John Hemming's Web Log John's Reference Website
Wednesday, August 07, 2013
  Mike Clarke and his mother Ann (on the run in Spain)
Mike Clarke has been on the run in Spain for some time. He was on the run because he was given a 3 month prison sentence for contempt because he failed to remove what he put on the internet relating to a court of protection case. Since that point (and I am not sure when this happened) the judiciary have published a number of judgments relating to his case. There is a court of appeal case:
Re_Clarke_(2013)_EWCA_Civ_811,_(2013)_MHLO_52
And a number of COP cases:
[2012] EWHC 2947 (COP)
[2012] EWHC 2714 (COP)
[2012] EWHC 2256 (COP)

What is interesting is that the judgment relating to his imprisonment (which should have been public in any event) has not been published.

Contempt of court is not an extraditable issue. However, at the moment he is a bit stuck in Spain and unable to return to the UK. I do personally think there should be a published judgment explaining why he was imprisoned. The new practice directions require this (I accept the case happened before the issuance of the new PD, but after the imprisonment of Wanda Maddocks). There also needs to be a way forward without public funds being wasted on imprisoning someone where it is difficult to see the public interest in imprisoning him.

Summary from the judgments I have extracted some elements from the judgments.
3. The background is that in 1995, Mrs Clarke suffered serious injuries, including brain injuries, in a road traffic accident. She later received damages of £775,000, calculated on the basis of a life expectancy of 70. Mr Jones was appointed as receiver because Mrs Clarke's children could not agree who should be appointed to administer this fund.
7. Since the beginning of 2010, Michael Clarke has carried on an online campaign against the Deputy, the Office of the Public Guardian and the Court of Protection. He has routinely placed copies of confidential documents and expressions of his strong opinions on a website.
11. Capacity assessments of Mrs Clarke have been performed by Dr Donna Schelewa, Consultant Clinical Psychologist. She examined Mrs Clarke in December 2010 and found her to have neurological deficits predominantly characterised by very poor verbal expressive skills (dysphasia). She nonetheless concluded that Mrs Clarke had the capacity
to decide where and with whom to live
to manage a small income
to make a will
to appoint Michael Clarke to act as her deputy
to give her house to Michael Clarke
13. On 16 November 2011, the present application was issued and directions were given by the court. Michael Clarke immediately objected to the lawfulness of the proceedings on the basis that they have no legal authority. It is his fixed view that "statute law" has no effect and that the matter must be decided under "common law".
20. On 2 July, Dr Waite assessed Mrs Clarke and wrote a report. He diagnoses cognitive impairment following brain injury and ischaemic brain damage (ICD 10 F07.8). He advises that Mrs Clarke has severely limited abilities to manage her finances and that she cannot manage her financial affairs generally
She cannot manage her day to day financial affairs
She cannot understand and use information about transferring her property to Michael Clarke during her lifetime
21. Dr Waite further concludes that
While there is no doubt that Mrs Clarke trusts Michael Clarke and wants him to act on her behalf in the management of her financial affairs, it is not possible to assess the level of influence that Mr Clarke has over his mother on a single visit: this would require an extended period of separation that is not in her best interests.
22. Similarly, the possibility of undue influence upon Mrs Clarke cannot be confirmed or excluded on the basis of his assessment.
Dr Waite also says that
Mrs Clarke clearly wishes to bequeath her Blackpool property to Michael Clarke, understanding that, by doing so, she will not leave anything to her other children or her grandchildren. He believes that she would have the capacity to make a will for this purpose.
27. The Deputy said that the question now is whether the property should be sold. If it is not, there is no purpose in the deputyship. If it is, he would be prepared to continue to act at a proportionate fixed cost.
(from another judgment)
IT IS ORDERED THAT
The costs of Ms Angela Wilde and Mr Kevin Clarke and of the Deputy shall be charged to the estate of Mrs Ann Clarke.
Pursuant to CPR Rule 164:
(i) The costs of Ms Angela Wilde and Mr Kevin Clarke are summarily assessed at £3500 + VAT;
(ii) The costs of the Deputy are summarily assessed at £7000 + VAT.
The issues
The issues are more issues with the way the law works rather than necessarily issues with the judges interpretation of the law.
The first issue, which is common in cases like this, is that the Deputy (previously a Receiver) has total control over the finances. That also means control over any funds requested to prove that someone has capacity. (this creates a conflict of interest in that the deputy can refuse to facilitate a challenge to the deputy's control of the estate)
The second issue is the question as to what controls there are or accountability in terms of what the Deputy charges the estate. I have not found OPG to be that good in other cases.
The third issue is whether Mrs Clarke had sufficient capacity to discharge the deputy at an earlier stage or not. Evidence exists to state that she did, but it was not considered in these judgments.
The fourth issue is that the estate pays the costs of the deputy when the deputy is discharged even though the deputy opposes the application.


