Law

It\’s Not Just Max Moseley You Know

Some lauded them as plucky local heroes who harnessed new technologies to tackle problems that the authorities ignored. Others saw them as snoops with no regard for people\’s privacy.

Exasperated Madrid residents who filmed prostitutes negotiating with their clients outside their homes and broadcast them on YouTube have been fined for infringing the Spanish data protection Act.

Those privacy rights extend a lot further than some think.

Attacking in Self Defence

I think I agree here:

Nick Herbert, the Shadow Justice Secretary, said: "This is a typical Labour con – it will give no greater protection to householders confronted by burglars because it’s nothing more than a re-statement of the existing case law.”

Not that I\’m any sort of expert in the law, but isn\’t this simply a codification into statute law of what was already the case in common law?

When He\’s Right, He\’s Right You Know

George Monbiot on the libel laws.

Perhaps you don\’t live in England or Wales, so you think this has nothing to do with you. You\’re wrong. English libel law now applies to everyone on Earth. Make any accusation, anywhere in the world, and if the subject can demonstrate that a single person in England or Wales has read it, you could be sued here for every penny, cent, rouble, rupee or renminbi you possess. The internet and the global nature of publishing ensure that these medieval laws have become the most powerful extra-territorial legislation ever drafted.

Of course, readers around here would have known this some time ago. Like three years or so.

It gets worse though. Not only is everything ever read in England subject to the English libel laws: everything ever read anywhere is subject to the libel and defamation laws of that jurisdiction. It\’s a mess, one I have no idea how it might be fixed, but someone somewhere needs to do so.

Extending the Legal System

While, of course, everything should be done for the kiddies, this is a bit much.

The new rules, part of the Criminal Justice and Immigration Act 2008, will come into force on Monday.

In some countries, possessing indecent images of children is not illegal, or the age of consent is lower than 16.

The Home Office said British police would work with their counterparts abroad to bring offenders to account.

Current laws provide powers to prosecute for sex offences abroad only when they are illegal in that country.

The age of consent here in Portugal is 14. So someone could be prosecuted in the UK for something which is legal here? (Just to set minds at rest, no, this law isn\’t the reason I\’m here.)

Aren\’t we rather extending the law a little beyond the boundaries of the UK\’s territory here? Rather like people complain (rightly to my mind) about the way that the US does the same?

And would we like it if other countries started to do the same? There are countries where adulterers are subject to the death penalty: much as I dislike David Mellor I\’m really not certain that I\’d want the Saudi\’s to be able to behead him if he went avisiting.

Doesn\’t it also rather breach one of the basics of the legal code? That you can only be tried for things that were in fact a crime at the time and place they were committed?

Or does the fact that it\’s for the kiddies trump all such considerations?

That European Arrest Warrant

Such a lovely thing, isn\’t it?

You can be hauled off, no evidence required, to another country where you can be held for up to 18 months without charge.

You see, our fellow members of the European Union don\’t in fact have habeas corpus. Nor jury systems, most of them.

Aren\’t we so, sooo, lucky to be in an ever closer union with them and aren\’t we soooo, sooooo, lucky that we\’ve signed away the rights our forefathers fought for and, in some cases, died for?

This is the other side of, the cost of, common rules on the composition of compotes.

Well worth it, don\’t you think?

Anonymous Witnesses

This seems fairly clear:

Mr Straw said on Wednesday that “there is a difficult balance to strike here, between giving witnesses who fear for their safety the confidence to give evidence in court and ensuring that innocent people are not convicted”.

So what does a lawyer think of this?

He is wrong. There is no such balance. The law lords have repeatedly explained that Article 6 of the European Convention on Human Rights confers an absolute right to a fair trial, which cannot be balanced against other considerations, even in relation to measures taken to protect society against terrorism.

So, that seems to be that then, doesn\’t it?

And we shouldn\’t want it any other way of course.

Umm, Why?

Who is it that is trying to get Boris prosecuted for taking Tarik Aziz\’s cigar case?

