July 10th, 2009 at 02:59pm
Under Criminal Law
THEFT AND NON-FATAL OFFENCES, STATUTORY AND COMMON-LAW PROOF IN CRIMINAL LAW CASES(Based on author’s site www.geocities.com/crmlw)> Theft and Related Offences Theft says s.1 Theft Act 1968 is the dishonest appropriation of another’s property with the intention to deprive the other of it permanently. The actus-reus of it is in s. 3 ‘appropriation’ (’any assumption of an owner’s right’) as can be changing price-labels to pay less: R -v- Morris 1983, or such ‘borrowing’ of a season-ticket in a way as makes it of no or little value: R -v- Llyod 1985 (’property’ being, s.4, all property including money and things in action, but physical things as paper and not abstract things as knowledge copied from it: Oxford -v- Moss 1979, limitedly on wild-growing plants [unless uprooted] and on flowers-fruits-leaves [unless for sale]; ‘belonging to another’ is by another owned or in lawful possession or control of another, e.g. taking without payment from repairer: R -v- Turner 1971). The mens-rea of it is ‘dishonestly’ in s. 2 (defined in terms of: s. 2(1)(a) unless s/he believes it right in law to do so or s. 2(1)(b) that the owner in the circumstances would consent if knew or s. 2(1)(c) that the owner could not by reasonable steps be discovered), regarded as a two-stage test of ordinary standard of reasonable man and knowledge of it: R -v- Feely 1968 & R -v- Gosh 198; also ‘intention to permanently deprive’ as in Lloyd.
The Theft Acts provide also for other offences. Obtaining property by deception is in s. 15 of the ‘68 Act , as theft but ‘by any deception’ -by false words or tricky behaviour: R -v- Bernard 1837 (pretending as business inducing investment & supply of goods) R -v- Gomez 1993 (unentitledly in Salvation Army uniform collecting money).Obtaining services by deception is s. 1 of the ‘78 Act -it is as for property in the earlier Act.Evading liability in s. 2 of the ‘78 Act is the offence of similarly avoiding e.g. debts.Making off without payment (‘bilking’) is s. 3 of the ‘78 Act ~e.g. restaurant -without paying.Robbery is s. 8 enabling theft by force or such threats, at the time or before, as would put in fear another of there and then being subjected to it ~theft with assault or battery -max.: life.Burglary in s. 9 is mostly by trespass -by unauthorised entry to or to any part of any building (including caravans & house-boats lived in), s. 9(1)(a) ‘intending to steal or inflict grievous bodily harm or raping any person within it, or doing unlawful damage to it or anything within it as a trespasser,’ s. 9(1)(b) or upon entry as trespasser without such intention doing or attempting so ~it is can be tried by Magistrates -by a Crown Court if involves the intention to rape or cause grievous bodily harm Taking a conveyance without consent is s. 12, taking, driving or being in, any thing constructed for carrying people by land, water, or air (except pedal cycles) ~it is a summary offence, normally, with max. 6 month imprisonment -unless aggravated by dangerous driving, or damage to it, or accident causing injury or damage (in the Criminal Damage Act 1971 ‘reasonable careful person test’ applies). > Non-fatal Offences Against the Person
Non-fatal offences against the person are in part common law offences, and in part by statute; and, in order of seriousness, they are as follows:-
In Smith -v-Chief Superintendent of Woking Police Station 1983 entering a garden at night, by looking through a bedroom window terrifying a woman was an offence under s. 4 Vagrancy Act 1824 ~if intending to assault -words alone are not normally enough.Assault is causing apprehension of immediate unlawful physical violence intentionally or recklessly -its charged under s.39 Criminal Justice Act 1998. Threats not capable of being carried out do not constitute it.Battery is the intentional or reckless subjecting of another to unlawful force; and, as in the case of hitting one wit a missile, it need not be coupled by assault. This also is in common-law, charged under s.39 of the Criminal Justice Act 1998.
