(Not-super) injunction, and names

Chalky

PolarityMan said:

TTony said:

thumpingrug said:

But is the issue that an NDA should not / can not be used to silence or cover up illegal activities. 

An NDA can be used to silence or cover up whatever the agreement parties decide to cover.

Whether it should be used to silence or cover up illegal activities is a different question.

In some cases, illegal activity is clear and obvious or can be proven with irrefutable evidence.  In other cases, whether or not an illegal activity took place depends on whose account of an event is deemed the most believable, with "innocent until proven guilty" meaning that the burden of proof is on the accuser rather than the defendant.

Which is why #MeToo happened (though there's now an argument - and apologies for the Trumpism - that an accused is seen as guilty until proven innocent).

Pre #MeToo (which is when most, if not all, of these events occurred), agreeing to an NDA was pretty much the only way that  someone who had allegedly suffered  in one of these illegal activities could receive any compensation.   Yup, it's "hush money" and enabled a perpetrator to carry on perpetrating.  But - pre #MeToo - I can understand why some decided that it was the best or only option for them.

Forcing an individual to report their suffering of an illegal activity potentially adds insult to injury.  They may well prefer to avoid the stress, hassle and public scrutiny that a legal action would involve them in.  People who experience incidents like that deal with them in different ways.    Saying "an NDA is wrong, report it" wouldn't necessarily lead to them reporting it - they might just stay quiet and there's no consequence to the perpetrator.

So, it's messy and distasteful (as I said above) but you can't force someone to report their having suffered (allegedly) an illegal activity.

I thought in the UK criminal proceedings were brought by the CPS rather than an individual. Thus surely accepting an NDA should not prevent the case proceeding just by its existence (although obviously it would remove a witness and so make the proceedings untenable).

@TTony got a bit carried away.  An NDA cannot be used to conceal criminal activity.  If there is evidence that a criminal act has taken place the police must investigate.

Which of you made the counterfeit £50 notes?
We cannot answer Officer because we signed a mutual NDA.
Oh alright then, sorry to have troubled you.

TTony

Chalky said:

PolarityMan said:

TTony said:

thumpingrug said:

But is the issue that an NDA should not / can not be used to silence or cover up illegal activities. 

An NDA can be used to silence or cover up whatever the agreement parties decide to cover.

Whether it should be used to silence or cover up illegal activities is a different question.

In some cases, illegal activity is clear and obvious or can be proven with irrefutable evidence.  In other cases, whether or not an illegal activity took place depends on whose account of an event is deemed the most believable, with "innocent until proven guilty" meaning that the burden of proof is on the accuser rather than the defendant.

Which is why #MeToo happened (though there's now an argument - and apologies for the Trumpism - that an accused is seen as guilty until proven innocent).

Pre #MeToo (which is when most, if not all, of these events occurred), agreeing to an NDA was pretty much the only way that  someone who had allegedly suffered  in one of these illegal activities could receive any compensation.   Yup, it's "hush money" and enabled a perpetrator to carry on perpetrating.  But - pre #MeToo - I can understand why some decided that it was the best or only option for them.

Forcing an individual to report their suffering of an illegal activity potentially adds insult to injury.  They may well prefer to avoid the stress, hassle and public scrutiny that a legal action would involve them in.  People who experience incidents like that deal with them in different ways.    Saying "an NDA is wrong, report it" wouldn't necessarily lead to them reporting it - they might just stay quiet and there's no consequence to the perpetrator.

So, it's messy and distasteful (as I said above) but you can't force someone to report their having suffered (allegedly) an illegal activity.

I thought in the UK criminal proceedings were brought by the CPS rather than an individual. Thus surely accepting an NDA should not prevent the case proceeding just by its existence (although obviously it would remove a witness and so make the proceedings untenable).

@TTony got a bit carried away.  An NDA cannot be used to conceal criminal activity.  If there is evidence that a criminal act has taken place the police must investigate.

