Entries Tagged 'Politics' ↓
August 13th, 2012 — Crime, Human Rights, Politics
If you’ve been remotely following the legal news, you’ll have come across #Porntrial. I’m not going to go into the details, which are accurately summarised by Nick Cohen.
A recurring theme of the coverage has been to blame the CPS, and Keir Starmer personally as DPP, for pursuing these cases. In short, prosecutions weren’t in the public interest and charges should not have been pressed.
But is it fair to lump all the blame on the CPS this way?
The public interest test is not as straightforward as commentators imagine. How it works is set out in detail in the Code for Crown Prosecutors. Specifically:
4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.
The CPS is required to work from a presumption that prosecution is in the public interest, and only decide otherwise if there are specific factors pointing against that presumption (again, these can be found in the CCP). If someone has done something that meets the evidential test for criminal liability, then one has to assume prosecution is in the public interest absent any special factors. In this case, it’s hard to see what those factors could have been.
The CPS’s public interest test does not allow them to decide which laws they wish to enforce. It is there for exceptional circumstances that suggest prosecution should not occur. But it works upon the basis that behaviour attracting criminal liability should be prosecuted in the absence of those circumstances.
The real problem here isn’t with the DPP or the CPS. The problem is with the law. This is an area that is notoriously retrograde. Laws on ‘extreme pornography’ were criticised at the time for the potential to result in precisely such a prosecution as happened here. They remain deserving of that criticism. Section 63 CJIA ’08 is sloppy, poorly-defined, unjustified knee-jerk legislation.
Put simply, a prosecution such as that of Simon Walsh was simply waiting to happen. That the CPS were obliged to prosecute is not particularly their fault: faced with a straightforward contravention of the law and an absence of special factors, their discretion was seriously limited. They don’t get to choose which laws to enforce.
The real target of people’s attentions should not be the CPS, but the law they were required to enforce.
February 22nd, 2012 — Constitution, Politics
Occupy London Stock Exchange have lost their appeal against the decision to turf them out of the churchyard of St. Paul’s.
I haven’t read the judgment in its entirety, but thought I’d pick up on one specific aspect.
At paragraphs 29-31:
- With the exception of Ms Samede, the defendants making the present applications are seeking to set aside all the orders made by Lindblom J, on the basis that they contend that the Judge ought not to have found for the City at all, but should have dismissed the claim and allowed the Camp to continue in place. It is convenient to deal first with one or two rather esoteric arguments raised by Mr Randle-Jolliffe.
- First, he challenged the judgment on the ground that it did not apply to him, as a ‘Magna Carta heir’. But that is a concept unknown to the law. He also says that his ‘Magna Carta rights’ would be breached by execution of the orders. But only chapters 1, 9 and 29 of Magna Carta (1297 version) survive. Chapter 29, with its requirement that the state proceeds according to the law, and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England, but it has no bearing on the arguments in this case. Somewhat ironically, the other two chapters concern the rights of the Church and the City of London, and cannot help the defendants. Mr Randle-Jolliffe also invokes ‘constitutional and superior law issues’ which, he alleges, prevail over statutory, common law, and human rights law. Again that is simply wrong – at least in a court of law.
- Another ground he raised was the contention that the City had no locus standi to bring the proceedings ‘as the current Mayoral position has been previously usurped by the Guilds and Aldermen in Contravention of the City of London’s 1215 Royal Charter’. We do not understand that point, not least because both the Lord Mayor and the Aldermen and Guilds (through the Commonalty and Citizens) are included in the claimants.
This is yet another case in which Freeman ideas have been decisively rejected by a court. Another reasonably high-profile case is Doncaster MBC v Watson and Haigh  EWHC B15 (Fam). At the lower end of things, the courts are alive to their existence and prepared to take robust action to prevent it wasting their time.
The problem I have, and it may be because I’m feeling charitable, is that I genuinely don’t understand how, by their own logic, Freemanry is supposed to work.
Set aside the massive conceptual problems the idea has. Let’s concede arguendo that the Freemen are right and that the institutions we call courts aren’t really courts but commercial operations, and that they do not recognise the supremacy of Magna Carta, “common law” and other superior forms of law. Let’s also suggest for the moment that statutes really do require consent to be binding, and the “courts” are fundamentally wrong in suggesting otherwise. Let’s assume all of that for the moment.
