Wednesday, November 8, 2017

Tom Humphries: Can an Employer Fire a Person who Gives a Character Reference for a Convicted Sex Offender?

David Walsh - Chief Sports Writer Sunday Times

Donal Og Cusack - former coach Clare Hurling Team

David Walsh and Donal Og Cusack were subjected to savage criticism in the media because they provided the court with character references for Tom Humphries after he had been convicted of having sex with a 16 year old girl. Cusack stepped down from his position as coach to the Clare senior hurling team while journalists demanded that the Sunday Times provide a statement regarding their chief sports journalist David Walsh. (The obvious idea was that the ST should fire him.)

The following is an extract from a discussion on the website

Originally posted by Prof Honeydew 24 October 2017
I gave a character reference once for a fella I knew both personally and from work. He asked me himself to put in a word for him. The prosecution made out he was a callous scheming criminal swindling grannies out of their savings but, from what I knew of him, it appeared he'd got out of his depth and started making stupid reckless decisions in the belief that everything would work itself out. I would have considered him a friend and I still do but he was one of these guys who'd jump into something without ever figuring out what he was getting into.

I asked his solicitor afterwards did my statement make any difference and he said it didn't. My mate got a stretch that was in the middle of the range his barrister had expected.

On another matter, I knew Tom Humphries a bit because I work in the same line of business. In my opinion, he was the best Irish sports writer I ever came across - original, observant, knowledgeable, colourful, good insight and easily the best stylist in a branch of literature which has developed cliche into an art form. And unlike many of the prima donnas who occasionally venture down to the sticks when there isn't a match that Sunday in Croke Park, he'd engage with the local grunts if asked. It wasn't all one-way with him in contrast to some others who'd milk you for local information and give nothing in return.

The level of vitriol being thrown at David Walsh is disturbing. He was always quite open about Humphries being a friend of his and hasn't jumped on him just to suit the storm whipped up by others in what is a very bitchy sector of the media. I can't say the same of Donal Og Cusack who, not for the first time, appears to have changed his tune so as not to derail his media image.

Reply by borntorum to Prof Honeydew

I agree with you that Humphries was a superb writer. However he had an increasing tendency towards self-indulgence, and the anti-rugby bigotry became really tiresome as the years went on.

I also agree that the vituperation heaped on Walsh is over the top. I suspect there’s a bit of schadenfraude involved from those journalists who might be jealous of the Walsh’s esteemed reputation (which he himself has not been slow to burnish)

Posted by Prof Honeydew 25 October 2017
I didn't contribute to this thread until yesterday. It came across as one of those where the facts didn't matter and, if they did, they were interpreted in such a way as to support whatever hangup monopolising the poster's view of the world. There isn't much point in adding to a discussion where everybody's mind is already made up.

Condemnation orgies are a fact of life on but this one took another turn when the theme moved on to denouncing those who provided  character references for Tom Humphries. That's going into guilt-by-association territory, the McCarthyism turned on anyone who doesn't fit in with the narrative decided by those dominating public comment. Much of it was based on a lack of understanding of the role character references play in the legal system.

As someone who actually supplied a character reference in a criminal case (and, no, I'm not someone famous or well-known), I posted what my experience of it was. As probably the only poster on this thread who knew him, I added my own impression of what dealings I had with Humphries in order to show why David Walsh may have held an opinion not quite in tune with the wolf-pack intent on demonising him.

Reply by Myself (AKA Kilbarry1) to Prof Honeydew
A general question. What would happen if a man lost his job because he provided such a character reference - a procedure that is provided for in Irish law? I would say he could be entitled to exemplary and punitive damages from the employer. But let's go a bit further.

Suppose a witness gives evidence in a highly controversial criminal case where the mob want the accused to be convicted - but this guy's evidence tends to exonerate the accused. (Let's take it for granted that his evidence is honest.) Suppose his employer then fires him.  In addition to punitive and exemplary damages in a CIVIL Court, the employer could find himself facing criminal charges for attempting to pervert the course of justice. And saying that "My customers hate this guy and insisted that I fire him" won't serve as a defence!

Could an employer face criminal charges for firing an employee who provides an honest character reference in court?  I'm not at all sure because a character reference is a lot less important than giving evidence under oath, but it's worth discussing the issue.

Reply by Gurdiev77 26 October 2017
The Icelandic government has recently been brought down by a similar circumstance. As I understand it, the PMs father wrote a character refence for a covicted paedophile. This apparently is part of the process of rehabilitaion after conviction in Iceland.

I dont know whether that relates only to sex crime or to all crime. But evidently the nation feels very strongly about it.

Reply by Me to Gurdiev77
One must always take public opinion into account and said opinion might go against the letter of the law. In this day and age, it wouldn't surprise me if a jury refused to convict an employer who fired a man who had given honest evidence in court. Because some jurors might be more concerned with virtue-signalling than applying the law!

There's a very interesting article on this subject in the Irish Times on 25 October quoting a leading barrister Michael O'Higgins SC. He said that giving a character reference in a criminal case is NOT an error of judgment, is  part of the court process and does NOT condone the actions of the accused.

“You’re not in any way condoning the activity, you’re not in any way making any disparaging comment about the abused person, you’re not showing a lack of sympathy,” he told RTÉ’s Morning Ireland. “You’re simply highlighting one particular, one discrete aspect of the case, namely that the person has done other good things and a court is entitled to take that into consideration.