In both of these offences the mens-rea is intention: R -v- Spratt 1990, or by subjective recklessness: R -v- Savage 1991 was deliberate unreasonable risk taking, and R-v- Parmenter 1991: not if the risk is obvious but if malice was involved. While both the actus-reus and the mens-rea must exit at the same time, the mens-rea can be formed in the course of the actus-reus: Fagan -v- Metropolitan Police Commission 1969 -having accidentally driven car on policeman’s foot, refusing to move car when told had formed it
Satisfactory evidence of consent is a defence: R -v- Donovan 1934 (prostitute beaten by a stick for sexual gratification), if the offence is not a more serious one.Assault Occasioning Actual Bodily Harm is a s. 47 offence and it is when battery, alone or coupled with common law assault, the statutory ‘assault’ of the Act is so serious that it is likely to interfere with the victim’s health and comfort -without cutting the whole skin, physically such as grazing and concussion: R -v- Roberts 1971, or: R -v- Chan & Fook 1994 as nervous shock in psychiatric terms: R -v- Ireland & R -v- Burstow 1997 (a direct physical attack is not a requirement, also e.g. silent telephone calls may constitute the offence of causing actual bodily harm. Its actus-reus is itself as the consequence by the ‘but for’ test, the objective test; it requires this to be coupled with the mens-rea in the form of intention or subjective recklessness: Roberts (where intentionally or subjectively recklessly there was unlawful force, which objectively occasioned the bodily harm). In Donovan consent was not a defence because actual bodily harm was caused ~the nature and the degree of the injury itself being the decisive factor in whether common assault was the offence involved -to which only it is a defence, or actual bodily harm or greater..Unlawful Wounding is a s. 20 offence, and it is by any means unlawfully and maliciously wounding or inflicting grievous bodily harm. In the actus-reus the ‘wound’ is other than a broken collarbone: R -v- Wood 1830 or internal bleeding: JJC -v- Eisonhower 1983; it need not be serious. But ‘grievous bodily harm’ must be serious -although not necessarily permanent or life threatening, nor by a direct attack: R -v- Martin 1881. The mens-rea of it is ‘maliciously’ (intention or subjective recklessness) which applied as transferred malice in intended hitting in R -v- Latimer 1886; but in R -v- Parmenter where ‘neither could have intended nor realised injury’, and consent here too was no defence in R -v- Brown & Others 1993.Wounding with Intent is s. 18, the most serious of the Act’s offences. It is ‘unlawfully and maliciously by any means whatsoever to wound or cause grievous bodily harm… with intent to do some grievous bodily harm.. or to resist or prevent the lawful apprehension or detaining… of any person’; its actus-reus is as for unlawful wounding, but its mens-rea is the intention to commit the crime, and proof of that is required, but it can be reduced to and dealt with as ‘unlawful wounding’ based on subjective recklessness: R -v- Constanza 1996 : it can be stalking and if silent telephone calls cause mental anguish as in R -v- Gelder 1944.
Assault occasioning actual bodily harm and unlawful wounding carry a maximum sentence of five years imprisonment, but wounding with intent carries, as maximum, life imprisonment.> The General Elements That Must be Proved Before Establishing Criminal Liability
These have to be looked at first, in considering whether any offences may have been committed. Some of these are statute-based and some under common-law, their development having been much affected by such pressures as economic, social, and political. Usually specific are the features of each crime, but there are some common elements.
