Category Archives: Crime

These are comments on crime and why it happens. I look at how to beat it. I examine criminal justice. I insist on justice – just that, no harshness and not leniency.

Why the USA needs gun control.

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trolls.

threaten me

Get rid of democratic senators. Why no guns in white house or on air force one. Why not protect oneself from secret service.

trump spoke for gun rights from behing bullet proof screen.

why did revolution succeed? generals, bravery, foreign government

French, Spanish and Dutch help.

Have no insurrections failed?

USA would not succeed in revolution. they will not accept high death toll. 4 000 killed in Afghanistan and 4 000 in iraq

did gun rights save African-americans from tyranny?

did guns save native Americans?

Was in hotel in belize. no gnun raises the stakes.

Afghanistan guns. you favour USSR or mujahideen.

first principles. restrict dangerous items. choice versus safety.

creech said knife crime is a problem in the UK. true. We must do something about it.

gun control – happened in 1960s and 1993. jeremiads.

kinder egg.

burgers are dangerous. defend liberty with burgers.

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Free Warren Jeffs.

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Mr Jeffs was convicted of sexually abusing two girls. One was 15 and the other was 12. Warren Jeffs is presently serving a life sentence in Texas. Texas is perhaps the cruelest jurisdiction in the world in terms of prison terms.

There is no doubt as to Mr Jeffs’ guilt. His crime was serious but it was not as heinous as it has been treated. Remember that he has been handed the second gravest sentence of all. The only severer penalty would the death penalty.

Mr Jeffs has already served ten years. He is unrepentant and this redounds against him. He has more than paid his debt to society.  He still advocate polygamy. His opinion is not a crime but turns many against him. What he did was a major crime considering he was a middle aged man when he did this was the 12 year old. It was not a one off but part of a well established pattern of misconduct.

Every state has an age of consent. 18 is unusually high but that is the law in Texas. A state is entitled to hand down custodial sentences for beaches of these age limits. However, it is unfair to punish such breaches too heavily.

.A generation earlier intercourse with a 15 year old would not have been controversial so long as it was within matrimony. Jeffs was married to these girls according to his religion. That has no legal force. What he did with the 12 year old will upset any right thinking person. Nonetheless he has already been severely punished for his transgressions and ought to be set at liberty.

The nuts and bolts of law. (Intro to Common Law)

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The nuts and bolts of law.
Courts are divided into two divisions: the criminal division and the civil division.

Courts go up in tiers (levels).
In the criminal division it is magistrate’s court then crown court, then court of appeal, then the supreme court. Cases can then go to the European Court of Human Rights.
In the civil division the county court is the lowest court. Then there is the high court, then the court of appeal and then the supreme court. Cases can also go to the European Court of Human Rights.
Notice that at court of appeal is the same for both divisions. The same goes for the supreme court and ECHR. The same judges at these tiers hear both criminal and civil cases.
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CASE NAMES.
A case will have a short name like
Massingbird v Simmonds [2002]. The first named party is the party that moved the action. In this case Massingbird moved the action.

A party is the person or organisation in a case. We say party because it can be one person, more than one person, an organisation or several organisations together.
The second named party (in this case Simmonds) defends the action.
The year of decision is sometimes given in square bracket afterwards. Note it is the year of decision which is not always the year a case started.
Take Fazwi v Zia [1990]. If the case began in 1989 but the case was decided in 1990 then the year of decision is given: 1990.
The ”v” is read as ”and” in Commonwealth countries. SO for Fawzi v Zia one says ”Fawzi and Zia.” It is NOT ”Fawzi vee Zia”
The” v” comes from the Latin ”versus” which means against. In the United States people say ”v” or ”versus”. Some people in Commonwealth countries have picked up this American practise and read te letter ‘v’ as ”vee’ when talking about the name of a case or else they say the word ”versus.” In Commonwealth countries this is considered to be a mistake. I know it seems illogical – if you see a ‘v’ you would assume that you should say ”vee” or the word it stands for ”versus”.
So, to recap – Thistlewood v Michaels is read as ”Thistlewood and Michaels”.

Sometimes more than one party moves an action. Moreover, more than one party can defend an action. It could be Vinson, Simons and Haq v Peters, Borough and Fairclough. In this case it would seem ridiculous to read it as ”Vinson, Simons and Haq and Peters, Borough and Fairclough.”
In this situation for the letter ‘v’ one reads ”against”. Yes, the English words against and not the Latin word ”versus.”
It would be ”Vinson, Simons and Haq against Peters, Borough and Fairclough.”
Even if there is only one party on either side one can still use the word ”against” between them. For instance, in the fictitious case of Clyde v Benson it could be read as ”Clyde against Benson” or ”Clyde and Benson” whichever you prefer.

Sometimes there are several parties to an action. You do not need to list them all. Take this fictive case:
Faron, House, Porterfield and ICI v BBC, Whitehouse, Grass and Terrington.
It is acceptable to say ”Farron and others against BBC and others.”
The name of a case is usually in italics. A case may be heard again and again in which case it is called number 1 , number 2, number 2 and so on.
Bow Street Court Stipendary Magistrate v Pincochet Ugarte [Number 2] is an example of this. That is because the Pinochet Ugarte case went through several stages.

