CS: Legal-ECHR ruling
From: "E.J. Totty", [EMAIL PROTECTED] --snip-- >The claim for loss of profits pursued in the European Court of Human >Rights (ECHR) by MPC on behalf of the firerarms retailers and dealers >had been declared inadmissible on the grounds that there was not a >reasonable expectation that the firearms in question (pistols) would >remain permitted to be legally owned by private individuals >indefinitely. --snip-- >Alex Hamilton >-- >I don't know but I always thought a suit in the ECJ stood more >chance of success than the ECHR anyway. However, I don't >understand this ruling because there was more to the suit than >just loss of future business. There were gun clubs that were >not compensated for the loss of their property for one thing. > >I have to say this is the most bizarre ruling I have seen, of >course there was a reasonable expectation they would stay legal, >on that basis no-one would ever start a business if there >was an expectation it could be illegal tomorrow. > >Steve. Steve, & Alex, Bizarre ruling? That's an understatement! From the 'sounds' of it, the court seems to be saying it is a foregone conclusion that the private possession of firearms it the EU is slated for elimination. Other than that, the courts ruling is extremely faulted by the mere presence of those same 'pistols' elsewhere' in other EU nations. You guys had better start asking some serious questions in the nations where your pistols are being kept. That ruling stinks to high blue heaven. -- =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= Liberty: Live it . . . or lose it. =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= =*= ET -- The ECHR is not a creature of the EU, non-EU states have signed the ECHR and the ECHR has ruled on cases that originate in non-EU states. However signing up to the ECHR is a pre-condition of entry to the EU. I thought the argument Guy came up with about the Treaty of Rome being violated made more sense to me. That argument is that Section 5 dealers (of which there are 500) can legally sell (and do, Weller & Duftys do it all the time) handguns to other parts of the EU but dealers in the other states cannot sell them here. Thus there is not free movement of goods as required by the Treaty. The problem I see with that argument is that dealers do import handguns for sale deactivated and also to people in Northern Ireland and people who have authority under one of the exemptions in the 1997 Act, but I think it would be interesting to see what the ECJ had to say about the disparate levels of regulation among EU states, they might rule that regulation could only be established with a clear showing that it would enhance public safety or a maximum or minimum standard that gun laws can be in terms of restrictiveness. They might even rule the EU must establish an EU-wide system of regulation that is wholly consistent. The Government would surely argue that the ban on handguns was for public safety reasons that override any trade concern, the problem they would have is that there is no indication of an impact on handgun-related crime so the argument of public safety lacks evidence. However, the reality with all these court challenges is that judges dislike guns just as much as your average MP, so you end up with daft rulings like the one made by the ECHR. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A http://www.topica.com/t/17 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR ruling
From: "Alex Hamilton", [EMAIL PROTECTED] At the AGM of Historical Breechloading Smallarms Association (HBSA) at the Imperial War Museum, Lambeth, London, on 20th November, it was reported that:- The claim for loss of profits pursued in the European Court of Human Rights (ECHR) by MPC on behalf of the firerarms retailers and dealers had been declared inadmissible on the grounds that there was not a reasonable expectation that the firearms in question (pistols) would remain permitted to be legally owned by private individuals indefinitely. The case for the Dependent Industries (e.g. bullet makers etc.) is yet to be heard, but it now seems unlikely that that case will be admissible as the same argument would apply. Please note that no supporting documentation was produced, so I am reporting what has been said from memory and my notes. We shall have a discussion about this, no doubt, but it seems to me that the Government's case has been strengthened considerably by this ruling and the question our legal experts should be asked to comment on is whether the JFS case now stand any chance of success. Alex Hamilton -- I don't know but I always thought a suit in the ECJ stood more chance of success than the ECHR anyway. However, I don't understand this ruling because there was more to the suit than just loss of future business. There were gun clubs that were not compensated for the loss of their property for one thing. I have to say this is the most bizarre ruling I have seen, of course there was a reasonable expectation they would stay legal, on that basis no-one would ever start a business if there was an expectation it could be illegal tomorrow. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A http://www.topica.com/t/17 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: Edward Beck, [EMAIL PROTECTED] >"No retrospective legislation" does that mean that those in possesion of >handguns at the time of the ban could keep them and that the ban only >applied to future aquisitions? Does that mean that criminals previously in unlawful possession of firearms (pre-ban) are now the only ones to lawfully hold banned guns? -- Edward Beck Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: Dave Reay, [EMAIL PROTECTED] >< The problem with the argument on retrospective legislation > is that even if we successfully argued it in court, the > outcome would be meaningless. The point would be that we were entitled to hold on to our legally owned property and that the guvermint had acted illegally in depriving us of our handguns. We could then claim that we were entitled to replace the stolen property with like for like. We would be in a far better position to argue that the ban was a useless waste of public finances if we all had our handguns and the crime rate had not increased because of it. We have seen the crime rate with firearms increase after the ban, if the handguns were returned and their logic was correct, then surely the crime rate with handguns must rise! I would be prepared to offer odds of 20 to one that the crime rate with handguns would not rise because we were allowed to shoot handguns for sport. We are not criminals and do not use firearms for criminal purposes, therefore the crime rate with handguns would not rise, safe bet! > -- Dave Reay -- Well of course it would be great PR, but the question is the practical implications to you and I and everyone else who shoots. