November 2011 articles archive:

Judge Buller and the Arkwright trial.

Judge Buller was often criticised for his sometimes hasty and prejudiced behaviour on the bench. He was alleged to have said that a husband could thrash his wife with impunity provided the stick was no bigger than his thumb

Francis Buller was educated at the Grammar School in Ottery St Mary and went on to Christ's Hospital, London. In February 1763, he became a pupil of William Henry Ashurst at the Inner Temple. He became a special pleader in 1765. A special pleader was a lawyer who specialised in drafting "pleadings" or what are now referred to as statements of case. He was called to the bar in 1772 and became King's Counsel in 1777. In  the following year at the age of 32, he was made a puisne [subordinate] judge of the King's Bench.

 

He was often criticised for his sometimes hasty and prejudiced behaviour on the bench. He was alleged to have said that a husband could thrash his wife with impunity provided the stick was no bigger than his thumb, leading to the phrase “rule of thumb” which is still used today but never as part of English common law merely as a colloquialism.

 

In 1785 he presided over an important trial involving the validity of a patent held by Richard Arkwright the cotton manufacturer. Arkwright had invented and patented many machines used in the process of producing yarn. This meant that much of the cotton industry manufaturers were using technology which was owned by Arkwright but because this technology was so sucessfull they continued to use the machinery without Arkwright's permission. Arkwright had already taken legal action against nine firms in 1781. The nine firms claimed that the language of his patents was too vague and Arkwright, who had wanted the language of his patents to be exactly that was found to have no case.

 

So in 1785 he took legal action once more to enforce his patents, but by now so many were using his machines that he could not defeat them.Mr. Justice Buller stated, that -  the case was of great importance and that one of the questions was, whether the machinery was invented by the defendant. Judge Buller concluded as follows: " Gentlemen. thus the case stands, as to the several component parts of this machine; and if upon them you are satisfied, none of them were inventions unknown at the time this patent was granted, or that they were not invented by the defendant, upon either of these points, the prosecutor is entitled to your verdict. If upon any point, you are of opinion with the prosecutor, you will find a verdict for him. If upon all the points, you are of opinion for the defendant, you will find a verdict for him."


The verdict was against the defendant; a new trial was moved for, but no allegation was made of a misdirection in point of law.


Reference is still made to Arkwright and Judge Buller even now, and is mentioned in a Report to the Strategic Advisory Board for Intellectual Property Policy prepared in 2010:


....and the fact that a patent-holder may 'undercut disclosure by being either terse or wordy - disclosing so much that the key points are obscured by irrelevant verbiage and data' The strategy is as old as Arkwright‟s patent, which was eventually revoked. Buller CJ said that if, to work the patent “four things only were necessary instead of ten, the specification does not contain a good account of the invention”: R v Arkwright (1785)

 

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Comparison - General and Local Elections

For law students and tutors. This will help students recognise the difference between General and Local Elections and the different types of work elected candidates will do.

It is hoped that the following table may be of help to tutors when explaining to Uniformed Public Service students what might be achieved in terms of their comparison of two elections processes. 

The table compares general elections with local elections. 

The areas mentioned are not held out to be complete or exhaustive and indeed students may be able to add additional areas for comparison.  The points that are made have been deliberately kept brief but hopefully sufficient to get students underway - the intention being that it will be for students to develop the points with more detail and examples where appropriate.  The resource is set out as a table but may be adapted to produce a written report or a presentation as required by individual tutors.

The resource may be particularly helpful when comparing the election processes and responsibilities of two levels of government for a merit in Unit 1: Government, policy and the public services.

General elections - UK Parliament

Local government elections in England - About my vote, produced ...

 

General Elections

 

 

Local Elections

 

Area - Country as a whole.

 

Local councillor serves on county, district or parish council.

Responsibilities – a Member of Parliament is elected to represent the public's interests and concerns in the House of Commons. MPs consider and propose new laws, and can raise questions about current issues with government ministers.

 

Responsibilities – A Councillor is elected to represent the people, and their views, in their area, (ward), and have to work towards a compatible local environment. They serve for four years. In England and Wales there are more than 20,000 elected councillors and they represent 410 local authorities. They hold surgeries where people can come to discuss local issues.

Media coverage – national news. Now includes TV prime ministerial debates.

 

Coverage is more limited – usually restricted to local newspapers or local television stations.