And why are they bothering?

Would there be anyone so petty, so time-wastingly idiotic, as to complain? Alas, I forgot about the Labour Party. Five years after I found this memento, Labour stooges were recently combing my articles for anything discreditable to a Conservative mayoral candidate.

They found the article, and with bulging eyes they went to the Metropolitan Police and demanded that I be prosecuted. I am accused by my political opponents of removing a cultural artefact from Iraq. As it happens, I also have in my possession a letter from the lawyers of Tariq Aziz, informing me that Mr Aziz wishes me to regard the cigar case as a gift.

But never mind. The file has been opened at Scotland Yard; the proceedings have begun. The poor police have no choice but to investigate this ludicrous affair, and in the interim I am told I must hand the cigar case into police custody – or else be led in manacles from City Hall.

Seriously, why on earth is anyone doing this?

Hurrah for Law Lords!

Three witnesses identified him as the gunman. Davis claimed that he was the victim of false accusations from a jealous former partner but the defence could not be put to the jury – so as to protect the witnesses’ identities.

Lord Bingham of Cornhill, the senior law lord, said that it was a “long-established principle of the English common law” that, subject to some exceptions, an accused should be confronted by his accusers so that he was able to “cross-examine them and challenge their evidence”. Malcolm Swift, QC, for Davis, said that the ruling could deter witnesses from coming forward. “The House of Lords has reasserted a common-law principle that has existed for centuries, going back to Norman times, that a defendant can cross-examine those giving evidence against him,” he said.

You can\’t be tried and convicted without knowing who is accusing you, who are the witnesses and without being able to question them.

Sounds entirely logical and extremely fair.

Can\’t see why anyone would object actually. Sure, there\’ll be hard cases like the one above but seriously, if you were up on trial would you want to be faced with anonymous allegations? Ones which, because you don\’t know who they are being made by, you cannot refute or put in context?

No, so why should anyone else be put in that position: we are all equal before the law, are we not?

Changing the Bail Laws

Hmm, I\’m really not all that sure about this.

Murder suspects should not be eligible for bail except from in very rare circumstances, the Government is set to recommend. Jack Straw, the Justice Secretary, will announce a review into the bail laws. At the moment the judge has discretion in setting bail terms in murder cases.

Now we can see why Straw thinks a tightening up is necessary: that bloke Weddell strangled his wife then killed two more while on bail.

Howeverr, however, just because you\’ve been accused of, charged with, murder, doesn\’t mean you actually committed murder: that\’s what the trial is going to determine at some point in the future.

So a general assumption of no bail for those accused of murder is quite literally the jailing of the innocent.

A defendant is kept in custody if there are reasons to believe he or she will commit an offence or interfere with witnesses.

Those seem good reasons to deny bail: what you\’ve been accused of doesn\’t seem to be.

Sir Ian Blair

How did this dunderhead actually get to become one of the top policemen in the land?

Many public figures including Winehouse and Moss have escaped prosecution despite the publication of video footage which appeared to show them taking drugs.

Sir Ian said: "My position is that a sensible jury would not expect people to be sniffing talcum powder.

"I expressed my concern over the Kate Moss stories, we did that investigation and we hit the same issue.

"At the moment the law says you must be in possession of a Class A or a Class B to be prosecuted. If you are seen on film then nobody can tell what the substance is.

"I think it is reasonable for a jury to say: \’you convince me that you are taking talcum powder\’ because it is an unusual way to take it."

It\’s not up to the person being prosecuted to prove anything….it\’s up to those doing the prosecuting to prove any- and every- thing beyond a reasonable doubt. Someone filmed stuffing powder up their nose no more has to prove that it\’s talcum powder than they do that it\’s crystalised cat urine: the prosecution has to prove that it\’s something which it is against the law to either have or stuff up one\’s nose.

Fortunately, there is at least one person within the establishment who gets this.

But Sir Ken, the Director of Public Prosecutions, accused Sir Ian of "completely misunderstanding" the law and said that he was "extremely surprised" that the Metropolitan Police commissioner wanted stars to face a jury if they are caught on camera apparently snorting cocaine or smoking crack.