An additional point to note is under the para 13 above. There are a number of people who argue against the sovereignty of parliament and statute law. They argue instead for what they call common law and the Magna Carta. There is a fundamental flaw in their arguments in that Magna Carta is itself statute law and not common law. What is left of it can be found on the legislation website here. There is a good argument for the extension of jury trials to cover more circumstances (particularly public law family proceedings). However, the arguments put forward by the "Freeman of the Land" achieve very little. I can understand people getting to despair about how the courts when it comes to matters like this. However FMOTL is flawed. I have never seen anything good come out of this in any case. I have even seen a case where someone's mental capacity was removed following arging a FMOTL case.

In the mean time Mike and Ann Clarke are stuck in Spain.

 
Comments:
Dear John

I QUESTIONED YOUR STATEMENT THAT MAGNA CARTA WAS A STATUTE AND GOT THIS REPLY NOW OBVIOUSLY AS WE ARE TALKING ABOUT THE TREATY OF 1215 CAN YOU PROVIDE ME WITH AN ANSWER TO THAT WRITTEN BELOW?

There have been many so-called Magna Cartas.
The first one, and only one that has any validity, was NOT a Statute but a Treaty. It was made on June 15th 1215, at Runnymede, between the Barons & King John. It said, very plainly, that (a) It lasted ‘for ever’ and (b) Anything attempting to supersede was always null & void.
Being a TREATY, and not a STATUTE, it could not be ‘repealed’.
The first Parliament didn’t come into existence until 1295 – some 80 YEARS later – thus the Magna Carta 1215 couldn’t have been a Statute enacted by any Parliament.
But - as has been said – there have been many attempts to create ‘subsequent’ Magna Cartas. In 1216, in 1225 and in 1297 (the last being the Magna Carta Statute … to which John Hemming is referring). As has been said, above, ALL of these subsequent ‘attempts’ were immediately null & void … by virtue of the TREATY of 1215.
That’s why one ALWAYS refers to The Magna Carta 1215” and NOT to simply “The Magna Carta” … the latter allowing those who are ignorant of history to dismiss “The Magna Carta” as ‘a Statute that has been repealed’.
The FACTS are:
1. The TREATY of 1215 ‘repealed’ every attempt - that followed - as null & void anyway.
2. The TREATY of 1215 stands as a backstop to EVERYTHING … INCLUDING the creation of Parliament in 1295 - which was (therefore) created UNDER … and is ALWAYS subservient to – The Magna Carta 1215
3. The TREATY of 1215 is quoted – by Halbury’s Laws of England – as “the founding document of the British Constitution”. Like most Politicians, John Hemming has (therefore) no real knowledge of the British Constitution (as evidenced by his remarks). And therefore no REAL knowledge of this REAL job, and REAL status. There are iron cast arguments, based on logic & reason, that no Parliament has (or could have had) any validity whatsoever … let alone any claim to be ‘sovereign’.
4. Halsbury’s DOES NOT refer – in any way – to the look-alikes that followed … for the reasons (one assumes) given above.
5. For John Hemming’s view to be correct, the year 1297 needs to have come BEFORE the year 1215.
6. The Common Law has been existence since the dawn of man, because it is nothing more than ‘the common sense of man, creating law – for each circumstance - via a jury of 12 people using their innate common sense’.
7. It’s always worth asking “If Politicians & Judges can make Law … then why do we go to the enormous expense of Juries?”
Not knowing these fundamentals, and not having them one’s fingertips, will lead someone into serious trouble.


