals obtaining criminal injuries compensation is already well covered.
A 10 point count reduces the award of compensation by 100%.
What results in 10 points? Any sentence of imprisonment results in 10 points for the duration of the sentence imposed. This applies even if the sentence is suspended, or there is early release. In addition, even after the sentence has been served, there is a sliding scale of points. Obviously multiple offences make it even less likely that a claimant will receive any award.
Mr Huntley, who is serving a life sentence, will therefore have a 100% deduction applied to any award of compensation for criminal injuries otherwise made to him, unless exceptional circumstances can be shown. In light of the drafting of the scheme, the only “exceptional circumstances” considered would be where he was injured in the course of preventing crime, or assisting the police or other authorities in preventing crime.
Even at the other end of the scale, a criminal conviction resulting in a fine of £250 or less, results in 2 penalty points (a 15% reduction) for 2 years from the date of sentence, and 1 point (10% deduction) form 2 years till the conviction is spent.
The scheme therefore covers far more than “jailbirds”. The case mentioned above, where the claimant had lived free of trouble for 35 years, would, under today’s rules, have resulted in 5 points and at least a 35% reduction from any award.
Anyone in prison who receives an award from the CICA has gone through a rigorous process to get there and will have had any award reduced to some extent. In addition, they must have been successful in satisfying the “exceptional” circumstances test.
Who is a Criminal?
As Mr Davies, MP, suggests, we should be concerned about “criminals” getting money due to innocent citizens. But the penalty point scheme goes all the way down to dealing with cautions and absolute discharges! Does Mr Davies, or the MoJ intend to prevent anyone with an unspent conviction, of any type, from pursuing a Criminal Injuries claim? If so, it would be a surprise quite how many people were to be excluded.
The scheme keeps in place, but with the more draconian penalty point system, the restrictions on claims in fatal cases. The criminal convictions of both the deceased and of the claimant come into play.
It is a matter of policy whether or not family members with criminal records (even for trivial matters) should be compensated for the killing of a close relative. The papers report every so often an aggrieved claimant who falls foul of this rule, and generally the reports focus on the unfairness of the decision. However, it all depends who you classify as a “criminal”. Mr Davies wants a wide net cast. Is that fair?
Do Escaping Burglars Get Compensation?
The reports, especially those in the Mail and Telegraph, look to show the ridiculous things which result in criminals being paid. Suggestions that there are people “demanding” payment for being injured when escaping, and according to the Telegraph being paid, seem daft. It might be that, in one or two specific cases there have been circumstances justifying such awards, whether by Criminal Injuries or via negligence. I suspect that is all of that type there have been, if indeed any exist.
The Tony Martin case, where Mr Martin was imprisoned for shooting an escaping burglar in the back, was one of the rare cases where such a claim might possibly be successful, even to a small degree.
In fact, I am surprised that health and safety was not mentioned by the Mail!
Don’t These Cases Delay Justice for Everyone?
The figures also make clear that, despite the impression given, the CICA is not gummed up dealing with all of these prisoners’ claims. They make up a small percentage of the total case load and an even smaller percentage of the payments made.
People are not sitting waiting for decisions simply because prisoners make claims. If people in the 10 point category were barred from applying, it might save some administrative time, but on the other hand, some of these people might still apply, and their applications would still need to be weeded out of the system.
Financial “Errors”
The Mail refers to payments plus costs, which ignores the fact that no costs are paid. Any legal fees charged to the successful claimant come out of the compensation awarded.
The Mail also states that Government “sources” describe the present system as a “shambles” overspending by £50 million per year. The Labour administration is blamed.
The system in place however is one created in 1996 by the Conservatives. The annual report for 2010-2011 linked above shows that significant progress has been made in shortening administrative delays. However, the cost of the system in payouts goes up as more and more people apply!
From my own knowledge of the system I would not say that it was an unduly extravagant one as far as running costs were concerned. The staff of the CICA at its Glasgow HQ were always as helpful as they could be, bearing in mind they enormous workload they had.
Blaming Labour for the “overspending” seems to be a cheap party political point, designed to appeal to the Mail readership, as I am sure it did.