He claimed the suggestion that the CPS does not pursue drug-taking celebrities is "completely untrue".

Sir Ken said: "I\’m extremely surprised by comments attributed to Sir Ian Blair. If he is accurately quoted he appears to have completely misunderstood the law.

"The issue was not whether the white powder that Kate Moss was snorting was cocaine or talcum powder. The law required us to prove that it was either a class A drug or a class B drug. We could only base our case on one of these options.

 

Good Lord!

Mrs. Dromey is actually talking sense!

Miss Harman, who is also Leader of the House of Commons, was interviewed for Second Thoughts on the Family, which is published Monday by Civitas, the think-tank.

The book, which paraphrases her interview at her request, states: "Harman believes higher rates of separation are down to a positive: greater choice.

"Furthermore, she is keen to stress that in her view, no public policy can or should say that every couple whose relationship has broken down must stay together.

"For Harman, there is no \’ideal\’ parenting scenario. Longitudinal social research shows that having two parents produces the best outcomes, she says, but in her view the important thing for Government is to respect choices.

"For Harman, marriage has little relevance in public policy. Moreover, she thinks that marriage has probably got no more public policy bite in it than the Government saying that they would like everybody to be happy.

Most people, Harman believes, aspire to marriage, and want to stay together. She objects strongly, however, to the idea of any politician telling parents that they should stay together for the sake of the children."

It may well be true (it probably is true) that two parents are the best environment for children to grow up in, except when it isn\’t. But what that has to do with either government or the price of tea in China is harder to work out.

Government should indeed be respecting the choices that people make: we do after all, both hire them and pay for them. We should indeed be doing whatever it is that we damn well please as long as we are not interfering with or affecting the rights of others to do the same.

Sure, when we get to the details of policy this might be different, but at its core this is a simple statement of basic liberal (of the classical kind) values. You\’re free, an individual, and the Government\’s job is to protect you from others who would negate your rights and to stop you from doing the same in return.

We do of course have one teenise problem here: apparently this liberality only applies to familial structures. When, of course, it should apply right across the board. Drugs, education, ID cards, car seats, seatbelts….there are so many areas of life where such a similarly liberal attitude should, but does not, prevail.

"the important thing for Government is to respect choices."…..Quite. Now bugger off and do the things that only Government can do and therefore must and leave the rest of us alone would you?

The Compact

This isn\’t so much written down as it\’s part of the assumed compact between ourselves as individuals and The State.

One in three young people living in cities thinks it is acceptable to carry a knife in self-defence because violence is so rife, according to research revealed today. Teenagers and twenty-somethings have lost faith in politicians, the police or schools to protect them and increasingly believe they need to be armed to defend themselves against people of their own age. Nearly half said they knew someone who had been a victim of knife crime.

We allocate to it a monopoly of legal violence and in return it protects us from said violence. After the defense from violence from those outside said State, it\’s the most fundamental part of the bargain we make.

And if the State doesn\’t keep its side of that bargain, then do we have to keep our side, by continuing to rely upon its protection, or are we righteous in arranging for our own?

Now Let\’s Plan Crime!

Ministers are pressing ahead with plans to create a Sentencing Commission that will make sentences more uniform, allowing them to control and predict the flow of criminals into jails.

But the entire point of having judges decide sentences is that they, and they alone, are both trained in hte law and have heard all of the evidence at the trial. That\’s exactly why we give them the power of sentencing.

The Government said the commission would "enable better alignment of the demands and resources for correctional services".

Essentially, before sentencing someone to prison the judges will have to consider whether there is a place available.

This will lead to a rather interesting piece of gaming I think. Those defence lawyers who can predict when the prisons are full will try to schedule trials for those very times, thus reducing the sentences on offer to their clients. Not quite was we might intend, do you think?

That the sentence handed down does not depend upon the specifics of the case, but on how many other people have committed crimes at about the same time?

