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Archive for February 1st, 2010

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I don’t know what they are smoking down at the Tory Think Tank – but it is heavy shit judging from the latest policies on Law & Order being revealed in recent days.  The Tories plan to change a perfectly sensible law into something verging on insane – because they say that people, courts and juries do not understand the present law on self defence of ‘#reasonable force’.  They have cited that the law needs to be changed because of the Munir Hussein case (which was not a self defence case) and because Mylene Kass got ticked off by rather foolish police for waving a kitchen knife at someone staring into her kitchen from outside.

The Tory proposals have received good coverage in the press.  In December of last year The Independent reported: ” Chris Grayling, the shadow Home Secretary, has said there should be a “higher bar to jump” before law-abiding householders are jailed. He has promised to review the law to bring it in line with the Republic of Ireland where people can use all but “grossly disproportionate” force. Mr Grayling said that if someone was threatened in their home by a knife-wielding burglar, they “might” be justified in killing him.”

The latest idea is from David Cameron: The BBC reports

Burglars “leave their human rights outside” when they break in to a property, Conservative leader David Cameron has said.

Cameron promised to strengthen the law to protect householders who exercise their “legitimate” right to self-defence when confronted by an intruder.  I am not entirely sure what he means when he says that burglars leave their human rights at the door, nor does Cameron, judging by a recent interview he had with John Sopel

SOPEL
OK well let’s go to another one that I think is ambiguous. Defending your home, the right to defend your home. Chris Grayling told us on the Politics Show last week that he was definitely going to change the law. As to how, it is not clear. Now that’s not a question of spending. How would you, how is the law going to change?

CAMERON
Well we think that the, the proposal has been put forward which is to say that unless the action you take as a homeowner is grossly disproportionate, so you’re raising the bar effectively, that that will be a good step forward. Now if you can find a different –

SOPEL
How have you turned that into law because –
CAMERON
Well I’ve given you two words – grossly disproportionate. That’s –
SOPEL
You can use proportionate force, you just can’t use grossly disproportionate force?

CAMERON

Well at the moment the reason for changing the law is people I think do find it rather unclear what the current framework of reasonable force actually means, and one of the reasons for raising the threshold is not just what actually happens in the court of law, but it’s to make sure that fewer cases frankly are taken to court, that fewer people are arrested for doing what I think is perfectly legitimate which is to defend yourself in your own home. The moment a burglar steps over your threshold, and invades your property, with all the threat that gives to you, your family and your livelihood, I think they leave their human rights outside.

I am none the wiser as to what ‘grossly disproportionate’ actually means and if Cameron and Grayling can’t explain it, it doesn’t seem to be a very clear law change – and may well baffle even the most gung-ho of householders.  If you can’t use ‘grossly disproportionate’ force, then proportionate force must be acceptable.  How does ‘proportionate force’ differ, in law, from ‘reasonable force?’  It doesn’t appear to be defined in any Tory policy document. Perhaps they are keeping the ‘detail’ up their sleeves until they are elected?  Perhaps, more likely, is that they haven’t actually bothered to work it out properly?  Who knows?  David Cameron certainly doesn’t – otherwise, one assumes, he would have been able to counter John Sopel in the interview referred to above.  It is, of course, possible that burglars will arm themselves more heavily if this law goes forward.  Most householders would not know how to tackle a burglar, let alone an armed burglar. Most people are not naturally violent and  manywould probably baulk at hitting an intruder with a heavy object to the point of death or serious injury?

Even Dominic Grieve, who is an experienced lawyer (and who should know better?)  and who  is currently appearing to do all the Shadow Law jobs (or was), is on this strange carousel.  A friend of mine said he was  ‘almost laughed out of Middle Temple recently when he put forward the ‘not grossly disproportionate’ guff. You can fool some of the people, some of the time.. but you can’t kid a kidder… addressing lawyers about the meaning of laws is very different from grandstanding to the general public and the pro-flog / hang / kill burglars brigade.   Toeing the party line Mr Grieve?  Pushing out the pap for preferment?  Would you take this view if you were not standing for election?

The Independent notes: “Keir Starmer QC, the most senior prosecutor in England and Wales, told BBC Radio 4 that he could not see a justification for changing the law to boost householders’ rights. He said: “There are many cases, some involving death, where no prosecutions are brought. We would only ever bring a prosecution where we thought that the degree of force was unreasonable in such a way that the jury would realistically convict. So these are very rare cases and history tells us that the current test works very well.”

