Archive for May, 2006

Positive Discrimination – Collected Material

Monday, May 22nd, 2006
Positive Action is one taken by an organisation seeking to promote applications for requirement from certain under-represented sectors of society, e.g. ethnic minorities, OR when a when a company actively encourages sections of its workforce, perhaps women, to attend training courses and seek promotions to positions in which they are under-represented. Such position action is lawful as long as the actual selection is made on merit and not on the basis of sex origin.
 
However, restricting applications for a particular job to women only because women may be under-represented in that position or at that level, this is generally not lawful, discrimination in favour of one sex or any particular ethnic group will amount to discriminating against the other sex or other ethnic groups, which is contrary to SDA and the RRA.
 
Article 2(4) of the Equal Treatment Directive allows for the introduction of measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities.
 
(Allowed to a limited extent, only in relation to training, Employers or training bodies may offer training to one sex only, or one racial group in order to equip them for a job if no one , or very few ,of that sex or group have been doing that work in the previous 12 months. SDA 47-48, RRA 37-38.
 
Under the UK law, any other form of positive discrimination is unlawful, discrimination in favour of women, or one racial group is simply discrimination against men or other racial groups. It was held to be illegal for the labour party to insist upon all-women shortlists. Jepson v Labour Party [2006].
 
However, the situation under the EC law is different. Under section 2(4) of the Equal Treatment Direction, it is permitted to make measures designed to remove existing inequalities which affect women’s opportunities, but it as held in Kalake v Breman (1995), that it did not cover a situation where a state provided for a female candidate automatically o be preferred over an equally qualified male candidate whenever women were under-represented in the particular employment grade.)
 
*Gwyneth Pitt.
 
Two cases examined positive discrimination,
(1) Kalanke v Breman [1995]
A rule which automatically gave priority to an equally qualified woman of a position in which women were under represented was contrary to the Equal Treatment Directive and would not fall within Art 2(4) of the directive.
 
(2)Marschall v Land Nordrhein-Westfalen (1998)
The court took a different approach this time, it said that such a rule will not breach the Equal Treatment Directive if there was a guarantee that all candidates will be subject to an objective assessment which takes into account all the factors specific to the individual candidate, and the criteria used in the assessment are not themselves discriminatory.
 
Marschall reflects a wider current European view that some positive discrimination in certain circumstances may not be harmful.
 
Affirmative action denotes the deliberate use of race or gender conscious criteria for the specific purpose of benefiting a group which has previously been disadvantaged on the grounds of race or gender. The aims of this action is to provide a specific remedy for individuals discrimination as it could require that individual members of the disadvantaged group to be actively preferred over others in the allocation of jobs, etc. It should be noted though that the allocation of individuals from under-represented groups does not lead to the improvement of the group as a whole.
 
Theoretical debates
There are three points of view:
  1. Symmetrical – which rejects reverse discrimination.
  2. Substantive – which supports it.
  3. Equal Opportunities – uses arguments from both to allow positive discrimination with limits.
Symmetrical
The moral prohibition against using sex or race as a criterion for decision making applies with equal strength regardless of whether it is directed against or in favour of a disadvantaged group. This argument rejects the idea of having a debtor or a credit race and justifies the rejection of PD by state neutrality.
 