Bringing the Law Into Disrepute

A householder has been left with a £225 bill and a criminal conviction after over-filling his bin.

There was a time when we were largely a law abiding nation. The implicit deal was that there weren\’t that many laws which we had to obey and there was great social pressure upon people to obey them. A criminal conviction was, for example, a badge of shame for a large percentage of the population.

That deal rather breaks down when there are now a myriad of trivial things for which you can indeed gain a criminal conviction.

The 26-year-old claims that the bin was overfilled by four inches, although the council says it was "more like six".

Over-filling a bin….

A spokesman for Copeland council said Mr Wilson-Corkhill had been issued with an extra-large bin. "What we have to get across to people is that central government is asking us to reach strict targets on recycling. If we don\’t achieve them, we will be heavily fined."

That spokesman says more than he actually means there. For it is indeed the central government which insists upon these absurdities: the one in Brussels. It is they who insist that we should not use the simplest and most efficient method of waste disposal, landfill, and that we must meet absurd, costly and entirely counter-productive recycling targets.

Our provincial government at Westminster has nothing to do with it.

Can we leave yet?

Slightly Odd

The member of the Royal Family at the centre of an alleged £50,000 blackmail plot will not have to enter the witness box.

If he entered the witness box, he feared that he would be exposed in the same way that Prince Harry\’s secret Army mission to Afghanistan was reported in Britain after it was disclosed on the web.

Anyone who wants to know the identity can find it easily enough: probably already has done so.

This coyness thus seems a little odd. Unless there\’s some wory about what other questions might get asked while in the witness box?

Soldiers Rights

This all seems very strange to me I must say:

In a blow to Des Browne, the Defence Secretary, a senior judge said troops in combat zones have a "right to life" at all times, even while under fire on the battlefield.

Makes you rather wonder whether the politicians actually read and understood the Human Rights Act 1998 before they waved it into law.

This I rather like though:

But rejecting Mr Browne\’s bid, the judge said: "A finding that there was a failure to act in a particular way does not appear to determine a question of civil liability. I do not think that findings of fact, however robustly stated, can be forbidden."

Rock on Judge! A finding of fact being simply another word fo "truth".

It\’s Said That…

Hard cases make bad law. In this case I think it might be the other way around.

Abu Qatada, described as “Osama bin Laden’s right-hand man in Europe”, won his fight against deportation yesterday as the Court of Appeal delivered two blows to attempts to remove suspected terrorists from the country. Three judges blocked the deportation of Abu Qatada despite a “no torture” guarantee given to the British Government by Jordan.

The man (and the others affected by the ruling) seem like scum buckets to me, to be sure. But they are indeed human beings and as such have natural rights.  Fair trials, no torture and the like. And as we are (for the moment at least) a country under the rule of law, a law which acknowledges those natural rights, then they cannot be sent to a place where those rights are abridged.

The hard part is that such seeming scumbuckets get our protections: the good part that such protections are indeed enforced by the law.

As Larry Flynt memorably pointed out, if the law protects shits* like me then you can be sure it will protect you too. That\’s the whole point of it.

 

* (I paraphrase from memory, you understand.)

This Bomb Plot

OK, so these guys are alleged to have been plotting to blow up airliners. Here\’s how the bombs were supposed to work.

Is that the same bomb making method that was so compehensively shown to not work those couple of years ago? Or a different one?

Doesn\’t matter all that much to the court case of course: that their bombs might not have worked is no bar to their conspiring to make them so.

But anyone know?

Oh Dear Lord

From Guido, via email.

This.

Yes, they\’re reviving the Abolition of Parliament Bill (aka the Legislative and Regulatory Reform Bill) through the Constitutional Reform Bill.

Any Minister may reform any Act through the use of a Statutory Instrument.

Bye bye Parliamentary democracy, and a big Hellooo! to Henry VIII th powers.

Yes, this is a big issue, yes, it does go to the very heart of governance and no, we shouldn\’t let the bastards get away with it.

Spread the word.