Rights of Prisoners
It should be said also that, if a claimant succeeds in a Criminal Injuries claim, and later received damages through an insurance company or civil court for the same injuries, then the CICA is reimbursed.
Not every prisoner attacked in gaol will have been a victim of negligence by the prison authorities. However, in the case of prisoners such as Mr Huntley, his very notoriety, and the evil of his crimes, in fact makes it easier for him to succeed in such a claim. The prison authorities would find it very hard to say that they were not aware of risks and threats to him, more than to other criminals, and as such need to put in place greater security measures.
As the spokesman for the Prison Reform Trust said in the Independent, a gaol sentence does not deprive someone of all their rights.
Unless the Coalition wants to move to a Fort Apache: The Bronx style of prison regime, than they have to be able to protect prisoners, as far as is reasonable. The authorities have a duty of “reasonable care”. They need to fulfil it.
Legal Aid
The Mail also has a sly dig at Legal Aid. It states that “The legal aid bill for convicts has doubled in two years to £21 million – although that sum also covers those demanding release from jail and softer punishments.”
The latter half of that statement seems to describe legal aid for appeals! Does the Mail want convicts to be told that they have no right to assistance from lawyers if they think their conviction is wrong or unsafe, or if the sentence imposed is excessive?
If the Crown appeal on the basis that a sentence is too lenient does the Mail believe that no representation is needed, as the court will see to fair play?
The answers to the above are probably yes, but that should not be the determining factor for the country as a whole.
This is spun though as the Coalition “trimming” the Legal Aid budget as part of its austerity measures. Trimming is a word with few of the unpleasant connotations of “cutting” isn’t it?
What is the Real Scandal?
First of all, I do not think there is a real scandal here. But if there is, then the Mail report completely misses the point.
The article states ”Almost 50,000 victims of violent crime have been kept waiting for compensation worth in excess of £600 million because the compensation authority has run out of funds.. Some are owed up to £500,000 after being left crippled by vicious thugs.”
If the government run and funded scheme was actually lagging to that extent, as a result of dealing with prisoners’ claims, as the article implies, this would be a disgrace. Indeed any reason for such a delay would be unacceptable. The impression is given that almost 50,000 people have been awarded money, up to £500,000 but have not been paid as the fund is empty.
That is simply not true. The CICA has a budget, but as the payments it makes are dependent on the level of claims assessed, it does not “run out of money” any more than the DWP would run out of money for benefits.
Read the Annual Report for yourself. If the situation was as bad as the “senior source” makes out, one wonders (a) why it has taken this length of time for the Government to speak out and (b) why the only matter being addressed relates to claims by criminals.
In Conclusion
We have a blatant effort by the MoJ to get good headlines, by relying on the pressures on newspapers not actually to look at what is proposed and to analyse it.
As I state in the heading, I am not sure of this counts as Bad Law on the part of the press, or blatant political spinning, with a bit of “churnalism” as defined by Nick Davies in “Flat Earth News” thrown in.
In any event, it fails to give anything like an accurate picture of the problem and simply blames the bogeymen of convicts, lawyers and the Labour government for the present issues.
I find it sad.
Filed under Bad Law, Civil Law, Conservative Party, Daily Mail, Damages Claims, Independent, Politics, Press
Tommy Sheridan’s case has taken a bit of a back seat as far as press coverage is concerned, having been overwhelmed by the tide of News of the World disgrace over the summer, and following on the rejection of his application for leave to appeal against his criminal conviction for perjury.
The Scotsman today has an article which discusses Mr Sheridan’s appearance at a fund raiser to assist with his civil case.
Tommy Sheridan - in happier times
The article is one which seems to maintain the recent proud tradition of our newspapers, both the Scotsman and elsewhere, having very poor coverage of the meat of legal issues.
David Allen Green, the highly acclaimed lawyer and commentator, has focussed for some time now on “Bad Law” coverage in the media – discussing cases where what is reported bears little or no relation to the issues actually raised, or where the legal understanding of the position in the article goes badly wrong. This piece seems, to me, to fall into that category.
The article states:-
“(Sheridan’s) solicitor, Aamer Anwar, is pursuing the cash payment on the basis that News International has yet to lodge an appeal against the initial decision at the Court of Session in Edinburgh to award damages to Sheridan over a series of allegations about the left-winger’s private life in the now-defunct News of the World.
