Stephens: Not much jeopardy in lawyers breaching the rules
Survivors of sexual and gender-based violence (SGBV) in the UK should get legal aid to defend themselves against SLAPPs (strategic lawsuits against public participation), a report has argued.
Index on Censorship said SLAPPs had been “primarily associated” with other forms of public participation such as investigative journalism, but survivors of SGBV were subjected to similar “legal harassment – often with profound consequences” in a bid to stop them speaking out.
It quoted from the Solicitors Regulation Authority (SRA) warning notice on SLAPPs, issued in 2022 and updated in 2024, which said that “legal representation must not become intimidatory through the use of heavy-handed tactics that are oppressive or abusive.”
However, the report said codes of conduct were “redundant unless regulators actively enforce them” and as long as regulators “turn a blind eye to the unethical behaviour of some solicitors, matters of genuine public interest, such as SGBV, will continue to be suppressed”.
Well-known solicitor Mark Stephens, consultant at Howard Kennedy, said in the report: “There’s not much jeopardy for breaching the professional guidelines. You might get a call from them [the SRA], but ultimately they’re not going to do anything with it.
“They are not prepared to make the hard yards to find someone guilty.”
The report, From Survivor to Defendant: How the law is being weaponised to silence victims of sexual violence, produced in partnership with the UK Anti-SLAPP coalition, that survivors “must be able to speak about their experiences” without fear of retribution.
“The threat of costly damages can be alarming and the sheer expense of defending a legal action is often prohibitively high in itself. The costs can be particularly daunting for lower-income individuals, who are disproportionately affected by SGBV.”
Scotland was the only jurisdiction in the UK where legal aid was available for defending a defamation claim.
However, the Scottish Legal Aid Board had revealed that in the seven years until 2023, only five applications for civil legal aid for a defendant in a defamation case had been granted funding. The total value of payments made was just over £2,000.
The European Court of Human Rights had ruled that the “blanket exclusion” of defamation cases from civil legal aid in England and Wales, and Northern Ireland, breached article 6 of the European Convention on Human Rights (right to a fair trial).
Although it might be possible in England and Wales to get legal aid for cases, including defamation, through exceptional case funding if human rights were at risk, it was “difficult to secure”.
In response to an Index on Censorship freedom of information request asking how many people had secured legal aid for defamation in this way, the Home Office said it could not provide a figure, stating that such applications were not captured by the Legal Aid Agency.
Survivors found themselves trapped in a system that not only failed to protect them, but “actively enables abusers to harass and silence them”.
In England and Wales, the Economic Crime and Corporate Transparency Act (ECCTA) introduced “some limited anti-SLAPP provisions” when it was brought into law in late 2023.
However, those provisions only applied to claims relating to economic crime and provided no protection to those speaking out on other matters in the public interest, such as SGBV.
Index on Censorship recommended that legal services regulators develop guidance for legal professionals on how to identify SLAPPs and adopt and promote anti-SLAPP warning notices, similar to those issued by the SRA.
They should prioritise investigation of complaints involving” abusive legal tactics, such as threatening, misleading, or oppressive legal communications”.
Where evidence of complicity in SLAPPs was found, they “must pursue meaningful sanctions to hold individuals and firms accountable”.
Regulators should proactively “monitor complaints that exhibit the hallmarks of SLAPPs or legal intimidation, paying particular attention to those involving SGBV survivors”.
They should also develop training for legal professionals on their ethical responsibilities in the context of SLAPPs, with particular attention to cases involving SGBV survivors, and make it a compulsory part of continuing professional development.
The report recommended that law firms “establish and uphold publicly available commitments to maintaining high ethical standards when initiating or threatening legal action”.
This included giving “due consideration to the recipient – particularly when communicating with individuals (rather than legal professionals), who may already be coping with trauma if they have made allegations of SGBV”.
It added: “Lawyers should avoid the use of language or tactics that could intentionally or otherwise be perceived to intimidate or harass those who are the subject of their communications.”
Baroness Helena Kennedy KC commented in her foreword to the report: “The cost of failing to take action against SLAPPs falls not only on those directly targeted, but also on survivors silenced by fear, on the public denied access to vital information, and on our justice systems undermined and discredited when manipulated in this way.”
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