Three basic propositions:
  1. Justice is characterised as a prior concept, which is unaffected by history or political principle of unjustifiable discrimination which applies both ways.
  2. The symmetrical model asserts the primacy of the individual. This has two dimensions: Merit and Fault. Each person should be treated on his/her own characteristics and no one should be responsible for other faults. The concept of affirmative action contravenes both of these.
  3. The Symmetrical approach assumes that the state is neutral as between citizens favouring no one above any other.
Substantive
(Challenges earlier points)
  1. Formal justice substitutes the ideal for reality. It is impossible to deny effects of discrimination on ethnic minorities. Based on openly substantive and distributive notion of justice.
  2. Misleading the aspirations of individualism – insists that fairness takes into account the extent to which opportunities are determined by indirect social and historical status.Merit-based process systematically excludes black people or women. Fault is seen to be flawed? Discrimination is not merely a result of personal fault, it is deeply embed in the structure of society, all members of the privileged class share the duty?? – Fulilone V Klantznick
  3. The substantive approach challenges the possibility of an neutral state. The state has a duty to act positively to correct results of discrimination.
Equal Opportunities
Rejects a purely formal view of justice, recognises certain distributive factors needed to be considered. True equality could not achieved if individuals begin the race from different standing points.
This process at its narrowest form suggests the removal of specific obstacles which inappropriately restrict or discourage participation by women or minority groups in certain jobs or positions. (May have some implications, but still doesn’t cure the problem, what can unqualified people do? – outreaching procedures does not guarantee results.)
 
The ECJ held in the case of Lommers v minister van Landbouw, that a policy by which an employer provided female employees only with access to nursery places for their children did not breach the Equal Treatment Directive.
 
There was one place for every 20 women and the policy was adopted in response to under-representation of women in the Ministry – 2,791 out of 11,251. Mr Lonners asked the Minister to reserve a nursery place for his as yet unborn child, but his request was rejected on the ground that children of male staff could only be given places in an emergency.
 
(? Whilst a measure which excluded male officials who take care of their children themselves from access to a subsidised nursery scheme would be beyond the derogation allowed by rt 2(4) that would not be the case if male employees who took care of children by themselves are allowed access to the nursery places scheme on the same conditions as female employees.)
 
Account had to be taken of the fact that the number of nursery places was limited and that there were waiting lists for female employees to obtain a place. Moreover the scheme did not deprive male employees of all access to nursery places for their children, since such places were accessible on the market.
 
The court then went on to find why it was not disproportionate – because men could get nursery places on the open market, because the scheme did not totally exclude men and because of the large difference in the numbers of men and women employed by the Ministry.
 
Kerry Underwood
 
Affirmative action in the university of Michigan. Grutter v Bollinger and Gratz v Bollinger. Grutter did not contravene the constitution because it looked at different elements on individual basis while Gratz, which was held to be unconstitutional, gave automatic 20 points to any applicant for being from an ethnic minority.
 
In Grutter v Bollinger, the court upheld use of a system of racial preference by the university of Michigan law school which permitted applicants with lower school admissions test scores and GPA to be admitted over non-minority candidates based on the notion that diversity is a compelling governmental interest. In Grantz v Bollinger the court struck down the university’s undergraduate admissions process, which used a point system that allocated 20 points based on race of ethnicity, on the basis that it was not sufficiently narrowly tailored to achieve its goal.
 
In California v Bakke, the court invalidated a medical school admissions programme that reserved 16 out of 100 places for disadvantaged minority students. The court said that ‘preferring members of any one group for no reason other than race or ethnic origin is dissemination for its own sake and is forbidden by the constitution. The court also said that the contribution of diversity to a university is substantial but that ethnic diversity is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. (The court endorsed the view that student body diversity is a compelling state interest that can justify the use of a race in university admissions.
 
Criticisms of Grutter:
  1. The university’s practice could amount to experimenting on other people’s children.
  2. Preferential treatment could produce attitudes of inferiority among the alleged beneficiaries of preference, as well as attitudes of hostility among those who are disfavoured by such programmes.
  3. Fear of whether in government, industry or academic, all blacks, because of the stigma associated with skin colour having played a part in their advancement, will be tarred as undeserving.
The school in Grutter denied that their interest in affirmative action was in assuring within its student body some specified percentage of a particular group merely because of its race or national origin or in selecting minority students because they express some characteristic minority viewpoint on any issue. The court allowed the process on the basis of the law school’s claim that its admission programme was flexible enough to assure that each applicant is evaluation as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The majority’s confidence in the law school’s programme seems less driven by what the officials did than by what they did not do – not awarding ‘mechanical, predetermined diversity bonuses based on race or ethnicity.
 
