We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.
Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]
And if you like the idea that a comedian convicted a making a joke in bad taste and fined £800 by a Scottish court could end up making a tidy profit, you might want to drop your mouse on this link and send him some money. I did 😀
Help Markus stop a truly terrible precedent being set and help fund the appeal. If there is any money left over, he promises to invade the Sudetenland.
44 comments to Some wise & measured commentary from Count Dankula…
If Parliament can pass any “law” it feels like (as Sir William Blackstone claimed – much to the horror of the American Founding Fathers), and if there are no fundamental rights (as both David Hume, politely, and Jeremy Bentham, very bluntly, stated) then there is no basis for Freedom of Speech or any other restriction on government power.
John Stuart Mill tried to square the circle by producing a utilitarian argument for Freedom of Speech (the famous “On Liberty”) – but he continued to cling to the philosophy of Jeremy Bentham and the view of what a human is (that humans are non beings) of David Hume (what he called the “light of Hume” – denying the existence of the soul in both the religious and the secular Aristotelian sense) and even accepted much of the philosophy of Thomas Hobbes.
One looks in vain for supporting references to (for example) the work of Ralph Cudworth (who so influenced the Old Whigs) or Thomas Reid (who supported the traditional Whig philosophy against the attack upon it by David Hume) in the work of J.S. Mill – his defence of Freedom of Speech is, essentially, that we should AS-IF there is a right to Freedom of Speech (even though, to him, there really is not – indeed there are no fundamental rights at all, and no Natural Law, and no human beings, in the traditional sense, of “human beings”). As James McCosh pointed out at the time (and Ayn Rand pointed out a century later) the philosophy of Mr Mill really undercuts his politics – he intends to defend Freedom of Speech and other basic liberties, but the philosophy he is committed to (especially its conception of what a human is) must, in the end, destroy liberty.
The British establishment and British (including Scottish) courts believe that “law” is about creating a mindless population (formally speaking they do not actually believe the human mind even exists – we just think-that-we-think, the “I” is an “illusion” – they get this stuff from Hume and his Legion of followers), docile and content. Anything that disturbs the cattle (which is what they think humans are – following Jeremy Bentham or even Thomas Hobbes) must be BANNED, and people (or rather the human shaped non people they believe us to be) must be taught (partly by “education” – Andrew Marr style “education”, and partly by criminal punishments), not to have the wrong thoughts (a thought does not mean a thinker, according to the insane philosophy the establishment have been taught, so thoughts do not prove the existence of moral agents), and to not express the wrong thoughts.
Everyone must be docile and act as they are supposed to – there may be appeal on the basis of some legal technicality, but there can be no appeal against the philosophy that dominates the British establishment.
“You have offended us” i.e. “you have disturbed the cattle” is criminal – according to the establishment.
I went over to Airdrie on Monday morning. The Count’s supporters were overwhelmingly from the Scottish working classes. They expressed contempt at the folk from the legacy media like the BBC and Sky. In the pub afterwards all of the regulars knew who the star of the show was and wanted to shake the Count’s hand. A freelance journalist told me that local juries only ever convicted “paedophiles and policemen”…
But there was no jury in this case. I don’t blame the sheriff – I blame the law.
“But there was no jury in this case. I don’t blame the sheriff – I blame the law.”
Jury trial has been under attack for years. I remember one of the first real arguments I had with my dad that wasn’t about stupid family stuff was over this. As a lawyer, he doesn’t like juries. And I don’t doubt that we both think the Dankula case proves our point. To the legal mind, if the law says something is wrong, then it’s wrong, and juries just get in the way of convictions. (The most heated argument I ever had with him was over the idea that taxation is theft. He says it isn’t because the law permits it.)
Good photos. Nice to the the Scottish Libertarians, although I disagree with them on Holyrood independence. Their hearts are in the right place and I did cast a vote their way once, but only out of pity. 🙂
I’m astonished that I am the first to comment: “If you strike me down, I will become more powerful than you can possibly imagine” – or, at least, will become able to raise £100,000 in a single day, which I’m guessing the Airdrie sheriff did not imagine. 🙂
There’s an interesting discussion of the legal aspects of this case by a blogging barrister here. The problem seems to be that the law was probably interpreted correctly here.
That post is very important, it is not about criminalising teaching a dog tricks in not even very poor taste, but the use of a public telecommunications system to transfer a grossly offensive message or other matter. So if he loaded it up by a private telecommunications system, there is no offence. The genesis of this section was using the law to stop people sending hoax telegrams, phone up and falsely say ‘Your dog is dead” etc.
But what he did was not sent to anyone, it was uploaded onto a server, ‘sent’ to a machine, and arguably the law in question was intended to deal with ‘Communication’ which requires a recipient, and there was no recipient on uploading it, it is viewable but only on demand. How can it be offensive if is is not viewed? And if you view it, you choose to view it or someone chooses to show it to you. If you choose to view it, how is it offensive? You got what you didn’t even pay for.
The context is also another point, whether it is grossly offensive as he was in fact showing how offensive the Nazis were, otherwise in context the joke would not work.
The context is also another point, whether it is grossly offensive as he was in fact showing how offensive the Nazis were, otherwise in context the joke would not work.
Without a transcript of the trial, it’s hard to be sure, but based on the reportage, the argument made by the prosecution and accepted by the Sheriff that the context is not a defence is very troubling. Maybe on that point he has grounds for appeal, since if (for instance) someone uses the phrase “Sieg Heil!” in the middle of an uncontroversial sentence in a YouTube video or in an online comments thread like this (maybe as part of a discussion of the evils of Nazism), surely that could be construed as “grossly offensive” when taken out of context? What about, e.g., historical videos like this one? Surely vast quantities of electronically published historical documents and material ought to fall into this class of things that are capable of being “grossly offensive” to someone?
With further reference to that barrister’s remarks, it is not very reassuring to note that the prosecutorial guidelines in England would make a prosecution for the above paragraph very unlikely.
This reminds me of the Sexual Offences Act 2003, which makes any sexual contact between consenting under-16s unlawful, including a kiss. This means that since that Act came into force, perhaps millions of young people have technically become criminals, and their freedom is only contingent upon the whims of the police and the CPS. Incidentally, I spoke to a lawyer who works on the prosecutorial side of cases in that general area, and she insisted – quelle surprise – that such power was necessary to protect the public.
“Incidentally, I spoke to a lawyer who works on the prosecutorial side of cases in that general area, and she insisted – quelle surprise – that such power was necessary to protect the public.”
I’ll make a possibly unwarranted jump and say that she meant that such power, placed in her hands and at her superior discretion and judgment, was necessary to protect the public.
Once you write laws such that everyone commonly (and innocently) breaks them, and you grant discretion to some small group to decide when and against whom the laws should be enforced, you no longer recognize the rule of law. You recognize power, only.
Which is, of course, why some of us value the right to possess weapons.
I’ll make a possibly unwarranted jump and say that she meant that such power, placed in her hands and at her superior discretion and judgment, was necessary to protect the public.
Yes, that was precisely the import of her comments, however (as is usual with legal matters) it’s a bit more complicated than that. I believe she’s now retired, but she was involved in building cases against paedophiles, and was very vocal about the great danger of paedophilia (sometimes extremely well justified, of course) as support for her position. We didn’t talk about many specific cases, but I inferred that she believed the Sexual Offences Act 2003 might have been useful to her so she could exercise discretion, but also allow her to proceed in cases where, say, a 15-year-old was accused of abusing, say, a 7-year-old – which might previously have been impossible to prosecute.
However, I don’t think she was ever involved in cases against underage kids; so whilst I don’t wish to be too harsh on her, since she had some important victories against very dangerous people, nevertheless power can go to anyone’s head. Prosecution of paedophiles is like national security in that respect. (And incidentally, she was dead serious and didn’t think it at all funny when I used the phrase “paedogeddon”… but I suppose with what we’ve seen recently she wasn’t wrong.)
