Archive | October, 2012

Still in Prison

31 Oct

Carl Gardner writes an interesting piece on Scoppola here <click left>. The writer had noticed some of these oddities about the Scoppola judgement – but the ECHR may try to correct them another way.

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Now Who Does He Have In Mind … ?

29 Oct

Tony Blair has decided that the European Union’s problems (or some of them, to be fair) could be solved by having an – er – proper President of Europe – a continent-wide elected post, as someone to act as a focus of loyalty (and/or loathing) across the Union. To be fair again – this blog tries to make a habit of it – Mr Blair is suggesting that the title be President of the Council (of Europe ? of Ministers ?) or of the Commission (isn’t that post occupied ?) – but one can see how it would be abbreviated, if only (of course) for brevity, not (oh, no, of course not) to confuse its status with that of eg – oh – President of the United States of America, for instance ?

Regrettably, the Evening Standard newspaper and its commenters seem to think – cynics all – that Mr Blair has someone already in mind for the post <click left for link>….

None So Deaf …

27 Oct

The Government has been accused of confusion on the issue of giving the vote to prisoners. More precisely, on giving the vote to some prisoners – no-one is suggesting giving the vote to murderers and rapists – but the point is being treated as one of principle – should you lose (it is implied, temporarily) your civic right* to vote when you lose (ditto) your human right to liberty as a result of a sentence of imprisonment ?

In a series of cases (Hirst, Greens, Scoppola v Italy) the ECHR has made it clear that they regard the Right to Free Elections as requiring that prisoners have at least some opportunity to vote, and so a blanket ban on prisoners voting is unacceptable. Whatever one makes of the logic of this, the ECHR’s Grand Chamber has made its overall position reasonably clear in Scoppola v Italy (No 3) earlier this year: (1) A blanket rule is inappropriate for a basic human right,* (2) some relationship between crime/sentence and ban is expected, and (3) discretion for the Judge is at least preferable.

Given that the UK currently has just such a blanket rule – conviction = loss of civic rights* for duration of sentence – what is to be done ?

Adam Wagner worries on the Human Rights Blog that this is going to cost the UK Government a lot of money. Joshua Rozenberg worries in The Guardian that this is a snub for Dominic Grieve QC the Attorney General, who has been more conciliatory about the ECHR than most Conservative MPs, and will damage the UK’s international standing. Adam Wagner commented also about the Government’s approach being “like a ping-pong ball in a wind tunnel.”

With respect, these worthies misunderstand.

Dominic Grieve QC has the natural (and, to this lawyer, commendable) tendency of lawyers to dislike overstatement and to treat all law as one and equally to be obeyed, however unpleasant and whatever its merits. He is doing the job of Government’s/Crown’s Chief Law Officer with admirable impartiality.

However, the fact is that just as the previous Government never quite got around to giving prisoners the vote – they preferred ‘consultations’ – so this one has no such plans. Indeed, the Opposition have made it so politically toxic that they dare not.  The tabloid headlines practically write themselves, and would allow the Opposition to paint themselves as standing up for law & order. That’s politics.

*The elision is deliberate. Some seek to distinguish them.

Latest from Strasb(o)urg

25 Oct

The ECHR (European Court/Convention of Human Rights – but if you read this blog you knew that by now) recently achieved the improbable feat of making the confusing Search Engine for its very good Cases Database (HUDOC) even more confusing than before.

To compensate, they have also published an instructional video on YouTube. This is the simplified version of the video – apparently a more sophisticated one will be issued shortly. To be fair, this simpler video does actually explain an otherwise mystifying interface rather well. The more traditional Manual is here.

News from the Past

17 Oct

An item on the BBC website leads to this interesting piece by writer Miranda Kaufmann. It is not so much that it is a recent discovery – none of it is wholly news to the writer – but that it is probably not well known (or at all) beyond the ranks of those who have for whatever reason researched the field, and that that may be rather a pity. As one who has in vain sought Cartwright’s Case (1569) in the past, the reference to John Lilburne’s Star Chamber Trial is especially helpful. Now to remember where online I found a copy of Howell’s State Trials …

Mrs May’s Decision

17 Oct

To general surprise, Theresa May the Home Secretary blocked the extradition of the (alleged ?) Computer Hacker Gary McKinnon to the United States to stand trial. The Statement to the Commons and debate is here. It would appear that this was the response to McKinnon hacking into the US Military (‘the Pentagon’)’s PC systems and leaving mildly rude messages – the explanation put about on McKinnon’s behalf being that he was looking for evidence of UFOs. Joshua Rozenberg suggests in The Guardian that Ms May had no real choice on Human Rights grounds: – that her career would be over if McKinnon killed himself in a US jail. With respect, this is surely wrong – the obvious comparison point is Abu Hamza, now already in the US Prisons System. A US reaction is awaited – insofar as they appreciate that their prison system is being severely criticised.

