Discussion in 'Current Affairs, News and Analysis' started by Sonic67, Jan 14, 2010.
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Apologies if posted already.
I believed that this statute is unlawful under English Common Law anyway.
Can anyone confirm?
The common law is a body of judge-made law that may be expressly overriden by statute to which the courts are bound to give effect.
The courts have limited powers under the Human Rights Act 1998 to interpret statutes as human rights complient and apply it only where it is ambivalent and and apply it in accordance with human rights provisions. Where the wording is clear and is in contravention of human rights provisions, the courts have no power to disapply it and must give effect to it. All they can do is make a declaration of incompatability and allow Parliament to amend tthe law if it is inclined to do so. Declarations of incompatability are very rare and are only issued in the higher courts.
In other words, if a statute is clearly worded and gives the Police the power to kill all first-born children, then the police are bound to apply it and the courts will uphold a clearly worded statute.
Thus, the article is actually wrong in that it implies that the European Convention is a higher form of law which binds Parliament. It does not.
The European Convention should not be confused with EU law and that which falls within the jurisdiction of the European Court of Justice. This is a completely separate form of law which is supreme and allows the courts to disapply statutory provisions which are inconsistent with it. It does not include the European Charter of Fundamental Rights which this country obtained an opt-out from at Lisbon.
We do not have a particularly good record with the European Court of Human Rights at the moment. We have yet to implement several of their judgements. We have managed to avoid political embarrassment so far because countries such as the former Russian Federation who have more recently signed up to the convention actually have a worse record than we do. If it were not the case, our record would be sufficiently embarrasing internationally to force Parliament to amend the law. As it stands, there is little political imperative to do so.
I believe that the article is actually dangerous in that it purports to encourage individuals to act inconsistently with the judgement of the House of Lords. Both the individual policeman and member of the public that does so, will be given short-shrift by the doemstic court.
so what is the best way to respond to a stop and search under section 44 if you feel you are being picked on?
(as is often the case with photographers)
can you still refuse?
can you walk away?
can this be done without laying yourself open to resisting or disobeying police official charges?
Why would you want to refuse or believe you are being picked on? Even if you haven't done anything wrong, empty your pockets and do as you're asked - if plod are rude, do it repeatedly or overstep the mark, then take their number and report it afterwards.
That does not imply at all that I approve of the way this law is used. Just because it is a law being abused doesn't give anyone the right to ignore it. The 70 mph law is abused and enforced rigidly as a tax generating measure, but it doesn't mean I am free to flout the law. If I speed - I pay the consequences .
Sometimes policemen do behave stupidly, over-react or are sheer bloody-minded. If I had to deal with the majority of low-lifes and chavs in our city centres, I suspect I might occassionally be a little stroppy myself.
If you are within a designated area you can refuse a search but you will be arrested, taken to a police station, fingerprinted and DNA'd. You will be searched anyway and detained until your identity is established.
Additionally, you may be charged with obstruction and dealt with summarily.
It is important to bear in mind that the judgement of the European Court of Human Rights has no effect whatsoever on the operation of the law in the United Kingdom unless and until Parliament amends existing legislation and on currrent form, that may take some considerable time.
The definition of common law is I believe,
"Law based on useage and custom and confirmed by judicial decision; the unwritten law as distinguished from statute law."
It is the so called "human rights" law that gives more rights to criminals than it does to the victims! When you look at the number of "lawyers" in Westminster you can tell why it has been adopted here! Teflon tony's wife has made an absolute fortune out of it! British law which has been developed here since Anglo Saxon times should be sufficient for Britain! Mind you it will all pale into insignificance when we are under "SHARIA LAW" , forget your human rights then!!
There is no prospect of Sharia law being incorporated into the corpus juris of English law.
Your assertion that 'human rights law gives more rights to criminals than it does to victims' vindicates an observation made on another post that human beings are pack animals whose opinions are formed, shaped and manipulated by officials through the controled release of information throught the 24-hour media.
The assertion is a government 'mantra' which originated in the Home Office the purpose of which is to elicit support for the restriction of rights rather than their protection and it is appears to have embedded itself well here.
Thanks Iolis for explaining this.
Whilst we're on the subject, I've been reading alot about a statute laws actually being admiralty law and that to be enforced on land, both parties must agree to contract to it. I've also read about the fact that in statute law, a person's name is a fiction.
This all sounds somewhat far fetched, is there any truth in it and will the Freeman of Land movement catch on?
Edited for being a numpty.
Fixed it for you. No need to thank me.
I would have thought you'd welcome the Human Rights Act as it is our best defence against Sharia Law being established in this country. We could even use HRA to our advantage when demanding that soldiers aren't sent into battle without adequate equipment with which to protect themselves. I don't like the woman (Cherie Blair) but what she does is important if we are to operate as a civilised Nation. Don't forget it was HR Lawyers who fought so long and hard for the Gurkhas.
I agree. Basic human rights, even for prisoners, are important. That said, the balance is off at present.
I'm sure that will come as a surprise to Lord Goldsmith. LINK.
If they can't tell the difference between a set of anti-Semitic laws introduced in pre-war Nazi Germany and an legal defence attempted at the post-war Nuremberg trials, then no wonder they're so far off the mark on the legal analysis of this actual case.
Separate names with a comma.