MOD to be sued for Nimrod disaster

28 December 2008 at 12:29 | In Civil Law, Human Rights, Politics | Leave a Comment

The Ministry of Defence (MOD) is to be sued by the families of two of the fourteen who perished when a nimrod plane exploded in the skies of Afghanistan in September 2008.

The MOD are accused of negligence, failing to minimise risk and a breach of the right to life.  This will be the first time that the MOD has faced a challenge under the European Convention on Human Rights and Fundamental Freedoms.

In May, a coroner ruled the Nimrod fleet had never been airworthy. The MoD said it had already planned to compensate families of the servicemen.  The coroner also said the fleet, based at RAF Kinloss in Moray, should be grounded.

If the action is successful it could pave the way for further such actions.

Lockerbie Appeal

27 December 2008 at 12:17 | In Criminal Justice, Criminal Law, Scots Law | 2 Comments

On 21 December 2008 we saw the twentieth anniversary of the Lockerbie bombing.  In the lead up to that anniversary there have been many twist and turns in the story that is the second appeal by the man convicted of this atrocity, Abdelbaset al-Megrahi. 

On the very day of the anniversary there were reports of new forensic evidence, which if true would cast the conviction of Megrahi into severe doubt.  New forensic analysis on a fragment of the timing device alleged to have triggered the bomb that brought down Pan Am jet 103 is said to have found no trace of explosive residue.

The legal team acting for Megrahi will present this evidence at his forthcoming appeal.  They say that this evidence supports claims that the timer was planted by the UK as a way to incriminate Libyan leader Colonel Gaddafi.

Decisions have still to be made on the issue of Public Interest Immunity regarding some documents held by the Crown relating to the case.

This case has made a mockery of Scottish Justice from start to finish.  If this was a politically motivated move against Gaddafi then the world should know about it so the process of rebuilding confidence in the Scottish Criminal Justice system can begin.

Festive Drink Drive Campaign

27 December 2008 at 00:32 | In Criminal Justice, Criminal Law, Legal System, Politics, Random | 1 Comment

Every year police forces up and down the country have an annual drink-drive campaign and each year the number of people stopped and found to be over the limit is an astonishing one.  Strathclyde Police reported that in the second week of its 2008 festive campaign some 80 motorists (65 men and 15 women) were arrested by its officers.

Driving having drunk alcohol is a rather stupid thing.  Many people who drink and drive know that they are over the limit when they get behind the wheel of the car, but do so out of complete disregard for the safety of others.  It is a selfish act which causes so much misery up and down the country every year.  Cars are lethal weapons whether people like it or not and as such should be treated with care.  Those who commit the offence of driving whilst over the limit are selfish people who deserve everything that the law throws at them.  Drivers should also remember that if they’re caught and convicted the ramifications of such a conviction have effects for not only themselves but those close to them.  Jus think about those consequences and if that doesn’t stop you then just think how you would feel if you killed someone whilst driving because you had drank.  If that doesn’t stop you then you are clearly a selfish individual who should not be driving a car at all.

Just think, DON’T DRINK AND DRIVE!

 

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Human Rights Act Flawed

26 December 2008 at 13:27 | In Civil Liberties, English Law, Human Rights, Legal System, Scots Law | Leave a Comment

I was reading in a newspaper at work recently about comments made by the Justice Secretary, Jack Straw MP, with regards to the Human Rights Act 1998.  The newspaper in which I read these comments will remain nameless (generally because I despise this particular paper and the title of the paper is irrelevant).  This particular Newspaper campaigns for the complete removal of the Human Rights Act, something which I fundamentally disagree with (as regular readers of my blog will know).  What I do agree with though is that the Human Rights Act is flawed (but that is no reason to abolish the concept of Human Rights entirely).

The Human Rights Act needs tweaked with in order to widen its scope, to help judges to interpret it and to make its application relevant to the wider population.  As it stands those who benefit most are those who are already on the wrong side of the law.  Those on the wrong side of the law are, in my opinion, still entitled to the majority of their Human Rights.  Of course in order to deal with dangerous offenders who are unable to be part of a civilised society we have to remove some of their basic rights such as their right to liberty.

One way to make the Human Rights Act more applicable to the wider society would be to amend it including aspects of the Universal Declaration of Human Rights 1948 (among other International Treaties).  The UDHR is a wider treaty that covers many more areas than the European Convention on Human Rights and Fundamental Freedoms 1950.  The two treaties combined would strengthen the Act and at the same time make it more widely applicable.