Which of you made the counterfeit £50 notes?
We cannot answer Officer because we signed a mutual NDA.
Oh alright then, sorry to have troubled you.

That wasn't my intended meaning.

Chalky

OK but you said "An NDA can be used to silence or cover up whatever the agreement parties decide to cover" so I can only go by what you said. Your statement is untrue.

TTony

Chalky said:

OK but you said "An NDA can be used to silence or cover up whatever the agreement parties decide to cover" so I can only go by what you said. Your statement is untrue.

You're absolutely correct.

I should also have mentioned that an NDA can't be used to silence a barking dog, or cover up unsightly spots on a  face.  Or I might just rely on people applying a little common sense to their interpretation.

Garthy

Legal cheek website has an interesting development on this, I can’t link it as the hyperlink includes a name but Hain is a paid adviser to the legal firm working for the telegraph.

Fretwired

Garthy said:

Legal cheek website has an interesting development on this, I can’t link it as the hyperlink includes a name but Hain is a paid adviser to the legal firm working for the telegraph.

And Hain hasn't disclosed this on the register of members interests so he's in trouble. I wonder if he's been paid for his lords statement?

PolarityMan

Are we allowed to use guess who style questions to infer who it is? I'll start. Is he wearing a hat?

mbe

PolarityMan said: 

Are we allowed to use guess who style questions to infer who it is? I'll start. Is he wearing a hat?

No definitely not. That would be like playing virtual Mr. Potato Head. 

PolarityMan

*flips down faces furiously*

Heartfeltdawn

Fretwired said:

Garthy said:

Legal cheek website has an interesting development on this, I can’t link it as the hyperlink includes a name but Hain is a paid adviser to the legal firm working for the telegraph.

And Hain hasn't disclosed this on the register of members interests so he's in trouble. I wonder if he's been paid for his lords statement?

The Legal Cheek article says it's on there and his register of interests cached on October 18th confirms this. 

HERE

"Global and Governmental Adviser, Gordon Dadds llp, London WC2 (provides professional and legal services in the UK and globally)"

Fretwired

Heartfeltdawn said:

Fretwired said:

Garthy said:

Legal cheek website has an interesting development on this, I can’t link it as the hyperlink includes a name but Hain is a paid adviser to the legal firm working for the telegraph.

And Hain hasn't disclosed this on the register of members interests so he's in trouble. I wonder if he's been paid for his lords statement?

The Legal Cheek article says it's on there and his register of interests cached on October 18th confirms this. 

HERE

"Global and Governmental Adviser, Gordon Dadds llp, London WC2 (provides professional and legal services in the UK and globally)"

OK .. I worded it badly. The House of Lords code of conduct states that members must “declare when speaking in the House, or communicating with ministers or public servants, any interest which is a relevant interest in the context of the debate or the matter under discussion”.

Before making his statement in the Lords Hain should have stated that he had an interest in that he worked for the Telegraph's lawyers. He didn't so he has been reported.

TimmyO

digitalscream said:

However, the system we have provides zero consequences for the accuser if the accusations are false, 

Kind of yes, kind of no. It's more common for a case/accusation to be "not proven" preserving the innocence of the accused without exhaustively examining the basis of the claim - this is not the  same as a clear conclusion of falsehood. In the case of the latter the CPS can bring a case of perjury or <I forget what they call it> but often don't - but they could. 

digitalscream

TimmyO said:

digitalscream said:

However, the system we have provides zero consequences for the accuser if the accusations are false, 

Kind of yes, kind of no. It's more common for a case/accusation to be "not proven" preserving the innocence of the accused without exhaustively examining the basis of the claim - this is not the  same as a clear conclusion of falsehood. In the case of the latter the CPS can bring a case of perjury or <I forget what they call it> but often don't - but they could. 

This is what pisses me off. In the case I was talking about earlier, the central point of two of the women's allegations was that "...he put his hand up my skirt", yet it was conclusively proven - using their own social media accounts - that both of them were wearing jeans on the night in question.