 
There are a number of good history sources on the net. I am not going to deal with all of the errors in your informant's comments.

Here is a good look at the issue. There are many others.
 
ROGER HAYES - BRITISH CONSTITUTION GROUP CHAIRMAN
John Hemmings is an MP... his job relies on the supremacy of statutes (Acts of Parliament) - he would say that wouldn't he. Magna Carta was a treaty between the people and the Monarch... it was copied and taken into statute law... and then much of it repealed - but this had no impact on the original... which was outside the jurisdiction of parliament - it had nothing to do with them and they could not therefore have any hand in changing it or deleting parts of it. The claim that Magna Carta has been revoked is a political ploy... a power grab to centre all the power with politicians. Magna Carta is NOT statute law... this claim is 100% rubbish and confirms my suspicions about John Hemmings.

He goes on to say that the Freeman-on-the-land ideal is flawed.. because he has never seen anything good come out of this... because we are fighting the corrupt system... and yet the 'legal fiction' entity is never denied in court... they are scared that this will spread becasue it entirely undermines their authority... and rightly so - they are all corrupt.

Key points - Magna Carta the original remains in tact... it is common law not statute law. The 'copy' which was statute law has been revoked... but this is of no consequence to the original. Common law is superior to statute law, not the other way around as the legal profession would have us believe... and commercial liens are their worst night mare - when we can enforce them.

The real Magna Carta was 1215 - not 1297. Importantly Magna Carta is based on the earlier Charter of Liberties - 100 years earlier - about the Liberties of England... i.e. 197 years before the parliaments version.

My rule of thumb... if a politicians says it - take it with a big poinch of salt - they always have an agenda... and it is usually self-serving
ROGER HAYES - BRITISH CONSTITUTION GROUP CHAIRMAN
 
This comment has been removed by the author.
 
It is, of course, possible to divide a post into a number of segments under 4K.
 
AUG 13 2013

READ about
DEMOCRACY DEFINED in a follow up email to John Hemming
 
British Constitution Group CHAIRMAN
Roger Hayes said today 17/08/2013
‎John Hemmings 'a charter that lasted for 3 months' really! He is talking through his political backside' he ignores the Charter of Liberties which was the basis on which Kings became Kings... year 1100 - it was a contract with the people well before Magna Carta 1215. Magna Carta 1215 was a restatement of the Charter of Liberties. The trouble with politicians is that they will not accept the authority of the people over them... they insist that they have authority over the people because they have been elected... and they claim that this authority exists without constraint... they have forgotten (conveneniently) that they govern by consent... and they have also fogotten that they 'serve' they do not rule. Politicians frequently refer to themselves as having been elected into POWER.... this is typical... they are elected into OFFICE. Politicans egos are getting in the way of the facts and that is why we are in the mess we are in - bevause of politicians. They need to get back in their boxes and understand that we elect them to serve in office we do not give them power to rule... and they are there to serve under the rule of law - which includes our consititution and Magna Carta of 1215 - if they do not like it... they should leave office and go and sweep our streets - do some good.
Roger Hayes
 
Jim Grant of Radio Lewes interviews Roger Hayes and describes how a Judge & court has ring fenced themselves in protection where there is a memorandum of agreement between the police and the courts. In this video Roger Hayes describes his appearance in my court case on the 13th January 2013 and where all our evidence and representation was thrown out & where JUDGE PELLING should be THE ONE in prison. Published on 26 Jan 2013
BEYOND THE NEWS 23rd January 2013 - Radio Lewes - In part one of this three part interview series Roger and Jim discuss the lack of due process of law, an update regards the developments since Rogers unlawful arrest and imprisonment in 2012, recent dealings in the High Court (Manchester) with other significant cases and the use of tactical methods, the power of the term - consent. Banks - RBS and its recently announced losses and the collapsing banking sector. The issuance of debt free money and more... https://www.youtube.com/watch?v=mY6H6oZId30
 
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