One is innocent until ad unless found in law not to be -except in strict-liability cases; this requires showing both that a guilty act was done, as well as that it was intentionally done.Actus-reus is the criminal act: e.g., s. 1 of the Theft Act 1968 ‘dishonest appropriation’; or the criminal omission: e.g., s. 6 Road Traffic Act 1988 ‘fails to provide a specimen’; or a criminal a state of affairs or event: e.g., in Winzar -v- Chief Constable of Kent 1983 the charge of ‘found drunk in the highway’; or the criminal consequence: e.g., s. 47 Offences Against the Person Act 1861 ‘occasioning actual bodily harm’-which is a ‘result crime’ necessitating showing a casual link in fact or in law.Causation in fact is determined by the ‘but for test’. In R -v- White 1910 the mother’s death having been from natural causes, poisoning her was not the cause, and it not killing.Causation of law depend on the contribution of the intervening act. R -v- Roberts 1972 injury of jumping out the car was caused by sexual advances made to the woman in the car; in R -v- Pitts 1842 drowning was caused while escaping from an attack; R -v- Lewis 1970 broken leg resulted from escaping threats and attempt of violence; the reasonable act of the victim in seeking to escape being subjected to a crime was the link. Contributory negligence of the victim in R -v- Holland 1841 (self neglect) did not break the link, in R -v- Deer 1996 was still the significant operative in the death -it was killing, a thyroid condition unknown to the accused at the time did not change the ‘egg-shell skull rule’ and one took one’s victim as one found the victim -and R-v- Blaue 1975 (refusal of blood-transfusion on religious grounds) this applies also in respect to the spiritual condition of the victim. The sole cause of death need not be the act or the omission and in R -v- Pagett 1983 the ‘instinctive’ fatal shooting by a policeman of a human-shield was unlawful killing of the accused who had ’substantially’ caused it; while some reluctance was shown by the courts in treating intervening medical treatment as breaking the link and in R -v- Smith 1959 as much as by 75% reduction of it by that did not break the link, in R -v- Jordan 1956 palpably wrong medical treatment was the direct and the immediate cause of death, from R -v- Cheshire 1991 it is clear that the link can be broken. Mens-rea is the fault-level of the accused in the act or mission; it is often included in the definition of serious crimes e.g., ‘with malice aforethought’; it is ‘the guilty mind’ by intention, recklessness, or gross-negligence.Intention, for most serious crimes, has to be specifically shown, by a subjective test deemed by the jury to have been present, R -v- Moloney 1985: in the form of foresight of, R -v- Hancock & Shankland 1986: the probable consequences, wilfully and deliberately carried out ~or in R -v- Nadrick 1988 with virtual certainty of the probable consequences -which may be intention: Scalley 1955.Recklessness in ss. 47, 20, 23 Offences Against the Person Act 1861 (actual bodily harm, grievous bodily harm, rape) show basic intention; it can be subjective: leaking ripped off gas-meter killed in R -v- Cunningham 1957; or objective: R -v- Caldwell 1981 (arson by drunk) -s1(2) Criminal Damage Act 1971: as to whether life would be endangered.Negligence can be mens-rea in non-strict-liability offences of e.g. Factories Act 1961 -but only as a last resort; but gross negligence, often, is sufficient mens-rea in homicide cases: Adomako 1994Strict liability does not require mens-rea e.g. Food & Drugs Act 1995 -in Meah -v- Roberts 1977 of the unfitness of drink for human consumption the accused was innocent yet still guilty ~but in Warner -v- Metropolitan Police Commissioner 1969 (dangerous drugs case) ‘one cannot be in possession the contents of a package when he/she does not know what it is’.These are an outline as guidelines; laws change, always ascertain current law.The author has a website at: http://www.geocities.com/eoa_uk
July 10th, 2009 at 02:56pm
Under Constitutional Law
THE ENGLISH LEGAL SYSTEM (Based on author’s site www.geocities.com/lglsys)
Before one considers what laws are and how they are introduced into a society or a circumstance, it is necessary to consider…
WHY WE HAVE LAW
People’s behaviour, sometimes, may lead to generally undesirable outcomes, injurious to one or more others physically or as repugnant. People have sought to establish some rules, to enable the smooth functioning of the societies in which they live, of a kind that themselves can sanction to avoid chaos.
WHAT ARE LAWS
The set of rules that regulate behaviour are laws; and those that regulate human behavior in ways that they can be legally sanctioned if breached are men’s Legal Laws.
What the should be the basis of such rules, the extent of the limitations on man’s actions, who and how should decide and organize them, apply the sanctions -with what safeguards against injustice and as defined by whom and how, and the growth of society -necessitating variations of them, and other such considerations, are essentially, also part of Law.
There has been the Authoritarian View -that law’s intention should be to prevent wickedness, and the moral welfare of the society; and there has been the Libertarian View -that private morality and immorality is one’s own business and not of law: e.g., the Misrepresentations Act 1967.
THE AIM OF LAW
The Libertarian view has been mostly preferred, aiming to ensure two things:-
1. Primarily, with minimum conflict with natural law, rules for the survival of the society (e.g. regarding murder, theft -mostly criminal in nature), against human greed and aggression.
2. Secondarily, to make allowance for growth, and complex situations by way of…
a. A system of adjudication for the settling of e.g. mercantile disputes
b. A system of who and how to change the rules as and when necessary
c. A system of recognition of the primary rules themselves as legal rules.
