159mph speeding charge PC cleared

[Nick Kew]

JLB wrote:
> Nick Kew wrote:
>
>> Tilly wrote:
>>
>>
>>> Surely it cannot be right for a car to be driven at 60mph in a
>>> residential area, in a non-emergency situation, and without proper
>>> authorisation. If the judge thinks that it is within the law, then
>>> the law may be flawed.
>>
>>
>>
>> On a general note that may or may not be relevant to this instance
>> (I don't have the inside knowledge with which to tell that):
>>
>> The law leaves judges with a huge amount of discretion to 'interpret'
>> it. This may mean setting aside or totally overriding commonsense, or
>> what parliament intended when they legislated.
>>
>> And judges are the very heart of corruption in this country. They're
>> not accountable to anyone, and above (enjoy statutory protection from)
>> scrutiny and criticism except at a very general moan-over-a-pint[1]
>> level. Appointment to the position is by a self-perpetuating "he's
>> one of us, old chap" process. They fulfill the role of the communist
>> party in the old soviet union, but they're far more deep-rooted and
>> secure than that was.
>>
>> At the law-making end of the system, Sir Humphrey basically says it.
>>
>> So perhaps you need to expand the subject of the discussion to the
>> system of law.
>>
>> [1] Mine's a pint of tea, in the pub of usenet.
>>
> The sort of constitutional thinking that underlies the US Constitution
> and others says it is important that the the legislative, executive and
> judicial arms of government are separate.

I know that very well. I could also point out the irony in there, when
the US government complains about the power of an independent judiciary
in Iran where (like here) they are not answerable either to the people
or to the elected government.

US courts are clearly out of control (though that's another argument).
But they do have some virtues, including most notably a far more open
and accountable process than we have here.

> Hence, your observations
> concerning what you describe as the "corruption" and lack of
> accountability of the judiciary are in fact signs of constitutional
> health.

In theory. But in theory, a firm of lawyers don't get to select the
judge to hear their client's case, nor does a judge make rulings for
his personal friends or recent professional clients. In practice
those things not only happen (without the victims knowledge), they
are sanctioned by the court of appeal. I call it corruption that
they happen in the first place, and *institutional* corruption when
the court of appeal says it's perfectly alright.

Judges in this country are sufficiently well paid that they are
> difficult to bribe compared to those in many other countries.

I expect that's true. But a direct bribe is so unsubtle it's vulgar.

> The judges
> also cannot be dismissed or directly ordered by government ministers.

Nor anyone else. Who was it said absolute power corrupts absolutely?

> Again, this is usually seen as a strength of the system.

Yeah. It's so strong nothing happened after Bleak House was published.
In contrast to Nicholas Nickelby, which demonstrated Dickens'
extraordinary power by bringing down the whole system of "dotheboys
hall" type schools within a few years of publication.


> Their independence is under attack here (and under much more severe
> assault in the US) by politicians and witless proles who think that
> somebody like Blunkett (ex-Communist Party, hates our judges) should
> have the power to take anybody's liberty from them at will, without real
> judicial process.

So it could be even worse than it already is. No news there.

 

[JLB]

Nick Kew wrote:
> JLB wrote:
[snip]
>
> In theory. But in theory, a firm of lawyers don't get to select the
> judge to hear their client's case, nor does a judge make rulings for
> his personal friends or recent professional clients. In practice
> those things not only happen (without the victims knowledge), they
> are sanctioned by the court of appeal. I call it corruption that
> they happen in the first place, and *institutional* corruption when
> the court of appeal says it's perfectly alright.

You'd need to give examples if that's going to be debated further, else
we end up with no more than an "is" - "is not" argument.
>
>> Judges in this country are sufficiently well paid that they are
>> difficult to bribe compared to those in many other countries.
>
>
> I expect that's true. But a direct bribe is so unsubtle it's vulgar.

