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Roger Warren Evans
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item0077D 1076, 1077
1076 25 March 2005
This is a new political act."Michael" is of course Michael Howard, who has led the Tories in their opportunistic assault on travellers and gypsies - and even more remarkably, on the Human Rights Act. "The Maloneys" are the gypsy family whose legal action has triggered this seedy political spat.
How has this all happened?The Maloneys, as a travelling family, were looking for somewhere to camp. And they chose a piece of land owned by Leeds City Council - not a prepared travellers' site, merely a spare plot at Spinkwell Lace, Wakefield, without planning permission for residential occupation. Such trespassing is not itself a crime: the trespasser is merely obliged to leave when asked to do so, and may have to compensate the owner for any damage caused.
The Maloneys refused to leave. So the Council started a legal action in the County Court (later transferred to the High Court, because of its importance) - an "action for possession", which would ordinarily be straightforward and successful. In similar earlier cases, the Courts had always upheld a Council's right to reclaim the land.
But this time, the Maloneys had a new argument. They contended that the Council were failing to "respect their rights" under Article 8 of the European Convention of Human Rights. Article 8 says that -
In this case, it is the "right of respect for (your) home" that is in issue. And the Strasbourg Court has ruled that public authorities, in exercising their powers, must demonstrate a positive and particular concern for the specific culture of gypsies and travellers. The question was "Does this principle impact, as a matter of English law, upon a Council's time-honoured property rights?"
The Court of Appeal has said "No", and held that the Council is entitled to proceed with eviction. Judgment was given by one of England's top judges Lord Phillips, Master of the Rolls. But the Maloneys case is now to go to right to the top, to the House of Lords. Will their Lordships depart from the traditional toughness of English property law, and acknowledge that public authorities have a "positive obligation" to help to accommodate gypsies?
That is now the question. My hope is that their Lordships will rise to the occasion, and move to support the gypsies. If they do not, this will certainly go on to Strasbourg, for a massive showdown...
1077 14 March 2005
The attempt to prosecute "artificial persons" for manslaughter are doomed to failure. Government promises to legislate for "corporate manslaughter" are simply ill-informed and wrong-headed. Nobody in power seems to have grasped the absurdity of what is being proposed.
Most crimes involve a person displaying some kind of "criminal intent" (mens rea, as the Latin tags have it). Yet that idea can apply only to "natural" persons, with minds, intentions, moral constraints: you make nonsense of it, if you try and apply it to an artificial person, like a company or a council. It is partly designed to influence a natural person in advance, to discourage the commission of crime in the first place. And as such, with natural persons it makes sense, and has some success.
But how can an artificial person, like a company or a council, be so influenced? This week's example was of a Council, not a private company - but a Council is similarly an "artificial person", a construct of statute law, and has no "mind" to be influenced. And so Barrow Borough Council was duly acquitted of all seven charges of manslaughter, arising out of the poor maintenance of a local-authority heating system, which triggered Legionnaires Disease, and caused seven deaths. It was a waste of public money, even to prosecute. The architect i/c maintenance, Borough Architect Gillian Beckingham, a natural person, was left to face the music on her own.
It will always be like that. The way to influence an artificial person is to penalise "it" by heavy fines and restrictions upon "its" trading freedom, requiring standards to be observed which are scrupulously enforced by inspection - that is the only way. Standards should be defined in objective terms, the breach of which is obvious without any need to prove "intent".
My solution? A global campaign for company law reform that would remove many of the worst abuses of power at source.