The Contiental Legal System

They\’ll be harmonising the legal systems soon enough and this is the sort of thing which will happen:

An Italian teenager suspected of killing his mother – a well known author of a guide to the Harry Potter books – will remain in prison for a year while the investigation continues, a judge has ruled.

Note that this is not on remand, awaiting trial.

After two hours of interrogation, the judge decided that there is enough evidence to hold him in custody pending formal charges.

It\’s a year in jail before formal charges are laid down. A year before he even knows what he will be charged with, a year before he has any possibility of attempting to refute the charges, a year before he can even start to prove his innocence (not that I think he is going to be able to do that but that\’s another matter).

This is what is at the heart of the seemingly arcane matter of being able to continue to interrogate (which we do not currently allow) after charging.

It\’s in direct contravention of the basics of the current legal system, that you can only be held (with a few day\’s grace that is) once you\’ve been charged.

No, I don\’t look forward to the English courts adopting this system, but I fear that it will either be forced upon us….or that the current shower will continue taking us down the road to it.

Hmmm, What\’s that word?

Gold  digger is it?

A woman who has been awarded an estimated £18 million in three divorces is at the centre of a test case for pre-nuptial agreements after seeking share of her fourth husband\’s £45 million fortune.

Well, no, not so far, but the list of previous husbands:

Mrs Crossley, who was previously married to Robert Sangster, the late Vernons pools heir and racing magnate, is trying to block Mr Crossley from using the agreement in the courts.The former model, whose first two husbands were the Kwik Save heir Kevin Nicholson and the Lilley and Skinner shoe chain heir Peter Lilley,

Rather Mrs. Merton, isn\’t it? So Mrs. Crossley, what was it that first attracted you to the multi-millionaires Sangster, Nicholson, Lilley and Crossley? And this current marriage seems to have lasted a long time too:

The couple drew up a pre-nup shortly before their marriage in January 2006, following a whirlwind romance.

However, after Mrs Crossley filed for divorce in August,

18 months, eh?

Anyway, the whole thing is going to become a test case: pre nuptial agreements don\’t really work in England because of the nature of the marriage contract: it over rides previous contracts. Things like wills for example. ("I thee with my worldly wealth endow" is a bit of a clue.)

When this has been discussed before it\’s been pointed out that Scottish law is very different: what you had before marriage remains yours, doesn\’t it? Perhaps that\’ll be the way English goes as well.

American Law

Odd:

AMERICA has told Britain that it can “kidnap” British citizens if they are wanted for crimes in the United States.

A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it.

I thought everybody already knew this? The US courts don\’t worry about how you got to be in one of them: that you\’re there is all they worry about.

Rape Conviction Rates

An interesting little point, one that I\’m sure most are not aware of:

The biggest is being propagated by politicians themselves. They repeat, ad infinitum, that the conviction rate for rape is scandalously low, at 5.7 per cent. They conclude from this that juries cannot be trusted. But 5.7 per cent is only the proportion of convictions secured out of the total allegations made, not the proportion of convictions secured out of the cases tried. The attrition rate in rape cases is high: only about 12 per cent of cases reach court. So in the courtroom, the true conviction rate is about 44 per cent, slightly higher than that for murder.

Whatever the problems are (if indeed there are any) it would appear that they\’re not in the courtroom. Thus, the solution, if any there should be, does not lie in changing the courtroom procedures.

More Screw Ups!

So Jack Straw is in the firing line for this one:

Hundreds of criminals, including those accused of sexual offences, have avoided prosecution after a "cover-up" in magistrates\’ courts, The Daily Telegraph can disclose.

Jack Straw, the Justice Secretary, is to admit that over a period of "many years" hundreds of cases never came to court because warrants were not issued for the arrests of defendants when they failed to show up at court.

It means that the offenders got away with their crimes. Mr Straw has known about the cases, which initially involved Leeds magistrates\’ court but are suspected could go much wider, for some weeks.

He has ordered an urgent inquiry because he is unsure whether the failures have been caused by gross incompetence, negligence or foul play.

Now, I wonder which of those it could be? And, of course, is it only Leeds? Incompetence, negligence, or foul play? We do have a clue though:

The problems stem from when the Magistrates\’ Courts Committee that oversaw those courts was scrapped in 2005. The new body, HM Courts Service, was set up and reported directly to the Home Office, and now the Ministry of Justice.