No action was taken against either of them.

Heartfeltdawn

Fretwired said:

OK .. I worded it badly. The House of Lords code of conduct states that members must “declare when speaking in the House, or communicating with ministers or public servants, any interest which is a relevant interest in the context of the debate or the matter under discussion”.

Before making his statement in the Lords Hain should have stated that he had an interest in that he worked for the Telegraph's lawyers. He didn't so he has been reported.

Had GD told Hain that they were the lawyers representing the Telegraph, then that may well have been breaking the terms of the injunction against the Telegraph. Hain as an external adviser was not involved in the case so why would he have been told? 

EDIT: Actually I'm going to change my mind and say that Hain has been a bit of a pillock. 

http://www.5rb.com/news/abc-v-telegraph-media-group-court-of-appeal-grants-interim-injunction-against-the-telegraph/

Sadly I now suspect this will now take away from the actual perp at the centre of this. 

ICBM

digitalscream said:

TimmyO said:

It's more common for a case/accusation to be "not proven" preserving the innocence of the accused without exhaustively examining the basis of the claim - this is not the  same as a clear conclusion of falsehood. In the case of the latter the CPS can bring a case of perjury or <I forget what they call it> but often don't - but they could. 

This is what pisses me off. In the case I was talking about earlier, the central point of two of the women's allegations was that "...he put his hand up my skirt", yet it was conclusively proven - using their own social media accounts - that both of them were wearing jeans on the night in question.

No action was taken against either of them.

The offence is Perverting The Course Of Justice. If it's in collusion with someone else it's Conspiracy To Pervert The Course Of Justice. Both of these are very serious offences, and rightly so for exactly the reasons you gave earlier - in fact the maximum sentence is life imprisonment.

In my opinion the legal system fails when it allows people to make serious false accusations and not face prosecution for this.

JerkMoans

Heartfeltdawn said:

Had GD told Hain that they were the lawyers representing the Telegraph, then that may well have been breaking the terms of the injunction against the Telegraph. Hain as an external adviser was not involved in the case so why would he have been told? 

EDIT: Actually I'm going to change my mind and say that Hain has been a bit of a pillock. 

http://www.5rb.com/news/abc-v-telegraph-media-group-court-of-appeal-grants-interim-injunction-against-the-telegraph/

Sadly I now suspect this will now take away from the actual perp at the centre of this. 

Hain asserted that he had considered 'all the circumstances' before deciding to exercise Parliamentary privilege to spill the beans.

He later claimed not to have had the first clue that Gordon Dadds LLP, to which firm he is a paid consultant, were the solicitors instructed by the Telegraph.

Trouble is, the firm's name is in bold on the first page of the (open, and anonymised, before anyone gets excited) Judgment.  See https://www.judiciary.uk/wp-content/uploads/2018/10/abc-v-telegraph-media-open-Judgment-approved-final-181023.pdf

One might imagine anyone considering all the circumstances would (a) have read it, and (b) spotted the name of the very firm to which they are a paid consultant on page 1.  Before using arcane parliamentary conventions to circumvent court orders.  Which is why Hain is looking like a bit of a chump.

digitalscream

ICBM said:

digitalscream said:

TimmyO said:

It's more common for a case/accusation to be "not proven" preserving the innocence of the accused without exhaustively examining the basis of the claim - this is not the  same as a clear conclusion of falsehood. In the case of the latter the CPS can bring a case of perjury or <I forget what they call it> but often don't - but they could. 

This is what pisses me off. In the case I was talking about earlier, the central point of two of the women's allegations was that "...he put his hand up my skirt", yet it was conclusively proven - using their own social media accounts - that both of them were wearing jeans on the night in question.

No action was taken against either of them.

The offence is Perverting The Course Of Justice. If it's in collusion with someone else it's Conspiracy To Pervert The Course Of Justice. Both of these are very serious offences, and rightly so for exactly the reasons you gave earlier - in fact the maximum sentence is life imprisonment.

