On 4 June, The Express published – under a front-page article, and 12-page pull-out headlined "The Banned" – the names and addresses of former directors subject to a disqualification order.
The publication was apparently supported by a new DTI initiative to crack down on rogues who cheat customers and suppliers. The Express said the DTI wanted the public to help check that no disqualified director breached its ban.
The publication of the list of 4,000 disqualified company directors accompanied by pejorative commentary in a mass-circulation national paper raises serious issues of privacy and reputation.
Clearly, the Company Directors Disqualification Act 1986 provides for a public register of the disqualified. But does this justify government support for indiscriminate publication without qualification or distinction.
Disqualification may be ordered where proceedings are brought under the Act and the court finds a director unfit. But under section 17 of the Act, directors may seek court permission to continue as director of a specified company even though they are generally disqualified.
But The Express' indiscriminate approach encouraged readers to complain to the DTI 24-hour hotline regardless of this allowance.
Publicity, with the Government as catalyst, is one issue. But there are deeper concerns about the basic fairness of the Act. Proceedings are described as civil rather than criminal, although Lord Woolf recently referred to the assessment of the disqualification period as akin to sentencing.
Because they are classed as civil proceedings, the burden of proof is lower and, worse, evidence is admissible which would be excluded from any other trial, whether civil or criminal.
The special investigatory powers which often lead to disqualification proceedings – sections 442 of the Companies Act 1985 and 235 of the Insolvency Act 1986 – have already been deemed unfair by the European Court of Human Rights in Saunders and there are real doubts about their use in disqualification proceedings.
Indeed, until the Human Rights Convention is part of English law, Strasbourg will provide the only remedy for aggrieved directors.