As to the general point, though, prosecutorial discretion can become arbitrary and therefore a form of tyranny. DACA, etc.
“the Sexual Offences Act 2003 might have been useful to her so she could exercise discretion, but also allow her to proceed in cases where, say, a 15-year-old was accused of abusing, say, a 7-year-old – which might previously have been impossible to prosecute.”
But that gets to what I was talking about quite squarely.
She wants the prosecutor to be able to look a a situation in which a law has been broken, and determine – based on her own beliefs and morals – whether or not to prosecute.
Speaking of a pedophile prosecutor puts this into the most sympathetic of terms, but it begs the question. The discretion she wanted is most properly a judicial discretion, to be exercised at the time of sentencing. That’s where factors that weigh on punishment ought to be examined – in the open, on the record. If a 16-year-old has sex with his 15-year-old girlfriend, and the existing law makes that illegal, it shouldn’t be the prosecutor’s choice to refuse to enforce the law – it ought to be a judge’s decision that, in spite of having broken the law, the 16-year-old warrants no punishment.
If we have laws that encompass too much innocent behavior, we need to write better laws, not allow prosecutors discretion to ignore them without transparency or public review. In the USA, at least, if a judge wishes to depart from a guideline sentence, they must list reasons for doing so, and then we can all look at those reasons and make our approval or disapproval of them known.
When a prosecutor looks at ten cases, and charges five and drops five, we have no corresponding ability to review those decisions, and so this leads to the abuses that gave us determinate sentencing to begin with.
She wants the prosecutor to be able to look a a situation in which a law has been broken, and determine – based on her own beliefs and morals – whether or not to prosecute.
Indeed, this is of serious concern. What is “law” if it comes down to prosecutorial discretion? So is everything illegal, and we just leave it up to prosecutors to decide whom to prosecute? Tyranny, “experts”, the EU, etc.
That said, I don’t think you entirely follow my reasoning and the example I gave. I wasn’t talking about discretion in sentencing, but in prosecution. Different matters.
But further to the points you raise, yes “better laws” rather than bureaucratic/judicial discretion. People don’t seem to understand the term “rule of law”. And yes, prosecutors face less scrutiny than they deserve. DITTO the police. The Chief Constable of any given county could witness a murder at first hand and decline to investigate. Similarly, Tommy Robinson gets the third degree. Is this good or bad?
I cannot imagine a law that cannot be stretched to cover just about anything, if a person is motivated to work hard enough to do so.
For instance, Ian writes above,
This reminds me of the Sexual Offences Act 2003, which makes any sexual contact between consenting under-16s unlawful, including a kiss.
Now, I hope the law is actually written to be a lot narrower than that, because some lowlife somewhere is bound to insist that a kiss is always inherently sexual — so, Mom & Pop, don’t even think about planting one on the noggin of your newly arrived infant … or on the cheek of your daughter or (for the Moms, anyway) son, the day before her or his 16th birthday.
Any innocent behaviour can be made to look vicious, if somebody cares to do it. And far too much of it can be seen as an offense under some law.
The Chief Constable of any given county could witness a murder at first hand and decline to investigate.
There’s a rather good movie, Changeling, which hinges on there being a law in force which requires the police to investigate any allegation of murder no matter how far fetched it might seem.
One can imagine why such a law might be necessary.
“That said, I don’t think you entirely follow my reasoning and the example I gave. I wasn’t talking about discretion in sentencing, but in prosecution. Different matters.”
Actually, I think I did understand what you meant.
“Discretion”, as we’re speaking here, can only mean that a prosecutor can look at a situation that involved someone technically violating a law, and decide for some reason that that violation ought not be prosecuted.
That’s not supposed to be within the prosecutor’s purview. The legislative branch writes the laws, and the prosecutor is supposed to uphold them – all of them, all of the time. Giving prosecutors that kind of discretion always ends with the prosecutor’s buddies getting their charges dismissed.
It’s within the sentencing function that that discretion is supposed to be exercised. If a judge decides that a defendant ought not be punished even though he technically broke a law, the judge can do all sorts of things – but with transparency and reviewability, not with a simple prosecutor’s dismissal.
So, I’m not confusing prosecution and sentencing – I’m simply saying that whatever discretion we allow belongs in the sentencing phase, and prosecutors should have far less discretion than we allow them now. If a law has been violated, even just “technically”, the prosecutor ought to prosecute, and then the judge can order some non-sentence.
(I note that there’s a huge difference between allowing a prosecutor to decide that her case is simply too weak to charge and prosecute, and the situation I’m speaking of here where a prosecutor decides that, even though she can easily prove a violation of the law, she doesn’t think that what was done merits criminal prosecution. That question was decided when the law was written, and if we allow her discretion as to when to enforce it or not enforce it, why have a legislature?)
Without a transcript of the trial, it’s hard to be sure, but based on the reportage, the argument made by the prosecution and accepted by the Sheriff that the context is not a defence is very troubling.
Even though Meechan has always held he’s not an anti-Semite, and there’s no evidence to the contrary, the Sheriff assigned him that motivation and said the reason he made the video was to stir up racial hatred. Or, as Meechan puts it “I do think it’s cool, though, that I’m Britain’s first ever court-appointed anti-Semite.”
Is it really possible the Sheriff has such a lack of understanding when it comes to humor that he doesn’t understand this was an attempt at a joke? The whole thing doesn’t make sense to me. It seems like a whole lot of people, from the cops to the prosecutor to the Sheriff, have to be pretending to believe something they can’t possibly believe.
“The whole thing doesn’t make sense to me. It seems like a whole lot of people, from the cops to the prosecutor to the Sheriff, have to be pretending to believe something they can’t possibly believe.”
“You are a slow learner, Winston.”
“How can I help it? How can I help but see what is in front of my eyes? Two and two are four.”
“Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane.” – George Orwell
I’m really surprised we don’t have an Alfie Evans post yet.
Alder Hey don’t want to treat a child anymore. No problem as far as I can see. They’re actively preventing anyone else from treating him either. Big problem as far as I can see. Despite the judge’s airy dismissal, surely they are holding a child hostage?
They say the best interest of the child override that of the parents. And how do they determine the interests of the child? Why, by asking doctors of course. So really, the wishes of the doctors override the wishes of the parents. And the doctors wish him to die. Initially they’d hoped for suffocation, but starvation will do in a pinch.
We have Merseyside police promising to monitor social media for illegal opinions. We have a torrent of media reports stating how the hard working staff of “our NHS” should, in effect, be exempt from criticism.
It’s totalitarianism of the worst kind. You think Dankula was a big deal because they took away his freedom of speech? Here they’re taking away two parents autonomy and the life of their child. I’d have thought you’d have jumped on this days ago. Why isn’t Samizdata covering it?
Another aspect of prosecutorial discretion is that it takes away the right of “Jury Nullification” (where such things are still allowed to happen in English/Welsh and Scottish law)
@JadedLibertarian:
As for “Poor Alfie” and the attempt to impose mob justice through the manipulation of a distraught, irrational (and none too bright) parent by dodgy lawyers with an agenda to push, sure there is a discussion to be had, but it seems improper to do that while the poor mite is clinging to death’s door by his fingernails.
There are plenty of people attempting to inflame the situation. I doubt it helps if Samizdata starts pouring petrol on the flames as well (although it’s such a media circus I doubt if we would make much difference either way).
Besides, who wants to get nicked by plod (like Count Dankula) on some trumped up charge of ‘incitement’ against Alder Hey or their staff?
You don’t know what you’re talking about. (Ian, April 26, 2018 at 1:38 am)
Ian, speaking simply as an observer of the discussion, it seemed to me that Bobby did understand what you were saying and what he was saying. Bobby thinks:
– judges having discretion at time of sentencing is right and proper, and/or necessary and unavoidable, and should be continued
– prosecutors having discretion not to prosecute an undoubted and provable offence against the current law as phrased is less desirable, lets legislators survive writing bad laws, causes ham sandwich nation, and so should be diminished
Bobby may be wrong or excessive – Bobby himself notes that prosectors must have discretion to decide which cases are winnable – but I do not think there is any incomprehension going on here. In fact it seems to me he is in the main agreeing with your point: a prosecutor having discretion to ignore one winnable case and pursue another gives cause for concern.
