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Showing posts from April, 2011

Vicky Haigh flees the babysnatchers

Vicky has sensibly decided to leave the UK to avoid the adoption machine. It remains the case that a majority of the children that leave care aged under 5 do so through adotion.

Hence if her baby had been taken the care she would have faced the likelihood that it would have been adopted.

An evil evil system.

The link is to her story in the Sunday Telegraph.

The system is more evil because the treatment of the babies in care causes a large proportion of them to be so psychologically damaged that a large proportion of the adoptions fail as well.

If anyone wants to check this they need to see Michael Rutters research which demonstrates that it is the period of 6-18 months that is key for psychological development. The vast proportion of babies taken into care are taken into care before 6 months. Hence it is the care system that normally does this not the natural mother.

The First Amendment to the US Constitution

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

See Wikipedia
Petition and assembly
The right to petition the government extends to petitions of all three branches of government: the Congress, the executive and the judiciary.[88] According to the Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain.[89] Nonetheless, in the past, Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835 …

Gag Removed - Job Done

Some confusion has reigned in the blogosphere about today's points of order. My objective was to identify the parties in the Vicky Haigh / Doncaster case where Doncaster tried to Jail Vicky for talking in Parliament.

All the other details of the story are in the public domain, but an injunction prevented the parties being identified.

Now they can be identified.

Points of Order

5.26 pm

John Hemming (Birmingham, Yardley) (LD): On a point of order, Mr Speaker. Vicky Haigh, a horse trainer and former jockey, was the subject of an attempt by Doncaster council to imprison her for speaking at a meeting in Parliament. There was discussion earlier today as to whether that case was sub judice. An application was made to the court, a copy of which I have provided to your office. Additionally, I have provided to your office a copy of the court order in which it was deemed that she would not be jailed. I assume, therefore, that the case is not sub judice, in accordance with sub-paragraph (b)(ii) o…

Andrew Marr turns from the Dark Side

Hemming welcomes Andrew Marr's turn away from the dark side

John Hemming MP has welcomed Andrew Marr's decision to let his injunction lapse. "Those people who live by the sword", he said
"should be prepared to die by the sword."

"I am pleased that he has shown his commitment to freedom of speech by turning from the dark side of gagging orders."

"I hope that other people who have obtained injunctions will recognise the error of their ways and let the injunctions lapse."

Super injunctions explained for the far east

This is something by "New Media Animation" about Superinjunctions.

Their website is here.

Incidentally what they really mean is injunctions.
Super - a court order that itself cannot be talked about (I think these have mainly stopped now).
Hyper - an attempt to stop people talking to MPs
Quaero - an attempt to stop investigation by anyone (particularly journalists)

It is, however, all about Freedom of Speech (and where the limits on privacy should be).

ECHR and The Council of Europe

One thing that really shouldn't surprise me is the confusion about how the European Court of Human Rights works and the associated institutions.

The issues of Privacy Law and Prisoners Voting are two issues where this confusion is creating a lot of tension.

The European Court of Human Rights is guided by a number of international treaties including the Convention of Human Rights and its protocols. However, it is also guided by the resolutions of the Council of Europe parliamentary assembly.

The Council of Europe contains delegations from all of the Council of Europe Countries. Many countries don't have prisoner voting. It is, therefore, entirely straightforward to propose a resolution in the CoE that if convicted prisoners do not have the vote that this should not be treated as a contravention of Article 3 Protocol 1.

Similarly resolutions of the CoE guide privacy law.

There are two key resolutions here:
.428 (1970)

and

1165 (1998)

There are some useful extracts:
From 1970
C. Measure…

AV an alternative explanation

Contra Mundum

The link is to the case reported today which has kept something so secret that there is a Contra Mundum order.

I do not think this will have any effect in the USA which is a big part of the world.

An issue relating to this case that is important to me is that it had only one side represented.

ETK v News Group Newspapers Ltd. [2011] EWCA Civ 439 (19 April 2011)

The link is to this judgment on Bailii.

There are two interesting arguments in this judgment - which relates to an interim gag.

Paragraph 10.
In my judgment the appellant was reasonably entitled to expect that his colleagues would treat as confidential the information they had acquired whether from their own observation of the behaviour of the appellant and X or from tittle-tattle and gossip which larded the office conversation or from a confidential confession to a colleague. A reasonable person of ordinary sensibilities would certainly find the disclosure offensive.

This is an interesting paragraph as it implies that those people who discuss work gossip with people outside the workplace become liable to pay damages to those that the gossip relates to. I am not sure that people will like this change to the law (and/or clarification)

Paragraph 17.
The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to s…

Quaero Injunctions and the Inquiry

John Hemming MP, who is campaigning against excessive and unlawful court secrecy, has launched an inquiry in parliament into the growing numbers of gagging orders.

"I will be collecting a range of different gagging orders," he said, "and then analysing and sorting them into different categories. I will then produce a number of parliamentary petitions summarising the details and pass them to the Justice Select Committee for further investigation."

"What is clear," he said, "is that almost all of the super and hyper injunctions have no public judgment. That means that they are not compliant with the rules for a fair trial. There is also the question as to whether there should be an automatic time limit on an interim order. Many cases have an interim order and no final hearing. This is clearly wrong. We also need to know what the costs are both for the applicant and for the media in defending these orders. It is wrong to have a system whereby peo…

Hyperinjunctions and Secret Prisoners talk

This video was done on my mobile phone with it sellotaped to a stand. I found out that when someone phoned me 15 minutes in it stopped videoing.