I'm more concerned about its efficacy than its vulgarity. Jonathan Swift
referred to judges refusing bribes in his excellent description of law
and the English Constitution[1]. No doubt you know it already, but if
not, I commend it to you.
>
>
>> The judges
>> also cannot be dismissed or directly ordered by government ministers.
>
>
> Nor anyone else. Who was it said absolute power corrupts absolutely?

That's the big flaw in your theory. This is independence, not power and
nothing remotely like absolute power. That's the point behind having the
separation of powers and due process of law. Although independent and
not answerable to the executive, the judiciary only gets apply criminal
law passed by the legislature in respect of persons brought before the
court by the agents of the executive. In criminal cases the judge (or
Sheriff) has no say in who will be accused; does not write the statute;
does not frame the charges; and, where there is a jury, does not
determine guilt or innocence. The judge only controls the conduct of the
court and, if the accused be found guilty, pronounces sentence within
the limits set by statute. That is distinctly limited power, but it is
independent. Similar constraints are designed to prevent any one branch
of government running dangerously amok.

Of course, if, for example, the executive persuades the legislature to
grant it the power to remove the liberty of subjects directly, the power
of the executive is then unconstrained. The only protection for any
subject after that is the individual integrity and judgement of an
individual minister.
>
>>Again, this is usually seen as a strength of the system.
>
>
> Yeah. It's so strong nothing happened after Bleak House was published.
> In contrast to Nicholas Nickelby, which demonstrated Dickens'
> extraordinary power by bringing down the whole system of "dotheboys
> hall" type schools within a few years of publication.
>
But the Court of Chancery was reformed. Besides, it does not support
your argument in any case, because the criticism of Chancery was not
that it was too powerful, but that its processes were interminable. This
article, though hardly light reading, is to the point
http://www.historycooperative.org/journals/lhr/22.3/comment_oldham.html

>
>>Their independence is under attack here (and under much more severe
>>assault in the US) by politicians and witless proles who think that
>>somebody like Blunkett (ex-Communist Party, hates our judges) should
>>have the power to take anybody's liberty from them at will, without real
>>judicial process.
>
>
> So it could be even worse than it already is. No news there.

A story is told of an eminent judge who was woken by his clerk and told
that some great law reform was planned. He looked shocked and said,
"Reform? /Reform?/ Are things not bad enough already?"

[1] Jonathan Swift, Gulliver's Travels, Ch. 32, last half:

There was another point, which a little perplexed him at present. I had
informed him, that some of our crew left their country on account of
being ruined by law; that I had already explained the meaning of the
word; but he was at a loss how it should come to pass, that the law,
which was intended for every man's preservation, should be any man's
ruin. Therefore he desired to be further satisfied what I meant by law,
and the dispensers thereof, according to the present practice in my own
country; because he thought nature and reason were sufficient guides for
a reasonable animal, as we pretended to be, in showing us what he ought
to do, and what to avoid."

I assured his honour, "that the law was a science in which I had not
much conversed, further than by employing advocates, in vain, upon some
injustices that had been done me: however, I would give him all the
satisfaction I was able."

I said, "there was a society of men among us, bred up from their youth
in the art of proving, by words multiplied for the purpose, that white
is black, and black is white, according as they are paid. To this
society all the rest of the people are slaves. For example, if my
neighbour has a mind to my cow, he has a lawyer to prove that he ought
to have my cow from me. I must then hire another to defend my right, it
being against all rules of law that any man should be allowed to speak
for himself. Now, in this case, I, who am the right owner, lie under two
great disadvantages: first, my lawyer, being practised almost from his
cradle in defending falsehood, is quite out of his element when he would
be an advocate for justice, which is an unnatural office he always
attempts with great awkwardness, if not with ill-will. The second
disadvantage is, that my lawyer must proceed with great caution, or else
he will be reprimanded by the judges, and abhorred by his brethren, as
one that would lessen the practice of the law. And therefore I have but
two methods to preserve my cow. The first is, to gain over my
adversary's lawyer with a double fee, who will then betray his client by
insinuating that he hath justice on his side. The second way is for my
lawyer to make my cause appear as unjust as he can, by allowing the cow
to belong to my adversary: and this, if it be skilfully done, will
certainly bespeak the favour of the bench. Now your honour is to know,
that these judges are persons appointed to decide all controversies of
property, as well as for the trial of criminals, and picked out from the
most dexterous lawyers, who are grown old or lazy; and having been
biassed all their lives against truth and equity, lie under such a fatal
necessity of favouring fraud, perjury, and oppression, that I have known
some of them refuse a large bribe from the side where justice lay,
rather than injure the faculty, by doing any thing unbecoming their
nature or their office.

