The rule of law in the UK

http://ukhumanrightsblog.com/2013/11/11/renewable-energy-ambitions-of-the-scottish-ministers-trounce-the-law-of-the-land/

Jarndyce and Jarndyce: the great Grasp

'NatWest has been accused of "robbing" the victims of Jimmy Savile after the bank spent more than £1m earmarked as compensation for individuals sexually abused by the disgraced television presenter.

'The bank, trustee of Savile's estate, put on hold the distribution of its assets last October in the face of impending compensation claims from individuals sexually abused by the late DJ. The move was initially welcomed by lawyers representing victims on the assumption that it would ensure that the estate could provide compensation.

'The estate was worth £4.3m, but during the subsequent six months its value has fallen to £3m, a significant reduction that has infuriated lawyers acting for the victims of one of Britain's most prolific sex offenders.

'A legal source with knowledge of the Savile estate claimed that the reason for the huge drop is because of the costs NatWest is incurring in administrating Savile's estate, including its lawyers' fees. The expenditure has triggered accusations that money destined for the victims is being depleted at an alarming rate.

'A NatWest spokesman said: "All expenses to date have been approved through the court. We are working with the legal representatives of claimants and beneficiaries to agree future costs."'

***

'You are to reflect, Mr. Woodcourt,' observed Mr. Kenge, using his silver trowel, persuasively and smoothingly, 'that this has been a great cause, that this has been a protracted cause, that this has been a complex cause. Jarndyce and Jarndyce has been termed, not inaptly, a Monument of Chancery practice.'

'And Patience has sat upon it a long time,' said Allan.

'Very well indeed, sir,' returned Mr. Kenge, with a certain condescending laugh he had. 'Very well! You are further to reflect, Mr. Woodcourt,' becoming dignified almost to severity, 'that on the numerous difficuties, contingencies, masterly fictions, and forms of procedure in this great cause, there has been expended study, ability, eloquence, knowledge, intellect, Mr. Woodcourt, high intellect. For many years, the--a--I would say the flower of the Bar, and the--a--I would presume to add, the matured autumnal fruits of the Woolsack--have been lavished upon Jarndyce and Jarndyce. If the public have the benefit, and if the country have the adornment of this great Grasp, it must be paid for in money or money's worth, sir.'

'Mr. Kenge,' said Allan, appearing enlightened all in a moment. 'Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?'

'Hem! I believe so,' returned Mr. Kenge. 'Mr. Vholes, what do you say?'

'I believe so,' said Mr. Vholes.

'And that the suit lapses and melts away?'

'Probably,' returned Mr. Kenge. 'Mr. Vholes?'

'Probably,' said Mr. Vholes.


Charles Dickens, Bleak House, chapter lxv

***

We do things more speedily now.

UK gun control

The British Bill of Rights of 1689 restored the 'ancient right' to bear arms to Protestants that had been removed from them by the Catholic monarch, James II. The bill made that right "suitable to their condition and degree, and such as are allowed by law". It would perhaps in modern times be difficult to determine what kind of arms was suitable to any particular person’s ‘condition or degree’. I do not believe the question in practice arises since the common law right to bear arms (of any sort – even knife blades over three inches in length may not be carried in public now without reasonable cause) has always been subject to restriction by statute law, which has accumulated considerably. There were several acts in the 19th century that limited it, mainly aimed at, but not solely applicable to, Highlanders, vagrants and poachers: it must have been thought that their ‘condition or degree’ was not entirely self-evident in this matter. More widely applicable restrictive legislation was passed in 1903, 1920 and 1937. Those acts did not have criminals solely in mind. The 1968 act was a general codifying act that introduced further restrictions. Further legislation was introduced after horrific shooting incidents here, at Hungerford in 1988 and Dunblane in 1997. The result was to make this country one of the most restrictive of the right to bear firearms of any in the world and there was more legislation in 2006.

So strict is the legislation that the government had to allow special dispensation for the sports shooting events of the 2002 Commonwealth Games and the 2012 Olympic Games. It is actually illegal for sports pistol shooters to train in the UK.