Join, the “agenda” of his lawyers is neither here nor there. Do you see feminist lawyers who specialise in rape cases pilloried for their “agenda”? Should lawyers only take cases they have no opinion on?
This case touches on very fundamental things about the place of parents and doctors in society. Doctors are biological mechanics. If it’s broken, they try to fix it. If it doesn’t run right, they try to tune it up. If I don’t like the service I receive at Bobby’s Biological Bodyshop, I should be free to take my custom to Mike’s Medical Mufflers.
Yet somehow in the UK these tradesmen have had themselves declared philosopher kings who get to decide who lives, who dies, and how that will happen.
Join, the “agenda” of his lawyers is neither here nor there.
It does when they are prepared to cross the line with vexatious litigation against individuals in a blatant attempt at coercion and as a warning to others (both doctors and hospitals) who might attempt this in the future.
For the most part I do not agree with the level of control doctors and hospitals have over those for whom all options have been exhausted, but the test of “In the best interests of the child” would appear from my perspective as a lay person to be being exercised appropriately in this instance.
Is it in “the best interests of the child” to let the child’s body die as (multiple doctors have assured us) the brain has already done so? I personally think so, but that is just me and I’m obviously a cruel and heartless baby killer.
I don’t think it is in “the best interests of the child” to get dragged off to Rome or other “parts foreign” to die there since nothing further can be accomplished either there or here. The mind has gone, though the body lingers.
I’m sure Alder Hey and the doctors involved would prefer that Alfie went home to live out the time remaining there, but that “Duty of Care” thing is a double-bind on both doctors and hospital.
Threatening legal action on trumped up charges of murder doesn’t help either Alfie or his parents and this is ENTIRELY the fault of the lawyers involved via Alfie’s parents and the sede vacante squatter scum from St. Peters and his minions.
But as I say, now is not the time for neutral analysis. Let the poor mite die in peace at home.
Even though Meechan has always held he’s not an anti-Semite, and there’s no evidence to the contrary, the Sheriff assigned him that motivation and said the reason he made the video was to stir up racial hatred. Or, as Meechan puts it “I do think it’s cool, though, that I’m Britain’s first ever court-appointed anti-Semite.”
I’ll say straight off the bat that I heavily discount Meechan’s account of the trial. I would like to see a transcript before commenting on what Meechan has remembered. This is not because I dislike the guy (I don’t), it’s just that he’s far from being a dispassionate observer and also I suspect he didn’t catch the nuances of it… which is not intended as a criticism of him, by the way.
Also, he may have been labelled an anti-semite by the sheriff, but he would not be the first. David Irving, anyone?
Regardless, it would appear the law doesn’t require that Meechan be an anti-semite for this conviction to stand. It is merely necessary that the sheriff be satisfied that some hypothetical person (perhaps a Jewish person, perhaps an individual from another designated victim-class) might be offended. In other words, and in this case, it would be more accurate to say that the sheriff appointed himself a pro tempore “semite” and took offence on that behalf. No Jewish person ever had to be offended by the making of that video, and indeed it’s not clear that any complaint of that sort was ever made to the police. In fact, it would appear that the sheriff made an entirely subjective assessment of what might offend a Jewish person. Sadly, and in my opinion, judgements of this sort are entirely counter-productive, and I would guess that a hypothetical “semite” could very well be upset (and even offended) at this verdict.
“Discretion”, as we’re speaking here, can only mean that a prosecutor can look at a situation that involved someone technically violating a law, and decide for some reason that that violation ought not be prosecuted. That’s not supposed to be within the prosecutor’s purview.
This is factually untrue. Discretion can be exercised “in the public interest” for a wide variety of reasons, e.g. because a prosecution would be too costly, because public attitudes are against it, etc. See, e.g., here. I may have come across as rather testy, but I stand by what I said.
No Jewish person ever had to be offended by the making of that video, and indeed it’s not clear that any complaint of that sort was ever made to the police.
So this is some new legal test that is appearing is it? Instead of the apocryphal “Man on the Clapham Omnibus” we must now give credence to the hyperthetical “Red Sea Pedestrian on the Golders Green tube”?
So this is some new legal test that is appearing is it? Instead of the apocryphal “Man on the Clapham Omnibus” we must now give credence to the hyperthetical “Red Sea Pedestrian on the Golders Green tube”?
Yes. Essentially, what the judge has to do is to put themself in the position of a victim-class and decide (based on whatever wisdom they may have on the matter, by reading the newspapers, etc. — “contemporary standards”) whether such a victim-class could reasonably have been offended. Then they have to judge whether the defendant could conceivably have known that offence might be caused. So the judge essentially has to project himself into the minds of a hypothetical class of person, then into the mind of the defendant, and arbitrate based on a subjective understanding of a hypothetical (not a real) “offence”. If this seems ludicrous then that’s because it is.
How exactly is this any better than the old fashioned forms of divination such as interpreting the murmuration of flocks of birds or examining the entrails of dead animals?
“Woe, Woe and Thrice Woe” spoke Lord Justice Seer (for it was he), “I have cast the knucklebones of St. Jerome and verily hath brother Dankula forsaken the path of the Communications Act of 2003 and is thusly disfellowshiped, excommunicated and fined £800. In addition his pug is to be sent on a diversity training course at the Barbara Woodhouse Collegium for Dogs and serve 200 hours community service.”
Appeals must be made in triplicate (blood on vellum only please) to the Sacristy of St. Bartholomew the Unhygienic before the next darkening of the moon.
Contra, one could argue that divination is potentially much more valid, since predictions of the near future are extremely capable of being held to a real evidentiary standard, and therefore to be falsified (notwithstanding the observer effect). In Meechan’s case, so far as I’m aware, the court did not attempt (nor will it ever attempt, unless – very reluctantly – if brought up by the defence) to test the hypothesis that the video in question was, in fact, offensive to any Jewish person. Neither would it be possible ever to prove the negative, i.e., that no Jewish person in the world would ever be offended by it. With this in mind Meechan needs to raise a lot of money for his defence because there doesn’t seem IMHO to be any clear line of attack: it is an offence in law purely because the judge, in his opinion, deems it to be so.
However, it’s worth noting that some of the principles underpinning this kind of legal thinking are not exactly novel – as has been alluded to by others in this thread. For example, in trademark law the hearing officer will have to make a determination as to whether a reasonably well-informed person (as distinct from “a moron in a hurry”) could mistake the mark in question for the registered mark. This is somewhat subjective, but here there are at least two real (though not necessarily physical) objects that can be compared, and (necessarily) an aggrieved party.
What is striking in Meechan’s case is that what ought to be, at the very most, a tort (like negligence) has become criminalised, and consequently the prosecution has to act the part of an imaginary claimant/victim. However, this is also not novel. The crime of “driving without due care and attention” comes to mind; but here the risk of harm is usually obvious to all and sundry, the law necessary, and besides which the likelihood of harm can be (and is) reduced in the final analysis to kinetics and statistics.
Another, more obvious, comparison would be to the crime of “inciting racial hatred”, which is another bad (anti-free speech) law, but even here there is the element of intent. What seems IMHO to be novel – and indeed unhinged – about the Communications Act 2003 is that no such standard is applied. Consequently, vast swathes of the internet could be deemed prosecutable by the CPS or Procurator Fiscal, including not just obvious stuff like re-runs of Fawlty Towers on BBC iPlayer, but all sorts of less obvious stuff like the recent BBC adaptation of Ordeal By Innocence featuring an unsympathetic portrayal of a disabled person.
It might be amusing to do an Alinsky on them with this one, and make complaints to the police about how offensive run-of-the-mill TV shows are, and force them to respond in every instance as to whether they regard Miss Marple or the freakin’ BBC Test Card as suitable for inclusion in their f—d up Index Librorum Prohibitorum. Who’s with me?!