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "E.J. Totty", [EMAIL PROTECTED] >The problem with the argument on retrospective legislation >is that even if we successfully argued it in court, the >outcome would be meaningless. > >The guns have been destroyed, so the court would order >proper compensation be paid. But we already have compensation >for the guns (various spare parts not included) so it wouldn't >help. You might be able to argue some sort of punitive >damages I suppose but that is a really long shot. > >Steve. Steve, Okay, so you won't get your arms back, but at least you'll get your sport back. That alone would be worth it, would it not? If the essence of the argument that you applied in a court of law was that you were seeking vindication, then to hell with the remuneration, get the right back first, then go for broke. One thing at a time. ET -- But we wouldn't get hardly anything back, because the Act using this argument is only illegal insofar as it applies retrospectively. Which means the only people who could get their guns back would be those people who moved them abroad or had open authorities to acquire before the ban. Which is perhaps 20,000 guns tops. And I still need some clarification on what exactly is being argued. Are there some specific precedents? John quoted the one about the house being taken during World War 1, but that sounded more like a compensation issue than a retrospective Act issue. There were laws past after WW2 that were retrospective and they were held to be legal. I've always been of the opinion we should have been compensated for our licensing fees. I had a variation for three pistols granted about six months before the ban, but I never got any money back even though I was barred from using those authorities. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "E.J. Totty", [EMAIL PROTECTED] > Yeah, they do the same thing in the US too, except >that we have a 14th Amendment that essentially shuts that >down: equal protection under the law. > Which is to say that grandfathering is a divide and >conquer scheme, as it set the current haves apart from the >want to have. > >ET >-- >But no gun law has ever been struck down on that basis, >has it? > >Steve. Steve, No, but only because noone has challenged it on the 14th Amendment grounds. The court can only hear what has been challenged. ET -- I know the AW ban was challenged on 14th Amendment grounds because it specifies certain makes of guns that are banned, but that argument was ruled inadmissable. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: [EMAIL PROTECTED] > The guns have been destroyed, so the court would order > proper compensation be paid. Have they though? Has there been offical confirmation that this is the case or are they being stored in case we win in Europe? Jonathan Laws. -- With the exception of a few shipped off to museums, a few the police kept to play, ah, I mean train with and the ones on which compensation has yet to be paid they have reportedly all been destroyed. I've seen the tape. I can't remember the exact total, the HO did tell me but it was over 100,000 destroyed. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR/grandfathering
From: [EMAIL PROTECTED] EJT's message reminds me of the situation regarding full-auto licences in the USA. Haven't heard anything of this for some time, but I understand that such licences had to be granted by the Feds, and that they "froze" the number by administrative decree , the current number being around 129,000 - or are they not issuing any more at all, waiting for licenced full-auto owners to die off? Was any legislation actually passed, or was it purely administrative, like our own Home Office simply deciding that it would forbid the issuing of FACs for self-defence? -- They're not licensed technically, you have to pay a transfer tax and complete various other requirements to legally acquire one. Thus they become registered with the NFA branch of the BATF, part of the Dept. of the Treasury (together with the IRS). The idea was back in 1934 that banning guns was probably unconstitutional, so they banned them by taxing them to death. The transfer tax is $200, and in 1934 hardly anyone could afford $200 (several months salary in a good job) so effectively machineguns were banned. In 1986, 18 USC 922(o) prohibited the registration of machineguns, which effectively froze the number in circulation, but pre-86 guns can still be transferred. The problem in my experience is that of the 200,000 or so registered MGs that are "fully transferable", at least half are junk, being registered components like badly made auto sears that with some difficulty you can use to assemble a machinegun with. Machineguns were classed as "non-sporting" in 1969, so they could no longer be imported for sale to private individuals, so most of the registered guns are converted semi-autos or US made guns. Some of them are okay, a lot of them are not. There are companies that specialise in getting them to work. The legal situation with machineguns in the US is a complete minefield, to put it mildly. Thick books have been written on the subject. Go to http://www.atf.treas.gov/firearms/nfa/index.htm for more info. A lot of the stuff in the FAQ is bogus IMO, it gives a very vague explanation that favours a more restrictive interpretation of the law than is in fact the case. Also go to the GPO website and have a look at 27 CFR 179. There is a huge typo, I think in 27 CFR 179.11 as it is identical to the following section except for one word. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: [EMAIL PROTECTED] << The problem with the argument on retrospective legislation is that even if we successfully argued it in court, the outcome would be meaningless. The guns have been destroyed, so the court would order proper compensation be paid. But we already have compensation for the guns (various spare parts not included) so it wouldn't help. You might be able to argue some sort of punitive damages I suppose but that is a really long shot. >> Not all the guns were destroyed. Several thousand went overseas. Ken -- Hmm, good point, including most of mine. Seeing as I exported them before the legislation came into effect, I am wondering how I would argue that one. The argument would be stronger if you left them with a Section 5 dealer because it would be easier to show that you did it under duress. I sure as hell didn't sit in the SLRC clubhouse all day to hand my gun to Chris Valentine except under duress! I still the property rights argument under the ECHR is much stronger though. The UK Govt. seems to do really badly in the ECHR, they seem to overturn UK Govt. decisions on principle. I like John's common law argument though, but judges don't seem too keen about the Bill of Rights. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "John Hurst", [EMAIL PROTECTED] >Not sure if that is a relevant comparison. This is the removal of >a property right, not just a right to use something. If the Govt. >had banned mini-buses, then it would be a different situation. >...It's well established that property can be taken for public use >(e.g. to build a road) if proper compensation is paid. Steve, There is a Royal prerogative to take property for public use, and just compensation must be paid. That is what happens when roads are built.Our pistols were seized under the threat of imprisonment, and were destroyed ( allegedly) which is not the same. I would argue this is in contravention of Articles 2 and 12 of the Bill of Rights. "... That the pretended Power of Dispensing with Lawes or the Execution of Lawes by Regal Authoritie as it hath beene assumed and exercised of late is illegall..." "... That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void...". IIRC the case of Chester v Bateson (1920) (KB 829 at 832.) covers this. It was concerned with the seizure of a house to billet soldiers under the Defence of the Realm Act 1915 and confirmed that law which is contrary to the Bill of Rights has no force. There are other decisions along the same lines. Mike Burke has them in his archive ( aka living room). If anyone out there wants to help the cause they could do worse than provide him with some document management software and a CD writer. One of the cases is Bowles v. Bank of England (1913); "the Bill of Rights still remains unrepealed, and practice of custom, however prolonged, or however acquiesced in on the part of the subject can not be relied on by the Crown as justifying any infringement of its