Hopefully the Freedom Association will have a better video available later.

DOLS and the mess of the court of protection

The link is to a good article about the problems with the Deprivation of Liberty Safeguards. The problem is that the system is so expensive to operate that the people processed by it have little chance of getting sensible responses (although the court of appeal on this occasion almost uniquely has allowed a second opinion).

The rights to communicate with members of parliament

There have been discussions about whether there is a domestic precedent whereby the right to talk to MPs about issues of public interest is protected by parliament. This already happens in Australia.

The following case from the parliamentary journals in 1699 is exactly that. John Kelly provided information about malpractise to a number of MPs. That was not provided as part of a petition, but merely as a summary of a problem. He was then jailed. Parliament investigated the situation.

That is the stage I have reached with my request for parliament to investigate hyperinjunctions.

There are other examples from the 1600s and 1700s on my flickr account and a summary follows the image.


Parliamentary Privilege has been primarily applied to protect members. That is because most actions which would be in contempt of parliament will directly affect members. There are, however, a number of instances where non-members have been protected by parliamentary privilege.

The use of privilege to pro…

R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

I have only just found this one which I think is accurately reported below (but if it is not please give me an accurate report).

KING’S BENCH DIVISION

R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

November 9 1923

Editor’s comments in bold.

Here, the magistrates’ clerk retired with the bench when they were considering a charge of dangerous driving. The clerk belonged to a firm of solicitors acting in civil proceedings for the other party to the accident. It was entirely irrelevant that there had been no evidence of actual influence brought to bear on the magistrates, and the conviction was duly quashed.

LORD HEWART CJ:
It is clear that the deputy clerk was a member of the firm of solicitors engaged in the conduct of proceedings for damages against the applicant in respect of the same collision as that which gave rise to the charge that the justices were considering. It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the…

Commissioning and the NHS

In all the discussions about the NHS it does appear that one thing is clear. We need to avoid the NHS being subject to EU Competition Law. This is the argument I have been putting. The danger is that commissioners are forced to accept tenders that they don't want to accept because of external pressure. It is that key distinction that changes the system from as it has been described as an internal market to an external market.

I do think progress is being made on this issue. However, cast iron certainty is needed for the bill to progress (which in part is why it is currently parked in a siding).

Gildas the Monk - The High Court of Parliament (2)

Gildas the Monk has done another post about the interrelationship between the courts and parliament. I don't entirely agree with it, but it is worth a read.

He finishes:
On a wider front, if the Judges themselves do not get a grip and stop the tide of draconian orders which threaten to undermine fair reporting and free speech, Parliament must act to re-assert its Sovereignty. Lawyers and judges like to think they are the bastions of freedom. In this case they are acting to suppress those freedoms. They must be checked now.

[2010] EWHC 3792 (Fam)

The link is to a high court appeal (that is from a district judge).

This was an application for (in this case) a father to pay a capital sum in support of his child under Schedule 1 of the Childrens Act 1989. This is an area of law that is not in any way well known.

As with many areas of family law it leaves far too much to the discretion of the judge. Going back to my previous post about law. Law involves a system of rules which really should be interpretable the same way by any reasonable person with proper knowledge. Much of family law in the UK does not work this way.

However, I think Mrs Justice Baron has done a good job with a very clear judgment.

This is a good example of how article 6 can be satisfied and the family justice system made more transparent without having to identify anyone.

Congratulations to Mrs Justice Baron.

Moving the deckchairs on the titanic

The Family Justice review has now reported. I am not surprised that it has basically come out with a "business as usual" report.

The review panel consisted substantially of people who run the service rather than people who have experience of how it does things. Hence they are likely to endorse much of the current processes.

The concept of bringing everything into a "Family Justice Service" is basically moving the deckchairs on the titanic.

Not allowing independent social worker assessments is a step backwards towards simply rubber stamping the views of the local authority and guardian ad litem. A better approach would have been to scrap the GAL and instead have an independent assessment. This would have reduced costs and increased independence.

Potentially there is an improvement in the way experts are handled, but I have little confidence in the system.

Contrary to press reports there are no proposed improvements for grandparents contact.

I would think actually …

Backing for campaign from Observer Article

Henry Porter in The Observer has also come out in support of the campaign against hyper injunctions.

"MPs are rightly alarmed by the encroachment on parliamentary privilege but they should now take the hint that this is a matter for them. We need a commission to investigate the interests of privacy and freedom of speech and a commitment from the government to act on its findings in a way that preserves so many different virtues of British life. It will be terribly hard but parliament needs to concern itself with more than the day-to-day argument over cuts and this issue is crying out for a creative and intelligent collaboration from all our legislators."

Times backs campaign against Hyperinjunctions

The Times Editorial, behind the paywall, has come out against hyperinjunctions. The editorial is a good general one, but I quote from the last paragraph.

"When recently giving the annual lecture to the Judicial Studies Board, Lord Neuberger of Abbotsbury, the Master of the Rolls, acknowledged concerns about how superinjunctions had developed into an “entirely secret form of procedure”. The courts have pitched themselves against the free press, the rights of Parliament and, worst of all, sided with the privileged few against the public. Injunctions; superinjunctions; now hyperinjunctions. A handful of judges, unelected and uncontested, are creating a culture of secrecy in Britain."

The Daily Mail has an article which looks at some of the issues that The Times looks at.