Peter Mendelle QC, Chair of the Criminal Bar Association has said that the current law of ‘reasonable force’ is well understood by juries and there is no need to change the law.  It seems to my increasingly jaded eye that Don Cameroni and his Enforcer, Chris Grayling,  are grandstanding, appealing to public fears and trying to grab votes.  All politicians do this – but this just seems to be another example of half-baked thinking. I could, of course, be wrong – but there again I am not the Pope and I am not standing for election – so I am quite happy to be persuaded by sensible, rational and clear argument and reasoning.

The other point about leaving human rights outside the door is – that The Tories are effectively saying that those who break the burglary laws are to be stripped of their rights.  This is just carpetbagging snakeoil rhetoric.  He cannot mean it – otherwise there would be no need for his ‘not grossly disproportionate’ law. Do these burglars get their human rights back when they get to court?, when they go to prison? Risible.

I shall look forward to a visit from a Tory canvasser as the election approaches… as I tweeted earlier today…

Your thoughts, comments, analysis, ridicule… welcomed as always in the Comments section…

***

UPDATE

David Cameron’s Tories leave human rights at the doorstep

By Andrew Reeves – a very good article / blog post.

New Statesman thinks that Cameron has gone too far: Even burglars have human rights

Spectator:  Cameron grasps at populism out of desperation

“David Cameron has said that “burglars leave their human rights at the doorstep” when they break into a house. He added that he wishes to see “fewer” prosecutions of homeowners who defend themselves or their property from intruders. He has not spelled out precisely how far we can go with burglars, whether or not we can tie them to a tree and bugger them, whooping and hollering. Nor has he made it clear what happens to burglars who climb in through an upstairs window; do they still have to leave their human rights on the doorstep, or could they perhaps put them beside the wheelie bin, near the gate? Either way, this is an abrupt volte face from the Tory leader; three years ago, when attempting to convince the country that the Conservatives were now a “nice” party, he said:….”

“…..Of course, we are nearing an election and we can expect a bit of grandstanding. But has there ever been a leader so divorced from even a semblance of principle or ideology? Has a leader ever flip-flopped more cynically? If you vote for Cameron on May 6 will you have the slightest idea of what you are voting for?”

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Personality is part of politics whether politicians like it or not. Spitting Image, the parody puppet show years ago, showed how a politician’s parody image could become more ‘real’ in the public mind than the reality of  a thousand speeches in the House of Commons.  When I think of Lord Tebbitt even today… I still think about the puppet of him dressed up a s a leathered up biker bovver boy. I still think of John Major, grey, eating peas.  I prefer not to conjure up images of him having sex with Edwina Currie – revelations which followed his premiership.  Guido Fawkes coined the phrase the ‘Prime Mentalist, and it is increasingly the case on blogs, in the mainstream media, that Brown is painted as a violent, bad tempered, dysfunctional man. His Nokia throwing escapades are, they say, legendary.

Guido Fawkes’ latest piece is worth a read: Labour Will Have a Khrushchev Moment of Truth in the End

Guido writes:

As we come closer to the dénouement of this government more and more will come out confirming the truth of this characterisation.  The increasingly manifest weirdness of the man means that his acolytes are now reduced to excusing him as a “poor communicator”.  Poor communication skills do not explain the widely reported acts of violent rage, poor communication skills do not explain the bizarre behaviour, the appalling mistreatment of junior staff or the violent Nokia chucking abuse towards aides.

The demented dithering of Downing Street’s dysfunctional operation is now well known throughout Westminster and openly recognised in Whitehall.  The decision making processes that determine the strategic direction of the country have almost broken down. This stems in large part from the personality of Gordon Brown.

I have very little interest in football and even less in what footballers get up to. If the England Captain wants to behave badly towards his wife by having extra-curricular activities with another woman that is really a matter for his wife to take a stance on.  Being an election year, it was no suprise to find that a government minister has piled in.  Politicians seem to be falling over themselves to bathe themselves in the glory (or caddery) of our sports stars.