New officials at the HMCS carried out a "review of processes" and found that over a period of years there had been prolonged failure in issuing arrest warrants.

Looks like plain old governmental failure to me, bureaucratic incompetence. Obviously, I can\’t be certain, but that the problem is traced back to when the system was reorganised certainly points to the thought that it\’s the reorganisation of the system that\’s caused the problem, doesn\’t it?

Now of course, providing a sensible criminal justice system is one of the very top priorities of the State, up there along with defence. They are the essential part of any argument in favour of the existence of said State in the first place, in the right of it being able to tax us to provide those goods which can really only be provided both collectively and compulsorarily.

And if the State cannot provide those two, then what is the point of having it at all? Perhaps that will be too extreme for some: but if they cannot provide those two reasonably, then why on earth does anyone think it can make us all healthy, wealthy and wise?

Harsh, Perhaps, But Fair

“It was surreal – and never more so than when the police liaison officer told me that there was no question of a manslaughter charge because the law is not about consequences but about intent.”

Well quite.

What in hell does anyone think it\’s supposed to be about?

Robert Pickton

I have to say that Robert Pickton\’s lawyers are using a novel defense here. Pickton\’s accused of luring prostitutes and drug addicts back to his pig farm, having sex with them, murdering them and then dismembering the bodies and feeding them to said pigs. Perhaps 60 people all told. This might not be the strongest defense claim ever:

While the defence has acknowledged the remains were found on his farm, it argued that other suspects have been ignored and that the evidence – including skulls, hands and feet – was no proof of his guilt.

It might even be true but that\’s not how I\’d bet on a jury deciding.

Helena Wolinska

Interesting don\’t you think?

Helena Wolinska, 88, a former Polish prosecutor who has lived in England since 1972, is accused of fabricating evidence against Gen Emil Fieldorf, a member of the Polish resistance during the Second World War.

Mrs Wolinska, well known in the cosy academic circles of north Oxford, is said in her former guise as a Soviet magistrate to have masterminded his wrongful arrest and execution in 1953.

Since the overthrow of the communist regime, Gen Fieldorf has been posthumously pardoned and the authorities are chasing those responsible for the alleged miscarriage of justice.

Do we hound those who supported the leftist or Stalinist dictatorships to their graves as we do the fascist ones? Or don\’t we?

Banana Republics

This is interesting:

Victims of the bloody paramilitary conflict in Colombia are suing the US banana company Chiquita, accusing it of funding and arming guerrilla groups blamed for torture and thousands of killings.

The lawsuit, filed in New York, seeks $7.86 billion (£4 billion) on behalf of 393 victims and their relatives. They accuse Chiquita Brands of complicity in hundreds of murders carried out by the United Self-Defence Forces of Colombia, a right-wing paramilitary group known by its Spanish acronym AUC.

No doubt the civil suits agains consumers of cocaine are in preparation: they have been, after al, responsible for similar funding, have they not?

Abu Hamza Extradition

You know, this is one of those tough cases whih rather test one\’s devotion to civil liberties. That Abu-Hamza\’s a bad \’un is, I think, beyond doubt. However:

Abu Hamza al-Masri can be extradited to the United States, a judge ruled yesterday – three and a half years after the extremist preacher was arrested on a “fast-track” warrant.

Not happy about that. For, you see, he\’s a British citizen. Yes, I know, he may have got that through a bigamous marriage but the solution there is to prove that and then strip him of that citizenship.

Hugo Keith, representing the US Government, told the court that the cleric had been involved in “blatant violence, kidnapping and terrorist training”. Mr Keith said: “The general allegation is that Hamza is a member of a global conspiracy to wage jihad against the US and other western countries. He advocates the defence of Islam through violent, unlawful and armed aggression against the enemies of Islam in order to influence the US government.”

He may well be, I think the allegations (for whatever tiny amount my opinions are worth) probably are true. But, you see, in a free country, it is up to you to show that you have sufficient evidence for trial before you whisk him off to another country to try him. Whether or not he should be a British citizen, whether or not he will remain one, are not the issues: he is at present one and so should be afforded the protection of the State.

Yes, even though we\’ve got a law allowing these fast track extraditions: we shouldn\’t have that law is the point.