 

Politics play a major role – It is usually the party the candidate represents that is voted for rather than the individual.

 

Politics may be less important – this is debatable as in some cases it is the person that is elected and in other cases it is the party he represents.

 

Candidates – see opportunity for full time position – EG David Cameron – Prime Minister, William Hague – Foreign Secretary, Nick Clegg – Deputy Prime Minister.

Candidates are volunteers - Councillors do not receive a salary , but they can claim allowances and expenses towards the cost of carrying out their duties.

 

May attract attention from overseas.

 

Unlikely to attract attention outside our country.

 

Taken more seriously -campaigns, meetings, TV coverage etc.

 

Sometimes less well supported.

 

Seen as more important as outcome affects overall government, population as a whole.

 

Outcome only affects local area.

 

 

 

Prime minister and senior ministers are MPs.

 

Local councillors do not form the  government and are not entitled to sit in Parliament.

 

Elections spending limits – There are expenditure limits at general elections. As constituencies are larger than wards there is a lot more travelling involved to contact as many people in a constituency as possible.

 

Less resources – so less spent - There are no separate limits on campaign expenditure incurred during local election campaigns. Because wards are smaller than a constituency it is easier for candidates to campaign on a personal basis by knocking on doors.

 

Opinion Polls seem to matter more

 

Opinion polls seem to matter less

 

Examples of services – we have MPs whose roles include – the chancellor, foreign secretary,defence secretary, health secretary,secretary of state for work and pensions and the business secretary with responsibility for "business and banks" .

Examples of local services – locally elected councillors help facilitate the provision of local services and facilities this includes public services, including schools, social services, and public transportation,council housing, gyms and leisure facilities, local planning, recycling and trash collection.

 

The expense for a candidate hoping to be elected in a General Election can be crippling.

Costs for candidates hoping to be elected in local elections is less prohibitive.

 

Held every five years unless there is a motion of no confidence or a motion for a general election is agreed by two thirds of the total number of seats in the Commons.

Councillors are elected for a period of four years.

 

Garrow’s Law - Spitalfields Riots 1765 – 1769

Anyone watching Garrow’s Law (Sunday 20th November 2011) could be forgiven for making a connection between the events of the Spitalfields Riots circa 1769, and the events of what have now become known as the August Riots of 2011.

Anyone watching this week's episode of Garrow's Law, (Sunday 20th November 2011) could be forgiven for making a connection between the events of the Spitalfields Riots circa: 1769 as portrayed in the episode, and the events of what have now become known as the August Riots of 2011.

During Garrow's passionate and driven cross examination of a master weaver giving evidence for the crown, we were treated to an inspired plea to the jury. Garrow carried on, ignoring Judge Buller's protests and threats to hold him in contempt of court - music to the ears of any aspiring counsel!  They don't teach you that during vocational training.

We also learnt about paid informants when Garrow reminded one witness of the consequences of his earlier performance as a witness in sending two men to the gallows.  Apparently on 6th December 1769, the two men involved in that trial were hanged in Bethnal Green, in front of the Salmon and Ball, a public house which still exists today.

Somehow, in true Garrow style, a written note was produced, purporting to be the last words spoken by one of the condemned men, John Doyle.  Garrow, with expert timing and panache, read out the recorded words that John Doyle allegedly spoke to the crowd as he stood on the hangman's scaffold with the rope around his neck:

" I John Doyle do hereby declare, as my last dying words in the presence of my Almighty God, that I am as innocent of the fact I am now to die for as the child unborn. Let my blood lie to that wicked man who has purchased it with gold, and them notorious wretches who swore it falsely away."

In the episode this week, two male defendants were in dock charged with rioting and damaging looms and cutting silk. Riots were common place at the time as impoverished weavers fought against the effects of cheaper imports from France and Ireland driving down prices and denying them of their livelihoods. There was no question about considering what was to be done with them - they were to be hung if convicted.

Dramatically one defendant turned King's evidence against the other and gave evidence for the Crown. Just to add another twist to the trial the defendants were brothers in law and long time friends, and the one remaining defendant, condemned by the other, was married to his friend's sister and would be hung if found guilty by the jury.

