No Place to Hide

Amir Paz-Fuchs
Amir Paz-Fuchs

The following is a summary of a talk given for a book panel on Glenn Greenwald’s book, No Place to Hide (2014) at Wolfson College, Oxford in May 2015. The book provides an interesting inside look into the Snowden affair, written by the journalist with whom Edward Snowden had the most intensive contact. As a non-expert in the field of privacy and/or telecommunications, I chose to focus on three themes that are close to my heart, and on which the book touches on: trust; the involvement of private companies in the surveillance project; and the perception of Edward Snowden (and others) as whistleblowers or traitors.

 

  1. Trust

At the end of the day, one’s approach to the Snowden (and Bradley/Chelsea Manning, and similar) revelations depends on whether one trusts the government.

At stark indication of this is given in the book. Snowden’s, and Greenwald’s, basic premise is stated by reference to the words of Thomas Jefferson (1798): “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution”

And yet, our ‘confidence’ in ‘man’, and in ‘government’, is, like so many other things, partisan. Greenwald refers to polls conducted in 2006, when an earlier NSA controversy erupted, and polls conducted in 2013, in the wake of the Snowden affair. In 2005, ‘liberals and Democrats overwhelmingly viewed the agency’s program as menacing. … because they considered Bush malicious and dangerous, they perceived that state surveillance under his control was therefore threatening and that they in particular were endangered as political opponents. Accordingly, Republicans had a more benign view of the NSA’s actions. In December 2013, by contrast, Democrats and progressives had converted to the leading NSA defenders”  (p 197). In 2006 a Pew poll found 75% of Republicans approved of NSA surveillance but only 37% of Democrats did. In 2013, 64% of Democrats approved, while 47% of Republicans found them unacceptable.

  1. Public Private Partnerships: several interesting links

The basic facts: Snowden was not employed by the NSA when he made his revelations. He was first employed by Dell Corporation, and then with Booz (seriously) Allen Hamilton. He notes that he “saw first-hand that the state, especially the NSA, was working hand in hand with the private tech industry to get full access to people’s communications”. So hopefully this is sinking in: Snowden had access to this fantastic trove of information whilst he was employed by a private company. And so, even if you do trust the government, do you trust Booz Allen Hamilton?

Let’s take a step back from Snowden, and see the big picture: The NSA has 30,000 employees, but has contracts for some 60,000 employees of private corporations. 70% of the National Intelligence budget, a total of $42 billion, is spent on the private sector. On one occasion, this was presented cheerily in this lovely manner: ‘we can’t spy, if we can’t buy!”.

The ‘Partnerships’ with over 80 major global corporations are managed by the NSA’s Special Sources Operations Unit, which Snowden described as the ‘crown jewel of the organisation’. These include Facebook, Yahoo, Google, and Microsoft (p 101-2).

But what kind of “partnership” are we talking about? We can identify several:

First, there is contracting out. Governments paying corporations to take on efforts that, in the past, governments did on their own. This could range from running prisons, collecting taxes, spying on people or, in the case of Blackwater/Xe, killing them. Indeed, over the past two decades, governments have been giving private companies tasks that in past were classified as ‘inherently governmental’, and thus must be taken on by government employees. According to the Government Accountability Office, despite some uncertainty about the term, it is “clear that government workers need to perform certain warfighting, judicial, enforcement, regulatory and policy-making functions … Certain other capabilities, such as those directly related to national security, should also be kept in-house”.

But in the case of national intelligence, there is a second, more particular link. Here we have a collaboration that relies on telecommunication companies doing their thing, while, in the process, allowing governments to access the data that they hold. Some of them, like Yahoo!, put up a fight for a while. Others, like Microsoft, were happy to oblige, and even took it a step forward, by changing its computer systems to make government access easier. Just so we’re clear what we’re talking about: Outlook.com, SkyDrive (with its 250 million users) and Skype have backdoors to allow the NSA access, without even having to submit requests to the company, let alone to a judge.

The third link actually goes the other way, and offers one answer to the question: why did the companies agree? It falls under the ‘you scratch my back’ philosophy. At the basic level, the government offers protection from legal liability. At the height of the earlier NSA wiretapping scandal, President Bush asked Congress to grant telecommunications companies immunity from civil liability. He said

In order to be able to discover the enemy’s plans, we need the cooperation of telecommunication companies. If these companies are subject to lawsuits that could cost them billions of dollars, they won’t help us; they won’t protect America.

But, of course, it goes further: One of the documents from the Snowden files includes a powerpoint slide entitled “Serving Our Customers”. Those customers include the Departments of Agriculture, Treasury, Justice and Commerce. Add this to the fact that the vast majority of spying is motivated not by the effort to subvert terrorism, and not even by political ploys, but rather by economic concerns, and you get a mutually beneficial, quid-pro-quo relationship. One such example is the intensive spying on a Brazilian mining giant, to serve the interests of the Canadian government, by virtue of the fact that the Brazilian company is a major competitor of a Canadian company.

A fourth link relates to the personal level. Companies like Booz Hamilton and AT&T employ hordes of former top government officials, and hordes of top official are past (and future) employees of corporations. Growing the surveillance state ensures that government funds keep flowing, and that the revolving doors remain greased (p 168). There is a fantastic loss of public money in such cases. Officials get the training in the public sector, then leave for a private company, only to come back as an external consultant for a pay package that is significantly more generous.

And I saved the best for last: campaign contributions. After the American House of Representatives narrowly defeated a bill to restrict the NSA’s spying program, a study revealed that those who voted against the bill received twice as much campaign contributions from defense contractors as those who voted in favour. But I’m sure this is just a coincidence.

  1. Snowden (or Manning): Whistleblower, Patriot, Spy or Traitor

There’s an interesting development in the book, about one-third of the way through (p 88-89). Up to that point, in the week during which the extent of the illegal activities of the NSA came to light, journalists, pundits, and politicians attacked the government with a vengeance. Once Snowden revealed himself, however, he suddenly was the target, a ‘shadowy’ figure who ‘betrayed his obligations, committed crimes and fled to China”.

So there is an interesting psychological move here: in the abstract, it is clear that was the government was doing was wrong. The same thing goes for the Manning revelations. But once the leaks are attached to a face and a name, something within us ticks, and we start thinking that, notwithstanding the wrongs perpetrated by the government, that individual did something wrong, and even more so. He breached his contracted, did not abide by his loyalty oaths, and broke the law. We can’t have everyone doing that. That’s anarchy.

  Arguably, our unease about whistleblowers and leaks is related to the fact that there are different kinds: from the intentional, ideological leak to harm your country; through a leak motivated by financial (or other) gain; and on to selfless, morally compelled motivations to expose government wrongdoing.