In a non-complex society an elected body should make, and publicize, and sanction, above all, Criminal Law (rules intended primarily for a simple society with a unity of purpose which is, above all, survival -regarded as being best ensured by considering it most important that the norm should not be
deviated from, to enable cohesion and solidarity).
In a complex society there being no unity of purpose and the emphasis being on the interdependency of the members of the society, deviance would not be the most important consideration, and the purpose and the function of any law would be, chiefly, between conflicting individual interests, to maintain a reasonable balance, mostly by Civil Law -for which reason in e.g. European Law the interests of the individual are paramount to those of the state.
ENGLISH LAW
Classification of English Law is as being, both, affected by, and incorporating in part -and increasingly, international law; it comprises of…
INTERNATIONAL LAW and NATIONAL LAW
INTERNATIONAL LAW
Britain must respect and meet the expectations of various international agreements in the application of its laws -whether binding on it or not, to maintain its political standing among other countries; and, often, such expectations are met by its own, voluntary, incorporating of such laws into English law. This is done, mostly, as a condition of its membership of the European Union, as and when it is directed by Europe -as in the case of the level of its water-purity and the European directive regarding a standard common to all member states of it, and as in the case of the requirement to treat as binding on itself e.g. the Single European Act 1986.
NATIONAL LAW
National Law, on the other hand, is that which is made by the state, for the state, and in Britain by its Parliament, intended, within the state, in this case within Britain alone -with variations for Scotland and Northern Ireland, to ensure the non-anarchic organizing and running of the society, in respects from less of consequence to those fundamental, increasingly as written-law, as:-
PRIVATE LAW and PUBLIC LAW
PRIVATE LAW
Private Law regulates the dealings of the individuals with each other within the state, under such headings as:-
Family Law, Tort, Property Law, Commercial Law
Family Law is a good example of the laws in this category; it deals with matters between individuals such as marriage, divorce, and matters arising as related rights -such as the custody of children, e.g. the Family Law Reform Act 1969.
Tort or Torts -as some prefer to call it (from the French word meaning wrong, or wrongs), is the private individual’s right -if without financial assistance from the state s/he can, not to be civilly wronged by another, sometimes by an organization, in respects not contractual, sometimes including such as, with a very fine distinguishing line, may fall short of being criminal ~e.g. negligence, or the Occupiers’ Liability Act 1957.
Property Law, also called Land Law, deals with matters of property, such as land that in practice is regarded as personal -although ‘all land belongs to the Crown’, and including matters of dispute over minerals under it and treasure trove, as well as dwellings on it and fittings, often dealt with by the Courts of Chancery -e.g., the Law of Property Act 1925.
Commercial Law comprises of laws of major importance in the dealings of individuals with others, such as:-
Mercantile Law, Consumer Law, and the Law of Contracts
Mercantile Law is the original body of laws that governed commercial dealings ~it was so called because it involved dealings of merchants with each other. As it developed, it concerned itself also with dealings between merchants and the consumer, and the occasional agreements between the individuals -which later grew into separate laws themselves. Almost exclusively, it deals with such matters as competition between traders, trademarks and patents, and e.g., bills of exchange under the Bills of Exchange Act 1982.
Consumer Law is from laws-merchant; it regulates the dealings of the individuals with merchants as to, e.g., the quality, and return, of goods purchased, deeming existent a collective contract between the consumers and any trader, as in the Sale of Goods Act 1977(as amended).
Contract Law is about the, not necessarily regular, agreements of individuals with others, on specific terms offered and accepted (unless under duress or by coercion), intending it to be legally binding, for consideration in return, e.g., under the Misrepresentations Act 1967.
PUBLIC LAW
This branch of the law governs the relationships between the state and other states, and between the individual and the state, under such major headings as:-
Constitutional Law, Administrative Law, Criminal Law
Constitutional Law is about the system, the framework, of who and how, and how come to, govern, by which laws how made and applied, as the state; e.g., the Parliaments Acts 1911, 1914.
Administrative Law defines and controls the limits of government, mostly protecting against absolute power, enabling complaints and appeals against the state -e.g., the Human Right Act 1998.
Criminal Law regulates such conduct of the individuals as are regarded to be against the society, actionably, punishably, by the state; e.g. Offences Against the Person Act 1861.