People often put the year of decision to help understand the historicity of the case. It also helps to distinguish between cases with similar names.
In criminal cases it is the Crown that moves the action.
Then Crown v Samuel would be an example. The Crown can be written as ”R”. This is because of the Latin word ”regina” meaning ”queen” or the Latin word ”rex” meaning ”king.”
R v Byng is read as ”R against Byng” or ”R and Byng.” It is also acceptable to say ”The Crown.”
It is not the Queen who personally moves the action. Her title is used as a constitutional abstraction to personify the state.
In other countries it is the name of the country that is used in criminal cases.
India v Mahsood.
Personal names are sometimes used because too many people have the same surname and it gets confusing.
There might be R v Smith case already so one would say R v Smith (Frederick) to distinguish it.
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LAW REPORTS.
Read the Western Law Reports. There are law reports that specialise in certain areas of law.
Court of Appeal reports only deal with reports at that level.
A report will summarise the salient facts and any developments. Millions of cases go on each year. They cannot all be reported. Most of them do not change the law so are not reported. Court reporters do not have time to read up on all cases. Many cases are open and shut. If a case is very straightforward or there is no innovation there is nothing to report.
A gigantic case can involve millions of words of oral submission and written documents. No one can process all of this or remember it. A report can only be a summary of the key points. What was decided and why? Why is that significant?
There are superb resources for looking up more cases. Lexis Nexus is perhaps the best. The name is Latin for ”network of the law.”

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OUT OF COURT
There is so much focus on courts that it is easy to overlook the fact that most legal work happens outside of court. Barristers prepare cases by reading their briefs. They have meetings with clients – these are called conferences.
Solicitors meet clients and prepare documents. They write official letters asking for this or that and replying to other letters.
Law firms advise their clients. They make out of court settlements. Solicitors handle property transactions, divorces, pre nuptial agreements and wills. They draw up contracts. None of this usually involves a day in court.
People litigate against each other. That means they try to sue each other. This usually involves solicitors not barristers. People often make an agreement without going to court. This reduces the risk for both sides. The side that pays out pays out less than it would if it lost in court. The party receiving the payment receives less than it would if the case went to court and won. On the other hand that party is guaranteed something. The claimant might lose in court. Moreover, legal costs are kept down.
People are increasingly litigious – eager to sue each other. To sue someone comes from ”pursue” – as in chase them through the courts. This only applies to civil actions.
People who start court actions can withdraw it at any time.

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JUDGES
They are addressed as ”Mr Justice Name” or ”Miss Justice Name”. They are not called ”Your Honour” in the Commonwealth.
At a certain level a judge is addressed as ”my lord” even if he does not have the title ‘Lord’ although some judges do have the title ”lord.”
Judges must be respectable and neutral. They approach matters objectively. Judges strive to be unemotional. They must uphold the law and seek to do justice. Sometimes these aims clash. Lord Hoffman said that sometimes he felt very sorry for a party in a case but he recognised that the law and or justice favoured the other party. Therefore Lord Hoffman was duty bound to rule for the party whose case was founded on law and /or rooted in justice.
There is no law against them being politically active but none are. If a judge brings the judiciary into disrepute he or she will be required to retire. This can be even if what the judge did was not illegal. They refrain from making comments on political matters. Politicians should not publicly criticise judges and very rarely do. Judges do not feel they can speak up in their own defence as they strive to avoid straying into the public sphere.
Judges are said to sit ”on the bench.” A recorder is a low ranking civil judge. A recorder can also practise as a barrister one some days as sit on the bench on others.
Above average barristers tend to be the ones appointed to the bench – i.e. made judges. This is because average and below average barristers are not considered good enough to be judges. The real high fliers earn so much that they would make less money if they became judges. Judges are highly paid to reflect their status and erudition. It also makes them difficult to bribe. Only one judge in the last 10 years has been convicted of bribery. No others have even been accused. Judges have a guaranteed income, good holidays, they work reasonable hours and they have a handsome pension. These are the attractions of being a judge. Judges are normally required to retire when they reach the age of 70.

Judges cannot be removed unless they do something disgraceful nor can they have their salaries docked. The purpose of this is to ensure their neutrality. If they could be penalised for returning judgments that were uncongenial to the government then the independence of the judiciary would be gravely impugned.
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THE SUPREME COURT.
A panel of judges hears cases in the Supreme Court. The panel hearing a case is called a ‘constitution’. They usually sit as a constitution of five judges. It must be an even number. This is so if they disagree there must be a majority. If an even number heard a case there could be deadlock.
The majority ruling is presented. One judge will give his opinion. He or she will express the view of the others. Once this judgement has been delivered other members of the majority might add something that the first judge did not say. Quite often other members of the majority say ”I have nothing further to add.” If there is a minority then the minority judges also state their opinion. The dissenting judgement is that of the minority.

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COURT CASES.
In court cases barristers normally wear a black gown, a white stirch with a starched collar, a white wig, the black waistcoat and black-grey trousers. Women have the choice of a skirt or trousers so long as the garment is of the right material and colour. When barristers wear this anachronistic garb they are said to be robed.
Judges wear robes and a wig. Barristers and judges wigs used to be made of horse hair. They are usually manufactured from synthetic material.
Judges seldom wear the full bottomed wig. These are only worn for one procession a year. This garners a lot of media coverage which is why there is the misconception that judges usually wear these elaborate wigs.
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CHILD WITNESSES.