So here’s the first legal question: when looking at the protection that a whisteblower should (or shouldn’t receive), should motive matter? Motive doesn’t appear in whistleblowing legislation in the UK or the US, but courts in the US sometimes refer to it nonetheless.

Another interesting criterion is the object of the leak – who is it leaked to? Perhaps this is motive by proxy, striking a difference between a leak to the national papers, and thus informing the general public; and leaking directly to a foreign government, perhaps even in secrecy.

A third legal point is the differentiation in the level of protection given to different employees. In particular: should government employees be given heightened, or lower, protection? In the US their protection is more robust, but this protection does not apply to national security issues, and (just to be clear) does not apply to contractors.

Fourth,  here (also) there is the matter of prosecutorial discretion. And perhaps in this case it is even more troubling that in most other cases. For the truly problematic leaks are actually at the highest level. Here’s a nice (and when I say nice, I don’t mean it): In 2008, Haaretz published a report according to which senior Israeli officers planned and executed targeted killings in violation of the rules set by the Israeli Supreme Court for this tactic. The 20 year old soldier who sent Haaretz the documents, Anat Kam, was found, arrested, and indicted for espionage. She agreed to a plea bargain and was sentenced to 4.5 years in prison. Contrast this with the following:

In 1995, at the height of peace talks between Israel and Syria, Benjamin Netanyahu exposed the existence of a top secret document written by the head of the negotiations team, to thwart the talks. A few years later, he revealed that he was in on the assassination of Haled Mashal in Jordan, an attempt that Israel never took responsibility for; as well as for other top secret activities in Syria. As Amir Oren, Haaretz’s senior security correspondent, wrote: “Had a junior soldier or journalist let this kind of information out, he would have been tried for breach of security”.

And Israel is by no means an exception. As one journalist quipped: “The ship of state is the only ship that leaks from the top”.

Do States Have to comply with Human Rights when Countering the Phenomenon of Foreign Fighters?

Alex Conte
Alex Conte

In a blog for EJIL: Talk!, I consider an old question in a new context: do States have to comply with human rights when countering foreign fighters? The phenomenon of foreign fighters involves, as described by the OHCHR, “individuals who leave their country of origin or habitual residence, motivated primarily by ideology or religion, and become involved in violence as part of an insurgency or non-State armed group (even though they may also be motivated by payment)”. Preventing and responding to this phenomenon involves a multitude of potential initiatives at international, regional and national levels. A review of the Security Council’s principal resolution on foreign fighters, Resolution 2178 (2014), discloses several binding decisions as well as recommendations in what the Security Council described as a ‘comprehensive’ response to the factors underlying foreign fighters (see preambular para 13). State prevention and responses to foreign fighters has the potential to impact on the international human rights obligations of States and we are already seeing robust State responses, including in the case of the United Kingdom’s recent enactment of the Counter-Terrorism and Security Act 2015 and earlier amendments to the British Nationality Act 1981 to allow for the deprivation of citizenship.

I want to emphasise here that the question of human rights compliance in countering the phenomenon of foreign fighters does not involve new or untested issues. I draw attention to seven points:

  1. Implementation by States of recommendations and obligations under SC Res 2178 has the potential to impact on a broad range of civil, cultural, economic, political and social rights

The main objectives of SC Res 2178 are to inhibit the travel of foreign fighters, stem the recruitment to terrorism, disrupt financial support to or by foreign fighters, prevent radicalisation, counter violent extremism and incitement to terrorism, and facilitate reintegration and rehabilitation (see operative paragraphs 2-19).

Action in response will, or at least may, engage several human rights obligations of States. Concerning measures to inhibit the travel of foreign fighters, this may include: the freedom of movement; the right to return to one’s country of nationality; the freedom of entry into a State, particularly as this may affect refugee and asylum law; the deprivation of citizenship; the rights to family and private life and to employment and culture, as this affects individuals who may be prevented from entering a territory of habitual residence in which their family resides; the right to privacy, including as this affects the collection, storage or use of information in border control activities; the prohibition against discrimination, including as this affects profiling activities of border control officials; detention, as this affects the prohibition against unlawful or arbitrary detention; and rendition to States in which there is a risk of human rights violations being perpetrated against the individual. Concerning measures to implement the objectives under SC Res 2178 as a whole, the following further rights may be engaged: rights applicable to the criminalisation of conduct, including as this affects the principles of legality, non-retroactivity of criminal laws and double jeopardy; prosecution, including as this affects the right to a fair trial; the right to freedom of expression; the right to freedom of association; and various rights engaged as a result of financial and UN terrorist listing sanctions, including as these relate to the due process deficiencies within the Security Council’s terrorist sanctions regime.

  1. This is exacerbated by the absence in SC Res 2178 of a comprehensive, concise and human-rights compliant definition of terrorism

Consideration of human rights compliance when combating foreign fighters, especially with regard to action in response to Security Council Resolution 2178, must also take into account the absence in that resolution of a definition of terrorism. The absence of a comprehensive and concise definition of terrorism has drawn much criticism, including from the former Special Rapporteur on human rights and fundamental freedoms while countering terrorism (see para 26). His solution was to propose a human-rights compatible definition of terrorism (Practice 7 in his report), drawn from Security Council Resolution 1566 (2004), para 3. This lack of definition, which creates the risk of States adopting overly broad or abusive definitions of the term in the context of combating foreign fighters, is a further aspect to be taken into account  when considering State responses to the phenomenon of foreign fighters against the backdrop of their international human rights obligations.

  1. Global security and human rights are not to be juxtaposed; they are complementary and mutually reinforcing

In September 2006, the General Assembly adopted the UN Global Counter-Terrorism Strategy, as recommended by Kofi Annan in his report entitled Uniting against Terrorism. In his report, the former Secretary-General emphasised that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing ones (para 118).

The principle of complementarity and mutual reinforcement between security and human rights is reflected within the Global Strategy in three ways. First, respect for human rights for all and the rule of law forms one of the four pillars of the Strategy (Pillar IV). Second, it is also identified as “the fundamental basis of the fight against terrorism” (Pillar IV, title), thus applicable to all four pillars of the Strategy. Finally, the Strategy’s recognition of the importance of respect for human rights while countering terrorism is reflected through the express identification that a lack of the rule of law and violations of human rights amount to conditions conducive to the spread of terrorism (Pillar I, preambular paragraph).

  1. The Security Council has itself made repeated reference to the need for human rights compliance when implementing SC Res 2178

A notable feature of Resolution 2178 is its repeated reference to the need for human rights compliance. Its preambular paragraphs recognise, in line with the Global Counter-Terrorism Strategy, that measures to counter the phenomenon of foreign fighters must comply with the UN Charter and with States’ obligations under international law, in particular international human rights law, international refugee law and international humanitarian law (preambular paras 5 and 7). Resolution 2178 underscores that “respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort”; and notes that lack of compliance with obligations under international law (including international human rights law) “is one of the factors contributing to increased radicalization and fosters a sense of impunity” (preambular para 7).