Very funny video and worth the price of admission. I hope he can find the necessary superstar lawyers to defeat this travesty of justice. At lease he should have a few quid to spend down the pub now, whatever the outcome.
“Discretion can be exercised “in the public interest” for a wide variety of reasons, e.g. because a prosecution would be too costly, because public attitudes are against it, etc.”
A). In several hundred criminal defense cases, I never came across any case which a prosecutor decided it would simply cost too much to proceed. I did come across many cases in which the available gathered evidence was not sufficient for the prosecution to proceed. Perhaps unlimited spending would have made a case, but in my mind, that’s not so much a prosecutor exercising discretion so as to not spend more than the case is worth as it is the prosecutor not being granted unlimited funds.
B). ” . . .because public attitudes are against it . . .” This is exactly the situation that causes us grief. If public attitudes are against the enforcement of a law, then the law ought to be changed. We shouldn’t be granting prosecutors their own personal discretion as to which laws are worthy of being enforced. That’s not the rule of law.
Prosecutors like to come up with impressive writings – like the Crown Prosecution Services publication you linked – that empower themselves. They like to have discretion – power – so it’s no surprise that they grant it to themselves in their own internal rules. My point is that they ought not be empowered that way.
“You don’t know what you’re talking about.”
Then I’ll just thank you for pointing that out to me, and bow out here.
Thanks for re-engaging with me in an entirely reasonable manner, despite the fact that I was really rather rude to you. You’re a prince amongst men.
To your points:
In respect of point (A), the decision about whether to proceed based upon cost is surely not one to be taken mid-trial, except in extremis. I gave the example of cost being a factor, but only as one of many possible reasons for discretion.
In respect of point (B), my instinct is that I can’t agree that there ought not to be a “public interest” exception in respect of prosecution, since it would appear to me that even in a well-governed state there will always be unpopular laws that have to be deliberately unenforced. However, I do take what I perceive to be your point, that if the laws had to be strictly enforced, that the law-making body would have to be more respondent to public opinion and therefore repeal bad laws rather than handing over discretionary control to prosecutors. And I agree that a state where lawmakers made laws that were infallibly enforced and with which the populace were in accord would be a good state. However, that is not a state that exists, or could ever reasonably be supposed to exist.
To the legal mind, if the law says something is wrong, then it’s wrong, and juries just get in the way of convictions. (The most heated argument I ever had with him was over the idea that taxation is theft. He says it isn’t because the law permits it.)
So, in other words, whatever the law says is the law and whatever the law permits is all OK and that is that.
OK, I’ll invoke Godwins law here. Some of the finest legal minds in Nazi Germany compiled the legislation that permitted the Jews to be exterminated. Similarly, the laws needed to euthanise mentally subnormal individuals in institutions were written, voted on in the Reichstag and passed. Hence the law most certainly “permitted” it and by that reasoning, the members of the SS that were concentration guards were no more culpable than the Government hangmen that executed the condemned in the UK. All done legally and above board.
How does that sit with the concept of the majesty of the law, eh?
My opinion is that the law is so far out of kilter that the people need not obey it. They were not consulted about it and if it was put to a referendum (stop sniggering at the back, sit up and pay attention!) then the stupidities and overbearing reach of the Forces of the State would be swept away. But that isn’t going to happen.
As others (such as Sam Duncan and Mr Ed) have already implied – the real problem is that many judges (and other such) do not care about the principles of law.
There are two stages to this – the first stage is to say (with Thomas Hobbes, David Hume, Jeremy Bentham and YES even John Stuart Mill) that “the law” is simply the “will of the state” – that there is no natural law based on private property rights, and the state can (for example) lock someone up because it does not like their opinions (yes Mr Mill hated that – but his view of what “law” is means that he can only making a begging appeal against it, not state that it is UNLAWFUL).
But that (again has other have already stated) is only the FIRST STAGE – what if the state does NOT pass “laws” forbidding “hate speech” and so on?
Leftist judges have an answer to this – first they distort the statutes on the books (getting rid of juries is indeed important in this regard), but they do not stop there.
As we see in the United States, and have done for many years now, leftist judges are quite capable of MAKING STUFF UP – demanding that the government (local, State and Federal) do X (say conduct “Gay Marriage” ceremonies – and force private persons to “recognise” these ceremonies) even if there is no statute whatever saying anything like this.
It is like a mirror in “fun house” – the judges may have (in their own perverted leftist way) half remembered the concept of “natural law” but INVERTED it – instead of natural law being about the preservation of private property rights based freedom of Civil Society (as with the case of Dr Bonham in 1610 – with the striking down of both a Royal command and a Parliamentary statute that a man be punished for the “crime” of practicing medicine without a piece of parchment called a “license”) the modern courts issue orders designed to DESTROY (undermine) Civil Society on behalf of leftism (Frankfurt School Marxism, French “Post Modernism” and so on).
One sees this in the United States almost every week – and NOT just from judges appointed by Comrade Barack Obama (with his fanatical hatred of all the United States is supposed to stand for), but also by many other judges. The basic process of legal education has been corrupted.
Actually there is no real contradiction with the philosophy of Thomas Hobbes – as Mr Hobbes never said that the “sovereign” had to be either the King or Parliament. It is perfectly consistent for leftist judges to issue order that both spit on the tradition of the Common Law (of Sir Edward Coke, Sir John Holt and so on) AND which spit on statutes (both State statutes and Federal statutes – and the written Constitution) – all that is needed is for the judges to consider THEMSELVERS the “sovereign” of Mr Hobbes (or the “Lawgiver” of Rousseau – who is really Thomas Hobbes in a mask of “freedom”).
Yes it is true that not all judges are leftist enemies of civilisation – but many are. Even the United States Supreme Court contains some people who want (yes WANT) to see the United States, and the West in general, utterly destroyed – as well as some weak or confused people who often do not fully see what is really at stake in particular cases. And it becoming the same in Britain.
The utilitarian judges (who just want a quite life – with no one expressing opinions that will upset groups likely to express their upset in nasty ways, such as the forces of Islam) are joined by judges who actively seek the destruction of “capitalist” civilisation.
Which is which? Which are the utilitarian judges and which ones are the Marxists or Post Modernists?
At this stage it ACTUALLY DOES NOT MATTER – as neither sort of judge has any respect for the fundamental principles of law, and will (thus) rule the same way.
The “soft left” (the Economist magazine types and utilitarian judges who “just” want everyone to be nice – and not express opinions that will upset others, and of course want everyone to be disarmed, and want the state to provide all basic needs from “the cradle to the grave”) join with the “hard left” who want to destroy “capitalist” civilisation – NOT because the “soft left” want to destroy civilisation (the Economist magazine types and utilitarian judges like their comfortable life style thank-you-very-much), but because they can not really see the “end game” of the hard left – and mistakenly think that the hard left are “liberals” like themselves.
As recently as 2008 I was astonished and horrified that the entire “liberal” establishment (in Britain as well as the United States) could support someone with a Marxist background (Barack Obama) who had never really broken with his past – but now it is what I EXPECT.
It is not that the “liberal” establishment actually want to destroy civilisation (again – they like their comfortable life style), but they will make no real stand to defend “capitalism” – their basic philosophy gives them no where solid upon which to make such a stand. This means the “liberals” (who are not really liberals at all) with their denial of freedom of speech, and the right to keep and bear arms, and basic private property rights (for example their support of the “anti discrimination” principle – which they only apply to groups the LEFT LIKE, conservatives are not defended by “anti discrimination” doctrine in education, or in trade, or in employment), are just as much our enemies as the Marxists.
“But I do not want to destroy civilisation” – yes, but you support the side that does.
As of April 29, 10AM central time, he has 155,330 pounds (with a 100,000 pound goal), made by nearly 7000 people in 4 days time, and the number climbs by the minute. I sent it out on the inter-webs to make even more social media rounds.