Reconstruction (Part 1)

12 Oct

The writer was made to read – or to try to read – Lord Devlin’s The Enforcement of Morals at school. He did not get a huge amount out of it – although he accepts that that may have been a comment on him. It strikes the writer on reflection – prompted by someone dissing Lord Devlin’s arguments as ‘laughable’ and ‘offensive’ (possibly at least partly tongue-in-cheek ?) – that this book never featured in his LLB Jurisprudence module, apparently on the basis that Lord Devlin was obviously wrong.

Perhaps the writer is being contrary, but – with so many and such opponents, perhaps Lord Devlin had a point ?

The writer hazily recalls Lord Devlin’s argument as running something like this:

(1) Laws exist (in part) to point up what conduct society thinks (seriously) wrong;

(2) Moreover, where a law is repealed that impliedly affirms the conduct as licit;

(3) Laws influence morals as well as the other way around;

(4) Therefore where something is thought (felt ?) wrong it is important that the Law says so;

(5) And Law should not waste its energies legislating for/against trivia;

(6) The alternative is moral confusion

Whether or not this fits the facts, we shall see.First Question – have I recalled about rightly, or have I travestied the current trends of oddballness? What would Lord Devlin say ?

Stranger than Fiction ?

11 Oct

Two stories from today’s online edition of The Guardian newspaper. One, both, or neither, are true.

(1) The King of Sealand, an independent sovereign state in the North Sea a few miles from Felixstowe, has died. His son, who was regent for some years, has taken the reins in his place. Its history is not uneventful, but there is hope for an orderly succession;

(2) A man in Manchester has been sent to prison for 4 months after a plea of guilty to wearing in public tasteless home-made t-shirt slogans mocking the deaths of police officers shortly after the two WPCs were murdered a month ago. He was also sentenced (separately) for other issues, and does not appear to have enjoyed harmonious relations with the city’s constabulary even before this incident. A Police Inspector described this as ‘appalling’ and the Judge* as ‘shocking.’ He was convicted under s.4A Public Order Act 1986 – intentionally causing harassment/alarm/distress, in short.

*ie the Judge described this as … – edit for Freudian slip, apologies

Further Reading on Re G [2012] (CA)

11 Oct

See over at the Human Rights Blog for this piece by (Mr) Karwan Eskerie on Re G [2012] (CA).

As Mr Eskerie implies, subject to the linear nature of time, an unfortunate choice of education can often be countered later. Some religious decisions are rather once-and-for-all – see eg the discussions on circumcision bans/not. Perhaps somewhere in the middle is the rite of baptism, discussed in this case noted here. The Judge was perhaps fortunate that this seems to have been relatively amicable litigation.

Over Here and Over There

9 Oct

The writer has continued to reflect upon the Wisconsin v Yoder (1972) (US Supreme Court) decision, exempting the Amish (apparently the ‘A’ is long – see here for some BBC notes) from Wisconsin’s compulsory post-elementary education laws on the basis that their application to the Amish was an unwarranted interference with the free exercise by its members of the Amish religion – a branch of Christianity made famous by the Harrison Ford film Witness. The writer’s intuition is that Yoder would have been decided differently here – but why ?

Partly the answer is the facts – as the Supreme Court were at some pains to stress (see the judgement eg 406 US 238), the Amish are an unusual group of people, who could show clearly to the Court that their education system works, and the State had not come up with any very convincing explanation for demanding an additional 2 years of education. The writer is not sure that a UK equivalent could easily be cited.

Partly, however, it seems also a question of approach – possibly even the choice of approach. The dissent of Mr Justice Douglas (406 US 241 onwards) argues that for the sake of the children’s possible desire to be astronauts (for example – the Amish are famously unenthusiastic about technology) then Wisconsin should be able to compel their further state education (I summarise). As the Justice suggests in his last paragraph, there is a considerable gap between the Amish as portrayed in his judgement and in that of the majority.

That said, a possible (and recent) UK parallel case is Re G [2012] EWCA Civ 1233 (CA). The facts were not quite the same – this was about the choice of schools for the somewhat younger children of a separating Orthodox Jewish couple – but some of the angles are strikingly similar (eg queries about the social adequacy of the education proposed, concerns about stunting the children’s careers potential), and one can imagine Yoder being rewritten from Lord Justice Munby’s approach. Interestingly, the children in Re G were directed to the more liberal schools preferred by the mother on (very) broadly the kinds of grounds (just noted) that had worried the state of Wisconsin.

(Of course the Judge was neutral between the parents, and took no view on the merits of the Orthodox Jewish vision of life – that goes without saying. That he thought it worthy of comment that “the practice of their religion … becomes a way of life” (4) should be treated merely as the common law’s perspective based on experience – descriptive rather than normative, one trusts).

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