In requiring, or recommending, particular action by UN Member States, the operative provisions of Resolution 2178 follow this pattern. For example, the resolution requires States to “prevent and supress the recruiting, organizing, transportation or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training” (operative para 5). But it expressly requires that States do so “consistent with international human rights law, international refugee law, and international humanitarian law”.

  1. The principle of complementarity and mutual reinforcement is also a natural consequence of States’ legal obligations and of the flexibility of human rights law

An obvious point should be recalled: not only are human rights essential to a sustainable strategy for the countering of terrorism, but States are obliged by law to comply with their international human rights obligations. States have human rights obligations under customary international law (applicable to all States) and international treaties (applicable to States parties to such treaties). Compliance with human rights is not something requiring States to do something extra, or something special. In commenting on human rights in the fight against terrorism, former Judge of the European Court of Human Rights,

Justice Egbert Myjer
Justice Egbert Myjer

, succinctly stated: “Just do what you have promised to do” (Myjer E (2009) Human Rights and the Fight against Terrorism – Case-law of the Strasbourg Court (paper presented at the Round Table Fight against Terrorism: Challenges for the Judiciary, 18-19 September 2009, Fiesole, Italy), p.1).

Furthermore, any argument that respect for human rights prevents States from effectively fighting terrorism not only takes a short-term perspective, it also disregards the nature of international human rights law which, other than in the case of a limited number of rights, incorporates a level of flexibility to accommodate security and public order objectives.

  1. The requirement of human rights compliance is not altered when States implement binding decisions of the Security Council

As discussed, certain aspects of the operative provisions of Security Council Resolution 2178 make express reference to the need for States to comply with their international obligations, including under international human rights law. Other binding decisions do not, prompting the questions: how are such obligations to be interpreted; and what approach is to be taken with respect to future decisions of the Security Council where ambiguity is present?

In cases before the UN Human Rights Committee and the European Court of Human Rights, States have, in simple terms, argued that human rights considerations are not relevant when determining the meaning or implementation of Security Council resolutions under Chapter VII of the Charter. States have pointed to the fact that Chapter VII decisions must be carried out by States, without discretion, by virtue of Articles 25 and 48 of the Charter. They have argued that Article 103 of the Charter requires that human rights obligations must be set aside since that provision holds that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter [here, obligations to comply with Security Council resolutions] and their obligations under any other international agreement [here, international human rights treaties], their obligations under the present Charter shall prevail”.

In Sayadi and Vinck v Belgium, the majority of the Human Rights Committee avoided the issue by concluding that the Committee was competent to consider the compatibility with human rights of national measures to implement a Security Council resolution (para 10.6). Its focus was on implementation, rather than interpretation. Two diverging positions can nevertheless be seen. On the one hand, Committee member Ivan Shearer took the view that the Committee should have rejected the authors’ case as unsubstantiated. He effectively agreed with Belgium that the combination of Articles 25, 48 and 103 of the Charter meant that the ICCPR was subordinate to the Charter, not on a par with it. In contrast, Sir Nigel Rodley considered Article 24(2) of the Charter (which provides that the Security

Prof Sir Nigel Rodley
Prof Sir Nigel Rodley

Council must discharge its duties “in accordance with the Purposes and Principles of the United Nations”), concluding that it should therefore be presumed that the Security Council does not intend that action taken pursuant to its resolutions should violate human rights, and that Security Council decisions should be interpreted in light of that presumption.

The European Court of Human Rights, in Al-Jeddah v UK, arrived at the same result as Sir Nigel Rodley. It concluded that the purposes and principles of the Charter, when combined with the qualified competence of the Security Council under Article 24(2) and the UN and Member State commitments under Articles 55(c) and 56, called for an interpretation of Security Council resolutions in a way that was most in harmony with the provisions of the European Convention on Human Rights (para 102). The same approach was later taken by the European Court in Nada v Switzerland in the context of Security Council listing and sanctions resolutions, where it stated:

“[T]he United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to UN member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes upon States an obligation of result, leaving them to choose the means by which they give effect to the resolutions.”

  1. A human rights compliant approach when implementing binding decisions of the Security Council remains the case even when a State is left with no choice as to the means of implementation

A further question must be addressed: what if a State considers that there are no human rights compatible options in the implementation of a Security Council decision?

The majority approach of the Human Rights Committee in Sayadi and Vinck v Belgium was to disregard any question of the compatibility of Security Council decisions with human rights, instead focussing solely on the question of the compatibility of implementing acts by Belgium with its obligations under the ICCPR. The majority stated (para 7.2):

“While the Committee could not consider alleged violations of other instruments such as the Charter of the United Nations, or allegations that challenged United Nations rules concerning the fight against terrorism, the Committee was competent to admit a communication alleging that a State party had violated rights set forth in the Covenant, regardless of the source of the obligations implemented by the State party.”

In November 2013, the European Court turned its mind to the question under consideration in this section. In Al-Dulimi v Switzerland, the Court agreed with Switzerland (and France and the UK, who joined as third party interveners) that sanctions mandated under operative paragraph 23 of Resolution 1483 (2003) left Switzerland with no discretion as to the means of implementation (para 113). The Court held that States nevertheless remain liable under the ECHR for all acts and omissions of their organs arising from the need to observe international legal obligations. It continued to explain that, if the organisation under which such obligations arise (in this case the UN and its Security Council) has means of protecting human rights that are at least equivalent to the ECHR, the Court can in such cases assume that the State has complied with its obligations under the ECHR (para 114). The Court concluded that no equivalent protection existed and that, accordingly, Switzerland bore full responsibility for any violation of rights under the ECHR in its implementation of Resolution 1483 (paras 118-120).

Two conclusions can be drawn from this jurisprudence. First, wherever a State has a choice as to the means of implementing a decision of the Security Council, including on foreign fighters, it must adopt the means of implementation that are most consistent with its international human rights obligations. Second, even if an irreconcilable conflict arises between a Security Council decision and a State’s human rights obligations (leaving the State with no choice as to the means of implementation), the State nevertheless remains liable for all acts and omissions of their organs arising from the need to implement such a decision, unless the Security Council decision is accompanied by means of protecting human rights that are at least equivalent to the State’s international human rights obligations. Article 103 of the Charter therefore does not provide States with shelter from bearing full responsibility for any violation of rights.

 

Dr Alex Conte is a Reader in Human Rights Law at Sussex Law School, University of Sussex. His principal area of research interest concerns global security and human rights, looking at various issues pertaining to global security and the interface this has with human rights and the rule of law, as well as with the intersection between international human rights law and international humanitarian law. Twitter: @alexcontelaw.

Can hate crime be prosecuted effectively?

