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Archive for November, 2014

Jessica Mitford On Criminal Law

Jessica Mitford (1917-1996) was an English author, journalist and political campaigner who became an American citizen. She identified, in the American context,

… manufacturers of unsafe cars which in the next year will have caused thousands to perish in flaming highway wrecks, absentee landlords who charge extortionate rents for rat-infested slum apartments, Madison Avenue copywriters whose job it is to manipulate the gullible into buying shoddy merchandise, manufacturers of napalm and other genocidal weapons – all operating on the safe side of the law, since none of these activities is a violation of any criminal statute. Criminal law is essentially a reflection of the values, and a codification of the self-interest, and a method of control, of the dominant class in any given society.


Human Rights: An Extreme Example

An example of extreme individualism as opposed to the protection and enforcement of collective rights is the case of two English motorists, Francis and O’Halloran, who complained to the European Court of Human Rights in 2007 that their right to silence, and not to incriminate themselves, had been violated. Francis had been photographed by a speed camera driving at 47 mph in a 30 zone. O’Halloran was photographed doing 69 mph in a 40 zone on the M4. English law requires car owners to disclose the identity of drivers whose vehicles have been photographed exceeding speed limits.

O’Halloran admitted being the driver but later revoked this confession on the grounds of the right to silence and not to incriminate himself. Francis refused to state whether he had been the driver. Both were convicted and complained to the European Court of Human Rights.

That court rejected the complaints. It ruled that the protection against self-incrimination was not absolute. Drivers of motor vehicles accept responsibilities and obligations. In the United Kingdom, these obligations include informing the authorities about the identity of the driver.

Francis and O’Halloran were supported by Liberty. That organisation later accepted that its commitment of resources in this case had been a serious mistake.


New Book – LAW – Summary Of Contents

  1. Justice is denied to poor people. I have lost count of the number of my clients who have not been able to start or continue their cases because of lack of money. This has led me to the conclusion that, for poor people, legal rights are largely illusory. They have no real application outside academic institutions and law firms which work for employers. A national network of Law Centres, funded by the state, would alleviate this state of affairs by providing poor people with access to free advice and/or representation.

 

  1. Class justice functions when justice is done in favour of one class against another. There are many examples of this in the English legal system. One of the clearest is the concept of Crown immunity. Specifically, criminal proceedings cannot be brought against, for example, the Ministry of Defence, the Prison Service and the Royal Mint. There are many examples of the most serious breaches of health and safety laws where these departments have not been prosecuted. A partial response to these injustices would be to apply the rule of law across the board. Class justice in general, and Crown immunity in particular, clearly contradicts Dicey’s definition of the rule of law that no man is above the law.

Human Rights: Freedom Of Speech

  • The general argument is that human rights in the UK need to be extended, rather than restricted.
  • The UK has developed a profitable and expanding human rights industry. Human rights have developed into a commodity, including career paths for lawyers, academic career development and increased profits for multinational publishing companies.
  • Human rights law has become so complex, largely because of the involvement of lawyers, that it is now extremely difficult for non-lawyers to access the law. Victims of human rights violations are largely dependent on individual lawyers in private practice to enforce their rights.
  • In common with other areas of law, human rights law is in desperate need of demystification and simplification. There is a basic human right of access to laws set out in understandable language. For example, the law dealing with the right to a fair trial is now so complex that very few non-lawyers, and not many lawyers, can negotiate a route through it. You need a lawyer to explain how you can get a fair trial, and if you can’t afford a lawyer, or can’t get someone else to pay, you will never understand the law of human rights.
  • British human rights organisations should, at the very least, engage in discussions as to the incorporation of social and economic rights into UK human rights law and should press for this expansion.
  • UK human rights law has developed without any serious or searching theoretical analysis. This contrasts, for example, with the extensive analyses carried out by the South African Constitutional Court.
  • Human rights organisations should disclose the levels of fees received by lawyers who act in human rights cases, whether through public funding or funding from those organisations or through public funding.
  • As a longstanding member of Liberty, and its predecessor, the National Council for Civil Liberties, I have always supported organisations which campaign for individual civil human rights. This does not prevent me from criticising the current English preoccupation with such rights and to argue that there is an almost total lack of discussion, in academic and practising circles, of the theory of human rights and the need for collective social rights to receive equal protection with individual rights. In 2010 Liberty issued a publicity poster asking “What not to love?”. The poster featured a heart-shaped statement of the rights protected by the Human Rights Act 1998. Economic and social rights were not mentioned. This lack of discussion may be peculiar to Western neo-liberal democracies.

HM Revenue and Customs “Unacceptably Slow” At Recovering Tax

Today (18th November 2014), the Public Accounts Committee have published their report into improving tax compliance. It concluded that HMRC has made little progress into recovering the highly publicised unpaid tax from multi-national firms and wealthy individuals. It also concluded that they have overstated their success at recovery through a £1.9 billion calculation error. Margaret Hodge, the Chair of the Committee, stated that;

“HMRC must do more, faster. It should report on the progress it has achieved by using new powers granted by parliament to tackle tax avoidance and show it is using its existing powers with sufficient urgency,”

If this report is contextualised through some of the key losses reported for 2012/2013, the issue appears more shocking. The oft-quoted ‘main problem’ of benefit fraud accounted for £1.2 billion. In contrast, tax avoidance was £5 billion. Starbucks paid no tax on sales of £400m.  Amazon, which reported sales of £3.35billion only declared £1.8m tax. Google’s UK turnover was £395million compared to £6million paid. Even Take That used a tax avoidance scheme, even arguably innocently, to hide their £63million fortune.