In a fit of brilliance and either self-confidence or foolhardiness, Garrow embarked upon a last ditch, do or die attempt to sway the jury by pulling at their heart strings to persuade them to return a 'perverse' verdict (yes it is surprising what we can learn from dramatisations), by finding the defendant not guilty against all the evidence. It worked, and the foreman of the jury, despite what some might have seen as an attempt by Judge Buller to bully the jury by allowing them hardly any time to deliberate and by saying there was nothing to consider - meaning that the defendant was guilty, uttered the words 'not guilty'.

However, was the defendant 'guilty' all along? Garrow had acted true to his profession and to his abilities but had he unwittingly got 'carried away'? We shall never know. Perhaps even more confusing is the fact that Garrow was born 13 April 1760, joined Lincoln's Inn in November 1778, and was called to the Bar on 27 November 1783 some years after the Spitalfields Riots!

 


 

 



Garrow's Law - Poetic licence?

Hadfield's trial on June 26th 1800 along with Daniel M'Naghten's in 1843 formed the basis of the defence of insanity.

A recent episode of Garrow's Law on the BBC on 13th November 2011 highlighted the case of James Hadfield. Hadfield was charged with treason for the attempted assassination of King George III. He fired a pistol at the King as he went into the Royal Box on 15th May 1800.

 

Hadfield's trial on June 26th 1800 along with Daniel M'Naghten's case in 1843 formed the basis of the defense of insanity. In Hadfield's case Lord Kenyon felt that prison would not be the right place for him but also felt it would be wrong for him to be released. He was returned to Newgate Prison initially but was transferred to Bethlem Hospital in October 1800. This decision led to the decision that a successful plea of insanity should result in automatic confinement.

 

So, interesting viewing for all of us interested in the law, but in fact Mr Garrow did not defend James Hadfield, as a matter of fact he was junior counsel for the Crown, and Counsel assigned for the prisoner was The Hon. Thomas Erskine. See below for more details.

 

Poetic licence perhaps?

 

 

Court Of King's Bench June 26th 1800.

Present.—-Lord Kenyon Chief Justice; Mr. Justice Grose; Mr. Justice Lawrence; Mr. Justice Le Blanc.

Counsel for the Crown.—Mr. Attorney General [Sir John Mitford, afterwards Lord Redesdale; successively Speaker of the House of Commons and Lord chancellor of Ireland].

Mr. Solicitor General [Sir William Grant, afterwards Master of the Rolls].

Mr. Law [afterwards lord Ellenborough and Chief Justice of the King's-bench].

Mr. Garrow [afterwards a Baron of the Exchequer],

Mr. Wood [afterwards a Baron of the Exchequer].

Mr. Abbott [afterwards Chief Justice of the King's-bench].

Solicitor.—Joseph White, esq. solicitor for the affairs of his Majesty's Treasury.

Counsel assigned for the Prisoner.—The Hon. Thomas Erskine [afterwards Lord Chancellor Erskine].

Mr. Serjeant Best [afterwards a Judge of the King's-bench].

Assistant Counsel.—Mr. Knapp.

Solicitor.—Mr. Charles Humphries.

Courtesy of Cobbett's complete collection of state trials and proceedings for high treason





 

 

Stephen Lawrence murder trial commences.

Legal history was made in 2006 when William Dunlop became the first man to face a retrial under the double jeopardy rule. Now, 18 years on, two men will face a retrial charged with murdering Stephen Lawrence.

It was Stephen's case and others like it that prompted the government into reviewing the 800 year old double jeopardy rule which prevented someone being tried again for the same offence if they had previously been acquitted. The Criminal Justice Act 2003 meant that the law was eventually changed allowing a retrial if there is “new” and “compelling” evidence in the case of serious crimes such as murder armed robbery rape and some drug offences. The Act came into force on April 4th 2005 but, as in the case of Stephen Lawrence, can be applied retrospectively.  The trial of Gary Dobson and David Norris in this high profile murder trial has commenced at the Old Bailey, London.

 

Legal history was made in 2006 when William Dunlop became the first man to face a retrial under the double jeopardy rule after his case was referred to the Court of Appeal by the Director of Public Prosecutions, Ken Macdonald, QC. Dunlop pleaded guilty in September 2006 to the murder of Julie Hogg in 1989. The Attorney General, Lord Goldsmith, said: "The Criminal Justice Act of 2003 brought about a significant and welcome change in our criminal justice system, by giving the Court of Appeal the power to quash an acquittal and order a retrial for a serious offence when there is new and compelling evidence relevant to the guilt of the acquitted person.