Abenaa Owusu-Bempah
Abenaa Owusu-Bempah

As part of a drive to tackle hate crime, the Ministry of Justice asked the Law Commission to examine the case for extending the racially and religiously aggravated offences in the Crime and Disorder Act 1998, so that they also cover disability, sexual orientation and transgender identity. The Commission was not asked to examine whether the existing racially and religiously aggravated offences are in need of reform. In its final report, the Commission recommended that, before a decision is taken as to whether the offences be extended, a full-scale review of the operation of the existing offences be carried out.

If a review is undertaken, it should address questions about the appropriate substantive elements of hate crime offences (what type of conduct do we want to criminalise and against whom?) and the rationale of hate crime legislation (what makes ‘hate crime’ different from other crime? Why should it be treated differently and sentenced more harshly?). But the review should not be limited to these important concerns. Consideration should also be given to the procedural difficulties which can be encountered during the prosecution stage of the criminal process. In other words, to whether the existing racially and religiously aggravated offences can be prosecuted effectively.

The offences aim, amongst other things, to protect certain vulnerable groups, tackle racism and hate crimexenophobia, and contribute to social cohesion. However, if the offences cannot be prosecuted effectively, they become little more than an empty gesture to those affected by hate crime, and this may be counterproductive. Procedural problems can also put defendants at risk of wrongful conviction. If this is the case, rather than extending the offences to cover additional characteristics, perhaps they should be repealed.

There are a number of procedural problems arising from the structure of the existing racially and religiously aggravated offences which can prevent effective prosecution. These relate primarily to alternative charges, alternative verdicts and inconsistent verdicts.

Alternative charges

Aggravated offences are aggravated versions of pre-existing offences, set out in the Crime and Disorder Act 1998. These pre-existing offences will be referred to as ‘basic offences’. The 11 basic offences which can become aggravated include various forms of assault, criminal damage, various public order offences, and harassment and stalking offences. In order to be convicted of an aggravated offence, the prosecution must prove that the defendant committed the basic offence, and that it was aggravated. The aggravated offences have higher maximum sentences than the basic offences.

A basic offence will become aggravated if there was a demonstration of hostility towards the victim based on their race or religion, or if it was motivated by hostility towards a racial or religious group. So, when an aggravated offence has been committed, a basic offence will also have been committed.

Where there is evidence that an aggravated offence has been committed, the prosecution prefers to charge the accused with both the aggravated and basic versions of the offence. This avoids the problems caused by charging only one of the offences. For example, if only the aggravated offence is charged, and the prosecution can prove that the accused committed the basic offence, but not that is was racially or religiously aggravated, then the accused must be found not guilty. The accused will not be held liable for the basic offence.  On the other hand, if the accused is charged with both offences, and the more serious aggravated offence cannot be proved, there is an option to convict of the basic offence.

Yet, charging both offences has created problems. The most significant problem is the potential for charge bargaining.  Some prosecutors may be willing to accept a plea of guilty to the basic offence on the condition that the aggravated charge is dropped. Although it is the policy of the Crown Prosecution Service not to accept a plea to the basic offence alone, responses from practitioners to the Law Commission’s consultation, as well as some recently published conviction and sentencing statistics, suggest that this does occur.

Accepting a plea to the basic offence and dropping the charge of the aggravated offence risks creating the impression that hate crime is not taken seriously. Routine ‘charge bargaining’ has the potential to reverse any positive communicative effect of the law. Instead of assuring the public that it is wrong to target individuals because of their personal characteristics and that such conduct will not be tolerated, we could be left with an empty political gesture which is unlikely to influence attitudes or deter potential offenders, and is likely to dishearten, and further marginalise, the very people which the offences are intended to protect.

Alternative Verdicts

Where an aggravated offence is tried in the Crown Court, the judge can leave to the jury an alternative verdict. This means that, instead of charging both the basic and aggravated offence, the prosecution need only charge the aggravated offence, and the jury will still be allowed to convict of the basic offence if the aggravated element cannot be proved beyond reasonable doubt. There is no provision for returning alternative verdicts in the magistrates’ court.

Allowing the jury to return an alternative verdict, rather than considering only the aggravated offence, creates risks for the both the prosecution and the defence. For the prosecution, there is a risk that the jury will convict of the basic offence when they otherwise would have convicted of the aggravated offence (in practice, juries can be reluctant to convict defendants of aggravated offences). For the defence, there is the risk that the defendant will be convicted of the basic offence when they otherwise would have been acquitted.

However, the benefits of allowing juries to return alternative verdicts outweigh these disadvantages. The primary benefit is that the defendant is less likely to be wrongfully convicted of the aggravated offence in circumstances where he clearly committed the basic offence, but the aggravated element cannot be proved. If there is no option of returning an alternative verdict, the jury may be tempted to convict of the aggravated offence so that the defendant does not get away with the basic offence, rather than because the defendant actually committed the aggravated offence.

Unfortunately, in practice, judges do not always give the jury the option of convicting of the basic offence instead of the aggravated offence. This means that juries are sometimes left with a difficult choice between either 1) letting the defendant get away with the basic offence, or 2) convicting them of a more serious offence than they committed.

Inconsistent verdicts

Sometimes a defendant is tried for two or more aggravated offences arising out of the same incident. For example, in the case of Dossett [2006] EWCA Crim 709, it was alleged that the defendant had confronted a parking attendant, shouted at her, including telling her to ‘go back to your fucking country’, grabbed her jacket to see her identification number, and continued to shout and threaten her. He was charged with racially aggravated assault and a racially aggravated public order offence. The words ‘go back to your fucking country’ constituted the evidence of racial hostility for the purposes of both charges. Yet, he was only convicted of the racially aggravated public order offence. Instead of being found guilty of racially aggravated assault, he was found guilty of an alternative charge of basic assault. Dossett appealed against the convictions, arguing that they were inconsistent (either both of the offences had been aggravated or neither had been aggravated). Although the Court of Appeal upheld the convictions, it is difficult to see how Dossett could have been guilty of one of the aggravated offences, but not the other. It is possible that he was under-convicted of the basic assault (i.e. he had actually committed a racially aggravated assault) or over (and wrongfully) convicted of the racially aggravated public order offence (i.e. he was guilty of a basic public order offence, but not the more serious aggravated version).  This case is not an isolated incident. For example, the same issue is evident in the more recent case of Mihocic [2012] EWCA Crim 195. Throughout the criminal law, appeals on the ground of inconsistent verdicts are not uncommon.

A solution

In large part, these procedural problems stem from the structure of the racially and religiously aggravated offences. Because of this, it is likely that a significant change in the law would be necessary to rectify the problems. However, a more straightforward solution would be to repeal the offences and rely on existing sentencing legislation to deal with the conduct currently covered by the aggravated offences.