The Financial Times notes: “Mr -Justice Tugendhat lifted the injunction on Friday after spending a week examining the case in which he came to the conclusion that the gagging order was largely to protect commercial deals and not justified by “the level of gravity of the interference with the private life of the applicant”. Under the terms of the super-injunction, which has become increasingly popular, newspapers cannot identify the applicant. Hugh Tomlinson, a QC at Matrix Chambers, said: “This is a welcome reminder of the rigorous tests that have to be satisfied before injunctions are granted.” Dan Tench, a partner at Olswang, which specialises in media law, said the ruling was a “manifesto” judgment that set out a stricter approach for those seeking such injunctions. The approach has been contrasted with that of Mr Justice Eady, who has been accused by newspapers of creating a privacy law after awarding injunctions to individuals such as Max Mosley, the Formula One chief, although some lawyers argue the attacks on the judge are overdone.”

It is refreshing to see the High Court taking a different line to the use of super-injunctions.  Perhaps they will be rather more difficult to get in the future?The FT notes that other lawyers take a more sanguine view – that Tugendhat J is even more ‘pro-privacy’ than Eady J and suggest that this stance is more to do with the ‘limited utility’ of granting injunctions in the global internet age.

Pressure is mounting for a clarification on the law of assisted dying. The Independent reports that a poll shows that 73% are in favour of assisted dying.

Pratchett: ‘Let me be suicide court test case’

Sir Terry Pratchett, who has Alzheimer’s, wants to see a tribunal set up to which people with incurable diseases can apply for assistance. A legal expert and a doctor who had dealt with serious, long-term illness would be part of the body, he will add. “If I knew that I could die, I would live. My life, my death, my choice,” he will say.

We’re getting desperate, say kidnapped British couple

The Times reports: Britain reiterated its refusal to pay a ransom for the British couple kidnapped by Somali pirates as a video emerged yesterday in which Paul and Rachel Chandler pleaded for the Government to help.

Britain has taken a consistent stance in public over kidnap cases.  The government does not submit to blackmail or terror ransom demands. A Foreign & Commonwealth Office spokesman said “We do not make substantive concessions to hostage takers, that includes paying ransoms.”

The position is entirely logical, if rather harsh for the unwilling victims. The Somali pirates, we are told, regard kidnapping and ship seizure as a business.  It appears to be an extremely successful and profitable business – ransom demands have been met elsewhere.  Why would the Somali pirates stop if governments and ship owners are prepared to buy their ships back?  Tragic though it could well be for the British couple and their families if the Somali pirates do carry out their threat to execute them – it must be the right stance for the government to take?   I have to admit, however, that it was a bizarre choice of sailing holiday destination.  There aren’t many Somali or any other pirates in the Med, in the West Indies and pirates have not been sited around the coasts of Britain and mainland Europe for several hundred years. The couple are in very real danger, but presumably they were aware of the attendant risks of sailing in that region and if they weren’t, they should have been. [It has been pointed out – rightly – that the Chandlers were in Seychelles Waters and were heading towards Tanzania when they were hijacked and towed towards Somalia – fair point.  Happy to correct.}

They say that the Somali pirates rarely injure or kill their hostages.  I don’t know enough about the subject to be more precise. There can be little profit in it for the Somali’s to kill an elderly British couple, given the British government stance.  A Spanish or French couple, on the other hand may well have luckier.  Both the Spanish and French governments have, reportedly, paid kidnappers off according to The Times.

Yesterday I wrote about Solicitorsfromhell.com – a website set up to name and shame lawyers (into paying money to have their names removed from the list) 

Hat Tip to Brian Inkster, of Inksters – a Scots law firm – for information on a Scottish ‘lawyers from hell’ name and shame website: Scotland Against Crooked Lawyers

Lawyers and Iraq – living with the consequences

Jonathan Goldsmith, secretary general of the Council of Bars and Law Societies of Europe, writing in the Law Society Gazette has an interesting piece on lawyers involved in the Iraq Inquiry last week.   The Foreign & Commonwealth lawyers, Wilmshurt and Sir Michael Wood stated that the war was unlawful.  Jack Straw, Lord Chancellor ignored this advice and took the view that as he had chanced it before the courts while at The Home Office and won, he would regard the war as lawful and Lord Goldsmith, who initially took the the view that the war was unlawful, had a Damascus moment after a visit to the United States etc etc etc.

Jonathan Goldsmith makes this rather poignant comment “I do not envy the participants in this decision, who were required to give advice in just the kind of circumstances which calls on the lawyer’s deepest core principles. I do not know how I would have behaved (and I fear the worst about myself). But I imagine that the legal profession will have to live with the consequences, in terms of the image of lawyers and the image of what legal advice means, for a long time.”

I do like understatement.

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