Parliamentary Privilege in its widest sense

This is a fascinating case, largely because of the defence that the defendant in it tried to raise. To understand it requires going back a little way in history.

Most of you will know that the English Civil War involved a conflict between the sovereign, King Charles I and the Parliament as to their respective legal powers and authority. A large part of this was due to Charles' interference in the freedoms of Parliament (for a curious historical anecdote and a lasting tradition, search for the fantastically titled Gentleman Usher of the Black Rod). Subsequent to the Civil War and the Commonwealth headed by the Cromwell's protectorate, the Restoration of the Stuarts with Charles II, there was another conflict with James II over Parliamentary sovereignty, effectively a second civil war. That led to the Parliament inviting William and Mary to take the throne. One of the acts passed to complete as part of the settlement that led to them taking power was the Bill of Rights 1688/9 (depending on which calendar one chooses to use). One of the particular provisions is:

"That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."

The effect of this means that, in general, what is said and done within Parliament cannot be tested or be used as the basis for a legal proceeding in the courts as that would infringe upon Parliament's sovereignty.

There are some creative interpretations of this rule, such as here:

[4] Mr Terry was charged that on 7 July 2006 he used a telephone for the
purpose of disturbing, alarming, or offending the recipient by making references to
delivering a child’s head to Parliament and to two truck bombs. The
Private Secretary for Damien O’Connor MP, Mr Coburn, gave evidence of the call.
He said that he received a telephone call from Mr Terry on 7 July 2006. He
recognised Mr Terry as he was a relatively regular caller. The call lasted
approximately 10 minutes. During the call Mr Terry made two threats, one
concerned two truck bombs being delivered to Parliament, the first to blow up
Parliament, the second to get the survivors when they came out. The second threat
was to deliver a child’s head to Parliament.
 ...
 [12] Mr Terry then sought leave to appeal. He advanced four grounds (which he
repeated in his application to this Court):
(1) Evidence presented at trial by the police was challenged;
(2) William Young J’s ruling in a case in 2001 was wrong in law;
(3) Judge Walsh’s ruling in a Greymouth District Court trial in 2005
regarding privilege;
(4) The Crown cannot rewrite the Bill of Rights 1688 in New Zealand.

The point is that Mr Terry is seeking to argue that his communication with the MP's staff is a "proceeding in Parliament" and therefore cannot be questioned in a court of law, including by way of charging him with a crime. As his argument went:


[14] Fogarty J then considered that the second, third and fourth points related to
Mr Terry’s reliance on art 9 of the Bill of Rights Act that “the freedom of speech and
debates or proceedings in Parliament ought not to be impeached or questioned in any
court or place out of Parliament”. Fogarty J noted the argument was that the right
applied when making a telephone call to Parliament and the evidence of the person
receiving the call should not be admitted in the ordinary courts at all, let alone in
criminal proceedings, because to do so is a restriction on that freedom. Fogarty J
held that was essentially the same point taken by Mr Terry in previous proceedings:
Terry v Police HC GRY CRI 2003-418-000008 5 May 2004 when he appealed
against another conviction under the Telecommunications Act 2001.

The Court of Appeal turned him down however, noting that this was Mr Terry's second attempt at such an argument:

To the extent that Mr Terry seeks to reargue the issue of the admissibility of
evidence in purported breach of art 9 of the Bill of Rights, the argument has been
considered by this Court before in another case involving Mr Terry: R v Terry
CA177/04 22 July 2004.

 

Curiously specific, but why there?

""[The Agreement] is expressly governed by English law and contains a clause which, in an eccentric excess of particularity, names Milton Keynes as the exclusive place of jurisdiction."
- EWCA, unknown judgment

Milton Keynes is a new town in the South of England, not too far from London. Everything I've heard about suggests it's not particularly amazing but apparently its courts are to be trusted.

The crime of "aggravated mayhem"...

To someone who speaks British English, most of the time (law speak the rest) so it's interesting to see how words sometimes evolve in the North American tongue. Take this example:

CA Penal Code s 205: "A person is guilty of aggravated mayhem when he or she..."

Most of us would, I suspect, understand mayhem in the sense of chaos or confusion. Turns out that its historical meaning is that of violent injury (http://www.oed.com/viewdictionaryentry/Entry/115310) though it doesn't seem to have been used as such since the late 19th century at least.

I came across the term as a result of this article, pay close attention to the text of the link: http://www.guardian.co.uk/commentisfree/2011/jul/14/rupert-murdoch-man-lost-penis

Strongly worded criticisim...

A commentator's perspective on some statutory drafting:

"A person engages in [resale price maintenance] when and where they do any one of a number of defined acts in s 37(3). Section 37 is horrendous. It is the type of statutory defating best read in a dark room with a wet towel around one's head. Having done that and as a service to readers, we have tried to summarise RPM below..."

Of course these are competition law specialists talking so their perspective on complicatedness and incomprehensibility can either be regarded as:
a) supremely valid; or
b) somewhat ironic

Competition Law for non-specialists, Andy Nicholls and Matt Sumpter

When I grow up I wanna be a....

Courtesy of the County Courts Act we have the mysterious office of a "Trinity Master" upon whom the Court of Appeal in Admiralty cases is to call:
"Where, on an appeal by a party to any Admiralty proceedings which have been heard in a county court with the assistance of assessors, any party makes application to the Court of Appeal in that behalf, the court shall summon Trinity masters to assist on the hearing of the appeal if the court is of opinion that such assistance is necessary or desirable."