Affirmative Action – Wikipedia
AA is a corrective measure for past governmental and social injustices against demographic groups that have been subjected to prejudice. Such groups are categorised by race, gender or ethnicity. AA seeks to increase the representation of these demographic groups in the fields of education and work in which they have traditionally been underrepresented. The main argument for this action is that absolute equality will not be sufficient to change the situation for several reasons including:
  1. Discrimination practices of the past preclude the acquisition of ‘merit’ by limiting access to educational opportunities and job experiences.
  2. Apparent measures of ‘merit’ may well be biased toward the same groups who are already empowered.
  3. Regardless of over principles, people in power are likely to hire people they already know and/or people from a similar background.
Counter arguments:
  1. Demeaning racism, AA wrongly sends the message to minorities that they are not capable enough to be considered on their own merits.
  2. Cultural differences, such as the hip hop culture, could be the reason that have prevented groups such as blacks from achieving the same economic opportunity as whites. This means that the minority should be responsible for eliminating any economic disparity between the races.
  3. Disadvantaging working class non-minority, AA could encourage socioeconomic discrimination in favour of middle class members of minority groups over better qualified but working class members of the majority group, since such programs do not consider socioeconomic classes.
Criticisms by Sowell
  1. They encourage non-preferred groups to designate themselves as members of preferred groups to take advantage of group preference policies.
  2. They tend to benefit the most fortunate among the preferred group (eg black millionaires, often to the detriment of the least fortunate among the non-preferred group (poor whites).
  3. They reduce the incentive of both the preferred and non-preferred groups to perform their best as they both know they wouldn’t be judged on their merit.

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Johnson v Unisys – Wrongful dismissal & Mutual Trust

Sunday, May 14th, 2006

The contract of employment implies a set of terms through common law, a major contractual term is the duty of mutual trust and confidence between the employer and the employee. The breach of this duty has generated a great debate and confusion on when an employee could claim compesation for the breach of this duty on the event of wrongful dismissal.

The case of Malik v BCCI is a significant case on this matter. In this case, the employee suffered the famous ‘Stigma Damage’, which took effect as a difficulty for the dismissed employee in finding new employment because of the stigma of the bad reputation of the ex-employer attached to the employee. The collapse of the international bank and the later exposure of the corruption of the management that lead to its collapse made it extremely difficult for ex-employees to find new employment. The court in this case awarded compensation for the ‘stigma damages’ suffered by the employees on the basis the suffering of the employees after the dismissal was caused by the breach of the employer’s duty for trust and confidence owed to the employees.

The case of Johnson v Unisys was held to be a limitation to when the employee could seek damages for the breach of the duty of mutual trust and confidence. In this case, the employee, after successful claiming UD compensation, was not allowed to get compensation for the damage he suffered because of the manner at which the employer dismissed him, even though it could that manner could have been said to be a breach of the duty of trust and confidence.

The court said in this case that the employee should be not be compesation for a breach of that duty at the time of dismissal, simply because the Parliament provided a remedy for that situation through UD and awarding compensation for the matter here could lead to double compensation.

This reasoning could be questioned on the basis that this leaves the employee uncompensated for things such as psychiatric damages as the compensation for UD is capped, and seems to suggest the employer could escape liability for a breach of a duty by simply dismissing the employee.

The court’s later attempt to define the boundries of the Johnson exception was in the case of Eastwood v Magnox plc, where it stated that the exception does not cover only the moment and/or act of termination, but also the events leading up to it. However, the court’s later decision in the case of McCabe restricted this exclusion as it started that the exclusion only applied to the moment/act of termination.

The court has suggested that the exclusion will not apply to an ‘independent and antecedent’ cause of action.

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Public Interest Disclosure Act 1998 (DIPA)

Thursday, May 11th, 2006
Common law would rarely protect disclosure on public interest, except in criminal cases where no confidentially would be granted on disclosures on inequity. Example: Initial Services Ltd v Putterill – Disclosure about money laundering was not considered as a breach of the duty of fidelity. The defence under common law is limited in scope as it does not provide protection for whistle blowers of unethical behaviour. This is limited to a greater extent by possible conflict with contractual obligations, which usually prevail, as in the case of doctors and nursers who are bound by professional obligations to maintain patient confidentiality.
 