When a case involves children as witnesses a court makes special allowances. Appearing in a courtroom is daunting for anyone especially a child. A judge may order barristers to appear unrobed in the courtroom. This means that they wear suits as a person would for any professional meeting. Wigs and gowns are not worn. This is intended to make the experience less bizarre and frightening for the children. Sometimes judges allow the children to give evidence from another place and the evidence is presented by video link.
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BARRISTERS.
A barrister is a type of lawyer. There are two legal professions – solicitors and barristers.
After a Law degree a person can do the Bar Professional Training Course – (BPTC.)
If someone does not have a law degree she can do the Common Professional Exam (CPE). This is a one year course. Having passed this then the person can do the BPTC. The results in BPTC are oustanding, highly competent, competent and fail.
The BPTC is a demanding course. After passing the exams a person is then called to the Bar. This means he or she has become a barrister. The ceremony is called ”the Call”. The barristers wear their robes and wigs for the first time. Those being called to the bar that day are the callees. A barrister will list her year of call as 1992 – for example. That means that was the year she became a barrister. Then a barrister will say how many years call she has – as in how many years she has been a barrister. Some jobs are available only for those of at least 10 years call. On a barrister’s CV it might say ”Call: 2004” as in she was called to the bar in that year.
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INNS OF COURT.
There are four Inns of Court. These are Grey’s Inn, Lincoln’s Inn, Middle Temple and Inner Temple. All are based in London. A barrister must belong to one of the four Inns even if he or she practises in another part of England or in Wales.

The Inns are all the same standard. They all do all types of law. It is not the case that one is better than another.

In the Middle Ages serjeants at law (barristers) set up these inns. Law students lived and dined in the inns. So did some serjeants at law and barristers. They would also arrange for accommodation for lawyers or judges travelling around the realm. The word ‘temple’ in the name of two of the inns alludes to when Knights Templar stayed in these inns on their way to the Crusades.   There was an Outer Temple centuries ago but it no longer exists.

Each inn has its owning dining room, bar, library chapel and even sports ground.

Each inn is divided into dozens of chambers. A chamber is like an office. There might be one barrister in a chamber – this is highly unusual. Usually there are thirty of forty barristers in a chambers. Every chamber is part of an inn of court. Even if a chambers is in Newcastle or Cardiff it is nominally part of one of the inns of court in London.

Barristers share the services of clerks (secrtaries). The clerks are usually male. Clerks deal with money and solicitors. There are normally several clerks in a chambers. The head clerk is well paid. The others start on minimum wage.
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PUPILLAGE
Barristers then try to get pupillage. This means being an assistant to a fully qualified barrister. The qualified barrister is called the ”pupil master.” A pupil will do a ”six” and then another ”six”. A ”six” is a period of six months as a pupil to a barrister. At the end of a six the pupil master is asked to sign a certificate of competence for the pupil. These are invariably signed. It is so extremely difficult to get a pupillage that people very rarely fail in them.

A potential pupil should apply to a chambers that specialises in her or her preferred area of law.
Pupillages are very oversubscribed. Many able candidates are rejected. There are very demanding interviews for pupillages.
After two ”sixes” a barrister applies for tenancy. A tenancy is a place in chambers.

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TENANCY

This is the real stumbling block. There are three times more candidates for tenancy than there are tenancies. Anyone without a first class degree and an outstanding result in the Bar course can more or less forget it.

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A History of Common Law. (Intro to common law).

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A HISTORY OF COMMON LAW.

Common law can be traced to the 9th century AD. There are very few written sources for England prior to that date. The Anglo-Saxons who lived in England are regarded as having founded common law. In fact their nostra were not entirely original. The Angles and the Saxons had come from what we now call Germany and the Netherlands. They drew on legal customs from their ancestral homelands. The had some classical learning. The notion of jury trials existed in Ancient Rome and Ancient Greece. Trial by jury remains an important component of common law although is has largely been removed from Roman law.
In Anglo Saxon England is a person was caught red handed then he or she was punished on the spot. This could include whipping but it was sometimes summary execution if the offence was grave.

When there was some doubt if someone committed a crime then he or she was put on trial. A jury consisted of 12 men who knew the defendant. This is a major difference from the current situation where the jurors must not be personally known to the defendant. The Anglo Saxons believed that the jurors must know the defendant because then they would have an idea if this person was trustworthy or not. The flaw with the jury knowing the defendant is tnat they would have an opinion of the defendant. They might be friends or enemies of his or hers.
The jury would hear the evidence and then vote guilty or not guilty. All 12 jurors must vote guilty for the defendant to be found guilty.
There were trials by ordeal. This meant a defendant might be forced to pick a stone out of boiling water. The wound would then be bandaged. If the wound was healed after three days the man was innocent because God had cured him. If the injury was not healed after three days this was indicative of guilt.

