Don't Short Circuit Justice!

 Harvey Weinstein & Natural Justice

by Les May

ON Thursday morning as we sat sipping our coffee on Todmorden Inside Market my wife commented ‘It seems to be open season on Harvey Weinstein’.  As I had never heard of him I could only say ‘Who’s he’?

My ignorance was short lived.   Bang on the front page of my paper was a picture of a somewhat unprepossessing chap, with a younger woman on each arm, which raised in my mind the question of whether they had first been attracted to him for his good looks.

My wife was right.  After several actresses had accused him of making unwanted sexual advances to them it seemed the journalistic equivalent of the butcher, the baker and the candlestick maker, plus uncle Tom Cobley and all, immediately decided the women must be telling the truth and decided to ‘give him a good kicking’.   To add an element of farce Harvey decided to check into ‘rehab’ for treatment for sex addiction.

It wasn’t just the journalists. ‘Our Treeza’ decided to get in on the act too.   There was talk of him losing his British CBE and the Oscar board have convened an ‘emergency meeting’.   Phew!

But it’s not all bad news for Harvey.  He got lucky; the police in Britain and the USA have said they will investigate.    That means his accusers will have to make formal statements.  If they are telling porkies they’ll be found out.  He’ll know exactly what he is accused of.  He’ll be innocent until proven guilty. The women will have to interrupt their ‘busy schedules’ to turn up in court.  The legal process will take its course.   (Actually I don’t believe that last sentence; it will end up with a plea bargain.   Followed by a lot of articles about how ‘the system’ let down women yet again.)

Unfortunately it’s not just where ‘celebs’ are involved that there is an eagerness to short circuit the protection the law affords both to the accuser and the accused in interpersonal disputes where ultimately it boils down to nothing more than ‘his word against hers’.

It is becoming the norm that in universities, larger companies, trades unions and the like, these kinds of dispute are dealt with internally in what can most charitably be described as the most amateurish way, by people who have little grasp of the rules of evidence or much concern for natural justice.

Natural justice really boils down to common sense.  Here are some ground rules.
Everyone is innocent until proven guilty.  In other words no-one has to ‘prove’ their innocence.
The accused person should be informed of the specific charges against them and the name of their accuser.
The accused person should have the opportunity to cross-examine the accuser and vice versa.
The same goes for any witnesses, be they for the accuser or for theaccused. If an organisation uses a panel of people to investigate an incident, then a different panel of people should be involved in assessing that evidence and coming to a judgement, and the evidence collected should be available to both parties.

As I observed earlier natural justice is common sense.  It’s about being fair and being seen to be fair. Anything that fails the test of fairness, isn’t justice.

McFadden case: Unite breaks its own rules

Below Northern Voices publishes the decision of the trade union certification officer over the procedure used by the Unite union to investigate and discipline Alec McFadden, over a complaint of alleged inappropriate behaviour by him in October 2015.  The trade union certification officer's decision shows that the Unite union, in its disciplinary procedure against Mr. McFadden, exceeded its powers.  This decision is based on a failure of natural justice by the Unite union in the manner in which it treated Mr. McFadden:

Press Release 11th October 2017

Alec McFadden's press statement last night begins by declaring:
 'UNITE the Union has been found to have acted outside of its jurisdiction in debarring veteran Trade Unionist and Community Campaigner Alec McFadden from his elected office.'

DECISION OF THE ASSISTANT CERTIFICATION OFFICER ON APPLICATION BY MR ALEC MCFADDEN MADE UNDER SECTION 108A OF THE TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992 

 Mr Alec McFadden vs Unite the Union

The Assistant Certification Officer, having considered the three preliminary issues set out in the decision in these proceedings dated 24 July 2017, has concluded that the disciplinary proceedings by Unite the Union against Mr McFadden and the consequent penalties imposed upon Mr McFadden were in breach of the rules of the union.  He therefore makes a declaration to that effect, pursuant to sections 108A and 108B of the 1992 Act.
The Assistant Certification Officer will give his reasons for his decision in writing shortly; however this decision is provided in advance of those written reasons so as to make it clear to the parties that the hearings in these proceedings fixed for 9 and 10 October 2017 are now unnecessary; and he directs that those hearings be vacated.
It is not clear to the Assistant Certification Officer whether Mr McFadden seeks any remedy under section 108B of the 1992 Act other than the above declaration.  If he does, he must set out what remedy or remedies he seeks in writing to the Assistant Certification Officer and to the union by 17 October 2017; and the union shall respond thereto in writing to the Assistant certification Officer and to Mr McFadden by 31 October 2017.

Jeffrey Burke QC 3 October 2017