Vicky Haigh flees the babysnatchers
Vicky has sensibly decided to leave the UK to avoid the adoption machine. It remains the case that a majority of the children that leave care aged under 5 do so through adotion.
Hence if her baby had been taken the care she would have faced the likelihood that it would have been adopted.
An evil evil system.
The link is to her story in the Sunday Telegraph.
The system is more evil because the treatment of the babies in care causes a large proportion of them to be so psychologically damaged that a large proportion of the adoptions fail as well.
If anyone wants to check this they need to see Michael Rutters research which demonstrates that it is the period of 6-18 months that is key for psychological development. The vast proportion of babies taken into care are taken into care before 6 months. Hence it is the care system that normally does this not the natural mother.
posted by John Hemming
¶ 6:23 p.m.5 comments
The First Amendment to the US Constitution
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
See Wikipedia Petition and assembly The right to petition the government extends to petitions of all three branches of government: the Congress, the executive and the judiciary. According to the Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain. Nonetheless, in the past, Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835 the House of Representatives adopted the Gag Rule, barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was abolished in 1844. During World War I, individuals petitioning for the repeal of sedition and espionage laws were punished; again, the Supreme Court did not rule on the matter. The right of assembly was originally distinguished from the right to petition. In United States v. Cruikshank, 92 U.S. 542 (1875), the Supreme Court held that "the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States." Justice Waite's opinion for the Court carefully distinguished the right to assemble, labeled a secondary right, from the right to petition, a primary right. Later cases, however, paid less attention to these distinctions.
posted by John Hemming
¶ 9:25 a.m.0 comments
Tuesday, April 26, 2011
Gag Removed - Job Done
Some confusion has reigned in the blogosphere about today's points of order. My objective was to identify the parties in the Vicky Haigh / Doncaster case where Doncaster tried to Jail Vicky for talking in Parliament.
All the other details of the story are in the public domain, but an injunction prevented the parties being identified.
Now they can be identified.
Points of Order
John Hemming (Birmingham, Yardley) (LD): On a point of order, Mr Speaker. Vicky Haigh, a horse trainer and former jockey, was the subject of an attempt by Doncaster council to imprison her for speaking at a meeting in Parliament. There was discussion earlier today as to whether that case was sub judice. An application was made to the court, a copy of which I have provided to your office. Additionally, I have provided to your office a copy of the court order in which it was deemed that she would not be jailed. I assume, therefore, that the case is not sub judice, in accordance with sub-paragraph (b)(ii) of the relevant resolution:
“Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.”
Mr Speaker: I am grateful to the hon. Gentleman for his attempted point of order and for notice that he was to raise the matter this afternoon. I do not intend to have a discussion on the Floor of the House, notwithstanding what he said about documents that have been deposited, on whether a particular case is or is not sub judice. One of my duties is to uphold the resolution of the House with respect to sub judice issues. As far as this particular matter is concerned, I am perfectly prepared to discuss it privately with the hon. Gentleman. I will not take any further points of order on this matter today, and I feel sure that he will take his cue from the clear response that I have given.
John Hemming: On a separate point of order, Mr Speaker.
Mr Speaker: The hon. Gentleman may have a separate point of order, but it is a bit greedy to have two in one go. We will have someone else first so that he can save his vocal cords and we will revert to him in due course.
John Hemming: On a second point of order, Mr Speaker, of which I also gave notice, I wish to make another point about sub judice. There is a tendency for people to issue injunctions on the basis of a claim that they intend to issue proceedings, but then not actually to issue those proceedings. One such case is AMM, in which no proceedings have been issued. One would therefore presume that such a case never becomes sub judice.
Mr Speaker : The ingenuity of the hon. Gentleman is almost boundless, and that fact will not have gone unnoticed in any part of the House. However, the initial observations that he made demonstrate to me that the second issue that he has raised is also one for consideration at our private meeting, which I feel sure he is eagerly awaiting.
posted by John Hemming
¶ 5:12 p.m.10 comments
Andrew Marr turns from the Dark Side
Hemming welcomes Andrew Marr's turn away from the dark side
John Hemming MP has welcomed Andrew Marr's decision to let his injunction lapse. "Those people who live by the sword", he said "should be prepared to die by the sword."
"I am pleased that he has shown his commitment to freedom of speech by turning from the dark side of gagging orders."
"I hope that other people who have obtained injunctions will recognise the error of their ways and let the injunctions lapse."
posted by John Hemming
¶ 9:52 a.m.2 comments
Monday, April 25, 2011
Super injunctions explained for the far east
This is something by "New Media Animation" about Superinjunctions.