THE DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW
The differences are, mainly, these:-
Public Law are those categories of law, such as Administrative, Constitutional, Criminal, which involve the conduct of the state in relation to itself, or in relation to society generally, through one or more individuals, or the conduct of the individual against the society -mostly through one or more other individuals, in representing the society.
Private Law, i.e., Family, Tort, Property, Commercial -with its branches, chiefly, involves the state as only the arbitrator in personal or collective dealings between the individuals.
THE DIFFERENCE BETWEEN CRIMINAL LAW AND CIVIL LAW
IF IT IS CRIMINAL LAW…
1. It is Public Law
2. It is between the state and the individual or organization
3. The state (Crown Prosecution Service) complains, prosecutes)
4. It is registered as R –v- name of the accused (R = Rex/Regina –the monarch)
5. Proof is the states, beyond reasonable doubt
6. It is dealt with by Magistrates, or by Crown Court
7. It is Not Guilty or Guilty and a Sentence –imprisonment/community-service/fine and trial costs unless on legal assistance
IF IT IS CIVIL LAW…
1. It is Private Law
2. Its is between individual/s and/or organization/s
3. The individual/s or the organization sues
4. It is Complainant (plaintiff) –v- Defendant (their names)
5. Proof is on a balance of probabilities
6. It is dealt with by a County Court or the High Court
7. It is a Judgment and the winner is awarded a remedy and, normally, costs
THE LEGISLATIVE PROCESS IN ENGLAND
The Sources of English Law
Main sources of law in England are:-
1. Legislation -including Delegated Legislation…
2. Precedent (Judge-made law) -which mostly comprises of the Laws of England and Wales and as (differently) applied in Northern Ireland (the basis being same of the slightly differing Scottish Law -and of the laws of many countries of the British Commonwealth)…
3. European Union Law -which is increasingly becoming the major source of English Law (expecting compliance with also the European Convention on Human Rights -the enhanced version of the Universal Declaration of Human Rights) -e.g., the Human Rights Act 1998 (implemented in 2000) incorporated into English and all United Kingdom law.
The Legislator, is the Parliament.
The Parliament is the House of Commons, and, the House of Lords -with the Monarch.
The House of Commons are the elected representatives ~mostly from political parties -with committees and ‘whips’ (who deal, mostly, with the discipline of their members). By “the supremacy of Parliament”, in fact, is meant the ’supremacy’ of this House -since the Parliament Acts 1911 & 1949 it can bypass the House of Lords, and, since Queen Anne, in 1707, conventionally, to every Act of it the Monarch always assents.
The House of Lords are the unelected representatives, so knighted by the Monarch, some as Hereditary Lords (the eldest son inherits the title) and many increasingly as Life Peers -almost always upon the recommendation of the political parties themselves; the numbers were limited of them with voting rights by the government at the beginning of the 21st century and its members have been considered that should be selected by a panel appointed by government. Its Right to Veto the Commons has been, since 1911, inconsequential, and since 1949 within a year invalid -it serves in effect as a chamber of second opinion and its decisions are not binding on the House of Commons and occasionally have not been followed.
The Monarch, since 1707, may not veto Parliamentary Legislation; but, must formally assent to it -although she does not personally sign it, before it can become legislation.
Legislation is a law, in the form of a Statute. It is formally enacted -or made, by or by the authority of the Parliament, effective when assented to, as an Act of Parliament.
Acts of Parliament, ‘Statutes’ are laws, produced by the Parliament, and comprise also of less important law, with the authority of the Parliament, as Delegated Legislation.
Delegated Legislation enables the management of major Legislation by the Legislator -Health & Safety Act 1974, the COSSH Regulations 1988.
Statutory Instruments by the Executive’s ministers, through other bodies, make effective such Legislation as about health and safety, transport, and as about social-security and taxation.
Orders in Council are by the Monarch with the Privy Council, in cases of emergency -also on appeal from some Commonwealth countries.
By-Laws are made, mostly, by Local Councils (Town Halls as, or as part of, County Halls) -by locally and independently elected town or county mayors and councilors with knowledge of their individual districts.
The advantages of delegating legislation is that it enables saving time, expertise, and flexibility; the disadvantages are that it gives wide powers to make laws without debate and which may not be as much publicized as the Acts of Parliament themselves and as much known to the public.