“News International, which has been dogged by allegations of phone-hacking, pledged to appeal against the damages award in the immediate aftermath of Sheridan’s conviction in Glasgow last December.”
It goes on to quote Kenny Ross, described as a leading figure in the Fire Brigades Union, and chair of the Defend Tommy Sheridan Campaign. He is quoted as saying:-
“Tommy is pursuing News International for the £200,000 he was awarded in 2006. His solicitor is writing to News International to say that Tommy wants the money the court said he should have. News of the World hasn’t lodged an appeal against the original decision, despite saying that it would do that. Tommy’s solicitor will be arguing for the damages to be paid on that basis.”
What’s Wrong With The Piece?
It struck me as rather odd that, according to the article, News International (NI) had not appealed against a judgement made by a jury in August 2006.
Generally courts only allow appeals to be lodged in a very short time window after decisions are made. Five years for lodging an appeal doesn’t fit anywhere within the rules in Scotland anyway.
The Rules
Section 29 of the Court of Session Act 1988 deals with applications for review of the verdict of a jury in a civil case in Scotland. It states at subsection 1:-
“Any party who is dissatisfied with the verdict of the jury in any jury action may, subject to such conditions and in such manner as may be prescribed, apply to the Inner House for a new trial on the ground—(a) of misdirection by the judge; (b) of the undue admission or rejection of evidence; (c) that the verdict is contrary to the evidence; (d) of excess or inadequacy of damages; or (e) of res noviter veniens ad notitiam; or on such other ground as is essential to the justice of the cause.”
Chapter 39 of the Rules of the Court of Session deals with time limits for such an application. Chapter 39.1 (1) states:-
“An application under section 29(1) of the Act of 1988 (application for new trial) (a) shall be made to a procedural judge, by motion, within 7 days after the date on which the verdict of the jury was written on the issue and signed.”
Chapter 39.2 (1) states:-
“A procedural judge may, on an application made in accordance with paragraph (2), allow an application for a new trial under section 29(1) of the Act of 1988 to be received outwith the period specified in rule 39.1(1) and to proceed out of time on such conditions as to expenses or otherwise as the procedural judge thinks fit.”
Is the Scotsman suggesting that NI missed the seven day window, and indeed has done so by over five years, and nearly a year after Mr Sheridan’s conviction? In such circumstances a late review application would receive very short shrift.
If NI had instructed its solicitors to appeal following the verdict, as was publicised, then they would have a stonewall negligence claim against their lawyers if their failure to appeal resulted in them having to pay Mr Sheridan £200,000.
Has News International Actually Appealed? Yes, of Course
However, 20 seconds on Google (including stopping for a mouthful of tea) shows that the above cannot be the case.
On 11th August 2006 the BBC reported, under the heading “Tabloid launches Sheridan appeal” that:-
“The News of the World has launched an appeal after a jury awarded Tommy Sheridan £200,000 in damages in his defamation case against the tabloid. The appeal was lodged with the Court of Session in Edinburgh but has yet to be formally accepted.”
On 13th February 2007 the BBC reported, under the headline “Newspaper’s Tommy appeal date set”:-
“A date has been set for the News of the World’s appeal hearing to overturn a £200,000 damages award for calling Tommy Sheridan MSP “a swinger. Two weeks in December have been pencilled into the Court of Session’s diary for appeal judges to hear the Sunday tabloid’s demand for a re-trial.
“Roisin Higgins, counsel for the Sunday tabloid’s publishers said legal argument about a re-trial was expected to start on 4 December and is expected to last for two weeks.“
Then, on 25th September 2007, the BBC, under the headline “Sheridan court appeal put on hold” reported:-
“A News of the World appeal against Tommy Sheridan’s libel victory against the paper has been put on hold. The newspaper is seeking to overturn the verdict, after being ordered to pay Mr Sheridan £200,000. Judges agreed that the proceedings should be suspended at a hearing at the Court of Session in Edinburgh. The decision means the case will now be suspended until the Crown inquiry into perjury allegations resulting from the case is resolved.”
So, from all of that, it appears that (a) an appeal was lodged (b) a date for hearing the appeal was set and (c) the court sat to decide to delay the appeal till after the perjury inquiry!