All this must sound strange to many transatlantic ears, but there is remarkably little pressure here even from shooters and their organisations for significant relaxation of the law, and general public opinion apparently favours even greater control. The general US refusal to countenance legal restrictions on firearms is a topic of some fascination, and incomprehension, on this side of the Atlantic, even though we here have, in principle, a similar 'constitutional' right to 'bear arms' of our own.
Fully and semi-automatic weapons (often the focus of debate in other countries) are completely banned in the UK. No firearm can be bought or owned without being specifically licensed on a firearms certificate, for which the police must be satisfied in each case that the owner has good reason to possess that particular firearm and that he or she will not create a public danger. Shotguns are less strictly controlled and are quite commonly founf ein rrual communities but they must be capable of holding no more than three cartridges. Self defence is no longer regarded as a possible good reason for owning a firearm. Virtually no-one would dream of arguing that an individual's need to protect themselves from an over-mighty state could be regarded as good reason - either in general or, certainly, in particular. Ironically it could, I think, be argued that, although the meaning of the second amendment is disputed in the US, historically the British right to bear arms is theoretically more of a right counterbalancing state power, but that is certainly not an active issue in the UK.

The use and possession of firearms by criminals nevertheless remains a public concern, but, whether or not it is because of this legal framework, the UK has one of the lowest gun homicide rates in the world: in relation to population it is almost 43 times less than in the USA and 3 times less than in Germany. Most police are also unarmed and shooting fatalities of the police are also extremely rare: there were 3 in the ten years from 2000/01. However, armed police are becoming a more common sight, especially in locations thought to be vulnerable to terrorism - to the distress of some sections of society. So far surveys of rank and file police officers have found a majority opinion opposed to their routine arming with guns.
There have been a few cases of police shooting people either unnecessarily or entirely mistakenly, and they have attracted considerable public concern. One such case where the police appear to have been over-zealous or precipitate in shooting a criminal suspect has been the subject of inquiry that concluded in the past few days that the man was killed unlawfully. Such a case is not unprecedented but prosecutions, or even disciplinary sanctions, of indiividual officers seldom, if ever ensue. Such incidents, as wen a few years ago an innocent man was shot and killed by police as he left a public house because they assumed the wrapped-up table leg he was carrying was a firearm, provoke significant public concern, possibly fuelled by an apprehension that UK policing may be headed in an unwelcome 'American' direction.

The long arm of the law 4

Orgreave, Yorkshire, 1984

Mick Antoniw, Assembly Member for Pontypridd, is also pushing for an inquiry, noting that in relation to Orgreave: "No action was taken against the police in respect of fabrication of evidence or the attempt to pervert the course of justice."


Vera Baird, police and crime commissioner for the Northumbria area, said her experience as a barrister during the strike suggested that potentially there were hundreds of cases where police might have perverted the course of justice. She herself dealt with two or three cases a week during the strike, many involving "invented allegations, copied notebooks and allegations from officers that weren't even at the scene".


Baird, solicitor-general during the last Labour government, who represented a number of miners at Orgreave who were acquitted after police tampered with evidence, said: "It was scandalous. There were an awful lot of cases."



"At Orgreave in 1984, police officers on horseback and on foot were filmed beating picketing miners with truncheons, but South Yorkshire police claimed the miners had attacked them first, and prosecuted 95 men for riot and unlawful assembly, which carried potential life sentences. All 95 were acquitted after the prosecution case collapsed following revelations in court that police officers’ statements had been dictated to them in order to establish evidence of a riot, and one officer’s signature on a statement had been forged."

The long arm of the law 3

Ministers have agree to pay more than £2m to the family of a prominent Libyan dissident abducted with the help of MI6 and secretly flown to Tripoli where he was tortured by the security police of the former dictator Muammar Gaddafi.


The Saadi family had accepted a settlement of £2.23m, the high court heard on Thursday. The government paid the sum by way of compensation and without admitting any liability.

Evidence of the UK's role in the operation – believed to be the only case where an entire family was subjected to "extraordinary rendition" – came to light after Gaddafi's fall in 2011.