The Samizdata people are a bunch of sinister and heavily armed globalist illuminati who seek to infect the entire world with the values of personal liberty and several property. Amongst our many crimes is a sense of humour and the intermittent use of British spelling.
We are also a varied group made up of social individualists, classical liberals, whigs, libertarians, extropians, futurists, ‘Porcupines’, Karl Popper fetishists, recovering neo-conservatives, crazed Ayn Rand worshipers, over-caffeinated Virginia Postrel devotees, witty Frédéric Bastiat wannabes, cypherpunks, minarchists, kritarchists and wild-eyed anarcho-capitalists from Britain, North America, Australia and Europe.
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I lol’d. Hard.
Dank is taking the art of shitposting to a new level.
Once I get past the floppy ear things (not the dog) and realize that the dog isn’t in the room to hear the tone of his voice it’s funny as can be.
-XC
If Parliament can pass any “law” it feels like (as Sir William Blackstone claimed – much to the horror of the American Founding Fathers), and if there are no fundamental rights (as both David Hume, politely, and Jeremy Bentham, very bluntly, stated) then there is no basis for Freedom of Speech or any other restriction on government power.
John Stuart Mill tried to square the circle by producing a utilitarian argument for Freedom of Speech (the famous “On Liberty”) – but he continued to cling to the philosophy of Jeremy Bentham and the view of what a human is (that humans are non beings) of David Hume (what he called the “light of Hume” – denying the existence of the soul in both the religious and the secular Aristotelian sense) and even accepted much of the philosophy of Thomas Hobbes.
One looks in vain for supporting references to (for example) the work of Ralph Cudworth (who so influenced the Old Whigs) or Thomas Reid (who supported the traditional Whig philosophy against the attack upon it by David Hume) in the work of J.S. Mill – his defence of Freedom of Speech is, essentially, that we should AS-IF there is a right to Freedom of Speech (even though, to him, there really is not – indeed there are no fundamental rights at all, and no Natural Law, and no human beings, in the traditional sense, of “human beings”). As James McCosh pointed out at the time (and Ayn Rand pointed out a century later) the philosophy of Mr Mill really undercuts his politics – he intends to defend Freedom of Speech and other basic liberties, but the philosophy he is committed to (especially its conception of what a human is) must, in the end, destroy liberty.
The British establishment and British (including Scottish) courts believe that “law” is about creating a mindless population (formally speaking they do not actually believe the human mind even exists – we just think-that-we-think, the “I” is an “illusion” – they get this stuff from Hume and his Legion of followers), docile and content. Anything that disturbs the cattle (which is what they think humans are – following Jeremy Bentham or even Thomas Hobbes) must be BANNED, and people (or rather the human shaped non people they believe us to be) must be taught (partly by “education” – Andrew Marr style “education”, and partly by criminal punishments), not to have the wrong thoughts (a thought does not mean a thinker, according to the insane philosophy the establishment have been taught, so thoughts do not prove the existence of moral agents), and to not express the wrong thoughts.
Everyone must be docile and act as they are supposed to – there may be appeal on the basis of some legal technicality, but there can be no appeal against the philosophy that dominates the British establishment.
“You have offended us” i.e. “you have disturbed the cattle” is criminal – according to the establishment.
I went over to Airdrie on Monday morning. The Count’s supporters were overwhelmingly from the Scottish working classes. They expressed contempt at the folk from the legacy media like the BBC and Sky. In the pub afterwards all of the regulars knew who the star of the show was and wanted to shake the Count’s hand. A freelance journalist told me that local juries only ever convicted “paedophiles and policemen”…
But there was no jury in this case. I don’t blame the sheriff – I blame the law.
Here are some photos:
https://www.flickr.com/photos/56701337@N00/sets/72157668143762528
Thanks for the pictures, David.
I have contributed to a true Scotsman, no fallacy here.
Yes indeed, cheers for the photos, David.
The Count has reached his target already, with over 4,200 donations. I just hope he doesn’t need to spend it all on lawyers.
As of 5:30pm today:
£100,767 of £100,000 goal
Raised by 4,290 people in 1 day
One day! Excellent!
“But there was no jury in this case. I don’t blame the sheriff – I blame the law.”
Jury trial has been under attack for years. I remember one of the first real arguments I had with my dad that wasn’t about stupid family stuff was over this. As a lawyer, he doesn’t like juries. And I don’t doubt that we both think the Dankula case proves our point. To the legal mind, if the law says something is wrong, then it’s wrong, and juries just get in the way of convictions. (The most heated argument I ever had with him was over the idea that taxation is theft. He says it isn’t because the law permits it.)
Good photos. Nice to the the Scottish Libertarians, although I disagree with them on Holyrood independence. Their hearts are in the right place and I did cast a vote their way once, but only out of pity. 🙂
“Keep Calm and Demand Trial By Combat”.
Compared to the idiocy that saw this guy found guilty, trial by combat sounds like an excellent idea.
I’m astonished that I am the first to comment: “If you strike me down, I will become more powerful than you can possibly imagine” – or, at least, will become able to raise £100,000 in a single day, which I’m guessing the Airdrie sheriff did not imagine. 🙂
There’s an interesting discussion of the legal aspects of this case by a blogging barrister here. The problem seems to be that the law was probably interpreted correctly here.
Ian,
That post is very important, it is not about criminalising teaching a dog tricks in not even very poor taste, but the use of a public telecommunications system to transfer a grossly offensive message or other matter. So if he loaded it up by a private telecommunications system, there is no offence. The genesis of this section was using the law to stop people sending hoax telegrams, phone up and falsely say ‘Your dog is dead” etc.
But what he did was not sent to anyone, it was uploaded onto a server, ‘sent’ to a machine, and arguably the law in question was intended to deal with ‘Communication’ which requires a recipient, and there was no recipient on uploading it, it is viewable but only on demand. How can it be offensive if is is not viewed? And if you view it, you choose to view it or someone chooses to show it to you. If you choose to view it, how is it offensive? You got what you didn’t even pay for.
The context is also another point, whether it is grossly offensive as he was in fact showing how offensive the Nazis were, otherwise in context the joke would not work.
The context is also another point, whether it is grossly offensive as he was in fact showing how offensive the Nazis were, otherwise in context the joke would not work.
Without a transcript of the trial, it’s hard to be sure, but based on the reportage, the argument made by the prosecution and accepted by the Sheriff that the context is not a defence is very troubling. Maybe on that point he has grounds for appeal, since if (for instance) someone uses the phrase “Sieg Heil!” in the middle of an uncontroversial sentence in a YouTube video or in an online comments thread like this (maybe as part of a discussion of the evils of Nazism), surely that could be construed as “grossly offensive” when taken out of context? What about, e.g., historical videos like this one? Surely vast quantities of electronically published historical documents and material ought to fall into this class of things that are capable of being “grossly offensive” to someone?
With further reference to that barrister’s remarks, it is not very reassuring to note that the prosecutorial guidelines in England would make a prosecution for the above paragraph very unlikely.
This reminds me of the Sexual Offences Act 2003, which makes any sexual contact between consenting under-16s unlawful, including a kiss. This means that since that Act came into force, perhaps millions of young people have technically become criminals, and their freedom is only contingent upon the whims of the police and the CPS. Incidentally, I spoke to a lawyer who works on the prosecutorial side of cases in that general area, and she insisted – quelle surprise – that such power was necessary to protect the public.
I’ll make a possibly unwarranted jump and say that she meant that such power, placed in her hands and at her superior discretion and judgment, was necessary to protect the public.
Once you write laws such that everyone commonly (and innocently) breaks them, and you grant discretion to some small group to decide when and against whom the laws should be enforced, you no longer recognize the rule of law. You recognize power, only.
Which is, of course, why some of us value the right to possess weapons.
I’ll make a possibly unwarranted jump and say that she meant that such power, placed in her hands and at her superior discretion and judgment, was necessary to protect the public.
