Law

Harry Mount

Not quite I think:

There\’s a lawyers\’ saying about people such as Heather Mills who represent themselves in court – the client who chooses himself as his lawyer is a fool.

Isn\’t the phrase rather, he who chooses to represent himself has a fool for a lawyer?

Plea Bargaining?

Eeeek!

Finally, to help the FSA do its job, we need a formal process of plea bargaining in a financial court. Our prosecutors\’ record on white collar crime is so dismal because we tie one hand behind their backs.

In the face of potential financial ruin there is often little incentive other than to plead not guilty and fight. A formal system of plea bargaining would allow a defendant to cut a judicial deal, knowing that in return for a guilty plea his lawyers will be able to negotiate a punishment. It works in the US. It\’s time it worked here.

The way it "works" in the US is that people get charged with everything, from mail and wire fraud through dodgy accounting to torturing kittens. Faced with millions, if not tens of millions, in defense costs and the prospect of decades injail, they thn negotiate down to the wire fraud, at which point they still get ruined by civil suits. Launched, of course, on the back of the fact that they are now convicted criminals.

Prosecutorial abuse is widespread in the US. No, let\’s not import that system into Britain, shall we? Not everything American is better than what we already have and their legal system is one of them.

Des Browne

How did we end up being ruled by this ghastly little spiv?

Des Browne, the Defence Secretary, has gone to the High Court in an attempt to prevent coroners criticising the Ministry of Defence at military inquests.

Coroners are one of the most ancient parts of our legal system and they exist for a very specific reason. To find out why someone died. If the MoD were responsible for said death then it is their duty to say so: that\’s actually what they are for.

Or in Year 11 is criticism no longer allowed?

Err, Rod?

There\’s a reason for this you know?

The point at issue, though, is much broader: the law suggests that she has a “natural” right to a slice of her exhusband’s fortune; even Paul has resigned himself to this. And yet what moral justification is there for such a claim? I dare say Mr Justice Bennett, with his long and noble legal training, will put us right on this.

" I thee with my worldly goods endow". Recognise the phrase?

What he should have done of course is go and live in the house on the Mull of Kintyre for the year before divorcing her. Under Scottish divorce law (so I\’m told) he would only have had to split any money that came in during the period of the marriage.

Not Justiciable

The planned new Bill of Rights.

The new Bill of Rights will not be legally enforceable, the Justice Secretary is set to admit.

Jack Straw is expected to indicate that it is likely to set out a framework of collective values aimed at fostering a sense of national pride.

Given that it will contain economic and social rights, this is probably wise. But it will mean that the whole exercise is simply posturing: and won\’t give any protection at all to civil liberties, which is what such things are supposed to be about.

Broonian motion again, eh? Random flappings leading nowhere.

Erm, Excuse Me?

MINISTERS want to block the phone numbers of prostitutes who advertise their services in newspapers and telephone booths in an attempt to stifle the illegal sex trade.

Police forces would identify suspected prostitutes to the telephone companies, which would be required to cut off their numbers.

Have we actually had the government taken over by raving lunatics?

A telephone company is a private business. A legal one I might add. And prostitution is also a legal business.

How in fuck can ministers assume to intervene in a private contract between two entirely legal businesses in this manner?

Sharia Law

I have to admit that this whole furure over the recognition of sharia law or not in the UK has me rather bemused. Giggling even.

Senior religious leaders attack multiculturalism and sharia law today, warning that they are "disastrous", socially divisive and are destroying Britain\’s culture and values.

It\’s not just the oft used comparison with aspects of Orthodox Jewish law and the Bith Den (or is it Beth Din, I can never remember?).

There was, some years ago, a case where a certain Mrs. Cohen, who was a convert to Judaism, found out that in the eyes of that religion her (long, and fruitful) marriage ws not in fact a marriage as Mr. Cohen, as a part of the tribe of Cohanim (I think I\’m getting that word correct) was not allowed to marry a convert, only one born into the religion. This of course had no effect whatsoever on whether Mrs. Cohen was married or not in English law, nor whether the Cohenettes were legitimate children or not. They had married in a ceremony legal under English law and that was that.

Lord Carey and Cardinal Cormac Murphy-O\’Connor rebut the call of the Archbishop of Canterbury, Dr Rowan Williams, for Islamic law to be recognised in Britain.

Lord Carey, the former archbishop of Canterbury, said: "His acceptance of some Muslim laws within British law would be disastrous for the nation. He has overstated the case for accommodating Islamic legal codes.