The Anglo Saxon kings of England said that the people had certain rights. The kings had duties and were obliged to rule fairly and within the law. The king had to protect the independent status of the Catholic Church which was the only form of Christianity in the country at the time. The king was not allowed to tax people without the agreement of the Witenagamot (a precursor of Parliament). Despite this notion that people had rights some people were still thralls (slaves). Society was unequal. Noblemen – called thanes – had more rights than everyone else. The notion of inegalitarianism was upheld by the clerical authorities.

In 1066 England was conquered by William the Duke of Normandy. He later conquered some of Wales. He was crowned King of England on Christmas Day 1066. He took some Roman law traditions with him from the continent. At his coronation he swore to uphold England’s legal traditions. In fact he did very little to honour this vow. The Witenagamot stopped meeting.

Most people were serfs. Serf is derived from the Latin ‘servus’ meaning slave. Serfs were not exactly slaves but they were not free either. They had to do unpaid work for their landlord. They also had to work on land they rented from the landlord to produce food for themselves. They paid rent for this land. The were obliged to do corvee – unpaid road work. If they wished to grind corn they were only permitted to use the landlord’s mill and pay over the odds for it. They had to obtain permission to wed or become a priest, monk or nun.
In the 12th century English and Welsh people settled in Ireland. The east coast of Ireland was under the control of the crown. Common law started to prevail there. The rest of Ireland followed Brehon Law. Over the centuries common law spread throughout Ireland.

In the Middle Ages there were separate ecclesiastical courts for clergy. Clergy meant not just monks or priests but anyone who worked for the church in any capacity. At one stage anyone who could read could claim benefit of clergy i.e. to be tried before an ecclesiastical court. For ordinary offences such as theft or battery the sentences handed down by the ecclesiastical courts tended to be risibly mild such as saying prayers. The king’s courts were far harsher. As many defendants as possible opted to be tried before ecclesiastical courts. This was an era when the death penalty as employed liberally. pickpockets had fingers cut off. Poaching one of the king’s deer was punishable by blinding or castration.

Ecclesiastical courts only came down like a tonne of bricks on offences that were specifically religious. These included blasphemy and apostasy. To take the Lord’s name in vain was a grave crime. To profess one’s disbelief in Christianity was to make one liable to suffer death. Sacrilege was also severely penalised. This meant profaning the mass.

Universities were ecclesiastical institutions. They were therefore semi-independent of the state despite having royal charters. The two English universities – Oxford and Cambridge – had their own courts and even police forces. Undergraduates or lecturers who transgressed were arrested by the university’s police, tried by its courts and detained in its prisons. The university even executed people very occasionally. Universities did not have jurisdiction only over its own members but anyone who committed an offence on its property. The universities owned most of the cities of Oxford and Cambridge at the time. This system was abolished piecemeal and largely ceased to exit in the 19th century. Only in 2000 was the Oxford University Police Force abolished.

Henry II tried and failed to rationalise the system and take the laity out of the purview of church courts. Only under Henry VIII were the ecclesiastical courts reined in. The church courts after him dealt with simony among the reverend clergy and suchlike matters. The church courts still exist but deal only with clergy and are more like disciplinary panels. They cannot issue punishments like imprisonment. They can only unfrock a cleric.
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NORMAN RULE and MAGNA CARTA

Kings of England after William the Conqueror also swore to uphold people’s rights. A major rebellion against King John compelled him to sign Magna Carta in 1215. King John was fighting a very unsuccessul war against France and was resorting to unjust means to get money. The revolt was led by barons and not the common people. The barons were irate about excessive taxation especially one in lieu if military service – a tax called scutage. They detested King John not letting them inherit property or charging them a huge relief tax in order to be allowed to inherit property. John had been taking their wives and children hostage. If a man was facing trial he was held in prison indefinitely until he paid for the trial to begin. John was using any excuse to extort money from people.

Magna Carta (the Great Charter) re-stated some rights that were already held to exist. It also created some new ones. Magna Carta is very over blown. It only applied to free men and most men were not free.

Magna Carta set a limit to the amount and frequency of the tax called scutage (shield money). It said the king was not allowed to prevent people inheriting property. He was forbidden to take hostages. He was not to delay or deny justice to anyone. Note that one says ”Magna Carta” and never ”the Magna Carta”. In Latin the definite article is already contained in the words ”Magna Carta.”

King John repudiated Magna Carta as soon as he could. He said that he had only agreed to it because he was compelled to do so by a rebellion. A promise extracted under threat has no value. The Pope ( religious leader of the Christians in western Europe) backed King John up on this.

Magna Carta was not a world trail blazer. Other countries had more advanced charters. Hungary had the Golden Bull long before Magna Carta and the rights granted were more extensive in the Golden Bull. Note that the word ‘bull’ here is not an animal. It is derived from the Latin word ‘bulla’ meaning led because the document was sealed with led. Nor indeed was this charter in Hungary ‘bull’ in the other sense!

King John’s son, Henry III, then became king. Henry III later re-issued Magna Carta. English monarchs all paid lip service to Magna Carta even if they did not always honour it.

