Foul or suspected foul

Posted by Julian Wilson

In Barclays-v-Guardian [2009] EWHC 591 (which Anya Proops commented on a couple of days ago), Mr. Justice Blake referred to the well known distinction between tax evasion and tax avoidance and then commented critically on the Guardian’s description of the Barclays’ employee who leaked its internal documents to Vince Cable MP as a “whistleblower”. The Judge said: “usually one blows a whistle to denote a foul, and I have already observed that the distinction between evasion and avoidance needs to be borne in mind in this context.” It appears that the Judge must not have had the Public Interest Disclosure Act in mind in referring to the term “whistleblower”. To qualify under the statute for potential protection, a worker’s disclosure need not be of a proven “foul” but only made with a reasonable belief that his employer is failing to comply with a legal obligation (ERA s.43B). Further, to gain potential protection for a qualifying disclosure where it has been made to an MP, the disclosure need not be of a proven “foul” but needs to be made with an honest and reasonable belief that that the information disclosed and any allegation contained in it are substantially true (S. 43G). Most whistleblowers have only a hunch that something is a foul without the means to prove it and the idea of PIDA is to protect them if they make the disclosure to a person having the ability and resources to investigate it. The protection offered to whistleblowers would be of no utility if only those with the legal brain necessary to distinguish evasion from avoidance could enjoy protection.