provisions". I can hear you thinking that the Bill of Rights relating to the RKBA has been repealed by later legislation. The researcher in the House of Commons library did not think so and quoted Bowles v. Bank of England; "...The 1997 Act does not appear to refer at all to the 1689 Statute, and any claims that the earlier statute has been impliedly amended or, indeed, that Parliament has no power to make such amendments, would have to be matters for the Courts if put before them. It is perhaps of interest that, notwithstanding the apparently widespread lobbying on Bill of Rights grounds, virtually no mention of this argument was made during the Bill's passage through Parliament,...". (Document Ref. 4321 97/3/14HA BKW/aor. 4th March 1997. >...if they paid proper compensation (which they didn't), how does it fall >afoul of being "retroactive"? I know in Canada they always allow people >to keep things when they ban them, but they didn't in Australia, the argument >being the same as here - compensation was paid. A FAC is a document which certifies that its holder is qualified to acquire the weapons which it specifies. Moving the goalposts later and claiming that the same person is no longer qualified is retrospective legislation. Section 7 permits under the 1968 Act are, however, authorities to possess. Regards, John Hurst. -- Like I said before, I don't know how it would change the situation even if in court it was held to be retrospective because the damages would be expressed monetarily. The Act itself would not be wholly illegal on those grounds, only insofar as it was retrospective. As the guns have been taken and destroyed you could get money for them (that we already have to some degree), and if your authorities to acquire were reinstated that would be something, but how many of us had open authorities to acquire? I had three at the time. I think the total number was around 12,000 or so. I have to say I do find the other argument interesting though, property is usually taken for public purposes, and then compensation is paid. In this case it wasn't taken for _public purposes_ it was simply taken and 99% of it was destroyed. As far as common law goes I think there is a case there for violation of property rights, but once again that is up to proving it in court. And this is a large chunk of the argument JFS is using. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "E.J. Totty", [EMAIL PROTECTED] >"No retrospective legislation" does that mean that those in possesion of >handguns at the time of the ban could keep them and that the ban only >applied to future aquisitions? I believe this is the way it works in the >States, if youve got one when they ban it, you keep it but cannot sell >it or buy another one. Could this be the basis for an appeal? We would >be in a better position to argue the point if our firearms were returned >and the crime rate did not increase. We could reasonably say that when >the ban was total the incidence of shootings with handguns went up, and >having been given back our guns it had stayed the same. > >-- >Dave Reay >-- >I did argue this point with the Home Office at the time but with no >effect. Their argument was that it wasn't retrospective legislation >and compensation was being paid anyway. > >Steve. Steve, Yes, but, you now have the necessary proof that the suppositions of the GCN and the others who were agitating against you were -- and are -- wrong. You were not the problem, and never were. Certainly if you must make that salient point to them and additionally point out that your group of citizens were never a statistical problem for either the police or the other areas of law enforcement and administration, then your 'privileges' should be fully restored. If none of the prior firearms owners has since been accosted for illegal possession of outlawed arms, then it points statistically significant that you were not ever the problem. And if you were not the problem, then the law must be changed to reflect to truth of the matter, not a political assumption that lacks every essence of proof. ET -- The problem with the argument on retrospective legislation is that even if we successfully argued it in court, the outcome would be meaningless. The guns have been destroyed, so the court would order proper compensation be paid. But we already have compensation for the guns (various spare parts not included) so it wouldn't help. You might be able to argue some sort of punitive damages I suppose but that is a really long shot. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "E.J. Totty", [EMAIL PROTECTED] >I know in Canada they always allow people to keep things when >they ban them, but they didn't in Australia, the argument being >the same as here - compensation was paid. > >Steve. Steve, Yeah, they do the same thing in the US too, except that we have a 14th Amendment that essentially shuts that down: equal protection under the law. Which is to say that grandfathering is a divide and conquer scheme, as it set the current haves apart from the want to have. ET -- But no gun law has ever been struck down on that basis, has it? Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "John Hurst", [EMAIL PROTECTED] >"No retrospective legislation" does that mean that those in possesion of >handguns at the time of the ban could keep them and that the ban only >applied to future aquisitions? Dave, This common law rule is known as "grandfather rights" and does apply. For example, when the EU moved the goal posts on what type of driving licence was required to drive a mini bus the regulation was not applied to people who were already driving them on car licences. But it the Home Office has said that it does not apply to them they must be telling the truth. See also the comment from the researcher in the House of Commons library about retrospective legislation in another posting. Regards, John Hurst. -- Not sure if that is a relevant comparison. This is the removal of a property right, not just a right to use something. If the Govt. had banned mini-buses, then it would be a different situation. It is another principle of common law that property cannot be taken by the Government without proper compensation, so if they paid proper compensation (which they didn't), how does it fall afoul of being "retroactive"? It's well established that property can be taken for public use (e.g. to build a road) if proper compensation is paid. I know in Canada they always allow people to keep things when they ban them, but they didn't in Australia, the argument being the same as here - compensation was paid. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "John Hurst", [EMAIL PROTECTED] >Yes, but this was all within the context of the ECHR, not British law. Steve, The Human Rights Act directs that British law should be interpreted in a manner which is compatible with the ECHR. It contains a section which confirms that it ( the ECHR and the Act) should not be used for a purpose for which it was not intended. Lord Wilberforce pointed out that UK delegates to the Convention in 1950-51; "...knew that all essential rights were confirmed to us by common law and there was never any intention that the new obligations by way of guarantee should be taken to supersede them". This was incorporated into the Act directly as a Section and as part of the debates. Remember the Attorney Generals Practice Directions; "... In practically every case involving the construction of an enactment, there must be a search in Hansard. This is because it is rarely possible to be sure, without full knowledge of the background, that the Pepper v. Hart conditions are not satisfied..." Lord Wilberforce went on to state the civil rights of the subject which are confirmed by the common law; "Perhaps I may remind noble Lords of what our essential civil rights, as guaranteed by the common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given an effect contrary to international law--an old principle which has been there for years; freedom of expression; and freedom of association. All of those were in the minds of our delegates firmly secured already by the common law to this country, and not intended to be superseded or modified by the new inter-state obligations in the convention. Hansard 3 Nov 1997 : Column 1279. >You're not being deprived of anything physical thing if the police refuse >to grant an FAC, so you are not subject to any sort of compensation. The effect of being denied the use of defensive weapons on the individual can be death, maiming and a life spent in fear. What price would you put on them, now that the Courts accept "psychological GHB? Any tort can result in liability. It may also cause disillusion with the political process and non-compliance with the law to become widespread. >Also Gerry Adams doesn't have an FAC, his convictions preclude that. Necessity, otherwise known as duress therefore applies. Blackstone again; " But the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendo, or in order to preserve them. For whatever is done by a man, to save either life or a member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem (injury) is prevailed upon to execute a deed, or do any other legal act: these, though accompanied with all the other requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of loosing his life, or even his limbs, in case of his non-compliance. And the same is also a sufficient excuse for the commission of many misdemeanours. The constraint a man is under in these circumstances is called in law duress...". Remember R v Georgiades (Michael). Whether self-defence justified possession of firearm ought to be left to jury. ( CA . (1989) 89 Cr App R 206; [1989] Crim LR 574; (1989) 133 SJ 724; [1989] 1 WLR 759). And also remember jury nullification, case disposal and the Guide for Crown Prosecutors. Regards, John Hurst. -- Any tort can result in liability but is the refusal to grant an FAC a tort? Pretty tough to argue that one in court. The only person in a position to do so is Mr McGartland, and I wish he would! Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR/Speed Cameras
From: [EMAIL PROTECTED] -8<---8<--- "Anthony, I understand, from a discussion on a motoring newsgroup some time ago, that the system known as Traffic Master which is allegedly used to detect congestion on main roads has cameras which recognise number plates. Data is sent by radio to a central computer where average speeds between cameras are calculated. This system means that the registration marks and locations of vehicles on main roads are being broadcast in real time. Big brother is here." 8<-8<-- As I understand it, you have to subscribe to Traffic Master. They install a box into your vehicle which is sensed by the roadside units which then monitor a portion of your numberplate. The whole plate is not registered (yet!), and your plate is only read if the unit receives the relevant signal. John. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: Dave Reay, [EMAIL PROTECTED] >"Perhaps I may remind noble Lords of what our essential civil rights, as >guaranteed by the common law, are: the presumption of innocence; the right >to a fair hearing; no man to be obliged to testify against himself; the rule >against double jeopardy; no retrospective legislation; no legislation to be >given an effect contrary to international law--an old principle which has >been there for years; freedom of expression; and freedom of association. All >of those were in the minds of our delegates firmly secured already by the >common law to this country, and not intended to be superseded or modified by >the new inter-state obligations in the convention. "No retrospective legislation" does that mean that those in possesion of handguns at the time of the ban could keep them and that the ban only applied to future aquisitions? I believe this is the way it works in the States, if youve got one when they ban it, you keep it but cannot sell it or buy another one. Could this be the basis for an appeal? We would be in a better position to argue the point if our firearms were returned and the crime rate did not increase. We could reasonably say that when the ban was total the incidence of shootings with handguns went up, and having been given back our guns it had stayed the same. -- Dave Reay -- I did argue this point with the Home Office at the time but with no effect. Their argument was that it wasn't retrospective legislation and compensation was being paid anyway. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: Jeremy Peter Howells, [EMAIL PROTECTED] We certainly have a few cameras at some busy junctions in Cardiff that are obviously aimed at people jumping the lights on amber and red. Not many though. Regards Jerry Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "John Hurst", [EMAIL PROTECTED] >But you are not being deprived of anything (depending on your >interpretation) if you apply for an FAC and get turned down. Steve, A person who applies for an FAC for self defence in Northern Ireland and is refused without sufficent reason is deprived of his common law RKBA. Even the likes of Jerry Adams have rights. Apparently he has a certificated weapon, according to the press. And if he is not a prohibited person then it is lawful. A person on the mainland who reqires a FAC as a member of a NRA or NSRA affiliated club is claiming his RKBA also. The subjects rights are confirmed in the Royal Charter of the NRA and the articles of association of the NSRA. Here is a reminder from the Mc Kay report; "The Firearms Act 1968, following earlier firearms legislation, makes no attempt to define what should, or should not be regarded as a good reason for possessing a firearm. The stringency of the legal control over Section 1 firearms therefore rests in practice upon the way in which chief officers exercise the wide power of decision vested on them by the law, and on the decisions of the Crown Court in the relatively infrequent cases taken to appeal... There has been no general disagreement over the way in which ... these powers have been exercised. To put the matter very broadly, sporting purposes and target shooting have been accepted as good reasons ... personal protection has not". However, "the time might come when a chief officer or the Crown Court decided to allow a firearm for personal protection ... this decision might be treated as a precedent." The Control of Firearms in Great Britain. HMSO. Note that an FAC is a document which certifies that its holder is a fit person to aquire the arms which it specifies. How they are used is the individuals responsibility. Regards, John Hurst. -- Yes, but this was all within the context of the ECHR, not British law. You're not being deprived of anyt physical thing if the police refuse to grant an FAC, so you are not subject to any sort of compensation. Also Gerry Adams doesn't have an FAC, his convictions preclude that. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR/Speed Cameras