Either Mr Sheridan has a novel legal argument to the effect that the appeal was not properly lodged, which seems highly unlikely in light of the proceedings following it, or the Scotsman has simply repeated what someone has told it, without any check as to the credibility or reliability of the information.
If there had been no appeal, Mr Sheridan would hold a valid decree and his lawyers would instruct Sheriff Officers to take enforcement action against NI. But the lodging of an appeal prevents a decree being issued, so he has, so far, nothing to enforce.
The Scotsman article today also states:-
“News International, which has been dogged by allegations of phone-hacking, pledged to appeal against the damages award in the immediate aftermath of Sheridan’s conviction in Glasgow last December.”
But, as we have seen, the appeal was lodged in August 2006, long before the guilty verdict.
What Is The Correct Position?
As far as I can see here is where the case stands. The appeal was “sisted” (suspended) pending the criminal case. Once that has been resolved, it is open to either party to ask the court to “recall the sist” and put the appeal back on the court lists.
On the basis that the lodging of the appeal stopped NI having to pay Mr Sheridan, on one view they really have no incentive to get the appeal running soon, although excessive delay in doing so could result in the appeal being thrown out.
But Mr Sheridan’s option, if he wants to pursue the matter is simple. He can, either directly, or through his lawyers, ask the court to recall the sist. Such a motion would undoubtedly be granted and the case would be back on the rails.
If Mr Sheridan desires representation at his civil appeal and cannot find lawyers to represent him on a “no-win, no fee” basis, then the costs of him opposing the NI appeal will be high and funds would need to be raised for that. That however is not the story the Scotsman has elected to print.
Conclusion
As seems so common these days the press are not able, for reasons of resources I imagine, to address the legal issues in case thoroughly. The Scotsman at this point in the court proceedings (or indeed at ant time) would be unlikely to want to print a 5,000 word article on the likely outcome of the NI appeal (though such an article should be appearing on this very blog soon!). That is understandable and excusable.
What is far less so is when an article is published which, whilst about the law, is factually incorrect, and which, within seconds, can be shown to be so.
The problem is that most of the public get their knowledge of the law and the courts from the media. Where what they are being told is wrong, then the prospects of sensible and informed debate about the many legal issues which affect our daily lives are greatly reduced.
Click here for David Allen Green's explanation of what "Bad Law" Is
Filed under Bad Law, Civil Law, Courts, Damages Claims, News Of The World, Press, Tommy Sheridan
It is the job of Parliament, both at Westminster and Holyrood, to make laws. Whilst a parliament full of lawyers is a prospect too horrible to contemplate, one would hope that the MPs and MSP’s charged with passing legislation would have some grasp of the issues before them. That often seems lacking however.
In addition, as I have mentioned before, the standard of coverage of legal issues in the Scottish media falls far short of the levels of the past, and of what helps properly to enlighten the public.
On 20th September the Scotsman printed a fine example of the “double whammy” of a journalist and MSP producing a woefully inaccurate article.
Step forward Joan McAlpine, SNP list MSP for the South of Scotland. Ms McAlpine has had a distinguished career in journalism, and latterly moved into blogging with the acclaimed Go Lassie Go blog. In May she won a seat at Holyrood.
On 20th September however her piece was so incorrect and inaccurate that there was some discussion about whether or not it could have been part of a “Spot the Deliberate Mistake” competition!
Her article seems to have been written as a follow up to this earlier piece by Gareth Rose. Mr Rose wrote his piece, with comments from interested parties and despite an over statement of the effects of the particular condition referred to, namely “pleural plaques”, there was little to fault.
This would appear to have prompted Ms McAlpine to pick up her pen and she wrote, under the headline “Shameless Effort to Evade Justice may Affect us all” about the legal challenge brought to the UK Supreme Court by insurers seeking to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009, passed by the Scottish Parliament.
“ANYONE who thinks the row over the Supreme Court is esoteric should pay attention to a case due in the next few weeks, when insurance companies ask judges to “protect” them from workers with industrial disease. The Supreme Court is asked to overturn an Act of the Scottish Parliament that compensates workers exposed to asbestos on the grounds that this popular legislation violates insurers’ human rights.