Magna Carta says nothing about Parliament! There is no mention of voting rights or of freedom of the press. There were no printing presses in Europe then. Even if there had been only about 10 per cent of the population could read. The Catholic Church was the mass media at the time. The Church was guaranteed its independence from royal control. The Church was to be governed by the Pope and not the crown.
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PARLIAMENT
A parliament met in 1265. Henry III was obliged to summon parliament because it was demanded by barons in a later baronial rebellion led by Simon de Montfort. Parliament was elected major property holders only. There was a House of Commons with an elected element. Two knights from each shire (county) and two burgesses (wealthy men) from each town were sent to Parliament. Parliament was very unrepresentative because only the affluent were allowed to vote. There was also a House of Lords; those with noble titles sat of right. Bishops were ex officio members of the House of Lords. Parliament sat very irregularly. It only assembled when the king summoned it to meet. The king might summon Parliament – an election would be held. Parliament would gather in London or wherever the king told them to meet him. Parliamentary business would be transacted for a few months and then the king would dissolve Parliament. Parliament would not meet again until the king chose to call it. That might not be for several years.
Parliament made law.

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COURTS OF EQUITY.

English Law was very rigid in the Middle Ages. Sometimes there was no statute to cover a particular situation.

Judges developed equitable maxims to deal with unforeseen situations.
Statute law was harsh and inflexible. Equity was intended to resolve this.
The Lord Chancellor was the head of the king’s writing department. All records of court decisions, tax payments and correspondence came to the Chancellory of which the Lord Chancellor was head. The Lord Chancellor was always a priest. The Lord Chancellor was also the father confessor to the king. He was the keeper of the king’s conscience. The Lord Chancellor would try to induce the king to be merciful.

The role of the Lord Chancellor in recent centuries has become separated from that of a clergyman. However, in the coronation of Elizabeth II the last vestige of this confessorial role was seen. When the Archbishop of Canterbury administered the oath to Her Gracious Majesty he admonished her, ”Be thou not so strict that thou forgettest mercy and be thou not so merciful that thou art remiss.”

Various equitable maxims were developed which helped courts handle difficult situations. The maxims are originally in Latin and often quoted in Latin to this day. However, here we shall render them in English translation
”He who comes to equity must come with clean hands.” That means if someone seeks the assistance of equity he must not be a malfeasant or have done something inequitable himself. This does not necessarily mean something illegal. If the claimant has been a sharpster then he is likely to be given short shrift.

”Equity will not assist those who sleep on their rights.” If you want to make a claim in equity you should do it as soon as you find out about the breach of your rights.

This is how equity developed in parallel to law. There were separate courts of equity at the time. Courts of law and courts of equity were finally amalgamated by the Judicature Acts in the 1870s.

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REFORMATION
There were church courts in the Middle Ages. These dealt with clergy. Clergy did not mean just priests, monks and nuns. ANyone who worked for the church could claim to be clergy. Those who could read could even claim to be clergy. Henry II tried to resolve this situation because ecclesiastical courts were very mild. Henry II failed to do so.
In the 16th century Henry VIII abolished the Catholic Church. He founded the Church of England. Ecclesiastical courts lost almost all of their remit.
Trials in the king’s courts were not fair as we would see them now. Defendants had no lawyers. The prosecution would be led by lawyers. Defendants were not always permitted to speak in their own defence. Sometimes they were not even present at the trial! The court only heard testimony and saw evidence displayed by the prosecution.
In the early 17th century Scotland and England got the same monarch. However, the separate legal systems remained. The Scots system is more Romanised than the English one. Nevertheless, Scots law is common law up to a point. England and Scotland learnt from each other as did Ireland.
Common law is often called English Law. It would be more accurate to say English and Welsh Law.

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SIR EDWARD COKE
He was a famous 17th century jurist. Coke advanced the notion of rights. The monarch at the time was James I. James I was wedded to the notion of the divine right of kings. James I believed that the monarch had untramelled power and that any rights a king chose to grant were just that: a choice. The king did not have to allow his subject any rights at all. Sir Edward Coke claimed that the law clearly showed that subjects had rights and that monarchical power was strictly limited. The tension in this debate eventually led to the English Civil War in the 1640s.

Arbitrary power was circumscribed through the 17th century. Judges gradually became more independent.
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BLACKSTONE.

Sir William Blackstone was a famous 18th century barrister and jurist. He wrote a multivolume jurisprudential digest entitled ‘Commentaries on the laws of England.’ This was the first systematic attempt to summarise the laws of the country since the Middle Ages. His magnum opus is known simply as Blackstone.

There is a barristers’ chambers named in honour of Blackstone. Nota Bene his named is pronounce ”BLACK stun” not ”black STONE.”
Blackstone said the judges were ”living oracles of the law.”

Criminal was very severe at the time. Some saw to reduce its severity. People could be executed for dozens of offences. This included grand larceny – stealing something worth more than 5 shillings. Someone’s wallet could easily contain this amount of money.

Crimes against property attracted condign punishment. Crimes of violence were mildly penalised unless it ended in the death of the victim. Sir William Blackstone reflected lugubriously that there were over 160 offences which attracted the death penalty. Islamic law was compassionate by comparison.

Law was still somewhat amateurish. Judges were known to hear cases whilst in a crapulous state. Judges were not always neutral. They often questioned defendants. They were supposed to act for defendants but were sometimes prejudiced against those accused of crime.