Sections 145 and 146 of the Criminal Justice Act 2003 require judges to increase the sentence for any offence (other than an aggravated offence) where there is evidence of a demonstration of hostility, or a hostile motive, on the basis of race, religion, disability, sexual orientation or transgender identity. The judge must declare in open court that he has made this finding of hostility and that he has increased the sentence as a result.

There are concerns that these sentencing provisions are not currently used as rigorously or consistently as they should be, and that they do not have the same symbolic or communicative function as criminal offences. In response to this, the Law Commission has recommended improvements to the operation of the sentencing provisions. These include specific guidance for judges on when and how to apply the provisions, as well as reforms to allow the application of these provisions to show on an offender’s criminal record. If these recommendations are put in place, the sentencing provisions could be applied consistently, and could also encompass the desired symbolic and communicative function of the aggravated offences.

Repealing the aggravated offences could be perceived as a reversal of the progress which has been made over the past two decades to tackle racism and other prejudices. But if procedural problems result in offences which cannot be enforced properly, they become little more than an empty gesture. Procedural problems also create the potential for injustice to those accused of wrongdoing. Hopefully, anxiety about repealing the offences could be reduced through reassurance that the sentencing legislation is still hate crime law and that by eliminating the procedural problems stemming from the aggravated offences, and improving the operation of the sentencing provisions, hate crime can be dealt with more fairly and effectively.

For a more detailed account of the procedural problems associated with the racially and religiously aggravated offences, see A Owusu-Bempah, ‘Prosecuting Hate Crime: Procedural Issues and the Future of the Aggravated Offences

Reforming the Criminal Process for Complainants: Beyond the headlines

Abenaa Owusu-Bempah
Abenaa Owusu-Bempah

Over the past few months, there have been a number of reports in the media highlighting concern for witnesses and complainants of crime, particularly complainants of sexual offences. The current Director of Public Prosecutions (DPP), Alison Saunders, and the former DPP, Sir Keir Starmer, have been particularly vocal on the issue. The headlines include, “Victims of crimes like rape deserve better in court” and “Police stations are intimidating for rape victims”.

Some of the headlines are misleading. For example, on 18th January 2015, The Telegraph published an article titled, “Men must prove a woman said ‘Yes’ under tough new rape rules”. The article was referring to guidance from the DPP to the effect that police should ask those suspected of committing rape why they believed the complainant had consented. This does not require the suspect to ‘prove’ consent. When it comes to the trial, the burden remains that of the prosecution to prove, beyond reasonable doubt, that the defendant lacked reasonable belief in consent.  However, if a rape suspect fails to respond to the questions put to them by the police, and then later, at trial, claims to have had a reason to believe the complainant had consented, the initial silence may be used against him, as evidence of guilt. Creating an expectation that a suspect should explain the basis for a belief in consent may increase the potential for adverse inferences of guilt to be drawn against those who do not do so, despite the fact that there may be an innocent explanation for their silence, such as fear, anxiety or legal advice.

The stories behind the headlines address legitimate concerns – that victims of sexual offences should not be deterred from reporting the offence; that the criminal process should be made as bearable as possible; and that the negative emotional impact of testifying in court should be minimised. However, recent announcements and proposals from the DPP, as well as the suggestions made by the former DPP, raise concerns of their own. On the whole, despite claims that any changes should be made “without undermining the rights of the defence”, there seems to be very little consideration given to those accused of criminal wrongdoing. While the concern for complainants is well placed, many of the current proposals act to reinforce perceptions that those who are accused of committing a crime are necessarily guilty, and that those who assert that a crime has been committed against them are necessarily truthful.

With this issue continuing to generate public attention, it is important to consider some of the worrying implications of what is being proposed.

Referring to complainants as ‘victims’

Alison Saunders has asserted that complainants should be referred to as “victims” from the time they make a complaint. She feels this appropriate because “when someone goes to the police they feel they are a victim of crime”. She also states that “There is, of course, no presumption of guilt and whether someone is legally a victim of a specific crime by a specific person is for a court to decide”.

In some circumstances there will be no question as to whether the complainant has been vicitimised, and the real issue will be who is responsible for their victimisation. Moreover, in an informal setting, there may be no objection to referring to someone who claims to have been victimised, as a victim. However, in the context of a formal legal setting, and in terms of the vocabulary used by legal professionals, it is not easy to rectify these two statements from Alison Saunders. If someone is not legally a victim until it is proved that an offence has been committed against them, then it may be no more appropriate to call them ‘victim’ than it is to refer to the accused as being ‘guilty’. For legal professionals to publicly refer to a complainant as a victim can reinforce public perceptions that the person accused of committing the offence is in fact guilty. This brings into question the presumption of innocence. Exactly what it means to presume someone innocent, and exactly what this requires on the part of state officials, is open to debate. However, it has been recognised by the European Court of Human Rights that the presumption of innocence protects against official insinuations that one is guilty before conviction.

Informing witnesses of the defence case

The DPP has also announced that witnesses should be informed of the general nature of the defence case and that they may be questioned as to their sexual history or bad character during the trial.  Where a trial is to take place in the Crown Court, the defence is under an obligation to make quite detailed disclosure of the nature of its case to the prosecution. This in itself raises issues of compatibility with the right to a fair trial. However, since that is the position in law, what is the harm of the prosecution then sharing some of that disclosure with the complainant? Perhaps the most likely and worrying consequence is that witnesses will be able tailor their evidence to the nature of the defence case, making it more difficult for the defence to cast doubt on the accuracy of a witness’s testimony as well as making it more difficult to show that a witness is not credible. Not only could this increase the prospect of wrongful conviction, but it brings into question whether the defence would be able to effectively challenge the witness, as is the right of the defendant.

Adapting the trial process

There is no doubt that giving evidence at trial is a difficult experience, and that complainants of sexual offences can be subjected to aggressive and intrusive cross-examination. The defence’s right to examine witnesses has not always been easy to rectify with the complainant’s right to privacy and to be free from inhuman and degrading treatment. Since 1999, special measures have been available to vulnerable witnesses in court, to assist them to give their best evidence and to minimise the negative emotional impact of testifying. Complainants of sexual offences are automatically eligible for special measures. These measures range from screening the witness from the accused, to pre-recorded evidence-in-chief and cross-examination through a television link. In addition, there are special rules preventing complainants of sexual offences from being questioned about their past sexual behaviour, unless certain circumstances apply. One purpose of these rules was to correct the unfortunate ‘rape myths’. These myths had influenced the way in which criminal justice professionals responded to rape complaints and deterred reporting of rape. The crux of these myths is that promiscuous women are more likely to consent than virtuous women and that promiscuous women are more likely to lie about being raped than virtuous women.