“There’s no error of judgment. You’re giving a view of a person in a very narrow and very well defined circumstances, you’re not in any way saying what they did was right, or correct, on the contrary.  “The idea that anyone would think that giving a reference is an error of judgment in circumstances where they are expressly indicating they’re not condoning the criminal behaviour, but simply pointing out other aspects of the person’s character, because character is a rounded thing, I think that’s grossly misconceived.” ........

“People who criticise references don’t understand the sentencing process which is that the prosecution outlines their case against the accused and its the function of the defence to highlight such points as may go to mitigating the sentence. “Of course, if you have an otherwise unblemished character, if you can point to good things that you might have otherwise done in your life, I pose the question rhetorically:What could be wrong about highlighting that?”

Mr O’Higgins expressed concern that people would not give references if they thought they were going to be “excoriated” for doing so. “There’s no question that a person would not want to give a reference in these circumstances if they’re going to be excoriated for it and if their action is going to be misinterpreted as in some way or other showing a lack of support for an abused child or showing some support for the actions of the abuser, but a reference doesn’t do either of those things.”

MY COMMENT: Perhaps it's time to launch a witch-hunt against Michael O'Higgins SC -  for telling inconvenient truths that the mob doesn't want to hear?

Perverting the course of Justice?

Originally Posted by GJG on 7 November 2017
Perhaps you don't realise that criminal charges can only flow from an offence against the criminal law. What statute are you referring to that you think is being breached?

Reply by Myself to GJG
I think I answered that above. Perverting the course of justice is a serious crime. I see from a UK website that this includes "intimidating or threatening a witness or juror in a case "

So an employer who fires an employee for giving honest evidence in a court case could be jailed e.g. the accused is unpopular with the public but the employee has witnessed the events and gives evidence that the accused is likely innocent. So the employer fires him in order to appease the mob who want the accused found guilty. I am almost certain that this would constitute the crime of attempting to pervert the course of justice and an employer could face prison time for doing that.

My main question relates to an employer who fires an employee because he gave an honest character reference for a person who had been convicted of a crime.  It's not the same thing as "intimidating or threatening a WITNESS". Would it come under the heading of "perverting the course of justice"? I don't know. The question is worth discussing in the light of the thuggish attacks on David Walsh and Donal Og Cusack - including obvious attempts to get the Sunday Times to fire David Walsh.

Further Reply by Myself to GJG
Perverting the course of justice seems to be an offence under common law rather than statute law. This is from an Irish Times report of an extradition  from Ireland to the UK involving someone accused of this offence.
Extradition granted to face charge of perverting course of justice

Counsel for the Minister [for Justice] said that if the same activity was carried out here, it would amount to the same offence as that contained in the warrant, that is, perverting the course of justice contrary to common law.

The IT report also indicates that the offence carries a maximum penalty of life imprisonment. Presumably THAT would only come into play if an attempt was made to intimidate  a witness, juror or the judge himself. Maybe  a lesser penalty should apply to a criminal [employer] who ONLY tries to intimidate someone who supplied a character reference??

Reply to Me by fellow
It’s worth posing the question. However, neither Walsh nor Cusack gave evidence. They wrote letters and I wonder what the status of those is. The judge did take them into account.

Perverting the Course of Justice? [2]

Objections by GJG
....The statute in Ireland was incorporated in an act (not looking it up at this hour); it does remain a common law offence in the UK. In both, the offence is clearly limited to acts likely to influence the outcome of actual or potential legal action. An action that takes place after the legal action clearly cannot meet that test.

  So someone who threatens to fire an employee if they don't give the right evidence is clearly guilty. Someone who fires them without warning in pique afterwards is not. ....
 ........The key here is whether the employer did something with a view to influence the outcome of the trial. Actions post-trial might be evidence of the nature of pre-trial behaviour (firing someone might prove that an earlier threat was serious), but nothing after the trial can be an offence in this case.

 My Reply to GJG
This is from a UK website "Human Rights in Criminal Justice" and of course it refers to your normal witness in a trial - as distinct from a character witness like David Walsh or Donal Og Cusack. However it includes threats NOT intended to influence the course of the trial, made AFTER the trial, and threats made by persons other than the defendant. It may come under the Police and Criminal Evidence Act 1984 and the maximum sentence is 5 years so it's NOT the law relating to perverting the course of justice (for which the maximum sentence is life imprisonment). It seems to envisage physical threats but I suspect that firing an employee because the employer didn't like his evidence could also come under this heading.

Freedom from witness intimidation
"Witness intimidation can have a significant effect on the course of a trial – however, any harm or intimidation visited upon a witness before, during or after trial is illegal. If you have been called as a witness and you do fear intimidation, the prosecution can apply to have your written statement serve as your testimony, preventing your need to appear in court before anyone who could intimidate you.

 "If it is found that intimidation was used by the defendant, or a party on behalf of the defendant, and the court accepts that this intimidation may have genuinely affected the outcome of the case, the court has the power to order a re-trial.

 "Intimidation isn’t always designed to affect the course of the trial – a defendant could attempt to intimidate a witness after a trial has ended, contacting them or following them once they leave prison, and sometimes even contacting them from inside.

 "The maximum penalty for witness intimidation is 5 years in jail, depending on the severity of the intimidation and the effect that it had on the outcome of a legal case."

 There are probably similar provisions in Irish law to protect the "normal" witness in a trial. In view of the hysteria promoted by the media, it might be a good idea to extend this protection to character witnesses also. Otherwise many people will be afraid to give this kind of testimony.

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