Yes, that was precisely the import of her comments, however (as is usual with legal matters) it’s a bit more complicated than that. I believe she’s now retired, but she was involved in building cases against paedophiles, and was very vocal about the great danger of paedophilia (sometimes extremely well justified, of course) as support for her position. We didn’t talk about many specific cases, but I inferred that she believed the Sexual Offences Act 2003 might have been useful to her so she could exercise discretion, but also allow her to proceed in cases where, say, a 15-year-old was accused of abusing, say, a 7-year-old – which might previously have been impossible to prosecute.
However, I don’t think she was ever involved in cases against underage kids; so whilst I don’t wish to be too harsh on her, since she had some important victories against very dangerous people, nevertheless power can go to anyone’s head. Prosecution of paedophiles is like national security in that respect. (And incidentally, she was dead serious and didn’t think it at all funny when I used the phrase “paedogeddon”… but I suppose with what we’ve seen recently she wasn’t wrong.)
As to the general point, though, prosecutorial discretion can become arbitrary and therefore a form of tyranny. DACA, etc.
But that gets to what I was talking about quite squarely.
She wants the prosecutor to be able to look a a situation in which a law has been broken, and determine – based on her own beliefs and morals – whether or not to prosecute.
Speaking of a pedophile prosecutor puts this into the most sympathetic of terms, but it begs the question. The discretion she wanted is most properly a judicial discretion, to be exercised at the time of sentencing. That’s where factors that weigh on punishment ought to be examined – in the open, on the record. If a 16-year-old has sex with his 15-year-old girlfriend, and the existing law makes that illegal, it shouldn’t be the prosecutor’s choice to refuse to enforce the law – it ought to be a judge’s decision that, in spite of having broken the law, the 16-year-old warrants no punishment.
If we have laws that encompass too much innocent behavior, we need to write better laws, not allow prosecutors discretion to ignore them without transparency or public review. In the USA, at least, if a judge wishes to depart from a guideline sentence, they must list reasons for doing so, and then we can all look at those reasons and make our approval or disapproval of them known.
When a prosecutor looks at ten cases, and charges five and drops five, we have no corresponding ability to review those decisions, and so this leads to the abuses that gave us determinate sentencing to begin with.
She wants the prosecutor to be able to look a a situation in which a law has been broken, and determine – based on her own beliefs and morals – whether or not to prosecute.
Indeed, this is of serious concern. What is “law” if it comes down to prosecutorial discretion? So is everything illegal, and we just leave it up to prosecutors to decide whom to prosecute? Tyranny, “experts”, the EU, etc.
That said, I don’t think you entirely follow my reasoning and the example I gave. I wasn’t talking about discretion in sentencing, but in prosecution. Different matters.
But further to the points you raise, yes “better laws” rather than bureaucratic/judicial discretion. People don’t seem to understand the term “rule of law”. And yes, prosecutors face less scrutiny than they deserve. DITTO the police. The Chief Constable of any given county could witness a murder at first hand and decline to investigate. Similarly, Tommy Robinson gets the third degree. Is this good or bad?
I cannot imagine a law that cannot be stretched to cover just about anything, if a person is motivated to work hard enough to do so.
For instance, Ian writes above,
Now, I hope the law is actually written to be a lot narrower than that, because some lowlife somewhere is bound to insist that a kiss is always inherently sexual — so, Mom & Pop, don’t even think about planting one on the noggin of your newly arrived infant … or on the cheek of your daughter or (for the Moms, anyway) son, the day before her or his 16th birthday.
Any innocent behaviour can be made to look vicious, if somebody cares to do it. And far too much of it can be seen as an offense under some law.
Now, I hope the law is actually written to be a lot narrower than that
Yes, parents can still kiss their children 🙂
There’s a rather good movie, Changeling, which hinges on there being a law in force which requires the police to investigate any allegation of murder no matter how far fetched it might seem.
One can imagine why such a law might be necessary.
Actually, I think I did understand what you meant.
“Discretion”, as we’re speaking here, can only mean that a prosecutor can look at a situation that involved someone technically violating a law, and decide for some reason that that violation ought not be prosecuted.
That’s not supposed to be within the prosecutor’s purview. The legislative branch writes the laws, and the prosecutor is supposed to uphold them – all of them, all of the time. Giving prosecutors that kind of discretion always ends with the prosecutor’s buddies getting their charges dismissed.
It’s within the sentencing function that that discretion is supposed to be exercised. If a judge decides that a defendant ought not be punished even though he technically broke a law, the judge can do all sorts of things – but with transparency and reviewability, not with a simple prosecutor’s dismissal.
So, I’m not confusing prosecution and sentencing – I’m simply saying that whatever discretion we allow belongs in the sentencing phase, and prosecutors should have far less discretion than we allow them now. If a law has been violated, even just “technically”, the prosecutor ought to prosecute, and then the judge can order some non-sentence.
(I note that there’s a huge difference between allowing a prosecutor to decide that her case is simply too weak to charge and prosecute, and the situation I’m speaking of here where a prosecutor decides that, even though she can easily prove a violation of the law, she doesn’t think that what was done merits criminal prosecution. That question was decided when the law was written, and if we allow her discretion as to when to enforce it or not enforce it, why have a legislature?)
You don’t know what you’re talking about.
Even though Meechan has always held he’s not an anti-Semite, and there’s no evidence to the contrary, the Sheriff assigned him that motivation and said the reason he made the video was to stir up racial hatred. Or, as Meechan puts it “I do think it’s cool, though, that I’m Britain’s first ever court-appointed anti-Semite.”
Is it really possible the Sheriff has such a lack of understanding when it comes to humor that he doesn’t understand this was an attempt at a joke? The whole thing doesn’t make sense to me. It seems like a whole lot of people, from the cops to the prosecutor to the Sheriff, have to be pretending to believe something they can’t possibly believe.
“You are a slow learner, Winston.”
“How can I help it? How can I help but see what is in front of my eyes? Two and two are four.”
“Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane.” – George Orwell
I’m really surprised we don’t have an Alfie Evans post yet.
Alder Hey don’t want to treat a child anymore. No problem as far as I can see. They’re actively preventing anyone else from treating him either. Big problem as far as I can see. Despite the judge’s airy dismissal, surely they are holding a child hostage?
They say the best interest of the child override that of the parents. And how do they determine the interests of the child? Why, by asking doctors of course. So really, the wishes of the doctors override the wishes of the parents. And the doctors wish him to die. Initially they’d hoped for suffocation, but starvation will do in a pinch.
We have Merseyside police promising to monitor social media for illegal opinions. We have a torrent of media reports stating how the hard working staff of “our NHS” should, in effect, be exempt from criticism.
It’s totalitarianism of the worst kind. You think Dankula was a big deal because they took away his freedom of speech? Here they’re taking away two parents autonomy and the life of their child. I’d have thought you’d have jumped on this days ago. Why isn’t Samizdata covering it?
Another aspect of prosecutorial discretion is that it takes away the right of “Jury Nullification” (where such things are still allowed to happen in English/Welsh and Scottish law)
@JadedLibertarian:
As for “Poor Alfie” and the attempt to impose mob justice through the manipulation of a distraught, irrational (and none too bright) parent by dodgy lawyers with an agenda to push, sure there is a discussion to be had, but it seems improper to do that while the poor mite is clinging to death’s door by his fingernails.
There are plenty of people attempting to inflame the situation. I doubt it helps if Samizdata starts pouring petrol on the flames as well (although it’s such a media circus I doubt if we would make much difference either way).
Besides, who wants to get nicked by plod (like Count Dankula) on some trumped up charge of ‘incitement’ against Alder Hey or their staff?
Ian, speaking simply as an observer of the discussion, it seemed to me that Bobby did understand what you were saying and what he was saying. Bobby thinks:
– judges having discretion at time of sentencing is right and proper, and/or necessary and unavoidable, and should be continued
– prosecutors having discretion not to prosecute an undoubted and provable offence against the current law as phrased is less desirable, lets legislators survive writing bad laws, causes ham sandwich nation, and so should be diminished
Bobby may be wrong or excessive – Bobby himself notes that prosectors must have discretion to decide which cases are winnable – but I do not think there is any incomprehension going on here. In fact it seems to me he is in the main agreeing with your point: a prosecutor having discretion to ignore one winnable case and pursue another gives cause for concern.