Compare this with the “scrounger” who was paid £18,000 in benefits whilst working. Ms Redican had serious heart problems, but helped in a friend’s pub while being treated. She contacted Stoke on Trent City Council and said she wanted to return to work and was sent forms. She did not realise that her ad hoc shifts counted as employment so failed to declare them. She pleaded guilty as she accepted that, despite her confusion, the onus was on her to inform the benefits agency. She was given a 12-month community and super vision order, and ordered to pay £200 court costs and £60 surcharge. She is also paying back the money.

Let us hope the Government pays attention to the new report and stop demonising its citizens to hide the bigger picture.

 

 

 


Money And The Law

The key to understanding the English legal system is the central role of money. I have lost count of the number of my clients who have not been able to start or continue their cases because of lack of money. My conclusion can only be that where legal rights cannot in reality be exercised because of poverty, then those rights have no existence. Their existence, for the poor, is abstract and theoretical. Outside plush solicitors’ offices, barristers’ chambers, legal textbooks and university lecture rooms, legal rights have little relevance for poor people.

Almost every aspect of English law has to do with money or claims for money.

 


New ECJ Ruling On Benefit Tourism

The European Court of Justice (ECJ) has today (11th November 2014) ruled that unemployed EU citizens who travel to another member state to claim benefits may be barred from some benefits.

The decision arose from a case from Germany, where a Romanian mother and her son travelled to Germany to claim non-contributory subsistence allowance. The court concluded that the defendant did not have sufficient resources to claim German residency and could therefore not claim that her exclusion from certain benefits was discriminatory. It said that the right of EU citizens to live and work in other member states did not stop states having legislation which excluded migrants from non-contributory benefits available to their own citizens.

The case could enable the United Kingdom to place some restrictions on immigration, such as removing unemployed migrants’ access to benefits such as jobseeker’s allowance. As Timothy Kirkhope, the party’s home affairs spokesman, said;

“[The ruling] will have wide-ranging implications for how the UK can tighten its welfare system to ensure only migrants that make a contribution can receive something back.”

The case comes following the UCL report released last week which stated that European migrants contributed £20billion to UK finances between 2000 and 2011. It also comes at a time when David Cameron is actively making political statements regarding curbing of migration. In response Angela Merkel, the German Chancellor, was reported as saying last week that the freedom of movement rules were non-negotiable.

It seems that, perhaps, the ECJ ruling provides one way forward for member states to have individualised migration policies within the overarching EU freedom of movement rules.


LAW: Major New Publication: Extract

In the interests of fairness and balance, what is good, in summary, about the English legal system?

  • The independence of the judiciary.
  • The incorruptibility of the judiciary in the sense of financial bribery. The English judiciary, unlike the legislature, has never been the subject of financial scandal.
  • The jury system, as the only democratic element in the system, which is constantly under attack.
  • The Human Rights Act 1998.
  • A general adherence to the rule of law.
  • A highly developed and sophisticated system of legal education.
  • The permitted scope for individualism in the legal profession, which results in a small number of highly committed progressive lawyers.
  • Law Centres.
  • The Legal Action Group and its publications.
  • The remnants of legal aid.
  • Health and safety law and some aspects of employment law.
  • The common law dealing with workplace stress.
  • Some other areas of substantive law, for example road traffic, food hygiene, environmental law and common law negligence. These areas are not generally concerned with commerce, property or money.
  • Progressive organisations, for example Liberty, the Haldane Society, Reprieve, Amnesty International and the Legal Action Group.
  • Resistance by the judiciary to the increasing power of the executive.
  • The intellectual achievements of the senior judiciary.

Holiday Pay: Landmark Judgment

Employment Appeal Tribunal rules that overtime should be included in holiday pay

Workers have today (4th November 2014) won their Employment Appeal Tribunal (EAT) case requiring employers to recognise overtime as hours for calculating holiday pay. Full details of the ruling, such as whether claims can be backdated, are yet to be released.

The landmark decision follows cases brought by employees of the industrial services company Hertel, the engineering firm Amec and road maintenance business Bear Scotland. EU law provides for four weeks’ holiday pay a year, although it does not prescribe how this should be calculated. The UK has interpreted the law as requiring holiday pay at the basic rate. However, “basic rate” is not easily definable. Today, however, the EAT has stated that voluntary overtime and on-call time is to be assessed as “basic rate”. This follows the recent European Court of Justice ruling against British Gas which stated that staff who receives commission as part of their earnings should have this taken into account when holiday pay is calculated.

This ruling potentially has far reaching repercussions. According to government data, 1/6 of those in employment get paid overtime, meaning that around 5 million workers could be entitled to more holiday pay. Due to the huge financial implications for companies, an appeal to the Court of Appeal is likely. Further, the Coalition strongly opposed this interpretation, meaning that emergency legislation could also follow.


LAW: New Book Now In Stock

LAW By Robert Spicer

Public Access Barrister, Bristol

Law is a radical and accessible look at the English legal system. It aims to set out a highly critical examination of the English legal system and legal profession. The politicised nature of the critique distinguishes the book from others and provides an alternative approach currently lacking from legal publications.

This book starts with an analysis of the central role of money in the English legal system. It deals with the concept of class justice and includes material on dissenting voices of law, law as an industry, the demystification of law and the legality of the Iraq War. It concludes with realistic proposals for alternative legal practice.

 

£20.00   (£10 unwaged)                                           ISBN 978-178456-088-1

From all good bookshops or direct from the publishers

Frederick Place Chambers, 9 Frederick Place, BS81AS

www.frederickchambers.co.uk

robert.spicer@frederickchambers.co.uk