Law Review (1): Rabbie Burns, Kill a burglar re-visited and Chilcot review

Blawg Review #248 by Scotslawstudent is up…

Welcome everyone to Blawg Review #248, this week hosted at scotslawstudent.com. Today is the 251st anniversary of celebrated Scottish poet Robert Burns’ birth, which took place on this day in 1759. Burns was a prolific poet who wrote his best work in Scots, which is not the same as English, and he also recorded traditional Scottish music and spread it to a much wider audience than ever before. He’s why you probably sang Auld Lang Syne on New Year’s Eve no matter where you live.

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Frances Gibb, writing in the Times this morning reports...” A new law to give greater protection to householders is unnecessary and could be a licence to kill, a leading criminal barrister has warned.Paul Mendelle, QC, chairman of the Criminal Bar Association, says that a change to allow “disproportionate” force would encourage vigilantism. “The law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate,” he said, adding that the present law worked perfectly well and was well understood by juries….If, as the Conservatives propose, the law is changed to allow “disproportionate force”, householders who kill burglars could be acquitted.”

Leading lawyers have long maintained that the existing law on self defence’ is more than adequate and that change is not necessary. I agree.  Interestingly, the Munir Hussain case did not turn on the application of self defence laws strictly.  Carl Gardner has written a detailed analysis of the decision which is worth a read:  The truth about Munir Hussain

Frances Gibb also followed her main story up with a comment in the Times that the judges don’t need more laws but do need more discretion, pointing out .. “David Thomas, the sentencing expert, told The Times that in the case of the Hussain brothers a prison sentence of 30 months was “as far from the guideline as [the judge] could properly go”. He added that in the Inglis case: “No one could doubt that the mother was properly convicted of murder.” He said the judge, Judge Brian Barker QC, was required to impose a life sentence. With regard to how long Mrs Inglis should serve, the judge went as far below the recommended level as he could. Judges are increasingly restricted over the sentences that they can impose, and the trend is towards greater straitjacketing: the Coroners and Justice Act 2009 will require them to follow guidelines, not just take them into account, unless contrary to the interest of justice.

The comments in both Times articles are interesting. The general public is on the side of the Chris Grayling school of thought and not the side of lawyers who practise daily before the courts.  Some of the comments are fairly extreme..

The ‘People’ speak….

Bob Evans wrote:
The courts have already proven incapable of responsible discretion. The judges are drawn from the ranks of the lawyers who were sworn to defend and win freedom for criminals. Too often, they have carried this prejudice when charged with delivering justice to *all*.

Mike Longford added to the maturity of the debate with this wonderful diatribe...”Criminal barristers have to be the lowest form of scum on this planet.”
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And then there is this nonsense… from  Johnn Schroeder who wrote: In Britain, the lawyers would rather you die then their clients, that way they get paid! Of course the question is are lawyers able to defend themselves? Judges, politicians? Britain is not a land of free people, and as such, the population has little in the way of protections like Americans have. Too bad really, since America’s right to self-protection was once an English right too!”
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Well…there we are… moving on…

The Chilcot Inquiry will hear from leading government lawyers, Lord Goldsmith and Tony Blair this week in what promises to be an interesting week. The Independent has a critical review of the performance of the Inquisitioners so far… and is worth a read.  I particularly liked this rather good line…
“Former permanent secretary at the Northern Ireland Office. Member of the Butler inquiry. The occasional anecdotes, nervous cough and oddly frantic panting of Sir John soon raised concerns that the inquiry chairman was more an old-fashioned English eccentric than an interrogator filled with iconoclastic zeal. Those fears were not eased when Sir John asked one perplexed witness: “Was there anything, any juice in the lemon to be squeezed out of trying to peer behind the curtain into the mind of the regime of Saddam?”
Part (2) will follow later in the day…

2 thoughts on “Law Review (1): Rabbie Burns, Kill a burglar re-visited and Chilcot review

  1. The Chilcot Inquiry rumbles on and this week it is the turn of those lawyers who, at the time, were advising government. This will be interesting. Elizabeth Wilmshurst made her position publicly clear at the time and resigned her post. She must have felt that her words of advice were falling on deaf ears. For that reason the evidence of her boss (Sir Michael Wood) will be interesting. Was he listening to his immediate subordinate? Did he agree or disagree with her? Just what opinion did he offer to the Secretary of State? They have 1.5 hours each. Lord Goldsmith has a full day. He is clever and erudite and I suspect will cope well though, at the end of the day, he is not an international lawyer. However, as we have said rather too often, nobody on this panel is a lawyer of any description so I doubt they would be so bold as to express an opinion about the legality but, even if they did, it would carry minimal weight. The Dutch Inquiry on the other had was rather impressive.

    All this fascinating stuff is about an extremely serious mess which they got our country into. Iraq cost an untolds number of lives and Afghanistan continues to do so. [A conference on that one starts this week]. Being BURNS NIGHT it seems timely to recall the words he wrote in 1788 – “A mother’s lament for the death of her son.”

    Fate gave the word, the arrow sped,
    And pierc’d my darling’s heart;
    And with him all the joys are fled
    Life can to me impart.

    By cruel hands the sapling drops,
    In dust dishonour’d laid;
    So fell the pride of all my hopes,
    My age’s future shade.

    The mother-linnet in the brake
    Bewails her ravish’d young;
    So I, for my lost darling’s sake,
    Lament the live-day long.

    Death, oft I’ve feared thy fatal blow.
    Now, fond, I bare my breast;
    O, do thou kindly lay me low
    With him I love, at rest!

  2. Phillipe Sands QC has made many observations about the legailty of the war. Sir Michael Wood QC is, as you say, believed to hold the same view as Wilmshurt – and Lord Goldsmith QC changed his mind. Why did he change his mind? Will we get to see his advice?

    And you are right – this inquiry is about a very serious matter.

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