Friday, 29 June 2007

All change!

So, the exams are finally finished, and I need to work out what to do with all of my time again, other than listen to music and watch tennis. It reminds me muchly of what Tony Blair said. I like him much more now that I don't have to hate him being a Labour MP. He was a good, reasonably R-W PM. I remain gravely worried about the 'constitutional reforms' Jack Straw is announcing today. The chap who introduced the Lords Reforms a few months ago now runs our constitutional affairs. Not encouraging.

Anyway, I digress: what did Tony Blair say about Thursday? He said that it was the little things which were most noticed: that life was good, and it was right to retire, but also that all of those annoyances and pleasures which had been a staple figure for a decade had gone. And that, he said, felt strangest.

It's the same with me. Watching tennis and pondering what to blog about is lovely: I don't have to work. But at the same time, there's an emptiness: that bit where I used to feel guilty for not working is gone.

Ah well! It's all change, and I hate change. To compound the situation, some idiot's got a party this evening which I don't really want to go to.

P

Friday, 22 June 2007

A little introduction

I have recently received a few requests (and contrary requests) to give you all a little mini-series of legal posts. I know more of the law than I do of other issues, so I'd be happy to oblige. Somethings, however, will require a reasonable knowledge of the way our legal system works, and how others do. So, without further ado, here's an introduction to our legal system and that most brilliantly British master-piece, the Common Law system.


Trials


Before we go back to the origins of our current system and its nature, we may as well deal with the Courts. In Britain, we have separated legal systems. Scotland works differently from England and Wales, with a separate legal system, separate body of professionals, and of courts. The only Court in England which has jurisdiction over Scotland is the House of Lords, which is a UK-wide body.

The European systems use a different system of trials than we do: they have inquisitorial judges. We have judges who are umpires, and judge what is presented to them. On the continent, the judges are investigators, and are involved in more than simply what is presented to them. We, on the other hand, have an adversarial legal system. It applies the Socratic principle that the truth is best determined by weighing up the most powerful arguments on either side. In essence, advocates are hired to make a sides case, pick holes in the other side's case, and then the judge or jury decide which is true. It's a blunt but reliable trial method. The European systems use one slightly different: they have inquisitorial judges. We have judges who are umpires, and judge what is presented to them. On the continent, the judges are investigators, and are involved in more than simply what is presented to them.


Types of Law

It is very important to clarify the three broad types of law. This is generalised, but essential. First is Criminal law. You commit a crime, you are prosecuted. This is judged in a criminal court, by Magistrates or Judge and Jury. (We'll deal with the different courts in a moment.) The state considers crime its own responsibility, not simply that of the victim.

Second is private law. This is commonly called civil law, from its common reference to civil procedures, when one citizen sues another. Negligence, contracts, damages and divorces all fall under the civil, not criminal jurisdiction. Civil cases are dealt with by different courts to Criminal cases.

The third - less well-known - element is public or constitutional law. This includes our constitution, the balance of power, the rule of the state, and administrative law, such as planning procedures and the like. Public law cases rarely come before the courts, but are increasingly.


The Courts

As in any country, Britain has a hierarchy or Courts. There are, as I outlined above, almost completely separate systems for the different types of law. What follows is a simplified version of the system, which will be sufficient for our present purposes:

Criminal Law


95% of criminal cases are dealt with by Magistrates' Courts. Magistrates are laymen, instructed by legal experts, who decide the facts and apply the law. The court is usually comprised of a bench of 3 Magistrates, but could be comprised of a single District Judge: a legal professional.

Cases which are of sufficient gravity or are particularly controversial will merit a Crown Court hearing. This is the stereotypical court: barristers, a Judge, and a Jury. The judge decides points of law, sentencing, and 'umpires' the trial: the Jury decide the facts.

The distinctions are well described by Wikipedia:

Offences are of three categories: indictable only, summary and either way. Indictable only offences such as murder and rape must be tried on indictment in the Crown Court. On first appearance, the Magistrates must immediately refer the defendant to the Crown Court for trial, their only role being to decide whether to remand the defendant on bail or in custody.

Summary offences, such as most motoring offences, are much less serious and most must be tried in the Magistrates' Court, although a few may be sent for trial to the Crown Court along with other offences that may be tried there (for example assault). The vast majority of offences are also concluded in the Magistrates' Court (over 90% of cases).

If one side wished to appeal against a trial decision, there is a system of appellate courts. the Crown Court hears appeals from Magistrates' Courts.