CIA correspondence with Libyan intelligence, found in the spy chief Moussa Koussa's office in Tripoli by Human Rights Watch, states: "We are … aware that your service had been co-operating with the British to effect [Saadi's] removal to Tripoli … the Hong Kong government may be able to co-ordinate with you to render [Saadi] and his family into your custody."

The operation was arranged in 2004 at the time of Tony Blair's "deal in the desert" with Gaddafi, after which UK intelligence services helped track down and hand over his opponents.

Another Libyan victim was Abdel Hakim Belhaj, who was rendered alongside his pregnant wife. A letter from the MI6 head of counter-terrorism Sir Mark Allen to Koussa, also found in Tripoli, said: "I congratulate you on the safe arrival of [Belhaj]. This was the least we could do for you and for Libya. I know I did not pay for the air cargo [but] the intelligence [on him] was British."

The long arm of the law 2

David Cameron has apologised to the family of the murdered Belfast lawyer Pat Finucane and agreed that there was state collusion between police officers and soldiers and his loyalist killers...

One of the security force whistleblowers in the Finucane case, the ex-military intelligence officer Ian Hurst, who belonged to a secretive army unit running agents inside the UDA, said there was little chance of either police or military handlers or their loyalist informers facing the courts. He has faced charges of breaching the Official Secrets Act for leaking information about the role of army intelligence in running agents within the UDA who committed crimes including the targeting of Finucane.

The long arm of the law

It's official: big banks are beyond the law:

The department spared HSBC a criminal prosecution only because it considered the bank too big to prosecute. Listing a catalogue of mistakes by HSBC over almost a decade, the DoJ admitted that "collateral consequences" were a factor in its decision not to pursue criminal charges. Those consequences, it said, could have included a ban on doing business in the US, resulting in huge job losses.

Corporations are 'regulated'; private citizens are prosecuted; senior executive are (once in a while) deprived of their honours (but not their pensions).

The great Grasp

'You are to reflect, Mr. Woodcourt,' observed Mr. Kenge, using his silver trowel, persuasively and smoothingly, 'that this has been a great cause, that this has been a protracted cause, that this has been a complex cause. Jarndyce and Jarndyce has been termed, not inaptly, a Monument of Chancery practice.'

'And Patience has sat upon it a long time,' said Allan.

'Very well indeed, sir,' returned Mr. Kenge, with a certain condescending laugh he had. 'Very well! You are further to reflect, Mr. Woodcourt,' becoming dignified almost to severity, 'that on the numerous difficuties, contingencies, masterly fictions, and forms of procedure in this great cause, there has been expended study, ability, eloquence, knowledge, intellect, Mr. Woodcourt, high intellect. For many years, the--a--I would say the flower of the Bar, and the--a--I would presume to add, the matured autumnal fruits of the Woolsack--have been lavished upon Jarndyce and Jarndyce. If the public have the benefit, and if the country have the adornment of this great Grasp, it must be paid for in money or money's worth, sir.'

'Mr. Kenge,' said Allan, appearing enlightened all in a moment. 'Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?'

'Hem! I believe so,' returned Mr. Kenge. 'Mr. Vholes, what do you say?'

'I believe so,' said Mr. Vholes.

'And that the suit lapses and melts away?'

'Probably,' returned Mr. Kenge. 'Mr. Vholes?'

'Probably,' said Mr. Vholes.

Charles Dickens, Bleak House, chapter lxv

Windfall fines - confidential briefing

Not for Publication (NfP)

The Department will be announcing at the next suitable opportunity (Breakfast-time Christmas Eve - BCE) that the Windfall Licencing Fines and Penalties Bill (WLFPB) will be withdrawn from the current legislative programme due to unforeseen pressure on the legislative schedule and the Ministerial Mind (MM).

We shall not, however, be abandonning this vital piece of Public Service Reform (PSR) and it will be reintroduced at the earliest opportunity. The Consultative Process (CP) has now been concluded and positive representations will be incorporated into the Bill. The Tendering Process (TP) for the Enforcement and Oversight Contract (EOC) is well under way and the Windfall Agency (WA) has already been set up as an arms length body under Ministerial Directive (MD).

The legislation will not apply to Scotland (NOB), but fruit is not thought to form part of the Scottish National Provender (SNP), and as there are many times more sheep than Scotsmen they would probably have got round it anyway (GRIA).