As Larry Flynt said about freedom of speech (wasn\’t it?), that\’s the whole point of such laws. If they\’ll protect bastards like me then you can be sure that they\’ll protect you, too.

I\’ve no problem with Abu Hamza being extradited, no hassle with the idea that he\’ll likely spend the rest of his life in jail, whether in Yemen or the US. All I want is that he gets the same treatment I would want for myself: that before extradition those doing the extraditing show that they have reasonable evidence for a trial.

Not this fast track shit.

Changing the Rape Law

One solution would be for specialist jurors to be brought in to try rape cases – people who won\’t assume that rape only happens between strangers.

Ouch! No, no, no!

For who would actually become these specialists? Sadly, only those with an axe to grind on one side or another of the argument. It would, by definition, no longer be an impartial jury.

Merck and Vioxx

A little more on that Vioxx settlement announced yesterday.

Merck, the US pharmaceutical giant, is to continue battling with hundreds of British claimants over its failed arthritis painkiller, Vioxx, in spite of agreeing yesterday to a settlement with US residents.

Merck agreed a $4.85bn (£2.42 bn) settlement, one of the biggest in history, with US claimants who blamed the drug for heart attacks and other side-effects.

But the company said this would not apply to British lawsuits or others round the world suing for compensation.

Hmm….now why would that be? I think that at least part of it is the difference in the way that legal fees are paid. Here, if you sue someone and lose, then you have to pay their legal bills. Over there, the colonial cousins have a rule that each side (except in exceptional circumstances) pays its own legal bills.

So, Merck lost the first big case and has then won a series of others (not all of them, but a majority). But even though they\’ve won them, even though they\’ve not had to pay damages, I\’ve seen it said that their legal bills were running at $600 million a year. Making a $4.85 billion settlement thus makes some sort of sense for them. It\’s not an admission of guilt so much as a simple trade off. A decade\’s worth of legal bills? Or pay them to go away?

The reason why people here aren\’t being treated equally is that if you sue Merck and lose, you owe them money. So the same pressure to settle isn\’t there.

Now, which system you prefer would tend to depend upon your views about consumers, companies and the lawyers in between them. Should we adopt the US system, meaning that it will be easier for those wronged to sue? Or should the US adopt loser pays? Meaning that fewer will have an opportunity to shake down the innocent, but deep pocketed, corporations?

Your call really, depends on the prejudices you bring to the start of the argument I guess.

Incitement to Hatred

I\’m really not sure that I follow the logic here.

The right to crack jokes or be rude about homosexuals could fall victim to new government laws to stamp out "homophobic" behaviour, Rowan Atkinson, the Blackadder star warned yesterday.

"Witness the fact that the Government has invited two additional groups – the disabled and transsexuals – to \’make the case\’ for the proposed legislation to be extended to them.

"I am sure that they could make a very good case, as indeed could all those who can claim that they cannot help being the way they are. Men, for example, or women. Or people with big ears."

Atkinson added: "The devil, as always, will be in the detail but the casual ease which some people move from finding something offensive to wishing to declare it criminal – and are then able to find factions within government to aid their ambitions – is truly depressing."

OK, all of that I understand and indeed agree with. It is, as he says, depressing. The bit I don\’t understand is this:

Jack Straw, the Justice Secretary, has told MPs that such fears are unfounded because he will shortly introduce an amendment to the Bill ensuring that cases can be pursued only when the offending words are specifically intended to pose a threat and are not merely humorous, mocking or abusive.

What\’s the point of that? As a lawyer, surely Straw knows (he\’s the bloody Lord Chancellor so we do hope he does know) that we already have a blanket law about incitement to violence. So why do we need a law about incitment of violence to gays, the disabled or the changelings? It\’s all already covered so why bother?

Double Jeopardy

This will, I\’m sure, be used as an example of why ending the ban on double jeopardy was both necessary and a good thing.

Police have confirmed that they are investigating new forensic evidence in the murder of Stephen Lawrence, which could lead to the re-arrest of five original suspects in the case.

Investigators working on the case have discovered fibres from Mr Lawrence\’s clothes on those thought to have been worn by the suspects, according to the Daily Mail.

The independent experts working for Scotland Yard have now, using new forensic technology, established a case against the five main suspects and another sixth suspect.