In my opinion the legal system fails when it allows people to make serious false accusations and not face prosecution for this.

I suspect it's a PR thing - CPS prosecuting somebody for false allegations is the easiest slam-dunk for a load of media articles shouting "VICTIM BLAMING!".

Which, of course, is the worst way to run a justice system.

TimmyO

digitalscream said:

ICBM said:

digitalscream said:

TimmyO said:

It's more common for a case/accusation to be "not proven" preserving the innocence of the accused without exhaustively examining the basis of the claim - this is not the  same as a clear conclusion of falsehood. In the case of the latter the CPS can bring a case of perjury or <I forget what they call it> but often don't - but they could. 

This is what pisses me off. In the case I was talking about earlier, the central point of two of the women's allegations was that "...he put his hand up my skirt", yet it was conclusively proven - using their own social media accounts - that both of them were wearing jeans on the night in question.

No action was taken against either of them.

The offence is Perverting The Course Of Justice. If it's in collusion with someone else it's Conspiracy To Pervert The Course Of Justice. Both of these are very serious offences, and rightly so for exactly the reasons you gave earlier - in fact the maximum sentence is life imprisonment.

In my opinion the legal system fails when it allows people to make serious false accusations and not face prosecution for this.

I suspect it's a PR thing - CPS prosecuting somebody for false allegations is the easiest slam-dunk for a load of media articles shouting "VICTIM BLAMING!".

Which, of course, is the worst way to run a justice system.

I doubt it - the CPS is swamped and are handed down both their priorities, and their resources (neither of which match) and those priorities don't include cases like that. 

ICBM

TimmyO said:

I doubt it - the CPS is swamped and are handed down both their priorities, and their resources (neither of which match) and those priorities don't include cases like that. 

But they very much should - not just from the moral point of view that it's unacceptable to allow anyone a no-risk method of wrecking someone else's life - but that by deterring cases like that it would reduce the load on the justice system overall.

Is it likely those three women - or others in similar cases - would have made the accusations if they'd known it was a strong possibility they would be charged and could face a lengthy prison sentence if convicted? I very much doubt it.

digitalscream

TimmyO said:

digitalscream said:

ICBM said:

digitalscream said:

TimmyO said:

It's more common for a case/accusation to be "not proven" preserving the innocence of the accused without exhaustively examining the basis of the claim - this is not the  same as a clear conclusion of falsehood. In the case of the latter the CPS can bring a case of perjury or <I forget what they call it> but often don't - but they could. 

This is what pisses me off. In the case I was talking about earlier, the central point of two of the women's allegations was that "...he put his hand up my skirt", yet it was conclusively proven - using their own social media accounts - that both of them were wearing jeans on the night in question.

No action was taken against either of them.

The offence is Perverting The Course Of Justice. If it's in collusion with someone else it's Conspiracy To Pervert The Course Of Justice. Both of these are very serious offences, and rightly so for exactly the reasons you gave earlier - in fact the maximum sentence is life imprisonment.

In my opinion the legal system fails when it allows people to make serious false accusations and not face prosecution for this.

I suspect it's a PR thing - CPS prosecuting somebody for false allegations is the easiest slam-dunk for a load of media articles shouting "VICTIM BLAMING!".

Which, of course, is the worst way to run a justice system.

I doubt it - the CPS is swamped and are handed down both their priorities, and their resources (neither of which match) and those priorities don't include cases like that. 

...but those priorities do include spending a lot of time and money prosecuting cases like that one without even a cursory look at the "victims'" Facebook pages, when it even says in the accused's original police statement that photos were taken and posted that proved it was a load of crap?

The only consequence for anybody other than the guy in question was that the judge gave the prosecutor a major bollocking in front of the whole court, and none of the reporters in attendance published anything about the case so the whole thing was quietly buried.

I know, I'm going on about it, but the whole experience made me fucking angry. I'll try to shut up now