In my opinion the inclusion of Articles 25, 26 and 29 of the UDHR would strengthen the HRA fundamentally.  Article 25 reads:

  1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
  2. Motherhood and childhood are entitled to special care and assistance.  All children, whether born in or out of wedlock,  shall enjoy the same social protection.

Article 26 reads as follows:

  1. Everyone has the right to education.  Education shall be free, at least in the elementary and fundamental stages.  Elementary education shall be compulsory.  Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
  2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.  It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
  3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 29 reads as follows:

  1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
  2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
  3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

 I have chosen these three articles for very specific reasons.  Largely the rights that they protect are ones already enjoyed by those living within the United Kingdom.  People take such things for granted, but forget that they are not things to be taken for granted.  For example, in the UK we have the right to free Health Care through the National Health Service.  However, within living memory there was no such thing as the NHS and people were being denied he most basic of healthcare.  By incorporating such rights into the Act it makes it applicable to everyone in society and will help to reduce resentment towards something that is important and fundamental to a democratic society.

Santa ignores right to refund

25 December 2008 at 15:29 | In Civil Law, English Law, Legal System, Random, Taking the piss | Leave a Comment

Santa Claus’s failure to alert children to their rights to full refunds within seven working days under the Distance Selling Regulations is in breach of those rules, an expert has warned.

Gifts specialist Claus has already failed to respond to accusations that his data protection policies are putting children’s personal data at risk.

“Under the Distance Selling Regulations anyone taking orders in the post as Santa does has certain obligations,” said Struan Robertson, e-commerce specialist at Pinsent Masons.

“Children have a right to reject the gifts they requested and receive a full refund within seven working days. If he does not provide lots of information about the child’s purchase when making his delivery then that period can be extended by up to three months,” said Robertson.

“All they have to do is cancel their contract, and I imagine a follow-up letter up the chimney should do it. He must also tell children that they have this right, which he plainly doesn’t,” he said.

Under the Distance Selling Regulations, Claus is obliged to provide children with details of the price of the goods delivered, something which is to most people not in the spirit of Christmas. A source close to the Grotto said that Claus was simply unprepared to bend to that rule.

“Santa says he takes the hit on that one every year, giving canny kids the chance to get refunds because he’s failed in the information he supplies,” said the source. “But what good is a Santa with price tags? It’s just not Christmas.”

For the laws to apply there must be a contract in place, but Robertson said that this was almost always the case. “The letter up the chimney is clearly an offer, the delivery of the goods is acceptance. Under English law there also must be a form of consideration, which the glass of brandy and carrot clearly qualify as,” he said. “It does mean, of course, that the less generous household which leaves nothing for Santa or the reindeer is left without adequate consumer protection, which seems oddly just.”

OUT-LAW can also reveal that Claus is likely to be in breach of one company’s trade mark with his gift distribution enterprise. ‘Santa Claus of Greenland’ has a trade mark over that term in relation to games, playthings, sports goods, decorations for Christmas trees and the regulation and control of electricity, amongst other things.

“This is a clear case of infringement,” said David Woods, a litigation specialist at Pinsent Masons. “True, Santa is from Lapland not Greenland, but I think that you could make the case that the level of general ignorance of geography is such that confusion would be created by Santa’s trading under the name Santa Claus.”

Merry Christmas

25 December 2008 at 00:05 | In Random | Leave a Comment

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Just a quick blog entry to wish you all a very merry Christmas!  Have a good day and don’t eat/drink too much.

 

 

Should life mean life?

18 December 2008 at 16:22 | In Criminal Justice, Criminal Law, Legal System, Scots Law | Leave a Comment

The Lord Advocate, Elish Angioloini QC, yesterday reopened the debate on whether a life sentence should actually mean life or not. The Lord Advocate urged judges to increase the minimum jail term for murderers and to impose whole life sentences on the worst offenders.

The Lord Advocate reopened the debate over whether life should mean life in a plea at the Court of Criminal Appeal in Edinburgh during two cases where the Crown is seeking longer sentences. She also highlighted the need for the judiciary to recognise Scotland’s “endemic knife culture”.

The Lord Advocate’s comments came on the same day that Justice Secretary Kenny MacAskill confirmed plans which would effectively ban prison sentences of six months or less unless sheriffs state why they are using them, and just days after the association for high court judges and sheriffs accused the Scottish Government of challenging their independence through proposals for a formal sentencing guidelines council.

