@thevfmaddict
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I agree. That’s why the CPS can take over and end a PP.
I was more trying to make the point that even where two prosecutions are equally viable upon the evidence one must always think of the public interest in pursuing such. In the example I gave the CPS would probably take over and end a Blackmail prosecution due to the costs to the public purse of jury trial. Don’t over egg the pudding, so to speak. Whereas the CPS would probably allow the MalCom prosecution to proceed as it is triable only in a Magistrates Court and with the threat being clear (i.e. fulfilling s.1(1)(a)(ii)) and the demand and threat not being such as for the defence at s.2 to ever succeed conviction would be close to certain to result. And rightly so because to issue such a threat would be a MalCom in all senses of the term Malicious.
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Yep you are spot on about the 1968 Theft Act replacing the 1916 Larceny Act. Much of the most all encompassing case law we have today still resides in rulings under the Larceny Act. Before 1968 there was on the statute books no specific offence of Blackmail. Instead it was tried under the 1916 Larceny Act as demanding money with menaces. Even to this day a 1937 case of blackmail in 1937 tried that way (Thorne v Motor Trade Association, yep not R v MTA) remains the leading case law on what constitutes a threat or menace when used to reinforce a demand. Basically, since Thorne v MTA anything the threatener knows would be detrimental to or unpleasant to the person addressed does. So for example if I know you have a fear of buttons and write you a letter saying that I will send you an envelope full of them unless you pay me £200 then that’s enough to support either a Section 1(1)(a)(ii) offence under the Malicious Communications Act or a conviction for Blackmail under the 1968 Theft Act. However, in respect of either prosecution the case would rely on the 1937 Larceny Act Thorne v MTA definition of what constitutes a threat and/or menace to identify that a declaration of intent to send buttons constituted a threat or menace.
The political thrust and judicial thrust coming from the likes of the Law Commission, is to increasingly codify common law offences in new statutes. There was a Law Commission paper on codifying Misconduct in Public Office a couple of years back but as yet it has still resulted in no new statute nor incorporation of MIPO in any broad encompassing legislation. But even if it did its unlikely to change the scope of the offence as defined by the decision of the Court of Appeal in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868. Which is that the offence is committed when:
- a public officer acting as such;
- wilfully neglects to perform his duty and/or wilfully misconducts himself;
- to such a degree as to amount to an abuse of the public’s trust in the office holder;
- without reasonable excuse or justification.
Proving the fact of the offence is often difficult to do but even when that is possible or even easy; demonstrating that the offence warrants the huge costs of a jury trial means arguing that prosecution is really in the public interest becomes the main stumbling block.
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That’s the BBC fouling up again. There is no ‘legislation’. MIPO is not a statutory offence never having resided in any legislation. It a common law offence. In other words it derives purely of case law and age old precedent. I suppose that the Divisional Bench (i.e. the two judges of the Queens Bench Division who heard the judicial review application) could hold that it has never been previously used is respect of political campaigns hence no common law precedent but that is not a binding call and they would have to give leave to appeal their decision. So if ‘boy prosecutore’ can get enough crowdfunding this could go first to the Court of Appeal and as their decision equally could not be binding it not deriving of principle already established by highest authority, potentially even go after that to the Supreme Court. This is the stuff or which lawyers’ personal wealth is built………LOL A nice case with no previously ruled, applicable, binding high authority.
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I both agree and disagree with that, WoF. There was a swing to the LibDems in Peterborough although nowhere near as much as to TBP. It certainly suggests the LibDems may pose a significant threat to both the Tories and Labour in seats that very heavily voted Remain and hence where TBP is unlikely to ever gain significant traction.
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At this time we do not know WHY the case was thrown out, however it obviously was not a vexatious claim as Bojo received no redress for his costs. i.e. a Scottish Law type decision.
