Government influence over the judiciary

The Times is reporting that the Lord Chancellor maintains a list of judges and magistrates who have been disciplined for misuse of their computers. The offences apparently include the viewing of pornography.

I'm amazed that the article doesn't discuss the obvious implication of the existence of this list, which is that the judges and magistrates concerned can no longer be considered to be independent of the government. They are so obviously open to blackmail that they must be considered incapable of performing their jobs.

The Government is currently refusing to release even the numbers of judicial staff or offences involved - someone more cynical than me would point out that this conveniently retains the power of blackmail with the government. But there is no doubt that at the very least, the names and offences will have to be released, or the culprits quietly released from their positions.  While the information is secret, these people are tainted with the suspicion that they can be influenced, and that strikes hard at the independence of the judiciary.

Why you should carry a truncheon and why it's legal to do so

Firstly a caveat. I'm no sort of a lawyer and I'm not qualified to comment on this kind of thing. The wise course of action would probably be to shut up, but I'm a blogger so wise courses are not par for the course. I'm relaying something I came across on a forum for criminal solicitors called, um, criminalsolicitor.net, which must rank as one of the most interesting threads I've read.

It was started by a solicitor whose client was accused of carrying an ASP - apparently a kind of extending truncheon. He had been seen with it by police, who had responded when he telephoned them after a bin had been thrown through his window and he had been verbally threatened. While he was acquitted, the exposition of the relevant law was fascinating. (Of course, whether it is a correct exposition is another matter).

Some of the positions made on the thread are:

• Common Law, and its declaration in the Bill of Rights of 1689 allowed ordinary citizens to carry weapons.
• For the law-abiding citizen at least, this position was not changed by the Prevention of Crime Act 1953, which was only intended to prevent criminals from carrying weapons. This is confirmed by the Hansard record on the Parliamentary debate of the time.  There is also a clue in the title of the Act.
• The PCA 1953 did not repeal the Bill of Rights explicitly. Subsequent case law has shown that the BoR, as a constitutional act, cannot be repealed implicitly.
• PCA 1953 did, however, reverse the burden on proof, requiring the accused to show prove their innocence using one of the available defences of "lawful authority" or "reasonable excuse". It is argued that "lawful authority" refers to the common law right to carry a weapon which is declared in the Bill of Rights.
  
• Most defences under PCA 1953 have used "reasonable excuse". Case law has shown that carrying a weapon on the offchance of attack is not reasonable. If you are threatened, however, it is.
• The "lawful authority" argument has been untested by the courts, apart from some non-binding comments in a "reasonable excuse" case which argued that it referred to police and military carrying of weapons.
  
• The term "lawful authority" is not defined in the act. This being the case, the question is asked "Where does a policeman derive his lawful authority to carry a truncheon?". There is no legislation conferring this authority. It is argued that the only place it can come from is the Bill of Rights/common law and the duty to preserve the peace - ie the same place as everyone else. Again this seems to be confirmed by the Hansard record in which it is explained that it refers to the common law duty to preserve the peace.
  

So, if they are right, ordinary citizens are allowed to carry arms. Indeed one of the commenters claimed to do so as a matter of course. He said that he'd never had any trouble with the police either.

I can't help but think back to the guidance on self-defence issued by the Home Office a couple of years ago which was a masterpiece of obfuscation. If they'd said it's alright to carry a truncheon for your defence, all would have been clear. 

But is it right? 

Escaping the courts

Via PJC Journal, the ruling of Lord Justice Sedley in the case of UMBS Online Ltd. v. the Serious Organised Crime Agency and Her Majesty’s Revenue and Customs.

In setting up the Serious Organised Crime Agency, the state has set out to create an Alsatia – a region of executive action free of judicial oversight. Although the statutory powers can intrude heavily, and sometimes ruinously, into civil rights and obligations, the supervisory role which the court would otherwise have is limited by its primary obligation to give effect to Parliament’s clearly expressed intentions.

PJC journal makes an apt comparison to the setting up of the Gestapo. 

Tessa Jowell

Please go back to money laundering.

A question for Liberal Democrats

If, when faced with an oppressive law introduced by the UK government, the correct response is to get rid of said government, why is the correct response to oppressive EU directives to try to persuade them to become more liberal?

Better off out, surely? 

Must-read post of the day...

...is this one by Peter Risdon, on the subject of the racism and xenophobia directive.

The only honourable course must be to pledge not to be bound by this legislation, should it come into effect, whatever the consequences might be.

I make that pledge. My freedom of speech is not negotiable.

He can count me in too. 

From the comments, this listing of the reasons given for the American Declaration of Independence is also instructive.

"HE [George III] has erected a Multitude of new Offices, and sent hither Swarms of Officers to harrass our People, and eat out their Substance."

And...

"HE has combined with others to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws..."

And...

"FOR imposing Taxes on us without our Consent..."

And...

"FOR depriving us, in many Cases, of the Benefits of Trial by Jury..."

And...

"FOR taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments..."

It's a pretty damning indictment of us as a people that we seem to be willing to tolerate what proved so utterly intolerable for the Americans. Some might argue that the difference is that we have the democratic process to rid ourselves of a government which treats us in this way, but it's not an argument that can be sustained for very long. We might get rid of Blair, or Labour, or any other government that enacted this kind of legislation, but this will not stop the legislation being imposed on us by the EU.  That's why it is impossible to be a liberal and to support the EU. That's why we need to get out.