Who are these mysterious figures? Well it actually takes a little bit of digging (ie more than several google searches) but it's worth it. It all stems from Trinity House which is effectively a guild of lighthousemen and sea pilots established in the 1500s. The members of the Corporation are divided into Elder and Younger Brethen. Elder brethren are known as Masters.

Here's a good quick summary:

"Trinity house
The Corporation of Trinity House, established as a guild of mariners by King Henry VIII of England in 1517, in the Parish of Deptford Strond, in the County of Kent (now near the Tower of London). The Trinity House has been responsible, since the time of Queen Elizabeth I, for the erection and maintenance of lighthouses, lightships and buoys in English waters. It is also the authority for the licensing of pilots. The "Elder Brethren" of Trinity House (retired sea captains, also known as "Trinity Masters") serve as nautical assessors to the High Court, Admiralty Division."

Another true gem, not to mention a flagrant abuse of habeus corpus

For those non-lawyers who might look at this, and I don't expect there to be many, habeus corpus is a fairly ancient procedure to rapidly challenge whether someone is being held in custody/imprisoned legally, it's a fairly special procedure and is usually allocated an urgent hearing. I even remember a case where the judge held a hearing in his lounge in his dressing gown in one instance. It's a powerful remedy or mechanism, of course there are certain people inclined to abuse, such as in the following.

"[1] Gordon: of the House of Israel (Mr Israel) seeks interim orders to effect the release of a “canine”, known as Sally. Sally was impounded by Dog Contro Officers employed by the Hauraki District Council (the Council) because Mr Israel had failed to pay her registration fee.

[2] In brief, Mr Israel deposes that “Sally is a living being who is loved and cared for as part of the Israel household”. Mr Israel does not accept that Sally is a dog. He submitted that the term “dog” has a number of meanings that are pejorative in nature. A “dog” is something he regards as “undesirable and therefore suitable for or requiring regulation”. On the other hand, he sees a canine such as Sally, who is inoffensive and a “well loved member” of his household as something that ought not to be the subject of regulation.

[3] For those reasons, Mr Israel declined to pay a registration fee for Sally to the Council. As a result of his failure to do so he was prosecuted under the Dog Control Act 1996. He was convicted after a defended hearing in the District Court at Waihi on 27 October 2006. He has lodged an appeal against conviction and the fine and Court costs imposed.

[4] Because Mr Israel failed to comply with a requirement that he pay the registration fee, Sally has been impounded by [the] Council...

[6] Mr Israel seeks, in the alternative:
a) An order for habeas corpus, releasing Sally from detention by the Council.

b) An Anton Piller order (I gather) to search the Council pound and to remove Sally into his care.

c) An interim injunction to restrain the Council from destroying Sally and requiring it to deliver Sally into his care pending substantive issues being determined.

[7] The Council oppose the application on the grounds:
a) That the writ of habeas corpus is only available to human beings. ...

[8] Mr Israel drew my attention to a sealed document issued by Nga Uri o Tupoto (Inc), purportedly as a “Record of Canine Whanau”...

(b) Habeas corpus

[14] The ancient writ of habeas corpus is designed to protect the liberty of the subject. It ensures that human beings who are alleged to be unlawfully detained may be brought before the Court to inquire into the reasons for the detention.

[15] The Habeas Corpus Act 2001 reaffirms “the historical and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty”: s 5(a). The Habeas Corpus Act speaks of the Court’s jurisdiction to order release of a “detained person”.

[16] Mr Israel argued that the phrase “person” extended to a canine. That argument is untenable...

[28] It is unsurprising that the term “dog” is not defined by the Dog Control Act. Parliament must be taken to have assumed that the citizens of this country were perfectly capable of identifying a dog when they saw one. Sally is described as a “female, black border collie” who, when seen by a Dog Control Officer (on Mr Israel’s property) on 27 February 2006, was with a litter of pups. That is ample evidence to demonstrate that Sally is a “dog” for the purposes of the Dog Control Act."

Gordon: of the House of Israel v Sexton HC, 15 December 2006

The niceties of legal language

Some people reading this (if indeed there are any) may have heard of Private Eye magazine. For those who haven't, it is, in brief, a combination of satirical, investigative and media journalism. Which basically means it's devoted to rarking up public figures and other organs of the press, as well as investigating scandals and exposing hypocrisy. I quite enjoy it, even if it is occasionally heavy going, and even when it criticises the Guardian, one of my more trusted sources of information.

The people behind Private Eye are also quite fearless and the regular targets of lawsuits in the UK. It has been said that the current editor, Ian Hislop, is the most sued man in Britain. In this he's really only continuing a long-running tradition of the magazine, as the following illustrates.

The magazine had made an allegation relating to a Mr Arkell, apparently with ample proof. He lawyered up, apparently the exchange goes like this:

" Solicitor (Goodman Derrick & Co.):
We act for Mr Arkell who is Retail Credit Manager of Granada TV Rental Ltd. His attention has been drawn to an article appearing in the issue of Private Eye dated 9th April 1971 on page 4. The statements made about Mr Arkell are entirely untrue and clearly highly defamatory. We are therefore instructed to require from you immediately your proposals for dealing with the matter. Mr Arkell's first concern is that there should be a full retraction at the earliest possible date in Private Eye and he will also want his costs paid. His attitude to damages will be governed by the nature of your reply.

Private Eye:
We acknowledge your letter of 29th April referring to Mr J. Arkell. We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.

[No further reply]"

There has been a subsequent tendancy to respond to other legally menacing letters with the phrase:
"We refer you to the reply given in the case of Arkell v. Pressdram"

More here: http://gruntfuttock.posterous.com/arkell-v-pressdram and on Private Eye generally: http://en.wikipedia.org/wiki/Private_Eye