Legislating
A Bill is a proposed legislation normally producing an Act of Parliament -it normally begins with one or another type of Bill being introduced.
Types of Bills
The type of a Bill depends on who propose the legislation -as follows…
Public Bills by government, proposing legislation affecting the nation as a whole -were so introduced the Criminal Disorder Act 1998, and, the Access to Justice Act 1999.
Private Member’s Bills by members of Parliament, which may be of national effect -the Arbitration Act 1967, the Disability Discrimination Act 1996, both, began so.
Private Bills by individuals, through a member of Parliament, affecting fewer -such a bill proposed the University College London Act 1996.
A Bill, with slightly variations depending on its type, before becoming Law, goes through a number of stages.
Stages of a Bill
The Stages of a Bill are, sometimes strictly, with adherence to set procedures, Readings, at both the House of Commons and the House of Lords:-
The First Reading involves formally, mostly, Naming the Bill, with its date, and making available printed copies of it, normally, with no, or very little, debate on it…
The Second Reading involves Explaining the Bill -debating its general principles, and voting on it…
The Committee Stage involves the political parties, which are represented proportionately, putting forward their views -or expert opinion being obtained on it; and at the Report Stage the House being informed of these and the Bill being voted on.
‘Division’ sometimes takes place on how to vote on the Bill among the Members of Parliament, and when so, an Eight-Minute Break is allowed them and their Party Whips to discuss it and to decide how to vote on it.
The Third Reading, usually, is, with any verbal amendments to the Bill, the final vote.
This procedure is followed by both of the Houses of Parliament, except that Bills may begin not at the House of Lords if they are to do with such matters as taxation.
The Royal Assent involves the Signing of a Bill that has gone through all of its previous stages successfully, by the Monarch ~but the Monarch need not, and does not, personally sign it -conventionally, the Monarch does not refuse; and, unless stated that it will become so after a time interval, from then on a Bill becomes formally an Act of Parliament, Law which often authorizes delegated legislation too.
It is considered essential to inform the public of the laws proposed and of the laws made, and this is done, at different stages, by way of publishing a White Paper, a Green Paper, and a Statute -delegated legislation also being made in printed form publicly available.
These procedures may sometimes be confusing: e.g., section 6 of Employment Protection (Consolidation) Act 1985 was a Bill introduced as being intended to be of psychological effect only and not of any legal effect before passing all of its stages and becoming Law.
JUDGE MADE LAW
Precedent, briefly. Britain, unlike the USA and the European Union countries, not having a Written Constitution, Codes of Law enacted by the representatives of the people, English Law is based on Common Law -judge-made law ~judges interpret and (also in those criminal cases where that it is increasingly considered by the government that should not sit juries) apply the law.
Where ‘Written Law’ -an Act of Parliament, does exists, they do so under Rules formulated by the English Courts, such as:-
The Literal Rule -where the Court does not consider the written law to require judicial interpretation, literally taking the words of the Statute…
The Golden Rule -if they consider the literary meaning to be, e.g., absurd of any Written Law, interpreting it as they would consider not perverse.
The Mischief Rule -if the Court considers it must interpret the purpose of the written law -the Intentions of Parliament, which they do under the Interpretations Act 1889 -barring reference to the Hansard (the official transcript of all words spoken in the Parliament -placed in its library).
These Rules are sometimes confusingly stated, and in relation to appeals, e.g. from cases under the Sex Discrimination Act 1975, its is stated that “no issue of law arises if the Tribunal simply misunderstood or misapplied the facts” -following reference to precedent that an issue of law arises if a decision is “inconsistent with the evidence”.
A Decision, in English Law, consists of two parts, the ‘Ratio Decidendi’, and the ‘Obiter Dicta’ -the former being Precedent, the binding part, which sets out what the Principle is ~the latter being things said by the way -which are not binding but may be persuasive.
Until the late 1990’s English courts and tribunals did not have to give reasons for their decisions, including in civil cases in which juries do not normally sit in Britain -European Law now requires them to do so, often if within a specific period of time ask to do so.
The Principle, unless ‘distinguished’ becomes ‘Precedent’ binding on all lower courts, and in the case of the Court of Appeal also on itself.