"It is a maxim among these lawyers that whatever has been done before,
may legally be done again: and therefore they take special care to
record all the decisions formerly made against common justice, and the
general reason of mankind. These, under the name of precedents, they
produce as authorities to justify the most iniquitous opinions; and the
judges never fail of directing accordingly.

"In pleading, they studiously avoid entering into the merits of the
cause; but are loud, violent, and tedious, in dwelling upon all
circumstances which are not to the purpose. For instance, in the case
already mentioned; they never desire to know what claim or title my
adversary has to my cow; but whether the said cow were red or black; her
horns long or short; whether the field I graze her in be round or
square; whether she was milked at home or abroad; what diseases she is
subject to, and the like; after which they consult precedents, adjourn
the cause from time to time, and in ten, twenty, or thirty years, come
to an issue.

"It is likewise to be observed, that this society has a peculiar cant
and jargon of their own, that no other mortal can understand, and
wherein all their laws are written, which they take special care to
multiply; whereby they have wholly confounded the very essence of truth
and falsehood, of right and wrong; so that it will take thirty years to
decide, whether the field left me by my ancestors for six generations
belongs to me, or to a stranger three hundred miles off.

"In the trial of persons accused for crimes against the state, the
method is much more short and commendable: the judge first sends to
sound the disposition of those in power, after which he can easily hang
or save a criminal, strictly preserving all due forms of law."

Here my master interposing, said, "it was a pity, that creatures endowed
with such prodigious abilities of mind, as these lawyers, by the
description I gave of them, must certainly be, were not rather
encouraged to be instructors of others in wisdom and knowledge." In
answer to which I assured his honour, "that in all points out of their
own trade, they were usually the most ignorant and stupid generation
among us, the most despicable in common conversation, avowed enemies to
all knowledge and learning, and equally disposed to pervert the general
reason of mankind in every other subject of discourse as in that of
their own profession."

--
Joe * If I cannot be free I'll be cheap

 

[Nick Kew]

JLB wrote:
> Nick Kew wrote:
>
>> JLB wrote:
>
> [snip]
>
>>
>> In theory. But in theory, a firm of lawyers don't get to select the
>> judge to hear their client's case, nor does a judge make rulings for
>> his personal friends or recent professional clients. In practice
>> those things not only happen (without the victims knowledge), they
>> are sanctioned by the court of appeal. I call it corruption that
>> they happen in the first place, and *institutional* corruption when
>> the court of appeal says it's perfectly alright.
>
>
> You'd need to give examples if that's going to be debated further, else
> we end up with no more than an "is" - "is not" argument.

How about District Judge Rutherford setting aside various provisions
in the 1985 Landlord and Tenant Act, to rule in favour of his personal
friend Perry and his recent client Bloor (including in one case that
had previously been thrown out by another judge). The relationship of
the judge to the party, and the fact that he was from their solicitors,
only emerged later by accident, when someone who had (by coincidence)
worked as a receptionist at Rutherford's firm (Thrings and Long) and
had received his clients there many times, remarked that it must have
been hard for him to preside in a case where one side was so well
known to him.