Windfall fines update 1

Typical English orchard

My Departmental staff have drawn to my attention that Minimum Flock and Herd Levels (MFHLs) would need to be set to avoid abuse of the Sheep and Pig Exemption (SPE). Otherwise anyone could avoid the tax with any doddering old ram (DOR) in their orchard. Following publication of draft MFHLs, the Department received representations from the Society for the Preservation of Ancient and Historic Orchards (SPAHO) pointing out that some historic varieties of apple and pear trees (APTs) have low cropping ratios (LCRs) and that they consequently require a lower flock or herd level to consume the likely Total Windfall Amount (TWA). (Why are shepherds called shepherds when they look after flocks? A Departmental Working Group (DWG) is currently examining this question and will be reporting in 2015.) The Department has also received a vigorous communication from the Guild of Goose and Swanherds (GGS) complaining that their exclusion from the SPE or similar scheme will cause the elimination of historic goose varietiess (HGVs) that have roamed the nation's orchards for centuries and form part of our historic heritage (HH). I have therefore announced a Listening Pause (LP) in the legislative process, following which I shall proceed with my original intention (POI).

Tox take two

I am much taken by an interesting comment on the artistic status of Daniel Halpin’s (‘Tox’) work from Dominique Hurle that has appeared in the Guardian Letters page:

“I should like to defend Daniel Halpin (or "Tox") against the charges of certain establishment figures – police, popular artists, and prosecutors – that his work amounts to nothing more than trivial but pervasive vandalism, lacking in skill or merit (Tox tagger faces prison, 8 June).
I have enjoyed Mr Halpin's work since I started to travel to London extensively and would see "TOX 06" emblazoned on mile after mile of train carriages, railway sidings, bridges and buildings. Its ubiquity, regularity and apparent pointlessness is what makes the work a powerful critique of the monotony and triviality of the many signs and notices put up by the state which bear instructions, prohibitions and statements of the obvious.
When I walk down a street and see in the space of half a mile 20 metal plaques bearing all manner of petty injunctions – "No drinking in this area"; "No parking on matchdays 6.30pm–8.30pm"; "Dogs to be kept on leads in the park" – I feel, to borrow vocabulary from Detective Constable Livings, the state has committed a selfish vandalism which scars the environment and contributes to a sense of oppression, anxiety and lack of personal agency.
As artist Ben Flynn says, Mr Halpin's work is indeed "incredibly basic" and lacking in "style". I think that's the point.”

It would seem that the courts and the experts have simply failed in their art criticism: Mr Halpin’s art is an installation and assessing just one of his tags is like criticising Andy Goldsworthy for the configuration of a single twig.

I wonder whether Dominique Hurle has considered the possibility that the authorities responsible for those petty injunctions are themselves a bunch of artists – of some description – and that we inhabit a total art form, with a larger concept. Perhaps that was what Kafka or Lewis Carroll had in mind.

Is it art? II

A jury has decided that the graffiti of Daniel Halpin, who signs or ‘tags’ himself as ‘Tox’, is not art and so, by default, must be criminal damage. The perpetrator seems headed for prison.

The courts used to be called upon to decide whether usually literary works were art – and so could be excused the charge of pornography. (So little was the establishment’s belief in the power of art that it was thought only trash could deprave and corrupt – I suppose that belief was born of their long experience of falling asleep at the opera.) The burdens imposed upon the judicial mind move on, whilst the essential absurdity remains.

In the case of Mr Halpin other artists, somehow sanctioned by society, have turned state’s evidence against him. A certain Mr Ben ‘Eine’ Flynn, whose work has been presented to Barack Obama by David Cameron (I bet they put it on the wall just whilst he’s visiting) – so it must be art, although Mr Flynn too has previously clocked up five convictions for criminal damage in the past. You might think he was in danger of losing his licence, but somehow the process seems to work in the other direction. He testified as an ‘expert witness’ (that category responsible for many a conspicuous miscarriage of justice) that Tox’s ‘tags’ and ‘dubs’ were ‘incredibly basic’, lacking ‘skill, flair or unique style’. That seems a little reactionary: is Mr Flynn spearheading a campaign for the restoration of life drawing to our art schools? Apart from ‘unique style’ the same was probably said of every major artist since Van Gogh.

