From: "John Hurst", [EMAIL PROTECTED]
>Yes, but this was all within the context of the ECHR, not British law.
Steve,
The Human Rights Act directs that British law should be
interpreted in a manner which is compatible with the ECHR. It contains a
section which confirms that it ( the ECHR and the Act) should not be used
for a purpose for which it was not intended. Lord Wilberforce pointed out
that UK delegates to the Convention in 1950-51;
"...knew that all essential rights were confirmed to us by common law and
there was never any intention that the new obligations by way of guarantee
should be taken to supersede them".
This was incorporated into the Act directly as a Section and as part of the
debates. Remember the Attorney Generals Practice Directions;
"... In practically every case involving the construction of an enactment,
there must be a search in Hansard. This is because it is rarely possible to
be sure, without full knowledge of the background, that the Pepper v. Hart
conditions are not satisfied..."
Lord Wilberforce went on to state the civil rights of the subject which are
confirmed by the common law;
"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common law to this country, and not intended to be superseded or modified by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.
>You're not being deprived of anything physical thing if the police refuse
>to grant an FAC, so you are not subject to any sort of compensation.
The effect of being denied the use of defensive weapons on the individual
can be death, maiming and a life spent in fear. What price would you put on
them, now that the Courts accept "psychological GHB? Any tort can result in
liability.
It may also cause disillusion with the political process and non-compliance
with the law to become widespread.
>Also Gerry Adams doesn't have an FAC, his convictions preclude that.
Necessity, otherwise known as duress therefore applies. Blackstone again;
" ....But the life and limbs of a man are of such high value, in the
estimation of the law of England, that it pardons even homicide if committed
se defendo, or in order to preserve them. For whatever is done by a man, to
save either life or a member, is looked upon as done upon the highest
necessity and compulsion. Therefore if a man through fear of death or mayhem
(injury) is prevailed upon to execute a deed, or do any other legal act:
these, though accompanied with all the other requisite solemnities, may be
afterwards avoided, if forced upon him by a well-grounded apprehension of
loosing his life, or even his limbs, in case of his non-compliance. And the
same is also a sufficient excuse for the commission of many misdemeanours.
The constraint a man is under in these circumstances is called in law
duress...".
Remember R v Georgiades (Michael). Whether self-defence justified possession
of firearm ought to be left to jury. ( CA . (1989) 89 Cr App R 206; [1989]
Crim LR 574; (1989) 133 SJ 724; [1989] 1 WLR 759). And also remember jury
nullification, case disposal and the Guide for Crown Prosecutors.
Regards, John Hurst.
--
Any tort can result in liability but is the refusal to grant an FAC
a tort? Pretty tough to argue that one in court. The only person
in a position to do so is Mr McGartland, and I wish he would!
Steve.
Cybershooters website: http://www.cybershooters.org
List admin: [EMAIL PROTECTED]
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