The decision is due this Wednesday 12th October, the case having been argued at the UK Supreme Court, and televised live on the internet, in June. Mr Rose noted the due date for the judgment but Ms McAlpine seems to have missed that.
The case is not about insurers asking for protection from workers with industrial diseases either. The case is about whether or not the Scottish Parliament has the competence, standing the terms of the devolution settlement, to pass such a law. Whilst there are a number of claimants named in the proceedings who are persons alleging that they suffer from pleural plaques, they were not sued by AXA and the other insurers, but intervened in the case to have their voices heard, as they were allowed to do by Lord Uist reported at AXA Insurance and Others v Lord Advocate and Others [2010] CSOH 36.
The issue is undoubtedly an important one, but not for the reasons suggested by Ms McAlpine. And the popularity of a piece of legislation has no bearing, as far as I can see, on its legality!
Now you might think the man with damaged lungs is more deserving of legal protection than the loss adjuster. It’s one thing to respect the dignity and privacy of all human beings, no matter what they have done. But extending this principal (sic) from individuals to institutions is a bizarre development. Do insurance companies bleed? Do they gasp for breath?
Let’s pass quickly over the spelling mistake and move to the next errors. Ms McAlpine seems surprised that insurance companies are claiming the protection of “human rights”. Whilst that might, at first glance, look odd, the position has been clear for many years. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides, inter alia, that “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The full title of the ECHR refers to fundamental freedoms and is not restricted to human persons only. A company is, in law, a legal entity and it too has the right referred to under Article 6 for example. There is no issue therefore about a company having “human rights”. It does.
Ms McAlpine, echoing Shylock in the Merchant of Venice, then goes on to contrast the flesh and blood worker with the soulless corporation. But her reference to “gasp for breath” is, as I will show below, also inept.
If they prick us, do we not wheeze...or something like that?
Asbestos is now recognised as a carcinogen. The lagging and insulation material was once widely used in construction, and particularly in the traditional shipbuilding communities such as Glasgow, Clydebank and Greenock. Survivors tell stories of leaving footprints in deadly dust that covered workshop floors like a light dusting of snow.
Asbestos was hailed upon its discovery as a fantastic material – waterproof, fire-resistant and easy to use. However, it had one drawback – its use could prove fatal to those who worked with it or who inhaled the asbestos dust of fibres. By saying that “now” asbestos is recognised as a carcinogen ignores the fact that that has been acknowledged since at latest the 1970’s.
In 2007, judges in the House of Lords in their wisdom decided that pleural plaques were a condition that merited no compensation – reversing the practice of 20 years. The decision prevented future sufferers from pursuing a claim and those who had started one were then left with nothing – the UK government has now retreated and offered the latter a one-off lump sum which is time limited.
The 2007 case, known as Rothwell [2007] UKHL 39, was where the House of Lords overturned around 20 years of legal understanding by declining to treat pleural plaques as being a compensatable injury. This was not some heartless decision by faceless judges, but a reasoned and principles, though widely disputed, judgment. To see why it came about, we need to look at what pleural plaques actually are.
The British Lung Foundation website gives us information on them. It states as follows:-
Pleural plaques are areas of scar tissue on the pleura. The pleura is a two-layered membrane surrounding the lungs and lining the inside of the rib cage. In virtually all instances of pleural plaques there are no symptoms and you can live with them without having any long-term problems with your health.
If you have pleural plaques, it does not mean that:
While exposure to asbestos does carry a risk of developing a serious lung disease, such as asbestosis, mesothelioma or lung cancer, scientific evidence shows that having a pleural plaque does not increase that risk. Pleural plaques are not the same as asbestosis and they are not a pre-malignant form of cancer.
…
No. If you have been exposed to asbestos, but have no symptoms, such as breathlessness, there is no need to have any treatment. If you develop a cough which lasts a long time (more than three weeks) or you cough up blood, it is important to see your doctor straight away. Although these are not symptoms of pleural plaques, it may mean that you have a different, more serious, illness.
No.
No. There is no need to treat pleural plaques in any way.