The problem I have in understanding this is that, even if this were all to be correct, I cannot see how it advances their goals one bit. Freeman tactics and techniques are used, not in the support of principle, but as a straightforward practical tool. It’s used to evade: being bound by injunctions; eviction; parking tickets; criminal prosecutions and debts. These are primarily practical matters. The Freeman ideas are not used on the strength of their moral philosophy or legal analysis, but because they offer you a quick fix. In short, Freemanism is about providing something that works.
But it’s manifestly obvious that, even if the Freeman analysis of the law sketched above is correct, it is entirely ineffective in practice. Even if you refuse to recognise the moral or legal authority of the courts, it cannot be denied that they have real, practical power. Indeed, Freemen tend to refer to these institutions as “de facto courts”. These courts do not recognise the validity of Freeman principles and arguments. Any such argument advanced before them is going to fall entirely flat and be entirely unsuccessful.
Why, then, persist? If your goal is to take a stand on a matter of principle, fair enough. But this isn’t where Freeman arguments are deployed. They are used like any other legal argument: to achieve a practical outcome in your favour. Yet they stand zero chance of achieving that if we discount any nuisance effect it might have. Freemen go to court to win, but even on their own analysis, the fora in which they use their arguments will not accept them, making loss inevitable.
I can’t be the only one thinking this.
UPDATE: Paul Randle-Joliffe, one of the litigants in this case, has got in touch to ask me to point out that the ideas sketched out, after the quote from the judgment, as a summary of Freeman legal analysis do not represent the submissions he made before the Court of Appeal.
March 17th, 2011 — Constitution, Politics
I have absolutely no idea how I’m going to vote in the AV referendum. It’s not a straight PR-FPTP debate, so the usual arguments don’t apply. On the other hand I don’t quite understand what effect it would have on the electoral system, and thus the relative advantages and disadvantages.
The Yes and No campaigns have been lamentable. As far as I can tell they have spent most of their time talking to each other, usually whining about each side’s tactics. No2AV have been engaged in dirty tricks and some very bizarre scaremongering (apparently a Yes vote is also a vote in favour of abolishing maternity units). Similarly the Yes campaign makes a lot of criticisms of the existing system and FPTP, but does very little in the way of positively explaining why AV, as opposed to any other system, is the right solution other than a generall mumble about ‘fairness’.
In other words we have two uninspiring and negative campaigns generating more heat than light. I feel neither wiser nor better informed for all their bluster and campaigning.
Given the potential constitutional ramifications of this referendum, we deserve better. Merely abstaining isn’t really an option, tempting though it may be.
To that end I plan to open out my blog to discuss the issue in more detail. The aim is to have an honest discussion of the actual issues underlying the AV. No bluster, no tactical posturing, no dirty tricks.
I’m hoping to start with a podcast debate and take it from there, with (preferably) some guest posts. I’ve already got Mark Thompson, of Mark Reckons, for the first podcast, but I need more people for that and others.
If you’re interested and want to help out, please let me know.
February 13th, 2011 — Crime, Human Rights, Politics
ObiterJ covers the http://obiterj.blogspot.com/2011/02/protection-of-freedom-bill-published.htmlbackground to the decision in Hirst v UK at Law and Lawyers. It’s a very good introduction and worth a read.
Taken at face value this does no more than impose a general duty on states to hold effective elections. However, in Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 the European Court decided that certain individual rights were necessarily implied in Article 3 – i.e. a right to vote in elections and a right to stand for election. Later cases have added that, if elected, the person has a right to sit in the legislature.
December 3rd, 2010 — Crime, Politics
Phil Woolas lost his appeal over the Oldham East and Saddleworth election. A by-election will now have to be held.
The Judgment and a useful executive summary can be found over at the Judiciary website.
Meanwhile, David Chaytor has pleaded guilty to false accounting contrary to s.17 of the Theft Act 1968.
The judgment of the Supreme Court that upheld the rulings that parliamentary privilege did not apply in this case have just been put up, and a useful summary by WLR daily has just come out.