That’s interesting. Although when a case is verbally ruled on and the reasoning handed down at a later stage it is usually only after such that petitions for costs are considered. It seems BoJo’s lawyers did argue that the prosecution was politically motivated and vexatious but, and this interests me, that an essential component of the offence was that the abuse of trust was in secret. I can’t subscribe to the latter. No case law I have ever seen, and there is only such because its not a statutory offence merely a common law offence, suggests such must be in private. For example, a PC was convicted of the offence for failing to intervene in an assault he was witnessing. That is plainly not in private. So BoJo’s lawyers had I believe very little prospect of having succeeded with the ‘secret’ argument. That brings us back to the proposed prosecution being vexatious. Can’t wait to seen the handed down notes of reasoning not least because I’ve been looking at launching a MIPO private prosecution myself re a NHS official.
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Dave, my post was clearly to Ed, but as usual you took the opportunity to get personal and take a pop at me. Yet again you get personal when I had in no way have attacked you. I had said to Ed earlier that you can’t expect the judiciary to act. That is exactly what has happened.
If you could see through your animosity to me you would reread all that was said in this thread I was clear that I agreed with the sentiment that something needs to be done. We are not in disagreement regarding that. I agreed that something needs to be done about the quality of politicians we have. I just don’t believe that can be achieved by expecting the judiciary to bring the current ones into check. You simply can’t apply the “trading or advertising standards” model to politics as your earlier posts suggest should be done.
My point was that only the electorate has the power to change the calibre of our politicians at the ballot box. Sadly I see little sign Joe Public can be bothered to do that. If Joe could then Neil Hamilton would surely not have resurfaced and hold the elected post he now does. Similarly if BoJo lied in the way those who sought his conviction held he had then surely Joe Public won’t elect him again. But we both know they will and far from remotely even as PM. You can’t lay such at the feet of the judiciary only at the feet of Joe Public.
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As I said, Ed, “So you have confidence in the judiciary acting to dis-empower the establishment do you?” The District Judge was wrong to grant summons in the BoJo case the High Court has ruled.
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During the Covid-19 Epidemic I will be wearing a mask and goggles while posting so that if I become infected I won't spread it to you.
Given that Peterborough was being flagged as a racing certainty for the Brexit Party and given the D Day coverage and poor weather I can easily imagine that 700 or more Leavers failed to vote assuming it to be a done deal. So in the long run the result may well do the Brexit Party some good. A chance to flog – “If you want it you must get out and vote.”
Having said that what it did do was make clear to the Tories that unless they deliver Brexit pretty damn quick they will be toast at the next GE because the Brexit Party are taking huge chunks out of them. A lot of Tory MPs yet to declare allegiance to any candidate so this weekend once May is no longer officially leader we will probably get a glut declaring.
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Actually at the time you posted it was already well over half declared who they were supporting (162 to be exact). However, your point is still valid. We won’t get any firm indicators until after the first round of voting I suspect. But the momentum is currently is with BoJo.
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There you go again, Ed, even if all you said was correct it would still not be a case of, “Say good-bye to soft-boiled eggs if you let in US eggs!”. It would be a case of, “Say good-bye to soft-boiled eggs if you choose to buy US eggs!”. The choice remains yours just as it does today when buying things like free range chicken or organic vegetables.
Moving on to other Brexit matters BoJo beginning to build a major lead over Gove and Hunt in the number of MPs declaring for him. A “save my seat” panic seems to be starting to materialise with Remainers such as Robert Jenrick and Oliver Dowden, who both represent Leave constituencies, now falling in behind BoJo declaring for him.
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During the Covid-19 Epidemic I will be wearing a mask and goggles while posting so that if I become infected I won't spread it to you.
Ed, it is a reality that every Leaders (President, PM , etc.) has to fight his/her own country’s corner. That is in part why I am against the EU. Our corner is not the same as France’s, Germany’s, Poland’s, Hungary’s, etc. There are and quite obviously will always be times when that which is in the best interests of the majority of EU member states will be directly contrary to ours. So I am unconvinced that it is true to say that being a member of the EU protects our interests.
As regards the NHS, privatisation is already well under way like it or not. Great swathes of NHS services are outsourced to private companies. Call an out of hours GP in the UK and its close to odds on that it will be a private company delivering that service; almost all CCG’s purchase in out of hours service. Indeed it is almost always forgotten that every daytime GP is actually a private contractor rather than an NHS employee. Indeed even the scanning dept’s (CAT scans, MRI, etc.) are quite often outsourced private contractors. Only X-rays seem to have been pretty much exclusively retained in-house. I fear US contractors no more than I fear UK contractors. And frankly large US companies fail and go into administration leaving a mess far less often that do UK ones.