Not even Halpin’s record of being able to earn money from his work secured his status, nor his claim that the offending items were actually the work of forgers – forgeries presumably being society’s ultimate validation of art.

So it would appear my walls are protected by the majesty of the law from ‘basic’ graffiti, but not from that Leonardo turning up and decorating them with his ‘Last Supper’. All I could do last time was to give the place over to the horses. Where’s the law and order agenda? I blame that pinko, Ken Clarke.

Justice delayed is justice denied

In the High Court in London the other day Mr Justice Tugendhat observed that “It is a further requirement of justice that the court should not make a finding adverse to a person in circumstances where that person has been given no warning of the case which is advanced against him or her.”

Was he rebuking the government over their application of anti-terrorist ‘control orders’ or whatever they are now termed?

No, he was commenting on tabloid newspapers’ recent attempt to have the privacy injunction on the former head of Royal Bank of Scotland lifted: "Sir Frederick Goodwin and the lady had had no opportunity to respond to the case in court."

My heading is usually attributed to William Ewart Gladstone, British Prime Minister and bane of Queen Victoria’s life, but this and other legal principles are equally honoured, in the breach if not the observance, in both this country and the United States:

"A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law - in the larger sense - cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets." Burger, What's Wrong With the Courts: The Chief Justice Speaks Out, U.S. News & World Report (vol. 69, No. 8, Aug. 24, 1970)

Sir Fred, and all other anonymous citizens, may take comfort that they will be spared the law's delay, even if not the proud man's contumely.

Twitter ye not

To prevent Twitter posters from defying English 'privacy' legal injunctions (see Super good faith yesterday):

"... experts claim that lawyers at Schillings, who represent the professional footballer at the centre of the row, would need to file their case in California to have any success  and this would require them to publicly reveal the name of their client."

Who said the law was an ass? Not in California. But surely litigants are: what clearer confirmation could there be that the Twitterers have correctly identified the footballer than to threaten to suppress them by law?

"Twitter has been seeking to find a European base in London. It is not known if the recent row has made the company change its plans."

See also...

Super good faith

Legal injunctions prohibiting the publication of information about the supposedly private lives of famous people enjoying seven figure remuneration, such as bankers and football stars, have recently been defied by postings on Twitter and the internet.

(American banks tend to call it not 'remuneration' but 'compensation', and it normally comes in 'packages' - compensation for what private loss, one wonders - in this country bank compensation more normally means payments to depositors in failed banks.)

To return to the defiance of injunctions: ‘Lord Judge said he believed that ways would be found to curtail the "misuse of modern technology", in the same way that those involved with online child pornography were pursued by the police. "Are you really going to say that someone who has a true claim for protection perfectly well made has to be at the mercy of modern technology?" he asked.’

Our culture secretary, the celebrated Jeremy Hunt, accused Twitter of 'making an ass of the law'. It was of course Charles Dickens in Oliver Twist who famously yoked together the law and an ass, when he had Mr Bumble observe that if 'the law supposes that your wife acts under your direction' then 'if the law supposes that ... the law is a ass'. Well, Mr Hunt is only our government minster responsible for culture, but had he been a little more familiar with his Dickens he might have concluded that the law is not being made an ass now, but is already an ass for supposing that Twitter will act under his or its direction.

Abhorrent though the activities of paedophiles are, there is something deeply disturbing about the almost unrestricted panoply of official investigation, restrictions, and surveillance, and public demonization being applied to the internet pedlars of inconvenient or even false information. Lord Judge’s sentiment may be laudable, but his proposal presages a new apparatus of official control whose application will outrun the avowed intentions of those who introduce it, and will include no protection for the unprivileged from 'the proud man's contumely ... the law's delay, the insolence of office'.

‘The report also says that media reports of comments made in parliament which set out to contravene injunctions may be in contempt of court. Reports of statements in the Commons and Lords are only protected by parliamentary privilege if they are published "in good faith and without malice".’