26 August 2009

Yet More Hidden Laws

Here we go again. I've blogged before about what I've been calling hidden laws; that is, laws that don't really exist but people are prosecuted on the basis of them.

See, Hidden Laws for details.

The thing is, our law is based upon liberty: we can do whatever we want unless there is a law against it. This is fundamental to our system of law.

The problem comes when we want to know whether or not there is a law against whatever we want to do. In order to find out, we need to search what are called the sources of law. There are three sources of law: the Common Law, legislation from Parliament and legislation from the European Union. Common Law comes from what judges discover the law to be during court cases, and it is reported after the court case in question; we search these court cases in order to discover the law. Legislation is passed by Parliament (for constitutional reasons we regard statutes as though they were law) and we search the Statute books in order to find law from this source. Since a treaty (or number of treaties) has been signed with other States within Europe; legislation emanating from Europe has legal effect in Blighty; we search European legislation in order to ensure that we comply with this source of law.

Now the Guardian reports, "Error in 1984 halts prosecutions for sale of unclassified videos."

"An act of parliament passed in 1984 to police the DVD and video games classification system, which has led to thousands of prosecutions, was never enforceable because the government of the time did not inform the European Commission, it emerged last night."

Remember, we can do what we want unless there is a law against it. If the law wasn't enforceable was it a law? If it wasn't a law the State didn't have any power to prosecute nor impose any penalties on anyone who they may have found guilty.

It gets worse.

Anonymousprosecutor has posted a copy to the letter sent out to the CPS. (His comments about the issue are also worth reading).

This tantalisingly says,

1

2

3 mmm. "In particular, we are concerned that there may be issues of unenforceability of any offence relating to "
4

What is the particular offence that the letter is referring to?

Are there any other offences that haven't been discovered, as yet?


We are looking for failures of notification of Directive 83/189/EEC which provides,

"Article 2

1. The Commission and the standards institutions in List 1 annexed hereto shall be informed each year, not later than 31 January, of the standards programmes drawn up by the national institutions in List 2 annexed hereto. This information shall be brought up to date every quarter. The Commission may amend or supplement these lists on the basis of communications from the Member States.
"

And goes on to say,

"Article 2 ...

3. The Commission shall keep this information at the disposal of the Member States in a form in which the different programmes can be compared.
"

And

" Article 8

1. Member States shall immediately communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice ; they shall also let the Commission have a brief statement of the grounds which make the enactment of such a technical regulation necessary, where these are not already made clear in the draft.

The Commission shall immediately notify the other Member States of any draft it has received ; it may also refer this draft to the Committee for its opinion.
"

Time to scrutinise the list. See if the newspapers can get there before the bloggers.


Update

The Anonymous Prosecutor tells us that the letter is on wiki leaks.

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