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Freedom of Speech and the rule of law

I quote from the linked post.

First, I will take the elements of the rule of law as sketched by the late Law Lord, Tom Bingham, in his final book The Rule of Law (Allen Lane, 2010):

  1. The law must be accessible, and so far as possible intelligible, clear and predictable (p37
  2. Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion (p48)
  3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation (p55)
  4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers[,] and not unreasonably (p60)
  5. The law must afford adequate protection of fundamental rights (p66)
  6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve (p85)
  7. Adjudicative procedures provided by the state should be fair (p90)
  8. The rule of law requires compliance by the state with its obligations in international law as in national law (p110).

It is worth reading the original post, but the question has to be asked as to how many of these tests are failed by the family courts.


Jerry said…
Without sounding too abrupt here all of the 8 test points are missed within the closed family courts arena.

What the late Law Lord, Tom Bingham has written sounds more like common sense and what all UK citizens should be entitled to, sadly as you know John this is hardly ever the case.

I don't know if you have read the recent article in the telegraph regarding Expert Evidence scrutiny. It seems to go some way to help a majority of people in these matter however I bet it falls short to include closed family court matters.

The article:-

The Law Commission, the Government’s adviser on legal reform, warned expert witnesses are used “too freely” and cases of “junk science” can result in innocent people being wrongly convicted or the guilty being freed.
In future, under the proposed changes, a judge would have the power to assess the credibility of the expert evidence in advance of a trial.
The appropriate defence or prosecution teams would then be able to challenge it before the judge decides whether it can be put before the jury.
There were more than 8,500 experts witnesses used in the courts in 2009 and the Law Commission estimates one in 20 would be ruled inadmissible under its proposed system.
It says evidence that helped convict the likes of Sally Clark would not have passed the test.
Solicitor Mrs Clark was wrongly jailed in 1999 for killing her 11-week-old son Christopher and eight-week-old son Harry after an expert witness, Professor Sir Roy Meadow, controversially testified that the probability of two natural unexplained cot deaths in a family was 73 million to one.
But Mrs Clark's conviction was overturned in 2003 and Prof Meadow was struck off by the General Medical Council after it ruled his evidence was both "erroneous" and "misleading".
Professor David Ormerod, the leading law commissioner on the project, said: "Action is long overdue. As far back as 2005 a House of Commons select committee called for a gatekeeping test for expert evidence.
"Our test will go a long way to ensuring that, in future, the expert evidence used in criminal trials is safe, and the potential for miscarriages of justice greatly reduced."

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

November 9 1923

Editor’s comments in bold.

Here, the magistrates’ clerk retired with the bench when they were considering a charge of dangerous driving. The clerk belonged to a firm of solicitors acting in civil proceedings for the other party to the accident. It was entirely irrelevant that there had been no evidence of actual influence brought to bear on the magistrates, and the conviction was duly quashed.

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