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Thursday, 24 November 2011

Fair trials and the freedom of the press: when fundamental principles conflict

Published on Halsbury's Law Exchange here.

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.

Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press.

One very recent manifestation of that inherent conflict concerned a blog by a well-known political commentator about the Stephen Lawrence murder trial. The blog has been referred to the Attorney-General for consideration for prosecution for contempt of court. As the trial is still in progress nothing more will be said about it.

A recent occasion on which the courts had to consider the same issue, however, was the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug), which arose out of the murder of Joanna Yeats at the end of 2010.

Police attention was initiallyfocused on Miss Yeats’ landlord, who was arrested but released without charge. Before suspicion had been lifted however, some elements of the press printed all manner of lurid allegations about him. In the event those mattered not, since the real murderer did not dispute the fact of having killed Miss Yeats. It was held however that if the landlord had faced prosecution, he would have been able to raise a serious argument that he could not receive a fair trial because of this adverse publicity. Even though the argument would probably have failed, it would have been properly made and therefore would have incurred tangible costs and delays to the trial process, and a possible ground of appeal.

Accordingly, even the most robust defenders of freedom of speech would have to concede some limitations on the right of the press to influence an extant trial.

The Yeats decision raised some important points about the present state of the law, and points for reform. What it did not consider, however, was the possible influence – not for the good – of the internet. As I wrote in an article on the case for Criminal Law & Justice Weekly, one of the central planks of the publishers’ defence was that the articles would have faded from the jurors’ memories by the time of the trial. But articles would still have been readily obtainable online.

Moreover, no prosecution for contempt of court will be possible in the case of articles published overseas, although they may be readily accessible to British citizens. For the same reason I have always suspected that superinjunctions for privacy would be a flash in the pan, since anyone minded to do so could expose material which is the subject of an injunction with impunity if they were based outside the jurisdiction.

It can only be hoped that the fair trial process is not destroyed in that fashion. For all of the arguments in favour of free speech, one can find many instances of tabloid journalism grossly interfering with justice. One thinks of Hollywood circuses from the Fatty Arbuckle scandal of the 1920s (see New Law Journal [2011], vol 161, p 1150) to the OJ Simpson fiasco of more recent times: few would wish to see justice conducted – and corrupted – in the same manner in this country.

Wednesday, 2 November 2011

Impossible to employ

Published on Halsbury's Law Exchange here.

Last week Stephen Levinson wrote about the law making process, and in particular the problems which bedevil the creation of employment law.

Mr Levinson identified four structural reasons behind the problems with employment law making: (i) responsibility for employment law is spread between four separate departments; (ii) civil servants continuously move between departments, denuding them of knowledge and experience; (iii) new statutes are almost invariably followed by statutory instrument after statutory instrument; and (iv) there is often inadequate consultation.

These are all valid points, and no doubt applicable to many other areas of law. I would venture to add two further points. The first is that much employment law is now made in Europe. Complex directives have to be transposed into national law. The last say on their interpretation is not that of the domestic courts but rather the European Courts. Whether they make good or bad decisions, the fact remains that the process by which employment laws are made, and by which answers to employment questions are reached, is rendered more complex, slow and expensive by an extra layer of regulation emanating from the European Union. For large companies able to retain expensive advice this may be manageable, if inefficient; for smaller firms it may be unmanageable and a disincentive to hire more staff. For both employers and employees it will make knowing their rights all the more difficult.

The second point is the most fundamental as well as the most obvious: it is policy that produces complexity. Employment law is overly complex because lawmakers are always tempted to try and micromanage employment relations. No doubt this is (usually) done with good intentions. One often hears employment rights being described as “fundamental”. In many instances I would not disagree – it is not as though anyone would or should advocate returning to a Victorianesque world of chimney sweep wages and conditions set entirely by the free market. I would however make three observations.

First, all employment rights, fundamental or otherwise, are wholly irrelevant to a substantial portion of workers, namely the self-employed. The likes of public holidays, sickness and maternity leave, the minimum wage, working time regulations and so forth mean nothing to the self-employed. Of course that does not undermine the need for protection of those who are employed from being exploited. But the more complex and costly it becomes to hire someone will, as mentioned, make employers more reluctant to hire new staff.

Secondly, complex provisions harm, not help, vulnerable workers. They will not be able to afford the increasingly expensive advice about their rights, nor will any employment litigation be resolved as quickly or efficiently as it might be otherwise. They will find it harder to obtain work because many employers cannot face the red tape and uncertainty that complex employment law brings and will decide against expansion accordingly.

Thirdly, it is not as simple for the state to play Robin Hood as some recent employment decisions seem to assume. For example, the European Courts ruled recently that employees who are sick during their holidays should be able to claim the time as sick leave, thus preserving their holidays. One can see the superficial attraction: if a certain amount of paid leave (holiday) is considered a “fundamental right”, then ensuring that employees retain the benefit that leave irrespective of the misfortune of illness is a logical step. However, a right can only exist if someone else assumes a corresponding duty, and in this case obviously the duty has to be that of the employer. The employer must therefore assume a greater duty.

The problem is of course that employment relations are not static. Employers can be expected to respond to the increased (but uncertain) costs that they will face by any or all of the following measures: negotiating lower wages, paying shareholders lower dividends, or raising prices. At least two of those will affect employees directly (with their own wages, plus the fact that, as consumers, they will have to pay higher prices that other companies impose in response to the ruling) and all three will as well in the case of employees who are also shareholders. It also gives dishonest employees an incentive to claim sickness at opportune moments in order to extend their holiday entitlement, which of course will be at the expense of the honest employees who will be left sharing the increased costs and also covering for the unscrupulous. Arguably, therefore, it would have been better for the state not to have intervened at all in that case.

As Mr Levinson concludes there is no silver bullet. But one does hope that his suggestion for greater thought to be given to the law making process is taken on board by the Cabinet Office. Improving employment law is a difficult task, but that makes it more, not less important.

End of the beginning

I have recently changed roles at LNUK and am now Managing Editor of the Journals & Magazines department.  The handover period rather got in the way of any articles and blogs, but something close to normal service should now resume.