Precedent are reported by the Incorporated Council of Law Reporting in the Weekly Law Reports (WLR) officially, and privately in e.g., the All England Law Reports (AELR).
Precedent, to all intents and purposes, is Law until it is reversed by a higher national Court or by the European Court, or becomes obsolete by an Act of Parliament, or by European Union Law.
Judge-made Law is regarded mainly to have the advantage of being not rigid and enabling for changes more quickly than it may take parliament to make them -its disadvantage is considered to be that unlike as in the case of Codes it is law which is not by elected representatives of people.
PARLIAMENTARY SUPREMACY
The Presumption of the Supremacy of the British Parliament in respect of English Law is, briefly, based on the Monarch no longer refusing to give assent to a Bill passed by the Parliament, coupled with that of Precedent being in line with the Intentions of Parliament.
The Inconsistency of that presumption has been proposed on the fact of the European Law (including the decisions of the European Court and of its ‘national branches’ which are empowered to declare any law made by the British Parliament ‘not law’ and of no legal effect where it is the view of Europe that Britain ought not to have such a law -e.g., for the reason that it contravenes the Articles of the European Convention on Human Rights) being binding on the United Kingdom Government and on its Courts -as on all other member states of it.
Laws in the European Union states continue increasingly and rapidly to change in the course of commonization of various laws, and in Britain, within a short time of a Department of Constitutional Affairs being created in addition to the Lord Chancellor’s Department, also a Ministry of Justice was added –it is wise when it may otherwise be of consequence to always ascertain what current laws are.The author has a website at: http://www.geocities.com/eoa_uk
July 10th, 2009 at 02:54pm
Under Civil Rights Law
I am deeply concerned, not just as a Civil Rights advocate, and not just as as a constitutional and first amendment lawyer and as an election attorney in California, but simply as an American at the election campaign tactics I am seeing in this 2008 Presidential election by the Republican party. Even as criticism mounts from both Democrats and Republicans, the tactics being employed by the Republican Presidential candidates are destroying any semblance of truth and fairness in the election process and using discrimination to try to gain votes.
Now we are hearing of the latest tactic by John McCain, the very candidate who previously criticized this tactic in a previous election – robo calls. Robo calls are automated telephone calls that are negative attacks on the other candidate, only instead of airing these ads on television, they come by way of the telephone, usually when you are having dinner.
John McCain only days before he began using these robo calls, criticized the Democratic candidate for allegedly spending more money than any campaign in history on negative ads. Whether this claim is true or not in terms of money, it does not appear to be true in its inference that Obama is using a greater percentage of his ads on negative ads. That would be John McCain’s campaign.
In his latest tactic, John McCain has clearly crossed the line once again by using these automated calls to tell voters that Barack Obama allegedly voted against a bill that would give care to babies born alive after abortions, that Democrats will enact an extreme leftist agenda if they take control of Washington, that Obama places Hollywood above America, that he has worked closely with a terrorist, and that Obama lacks the judgment to lead the country.
Now add the inferences by the Republican party and/or their candidates, surrogates and the people introducing the candidates at rallies that the Democratic candidate is unpatriotic, has an arab sounding middle name, is a person to be scared of, or is a person who can’t be trusted, who has a hidden agenda, or who by virtue of an association with someone who did something when the candidate was eight years old, is a terrorist. Is it any wonder that a woman, at a rally like so many others for the Republicans where hate-filled shouts have been made in recent days, told John McCain she had read that Barack Obama was an Arab?
How, after all these years of improving race relations in this country, are these tactics and election advertisements being allowed to cause civil rights leaders and members of the public fear they are taking us back to times in this country that we thought were behind us? How can a candidate who claims he puts his country first make every attempt to divide this country? We all know that John McCain, who has a long and honorable past, is a better man than what we are seeing at his rallies or on one particular news station. Yet, we continue to see actions and comments at Republican rallies and now these robo calls that have now drawn the ire not just of civil rights activists but even the concern of other Republican Congressmen and Senators. Is it any wonder that Colin Powell, a Republican who served as Secretary of State, Chairman of the Joint Chiefs of Staff and National Security Adviser under Republican Administrations has come out in support of Barack Obama and criticized the campaign tactics of John McCain, the latest of which is to infer that Obama’s policies are socialist.