….

They could now face a re-trial if the new evidence links them to the murder, because the "double jeopardy" law, which stated a person cannot be tried twice for the same crime, was repealed in 2005.

And it would be difficult to argue against such a case in this, er, case. Technology has moved on and thus more things can be discovered as possible evidence.

However, the general case in favour of double jeopardy still stands. It isn\’t to protect those who have "got off". It\’s to protect us against the State. It\’s to protect us against being prosecuted repeatedly for the same crime until the "right" result is achieved. As such, whatever the details of this case, I would want to return to the position that the prosecution has one attempt only at trying to convince a jury.

Ýes, it will mean some guilty go free. But then that\’s what the system is supposed to do, isn\’t it? 100 guilty men go free rather than one innocent be jailed?

Zimbabwe Land Grabs

You can really rather sum up the entirety of the Zimbabwe disaster in this one paragraph:

But Gen Mujaji insists that he will stay on the farm regardless of the law. "I will only leave Karori if the minister of lands orders me. He is senior to the courts," he told The Daily Telegraph.

When the politicians are above the law disaster will inevitably follow. It\’s one of the scary things about both the UK and the EU at present. Ministers seem to think their decisions are more important than the law and the Commission is happily doing things it has no legal power to do. Of course, neither will lead to the complete impoverishment of us the citizenry, but it\’s the top of the same slippery slope.

 

 

New Have a Go Laws

So, why are we having a new look at the laws on self-defense, citizens arrests and so on?

But Mr Straw is understood to have decided new laws were necessary after he was involved in four "have-a go" incidents, which included chasing and restraining muggers near his south London home.

"I know from personal experience that you have all of a milli-second to make the judgment about whether to intervene," he will say. "In such a situation, the law on self-defence works much better than most people think; but not as well as it could or should.

Ahhh. Because one of the ruling elite has had personal experience of the current mess. That the personal is political we all know but to find that only the personal is political is something of a shock. So, given that we have a series of areas where the law needs changing let\’s set up a series of events that will force said ruling elite to sort out the problematic areas of the law, shall we?

Ben Bradshaw to be prosecuted for the use of cannabis. Ruth Kelly\’s children to be taken by social workers to meet adoption targets: the court, of course, meeting in secret. All Ministers, of course, subjected to tax audits on their perks of office (and, more importantly, the use of Grace and Favour housing when out of office).

Anyone got a few more bright ideas?

Warren Jeffs Rape Conviction

I\’m really not sure here, really not sure:

Warren Jeffs, the polygamous sect leader, faces the prospect of life imprisonment after he was found guilty of rape charges stemming from his role in the arranged marriage of a 14-year-old girl to her older cousin.

That he\’s a manipulative scumbag I am sure of, that he\’s no more a prophet than I am similarly. However:

Prosecutors accused Jeffs of forcing Elissa Wall, then 14, to marry and have sex with her first cousin, Allen Steed, 19. Lawyers for the sect leader had argued that Jeffs would not have known that rape would be committed after the marriage…..Under Utah law, a 14-year-old can consent to sex. But sex is not considered consensual if a person under 18 is enticed by someone at least three years older.

A personal opinion is that the prosecutors were looking for something, anything, to get him on. As has been noted elsewhere, Steed hasn\’t been charged with anything, so we\’ve got someone possibly getting life in prison for "enticement to rape" while the actual rapist (because if there was enticement which someone was guilty of means there was someone doing the actual raping, surely?) isn\’t charged.

Lasting Power of Attorney

There\’s a slight kerfluffle over the changes coming in about powers of attorney.

Obtaining powers of attorney over the affairs of a sick or elderly relative will cost 10 times as much, be more onerous and take far longer under rules to be introduced within a fortnight, lawyers have warned.

I have absolutely no doubt that this will be a screw up, given my enduring faith in the organisational abilities of our Lords and Masters. The Office of the Public Guardian will be as efficient and courteous as all of our bureaucracy, of course. However, looking at the actual form that will now have to be filled in, I can\’t say that I see it as being particularly horrendous. In fact, it all seems admirably clear: vastly better than any tax forms, for example. My only possible complaint actually is that social workers can sign off on it: do we have any that are sufficiently literate to write their own names?