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19th century
The right to fair trials were enhanced. Judges became more neutral.
Judges would only turn up to trials sober. Defences lawyers were permitted. Someone who was too poor to afford one would be provided with a lawyer for free in the case of a capital trial.

Legal education became formalised. Universities started to award law degrees. Likewise people were required to pass bar exams in order to be called to the bar. Prior to that men had hung around an inn of court and attended lectures, watched trials, lived at an inn and eaten a certain number of dinners in their inn of court and acted as pupils. They had been called to the bar after a very informal process.

The Offences against the Person Act (1861) defined crimes of violence. It also prohibited procuring a medical abortion except to save the life of the mother.
Lord M’Naghten, a criminal judge, found someone to be guilty but insane. This was the first time someone who was proven to have committed a criminal action was declared to be not guilty by reason of insanity. Although the man had committed the actus reus (guilty act) there was no mens rea (guilty mind). This is called the M’Naghten judgment.

Towards the end of the nineteenth century a most distinguished barrister named Edward Marshall-Hall began to make advances in criminal defence.

Judicial neutrality was not as firmly entrenched in the 19th century as it is today. The Conservative Prime Minister Lord Salisbury boasted that he only appointed Conservative supporting judges. This was another bone of contention. Judicial appointments were murky. Informal soundings were taken among existing judges. ”We are considering appointing Ambrose Snodgrass to the bench. Is he a good egg?” This created a self-perpetuating judicial class.

In the United States judges are elected except for Supreme Court justices who are appointed by the president but are still subject to Congressional approval. In the United Kingdom it is held that electing judges politicises the judiciary. In the other hand the American system is above board.

The trouble with electing judges s they are less likely to make just ruling when this would be electorally disadvantageous. A judge should be indifferent to public opinion – neither seeking to placate it mot to aggravate it. It harks back to the legal maxim ”fiat Justitia ruat caelum” meaning ”Let justice be done though the sky should fall.” This expresses the belief that a judge should return a just ruling no matter what the consequences.

In the late 19th century a celebrated jurist enhanced understanding of the law of contract. He was one Algernon Venn Dicey. Dicey was the Vinerian Professor of Public Law in the University of Oxford. Professor Dicey held the same chair (professorship) as Blackstone had held. Dicey was also virulently racist. This does not diminish the value of his teaching on contract.

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20th century.
The notion that children deserved softer treatment was enshrined in law. Children were sent to special juvenile courts and borstals in the case of crime.
The Children’s Act prohibited people from supplying those under 16 with tobacco and alcohol. Children were required to attend school for longer and longer.
Women were allowed to become barristers from the 1920s.

Legal aid was introduced after the Second World War. This provided reduced price or even free legal advice for people on low incomes. The cost of this to the taxpayer increased and increased.

human rights became an express concept in law. Some judges were sceptical about the need to introduce such concepts believing that they instinctively knew what rights existed.

The laws on divorce were relaxed as divorce became more common.
Judges became bolder at creating law. Some felt this was judicial activism.
The death penalty was last used in England in 1964. It was suspended in 1965 after a lengthy campaign and formally abolished in 1998.

The use of expert witnesses was pioneered in the United States by Melvin Belli. This was the copied in the United Kingdom.

Pupils came to be paid at the bar in the 1990s.

In the second Millennium the judicial appointments system was rationalised. Politicians lost all their powers of patronage over the judiciary.

”Cry Havoc” by Simon Mann: A Review.

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Cry Havoc is an autobiography by Simon Mann. Mann takes the title from a line in Shakespeare’s Julius Caesar ”Cry havoc and let slip the dogs of war.”. This line has been used by Frederick Forsyth for his novel The Dogs of War about a coup in a fictitious African country. Perhaps the title is an allusion to Forsyth’s novel. It also hints at a lack of imagination that pervades Mann’s book. This is not disparaging. Mann was an officer in the Scots Guards, he served in the SAS, he was an oil trader and then a mercenary. None of these are occupations where creativity is much valued.

Cry Havoc is a pacey and candid book. It is an enthralling insight into the world of guns for hire. There is intrigue, suspense and much suffering.

Havoc is what ensued when Mann and his chums attempted to topple the dictator of Equatorial Guinea. The autobiography begins with Mann being in Harare Airport in 2004. He and his confederates are en route to Equatorial Guinea (EG) when he is arrested by the Zimbabwean Central Intelligence Organisation (CIO).

The book jumps back and forth between his early life and his travails in prison. Mann gives a precis of his early life. He was born in London in 1952. He was brought up on Chelsea Square in one of the most exclusive areas of the British capital: Belgravia. His house had once been owned by the renowned poet Matthew Arnold. Simon’s father and grandfather had both played cricker for England and both had been officers in the Scots Guards. This regiment tended to draw its officers from the aristocracy. This did not necessarily mean they were titled. The Mann family made their lucre in brewing. Simon Mann did not inherit a title himself but was related to peers. His father had been to Cambridge and later captained the English cricket side. It was on a tour of South Africa just after the Second World War that Simon’s father met a South African lady whom he married. This woman was Simon’s mother. Hence Simon’s lifelong fascination with South Africa and her neighbours.

