From: "John Hurst", [EMAIL PROTECTED]
>Yes many laws are bans. But there is an important distinction to be
>made, between the banning of objects and the banning of actions. IMO the
>banning of actions (e.g. murder, theft, fraud) is most morally sound.
>The banning of objects is less so and, more importantly, largely
>ineffective.
Julian,
The creation of new crimes, statutory "absolute" offences, is
arguably unknown to our constitution. .
"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. ( But Pepper
v.
Hart came to the rescue).
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 purported to be 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."
The following essay from the New Zealand Grey Power site covers "absolute
offences";
"The potential for a great evil, because of this naivety, has been amply
demonstrated by the Nazi rise to power in Germany and, more recently, in
this and other countries. In the seventy five years before the Nazi regime
positivism achieved a standing in that country such as it has enjoyed in no
other. Lon Fuller - "Positivism and Fidelity to Law" (1958) 71 Harv L Rev
631, 657-66 states: " The German lawyer was therefore peculiarly prepared to
accept as "law" anything that called itself by that name, was printed at
government expense, and seemed to come "von oben herab"...Hitler did not
come to power by a violent revolution. He was Chancellor before he became
the leader. The exploitation of legal forms started cautiously and became
bolder as power was consolidated. The first attacks on the established order
were on the ramparts which, if they were manned by anyone, were manned by
lawyers and judges. These ramparts fell almost without a struggle."
Where would our judiciary stand, for example, if by some chance an
oppressive Parliament were to be formed and a law was enacted which said "
Every person over 30 years of age had to be sterilised." Where would our
judiciary stand if Parliament enacted a law which said " Elections for the
House of Representatives will only be at 10 year intervals." These enactment
's, under our Parliamentary structure and recent judicial dicta, could be
emotionally implemented and justified at any time. Could, or would, our
judiciary stand on the ramparts of justice and the ancient constitutional
rule of law? Would our judiciary act, resign or abandon their judicial oaths
and state freely that they are no longer prepared to serve a country
entitled to be called a free democracy?