The next step is where it gets complicated, but to keep it as simple as possible, appeals from cases first heard in the Crown Court (where the Crown Court is the 'Court of first instance') are heard by the Court of Appeal (Criminal Division) by three Lords Justices. They decide points of law, problems with trial procedure, and assess new evidence. They can quash convictions, order re-trials, or change sentences. The Dando murder case has just been referred again to the Court of Appeal, on grounds that there is new evidence. Where the Crown Court was hearing an appeal from a Magistrates' Court, further appeals go to the High Court for appeal (see Civil courts, below), then to the House of Lords.

Appeals from the Court of Appeal will reach the House of Lords, or rather the Appellate Committee of the House of Lords. This comprises 5 Law Lords. This is the senior court of appeal. After this, only the European Courts or legislation can change a result.


Civil Courts


Many minor civil cases are heard in the County Court. This is the workhorse of the civil system. It deals as the court of first instance with all claims of less than £50,000, and includes the Small Claims track, known colloquially as the Small Claims Court. The famous recent cases of bank charge reclamation are County Court cases. they are heard by a District or Circuit Judge.

The court of first instance for major Civil cases is the High Court, which also hears appeals from the County and Crown Courts. The High Court is divided into divisions:

  • The Queen's Bench Division, which deals with two distinct types of case. The first is that it deals with contracts, personal injury, and negligence. It is also a supervisory court. The QBD will hear appeals from lower courts.

  • The Chancery Division deals with business law, trusts, land law, company law, and other such issues.

  • The Family Division deals with divorce, medical treatment, children and wills.

High Court cases are heard by High Court Judges. There are no juries.



Civil appeals from the High Court go to the Court of Appeal (Civil Division), once again heard by three Lords Justices. Further appeals again reach the Appellate Committee of the House of Lords.

Last of all, the Divisional Court, part of the High Court, hears mostly Judicial reviews: a recent innovation allowing people to dispute executive government decisions, both locally and nationally.


There: I think I've managed them all! Here's a handy diagram in case your head has just exploded like mine did:

I'm conscious that I've already included an awful lot of information, so I'll leave the second bit until a later point. Hope you got it all. if not, ask and I'll be happy to clarify.

P

Wednesday, 20 June 2007

Gaza

It is fitting today to comment upon the situation in Gaza, but, given the fact that I've not yet done sufficient French revision, I shall have to be relatively brief. Some time ago I wrote a similar post on the palestinian Problem. I expressed hope that the air strikes on Palestine by Israel would bring the Palestinians together. Unless you live in a hole, you'll know that it has not. But given the significance of today for Gaza, I'd like to share a few thoughts with you.

Hamas and Democracy

The Palestinian President, Mahmoud Abbas, has dissolved the Hamas-led Palestinian authority. To us sensible Brits, this seems at first the right move. Their militants have been fighting in the street, and they don't even move to separate themselves from rebels. A state of emergency is reasonable, one might well say. However, it does raise huge problems. The first move of the USA was to recognise the new government, and to condemn Hamas. This is only to be expected. The USA hadn't recognised Hamas's administration, on the grounds that it was terrorist. The logic, however, is worryingly wobbly. Terrorism is unacceptable to the US because it is not democratic: it is the military subversion of government. Yet Hamas were elected by free and fair elections, partly in protest against Fatah's corruption. This has not been questioned. I think it will remain unquestioned. Is that really the right mindset?

Violence

That question having been raised, however, we must look at another issue. Surely there is no place in politics for the existence of an Authority (not a government) which calls for the utter destruction of another state. Unfortunately, for me to hold that position would be somewhat naïf. China does not recognise Taiwan, for example. More worrying still, however, is the utter violence that we've seen. The Palestinians are brawling awfully. We have simply been witnesses to one of the bloodiest coups in recent history, trying to oust a political faction which still has power - the President is from Fatah, so co-operation and compromise are necessary. Palestinians have killed each other in the streets, even whilst they were being bombed by the Israelis. Can we entrust to them the running of their own state? Unlikely. Can we trust them to keep peace in the Middle east? Certainly not.

Alan Johnston

Today marks 100 days since the BBC journalist was taken in Gaza. he's a great man, as you will all have heard! I'd exort you to petition with God and the PM et al to secure his release. Interestingly, though, Hamas have made a good political move from this. They have asserted what new authority they have over Palestine to attempt to secure his release. Today they have even promised that they will consider it their responsability if no progress is made. That's more than anyone else has done. It's most laudable. This is quite probably why hamas have made the move. Nonetheless, it does make them more than mere terrorists. If they begin to act as a responsible government, I think - given their democratic mandate - it might just be right to accept them.