Mann went to Eton. It was touch and go as to whether he would make it to Eton. It was not easy for him, once there, to get enough O Levels and A levels to become and army officer but he did.  He then proceeded to Sandhurst – the Royal Military Academy. He had no pretensions to scholarship. Improbably he won the Soviet Studies Prize. He did the two year course there. It is now a one year course. He was commissioned into the Scots Guards. Note that a man does not need to be Scots to serve in the Scots Guards.

Mann had a decent career in his regiment. The Scots Guards like the other Guards regiments spend most of their time in and around London. They are often in Windsor. Their role is as their name suggests; to guard. They guard Buckingham Palace, St James’ Palace, Windsor Castle and they used to guard the Bank of England. They spent much of their time on drill and doing public duties. They are among the Footguards who wear ceremonial dress which consists of red tunics and black bearskin hats. This is not to say that the Brigade of Guards is solely a show horse unit. They also served in Northern Ireland during Mann’s time.

Simon was no mere parade ground soldier. Mann also passed into the Special Air Service. This meant he was among the hardest of the hard. He married in his 20s and started having children. He eventually sired seven! In 1985 he left the army and went into oil.

Much of the oil traded came from Angola. This former Portuguese colony was in a civil war from the moment of its independence in 1975. The government was made up of the Marxists called the MPLA. Their foes were Unita. Unita was backed by South Africa and the USA. A peace accord followed in 1993 and internationally supervised elections. The MPLA narrowly won and was universally recognised as the rightful government. Unita restarted the civil war. Oil was not getting through via the MPLA Government. Unita controlled the oilfields and was profitting from it. Mann proposed retaking the oilfields. This seemed insane at first but he talked his colleagues around. SImon Mann proposed a plan to smash Unita. The Angolan Government listened. Mann was commissioned into the Angolan Army. He led his troops to victory. Was this him acting as a condittiero or not? Probably not since he was a serving member of the Angolan military.

Mann recruited some of his South African pals for that adventure in Angola. He pours scorn on Unita as outright brigands. There is much truth in this. Their leader Jonas Savimbi went from being a Maoist to being a right winger in one year. It seems that Savimbi  was a sheer opportunist and a tribalist. Mann points out that his South African friends had been fighting on Unita’s side a couple of years earlier.

Mann was a mercenary or ”dog of war” as he sometimes calls it. This was fighting in Sierra Leone but for the government of that state.

This memoir focuses on the incident for which Simon Mann is best known. That is the failed coup against the President of Equatorial Guinea. Mann said that several governments knew all about the planned putsch. They tipped him the wink to go ahead. Sir Mark Thatcher financed the plot. Simon claimed that the plan was to overthrew the president but not kill him. They would install an Equatorial Guinean exile politician and then hold elections on an entirely fair basis. The trouble is what if the people voted in a crony of the old ruler? That was not considered. Many such plots have borne fruit before.

On this occasion the EQ intelligence service was apprised of it. South Africa knew all about it. According to Mann the South African Government was mad keen for the dictator of EG to be ousted. A new president of EG who owed his power to South Africa would be very valuable to Pretoria. But perhaps the ANC Government believed in pan African solidarity after all and tipped off EG or at least Zimbabwe. The coupsters followed a rule laid down by the IRA: arms and the man come together at the last possible moment and for the shortest possible time. The idea being that guns are the main evidence against the wouldbe putschists. If they are found without weapons then they can claim not to be launching a coup d’etat at all. But if they are taken under arms they will have a hard time explaining away all their assault rifles. It was conspicuous to have 69 ex soldier flying across Africa. The blind was a good one. They were on their way to the Democratic Republic of Congo to provide security at a mine.

Mann claims to have been beaten up by the CIO. The Zimbabwean secret police threatened to kill him. They carried out a mock execution. He is man enough to admit to being petrified. These claims are all very credible. The brutality of the CIO is very well attested. The author does not make melodramatic claims about electordes being applied to his pedundum and suchlike. There is no plea for pity. Being an SAS man he is better able to bear this than most. What seems to have got his goat is the crowdedness of the tank and the insanitary conditions. He gripes about this more than the beatings. He signed a confession in the presence of a lawyer. The lawyer attesting it was appointed by the CIO. Mann only signed this statement because another man was being tortured and the CIO promised to stop if Mann signed. The lawyer did not blink an eye and was totally on the side of his paymasters not his client.

After a few days the autobiographer was sent to a prison. He limns the awful conditions of the prison. As Mann had money he was able to bribe the miserably underpaid prison officers. Conditions became much more tolerable. The Zimbabwean press demanded the death penalty for Mann and his associates. Mann strove not to obsess on the rope but could not always avoid it. Life became more or less tolerable there. It was very dull. Exercises in his cell and writing a book kept him sane. The CIO kept confiscating his scribblings. Escape plans came to naught. What Simon Mann dreaded was being extradited to EG to face trial. There he really was sure he would face capital punishment.

The author was filmed going to court appearance. These images were broadcast on British news channels. He always appeared to be remarkable chipper for a man who was chained and in prison uniform.