———————————————————————
So we have a symptomless condition that, whilst being a marker of asbestos exposure, is not a guarantee that any further condition will develop, nor is it a step on the way to the deadly asbestos related conditions such as mesothelioma. It was for this reason that, after 20 years where claimants for asymptomatic pleural plaques might receive from £5,000 – £10,000 compensation, the House of Lords decided that, as there was no “injury” within the legal meaning, there was no right to compensation.
The insurers, some of whom have gone out of business as a result of asbestos related liabilities, were delighted. Whilst the sums awarded by way of damages were much smaller than in an asbestosis or cancer case, the fact was that the vast bulk of asbestos injury claims related to pleural plaques. This decision therefore saved the insurers possibly billions of pounds. Understandably there was an outcry, but the Rothwell case did not attack the awards for conditions where there was suffering caused.
However the Scottish parliament moved to defend victims inside its legal jurisdiction and in 2009 passed The Damages (Asbestos-related Conditions) (Scotland) Act to ensure the Lords decision did not apply here. It received cross party support in Holyrood. The insurance companies were shameless. This should not really surprise us – they had previously tortured asbestosis sufferers by dragging out their cases for years in the hope the claims would die with them.
Now I hold no great love for insurance companies – my professional career has been largely spent fighting with them, but we must acknowledge that insurers are a business looking to make a profit. As a result they try, as far as they can, to reduce what they pay out. However, the canard that they want to drag out cases till the claimant dies, and thus save money, is one long in the past. The law gives no advantage to the insurance company in these circumstances now, as the claim passes on to the deceased’s next of kin. In fact, some recent decisions at the Court of Session suggest that it might now cost insurers more where they claimant dies than if they survive.
To say that a business doing what it is legally obliged to do – namely to act in the interest of its shareholders, is shameless is unfair. Does Ms McAlpine wish the few remaining insurers based in Scotland, if “shameless”, to leave?
The companies challenged Holyrood’s 2009 Act, without a scintilla of embarrassment. Indeed they were brazen in their contempt, not just for the law but for the people of Scotland and the parliament we elected. When the Court of Session in Edinburgh twice throw out their challenge earlier this year, David Williams, the claims and underwriting director of Axa, was reported as saying the industry had always doubted that a Scottish Court would overturn an Act of the Scottish parliament. This insinuates our most senior judges are compromised by nationality.
The courts are there to adjudicate on legal disputes. Is Ms McAlpine suggesting that the insurers ought not to have been allowed to test the issues in court? I fail to see how using the procedures that are there can be seen as contemptuous towards the law, the people of Scotland and the Parliament. Ms McAlpine refers to the Scottish court twice “this year” throwing out the challenges.
In fact Lord Emslie, at [2010] CSOH 2, delivered a lengthy and erudite opinion running to 2409 paragraphs of detailed legal analysis. As might be guessed from the citation, that occurred in 2010, the decision being issued in fact on 8th January that year.
The insurers appealed, as is their right, and this too was rejected by the Inner House, reported at [2011] CSIH 31. The Lord President, and Lords Eassie and Hardie determined that the insurers’ challenges failed. But at no time in either of these judgments did the courts indicate that they viewed the action of the insurers as ones of contempt. Indeed, in the penultimate paragraph of the appeal judgment, their Lordships stated “…while we have not found these matter free of difficulty, we have come to the conclusion that particularly in light of the considerations to which we referred in paragraph [144] above, it cannot be said that the decision to place financial responsibility on the insurers was one which lay outside the margin of appreciation which the legislature enjoys in this sphere.”
The insurers then proceeded to appeal to the UK Supreme Court. There has been a long-standing right of appeal in civil cases to the House of Lords, the UKSC’s predecessor. There are few of the constitutional issues which arose when some, including the First Minister, accused the UKSC of interfering in Scottish criminal law in the Fraser case. Whilst Mr Williams, quoted by Ms McAlpine, was not tactful, his comments were much less offensive to the judges, I would guess, than those of Mr Salmond and Mr MacAskill, who accused the UKSC of “ambulance chasing”! As Ms McAlpine is a staunch Scottish Nationalist, one might think she would be happy that the Scottish courts have a reputation for standing up for Scottish law!
Williams went on to declare the insurance companies intention of challenging the act outside of Scotland: “The Supreme Court is our best chance. We are bullish and will be preparing for the next steps of the case.”
