From: "John Hurst", [EMAIL PROTECTED]
The significance of the ruling against self incrimination is that
it undermines all legislation involving "absolute offences" such as the
Firearms and misuse of drugs Acts. This is because it confirms the common
law presumption of innocence.
Statutory absolute offences criminalise actions without evidence of "malice
aforethought". Applying (again) Pepper v Hart Lord Wilberforce said in the
debates in the Human Rights Act;
"Perhaps I may remind noble Lords of what our essential civil rights, as
guaranteed by the common law, are: the presumption of innocence; the right
to a fair hearing; no man to be obliged to testify against himself; the rule
against double jeopardy; no retrospective legislation; no legislation to be
given an effect contrary to international law--an old principle which has
been there for years; freedom of expression; and freedom of association. All
of those were in the minds of our delegates firmly secured already by the
common law to this country, and not intended to be superseded or modified by
the new inter-state obligations in the convention.
Hansard 3 Nov 1997 : Column 1279.
It should be noted that the right to arms comes from the fundamental common
law right, the presumption of innocence. The only persons who can be denied
this right are convicted criminals.
More on the presumption of innocence from Mike Burkes researches;
"Throughout the web of the English criminal law one golden thread is always
to be seen, that it is the duty of the prosecution to prove the prisoner's
guilt...No matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law
of England and no attempt to whittle it down can be entertained."
Stones Justice's Manual. Preface to 1990 Edition.
The authoritative "Taylor Upon Evidence" has this to say about burden of
proof;
"The right which every man has to his character, the value of that character
to himself and his family, and the evil consequences that would result to
society if charges of guilt were lightly entertained, or readily established
in Courts of justice:- these are the real considerations which have led to
the adoption of the rule that all imputations of crime must be strictly
proved."
The Firearms Act 1920 and the Prevention of Crime Act 1953 are based on the
principle that Parliament can create new offences, that everyone is guilty
from the date of their adoption, and then allow exceptions at the discretion
of the police. They have shifted the burden of proof onto the defence,
which is something that never happened before.
This purported power of Parliament was objected to strongly by many MPs in
the debates on the Prevention of Crime Act 1953. They generated about 90
pages of debate in Hansard on a Bill that was little more than one page
long. Several MPs were only prepared to accept the Bill as a short-term
emergency measure to be reviewed after five years. The Government claimed
that the measure was necessary to deal with an outbreak of violent crime.
James Carmichael (MP for Glasgow, Bridgeton), pointed out that Scottish
crime figures had actually dropped significantly in the preceding years and
the Bill was an over-reaction to misleading press reports (Hansard, 26 March
1953).
Several references were made to the fact that at that time the assurances
given by Ministers that the police would act responsibly and with restraint
was worthless because what had been said in Parliament could not be referred
to in the Courts. The Bill was passed, and soon the presumption of
innocence was set aside in other legislation without a murmur.
This has resulted in the proliferation of Statutory absolute offences. In
the common law guilt could only be inferred from a persons actions and
evidence of his mental intent at that time. Thus stealing is the taking of
property belonging to another with evidence of an intention to permanently
deprive the owner of it. The Statutory offence of simple possession of an
unlicensed "prohibited weapon" is a crime regardless of the circumstances
as are selling apples by the pound or beef on the bone. Statutory "crimes"
are whatever the legislature decides. A victim or intent is not required.
We seem to have come to a point where the ancient rightness of the common
law has been set aside. The Courts have given up legislative supremacy to
Parliament. And they have been allowed to do this because no one has gone
before a Court and claimed his common law rights. Those rights of the
subject are written, but have been hidden and forgotten.
And here lies the danger to us all. The only power that Government has is
to manufacture criminals. If Government believes that it can do as it
wishes without the restraint of a Constitution which is enforceable through
the Courts then no one and nothing is safe from the whims and prejudices of
the legislators.
John Locke, the philosopher, was a major influence in the education of the
generation that debated what became the English Bill of Rights in 1688. We
can have an insight into the mischief that the representatives of the people
sought to avoid with the passing of the Statue which "Declares the Rights
and Liberties of the subject...in all time to come".
"Man is a maker of things, and a property owning animal... From the right
to self-defence and protection of property comes the right to the rule of
law, and a multitude of like rights, such as the right to privacy expressed
as 'An Englishman's home is his castle'. A ruler is legitimate only in so
far as he upholds the law. A ruler that violates the law is illegitimate.
He has no right to be obeyed; his commands are mere force and coercion.
Rulers who act lawlessly, whose laws are unlawful, are mere criminals."
Regards, John Hurst.
Cybershooters website: http://www.cybershooters.org
List admin: [EMAIL PROTECTED]
___________________________________________________________
T O P I C A The Email You Want. http://www.topica.com/t/16
Newsletters, Tips and Discussions on Your Favorite Topics