Disclosure of information during employment could lead to discipline or dismissal as it could constitute a breach of the duty of mutual trust and confidence. Example: Camelot Group Plc v Centaur Communications Ltd, the newspaper got leaked information, the employer tried using section of the Contempt of Court Act, and the court granted the employer a disclosure order as the employee was ought to be disciplined as the leaked info was not a case of disclosing inequity and the newspaper only wanted to get the scoop.
 
Due to the failure of the common law protection, specific legal protection was granted by the Public Interest Disclosure Act 998 as long as the disclosure is a ‘protected disclosure’. For a disclosure to be protected it must be of the subject matter of a certain kind and must be made in a particular way. The subject matter must be made on the reasonable belief of the worker that one of the following occurred, is occurring, or is about to occur.
  1. Commission of a criminal offence,
  2. failure of a person to comply with a legal obligation
  3. occurrence of miscarriage of justice
  4. endangerment of a person’s heath and safety
  5. damage to environment
  6. concealment of anything above.
The mode disclosure:
It will most likely to be protected if made internally, i.e. to the worker’s employer or a person to whom the employer has authorised this type of disclosure or any regulatory body.
 
An external disclosure will only be protected under very limited conditions:
  1. The employee reasonable believes info disclosed is substantially true.
  2. disclosure is not made for personal gain
  3. info concern the conduct of ‘an exceptionally serious nature’.
  4. in all circumstances, it was reasonable for the employee to make the disclosure.
  5. it was made in good faith
  6. if the conduct is not of an exceptionally serious nature, the worker must show, in addition to all the stuff above, that it he would’ve been subjected to a detriment if he disclosed internally, or that evidence would’ve been concealed, or that he previously made an internal disclosure and nothing was done.
The reasonableness of the disclosure would depend on factor such as the identity of the person disclosed to, the seriousness of the matter, the actions previously taken by the employer in response, and whether the employee complied with an existing disclosure procedure.
 
The remedies available to the employee is that he can make a complaint to the employment tribunal about any detriment he is subjected to because of the disclosure, dismissal on because of the disclosure is automatically unfair, and any term precluding a worker from making a protected disclosure would be held to void.

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Transfer of Undertakings

Wednesday, May 10th, 2006

The process of selling a business would usually terminate the contract of the employment between the employer and the employees under common law. Statute has intervened to protect employees from this fate through the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 1981 – which was recently updated by the TUPE 2006.

The regulations only apply to a relevant transfer of an undertaking. An ‘undertaking’ is not defined, but the regulations state that it includes any trade or business. Caselaw (Dr Sophie v Bartol) established that even non-commercial organisations would fall within the scope of the regs.

The main difficulty in using the regulations would be in showing that the transaction in question is a ‘relevant transfer’

Under TUPE 06 Reg (4)(1), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have the effect after the transfer as if originally made between the person so employed and the transferee.

(4)(2)(a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee.

This means that the contracts of employment of all the employees are automatically transferred to the transferee on the same terms and conditions. If the employee objects to have his contract being transferred he can refuse to transfer so that his contract is terminated, but this will not be considered as a dismissal [Reg (4)(8)]. However, if the transfer has a significant or a detrimental change, then the employee can refuse to move and would be able to claim unfair dismissal by establishing constructive dismissal.

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Mira Craig – Mira Mira

Sunday, May 7th, 2006

Mira Craig is a half Norwegian half American, half white half black model, singer, songwriter and producer. Her debut album came out last earlier this year only in a limited number of Eurpean countries due to the fact that she personally produced her album via her owned production company ‘Homemade’. Mira was previously featured on Snoop Dogg’s track ‘Sisters and Brothers’ and had a duet with Wyclef Jean.