There seems to be a refrain in the SNP of treating the UKSC as a “foreign” court. Yes, it sits in London, but generally has at least two Scottish judges sitting in any Scottish case. As has been commented in the context of the Fraser case, it seems odd that the SNP seem to dislike a court sitting in London comprising 40% Scottish judges, but welcome the European Court, where there is one British judge!
That case is due to be heard in London early next month. Many observers believe the companies have little hope on Human Rights grounds – the case hinges on their property rights – though stranger things have happened.
As already mentioned, and indeed as had been reported in the Scotsman, the appeal was heard previously and the judgment will be issued on 12th October. Having watched much of the case it is fair to say that the performance of counsel for the Scottish Government was unimpressive, leading to online discussion (not seriously I should add) as to whether or not counsel had been instructed to ”take a dive” so as to lose the case, allowing the SNP to complain that their laws were being overturned by a “foreign” court. Sad to say, Ms McAlpine’s article would actually lend weight to that frivolous theory! And again the snide reference to the case being heard in London – one can hear the sneer in our Parliamentarian’s voice!
After the invective directed at the insurers by Ms McAlpine for arguing about human rights, it is of note that she acknowledges that, in fact, the “property rights” case is observed to be the stronger leg of the insurers’ submissions.
But there are even greater issues at stake if the asbestos ruling goes the wrong way. If the insurance companies win, you will effectively see a London court overturn an Act of the Scots Parliament that has with widespread support from other political parties, the trades unions and churches. The immorality and injustice of this would not be lost on the people of Scotland, particularly as it would be impossible for the Supreme Court to similarly dismiss Acts of the Westminster parliament, which is regarded as a sovereign, law-making body in the way Holyrood is not.
Once more we have a disparaging reference to London, ignoring the fact that the UKSC is, as the name hints, the Supreme Court for the United Kingdom! As already mentioned, if Holyrood has exceeded its competence, then it does not matter how “popular” the legislation is – it is ultra vires and cannot stand. For my part, I agree with the judges in the Court of Session regarding this issue, but there is an issue on the retrospective application of the Act which flies against commonly recognised legal principles.
Ms McAlpine’s complaint is that the UKSC cannot strike down a Westminster Act. Of course, under the present constitutional arrangements, like it or not, the Scottish Parliament is a creature of Westminster legislation. The powers of Holyrood derive from the Scotland Act, and Westminster can, short of Mr Salmond making a unilateral declaration of independence, increase or decrease those powers. That is what the present debate on the Scotland Bill is about.
It might be thought indeed that it is the Westminster position which is anomalous. After all, the US Supreme Court can strike down legislation as can the Supreme Courts in many jurisdictions. The courts can, and should, act as a bulwark against unconstitutional and unfair legislation.
This exposes the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it.
Ms McAlpine refers to the present arrangements as a “sham”. My trusty dictionary defines a “sham” as a “piece of pretence; something pretending or pretended to be what it is not”. The present arrangement is what it is – it is not what Ms McAlpine wants it to be. That does not make it a “sham”. And if and when the SNP get round to having their much promised referendum, we will find out what the Scottish people want, rather than having Ms McAlpine declare what that is.
Even if the damages legislation is not found to be in contravention of human rights law, the court may still grasp the opportunity to extend its authority over Scotland’s parliament. The 1998 Scotland Act says Holyrood laws can only be challenged if they intrude on reserved issues, breach European law or violate the ECHR. The insurers are also asking for a ruling that there is a right to appeal under common law as well – though the system is of course different in Scotland and England which complicates matters further. If the Supreme Court, in which only one of its current contingent of eleven judges is trained in and has detailed experience of Scots Law, said an act could also be reviewed on common law grounds, Holyrood’s status would be relegated to that of local council. It would open the floodgates and any law could be challenged on just about any grounds. Such a ruling would be a sort of ritual humiliation, but would we put up with it?
It is, I am sure, a political decision by the SNP to characterise the UKSC as an arm of Westminster, sitting in its “London” lair, striving to take control of Scotland’s affairs. The court has to deal with the issues put before it. Lord Hope did not ring up AXA Insurance to tell them “Between us, here is what I want you to argue before the court”. As their Lordships mentioned in the judgments referred to in the Court of Session, these issues are very difficult for the court to determine. One could easily see circumstances where a Scottish Government, of whatever hue, sought to pass a law which was abhorrent to the SNP, and where the Nationalists would be delighted for the UKSC to come to Scotland’s aid. But politically it suits for the judges to be disparaged.
