Surely this is where an independent judiciary ...
refuses to hear cases where justice is frustrated ?
I believe there are precedents ....
Blighty's freshly passed Investigatory Powers Act, better known as the Snoopers' Charter, is a dog's dinner of a law. It gives virtually unrestricted powers not only to State spy organisations but also to the police and a host of other government agencies. The operation of the oversight and accountability mechanisms in the IPA …
Actually, the very possibility of an independent judiciary is more wishful thinking than anything law or constitutional documents can guarantee.
A judge may sit on the bench knowing that, according to law and the constitution, it is his duty to execute the law without fear or favour. But in reality, he is a human being like any other with ambitions, material desires, and fears. He may aspire to promotion, or the honours that only the Prime Minister can confer. How could we ever rule out that quintessentially "Yes, Minister" scene - the club where a judge just happens to run into Sir Humphrey after dinner, accepts his offer of a drink, and is told that, "The PM would really like it if..." Followed, after a short reflective pause, by, "On another subject entirely, we are looking for someone suitable..."
Of course, there will always be people who are absolutely honest - or, if you prefer, whose pride compels them to act rightly at all times. Those are the only people who can be trusted to act independently. But how can we know who they are in advance? It has been perceptively said that most people can cope with adversity; but if you want a test of character, give a person power.
"Of course, there will always be people who are absolutely honest - or, if you prefer, whose pride compels them to act rightly at all times. Those are the only people who can be trusted to act independently. "
But if they are fed a pile of half-truths by the prosecution, how can they be expected to come to a fair decision?
There are many many many precedents. It's also a fundamental part of UK constitutional law and sits right alongside the principle of equality of arms (none of this comes from EU doctrine, incidentally).
Also yeah, courts would refuse to hear such cases where there wasn't other evidence, all this stuff is court-inadmissible; hell even fully warranted target-specific wiretaps of phone conversations are inadmissible in UK courts. IPA isn't for court cases.
In a jury trial, this is where the defence lawyers bring up exactly these points. The state can't D-notice telling the juries about the existence of legislation which enables the "authorities" to tell lies and the moment that's done, the seeds of doubt are sown, especially if parallel construction is explained - and the prosecution can't prevent a defence lawyer explaining how it's done.
Unlike some other countries, UK juries tend not to be stupid and they don't trust untrustworthy organisations just because they happen to be "the law"
The urban legend that the Metropolitan Police flying squad was so distrusted that in the 1970s they wouldn't be able to secure a conviction for a set of bank robbers caught red-handed in the act isn't far from the truth.
The other urban legend that the Greater Manchester Serious Crime squad was disbanded because it was found to be responsible for performing most of the serious crimes in Great Manchester also isn't far from the truth.
The result is that after a few such cases the "authorities" will attempt to move such cases to the "secret courts" - where the judges tend to be more sympathetic, but the state also has to prove its case to a much higher degree.
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No because you can't argue your side and say they're talking bollocks
I think the suggestion was perhaps that there will now always be a reasonable doubt by default regardless of the evidence actually presented because there is a possibility that the defendant may be prevented from actually defending themselves, or that the prosecution case has not been properly cross-examined.
I think it is a lot worse - stories can be construed which do not leave a margin for 'reasonable doubt'. The jury must make its decision based upon available evidence. The only evidence available has the alleged perpetrator bang to rights and so the only option is to convict.
The claim would seem to be "we know this person is guilty, we just can't tell you how, so we are going to subvert the normal process of justice to ensure conviction"
If you image that you've been accused of hacking a bank. Prosecution brings all this "evidence" to the table, most of which is wrong and has either been made up or doctored.
Your defence lawyer stands up, does his thing and references the act in which you're being brought to court over and highlights the fact that it allows the prosecution to doctor evidence to suit and that the evidence doesn't actually have to be real in order to convict. Defence lawyer could then put it to the jury that because such a loop hole exists, the prosecution either needs to show that the evidence is real or undoctored, otherwise what is to say that the evidence is actually real.