Mira’s album is so fresh, I’ve heard people label her voice as a mixture of Pink and Amerie, while I thought at some instances that she sounded so much like Sean Paul – in a good way. Mira’s voice can go so deep and then just switch to high tones. I couldn’t come up with a better description of Mira’s music than the one I found at MIC Norway:

one comes to see that her newly released debut record Mira Mira, is more than just a collection of songs aimed at dance floors, even if that is its immediate intention. It is, in fact, a statement incorporating her whole background and with an overall guiding theme. Her songs vary greatly and the record constitutes a mix so diverse it is evident that there lies careful consideration behind her blends, contrasts, themes and breaks. –It is not simply the result of diverse musical influences that actually come together in a person, but rather a conscious attention towards creating a composite entirety. The record incorporates American, Caribbean and African beats, elements of Japanese, and not least Norwegian, traditional folk music, as well as other disparate ingredients.


What I thought is awesome in Mira Mira is how each song could be interpreted to have its own storyline and universe. I am so obsessed with Mira Craig, I hope it doesn’t take long until she gets a contract with an international record label.

1. Intro
2. Boogeyman
3. Who Make Yuh
4. Someofdathomemadepie
5. Trouble
6. Huldra 1
7. More Fire
8. Headhunted
9. Snake Charmer
10. Huldra 2
11. Dinner In Bed
12. Dizzy
13. Dizzy Outro
14. Devotion
15. Outro

Official Website.

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Tarkan – Come Closer

Sunday, May 7th, 2006

Tarkan is the most successful pop star in Turkey. He became a worldwide icon upon the international release of his self-titled album in 1999. His hit ‘Sikidim’ (Kiss Kiss) was covered by more than 10 international artists in many languages including Arabic, English, Spanish, Japanese and many more.

Tarkan released his first English album last month in some parts of Europe, the album features 14 new tracks and a new English version of the hit ‘Shikidim’. Tarkan’s English album is a mixture of mainstream pop and Turkish music, a lot of tracks sound very catchy, such as Shhh, Bounce (the first single), In Your Eyes, and Why Don’t We (Aman Aman) featuring Wyclef Jean. The music of ‘Come Closer’ sounds really awesome, it just the right mix of oriental instruments with a hint of urban production.

What I do not like about Come Closer is that it is way too ‘mainstream’, Tarkan’s English is perfect and his album does not really seem to reflect anything about the Turkish culture, I had to compare this to international artists such as Shakira and Utada that made English albums that sounded so fresh lyrically and in terms of themes, unlike Tarkan’s English album which talks about nothing but him and his girl playin’ games. There are some songs in this album that song so random and shallow as if it were taken from a boys band album, while his other actual Turkish songs sound so much better and the translations of the lyrics of these songs are really amazing. I do not hate Come Closer, but I would have liked something more creative, but I guess that he had to sound more stream to sell.

1. Just Like That
2. In Your Eyes
3. Why Don’t We (Aman Aman) (featuring Wyclef Jean)
4. Mine
5. Over
6. Start The Fire
7. Shhh (I Wanna Hear Love Speak)
8. Bounce
9. Come Closer
10. Don’t Leave Me Alone
11. Shikidim
12. I’m Gonna Make U Feel Good
13. Mass Confusion
14. Touch
15. If Only You Knew

(PS. You can check Tarkan DeLuxe – the greatest blog about Tarkan. :P )

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Contract of Employment – Restrictive Covenants

Saturday, May 6th, 2006
Restrictive covenants (RC) are used by the emplo9yers to protect themselves against damaging competition and misuse of confidential information by ex-employees. In employment cases the court attempts to essentially hold the ring between the interest of the employee to be employed in the future as he wishes and the employer’s interest to preserve his business from disclosure by an ex-employee. Thus, RC must not go further than reasonable for the protection of the employer’s business interests. The employee is entitled to use to the full any personal skill or experience even if this has been acquired in the service of his employer.
 