As Lord Emslie said in his ruling “But if, hypothetically, a Scottish parliament were ever to legislate in a manner which could be described as a flagrant and unconstitutional abuse of power (it would be) unthinkable that the courts should have no option but to hold themselves powerless to intervene”.
It is true that there is only one Scottish judge out of 11 just now. That is because Lord Rodger sadly died and for each Scottish case heard since his death, including in fact this one, one of the judges from the Court of Session has sat along with Lord Hope to make up the second Scottish judge.
Ms McAlpine is right that any law could be challenged on any ground. But the courts would kick out frivolous or nonsensical arguments, whilst applying full and rigorous analysis to serious cases. If the UKSC rules against the legislation, this would not be a “ritual humiliation” but a decision that the Parliament has gone wrong. We have had devolution since 1999. How many Acts have been declared invalid since then? If Ms McAlpine’s thesis is to be accepted, then this would have been a common event, even if only since the SNP took over in 2005. It has not happened. The decision in the AXA case will not leave Holyrood left akin to a “parish council”.
Alex Salmond v Lord Hope...or is it AXA Insurance v Scotland...
This is a David and Goliath clash, whatever angle you view it from. It should not be a party political matter. Kenny MacAskill, the justice minister has said the Asbestos Damages Act was the piece of legislation he was most proud of in the SNP’s first term in office. It had support right across the Labour movement and from industrial injuries lawyers such as the late Frank McGuire whose contribution fighting for justice was marked in a motion by Labour’s Johanne Lamont just this week.
It is interesting that a battle between on one hand insurance companies, and on the other, the Scottish Government is classed as a “David v Goliath” affair. I suspect that Ms McAlpine wishes to classify the UKSC as Goliath, and the plucky SNP as David. In either event, this is a gross distortion.
As mentioned above there is an argument about the payment of compensation to people “suffering” from a symptom free condition. If this was a situation where the law was created to allow payment of compensation for asbestosis or mesothelioma, that would be entirely different. But that is not what this Act is about. It relates to pleural plaques.
Ironically, the Surpreme (sic) Court challenge also comes at the same time as the 40th anniversary of the Upper Clyde Shipbuilders work in, which was commemorated in the parliament last week. UCS played a considerable role in boosting the campaign for Scottish Home Rule that gained momentum from the early 1970s.
Here we come to the nub – this, in the same way as UCS in the 1970’s, is being used by SNP politicians paying little or no attention to the legalities and realities of the argument, in a Scotland – good; London – bad argument. As I said at the start, this would be bad enough from a journalist, but far worse when coming from a Parliamentarian.
The remarkbale and greatly missed Jimmy Reid and the UCS workers
It was believed a parliament in Scotland would protect shipbuilding and the men who worked in the yards. Four decades later, it is appropriate that the casualties of that industry should be central to a battle over where power should lie.
The “casualties” referred to are not suffering. The issue is whether the Scottish Parliament went beyond the rules which govern its competence. The UKSC Justices will declare their decision on this on Wednesday.
It would be interesting to see what Ms McAlpine’s reaction would be to an order from the European Court that an Act of the Scottish Parliament was invalid – how would that square with her declarations of the people’s sovereignty?
Conclusion
For the avoidance of doubt, as lawyers are prone to say, I am happy that the Scottish Government legislated to make compensation payable to pleural plaque sufferers, as people with that condition had been so entitled for 20 years prior to Rothwell.
I have always been on the side of the “wee man” against the “big business”. But that is not the issue here.
We have a prominent politician and writer disregarding the facts for political purposes. I do not suggest that Ms McAlpine has written her piece having decided to ignore the truth which she knows. Instead she has written it, I can only assume, without having ascertained the full position.
It just goes to show that the standard of writing and comment on legal matters in Scotland, whether by press of politicians, is woeful, and I fully expect that the decision on Wednesday will do nothing to change that view.
Random Thoughts Re Scots Law by Paul McConville 