"It is in the interests of justice, and of the public, for such retrials to take place. As this verdict shows, if acquitted of a serious crime, offenders will no longer be able to escape responsibility for their act should new and compelling evidence come to light. At last there is justice for Julie. And for her family, especially Ann, (the victim's mother) who fought so hard for this day, even coming to Parliament to tell me why we had to change the law. She was right."

On the 13th December 2010 Mark Weston was found guilty of the murder of Vikki Thompson in 1995 at Reading Crown Court. This followed a second trial, which was granted on the basis of scientific evidence, uncovered 13 years after he was acquitted of the same offence.

Detective Superintendent Barry Halliday, head of Thames Valley Police's Major Crime Review Team, said: "Mark Weston was originally tried in 1996 and the jury returned a verdict of not guilty. Thanks to an intensive investigation by my team, working closely with the Crown Prosecution Service (CPS), LGC Forensics, and the Forensic Science Service (FSS), new forensic evidence was uncovered which proved Westons guilt and he has now been convicted of Vikkis murder.............. Although the Thompson family now have the knowledge that the person who killed Vikki is behind bars and being punished for his crime, they have still lost a much loved wife, daughter and mother, and Weston has not given any reason or explanation of why he killed Vikki.

"This is the third murder conviction in the UK under the double jeopardy law. Offenders should be aware that my team, and others like it across the country, will continue to relentlessly investigate unsolved homicides and serious sexual assaults to bring those responsible to justice."

The Crown Prosecution Service can advise that there is not enough new evidence to permit a new investigation or re-trial as in the case of former doctor, Howard Martin, in February 2011. Martin had been acquitted of murdering three of his patients in 2005. The case was reopened and preliminary inquiries were carried out but in a statement Durham's Chief Crown Prosecutor said "The law was changed in 2005 to allow those who had been acquitted of serious offences to face a retrial in certain circumstances if there is new and compelling evidence......"After careful consideration of this material, including discussion with leading counsel who prosecuted in the 2005 murder trial, I have decided that in these circumstances there is not sufficient new evidence, as the law requires, to warrant the conduct of an investigation which must the authorised by the DPP. I have advised the police of this.”

European Law: Directives – Needless laws? Now it's the NHS.

The French and German leaders have called for "true economic governance" for the eurozone in response to the euro debt crisis.

At a time when it seems that countries caught up in the Eurozone debt crisis are on the verge of financial collapse and ruin, it is reported that Angela Merkel, the German Chancellor, has called for a move towards greater European integration. There are suggestions that a new EU Treaty might be needed to give the EU greater financial powers to prevent countries belonging to the EU from getting into debt.

 

Treaties are agreements entered into between member states and are a primary source of EU law. It will be interesting to see how many member states take up the proposal so soon after the Lisbon Treaty which was intended to make the EU more democratic, more transparent and more efficient. The move sounds like a suggestion that all member states are ipso facto obliged to collectively approve or guarantee the debt of individual member states in some way according to overall financial control. Would this be exercisable as a price for belonging to the EU?

 

The aim of the Treaty was to build upon progress which was developed by the Treaty of Amsterdam 1997 and the Treaty of Nice 2001 which was directed towards an improved coherency within the EU. There is an argument that some leaders are trying to achieve a form of United States of Europe which would drain parliamentary sovereignty away from domestic parliaments to an even more bureaucratic, power hungry Europe. With negotiations concerning the future of the Eurozone becoming a matter of personal pride to the German Chancellor and very little in the way of certainty and clarity, it is not surprising that some critics of the Lisbon Treaty seem to be saying 'we told you so'.

 

It is not unexpected then, that there seems to be a growing intolerance of the EU trying to tell us what to do in the form of Directives, which must seem to serve as confirmation that the EU is increasingly out of step with concerns over national policy making in sensitive areas such as the NHS. Apparently an EU directive means that we are expected to introduce legislation from August 2012 to put in place a licensing body in respect of transplants. Professor Roger Williams, a leading transplant surgeon, is not convinced that such a regime, which is in danger of duplicating systems and arrangements already in place, is really necessary. A figure of £24 million has been associated with the implementation of the directive and this is before consultations have been completed as to how the requirements of the directive are to be met.

 

Many of you will remember that EU Directives do not take immediate effect but are implemented by the member states themselves within a specified time limit.

 

 

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