The courts have been restrictive in their interpretation. WAC Ltd v Whillock (1990), the clause prohibiting from carrying on a business in competition did not prevent the employee from acting as a director or an employee of a competing company.
 
If the employee is wrongfully dismissed, this will render the restrictive convent unenforceable even though it is reasonable. (Briggs v Oates).
 
Different considerations may apply depending on the nature of the RC. For example, a clause not to employee the employer’s ex-employees is less restrictive than a clause not to compete.)
 
To be upheld by the courts, a reasonable RC will normally prevent the employee from soliciting former customers rather than stopping the employee from working at all, unless there are good reasons for doing so. However, it was not unreasonable in Dentmaster UK Ltd v Kent to prevent the solicitation of customrs with whom the the employee had no recent connection.
 
Area of Restraint
If restricted from operating within a particular geographical area, the area must be reasonable. A worldwide restrain may be valid only where the employer’s business is of a similar extent. (Nordenfelt v Maxim Nordenfelt Guns and Ammunition Ltd (1894)).
 
Whether the particular area is valid will depend on the size of the area and its relationship with the employer’s trade or professional connections. In Greer v Sketchey Ltd (1979) the employee was employed for 20 years by D whose branches covered Midlands and London areas. The employee was responsible for the Midlands, but the contract provided that he must not within 12 months of its termination directly or indirectly engage in the UK in any similar business. The court said that this was too wide since he had responsibilty for only a part of that area.
 
However, in the case of Littlewoods Organisation Ltd v Harris (1997) a nationwide RC was held to be reasonable since it was the only way to protect the respondents mail order business when the ex employee went to work for thier direct national competitor.
 
The court will refuse to whittle down RCs which are too wide merely so as to make them enforceable. (J A Mont (UK) v Ltd Mills (1993)). The courts may sever a part of the restraint and uphold the rest of it only if the severed pats are independent of one another and can be severed without the severance affecting the meaning of the part remaining. (Blue Pencil Approach)
 
Restraint In the Public Interest
RCs generally must be in the public interest to be enforceable, this depends on the exercise of the judges’ discretion in each case. In Greig v Insole (1978) restraint on cricket players could be enforced because it would deprive the public from watching first class cricket players.
 
Where the case is to be held to be unenforceable on the grounds of public policy, it may be that the employee remains entitled to rely upon the contract as long as the unenforceable provision does not through removal necessitate modification to what remains.
 
Injunctions
RCs are normally enforced by injunctions, but the court will not grant an injunction where the effect is to compel the employee to go back to work for the employer.
 
Where an interim junction is sought, the principle is laid in the case of American Cyanamid v Ethicon Ltd (1975). For a claimant to obtain an junction, he will have to show that there is an arguable case and that damages would not be an adequate remedy. An RC case where this was applied is Lawrence David Ltd v Ashton (1989).
 
Garden Leave
GL injunction is not available unless the employer has a contractual right to send the worker home without providing him work to do. (William Hill Organisation v Tucker).
 
The courts will not allow an injunction which keeps an employee out of his profession for a period which is unreasonably long, or where the employee takes up a post which is not directly competitive with his employer. ( Symbian Ltd v Christensen)
 
The injunction granted should not go beyond that absolutely necessary to protect the employer’s situation. In GFI Group Inc v Eagleston the injunction was granted for 13 week GL when the contract has a 20 week requirements for the notice.
 
The issue will also be affected by the whether the employee’s skill would deteriorate or whether there was a general right to work.

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Protection of Journalists’ Sources (Section 10 of the Contempt of Court Protection)

Thursday, May 4th, 2006

The court will weigh the public interest in maintaining the confidentiality of journalistic sources against the general interest of the administration of justice. Recent caselaw leans towards disclosure though. The Press Complaints Commission Code of Practice states that journalists have a moral obligation to protect confidential sources of information. There are two main methods at which the disclosure of journalist material is regulated, the Contempt of Court Act and the Police and Criminal Evidence Act 1984.