In the last several elections, the focus of many of the most objectionable tactics were to pit religious voters against voters for whom religion was not an issue, based on perceived stances by one or the other candidate on religious issues. This type of insinuation has also been used this year against the democratic candidate, on the basis of an incorrect assumption by some and an intentional mischaracterization by others that since Obama was born in Kenya, he must be a Muslim.
More anger and consternation was brought to the surface this year with the strong showing by Hillary Clinton in the primaries and the selection of Sarah Palin as the vice presidential running mate of John McCain. With questions raised in particular toward Sarah Palin of whether she could be vice president and still be a good mother, women cried gender discrimination foul at the media.
Is it naive to ask why a candidate’s religion ever enter into the debate? If the candidate says he won’t let it interfere with his being fair and evenhanded, shouldn’t that be the end of it? Why should a candidate’s age be a problem if they are knowledgeable and not in bad health, if the Vice Presidential candidate is qualified as well? Why should a person’s gender ever be a problem? But to many voters, these aspects of a candidate are the most if not the only reason for how they will vote.
Perhaps we, as a nation, are forced to accept that at election time, some of people’s worst sides rise to the forefront in our election process, but shouldn’t we be better than that, and shouldn’t the persons we are asked to elect be better than that?
If the polls are any indication, this year we may just see a backlash against those who would make discriminatory inferences, and whose party would use false allegations as the basis for part of their campaigns. It may be naive, but it is hoped that based on a few comments made in the last few days by John McCain, before the election is over and with signs he is behind in the polls, John McCain will repudiate the statements made out of anger and fear by supporters at his rallies even more forcefully than in some earlier statements and again repeat that his supporters should be respectful of Barack Obama and his accomplishments. For at this time in our country’s history, our country can least afford to be torn apart by campaign strategies that have little to do with solving our country’s economic crisis.
If you have a civil rights or discrimination legal matter of any kind, we have the knowledge and resources to be your California Civil Rights Lawyers, and California Discrimination Attorneys. For this reason, be sure to hire a California law firm with civil rights lawyers who can represent you from Palm Springs, Malibu, Rancho Cucamonga, Orange County, San Luis Obispo, Laguna Beach, Newport Beach and Huntington Beach, Corona del Mar, Anaheim, Irvine, La Jolla, El Cajon, San Bernardino, Riverside, Santa Barbara, Temecula, Palm Desert, Yorba Linda, Carlsbad, San Diego, Costa Mesa, Westminster, and Murrieta, to Indian Wells and La Quinta.
If you have a civil rights, constitutional or discrimination legal matter of any kind, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com and learn how we can assist you. You can also call us to speak directly to Sebastian Gibson on the phone about your legal matter.
The Sebastian Gibson Law Firm serves all of San Diego, Orange County, Palm Springs and Palm Desert, the Coastal Cities from La Jolla, Carlsbad and Del Mar to Laguna Beach, Newport Beach, Irvine, Santa Ana and up to Ventura, Oxnard, Santa Barbara and San Luis Obispo. We also serve the Inland Empire cities of Ontario, Rancho Cucamonga, Temecula, Riverside and San Bernardino and all the cities in the Coachella Valley and high desert, from La Quinta, Indio, and Coachella to Yucca Valley and Victorville.
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http://www.sebastiangibsonlaw.com if you have a constitutional, civil rights or discrimination legal matter of any kind. We have the knowledge and resources to represent you as your California Civil Rights Lawyer and California Discrimination Attorney or your attorney in and around the cities of Palm Springs, Palm Desert, San Diego, Orange County, Corona del Mar, Newport Beach, Santa Ana, Laguna Beach, Anaheim, Riverside, Chula Vista, Irvine, San Bernardino, Huntington Beach, Fontana, Moreno Valley, Oceanside, La Jolla, Del Mar, San Marcos, Rancho Cucamonga, Ontario, Garden Grove, Palmdale, Long Beach, Corona, Yorba Linda, Escondido, Orange, Fullerton, Costa Mesa, Victorville, Carlsbad, Temecula, Murrieta, Mission Viejo, El Cajon, Vista, Westminster, Santa Monica, Malibu, Westwood, Hesperia, Buena Park, Indio, Coachella, Del Mar, Oxnard, Ventura, San Luis Obispo, Cambria and Santa Barbara.