From: "John Hurst", [EMAIL PROTECTED] >Steve - this subject is not as off-topic as some might think, since the >process of covering our road network with cameras has parallels with firearms >legislation. As with the latter, people-control by speed camera has a curious >history, unstated agendas, and is inimical to liberty. I thought the firearms legislation had >always been about disarming... Anthony, I understand, from a discussion on a motoring newsgroup some time ago, that the system known as Traffic Master which is allegedly used to detect congestion on main roads has cameras which recognise number plates. Data is sent by radio to a central computer where average speeds betwen cameras are calculated. This system means that the registration marks and locations of vehicles on main roads are being broadcast in real time. Big brother is here. > I know in the debate in 1920 they started off saying >it was to stop crime but it ended up being a debate about disarming >people. All the Government papers from the period indicate a strong >desire to generally disarm the people... Steve, True, but the statute known as the Firearms Act 1920 and is to be interpreted only by what was actualy said in Parliament. Pepper v. Hart and the Attourney Generals practice directions again. For example; "...Hansard records that the intention of Parliament in the Firearms Act 1920 was, "to afford an effective system of control over the possession, use and carrying of firearms so as far as possible to secure that they do not come into the hands of criminals or otherwise undesirable persons..." (The Earl of Onslow in presenting the second reading 27 April 1920.) He stated on 29 April that " speaking generally, it must be assumed that the grounds on which a revolver may be applied for and the application (for a firearm certificate) may be granted by a chief officer of police is for protection of the applicants house" i.e. for self-defence...". Defence of the Realm. Accusing politiians of deceit is a breach of Parliamentary privelige. They will be locking you up in the cell below the clock tower if you are not careful . Commander Kendrick, who spoke up for the constitution in the 1920 debate, was apperently arrested by Special Branch immediately afterwards. Mike Burke has discovered that he was subsequehtly made Lord Strabogli (?) and spoke up again in the debates on the 1934 Act. He mentioned that his personal choice in PPW's was a full auto pistol BTW. Regards, John Hurst. -- I think you mean Commander Kenworthy MP. On first reading in the Commons though one of the Govt. ministers did respond to him in essence that the purpose of the Bill was to stop revolutions, rather than crime. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "John Hurst", [EMAIL PROTECTED] >I presume that you are all aware of 'civil forfeiture'? E.J., It is back, firstly in drug cases and now it is available to the Courts for other offences too. As you no doubt know it breaches Chapter 29 of Magna Carta and Article 12 of the Bill of Rights; " That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void". So did the siezure of pistols, but the Home Office have told Steve that it was all right . Funnily enough, the House of Commons library did not agree; "The library has received a large number of enquiries, which appear to be the result of campaigns among shooters opposing the new provisions on firearms control. Because of the initial influx of such enquiries, I prepared a section on the alleged constitutional implications of the then Bill as part of our research paper which we published for its second reading debate. There are a numbers of variants of the message sent to members which contain a reference to the Members oath of allegiance. I assume that the argument put forward by shooters is along the following lines; (1) The Bill of Rights 1689 requires all officers and ministers to serve the Monarch according to its provisions. (2) The Bill of Rights 1689 protects citizen's rights to bear arms and not to have their property confiscated. (3) Therefore Members who support this sessions legislation may be in breach of their oath of allegiance. The 1997 Act does not appear to refer at all to the 1689 Statute, and any claims that the earlier statute has been impliedly amended or, indeed, that Parliament has no power to make such amendments, would have to be matters for the Courts if put before them. It is perhaps of interest that, notwithstanding the apparently widespread lobbying on Bill of Rights grounds, virtually no mention of this argument was made during the Bill's passage through Parliament" (Document Ref. 4321 97/3/14HA BKW/aor. 4th March 1997) The briefing document referred to is Research Paper 96/102 dated 8th November 1996. Page 75 quotes the case of Bowles v. Bank of England and confirms that the Bill of Rights remains an operative statute. Regards, John Hurst. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR/Speed Cameras
From: [EMAIL PROTECTED] Steve - this subject is not as off-topic as some might think, since the process of covering our road network with cameras has parallels with firearms legislation. As with the latter, people-control by speed camera has a curious history, unstated agendas, and is inimical to liberty. When first introduced, it was affirmed by the authorities that cameras were only to be a deterrent - but unlike the practice in some other countries, ours have always been camouflaged with drab grey paint, which means that because you can't see them, you can't be deterred from speeding by them. It also means that they "catch" more speeding drivers, which raises more money in fines - and (extraordinary coincidence, this) when a recent change took effect, allowing police authorities to receive a cut of the fines accruing from speed-cameras, the number of such fines increased dramatically! Firearms legislation is supposed to be about reducing armed crime, but is actually about disarming the civilian populace; speed cameras are supposed to be about making the roads safer (whether they do is questionable) but have far more to do with raising revenue, and people-control. I believe at the last count there were something like four and a half thousand cameras on our roads, which makes us more closely scrutinised than any other country in Europe, possibly the world. Have a look at the Association of British Drivers' very interesting website for facts & figures, including a county-by-county index of speed camera locations - I found cameras in my area that I didn't know about... Incidentally, Charles Parker's reference to Transport 2000 is interesting too - though bigger than the GCN (it could hardly be smaller) it is a very small lobbying group which nevertheless includes some household names and which seems to punch above its weight. It has been described as anti-car, and is heavily biased in favour of the Luddite, authoritarian politics of metropolitan lefties and eco-fascists. -- I thought the firearms legislation had always been about disarming people. I know in the debate in 1920 they started off saying it was to stop crime but it ended up being a debate about disarming people. All the Government papers from the period indicate a strong desire to generally disarm the people. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "John Hurst", [EMAIL PROTECTED] >The appeals process in Northern Ireland is illegal because Article 6 >requires an _independent_ determination as to the actions of the police, >and obviously the Secretary of State is not independent. The >general interpretation of the Article is that all appeals must >be heard by the judiciary. In Northern Ireland many types of >appeal are not, and thus would be illegal under Article 6. Steve, I see. Thank you. I would argue that it is for a jury to decide, not a Judge. Chapter 29 of Magna Carta applies; "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.". In other words a person cannot be deprived of his common law RKBA by a Judge. The phrase "or by the law of the land" refers to the Royal Prerogative to arrest and detain pending trial. Regards, John Hurst. -- But you are not being deprived of anything (depending on your interpretation) if you apply for an FAC and get turned down. I don't know, all I can say for sure is that the Lord Chancellor agrees with me so I suspect the new Firearms (Northern Ireland) Order this autumn will have a substantially different appeals process in it. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