It has been suggested that the current rules do not go far enough to protect vulnerable witnesses and complainants of sexual offences, and that they are not used as rigorously as they should be. It has also been suggested that our ‘adversarial’ trial may need to be reformed in order to accommodate the needs of witnesses.  One possible reform, which has been put forward by Sir Keir Starmer, is to allow judges to have greater involvement in the examination of complainants of sexual offences, adopting a more inquisitorial style of trying cases. Not only is it wrong to assume that judges would be any better at dealing with the needs of witnesses than trained lawyers, but there are also inherent dangers in transplanting foreign procedures and hoping for the best. As Damska famously put it, “the music of the law changes, so to speak, when the musical instruments and the players are no longer the same”.

It is not disputed that the current rules may not be applied rigorously enough. But it seems that the logical response would first be to improve training of those responsible for implementing them (including through the toolkits published by the Advocates’ Training Council), and to ensure that complainants have access to the information and support which is already available (as is their entitlement under the Victims’ Code).

Concluding thoughts

It is important that witnesses and complainants are kept informed and supported throughout the trial process, and that they are able to give their best evidence. However, this should not, and need not, come with such a high price for defendants. The balance has already been shifted very much in favour of the prosecution, with official rhetoric implying that being ‘for victims’ means being against defendants. This rhetoric has led to a number of significant reforms to criminal procedure and the law of evidence, including those in the Youth Justice and Criminal Evidence Act 1999 and the Criminal Justice Act 2003, some of which have arguably compromised the defendant’s right to a fair trial.

It is concerning that this rhetoric continues to gain ground and that, what are likely to be publicly popular announcements, have demonstrated little to no concern for those accused of criminal wrongdoing. Perhaps instead of making public declarations for new methods of support for complainants and witnesses (which may fail to adequately address concerns in much the same way as previous methods have), the focus should be placed on making better use of the rules and facilities already available, addressing the occupational failures and culture within the criminal justice system, and continuing to challenge outdated assumptions. If this proves to be insufficient, then the possibility of reform could be returned to, bearing in mind the implications for the defence.

As harrowing as the court experience can be for witnesses, the criminal process is about determining the guilt of the accused, whose future and liberty may be at stake. At the same time as battling misconceptions of how witnesses, particularly rape complainants, ought to behave, perceptions of an accused person’s guilt should not be created or reinforced prior to conviction.

Dr Abenaa Owusu-Bempah teaches Law of Evidence and Criminal Law at the University of Sussex.

FGM, Mandatory Reporting and the Complexity of Culture

Verona Ní Dhrisceoil
Verona Ní Drisceoil

On the 5th of December 2014 the government published a Consultation Paper seeking views on how best to introduce a mandatory reporting requirement in cases of female genital mutilation (FGM). The consultation period remained open until January 12th with submissions now under review. In this post I share some thoughts on the recommendations proposed and revisit some of the key debates and scholarship critiquing the challenge, and complexity, of culture for gender equality. Debates about culture whether through voice, symbol or practice are never clear cut. They are always complex, always nuanced and, more often than not, divisive. That complexity is most apparent in the context of FGM and was most apparent  in last week’s trial, where a doctor was found not guilty of FGM.

As readers will be aware FGM involves removing or ‘cutting’ all or part of a girl or women’s external genital organs including the area around her vagina and her clitoris. There are no health benefits to this practice. Depending on the perspective of the practicing community or group, FGM is a cultural, religious, health, sexual, aesthetic or moral practice. FGM takes place to mark the traditional rite of passage from girlhood to womanhood, to help marry a girl off, to ensure virginity and modesty or to prevent genital disease. The negative consequences of the practice are well known. It is a practice that often leaves girls and women physically and mentally scarred for life. On a global scale, the World Health Organisation estimate that more than 125 million girls and women alive today have been cut. The practice is most prevalent in Africa and the Middle East.

From an England and Wales perspective, it has recently been reported by the Health and Social Care Information Centre that there were 1,279 active cases and 467 newly identified cases of FGM in September 2014. More broadly, Equality Now and City University estimate that approximately 10,000 girls aged under 15, who have migrated to England and Wales, are likely to have undergone FGM and are living with the impact of FGM.

This Consultation Paper can be seen as the next step in a series of reform and policy proposals designed to eliminate and prevent the practice of FGM in England and Wales. In July 2014, at the Girl Summit, the Prime Minister and Deputy Prime Minister made a commitment to end FGM. The government is unequivocal that FGM is a criminal offence and an extremely harmful form of child abuse.

The Current Law on FGM

FGM has been a criminal offence in England and Wales since 1985 under the Prohibition of Female Circumcision Act. However, a loophole in that Act allowed for the taking of girls who were settled in the UK abroad to have the practice of FGM carried out. The Female Genital Mutilation Act 2003 sought to close that loophole by providing for extra territorial effect (section 4) as recommended by an All-Party stop fgmParliamentary Group on Population, Development and Reproductive Health reporting in 2000. The 2003 Act also increased the maximum penalty on conviction, on indictment, from 5 to 14 years imprisonment (Section 5).

Despite the amendment in 2003 it has remained extremely difficult to prosecute in this area. As in other jurisdictions the hidden nature of the crime and the fear of being judged as racist or being ostracised by one’s community has deterred individuals from reporting on the practice.

The Recommendations/Proposals:

In introducing the Consultation Paper Theresa May, on behalf of the government, stated that the mandatory reporting of FGM ‘will bring FGM out of the shadows and illustrate to perpetrators that they will be tracked down’ (p.3). The Consultation Paper was set out in three parts: Parts A, B and C.

In Part A the government sought views on the scope of mandatory reporting. That is, whether the duty to report should apply to ‘known’, ‘suspected’ or ‘at risk’ cases. The government proposes that mandatory reporting should only cover ‘known’ cases of FGM. A known case is one that has been visually confirmed or disclosed to a professional by the victim. (para 2.6)

The approach recommended is narrow. It differs from the approach taken in Norway, for example, where there is a duty to report on ‘suspected’ and ‘at risk’ cases as well as known cases. As identified in the Consultation Paper, ‘there are a number of risks with introducing a duty to report ‘suspected’ or ‘at risk’ cases. (para 2.4). It identified that it is extremely difficult to compile a definitive list of generic risk factors. Furthermore, introducing a mandatory reporting duty to report ‘suspected’ or ‘at risk’ cases could, it was argued, lead to a very wide interpretation of risk and as a corollary lead to certain communities being targeted. It could also lead to the system seeing a sharp increase in referrals and a disproportionate focus on FGM.