Join, the “agenda” of his lawyers is neither here nor there. Do you see feminist lawyers who specialise in rape cases pilloried for their “agenda”? Should lawyers only take cases they have no opinion on?
This case touches on very fundamental things about the place of parents and doctors in society. Doctors are biological mechanics. If it’s broken, they try to fix it. If it doesn’t run right, they try to tune it up. If I don’t like the service I receive at Bobby’s Biological Bodyshop, I should be free to take my custom to Mike’s Medical Mufflers.
Yet somehow in the UK these tradesmen have had themselves declared philosopher kings who get to decide who lives, who dies, and how that will happen.
Join, the “agenda” of his lawyers is neither here nor there.
It does when they are prepared to cross the line with vexatious litigation against individuals in a blatant attempt at coercion and as a warning to others (both doctors and hospitals) who might attempt this in the future.
For the most part I do not agree with the level of control doctors and hospitals have over those for whom all options have been exhausted, but the test of “In the best interests of the child” would appear from my perspective as a lay person to be being exercised appropriately in this instance.
Is it in “the best interests of the child” to let the child’s body die as (multiple doctors have assured us) the brain has already done so? I personally think so, but that is just me and I’m obviously a cruel and heartless baby killer.
I don’t think it is in “the best interests of the child” to get dragged off to Rome or other “parts foreign” to die there since nothing further can be accomplished either there or here. The mind has gone, though the body lingers.
I’m sure Alder Hey and the doctors involved would prefer that Alfie went home to live out the time remaining there, but that “Duty of Care” thing is a double-bind on both doctors and hospital.
Threatening legal action on trumped up charges of murder doesn’t help either Alfie or his parents and this is ENTIRELY the fault of the lawyers involved via Alfie’s parents and the sede vacante squatter scum from St. Peters and his minions.
But as I say, now is not the time for neutral analysis. Let the poor mite die in peace at home.
Even though Meechan has always held he’s not an anti-Semite, and there’s no evidence to the contrary, the Sheriff assigned him that motivation and said the reason he made the video was to stir up racial hatred. Or, as Meechan puts it “I do think it’s cool, though, that I’m Britain’s first ever court-appointed anti-Semite.”
I’ll say straight off the bat that I heavily discount Meechan’s account of the trial. I would like to see a transcript before commenting on what Meechan has remembered. This is not because I dislike the guy (I don’t), it’s just that he’s far from being a dispassionate observer and also I suspect he didn’t catch the nuances of it… which is not intended as a criticism of him, by the way.
Also, he may have been labelled an anti-semite by the sheriff, but he would not be the first. David Irving, anyone?
Regardless, it would appear the law doesn’t require that Meechan be an anti-semite for this conviction to stand. It is merely necessary that the sheriff be satisfied that some hypothetical person (perhaps a Jewish person, perhaps an individual from another designated victim-class) might be offended. In other words, and in this case, it would be more accurate to say that the sheriff appointed himself a pro tempore “semite” and took offence on that behalf. No Jewish person ever had to be offended by the making of that video, and indeed it’s not clear that any complaint of that sort was ever made to the police. In fact, it would appear that the sheriff made an entirely subjective assessment of what might offend a Jewish person. Sadly, and in my opinion, judgements of this sort are entirely counter-productive, and I would guess that a hypothetical “semite” could very well be upset (and even offended) at this verdict.
@Niall Kilmartin,
I disagree. Bobby B said that:
“Discretion”, as we’re speaking here, can only mean that a prosecutor can look at a situation that involved someone technically violating a law, and decide for some reason that that violation ought not be prosecuted. That’s not supposed to be within the prosecutor’s purview.
This is factually untrue. Discretion can be exercised “in the public interest” for a wide variety of reasons, e.g. because a prosecution would be too costly, because public attitudes are against it, etc. See, e.g., here. I may have come across as rather testy, but I stand by what I said.
So this is some new legal test that is appearing is it? Instead of the apocryphal “Man on the Clapham Omnibus” we must now give credence to the hyperthetical “Red Sea Pedestrian on the Golders Green tube”?
https://www.youtube.com/watch?v=GOxECFyUcLc
So this is some new legal test that is appearing is it? Instead of the apocryphal “Man on the Clapham Omnibus” we must now give credence to the hyperthetical “Red Sea Pedestrian on the Golders Green tube”?
Yes. Essentially, what the judge has to do is to put themself in the position of a victim-class and decide (based on whatever wisdom they may have on the matter, by reading the newspapers, etc. — “contemporary standards”) whether such a victim-class could reasonably have been offended. Then they have to judge whether the defendant could conceivably have known that offence might be caused. So the judge essentially has to project himself into the minds of a hypothetical class of person, then into the mind of the defendant, and arbitrate based on a subjective understanding of a hypothetical (not a real) “offence”. If this seems ludicrous then that’s because it is.
@Ian:
How exactly is this any better than the old fashioned forms of divination such as interpreting the murmuration of flocks of birds or examining the entrails of dead animals?
“Woe, Woe and Thrice Woe” spoke Lord Justice Seer (for it was he), “I have cast the knucklebones of St. Jerome and verily hath brother Dankula forsaken the path of the Communications Act of 2003 and is thusly disfellowshiped, excommunicated and fined £800. In addition his pug is to be sent on a diversity training course at the Barbara Woodhouse Collegium for Dogs and serve 200 hours community service.”
Appeals must be made in triplicate (blood on vellum only please) to the Sacristy of St. Bartholomew the Unhygienic before the next darkening of the moon.
@John Galt,
Contra, one could argue that divination is potentially much more valid, since predictions of the near future are extremely capable of being held to a real evidentiary standard, and therefore to be falsified (notwithstanding the observer effect). In Meechan’s case, so far as I’m aware, the court did not attempt (nor will it ever attempt, unless – very reluctantly – if brought up by the defence) to test the hypothesis that the video in question was, in fact, offensive to any Jewish person. Neither would it be possible ever to prove the negative, i.e., that no Jewish person in the world would ever be offended by it. With this in mind Meechan needs to raise a lot of money for his defence because there doesn’t seem IMHO to be any clear line of attack: it is an offence in law purely because the judge, in his opinion, deems it to be so.
However, it’s worth noting that some of the principles underpinning this kind of legal thinking are not exactly novel – as has been alluded to by others in this thread. For example, in trademark law the hearing officer will have to make a determination as to whether a reasonably well-informed person (as distinct from “a moron in a hurry”) could mistake the mark in question for the registered mark. This is somewhat subjective, but here there are at least two real (though not necessarily physical) objects that can be compared, and (necessarily) an aggrieved party.
What is striking in Meechan’s case is that what ought to be, at the very most, a tort (like negligence) has become criminalised, and consequently the prosecution has to act the part of an imaginary claimant/victim. However, this is also not novel. The crime of “driving without due care and attention” comes to mind; but here the risk of harm is usually obvious to all and sundry, the law necessary, and besides which the likelihood of harm can be (and is) reduced in the final analysis to kinetics and statistics.
Another, more obvious, comparison would be to the crime of “inciting racial hatred”, which is another bad (anti-free speech) law, but even here there is the element of intent. What seems IMHO to be novel – and indeed unhinged – about the Communications Act 2003 is that no such standard is applied. Consequently, vast swathes of the internet could be deemed prosecutable by the CPS or Procurator Fiscal, including not just obvious stuff like re-runs of Fawlty Towers on BBC iPlayer, but all sorts of less obvious stuff like the recent BBC adaptation of Ordeal By Innocence featuring an unsympathetic portrayal of a disabled person.