Ever had the feeling you're being watched?

Nigel Farndale, writing in the Sunday Telegraph, relates the story of a friend who was paid a visit by the local constabulary.

His mother rang to tell him that he had left the barrel of a shotgun - only the barrel - out of the cabinet. He said he would pop over next day to put it back. Before he could, the police arrived at the house and said they had reason to believe that there was a gun on the premises that was not under lock and key. The only way they could have known this was by intercepting his call.

Why, Farndale asks, are the police monitoring his friend's every call? The unwritten implication is that the police have got better things to do with their time than sit and listen in to the telephone conversations of taxi firm owners in rural Nowheresville. Somehow though, I think things have moved on and there is no need for policemen to sit listening in to the minutiae of school runs in the sticks. I'm sure I read somewhere that software now exists that will automatically monitor telephone conversations for key words and phrases like "gun", "get the" and "shove it up Blair's bottom". So it's much more likely that every telephone conversation of every gun owner is being monitored by a computer, or worse, that every telephone conversation in the country is routinely checked.

Perhaps somebody braver than me would like to do a test: ring a pal, and tell him you'd like him to drop the Uzi round in the morning. If the police break the door down shortly afterwards then we know something's amiss. Any volunteers?

The EU is a database state

It's getting increasingly difficult for anyone to argue that the EU is a force for good in this country, its shutting down on BBC Jam notwithstanding. The CAP, the CFP, the bureaucracy, the corruption, the destruction of our common law tradition - these are just a few of the evils that have been inflicted on us by Brussels. There's no sign of it stopping either.

Proposals for a centralised database of fingerprints from across the Continent were revealed yesterday, fuelling fears on all sides of a Big Brother Europe.

The scheme for a computerised collection of personal details drawn from all 27 countries in the EU is the latest in a raft of anticrime measures in the wake of the 9/11 attacks in the United States.

Britain would be expected to contribute all the details held by police. These include fingerprints of suspects and people released without charge, as well as those convicted of crimes. The plan coincides with the Home Office preparing to expand the range of people fingerprinted to include those caught speeding or dropping litter.

I sit and stare at that last sentence, stupified by it.  We actually seem to be sleepwalking into something out of 1984. I grew up thinking that, as an Englishman, I had won the lottery of life.  I was, by and large, free. I had the rule of law, civil traditions, and policemen who would give you directions when you were lost. But what am I to tell my children now? That if they drop litter, they will be arrested and taken to a police station where their mouths will be swabbed and their DNA taken, to be retained indefinitely and passed around Europe? That these policemen are there to protect them? That they should expect to be monitored by CCTV everywhere they go.

What are they doing to my country?  What the bloody hell are they doing to my country?

Quote of the day

In the light of the Patrick Mercer affair, this is worth revisiting. 

Our merely social intolerance [of dissentient opinion], kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion. With us, heretical opinions do not perceptibly gain or even lose, ground in each decade or generation; they never blaze out far and wide, but continue to smoulder in the narrow circles of thinking and studious persons among whom they originate, without ever lighting up the general affairs of mankind with either a true or a deceptive light. And thus is kept up a state of things very satisfactory to some minds, because, without the unpleasant process of fining or imprisoning anybody, it maintains all prevailing opinions outwardly undisturbed, while it does not absolutely interdict the exercise of reason by dissentients afflicted with the malady of thought. A convenient plan for having peace in the intellectual world, and keeping all things going on therein very much as they do already. But the price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind. A state of things in which a large portion of the most active and inquiring intellects find it advisable to keep the genuine principles and grounds of their convictions within their own breasts, and attempt, in what they address to the public, to fit as much as they can of their own conclusions to premises which they have internally renounced, cannot send forth the open, fearless characters, and logical, consistent intellects who once adorned the thinking world. The sort of men who can be looked for under it, are either mere conformers to commonplace, or time-servers for truth whose arguments on all great subjects are meant for their hearers, and are not those which have convinced themselves. Those who avoid this alternative, do so by narrowing their thoughts and interests to things which can be spoken of without venturing within the region of principles, that is, to small practical matters, which would come right of themselves, if but the minds of mankind were strengthened and enlarged, and which will never be made effectually right until then; while that which would strengthen and enlarge men's minds, free and daring speculation on the highest subjects, is abandoned.

John Stuart Mill On Liberty 

Voices from Blair's Britain

We are supposed to be a 'free country' yet it's always like we have to answer to 'Big Brother' I'm really sick of it! I'm sick of being petrified of my postman, sick of being 'scared' to answer my phone! Sick of being answerable to anyone and everyone about what I choose is best for my own child! When will people realise that when you have a child, you have the right, as the parent, to choose what is best for your child, and your decisions should not be questionable?!

A home educator, writing on a private online forum.

There are now apparently between 100,000 and 200,000 home educating families in the UK, most of whom have a healthy scepticism of the good intentions of the state, and particularly of the current incumbents. That could easily be 100,000 votes for any political party which says it will make it easier to home educate and will prevent local authorities from oppressing those who choose to educate "otherwise".

Why don't you stick that in your manifesto DK?