Recent research, from Lien and Schultz (2014), on ‘the risky legal framework’ of mandatory reporting in Norway draws attention to the negative implications of a wider ‘duty to avert’ approach. By drawing on one Norwegian case, where a teacher suspected that FGM had been carried out on a Somalian girl in his class, they discuss the conflict that arises between the duty to avert FGM and the law against discrimination. In that particular case it was found that FGM had not taken place and that family relations were positive and harmonious. The father of the girl then filed a complaint with the Ombudsman for Discrimination arguing that the girl was examined purely because she was from Somali. The Ombudsman found in his favour. The child welfare service appealed the decision to the Discrimination and Equality Tribunal who found in their favour. Lien and Schultz conclude that the law in Norway ‘is questionable’ both in principle and practice (p.208). They call for a reduction on the pressure on employees to report and call for greater cultural and contextual knowledge on FGM to be given to care givers. (p.208).

With regard to the reporting of ‘known’ cases in England and Wales, the government proposes that the reporting duty be applied to under 18s only (para 2.10) and on the question of who should report, the government proposes that the new duty is placed on healthcare professionals, teachers and children’s social care staff. (para 2.18)

In Part B, the government addressed the issue of sanctions for failing to report. Two options were set out including an individual being placed on a ‘barred’ list (unable to work or volunteer with children or vulnerable people) by the Disclosure and Barring Service DBS (para 3.4) or a disciplinary sanction being imposed by the relevant professional body (para 3.6). Here, the government sought particular views on what sanctions and what level of sanction should be placed on individuals who fail to report.

In considering the proposals put forward regarding sanctions and more generally the duty to report it could be argued that the measures being proposed are indicative of the government’s ‘new’ approach to fighting crime involving a shift of power from Whitehall to local communities to fight crime. Undeniably a multi-agency and targeted approach is required in an area such as this but we, as a society, need to be cognisant of the potential negative impacts of this ‘big brother’ type approach. Is it reasonable to place this level of burden to report and potential sanction on healthcare professionals, teachers and social care staff? Will the introduction of mandatory reporting in this area lead to further division and further alienation and, indeed, the essentialisation of our immigrant population? Mandatory reporting, it is argued, could lead to a reluctance by individuals to use and avail of the key services they require for fear of the consequences that it may have on family life.

Part C briefly addressed statutory guidelines. The position of the government is that statutory guidelines on FGM would be aimed at all persons who exercise public functions in relation to safeguarding. (para 4.3)

The government hope to publish a report on the submissions received sometime in 2015. For updates see here.

Some thoughts on the complexity of culture and gender equality…

As someone who researches on culture and identity rights and advocates, on the whole, for the protection of one’s culture, FGM inevitably brings forth a challenge and raises questions as to how the right to culture can, in a real and meaningful way, be reconciled with the right to gender equality? More specifically how can Article 27 of the ICCPR (protecting minority rights), Article 15 of the ICESCR (recognising rights to cultural life) be compatible with Article 5 of CEDAW? Article 5 of CEDAW provides that:

 States Parties shall take all appropriate measures:
 (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

In seeking to eliminate ‘prejudices and customary’ practices we are reminded of the work of the late Susan Okin who asked the provocative question ‘is multiculturalism bad for women?’ in 1999. She did so in the context of the consideration of practices such as FGM. Okin concluded that it was – bad for women, that is. In her view women:

 ‘…might be much better off if the culture into which they were born were either to become extinct (so as its members would become integrated into the less sexist surrounding culture) or, preferably, to be encouraged to alter itself so as to reinforce the equality of women.’ (1999:22/23)

Susan Moller Okin
Susan Moller Okin

For Okin, the multiculturalist project of protecting the rights of minority groups, often imposing ‘dangerous’ patriarchal rights, undoes the results of the feminist struggle for gender equality. I admire Okin’s work and too recognise, as with most of western society it seems, that FGM is a form of violence against women and girls and it does reflect a deep-rooted inequality between the sexes. It constitutes an extreme form of discrimination against women. The practice violates a woman’s right to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment and the right to life when the procedure results in death. When FGM is carried out on young girls it is a violation of the rights of children.

But then I ask, who am I to judge? By agreeing with Okin am I failing to challenge the false universality of so called western feminist liberalism? To agree with Okin, as noted by Siobhan Mullally further entrenches a “them and us”; the liberal and the so called illiberal. (Mullally, 2010:1)  And though this point has been made elsewhere, we must not lose sight of the ‘increasing commodification of the female body and the easy availability of cosmetic surgeries’ for the so called ‘liberated First world woman’ raising questions about the normative requirements of gender equality and the cultural context (Mullally, 2010: 2). Further still, Judge Tulkens, dissenting in Şahin v Turkey, reminds us that ‘equality and non-discrimination are subjective rights which must remain under the control of those who are entitled to benefit from them’(para 12).

Within the Consultation Paper it stated that the government is interested to hear from victims of FGM and community groups and leaders. That invitation is to be welcomed but I do wonder why, if the government sought to have a ‘full’ discussion on this why the consultation process remained open for a mere 5 weeks (see p.5). Though I appreciate that a policy drive to eliminate FGM is well intended, I do hope that the required time will be taken to consider whether mandatory reporting is a suitable next step. In this context too it is hoped that discussions are raised about projects which have sought to provide alternatives to FGM within community groups; projects that could be supported an encouraged by the government. In Kenya, for example, NGOs have worked with communities to encourage an ‘alternative rite to passage’ or circumcision through words for young girls (p.41).

We have, as noted by the brief discussion here, the opportunity to learn from elsewhere. Yes, cultural issues are complex. FGM is complex! The government needs to thread carefully and take the time that is required to develop a responsible and rational policy system and work with communities and not against them.

Irish Department of Foreign Affairs announces that the Irish Government is seeking to re-open the Ireland v UK case

Aisling O'Sullivan
Aisling O’Sullivan

 

The Irish Government announced on Wednesday 3rd December that they have decided to request the European Court of Human Rights to re-open the Ireland v UK case (1971-1978). Their decision was prompted by the grave revelations, exposed in the ‘The Torture Files’ by the RTE Investigations Unit that drew on material unearthed in the British National Archives. In the ‘The Torture Files’, the RTE Investigations Unit argued that new evidence could justify a re-visiting of the European Court of Human Rights judgment in the Ireland v United Kingdom case. The programme was broadcast on RTE on Wednesday 4th June 2014. It led to calls from Amnesty International and the Sinn Féin President Gerry Adams to request the ECHR to re-open the case. Amnesty International’s Northern Ireland Programme Director Patrick Corrigan described the evidence that the British Government misled the European Commission and Court of Human Rights during the proceedings as ‘deeply worrying’. The revelations in the Torture Files were discussed in an earlier blog post.