So in one way it puts more pressure on the prosecution to make sure that any fabricated evidence is water tight, but it may be enough for the defence lawyer to highlight that aspect of the law, and leave it to the jurors own prejudice.
We won't know though until someone actually gets tried over this and whether it goes to appeal. That'll be the case used as a precedent.
"At which point he is arrested under this act and the trial restarted with a new Jury."
Well that section doesn't say you can't mention that section in public. He doesn't have to say which specific bits of evidence have been tampered, he just needs to highlight that it could allow evidence to be created.
"1. The lawyer needs to be brave enough to do it.
2. He needs to provide at least some ground for the doubt that the evidence is doctored.
Otherwise it will fall on deaf ears."
1 - It's the duty of the lawyer to uphold the law. It's akin to a doctor making the oath to "do no harm"
2 - That's easy enough. Prosecution says X was Googling "how to make an atomic bomb" on Tuesday 25th November 2016. Defence says well X was Googling "how to make an atomic bomb by U2" on that day.
'It's the duty of the lawyer to uphold the law. It's akin to a doctor making the oath to "do no harm"'
Taking an oath and doing no harm are not the same thing. Indeed, between them there is a great gulf fixed.
http://www.ourcivilisation.com/medicine/usamed/deaths.htm
Oddly enough, I was unable quickly to find any corresponding figures for the UK. Not that ours is a secretive country or anything like that - perish the thought.
"Taking an oath and doing no harm are not the same thing. Indeed, between them there is a great gulf fixed."
Well I don't know specifcally, but I do know that a solicitor/lawyer has to uphold the law. If they don't then they're struck off.
Well, those silly enough to get caught are.
1 - It's the duty of the lawyer to uphold the law. It's akin to a doctor making the oath to "do no harm"
Aye, it may be their duty. But, especially if you're one of the poorer people in society, finding one who will research and present everything can be a very different matter.
Just need to add something to this.
My fiancee is a lawyer, and I started to speak to her about this and she immediately said "That's not my area of law" - which is fair enough. I showed her the section in the article anyway, and she said it wouldn't stand up in court due to another legal precedent (I can't recall the name of the case). But I outlined the grander scope of the act and how it prevents a fair trial from occuring and that the state wouldn't actually have to state the source of the evidence and she hit me with this humdinger - "What? That can't be right. That can't be the law. Why hasn't it been on the news?"
Welcome to 2016 everyone, where even the solicitors are hoodwinked.
Your defence lawyer stands up, does his thing and references the act
At which point he is arrested under this act and the trial restarted with a new Jury.
I think this is where the lawyer asks the witness/defendant a question which does not necessarily adduce or imply interception activities, but which requires them to give an awkward answer - such as "I cannot answer that without committing an offence".
If the judge were a sensible type who was as cynical of this legislation as the rest of us (and they do exist - see the judge in the ABC trial who threw the whole case out because the security services were playing silly buggers), they might then require that the question be answered honestly and without perjury. The witness would then be faced with a quandry - commit perjury and be in contempt of court (by refusing to comply with the court's demand), or commit an offence under the IPA.
I would suggest that many courts would be unwilling to convict someone of an offence under the IPA when they were compelled to make that disclosure by order of the court in the first instance.
It would require a carefully worded approach and a sufficiently inclined judge to make it a court matter, but a smart barrister should be able to come up with something.
If you had a sympathetic MP they could also use parliamentary privilege to ask about the case in Parliament, and the lawyer might be able to then ask a witness about that public domain statement. I'm sure there are clever ways to "launder" the question - if the NSA can launder intelligence, barristers can launder questions!
When such a situation arises, the judge will halt the trial, send out the jury, and give advice (e.g. a bollocking) to the defense counsel. Upon resumption of the trial, the jury will be instructed that for legal reasons it should disregard the last question and any implications it might have raised, and the defense counsel will apologise for his inexperience by asking such a question and move onto another topic.