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From: "niel fagan", [EMAIL PROTECTED] >As I said in an earlier message, which was not published:- >Photos taken by the type of speed camera used in this country >could not be used in evidence in Germany, for instance: the >photo would have to show the driver. However, cameras capable >of doing this, i.e. photographing the car number plate and the >driver from the front, and not the rear, are more expensive >than those used in this country. >Does anyone know whether the new digital speed cameras that >are now being installed will be able to identify the driver, >if not, then they would also be a waste of money? Yes the one's on trial down here are, 5 front zones and 3 rear on the gantry jobbies (plate, tyres, driver, tax disc. tyres, plate) so I am told. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "E.J. Totty", [EMAIL PROTECTED] >The speed camera decision is being appealed apparently. > >Rememeber this case is not necessarily about speed cameras >it is about the wording of the 'Notice of Intended Prosecution'. >This means that the police may have to persue the vehicle and >detain the driver to gain a prosecution or conviction for any >road traffic offence. Who's up for more police chases through >urban areas at stupid speeds? Dukes of Hazard style police >chases where you can't prosecute them unless you catch them? --snip-- >-- >No-one says the police have to pursue the speeder. What annoys >me about the whole thing is this obsession with speeding. There >are a million other unsafe things that can be done with a vehicle >that are just as big a threat to public safety but I don't see >national campaigns to do with them. Steve, and Jeremy, I think it interesting that the police (politicians) haven't pursued the more classic English method of getting at the problem English style. I presume that you are all aware of 'civil forfeiture'? That unique little machination of law was invented by the English Admiralty as a means of restitution to the state where vessels were found with contraband, and no one claimed responsibility for said cargo. Prior to the implementation of said law, the owner would get his ship returned minus the cargo. Thereafter the law, the ship was held guilty of the offense, and held forfeit. How unique. Here in the jolly US, that aspect of law has been abused so mightily, that the US Congress yearly has had various bills placed before it to rehabilitate the law and severely restrict the application of it until after a finding of guilt. Pray that that aspect of your law isn't reinvented in the case of speed. And, you are 'spot on', Steve, about the offences committed with vehicles. It really devolves to the easiest thing that they can catch you doing, because it is the thing done most. The cops around here (Washington) have taken lately to a bit of a relaxed attitude in the matter of speeders, and instead ticket the really obvious ones, and those who move in traffic like a bloody idiot. As an example, on the highway, above 50 mph, 5 over is nothing, 10 over is usual, 15 over will usually get you pulled over if the traffic or the conditions warrant it. And, you know? Once the speed limits were upped from 55 to 70 mph, the accident rate dropped accordingly. Interesting, isn't it? The nay sayers were predicting 'blood running in streets'. Where have we heard that before? ET -- In many countries they have cameras at traffic lights to catch people going on red, not in the UK though. Most accidents I have seen have been a result of people jumping the lights or not giving way. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "John Hurst", [EMAIL PROTECTED] >Article 6 of the ECHR is one of the best pieces of >legislation ever to take effect in this country, not >least because the grossly unfair appeals process under >the Firearms (Northern Ireland) Order is illegal under it. Steve, Could you elaborate please. Section 44 appeals on the mainland are hardly fair . I think that the Human Rights Act has potential to do good also. This is because it insists that UK statutes are interpretated in a way which respects the commom law rights of the subject. This is because Pepper v. Hart applies. In the debates on the incorporation of the European Convention on Human Rights into UK law, Lord Wilberforce pointed out that UK delegates to the Convention in 1950-51; "...knew that all essential rights were confirmed to us by common law and there was never any intention that the new obligations by way of guarantee should be taken to supersede them". He then went on to confirm that the civil rights of the subject are confirmed by the common law; "Perhaps I may remind noble Lords of what our essential civil rights, as guaranteed by the common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given an effect contrary to international law--an old principle which has been there for years; freedom of expression; and freedom of association. All of those were in the minds of our delegates firmly secured already by the common law to this country, and not intended to be superseded or modified by the new inter-state obligations in the convention. Hansard 3 Nov 1997 : Column 1279. Regards, John Hurst. -- The appeals process in Northern Ireland is illegal because Article 6 requires an _independent_ determination as to the actions of the police, and obviously the Secretary of State is not independent. The general interpretation of the Article is that all appeals must be heard by the judiciary. In Northern Ireland many types of appeal are not, and thus would be illegal under Article 6. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: Jeremy Peter Howells, [EMAIL PROTECTED] The speed camera decision is being appealed apparently. Rememeber this case is not necessarily about speed cameras it is about the wording of the 'Notice of Intended Prosecution'. This means that the police may have to persue the vehicle and detain the driver to gain a prosecution or conviction for any road traffic offence. Who's up for more police chases through urban areas at stupid speeds? Dukes of Hazard style police chases where you can't prosecute them unless you catch them? Speed cameras are intrusive and I firmly believe they are being used as a source of revenue. Several in the Cardiff area are sited to cover the areas just after a major junction (and moving away from it) where there is a dual carriageway that had a 60 MPH speed limit only a few hundred yards away. Such cameras apparently add little to road safety and a lot to the Chancellors take. Regards Jerry -- No-one says the police have to pursue the speeder. What annoys me about the whole thing is this obsession with speeding. There are a million other unsafe things that can be done with a vehicle that are just as big a threat to public safety but I don't see national campaigns to do with them. How about the "parking on double yellow lines at a major junction" camera, or the "doing a U turn in an unsafe place" camera, or any of the other zillion unsafe practices I see people doing every day? I know they do have traffic cameras at major junctions but there is nowhere near the focus on other offences that there is on speeding. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: Martin Finke, [EMAIL PROTECTED] As I said in an earlier message, which was not published:- Photos taken by the type of speed camera used in this country could not be used in evidence in Germany, for instance: the photo would have to show the driver. However, cameras capable of doing this, i.e. photographing the car number plate and the driver from the front, and not the rear, are more expensive than those used in this country. So, what we have, at present, is injustice on the cheap and it is only right that under the Human Rights Act nobody should be forced to incriminate him/herself. Does anyone know whether the new digital speed cameras that are now being installed will be able to identify the driver, if not, then they would also be a waste of money? -- Well, we're completely off-topic here but I have noticed that some couples have started divvying up speeding offences so that the worst driver among the two of them doesn't lose their license, which kind of turns the argument of the driving safety organisations on its head. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: [EMAIL PROTECTED] > OK we may not like speed cameras but the effect of this > would be to make most Road Traffic Law unenforcable - you > might identify the vehicle but the owner would be under > no obligation to say who was driving when for instance > the the vehicle was used in a bank raid or a serious road > traffic offence and the owner could prove he was elsewhere. > An extreme example perhaps but one that could easily happen. The human rights aspect involves incriminating ones self not someone else. If you could prove you were somewhere else at the time your car was being used yet you knew who was driving it you must give that information. Your human rights are only contraveined if you have to declare yourself as the driver. Jonathan Laws. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: Jeremy Peter Howells, [EMAIL PROTECTED] Regarding the 'misuse' of the ECHR some of the ones that have come to light or might be tried in the near future (according to the press and some comments from the legal profession) :- Car owners refusing to declare who was driving when an offence was caught on camera. Currently it is an offence to fail to declare who was driving if a 'Notice of Intended Prosecution' is served on the car owner. A judge or magistarte in the North of England or Midlands believed this might infringe the ECHR provisions of self incrimination. OK we may not like speed cameras but the effect of this would be to make most Road Traffic Law unenforcable - you might identify the vehicle but the owner would be under no obligation to say who was driving when for instance the the vehicle was used in a bank raid or a serious road traffic offence and the owner could prove he was elsewhere. An extreme example perhaps but one that could easily happen. A convicted murderer who met and married his current wife while he was in prison (she was a prison visitor or somesuch) is appealing against the Home Office and a lower court not allowing him to father a child by artificial insemination using the ECHR provisions on the right to a family. The right to self expression provisions might make it legal for school children to successfully prosecute schools for being forced to wear school uniform. Some are even saying that it could be used by prisoners to reject prison uniforms. Apparently the Lord Chancellors office have put aside L60 million for cases under the ECHR. In Scotland people are saying yes but only 13 of several hundred cases have been lost by the Crown, however how much time and effort went into fighting those cases? OK much of this is people fighting cases to see how the courts interprete the results but some of it is already stretching credibility. Regards Jerry -- Well, if they won 87 cases probably not much as they had costs awarded to them. Out of all the cases you mention only one has been decided, and I personally think that was the right decision. I find that speed cameras are excessively intrusive, and it's only a short step away from the police seeing something going on in a private residence with a CCTV (e.g. in a city centre which backs onto an estate or something) and saying that the person must identify themselves if they happened to be starting a bonfire or something which is banned. (Or cleaning your shotgun, and the CCTV operator misidentifies it as a machinegun). If the police pursued the driver and pulled him over, then they would identify him no problem. If they saw smoke coming from the garden and went to interview the householder, they would identify him no problem. Article 6 of the ECHR is one of the best pieces of legislation ever to take effect in this country, not least because the grossly unfair appeals process under the Firearms (Northern Ireland) Order is illegal under it. Speed cameras turn due process on its head. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "Kay, Martin (DEI)", [EMAIL PROTECTED] ".then dont you think that the politicians should be taking > the responsibility on which laws are enforceable and which > arent? Is it right to leave it up to what amounts to > the opinions of individuals? .." > Surely the principle of "the politicians" taking responsibility to decide which laws to enforce is only a variation on the opinions of individuals? Let us not lose sight of the fact that laws generally originate with politicians, and it is increasingly obvious that in the UK at least the politicians in general care little for the facts and consequent impact of their decisions, and far more about the electioneering value of their actions. It is being rather optimistic, even naive to expect most politicians to admit that they got it wrong, and to retract recently enacted legislation. They would prefer to ruin an entire industry and cost the taxpayers millions, as any ex-pistol shooter, farmer, abattoir operator, road haulage contractor etc. would confirm. Moral courage would appear to be in short supply in certain political circles. Martin Kay Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
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From: "IG", [EMAIL PROTECTED] I am familiar with ECHR, and probably more so than most. Nuremberg has no relevance to ECHR. It was not an ECHR ruling and never will be. To repeat myself, it is grossly insulting to refer to ordinary police officers in the same breath as Nuremberg. There can be absolutely no comparison at all. Your point is irrelevant and spurious. ECHR is totally different. If things are going to be the way you say, which they arent and dont kid yourself either, then dont you think that the politicians should be taking the responsibility on which laws are enforceable and which arent? Is it right to leave it up to what amounts to the opinions of individuals? Some of the correspondents here think that we shouldnt be allowed to have opinions! What exactly do you think should happen? If they dont do something, then the entire police service in the UK will be behind bars. Well, no they wont, because who would arrest them? The army? What about the human rights of the police? or arent we allowed any? lol silly, isnt it. IG -- It is not irrelevant and spurious, the findings of the Nuremberg trials were under international law, and that is binding upon the UK, at least that has always been my understanding. The ECHR is just a different international law, that is all. And if you seriously think you are not going to get lawyered to pieces for violating the civil rights of an individual, regardless of what the law says, you are going to be mighty surprised, is all I can say. Look what the lawyers for a small-time criminal named Miranda managed to accomplish in the US. The Home Office hasn't allocated L65 million to the courts for civil rights cases under the Human Rights Act for fun and games. Remember that the police do not enforce the law, the courts enforce the law, the police merely arrest and charge people they think have violated it. There is no obligation for the police to lift a finger if they see a crime being committed. They have total discretion in law. That is why you cannot sue the police for failing to come to your aid. Therefore if the police want to completely ignore a particular law, they can. Jack Straw has recently been moaning at length that the police appear to have largely ignored various parts of his anti-crime package, but at the end of the day there is nothing he can do about it. (Other than to cut funding, and even that is harder now.) Of course all this is largely removed from the mountain of bureaucratic paper-shuffling I see police officers doing, but I wonder how many police officers are aware of which foot the shoe is on. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
