‘Tis the season of unfair trials: criminal allegations in the regulatory arena

Recent weeks have seen a number of high profile criminal allegations being revealed, and even judged upon, without any involvement from the criminal justice system.

The most obvious of these cases involved Lord Lester of Herne Hill. The eminent Human Rights lawyer, and former Liberal Democrat spokesman on Human Rights, was found culpable of sexual harassment against Jasvinda Sanghera, a women’s rights campaigner, whilst working with her in 2006. Lord Lester is also said to have offered to arrange a peerage for Ms Sanghera in exchange for sex.

It appears these allegations were never reported to the police. 12 years later, the House of Lords privileges and conduct committee conducted an investigation into the matters and found Lord Lester to be culpable, recommending his suspension from the House for four years. Lord Lester, now 82, rejected the committee’s findings with stinging criticisms of their processes:

"These allegations are completely untrue. I produced evidence which clearly demonstrated that what I was said to have done 12 years ago did not happen. Independent counsel who previously advised the committee on its procedures provided an advice which concluded that the investigation was flawed. I regret the committee's conclusions in the light of these materials. There has to be a fair process for investigating sexual harassment claims in parliament. Parliament is supposed to be a bastion of the rule of law but has ignored calls to reform this procedure properly for 20 years. I hope to be judged by my work over decades for gender equality, race relations and free speech."

Indeed, the Lords themselves have voted narrowly to reject the findings of their own privileges and standards committee meaning the matter is still unresolved. It has now reached the wholly unsatisfactory position where lifelong colleagues of Lord Lester now hold his fate in their hands. So much for justice being blind.

Another high profile example of the criminal justice system being given the week off is that of Sir Philip Green. Sir Philip has all but been convicted, within the public eye at least, of sexual harassment and racially motivated harassment against five former employees - and of then buying their silence by way of non-disclosure agreements.  His identity, though protected via an interim injunction of the Court of Appeal, was revealed via the House of Lords when Lord Peter Hain used Parliamentary Privilege to unmask Green, thus rendering the Court's injunction nugatory (see our sister blog's article here). For the criminal lawyer, it is notable that none of Sir Philip’s five accusers reported these allegations to the police. In fact, two of the five accusers actually supported Sir Philip’s desire for privacy, fearing that if Sir Philip’s name was disclosed then this would endanger their own anonymity.

There are also more and more allegations of a sexual criminal nature solely being investigated via regulatory processes, such as via the General Medical Council, the Solicitors Disciplinary Tribunal and the General Dental Council. The Solicitors Regulation Authority has reported a sharp rise in reports. In October it reported having over 50 ongoing investigations into sexual harassment.

In the past, the police investigation and any prosecution would have come first. If the police or Crown Prosecution Service eventually declined to prosecute, it was still possible for some professional or bespoke regulatory process to follow, and perhaps a finding of fact could be made to the civil standard of proof. However, the new trend is that there is simply no report to police in the first place, and so no police investigation at all. This can have profound implications for prompt securing of important evidence.

For all its faults, the criminal justice process can at least require and retain key material and contact key witnesses fairly promptly. But when complainants eschew the police, much of this material is missed. As Lord Lester found, the outcome is sometimes a “he-said-she-said” dispute where the result can be extremely unpredictable.

Then, of course, there is the lack of admissibility rules and lower burden of proof offered by most regulatory procedures. No one is suggesting that allegations of bullying or misogyny are minor matters, in fact quite the opposite. Make no mistake, often these are in fact criminal allegations. Sexual assault and harassment are imprisonable offences under the Sexual Offences Act 2003 or the Protection from Harassment Act 1997. Racially charged abuse which is intended to cause distress is an imprisonable offence under the Public Order Act 1986 and the Crime and Disorder Act 1998. There is no such thing as a non-disclosure agreement which legally prevents a victim of crime from reporting it to police. It follows that serious allegations need proper processes with proper safeguards.

However, we have plainly entered a phase where a wide range of complainants (whether they are truthful or not) are choosing to avoid the criminal justice system altogether, in search of less harrowing alternatives. It should not take a criminal law anorak to find this trend is an alarming one. At a time when more crimes are being reported than ever before, those affected seem to have less faith than ever in using the criminal justice system. Many don't so much want their ‘day in court’ as want their day before a more discreet tribunal with power to end their abuser's career (whilst financially crippling them with costs orders).

The result is a smorgasbord of various regulatory and professional processes who have inherited the task of deciding whether someone of previous clear record is in fact 'more likely than not' to have committed a serious crime. This should not be a happy outcome for anyone, least of all the panel having to formulate such decisions.

So, take great care at the office party – because the standard of proof is falling, and no really one knows what due process will look like.

At Brett Wilson LLP, we represent individuals going through both criminal or regulatory investigations. If you feel you need our assistance, you can contact us here.