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Category Archives: Media

Grenfell effigy bonfire and Section 4A – a flawed piece of legislation

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Was a criminal offence committed when a group of friends took it into their head to mock up a Grenfell Tower cardboard effigy and set it ablaze on Bonfire Night? The short answer would seem to be … it’s complex – and that the law six of them have been arrested on is deeply flawed and potentially oppressive.

The question for the police is: did their action amount to causing intentional harassment, alarm or distress according to Section 4A of the Public Order Act 1986? This says:

  1. A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
    (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
    (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
    thereby causing that or another person harassment, alarm or distress.

The cardboard Grenfell Tower is a “visible representation” and setting it alight is “behaviour”. But the issue is the motivation of those doing it. Leaving aside the social media issue, the burning of the effigy was in a private garden – possibly among like-minded friends. Can the police show intention to cause  harassment, alarm or distress to a particularly defined group? Can they also show that such harm was, in fact, caused?

The Section 4A provision of the Act that the police are using is something of a confused botch-up. Significant parts of the Public Order Act are very much about public, open places or public buildings. It is about avoiding public disorder: riot, affray, provocation of violence; that sort of thing.

But Section 4A was introduced in the Criminal Justice and Public Order Act 1994, at a time when a new sense of public threat was abroad under a tough new Home Secretary, Michael Howard (the 1994 Act also cracks down on trespassers and squatters). The political focus was on victims and toughening up the law dealing with the remarkably subjective harms of “harassment, alarm or distress” (wording also in Section 5, and controversially so; see Harvey v DPP 2011; see here) but not explicitly in a there-and-then public space.

In contrast, Section 4 (part of the original Act) on provocation uses similar wording, criminalising threatening, abusive and insulting words and behaviour and visible representations etc but only insofar as there is “intent to cause that person [the victim] to believe that immediate unlawful violence will be used against him or another by any person”.

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Can Sir Philip Green suppress media interest in his ‘banter’?

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So it was just banter. That is how British entrepreneur Sir Philip Green is defending his behaviour towards employees – and presumably defending his right to keep his behaviour secret with the full weight of a permanent High Court injunction. But hasn’t his statement to the Mail on Sunday (“There has obviously from time to time been some banter, but as far as I’m concerned that’s never been offensive”) rather undermined his case for such an injunction?

The essence of the case is that his behaviour, as covered by non-disclosure agreements with alleged victims, is a private matter. It comes within the English Common Law “equitable doctrine of confidence”, that is to say confidentiality, particularly applicable to the relationship between employer and employee. “The doctrine serves the public interest by encouraging trust, candour and good faith in legal relationships,” as Mr Justice Haddon-Cave expressed it in the original High Court injunction case (which Green and two associated companies lost).

One has to ask, of course, whether Sir Philip’s “banter”, was likely to encourage “trust, candour and good faith” with his employees. He insists: “I’ve got a good relationship with all my staff” – though some would seem to disagree. But the legal point is that Green and his lawyers have to establish the issue as one of confidentiality/privacy since that is the only way they can exercise power over the media to bar publication. This is the reason for his rather carefully worded (and hence rather odd) statement when his name was revealed in the House of Lords by Peter Hain:

“to the extent that it is suggested that I have been guilty of unlawful sexual or racist behaviour, I categorically and wholly deny these allegations”.   

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Great Repeal Bill Brexit row: Keep Henry VIII’s name out of it

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One wonders whether the outrage over the “Great Repeal Bill” has been a little overdone. The White Paper explaining how the UK Government will handle all the mass of EU legislation that needs to remain in place after Brexit notes that much of it, while remaining in force, will need “correcting” by delegated legislation – powers given to ministers by Parliament. 

The White Paper explains that this correcting will simply be to ensure the laws, all of which will be transposed into UK law, can continue to operate rather than become ineffective upon repeal of the European Communities Act 1979. Critics fear the Government will go further than this and use delegated legislation, or “Henry VIII powers”, to actually change or abolish laws and rights derived from the EU.     

But this post is more concerned about whether the respectable name of King Henry has been blackened by being dragged into this sordid modern row. “Henry VIII powers” are quite often included in parliamentary legislation (increasingly and controversially of late) to allow a minister to later change the statute by issuing a statutory instrument. 

The name (or nickname, really) of the powers has been mistakenly taken rather literally by some parts of the media with suggestions that the powers, legitimately given by a democratically elected Parliament, are actually derived from the despotic Henry VIII himself, that the Government has dredged up some arcane pre-democratic power and is about to swing Henry VIII’s very own axe to abolish EU law. Thus the Evening Standard: “Ministers defended so-called Henry VIII clauses dating back to 1539”. CNN took a similar line: “The British government wants to invoke controversial powers that date back 500 years to the time of King Henry VIII.” The Independent called them “ancient powers”. This is simply untrue.

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