Incidentally what they really mean is injunctions. Super - a court order that itself cannot be talked about (I think these have mainly stopped now). Hyper - an attempt to stop people talking to MPs Quaero - an attempt to stop investigation by anyone (particularly journalists)
It is, however, all about Freedom of Speech (and where the limits on privacy should be).
posted by John Hemming
¶ 3:37 p.m.0 comments
ECHR and The Council of Europe
One thing that really shouldn't surprise me is the confusion about how the European Court of Human Rights works and the associated institutions.
The issues of Privacy Law and Prisoners Voting are two issues where this confusion is creating a lot of tension.
The European Court of Human Rights is guided by a number of international treaties including the Convention of Human Rights and its protocols. However, it is also guided by the resolutions of the Council of Europe parliamentary assembly.
The Council of Europe contains delegations from all of the Council of Europe Countries. Many countries don't have prisoner voting. It is, therefore, entirely straightforward to propose a resolution in the CoE that if convicted prisoners do not have the vote that this should not be treated as a contravention of Article 3 Protocol 1.
Similarly resolutions of the CoE guide privacy law.
There are some useful extracts: From 1970 C. Measures to protect the individual against interference with his right to privacy
1. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights. The exercise of the former right must not be allowed to destroy the existence of the latter.
2. The right to privacy consists essentially in the right to live one's own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications, protection from disclosure of information given or received by the individual confidentially. Those who, by their own actions, have encouraged indiscreet revelations about which they complain later on, cannot avail themselves of the right to privacy.
3. A particular problem arises as regards the privacy of persons in public life. The phrase "where public life begins, private life ends" is inadequate to cover this situation. The private lives of public figures are entitled to protection, save where they may have an impact upon public events. The fact that an individual figures in the news does not deprive him of a right to a private life.
4. Another particular problem arises from attempts to obtain information by modern technical devices (wire-tapping, hidden microphones, the use of computers etc.), which infringe the right to privacy. Further consideration of this problem is required.
From 1998 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people's private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society — in many cases by choice — automatically entails increased pressure on their privacy.
7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.
8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.
9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.
10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.
11. The Assembly reaffirms the importance of every person's right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.
12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.
13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.
14. The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines:
i. the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;
ii. editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;
iii. when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned;
iv. economic penalties should be envisaged for publishing groups which systematically invade people’s privacy;
v. following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited;
vi. a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used "visual or auditory enhancement devices" to capture recordings that they otherwise could not have captured without trespassing;
vii. provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy;
viii. the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published.
There are two interesting arguments in this judgment - which relates to an interim gag.
Paragraph 10. In my judgment the appellant was reasonably entitled to expect that his colleagues would treat as confidential the information they had acquired whether from their own observation of the behaviour of the appellant and X or from tittle-tattle and gossip which larded the office conversation or from a confidential confession to a colleague. A reasonable person of ordinary sensibilities would certainly find the disclosure offensive.
This is an interesting paragraph as it implies that those people who discuss work gossip with people outside the workplace become liable to pay damages to those that the gossip relates to. I am not sure that people will like this change to the law (and/or clarification)
Paragraph 17. The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity.
The UN Charter for the child is then used to justify a gag. This could, of course, apply in other circunstances.
What is happening is that privacy law has now been extended further into ordinary life.
posted by John Hemming
¶ 10:16 a.m.0 comments
Monday, April 18, 2011
Quaero Injunctions and the Inquiry
John Hemming MP, who is campaigning against excessive and unlawful court secrecy, has launched an inquiry in parliament into the growing numbers of gagging orders.
"I will be collecting a range of different gagging orders," he said, "and then analysing and sorting them into different categories. I will then produce a number of parliamentary petitions summarising the details and pass them to the Justice Select Committee for further investigation."
"What is clear," he said, "is that almost all of the super and hyper injunctions have no public judgment. That means that they are not compliant with the rules for a fair trial. There is also the question as to whether there should be an automatic time limit on an interim order. Many cases have an interim order and no final hearing. This is clearly wrong. We also need to know what the costs are both for the applicant and for the media in defending these orders. It is wrong to have a system whereby people can buy the sort of justice they want. That is a contravention of Clause 29 of Magna Carta 1297 (which is still in force)."
"A good example of an injunction that is handled properly is that relating to ZAM and CFW/TFW. This is accompanied by a published judgment. However, what is not in the published judgment is the amount of costs awarded although the fact of the awarding of costs is in the judgment. The judgment should reveal the amount of costs as well."