Contempt of Court Act
Section 10 of the contempt of court act 1981 offers protection to the media’s sources subject to 3 specific exceptions.

Section 10: No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of info contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary (1) in the interest of justice, or (2) national security or (3) for the prevention of disorder or crime.

Person seeking the protection of section 10 must show that the balance of probabilities is such that the identity of his source will be revealed if he complies with the order being sought. It is not sufficient to show that disclosure is the easiest way of pinpointing the leak, the test is one of necessity and not of convenience or expediency, this does not mean that ALL other lines of enquiry must first be exhausted.

It will be considered whether or not the plaintiff has made any attempts to discover the source of a leak other that by applying to the court (Broadmoor Hospital v Hyde (1994))

A bare assertion of ‘necessity’ will not suffice, it must be proved by evidence on the balance of probabilities. The court will undertake a balancing exercise, weighting one public interest (maintaining the confidentiality of the J sources) against another (one of the three exception to s10).

Scope of s10. The section applies where the info is contained in a publication. This is defined to include any speech, writing, broadcast, cable programme, or other communication in whatsoever form, which is addressed to the public at large or any section of the public. This technically extends to protect any info communicated and received for the purpose of publication.

The Exceptions to Section 10
(1) The interest of justice: Guardian (1985), the expression justice was held not to be the opposite of ‘injustice’. The interests of justice demand that people should be able to exercise important legal rights and to protect themselves from serious wrongs, whether or not legal proceedings in a court of law will be necessary to attain these objectives.

Goodwin case, new journalist working at The Engineering received phone call about confidential information that could severely damage a company. The company got an injunction and then sought to have disclosure as well. In deciding whether or not the threshold of necessity has been reached, the judge must wight the importance of enabling the ends of justice be attained in the circumstances of the particular case against the importance of protecting the source.

This balancing exercise should take account of:

  1. The degree of confidentiality attaching to the information
  2. The seriousness of the consequences of any actual or further apprehended breach
  3. The degree of true public interest in what might be disclosed in terms of the revelation of inequity

The HL held that another important consideration was the manner at which the source had obtained the information, if obtained illegally this would diminish the importance of protecting him, unless there was a clear public interest in publication.

In Goodwin, the court found no evidence of inequity or misconduct on the part of the claimant, the it was necessary for the source to be revealed so that the company could take steps to deal with the menace that he represented for its business activities, the balance came down in favour of disclosure. (What about ECHR, Article 10 breach, didn’t work?).

2. National Security
Secretary of State for Defence v Guardian Newspapers Ltd [1985]
Photocopy of a secret ministry of defence document on cruise missile which was supplied to the Guardian by a ‘mole’ and which was published. C sought to disclose the source of the articles and the return of the documents which had markings that would identify the source. The claimant argued that disclosure was necessary in the interest of national security and got it. HL said that expediency, however great, is not enough, and that section 10 requires actual necessity to be established. Necessity fulfilled because of the possibility that the mole might leak other, more serious, documents in the future.

3. Prevention of Crime
Warner’s case [1988], the prevention of crime was broadly interpreted in this case. It was not required to establish a particular identifiable crime which would be prevent if disclosure is necessary for the prevention of crime in general. This case involved insider dealings, and it was sufficient that there were definite grounds for expecting to find material of real importance to the party seeking disclosure. OR that non-disclosure was likely substantially to impede the inspectors in their inquiries.

X v Y [1988] Someone disclosed the names of AIDS patients and the hospital sought disclosure on grounds for preventing doctor corruption. The court said that this was too vague as there was not enough evidence that C had done everything to identify the leak themselves.

In extreme cases a J might not be compelled to reveal his sources even when it had been established that their identification is necessary for the prevention of crime when the crime is too trivial or when J’s life might be imperilled.

The leaked documents could be destroyed before the initiation of legal proceedings and this will not be contempt, but the owner would still have a civil claim for damages in respect of lost property.