"At which point he is arrested under this act"
Actually the prosecution would object, the jury would be ushered out of court and there'd be a legal argument culminating in the question not being allowed. Then the jury would be brought back in. A persistent defence barrister might well be able to try to put the question a number of times until such time as the jury worked out that there was something fishy going on.
A repeated blocking of defence questions might well be the basis for appeal, maybe as far as the ECHR (no, this is not affected by Brexit).
Another tack might be to get a copy of the relevant bit of the Act introduced as evidence.
"Another tack might be to get a copy of the relevant bit of the Act introduced as evidence."
I like that idea. Also how about "Could the counsel for the prosecution please provide the defence, under oath, with confirmation that no witnesses will give any testimony that the prosecution does not know to be true". Then if anything is untrue, prosecutor has committed perjury.....
Your defence lawyer stands up, does his thing and references the act in which you're being brought to court over and highlights the fact that it allows the prosecution to doctor evidence
1. The lawyer needs to be brave enough to do it.
2. He needs to provide at least some ground for the doubt that the evidence is doctored.
Otherwise it will fall on deaf ears.
As I said earlier - presently the sole safeguard here is the HRA and ECHR Article 6 "Right to Fair Trial". You can immediately refer any case with the smallest suspicion that the evidence is doctored up and get UK deep-sixed on that (off-topic, funny, how the numbers coincide). The chance of UK winning any case on this is nil - all other 46 signatories have in one form or the other "Fruit of the Poison Tree" doctrine on their statutes, the idea that it does not constitute a key part of "fair trial" will be considered preposterous.
That, unfortunately will not last as May withdraws from the ECHR EXACTLY BECAUSE OF THIS SAFEGUARD.
So true ... they have been making up laws to protect a few who have committed demonic and inhuman crimes over the last few years. Allowing the arm of the law to lie is not justice.
It's amazing how tolerant the NZ people are over this stuff. Cops or other PTB commit crimes? That's OK, government will rush through a law change "under urgency" to make it all nice and legal.
Prisoners held for longer than their sentences, and seeking compensation? That's ok, under urgency those laws are altered - now if the prison's dept screw up and keep someone inside for a few months longer than their sentence, well that's just tough.
People found to be innocent after many years in prison? No worries, another law change to make sure they can't be compensated.
Some stuff going to trial will show some very bad behaviour on the part of the government? No worries, a quick change of law will prevent that..
And people wonder why shonky cut and ran so suddenly last week. Many think he was about to experience "your sins will find you out". Course, he no doubt spent some time making sure whatever crimes he committed no longer are.
Accused of hacking a bank? Possibly a bit of extra evidence just to help the case along. But anyone the establishment sees as a threat will be accused of kiddy fiddling and we all know it. *
I hope nobody's pinning their hopes on prosecution witnesses stumbling at the "do you swear you're telling the truth, the whole truth, and nothing but the truth" bit.
* Unless it's themselves in which case the inquiry collapses into a farce. Allegedly.
I'll tell you what's a farce.
A farce is organising a police inquiry into the private activities of a man who had round the clock Special Branch surveillance while he was a prime minister (as all prime ministers do), and who also continued to have 24x7 surveillance *afterwards* as well (which only applies to a few ex-PMs).
I personally don't know whether Heath got up to anything dodgy or not, but I do know that the security services already know what Heath got up to.
Wtf?
Given that we know the security services wanted rid of Wilson / Labour government (I still have my copy of Spycatcher describing that), then if anything dubious had been done by Heath in the 70's it would not have been in security services interest for it to be revealed at the time. It would have been even less in their interest for any dubious behavior to be revealed afterwards as would implicate security services in concealing crime to subvert UK democracy.
Caveat I have no idea if Heath rumours are fantasy or have any basis in reality and I'm making no inference, just pointing out why, IF anything untoward had happened why we would not hear about it.