Since the broadcast,the RTE Investigations Unit was asked to hand over its research for the broadcast to the Law firm for the ‘Hooded Men’ and to the Irish Department of Foreign Affairs. This was to form the critical mass of research for the Irish Government’s consideration of whether to request the ECHR to re-open the case and reconsider its decision on article 3 and the five techniques. It primarily consisted of research collected from the British Archives. The timeline for this request to the ECHR ran out on Thursday 4th December. In advance of the deadline, the legal representatives of the ‘Hooded Men’ submitted an application to the Irish High Court to compel the Irish Government to make a decision. However, on Wednesday 3rd December, the Irish Government submitted that they would request to re-open the case. Minister for Foreign Affairs Charlie Flanagan stated in a press release:

The Government is aware of the suffering of the individual men and of their families, of the significance of this case, and of the weight of these allegations. The archival material which underlay the RTÉ documentary was therefore taken very seriously by the Government and was subject to thorough legal analysis and advice. On the basis of the new material uncovered, it will be contended that the ill-treatment suffered by the Hooded Men should be recognised as torture. The Government’s decision was not taken lightly. As EU partners, UK and Ireland have worked together to promote human rights in many fora and during the original case, the UK did not contest before the European Court of Human Rights that a breach of Article 3 of the European Convention of Human rights took place. The British and Irish Governments have both worked hard to build stronger more trusting relations in recent years and I believe that this relationship will now stand to us as we work through the serious matters raised by these cases which have come to light in recent months’.

Amnesty International called this ‘a triumph of justice after more than 40 years of waiting’.

 

 

Dr Aisling O’Sullivan is Lecturer in law at Sussex Law School. Dr O’Sullivan was project researcher with Professor Schabas, who was the Principal Investigator, on a project funded by the Irish Research Council for the Humanities and Social Sciences entitled ‘Ireland’s Participation in International Human Rights Law and Institutions’. The research included an investigation of Irish and British National Archives files on the Ireland v UK case. The research, which was undertaken at the Irish Centre for Human Rights, was used by RTE in preparation of ‘The Torture Files’. This contribution is cross posted with permission from the Human Rights Doctorate Blog.

The Neo-Liberal NHS: What’s wrong about paying GPs for a diagnosis?

Amir Paz-Fuchs
Amir Paz-Fuchs

The medical community is in uproar since the NHS announced, on 21 October 2014, a new plan to offer GPs £55 each time they diagnose dementia in a patient. Justifying the plan, Dr Martin McShane, NHS England’s clinical lead for long-term conditions, explained that while it is not perfect, the plan was put in place because, at 53%, England’s diagnosis rate of dementia is well below comparable standards. For example, Scotland has a 70% diagnosis rate. NHS England’s plan is to reach a 66% diagnosis rate by April 2015, and the plan was put in place as a means to emphasise the importance of the new target.

Speaking on BBC Breakfast, Dr Brian Hope explained that GPs like himself were already receiving incentive payments, as in the case of diagnosing patients with diabetes or asthma. Therefore, he argued, this incentive scheme would simply be an extension of current practice. He further argued that the additional money received from the government in such cases assists GPs in the extra work needed to offer patients the long term care that they require.

The incentive plan, however, was not well received. On the polite side of the spectrum, Dementia UK queried if GPs ‘really need financial incentives’. One GP accused government  of ‘bullying the doctor-patient relationship’ and ‘crossing a line that has never been crossed before’. The Patients Association acknowledged that GPs receive incentives for some treatments, but found this plan to be ‘a step too far’, ‘a distortion of good medical practice’ and even ‘putting a bounty on the head of certain patients’.

I’m not quite sure how the plan is a bounty on anyone’s head, unless the implication is that GPs will misdiagnose dementia to get an extra £55 (pre-tax) and take on more work and responsibility for the patient. I doubt that this will be the case.

And yet, I align myself with those who think that the scheme is a bad idea and that, indeed, it distorts the doctor-patient relationship. Why is that the case? It is important to distinguish this type of incentive from the existing schemes. As Dr Hope himself explained in the interview, the complex contractual structure of the relations among government-NHS-GPs almost requires some compensation where a diagnosis of high blood pressure, asthma or diabetes is made. The extra work involved may require additional treatment, hiring more nurses, more tests and administrative work, and so on. As most GP practices are, in essence, small businesses compensated by the government for the work, the last thing we would want is under diagnosis of these conditions because treating them properly would lead to a loss. Furthermore, these conditions are assessed and documented objectively, through blood tests and the like. The monetary payment is, therefore, again, strictly compensation for the work, and was never treated as ‘incentives’ to do the work that GPs are expected to do, and indeed do.

In contrast, the dementia plan is billed as an ‘incentive scheme’, designed to achieve government ‘targets’. As such, it is a product of two sad signs of our times: managerial laziness and the infiltration of the neoliberal paradigm into public services.

Money ain't for nothing
Money ain’t for nothing

A good manager decides on policy, aims and, yes, even targets, and knows how to motivate her subordinates to achieve them. She will explain the importance of these aims, offer training sessions, educate, distribute material and, generally, will manage to motivate them to understand the bigger picture, and to accept the goals as their own. The lazy manager will dock pay or give miniscule bonuses.  She will view her subordinates as homo economicus, rational, self-interested actors who can be easily shifted from one life to another simply by changing the financial motivations. Despite being discredited by scholars such as Dan Ariely, and Amos Tversky and (Noble Prize winner) Daniel Kahenman, the ‘rational’ model lives on and serves as the platform on which rests the neoliberal paradigm.

And so, with this new scheme, the neoliberal approach has conquered another stronghold. The NHS, like any public service, always had to take into account monetary concerns. And, as noted, schemes are already in place to compensate doctors for expensive treatment. And yet, inserting money into diagnosis suggests infiltrating a sphere that managed, to date, to exclude monetary concerns. The danger, then, is not in the ‘perverse incentives’ or the fear that GPs will intentionally misdiagnose. It is that, with the introduction of money into an area that was ‘taboo’ in that respect, the general orientation of the profession will change. Fiscal incentives will ‘crowd out morality’ and the ideology of self-interest will be self-fulfilling.

A small example, well-known to some (as it was popularized in Freakonomics), may be helpful to explain this point. A day care centre manager in Israel was frustrated by parents being late to pick up their kids. She decided to fine the tardy parents. After the fine was enacted, the number of late pickups went …up. The explanation: people viewed the ‘fine’ as a cost, and now were happy to pay £2 and stay a while longer at work. Moral condemnation was ‘crowded out’, as parents could respond: I paid my fine, what do you want from me? Moreover, after the fine was withdrawn, the situation remained the same. The parents treated the situation as devoid of moral attributions, but now even without the fine. Morality was crowded out for good.

Back to the NHS and the dementia scheme. To refer to Michael Walzer’s seminal work, the NHS, as social services in general, and public services even more generally, are ‘spheres’ that are different from the commercial one. And as Robin West notes in a brilliant and moving essay, ‘although we are emphatically competent, that can surely change. We can surely become the person posited as the economic man. … We can become incapable of empathy. We can become hardened to others. … But we do not have to.’

Amir Paz-Fuchs is a Senior Lecturer at the University of Sussex School of Law.