I always laugh at the Chlorinated Chicken Fears. The American 1st Airborne will not be patrolling Tesco’s and Asda, etc., forcing you to buy American Chicken, I promise you. You will still be able to buy products with the Red Tractor Logo on them so you know the food was produced or reared in the UK if you so desire.
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Well as I said two days ago the split in Change UK has now fully materialised. About half are staying with ChUK and half reverting to being called The Independent Group again. But then again if you’ve split from one party it must be easier to split from another……LOL To confuse matters more Chukka is not staying ChUK but going with TIG. Heidi Allen and Chukka are rumored to be considering splitting from TIG and joining the LibDems. More quick change artists then than simple turncoats. Soubry it seems is staying with ChUK and hopefully will go down with that ship.
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Returning to the UK political dynamics re Brexit: here are the most well known MPs who voted Remain, but sit in Leave seats. All are of course vulnerable therefore to The Brexit Party come the next GE. Two have retreated to ground where they could perhaps mount a defence; that is to say have come out for No Deal BoJo. Those two are Johnny Mercer and Grant Shapps.
The rest of the Tories in the group shown have not come out for anyone; except Javid, Stewart and Hancock who obviously have come out for themselves. So which scalps will TBP take come the next GE? I’d say Cooper, Soubry and Letwin are close to odds-on with Rudd following closely.
In other Brexit related news Chukka seems to be heading for the lifeboats recognising that the not-so-good ship Change UK is already floundering in rough seas. He has said only Labour can bring about another referendum or the revocation of Art 50. Such self confidence in the party that he founded must have gone done like a lead balloon with the rest of CUK, the TIGGERS or whatever they are calling themselves this week. I notice that Heidi Allen, CUK’s lead spokesperson seems to pretty much have gone into hiding since the EU elections. But then again Soubry blamed Allen for the bad EU showing. Well CUK have beaten the SDP because it took that gang far longer to begin to crumble. But then again the SDP was started by MPs of far greater substance than that of which the TIGGERS are made.
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I don’t entirely disagree but EU trade policy can also work against our national interests while we remain an EU member. Our needs are not the same as German’s, France’s, Spain’s, Italy’s, etc., and while folks say the EU is the largest trading bloc in the world. it is also the largest protectionist bloc in the world.
One simply cannot ignore that the bloc’s share of world trade has been falling for thirty years. All growth will becoming in the close future from China, India, South America, Polynesia and Africa. That’s where we should be focusing our attention especially given that with the exception of certain parts of Africa we have a far better name than the USA. The argument that we are too small to go it alone falls every time once one looks at Israel which is smaller than Wales. Its all about innovation and determination whether one succeeds of fails, surely?
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‘Drain the swamp’ in this case is NOT about new laws but using existing laws to ensure standards of conduct are enforced by an impartial body. As we do not have a written constitution to protect us, we have to rely on the cumbersome process of legal precedence and that is what we need in bringing disreputable public officials to heel.
So you have confidence in the judiciary acting to dis-empower the establishment do you? I can’t see that happening myself. As regards Hamilton that was exactly the point I was making. Joe Public screams about abuses by politicians but then does little to stick by its guns. Until Joe has the courage of his convictions and sticks by them then one is simply throwing a leech from the swamp walking away and letting it slither back. I do agree with comments that there should be a means to bar those who offend the greatest but in reality there already is. If the offence is that great then a hefty prison sentence will result and there’s always the option of ‘recall’ even in lighter cases. That’s full circle though because again as I said only Joe can drain the swamp and be diligent to ensure it doesn’t re-fill.
Oh I forgot to say just in case not everyone knows, Misconduct in Public Office can only be tried before a jury so it is, unlike Magistrates’ decisions, Joe Public calling the shots.
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During the Covid-19 Epidemic I will be wearing a mask and goggles while posting so that if I become infected I won't spread it to you.
Forget the Joshua shock. Its the Tories and Labour that are on the ropes spitting out gumshields and facing a shocking defeat come the next GE. TBP has now overtaken all parties to lead the list in voting intentions come the next GE.