Will that do as a startingpoint?

--
Nick Kew

 

[Ambrose Nankivell]

Peter B wrote:
> "Mark Thompson" <[email protected]> wrote in message
> news:[email protected]...
>>> Driving at 160mph would require a braking distance in excess of
>>> 500metres.
>
>> Streetlighting?
>
> M54? I don't think so.

From junction 2 to the M6, there is.

Also, my uncle rode it (westbound) the day before it opened, so it has been
cycled

A

 

[Ambrose Nankivell]

JLB wrote:
> The assessment should be recorded. Producing it in court would go a
> long way to supporting the defendant's version of events. In my own
> view it seems that without a RA either the car journey was an
> unauthorised illegal self-indulgence or it was a work activity
> undertaken in breach of H&S legislation. However, I'm a bit vague
> about exactly how H&S regs (Management of Health and Safety at Work
> Regulations) apply to the police, so could be wrong.

I understood that H&S didn't apply to road transport.

A

 

[JLB]

Ambrose Nankivell wrote:
> JLB wrote:
>
>> The assessment should be recorded. Producing it in court would go a
>> long way to supporting the defendant's version of events. In my own
>> view it seems that without a RA either the car journey was an
>> unauthorised illegal self-indulgence or it was a work activity
>> undertaken in breach of H&S legislation. However, I'm a bit vague
>> about exactly how H&S regs (Management of Health and Safety at Work
>> Regulations) apply to the police, so could be wrong.
>
>
> I understood that H&S didn't apply to road transport.

The transport itself, if that means the vehicle, is subject to the
Construction and Use Regs, not to H&S law; but driving for work reasons,
and the risks to persons arising from that, is another matter. The HSWA,
and relevant statutory provisions are written such that they *do* apply,
but the regulatory authorities have decided as a matter of policy not to
enforce HSWA in relation to road incidents.

This particular instance seems to me to fall into a particularly grey
area, since it involves the police as employer and the car was
apparently being used not as transport but as a work-related training aid.

Anyway, here's what the HSE and DfT has to say about it
http://www.hse.gov.uk/pubns/indg382.pdf


--
Joe * If I cannot be free I'll be cheap

 

[JLB]

Nick Kew wrote:
> JLB wrote:
>
>>Nick Kew wrote:
>>
>>
>>>JLB wrote:
>>
>>[snip]
>>
>>
>>>In theory. But in theory, a firm of lawyers don't get to select the
>>>judge to hear their client's case, nor does a judge make rulings for
>>>his personal friends or recent professional clients. In practice
>>>those things not only happen (without the victims knowledge), they
>>>are sanctioned by the court of appeal. I call it corruption that
>>>they happen in the first place, and *institutional* corruption when
>>>the court of appeal says it's perfectly alright.
>>
>>
>>You'd need to give examples if that's going to be debated further, else
>>we end up with no more than an "is" - "is not" argument.
>
>
> How about District Judge Rutherford setting aside various provisions
> in the 1985 Landlord and Tenant Act, to rule in favour of his personal
> friend Perry and his recent client Bloor (including in one case that
> had previously been thrown out by another judge). The relationship of
> the judge to the party, and the fact that he was from their solicitors,
> only emerged later by accident, when someone who had (by coincidence)
> worked as a receptionist at Rutherford's firm (Thrings and Long) and
> had received his clients there many times, remarked that it must have
> been hard for him to preside in a case where one side was so well
> known to him.
>
> Will that do as a startingpoint?
>
That's fine. I have nothing to add to your summary. Do you have a report
of the judgement of the court of appeal?

--
Joe * If I cannot be free I'll be cheap

 

[Nick Kew]

JLB wrote:

>> Will that do as a startingpoint?
>>
> That's fine. I have nothing to add to your summary. Do you have a report
> of the judgement of the court of appeal?

No. If it helps with tracking it down, it was in 1993.

--
Nick Kew