It might be amusing to do an Alinsky on them with this one, and make complaints to the police about how offensive run-of-the-mill TV shows are, and force them to respond in every instance as to whether they regard Miss Marple or the freakin’ BBC Test Card as suitable for inclusion in their f—d up Index Librorum Prohibitorum. Who’s with me?!
Very funny video and worth the price of admission. I hope he can find the necessary superstar lawyers to defeat this travesty of justice. At lease he should have a few quid to spend down the pub now, whatever the outcome.
A). In several hundred criminal defense cases, I never came across any case which a prosecutor decided it would simply cost too much to proceed. I did come across many cases in which the available gathered evidence was not sufficient for the prosecution to proceed. Perhaps unlimited spending would have made a case, but in my mind, that’s not so much a prosecutor exercising discretion so as to not spend more than the case is worth as it is the prosecutor not being granted unlimited funds.
B). ” . . .because public attitudes are against it . . .” This is exactly the situation that causes us grief. If public attitudes are against the enforcement of a law, then the law ought to be changed. We shouldn’t be granting prosecutors their own personal discretion as to which laws are worthy of being enforced. That’s not the rule of law.
Prosecutors like to come up with impressive writings – like the Crown Prosecution Services publication you linked – that empower themselves. They like to have discretion – power – so it’s no surprise that they grant it to themselves in their own internal rules. My point is that they ought not be empowered that way.
Then I’ll just thank you for pointing that out to me, and bow out here.
@bobby b,
Thanks for re-engaging with me in an entirely reasonable manner, despite the fact that I was really rather rude to you. You’re a prince amongst men.
To your points:
In respect of point (A), the decision about whether to proceed based upon cost is surely not one to be taken mid-trial, except in extremis. I gave the example of cost being a factor, but only as one of many possible reasons for discretion.
In respect of point (B), my instinct is that I can’t agree that there ought not to be a “public interest” exception in respect of prosecution, since it would appear to me that even in a well-governed state there will always be unpopular laws that have to be deliberately unenforced. However, I do take what I perceive to be your point, that if the laws had to be strictly enforced, that the law-making body would have to be more respondent to public opinion and therefore repeal bad laws rather than handing over discretionary control to prosecutors. And I agree that a state where lawmakers made laws that were infallibly enforced and with which the populace were in accord would be a good state. However, that is not a state that exists, or could ever reasonably be supposed to exist.
#libertarians
@Sam Duncan April 25, 2018 at 4:37 pm
To the legal mind, if the law says something is wrong, then it’s wrong, and juries just get in the way of convictions. (The most heated argument I ever had with him was over the idea that taxation is theft. He says it isn’t because the law permits it.)
So, in other words, whatever the law says is the law and whatever the law permits is all OK and that is that.
OK, I’ll invoke Godwins law here. Some of the finest legal minds in Nazi Germany compiled the legislation that permitted the Jews to be exterminated. Similarly, the laws needed to euthanise mentally subnormal individuals in institutions were written, voted on in the Reichstag and passed. Hence the law most certainly “permitted” it and by that reasoning, the members of the SS that were concentration guards were no more culpable than the Government hangmen that executed the condemned in the UK. All done legally and above board.
How does that sit with the concept of the majesty of the law, eh?
My opinion is that the law is so far out of kilter that the people need not obey it. They were not consulted about it and if it was put to a referendum (stop sniggering at the back, sit up and pay attention!) then the stupidities and overbearing reach of the Forces of the State would be swept away. But that isn’t going to happen.
As others (such as Sam Duncan and Mr Ed) have already implied – the real problem is that many judges (and other such) do not care about the principles of law.
There are two stages to this – the first stage is to say (with Thomas Hobbes, David Hume, Jeremy Bentham and YES even John Stuart Mill) that “the law” is simply the “will of the state” – that there is no natural law based on private property rights, and the state can (for example) lock someone up because it does not like their opinions (yes Mr Mill hated that – but his view of what “law” is means that he can only making a begging appeal against it, not state that it is UNLAWFUL).
But that (again has other have already stated) is only the FIRST STAGE – what if the state does NOT pass “laws” forbidding “hate speech” and so on?
Leftist judges have an answer to this – first they distort the statutes on the books (getting rid of juries is indeed important in this regard), but they do not stop there.
As we see in the United States, and have done for many years now, leftist judges are quite capable of MAKING STUFF UP – demanding that the government (local, State and Federal) do X (say conduct “Gay Marriage” ceremonies – and force private persons to “recognise” these ceremonies) even if there is no statute whatever saying anything like this.
It is like a mirror in “fun house” – the judges may have (in their own perverted leftist way) half remembered the concept of “natural law” but INVERTED it – instead of natural law being about the preservation of private property rights based freedom of Civil Society (as with the case of Dr Bonham in 1610 – with the striking down of both a Royal command and a Parliamentary statute that a man be punished for the “crime” of practicing medicine without a piece of parchment called a “license”) the modern courts issue orders designed to DESTROY (undermine) Civil Society on behalf of leftism (Frankfurt School Marxism, French “Post Modernism” and so on).
One sees this in the United States almost every week – and NOT just from judges appointed by Comrade Barack Obama (with his fanatical hatred of all the United States is supposed to stand for), but also by many other judges. The basic process of legal education has been corrupted.
Actually there is no real contradiction with the philosophy of Thomas Hobbes – as Mr Hobbes never said that the “sovereign” had to be either the King or Parliament. It is perfectly consistent for leftist judges to issue order that both spit on the tradition of the Common Law (of Sir Edward Coke, Sir John Holt and so on) AND which spit on statutes (both State statutes and Federal statutes – and the written Constitution) – all that is needed is for the judges to consider THEMSELVERS the “sovereign” of Mr Hobbes (or the “Lawgiver” of Rousseau – who is really Thomas Hobbes in a mask of “freedom”).
Yes it is true that not all judges are leftist enemies of civilisation – but many are. Even the United States Supreme Court contains some people who want (yes WANT) to see the United States, and the West in general, utterly destroyed – as well as some weak or confused people who often do not fully see what is really at stake in particular cases. And it becoming the same in Britain.
The utilitarian judges (who just want a quite life – with no one expressing opinions that will upset groups likely to express their upset in nasty ways, such as the forces of Islam) are joined by judges who actively seek the destruction of “capitalist” civilisation.
Which is which? Which are the utilitarian judges and which ones are the Marxists or Post Modernists?
At this stage it ACTUALLY DOES NOT MATTER – as neither sort of judge has any respect for the fundamental principles of law, and will (thus) rule the same way.
The “soft left” (the Economist magazine types and utilitarian judges who “just” want everyone to be nice – and not express opinions that will upset others, and of course want everyone to be disarmed, and want the state to provide all basic needs from “the cradle to the grave”) join with the “hard left” who want to destroy “capitalist” civilisation – NOT because the “soft left” want to destroy civilisation (the Economist magazine types and utilitarian judges like their comfortable life style thank-you-very-much), but because they can not really see the “end game” of the hard left – and mistakenly think that the hard left are “liberals” like themselves.
As recently as 2008 I was astonished and horrified that the entire “liberal” establishment (in Britain as well as the United States) could support someone with a Marxist background (Barack Obama) who had never really broken with his past – but now it is what I EXPECT.
It is not that the “liberal” establishment actually want to destroy civilisation (again – they like their comfortable life style), but they will make no real stand to defend “capitalism” – their basic philosophy gives them no where solid upon which to make such a stand. This means the “liberals” (who are not really liberals at all) with their denial of freedom of speech, and the right to keep and bear arms, and basic private property rights (for example their support of the “anti discrimination” principle – which they only apply to groups the LEFT LIKE, conservatives are not defended by “anti discrimination” doctrine in education, or in trade, or in employment), are just as much our enemies as the Marxists.
“But I do not want to destroy civilisation” – yes, but you support the side that does.
As of April 29, 10AM central time, he has 155,330 pounds (with a 100,000 pound goal), made by nearly 7000 people in 4 days time, and the number climbs by the minute. I sent it out on the inter-webs to make even more social media rounds.