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During the Covid-19 Epidemic I will be wearing a mask and goggles while posting so that if I become infected I won't spread it to you.
“Drain the swamp” is not about new laws etc. It never could be because it is those in the swamp that set the laws, isn’t it? And Turkeys don’t vote for……………..
The only way to drain the swamp is for the electorate to do so via the ballot box. But up until now Joe and Joanne Public couldn’t be bothered to. They moaned about MP X or MP Y taking the p with his expenses then voted the leech back in come next election. Only the public can drain the swamp but must take action to do so or it just won’t ever happen.
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During the Covid-19 Epidemic I will be wearing a mask and goggles while posting so that if I become infected I won't spread it to you.
It has to start somewhere, we don’t put up with this behaviour anywhere else. If it’s just ignored it’s going to get worse and worse. It’s a massive trust issue. Some sort of official standards authority, like that applied to advertising etc. but that doesn’t yet exist. If it had been a published article they’d have to print a retraction, not ramp the same lie up and up. Saying that the courts would get jammed so ignore it wouldn’t be applied to an increase in other misdemeanours, the cry would be for more resources to deal with the problem. If the politicians can’t keep themselves honest then maybe there must be a mechanism to do so.
Actually, Dave, that is exactly what happens all the time. The CPS/Police raise charging standards and when there are prosecutions courts set precedents by imposing increasingly lighter sentences such that the CPS can argue even more strongly next time that prosecution wasn’t in the public interest. At the same time Regulators, like the Information Commissioner’s Office, the first tier arbiters with the prerogative to construe what the Regulations mean. As with CPS and Charging standards they set their own bars for taking action higher and higher.
About 5 years ago elected to lay an Information before a Magistrate’s Court to commence a private prosecution. The District Judge who considered the Informantion refused to issue summons including in his reasoning that the trial list was running at 10 weeks in that area. I immediately lodged application at the High Court for permission to appeal for judicial review of that decision on the basis that such was not a factor the DJ was entitled to rake into account. Permission refused – The DJ was entitled to apply to a potential private prosecution the same tests the CPS apply when considering if a prosecution should continue. The DJ was entitled to, as part of the Public Interest stage, consider load on the judiciary. Which I guess sums it all up. There are also dozens of high authority judgements (Court of Appeal and HoL/Supreme Court) where the court reached decision X in part, and stating it was in part, because a decision to the contrary would open the floodgates to a sea of prosecutions.
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During the Covid-19 Epidemic I will be wearing a mask and goggles while posting so that if I become infected I won't spread it to you.
I don’t disagree with your sentiments one bit. But Misconduct in Public Office it is not a matter with defined edges. That’s why it is difficult to assign to the criminal justice system. Its very difficult to say where someone lied or miscalculated; where someone failed intentionally or due to circumstance., etc., etc. New Parliamentary candidates are not in public office so would be invulnerable. Worse still MIPO can only be tried before a jury and if its a trial of politicians about their pledges then trying to find twelve good men/women and true with no political biases would be a nightmare.
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May I just clarify one important point here – Johnson has NOT been charged with any offence at all – he has been reported to attend court to answer an allegation. A person is ONLY charged when the charge is read out to him in court or when the indictment is put to him in crown court. The CPS still have the power to intervene and dismiss all charges in any ‘private prosecution brought in the UK’.
Absolutely right but the CPS should never interfere is an otherwise standard prosecution. Its all down to the CPS Full Codes test. First, the Evidential Stage – Upon the evidence and considering any potential defences is it more likely than not that a prosecution would succeed? Having considered the evidence upon which the DJ granted summons I’d say it is finely balanced. The second is the Public Interest Stage – Do factors inclining in favour of prosecution in the public interest outweigh those inclining against? How long is a piece of string? But I’d bet the CPS/DPP will take over and stop the prosecution. Why? Because it is wholly arguable that the nature of his position is such that he will be judged by an even bigger jury than 12 the/his electorate – and – allowing the prosecution to proceed could open the floodgates swamping the courts with similar prosecutions of elected individuals which it is not in the public interest to provoke.
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During the Covid-19 Epidemic I will be wearing a mask and goggles while posting so that if I become infected I won't spread it to you.
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