Alan Johnston banner

Tuesday, 19 June 2007

The Pulley

Plenty for me to talk and rant about, but you'll have to wait a little longer I'm afraid. So I'll leave you with a fitting poem I discovered whilst working yesterday:


The Pulley

When God at first made man,
Having a glass of blesings standing by;
Let us (said he) pour on him all we can:
Let the world's riches, which dispersed lie,
Contract into a span.

So strength first made a way;
The beauty flow'd, then wisdom, honour, pleasure:
When almost all was out, God made a stay,
Perceiving that alone of all his treasure
Rest in the bottom lay.

For if I should (said he)
Bestow this jewel also on my creature,
He would adore my gifts instead of me,
And rest in Nature, not the God of Nature:
So both should losers be.

Yet let him keep the rest,
But keep them with repining restlessness:
Let him be rich and weary, that at least,
If goodness lead him not, yet weariness
May toss him to my breast.

George Herbert

Friday, 8 June 2007

A bowl of Petunias, anyone?

For some time, Justitia has been calling me to tell you a little more of current legal issues. Hopefully we'll see a few of them. First of all, though, current legal affairs. Civil liberties and terrorism are once again lowering their heads for the charge.

The proposals

Gordon Brown and John Reid have had a good time of announcing some anti-terrorism proposals recently. Presumably because the political world is on stand-still until the 27th June.

Detention without charge

Heading up the proposals once more is the wish they share to extend the time that one can be held (under anti-terror laws) without charge to more than 28 days. This means that someone, at the moment, can be held for a month without being formally accused of any crime. That in itself is highly questionable. What happened to the principle of not imprisoning someone without a trial?

This principle was first set down in 1215, in our famous Magna Carta:

XXIX. Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.

(XXIX. No Free man shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.)

Magna Carta is perhaps too often quoted by our civil rights movements. But it is important because of one fact: it is the first set of laws stipulating how our country should be run: it is our first attempt at limiting the power of the State. It worked: ever since, we've not had a police state. There have been a few hiccups here and there, but we've been free from Soviet/Nazi-style oppression. I'm very concerned about this lengthening of detention without charge. Very concerned indeed.

Post-charging questioning

Another proposal is to allow police to question a suspect after they have been charged. Now this sounds, at first, to be a sensible move. Why should the police have this artificial barrier to questioning? Thinking about it further has perturbed me increasingly, though. Consider the principles involved. When a person is charged with a crime, that means that a prosecution will (probably) occur. It means that the prosecutors have sufficient evidence to proceed with a trial with the probability of a conviction. That means that they must be convinced a Jury could be sure of the person's guilt. In terrorism offences, when a person is charged, they will generally appear before a Magistrate, plead 'not guilty', and proceed to a Trial by Jury and Judge in the the stereotypical court-case. This will happen a lot later.

Such changes in the law as are proposed would change all of that. For 3 months, a person could be held in police cells, then charged. Then he could be questioned further - (for how long?) - before appearing before a court. This will lead to a trying time for the accused - he could be questioned by police daily for months before appearing in court whilst they try to scrape together the evidence to have a chance of conviction. Of course, I am presenting the worst-case scenario - or at least a bad one. But we cannot assume we'll only arrest terrorists. Think of the police shooting of the innocent Asian chap in Forest Gate last year.

The Control order furore

All of this could possibly be tolerated if it weren't part of a wider worrying trend away from a free society. The worst part, I think, has been the row over control orders. Control orders are used when there is insufficient evidence to try someone, but the government believes them to be a terrorist. They're often similar to house arrest. Recently, 3 men on control orders absconded. John Reid's reaction was nauseating:

"They were brought in because the courts prevented the government from jailing people who were believed to be terrorists...we were stopped from jailing them because we didn't have the evidence to convict them here."

Can Dr Reid be serious? Are we to accept that control orders - questionable in themselves - don't work? And are we to accept his excuse - that the House of Lords, that august body (and seemingly more concerned with democracy than the government) had told him it was illegal to bang people up in jail without trial? It really does defy belief.

But what shocks me most is that no-one's kicking up a storm in our slow but steady slip towards a police state.

P