Ms Angiolini’s contention emerged as she put the Crown case in the two murder appeals in which it claims the minimum term, known as a punishment part of a life sentence which a prisoner must serve before becoming eligible to seek parole, was too low. However, Donald Findlay, QC, told the court the Scottish criminal system placed its trust in the trial judge to deal with a case, subject to possible review by the appeal court.

He said:

What the Crown are seeking to do, I would wish to argue, is to politicise that and introduce a political element that this court should not be prepared to allow.

I fundamentally believe that the judiciary should have two options when sentencing people for murder. In my opinion judges should have the option to sentence an offender to “life imprisonment without parole”, especially in cases where the offender is guilty of more than one murder as well as the option to sentence a person to life imprisonment and a minimum term that they must serve before they are eligible for parole.

Rwanda genocide mastermind jailed

18 December 2008 at 15:02 | In Criminal Justice, Criminal Law, Human Rights, International Law | Leave a Comment

Following his trial and conviction at UN Tribunal Theoneste Bagosora has been sentenced to life imprisonment. Bagosora was convicted of instigating Rwanda’s 1994 genocide.

Bagosora led a committee that plotted the massacre of ethnic Tutsis and moderate Hutus.

It is the first time the Rwanda tribunal has convicted anyone of organising the killings.

The genocide in Rwanda claimed the lives of more than 800,000 people.

Along with Bagosora, former military commanders Anatole Nsegiyumva and Alloys Ntabakuze were also found guilty of genocide, crimes against humanity and war crimes, and given life sentences.

The defence lodged by Bagosora and his co-defendants was that the killings were not organised and therefore did not amount to genocide. This defence was rejected by the International Criminal Tribunal for Rwanda (ICTR), based in Tanzania.

Bagosora is expected to appeal against the guilty verdict.

Aggravated offences

16 December 2008 at 11:36 | In Criminal Justice, Criminal Law, Legal System, Scots Law | Leave a Comment

I was on the official website of the Scottish Parliament today to get the latest on the Sexual Offences (Scotland) Bill and came across a Bill that I had not heard of prior to today.

The Offences (Aggravation By Prejudice) (Scotland) Bill was introduced to the Scottish Parliament on 19 May 2008 by Patrick Harvie MSP. The aim of the bill is to make provision about the aggravation of offences by prejudice relating to disability or to sexual orientation or transgender identity.

This subject, while unaware of a bill on it, has entered my mind many times before. Personally, I am against aggravated offences. Why do we need aggravated offences, what purpose to the serve? Some are introduced to bring equality to the system, but I fail to see how this makes the system more equal. Surly a serious assault is a serious assault and regardless of its motivation should be taken just as seriously as any others serious assault? Why should a serious assault be taken more seriously if it is deemed to be racially motivated or motivated by a persons sexual orientation than if it was just some random attack or the motivation was that X had slept with Y’s wife?

This really confuses me. Opinions are very welcome.

Review ordered for Civil Appeals

16 December 2008 at 10:49 | In Civil Law, Legal System, Scots Law | Leave a Comment

The Constitutional Reform Act 2005 establishes a UK Supreme Court to remove the judicial functions from the House of Lords. This court is due to come into operation sometime in 2009.

This particular reform has implication for Scots Law as currently the highest court of appeal for civil cases is the House of Lords and the Judicial Committee of the Privy Council hears devolution minutes raised under the Scotland Act 1998.

The Scottish Government has ordered a review of how this will affect Scots Law. The review is to be conducted by Professor Neil Walker of Edinburgh University. Professor Walker will report to the Justice Secretary, Kenny McAskill MSP, by November 2009 (probably after the court has come into operation).

Mr McAskill said,

The establishment of a UK Supreme Court is an important constitutional reform.

It is entirely appropriate that the implications of these changes for the distinctive Scottish legal system are considered in full, in Scotland, and at this time.

Changes to strengthen judicial independence have also been introduced recently by the Scottish Parliament, and it is important to ensure that such significant constitutional changes are compatible with each other and do not compromise the Scottish legal system’s distinctiveness or its full fitness for purpose.

Indeed this is an important constitutional reformfor Scots Law, but does it really require an expensive, year long investigation and report by a top professor from Edinburgh University? Just now I cannot see how much value the report will have, but it will certainly make for interesting reading when it is finally published.

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