"His conclusion that Britain will eventually have to concede some place in law for aspects of sharia is a view I cannot share.

"There can be no exceptions to the laws of our land which have been so painfully honed by the struggle for democracy and human rights."

The giggles rather come from the former Archbishop of Canterbury saying such a thing. Has he never heard of Canon Law? That is, a different and discrete system of laws within our society that applies to one group and one group only: the Church of England and its priests (and sometimes its adherents)?

Our Cormac also piles in: yet while a Catholic might legally divorce the Church will not recognise that, while a Catholic may remarry after such a divorce, the Church will not recognise that. We already have a splintered legal system.

And not just for religous matters either. To sign up as a doctor puts you voluntarily under the legal system of the General Medical Council, as a solicitor under the Law Society. Many contracts insist upon arbitration clauses.

To add another system of law which people might vountarily sign up to, namely sharia law, doesn\’t seem to me to be a breach of anything at all. Indeed, such private legal systems seem to be rather the system.

With one proviso of course: that such systems are kept in their place. A subservient one. That the Catholic Church can ignore the divorce law is fine: but not that the law insist that Catholics cannot avail themselves of it. That an arbitration clause in a contract be enforced is fine, as long as there can be appeal to the courts as well. That the religious definition of a marriage be defined by the religious courts? Not a problem: as long as those requesting the legal protections of the law of the land marry in a legal ceremony. (Worth noting here that there is no difference in law between a marriage that takes place in a church, a synagogue or a registry office. The same legal process has taken place, whatever the mummery that is dressed around it. That bit where they go off to "sign the registry": that\’s the legal process, however many hymns are sung around it.)

The idea of sharia law in England simply isn\’t a problem. As long as it is, as with these other private legal systems, subservient to the main legal system itself.

I haven\’t read Rowan Williams original remarks (the man sends me to sleep, sorry) but while he is indeed a bearded leftie, he\’s also far too clever a man to have been suggesting anything else. At least I hope so.

Poker is a Game of Chance

Discuss.

Poker is a game largely dependent on luck, the Court of Appeal ruled yesterday.

I\’ve a vague feeling (based on nothing more substantial than a dimly remembered novel) that thisquestion has been asked a number of times in English law, and that the answer has varied over the years.  Different Gaming Acts and court rulings have placed the game on one side or the other of the dividing line between game of chance and game of skill.

What amuses though is that poker is indeed a game of chance: if you\’re bad at it. If you actually have any skill at it then, umm, it becomes a game of skills. The chance part is indeed what cards you get: the skill is what you get others to bet given the cards you have.

Legal Question

Do we, in the UK, have a statute of limitations?

I don\’t think so, do we?

So if someone had, say, smoked pot, 30 years ago, they could still be prosecuted?

No, I know, they wouldn\’t be, but they could be?

Kidnapping Babies

A reminder of why we actually have a legal system, judges and all:

The High Court judge said that “on the face of it” social services acted unlawfully in taking the baby away from the 18-year-old mother without obtaining a court order.

Mr Justice Mumby said that the officials involved in the Nottinghamshire case “should have known better”.

The child, who cannot be identified, was born healthy at around 2am yesterday and taken from his mother without her consent at 4am.

Local social services had shown hospital staff a “birth plan” detailing how the mother, who suffers from mental health problems, was not to be allowed contact with the child without supervision.

However Mr Justice Mumby said that no baby can be removed “as the result of a decision taken by officials in some room”.

The judge ordered that the baby be immediately returned to his mother, who can only be referred to as "G".

Yes, even officials, doing it  "for the children", must obey the law.

 

Statistics, Statistics

According to The Guardian not enough women or ethnic minorities are being appointed as High Court judges.

But a Guardian review of selection shows that those appointed since last September are remarkably similar to those selected under the old process. All 10 are white male former barristers and six of the nine educated in Britain went to leading independent schools belonging to the Headmasters\’ and Headmistresses\’ Conference.

They tell us that people have to apply now….but the one thing they don\’t tell us is the gender and racial make up of the applicant pool. Only by looking at the success rate of such from applying to appointment can anything interesting be said about whether there is discrimination in the appointment process.

Unfortunately, the numbers are not given on the JAC website.

Dear European Union

Please fuck right off.