The principle of jury nullification basically means a jury decides what is legal, not a judge. A jury can refuse to convict even when told they have to - although nobody will tell a jury this.
Don't believe it. Juries, in general, do what they're told. And Judges have become more militant in convicting jurors for contempt. You are much more likely to get a judge that believes in fair trials than a jury
Clive Ponting was 30 years ago and a rare example.
That's assuming you even get a jury, of course, with the gradual removal of jury trials.
@Adam This is from US law but it still stems from the Magna Carta -
Jury Myths and Misconceptions: Can Jurors Be Punished for Jury Nullification Verdicts?
Each and every one of you has the mettle and moral fiber necessary to claim this power as your own and to wield it for your highest purpose when serving on a jury: upholding justice, including upholding it above law when the two are in conflict. Do not be deterred by people invoking the chimera of punishment for acting in good conscience and doing what is right.
Each and every one of you has the mettle and moral fiber necessary to claim this power as your own and to wield it for your highest purpose when serving on a jury: upholding justice, including upholding it above law when the two are in conflict. Do not be deterred by people invoking the chimera of punishment for acting in good conscience and doing what is right.
Excellent reference - thanks for that.
"Still how hard can it be to get the trains to run on time in a fascist dictatorship?"
Very, if Southern are involved. Even Mussolini would struggle with them, and he famously managed to get the one train to run on time.
Jury nullification, as in the Clive Pontin trial, only works when the jury is aware of the evidence.
If the Crown is "making stuff up" and there is no possibility of evidence to the contrary the defendant is doomed.
And, if there is no chance of being caught out in making stuff up, why should they not do so, especially if the aim is to get a "bad-un" locked up?
I read that when Russia ended serfdom then the peasants refused to convict anyone accused by the corrupt courts, but would then lynch the released prisoners they knew were bad. I'm not suggesting that.
If nothing else then if you want excused from jury duty then just wear a T Shirt saying 'jury nullification' on the first day. Mind you, a year ago I was thrown out a trial for 'wearing my jacket disrespectfully', and I was the accused.
Jury nullification has a very dubious history, which is why many judges and state authorities go to some lengths to make sure the juries do not believe they have that option.
Yes, it has been used to allow some people to escape malicious prosecution or unfair trials.
But a lot of white men also got away with crimes against blacks because the jury of their peers refused to convict.
Not really.
The doctrine of a "fruit of a poison tree" exists in one form or another in EVERY developed country in the world. Bar one. Britain.
So while I can sympathize with the article author, his line of reasoning is a bit off. There is no constitutional or legal issue with obtaining evidence through illegal means and/or failing to disclose the means by which the evidence has been obtained in the UK. UK law allows for this.
The ONLY partial safeguard on this has been the Human Rights act and the Human Rights convention and the various clauses about rights to privacy and fair trial in it. Not for long though - Teresa May will find a way to tear it and join Lukashenko (she should stop shaving her mustache and trim it to the correct shape - it suits her).
its unlikely she will find a way to tear up the Human Rights act anytime soon, you should read this and it tells you how hard it will be
http://jackofkent.com/2015/05/the-seven-hurdles-for-repeal-of-the-human-rights-act/
this is why they have failed so far and will fail in the future
and many of her own MPs are for the Human Rights act and the Human Rights convention
"...its unlikely she will find a way to tear up the Human Rights act anytime soon, you should read this and it tells you how hard it will be..."
These hurdles are exactly the hurdles Brexit has to jump. So the Human Rights Acts could tag along like a legislative remora. Whether it would be swept aside or last the distance to get royal ascent from William V is another matter.
"It seems Brexit may not happen"
Seems??
Given who Comrade Theresa has put in charge of making it happen, it's pretty much a certainty. This has been setup to fail from the outset.
From a political point of view she must be seen to say that brexit is certain and happening until the moment she declares "we tried our hardest and it's just not possible". Exit the political careers of the 3 clowns and she comes up smelling of roses.