New type of injunction - the Quaeroinjunction
Mr Hemming has also revealed a new type of injunction against investigative journalism. "I have recently seen a gagging order that prevents people seeking information about a case from the parties. This goes a step further than preventing people speaking out against injustice. It also puts any investigative journalist at risk if they ask any questions of a victim of a potential miscarriage of justice.
"I call this the the Quaeroinjunction, after the latin work "to seek". I don't think this should be allowed in English courts. It has the effect of preventing journalists from speaking to people subject to this injunction without a risk of the journalist going to jail. That is a recipe for hiding miscarriages of justice."
"Anyone who has a gagging injunction that they would like to go into this proceeding in parliament should post it to me at John Hemming MP, House of Commons, London SW1 0AA."
Hyperinjunctions and Secret Prisoners talk This video was done on my mobile phone with it sellotaped to a stand. I found out that when someone phoned me 15 minutes in it stopped videoing.
Hopefully the Freedom Association will have a better video available later.
posted by John Hemming
¶ 7:15 p.m.0 comments
Friday, April 08, 2011
DOLS and the mess of the court of protection
The link is to a good article about the problems with the Deprivation of Liberty Safeguards. The problem is that the system is so expensive to operate that the people processed by it have little chance of getting sensible responses (although the court of appeal on this occasion almost uniquely has allowed a second opinion).
posted by John Hemming
¶ 6:57 p.m.1 comments
Thursday, April 07, 2011
Hyperinjunctions - today's press coverageDaily Mail
The rights to communicate with members of parliament
There have been discussions about whether there is a domestic precedent whereby the right to talk to MPs about issues of public interest is protected by parliament. This already happens in Australia.
The following case from the parliamentary journals in 1699 is exactly that. John Kelly provided information about malpractise to a number of MPs. That was not provided as part of a petition, but merely as a summary of a problem. He was then jailed. Parliament investigated the situation.
That is the stage I have reached with my request for parliament to investigate hyperinjunctions.
There are other examples from the 1600s and 1700s on my flickr account and a summary follows the image.
Parliamentary Privilege has been primarily applied to protect members. That is because most actions which would be in contempt of parliament will directly affect members. There are, however, a number of instances where non-members have been protected by parliamentary privilege.
The use of privilege to protect witnesses at Committees is well known. However, there have also been a number of cases where parliamentary privilege has been used to protect non-members who are providing information to Parliamentarians. Documentary evidence from the parliamentary journals is attached.
In 1624 the Master of the Felt-makers was arrested whilst attending The House to prefer a petition. The House considered he had protection of the house to prefer the petition and established a committee to consider whether the arrest itself was a breach of privilege. (I 766)
In 1696 Thomas Kemp and other Hackney Coachmen were arrested as a consequence of proceedings by Richard Gee, a Commissioner of Hackney Coaches. The House concluded that Mr Gee was guilty of a breach of Privilege and guilty of a high misdemeanor and was to be imprisoned by the Serjeant. (XI 599, 699)
In 1699 John Kelly was imprisoned in consequence of having given Members and abstract of several articles against the Commissioners of Victualling. That was referred to the privileges committee (XIII 224)
There have also been many actions to protect letters written to Members and from Members from being opened or diverted. In 1666 Edward Roberts was imprisoned for trying to charge for letters. In 1689 a case was referred relating to Hull. In 1689 it was resolved that “breaking open Letters directed to or sent from Members is a breach of Privilege;”
What is important about this is that it demonstrates that private communication between citizens (or subjects) and members of parliament does have a limited privilege. Any attempts to prevent this communication are, therefore, a Contempt of Parliament.
posted by John Hemming
¶ 6:52 a.m.0 comments
Tuesday, April 05, 2011
R v SUSSEX JUSTICES ex p McCARTHY  1 KB 256
I have only just found this one which I think is accurately reported below (but if it is not please give me an accurate report).
KING’S BENCH DIVISION
R v SUSSEX JUSTICES ex p McCARTHY  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.
LORD HEWART CJ: It is clear that the deputy clerk was a member of the firm of solicitors engaged in the conduct of proceedings for damages against the applicant in respect of the same collision as that which gave rise to the charge that the justices were considering. It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices’ affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction. In those circumstances I am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. On the facts I am satisfied that there has been no waiver of the irregularity, and, that being so, the rule must be made absolute and the conviction quashed. LUSH J: I agree. It must be clearly understood that if justices allow their clerk to be present at their consultation when either he or his firm is professionally engaged in those proceedings or in other proceedings involving the same subject matter, it is irrelevant to inquire whether the clerk did or did not give advice and influence the justices. What is objectionable is his presence at the consultation, when he is in a position which necessarily makes it impossible for him to give absolutely impartial advice. I have no doubt that these justices did not intend to do anything irregular or wrong, but they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room. The result, there being no waiver, is that the conviction must be quashed. SANKEY J: I agree.