Proposals, to be agreed by Baroness Scotland QC, the Attorney-General, at a meeting of EU justice ministers next week, enshrine "procedural" guidelines setting out the circumstances for quick extradition of people convicted in their absence.

A draft text, seen by The Daily Telegraph, notes that existing rules do not "deal consistently with the issue of judgments rendered in absentia". "This diversity complicates the work of the practitioner and hampers judicial co-operation," it states.

Human rights and civil liberties campaigners fear the new EU rules breach a fundamental principle of British justice: that defendants must have their day in court to defend themselves.

Britain does not convict people or hold trials in their absence but many EU countries, including Belgium, France, Spain Greece and Italy, do so on a regular basis.

No, not having this. It may be true that our Continental cousins are quite happy to bang someone up without hearing their side of the story, without even informing them that a trial is taking place. We do not do this and there is no way we should start to do so…nor allow and facilitate the banging up of Britons by said Continental cousins.

One of the first duties of the State is to protect the rights of the citizenry, this is an obvious breach of said rights.

Bugger off.

Argle, Argle, Argle

Damn this is supremely annoying.

Europe is Europe\’s last remaining realistic political utopia. But Europe remains to be understood and conceptualised. This historically unique form of international community cannot be explained in terms of the traditional concepts of politics and the state, which remain trapped in the straitjacket of methodological nationalism. If we are to understand cosmopolitan Europe, we must radically rethink the conventional categories of social and political analysis.

Wibble wibble, Nuremberg Trials, wibble, Churchill, wibble, New World Order, wibble….

Can we please get something transparently clear? Europe is a continent. It doesn\’t do anything, doesn\’t mean anything and is not a model for anything. It simply is. The European Union is a political construct. This might mean something, might do something and might be a model for something. I happen to think that it means bad things, does bad things and is a poster model for something that should be abolished.

But the European Union is not Europe and should not be confused with it.

 

Explaining The Rape Conviction Rate.

Well, the G does have a go at it. Somewhat unconvincing though. Their rape victim used as a story was a escort raped by a client (tortured very badly as well). Yes, it is still rape but it\’s perhaps not the most representative of tales to use. The lawyer though is highly amusing.

Miranda Moore QC, barrister with wide experience of prosecuting and defending in rape cases

Rape as an offence is given far less importance than it used to be. I want it treated as the serious crime it is, with enough funding to attract the highest quality counsel, for both the prosecution and defence. Twenty years ago it was not unknown to have a QC prosecuting. These days it\’s exceptional. Rape cases need people who have been doing it longer and have a feel for how a case should be prosecuted. I can walk into a case and give the CPS a list of 20 things that should have been done. Experience shows that in many cases they will have not. The other thing is meeting the victim. As a prosecutor, 99.9% of the time you only meet on the day of the trial. Victims go on an orientation visit to court in advance with a police officer but there\’s no funding to meet the barrister. You couldn\’t discuss the case, but it would be reassuring for the victim during the trial to see somebody ask her questions she knew rather than a stranger.

High priced specialist lawyer says the solution is to spend more on high priced specialist lawyers. Surprise, eh?

Changing the Driving Laws

This all seems to have got everyone terribly confused.

Drivers who kill could escape being sent to jail under new sentencing guidelines for the courts.

The new proposals are set to put judges on a collision course with prosecutors because they appear to end a crackdown on dangerous driving, announced last month.

I\’m drawing on something that The Magistrate said and I hope I\’ve got all of it right.

Last month the CPS published guidelines recommending that motorists caught using a hand-held mobile phone while driving could be jailed for two years.

The Crown Prosecution Service does not in fact decide what sentences people get. Judges do that. Further, the CPS does not determine who is found guilty of what crime, juries do that. What the CPS does do is determine who gets charged with what crimes. So the new guidelines were instructions to the CPS\’ own staff as to what they should charge people with given certain circumstances. There was no change in the law whatsoever.

Only those found by the courts to have been "dangerously distracted" by a mobile phone, an iPod or another electronic device, will be routinely jailed, it was reported last night. The Sentencing Guidelines Council is headed by Lord Phillips, the Lord Chief Justice, and lays down rules on sentencing for judges and magistrates.

What the Sentencing Council is discussing is the penalties that should apply given a finding of guilty (by a jury) on specific charges. This has entirely bugger all to do with what the CPS decides to charge someone with. There is no conflict here at all.

Now, given that I, with no legal training, and on the basis of a single blog post from one wih such training, am able to work this out, why can\’t a newspaper?

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?