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Contempt of Court

Wednesday, May 3rd, 2006
The law of the contempt of court refers to the court’s ability to punish any person who interferes, in any way, with the proper functioning of the court system. The punishment could be a fine or even an imprisonment, and is a real danger for journalists and the media when reporting current affairs. The main form of contempt is the publication of information which is likely to adversely affect (or prejudice) a fair trial.
 
There are two offences of contempt, the first is the statute based offence under the Contempt of Court Act 1981 which does not require any proof of intention to prejudice (strict liability offence). The second form is the old common law offence which requires the prosecution to prove (beyond reasonable doubt) intention on the part of the defendant to prejudice a fair trial.
 
Strict Liability Contempt
No intention is required, but must prove instead:
1- That there is a publication (writing, broadcast, or any other form) addressed to the public or a section of the public which creates a substantial risk that could seriously impede or prejudice the course of justice in a particular legal proceeding.
 
2- That the proceedings were active.
 
Substantial Risk of Serious Prejudice
The prosecution must prove (1) that the risk to a fair trial is substantial, and (2) that the effect of publication would be a serious impediment or prejudice. The risk will depend on the type of the court that is to hear the proceedings, the Crown Court is the most common because of the jury, it is considered that a judge who is greatly experience in determining matters on the evidence  before him or her alone, it is impervious to material publishing by the media.
 
The risk must be practical, not merely theoretical, so each case must be examined on its own facts. eg Attorney General v Guaradian [1992], the question will NOT depend on the type of publication (eg national newspaper), but will depend on the statement and whether it will create a substantial risk.
 
The offence will be committed whether or not prejudice took place as long as a risk (which is substantial) was created. The meaning of substantial was examined in the case of MGN Pension Trustees Ltd v Bank of American National Trust [1995] , ‘substantial’ does not mean ‘weighty’ but ‘not insubstantial’ and is assessed at the time of publication.
 
Three factors are taken in regard when deciding if the risk of publication is substantial.
  1. The type of the court hearing the case: Juries are more likely to be swayed by what they hear. (Juries do criminal trials and defamation).
  2. The circulation of the publication and its relation to the location of the course and the corresponding area. the risk will be less likely for example where a local Guildford Newspaper carries a report that a man charged is to be tried a ta different place had previous convictions… in other words, it will be unlikely to be read by the jury. However, the risk is greater where a publication is of greater prominence and reaches a mass audience.
  3. Time delay to the trial. The bigger the delay, the more likely for the risk not to be substantial. AG v Independent Television News [1995] The Broadcast was nine months before trial, any effect would have faded by the time of the trial, but in AG v Morgan [1998] the effect could still be there due to the prominence given to the publication and the likely impact on the reader. It is also worth noting that the publication AT THE TIME OF TRIAL is very risky, AG v MGN ltd [2002], in this case D published an interview with the father of the victim of an assault who, said that the attack was racially motivated when the court told the jury that it was not.
Once it is established that there is a substantial risk of prejudice, t falls on the prosecution to go on to prove that the effect will be serious, (Will the article tip the scale of justice?)
 
Examples of Contempt:
  1. Publishing D’s previous convictions, in criminal trials, previous convictions are deliberately kept from the jury so as to give the defendant a blank sheet.
  2. Publishing details of criminal trials, (although ones in good faith might not be), but some details of stuff said in the absence of the jury could affect them.
  3. Publishing D’s photo where the issue is identification.
  4. Publishing details of D’s background, where the background facts have the effect of either blackening or laundering D, or suggesting a motive for his behaviour.
Active Proceeding
This is the second requirement of the offence to be committed. Times at which proceedings become active will depend on the type of the proceedings in question. (Schedule 2 of the CCA). The most trouble are criminal proceedings, which could start at the time of the arrest. Criminal proceeding could also become active when D is arrested without a warrant, when a warrant is issued, when a summons order is issued. The proceedings are concluded by acquittal or y discontinuation by the operation of law.
 
Defences
Fair and Accurate Report of Legal Proceedings
Innocent Publication
Discussion of Public Affairs

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