CS: Legal-ECHR
From: "John Hurst", [EMAIL PROTECTED] The significance of the ruling against self incrimination is that it undermines all legislation involving "absolute offences" such as the Firearms and misuse of drugs Acts. This is because it confirms the common law presumption of innocence. Statutory absolute offences criminalise actions without evidence of "malice aforethought". Applying (again) Pepper v Hart Lord Wilberforce said in the debates in the Human Rights Act; "Perhaps I may remind noble Lords of what our essential civil rights, as guaranteed by the common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given an effect contrary to international law--an old principle which has been there for years; freedom of expression; and freedom of association. All of those were in the minds of our delegates firmly secured already by the common law to this country, and not intended to be superseded or modified by the new inter-state obligations in the convention. Hansard 3 Nov 1997 : Column 1279. It should be noted that the right to arms comes from the fundamental common law right, the presumption of innocence. The only persons who can be denied this right are convicted criminals. More on the presumption of innocence from Mike Burkes researches; "Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt...No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." Stones Justice's Manual. Preface to 1990 Edition. The authoritative "Taylor Upon Evidence" has this to say about burden of proof; "The right which every man has to his character, the value of that character to himself and his family, and the evil consequences that would result to society if charges of guilt were lightly entertained, or readily established in Courts of justice:- these are the real considerations which have led to the adoption of the rule that all imputations of crime must be strictly proved." The Firearms Act 1920 and the Prevention of Crime Act 1953 are based on the principle that Parliament can create new offences, that everyone is guilty from the date of their adoption, and then allow exceptions at the discretion of the police. They have shifted the burden of proof onto the defence, which is something that never happened before. This purported power of Parliament was objected to strongly by many MPs in the debates on the Prevention of Crime Act 1953. They generated about 90 pages of debate in Hansard on a Bill that was little more than one page long. Several MPs were only prepared to accept the Bill as a short-term emergency measure to be reviewed after five years. The Government claimed that the measure was necessary to deal with an outbreak of violent crime. James Carmichael (MP for Glasgow, Bridgeton), pointed out that Scottish crime figures had actually dropped significantly in the preceding years and the Bill was an over-reaction to misleading press reports (Hansard, 26 March 1953). Several references were made to the fact that at that time the assurances given by Ministers that the police would act responsibly and with restraint was worthless because what had been said in Parliament could not be referred to in the Courts. The Bill was passed, and soon the presumption of innocence was set aside in other legislation without a murmur. This has resulted in the proliferation of Statutory absolute offences. In the common law guilt could only be inferred from a persons actions and evidence of his mental intent at that time. Thus stealing is the taking of property belonging to another with evidence of an intention to permanently deprive the owner of it. The Statutory offence of simple possession of an unlicensed "prohibited weapon" is a crime regardless of the circumstances as are selling apples by the pound or beef on the bone. Statutory "crimes" are whatever the legislature decides. A victim or intent is not required. We seem to have come to a point where the ancient rightness of the common law has been set aside. The Courts have given up legislative supremacy to Parliament. And they have been allowed to do this because no one has gone before a Court and claimed his common law rights. Those rights of the subject are written, but have been hidden and forgotten. And here lies the danger to us all. The only power that Government has is to manufacture criminals. If Government believes that it can do as it wishes without the restraint of a Constitution which is enforceable through the Courts then no one and nothing is safe from the whims and preju
CS: Legal-ECHR
From: "E.J. Totty", [EMAIL PROTECTED] [...] I just wish I could have seen the look on Charles Clarke's face when the Crown Court in Birmingham handed down the judgement that speed camera offences violate the right to remain silent. [...] Was that court judgement the final word, or is there still another review and appeal? Here in my own state of Washington, traffic cameras are not allowed as evidence for the sole purpose of issuing a traffic citation, but can otherwise be entered into court record as evidence. To be cited for a traffic infraction (usually called a moving violation), the officer issuing the citation (or his partner, if working traffic in a team) must have visually witnessed the infraction, or unless the officer is at the scene of an accident and issues as a result of a finding. That one of your courts has disallowed such video evidence in the way of prosecution, I would not find too much comfort in. That a 'lawbreaker' was allowed to skip is perhaps a celebratory thing in the consideration of all other things traffic. I would however consider the 'fuller' implications if in the same vein, a violent felon is allowed to skip using the traffic camera precedent. Else, what is the difference between a camera and an eye witness (neglecting to address the implications of tampered evidence)? And before there is any such challenge in the way of firearms, may I express the necessity to establish other supporting structures in the law, that will serve to bolster your positions when you decide to act in that regard, not unlike paving the way, as it were. A good cake deserves the right amount of baking! ET -- There are all sorts of appeals they can make but I don't think it would be wise politically because the Government would in essence be attacking the Human Rights Act, an Act they pushed through Parliament. Also I think they would have a very hard time overturning that decision so it would be unwise legally, because the last thing they want is the High Court or the House of Lords agreeing as then it really will be chiselled in stone. Steve. Cybershooters website: http://www.cybershooters.org List admin: [EMAIL PROTECTED] ___ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