What I find sad is the way in which standards of justice have been allowed to slip and conflicts of interest are basically ignored much of the time (particularly in the secret courts)
posted by John Hemming
¶ 6:10 p.m.0 comments
Commissioning and the NHS
In all the discussions about the NHS it does appear that one thing is clear. We need to avoid the NHS being subject to EU Competition Law. This is the argument I have been putting. The danger is that commissioners are forced to accept tenders that they don't want to accept because of external pressure. It is that key distinction that changes the system from as it has been described as an internal market to an external market.
I do think progress is being made on this issue. However, cast iron certainty is needed for the bill to progress (which in part is why it is currently parked in a siding).
posted by John Hemming
¶ 7:36 a.m.1 comments
He finishes: On a wider front, if the Judges themselves do not get a grip and stop the tide of draconian orders which threaten to undermine fair reporting and free speech, Parliament must act to re-assert its Sovereignty. Lawyers and judges like to think they are the bastions of freedom. In this case they are acting to suppress those freedoms. They must be checked now.posted by John Hemming
¶ 10:04 a.m.0 comments
This was an application for (in this case) a father to pay a capital sum in support of his child under Schedule 1 of the Childrens Act 1989. This is an area of law that is not in any way well known.
As with many areas of family law it leaves far too much to the discretion of the judge. Going back to my previous post about law. Law involves a system of rules which really should be interpretable the same way by any reasonable person with proper knowledge. Much of family law in the UK does not work this way.
However, I think Mrs Justice Baron has done a good job with a very clear judgment.
This is a good example of how article 6 can be satisfied and the family justice system made more transparent without having to identify anyone.
The review panel consisted substantially of people who run the service rather than people who have experience of how it does things. Hence they are likely to endorse much of the current processes.
The concept of bringing everything into a "Family Justice Service" is basically moving the deckchairs on the titanic.
Not allowing independent social worker assessments is a step backwards towards simply rubber stamping the views of the local authority and guardian ad litem. A better approach would have been to scrap the GAL and instead have an independent assessment. This would have reduced costs and increased independence.
Potentially there is an improvement in the way experts are handled, but I have little confidence in the system.
Contrary to press reports there are no proposed improvements for grandparents contact.
I would think actually the proposals would increase costs generally and, therefore, I would not think the government would respond to it positively.
Now is not the time for a massive re-organisation.
There is also nothing really about improving contact in private law cases.
Hence there is no real response to any of the external criticism, plus a bit of deterioration in the way in which it operates quality control.
Hence although I will look at it further when I get some time I expect to campaign against the proposals en masse.
They don't even try to produce a recommendation about transparency although the following comment is in the report:
"In our view, based on our limited consideration of the issue, the general principle should be that people – including the media – should be able to attend court hearings but not be allowed to do or say anything that might identify the parties in public."
That would, of course, be an improvement. What is needed is for the proceedings to be reportable anonymously. That is actually a big step forward. There should be a court application to identify parents or children, but otherwise reporting should be free. Experts, however, should be identified (which the report argues against).
posted by John Hemming
¶ 12:18 p.m.0 comments
Finney will now stand trial in June, along with another man who cannot be named for legal reasons.posted by John Hemming
¶ 11:10 a.m.0 comments
Backing for campaign from Observer ArticleHenry Porter in The Observer has also come out in support of the campaign against hyper injunctions.
"MPs are rightly alarmed by the encroachment on parliamentary privilege but they should now take the hint that this is a matter for them. We need a commission to investigate the interests of privacy and freedom of speech and a commitment from the government to act on its findings in a way that preserves so many different virtues of British life. It will be terribly hard but parliament needs to concern itself with more than the day-to-day argument over cuts and this issue is crying out for a creative and intelligent collaboration from all our legislators."posted by John Hemming
¶ 9:15 a.m.0 comments
Saturday, April 02, 2011
Times backs campaign against Hyperinjunctions
The Times Editorial, behind the paywall, has come out against hyperinjunctions. The editorial is a good general one, but I quote from the last paragraph.
"When recently giving the annual lecture to the Judicial Studies Board, Lord Neuberger of Abbotsbury, the Master of the Rolls, acknowledged concerns about how superinjunctions had developed into an “entirely secret form of procedure”. The courts have pitched themselves against the free press, the rights of Parliament and, worst of all, sided with the privileged few against the public. Injunctions; superinjunctions; now hyperinjunctions. A handful of judges, unelected and uncontested, are creating a culture of secrecy in Britain."
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