Simon felt that someone whom he cryptically called ”London” should help him. But ”London” never so much as sent a postcard. This shadowy figure had very deep pockets and was the real power behind the coup. ”London” could easily have greased the right palms to get Simon released or at least given a paltry sentence. However, ”London” chose not to stick his neck out. In a later interview Simon Mann revealed that ”London” meant an enigmatic  Nigerian-born Lebanese financier named Eli Calil. Calil stumped up much of the money for the coup. Once things went boss eyed he chose to distance himself from his accomplices and deny all knowledge of the plot.

Mann felt compassion for his fellow prisoners. Many were violent criminals. He described the starvation rations. Some prisoners deliberately withheld food from others. The aim was to compel these prisoners to consent to gay sex in return for comestibles. In a country with a terrifyingly AIDS infection rate the result was predictable. The horror and misery of this prison will remind readers how fortunate they are.

The author claimed to have borne to malice towards the Zimbabwean Prison Service. The guards were decent sorts. They tried to do their best in dreadful circumstances. They prison was woefully under-equipped. The prison officers were compelled to take this distasteful job due to penury. Honourable men were gulled by pro-government propaganda. Being fed a diet of nothing bu pro Mugabe publicity it is hard for people not to think that way. Even them some of them recognised that conditions in their country were dire. Some asked Mann about enlisting in the British Army or becoming mercenaries.

Simon fantasised about release after about 3 years. In fact after 4 years he was sent to EG. He claims it was extraordinary rendition rather than a lawful extradition He had been no respecter of law himself so it is hard to accord much respect to such mewlings. He landed in EG and was treated with exceptional compassion. He was not abused but only intensively questioned. He decided that the only way to get out of this was to sing like a canary. He spilled the beans. He was sentenced to 34 years in prison. AFter only 18 months on gaol there he was set free.

This book is written almost entirely in the present tense. That lends it an immediacy and a vividness that is lacking in other works. The book is peppered with serviceman’s slang. There is much casual vulgarity. He used some Shona words. He also introduced this reader to the word ‘shonky’ meaning ”low quality, dodgy and made in a shanty town.” Many characters are described in a terse yet vivid manner. The book is fast moving and never dull. The trouble is some exciting episodes are merely outlined such as his arrest.

The author has a distinctive no bullshit style. His prose is spare and devoid of frills. He  dispenses with the rules of grammar. Many of his sentences have no verb. Often a sentence will be adjective and adjective. It makes for an engaging read. There is also the pleasing notion that this book was not ghosted. There is a military directness to his writing. It is full of humour and philosophising.

The CIO taunted Mann about sharing a cell with black men. They asked him if he thought his race was more valiant? Simon claimed not to dislike black people at all. He had many black colleagues. But then he does use the word ”kaffir”. He mixed with many white Saffas who had formerly been pro-apartheid. He may have absorbed their prejudices.

It is difficult not to feel some sympathy for Mann. Any well-written autobiography should induce the reader to feel this way. Should one feel sympathy for him? He was being paid to risk his life most of his adult life. He was doing something extremely illegal. He claims he wanted a bloodless coup but such a thing almost never transpires. If shooting started hundreds of people could be killed quite easily. There is no doubt that the man he sought to kick out was a savage tyrant. That does not make a coup d etat legal. However, several current presidents came to office through coups. A forcible seizure of power is by definition illegal. Yet such a thing can be moral. Mann claims to have been actuated by a wish to help the benighted people of EG and to have sunk millions of his own money into this project. He worked in oil where profit is the bottom line. It is possible to be motivated by both morality and money. But which was more important for him? He said he detested tyrants and wanted them gone. He was very selective about this. He was offered to try to push out Mugabe. Oddly, Mann was not game for that one. Partly because he knew it was a CIO set up. There are many tyrants in the world whom he did not advocate overthrowing. He was wise enough to mention that there are some benevolent dictators.

Simon Mann was a freebooter. He is perhaps the last of the breed. Given his age – 64 – he is too old for such filibusters. Will we see his like again? He lives quietly in the United Kingdom and makes the occasional media appearance.

The African Union has a grip on things. The AU is determined that the era of European military intervention – official or unofficial -in their continent is over. It is unlikely that whites will attempt to assist such a coup in the short or medium term.

Kaja v Secretary of State for the Home Department 1995

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This is an asylum case

This man fled Zaire. His claim for asylum was thrice rejected. He complained that the adjudicator had been unfair.

”A reasonable degree of likelihood of  persecution if returned”’ was the standard needed to grant asylum as laid down in prior cases.

 Stare decisis

The adjudicator had not referred to a standard of proof. A hearing was needed de novo

There was a misdirection of law

 One must look not just at history but at the possibility of future persecution

Kaja was granted a fresh hearing

Decision makers must take into account evidence of various categories

1. evidence that is certain

2. evidence that is probable

3. evidence that if possible

4. evidence that is false.

R v Secretary of state for the home department ex parte karanakaran

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A person from Sri Lanka claimed asylum in the United Kingdom

He came to the UK because he feared torture if he remained in Sri Lanka. He was suspected of being concerned in the LTTE.  This was not a Convention reason.

He needed to show his fear of torture was justified by more than a civil standard of proof.

The House of Lords held that in such cases facts are particularly important and trump law.