Given the DPP's decision to prosecute some of the MPs' in the expenses debacle for Fraud and the News that the Defendants are going to rely on the Ancient Bill of Rights from 1689 to defeat the charges brought against them under the Theft Act; how would the forfeiture of cash under part 5 of POCA stand up to a challenge under this ancient legislation? Such forfeiture without conviction is forbidden by the 1689 Bill of Rights. As I understand the status of that ancient Act; it is a creature of constitutional law and cannot be overridden by Statute law and is therefore still good law!
And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare:
That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;
That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
That election of members of Parliament ought to be free;
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;
That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
"He is not an international lawyer" said the lady, to the Chilcott panel.
I am not a constitutional lawyer, but I would need some persuading of your starting position, and one doesn't need to look too hard at the bill of rights to doubt that it has all to be taken as Holy Writ.
My biggest problem is that you seem to be slipstreaming a suggested defence, [the Berlusconi defence?], which none but the absolutely desperate would, in my view, dare attempt in Britain today.
"He is not an international lawyer" said the lady, to the Chilcott panel.
I am not a constitutional lawyer, but I would need some persuading of your starting position, and one doesn't need to look too hard at the bill of rights to doubt that it has all to be taken as Holy Writ.
That maybe so, but it meets head on with the fact that forfeitures without conviction are illegal and void under that legislation as opposed to the tenuous link with Parliamentary Privilege from the same legislation that the eminent QCs' have indicated the Defendants' could rely on?
My biggest problem is that you seem to be slipstreaming a suggested defence, [the Berlusconi defence?], which none but the absolutely desperate would, in my view, dare attempt in Britain today.
I thought the principle of Parliamentary Sovereignty meant that any new statute can overrule any previous one? We don't have any of those pesky written constitution thingies round these parts.
I thought the principle of Parliamentary Sovereignty meant that
any new statute can overrule any previous one? We don't have any
of those pesky written constitution thingies round these
parts.
Dont we? Are you sure about that? You might want to read up on
your constitutional law a little, and a few documents like magna
charta!
62...
We should recognise a hierarchy of Acts of Parliament: as it were
"ordinary" statutes and "constitutional" statutes. The two categories
must be distinguished on a principled basis. In my opinion a
constitutional statute is one which (a) conditions the legal relationship
between citizen and State in some general, overarching manner, or
(b) enlarges or diminishes the scope of what we would now regard as
fundamental constitutional rights. (a) and (b) are of necessity closely
related: it is difficult to think of an instance of (a) that is not also an
instance of (b). The special status of constitutional statutes follows
the special status of constitutional rights. Examples are the Magna
Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which
distributed and enlarged the franchise, the HRA, the Scotland Act
1998 and the Government of Wales Act 1998. The ECA clearly
belongs in this family. It incorporated the whole corpus of substantive
Community rights and obligations, and gave overriding domestic
effect to the judicial and administrative machinery of Community law.
It may be there has never been a statute having such profound
effects on so many dimensions of our daily lives. The ECA is, by
force of the common law, a constitutional statute.
Which also goes on to say that constitutional law cannot be subject to
implied repeal - only express repeal
Theres been a rumbling going on for some time on the legality of
"penalties" under 1689 BOR on some of the "tin foil hat wearing"
sites, and to be fair theres a strong legal argument in their case, but
so far no-one has really followed it through and argued it all the way
, with the big get out clause so far having been that "penalties" are
not "fines or forfeitures" [IMG]smileys/smiley5.gif" />
And this is before we even begin to look at the fiction that is
"parliamentary supremacy" which suggests that no parliament can
bind another
Quote:
said declaration and the articles, clauses, matters and things
therein
contained by the force of law made in due form by authority of
Parliament, do pray that it may be declared and enacted that all and
singular the rights and liberties asserted and claimed in the said
declaration are the true, ancient and indubitable rights and liberties
of the people of this kingdom, and so shall be esteemed, allowed,
adjudged, deemed and taken to be; and that all and every the
particulars aforesaid shall be firmly and strictly holden and observed
as they are expressed in the said declaration, and all officers and
ministers whatsoever shall serve their Majesties and their successors
according to the same in all time to come.
Parliament bound itself at the outset! And we don't here even
consider the importance of the limitation set upon the powers of the
crown by the great charters of 1215, and whether the queen has
abdicated her monarchy through breach of those settlements
I thought the principle of Parliamentary Sovereignty meant that any new statute can overrule any previous one? We don't have any of those pesky written constitution thingies round these parts.
I think you will find that Constitutional Law cannot be overruled by Statute Law. If that were not so, then the emiment QC's speaking for the MPs' would be aware that the Theft Act of 1968 would over rule The Bill of Rights of 1689 and would not be suggesting that the Parliamentary Priviledge referred to therein provides them with a defence to the charges brought undert the Theft Act?
It would be helpful if members made links work by use of the toolbar above and check that they work. I have copied and pasted the url and it does not work.
I thought the principle of Parliamentary Sovereignty meant that any new statute can overrule any previous one? We don't have any of those pesky written constitution thingies round these parts.
Dont we? Are you sure about that? You might want to read up on your constitutional law a little, and a few documents like magna charta!
62... We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.
Which also goes on to say that constitutional law cannot be subject to implied repeal - only express repeal
Theres been a rumbling going on for some time on the legality of "penalties" under 1689 BOR on some of the "tin foil hat wearing" sites, and to be fair theres a strong legal argument in their case, but so far no-one has really followed it through and argued it all the way , with the big get out clause so far having been that "penalties" are not "fines or forfeitures" [IMG]smileys/smiley5.gif" />
Civil forfeiture is not a penalty. A penalty can only be imposed once there has been a finding of guilty. Civil confiscation is different to civil forfeiture in that it follows a conviction of an appropriate offence and is therefore part of the sentencing and therefore a penalty; whereas civil forfeiture of shall we say cash seized from a persons home where no conviction has been secured against the person from whom the cash was seized cannot be regarded as a penalty and in my view offends against the rights bestowed on us all under the Bill of Rights of 1689.
And this is before we even begin to look at the fiction that is "parliamentary supremacy" which suggests that no parliament can bind another
Quote:
said declaration and the articles, clauses, matters and things therein contained by the force of law made in due form by authority of Parliament, do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed and taken to be; and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration, and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all time to come.
Parliament bound itself at the outset! And we don't here even consider the importance of the limitation set upon the powers of the crown by the great charters of 1215, and whether the queen has abdicated her monarchy through breach of those settlements
I am led to believe that forfeiture without conviction has existed in the past (but I cannot say whether this came to an end with the Bill of Rights).
According to 'The Proceeds of Crime Act 2002' (Butterworths New Law Guides) by Biggs, Farrell and Padfield:
"When an individual's property (animate or inanimate) caused the death of another individual, whether accidentally or intentionally, (including by way of self defence), the property, or its value was forfeited to the King as 'deodand'. Also, where a murderer could not be found, the local community had to pay the Crown a fine, the 'murdrum'."
Forfeiture after conviction (particularly conviction for treason) was also practiced until abolished in 1870.
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Topic: Bill of Rights 1689 and cash forfeitures.
