Judges: Don't know the law? It's understandable

The common assumption is that "ignorance of the law is no excuse" – but if a recent case in the Court of Appeal is anything to go by, even highly paid officers of the court are finding it increasingly difficult to know what the law says on any given matter. Late last year, an appeal in R. v. Chambers [2008] EWCA Crim 2467 was …

[Anonymous Coward]

Database is not the answer

The answer is fewer laws, which need to be clearer and simpler, backed up by a written constitution stating the basic rights and responsibilities of people (and, where legally different, organisations).

But we've let lawyers and accountants take over politics, and obviously it's in their interest to keep it complicated.

Public interest? Who cares...

[Jeff Deacon]

This is one database we won't ever get

We won't ever see this proposal for a database giving the consolidated legal position. "They" wish to hide it. It is part of the EU's way of doing things. If nothing else, it is handy for making sure that the "powers that be" can prosecute anyone they want to whenever they want to, because we will all have inadvertantly broken some law or other. If you donned your tin-foil hat for fear of a police state, this will do nothing to allay those fears!

[Julian I-Do-Stuff]

Ha!

Yes, it's a mess - but even if everything were online and searchable it wouldn't solve the problem that so many amendments to legislation say e.g. "in Section A, subsection 31, para 2, replace "thought likely to" with "reasonably thought likely to" - which requires a search of the amended legislation, which doesn't make sense on its own... ad infinitum - or at least until online info runs out.

I tried to review some legislation once and commented to - someone parliamentarily relevant, can't remember who - that surely there must be an integrated statement of law... otherwise how on earth could changes be drafted accurately. Good point they said, but it seemed there isn't - but that's what we need: a "law as is" publication with change history. so that we can see that, for example

A, 32, 2 now reads "A constable may arrest reasonably anyone thought likely to look at me in a funny way sometime soon" but previously read "A constable may arrest anyone thought likely to immediately look at me in an offensive manner" and was... etc. etc. etc.

Ever tried to find out what the current Construction and Use regulations for Motor Vehicles actually are?

Bugger, I've only just arrived and already it's time to make my excuses...

the one with the mouldy wig in the pocket.

[Anonymous Coward]

So

There isn't a single online repository for all the laws of the land? Or even a single repository of books (which we could hand over to Google to archive for us for free...)?

Well, we're boned. Again.

[Anonymous Coward]

heh

Current state of affairs can be useful for the Authorities, because everyone is guilty of something, and the legal profession, who actually quite like charging £150 an hour for information that should be available in plain English from a web query. So don't hold your breath waiting for the very obvious fix.

[Anonymous Coward]

Fewer Laws

Politicians are too eager to create their new law, it is vanity lawyering.

Instead, they should be credited with removing a law, even pop their picture up next to their John Hancock. Every law removed should get decent press coverage, and the reasons of removal discussed in the press before the removal.

In short, we need to make the removal of laws a sexy politico thing.

A legal system is only correct when there are no more laws to remove.

[Anonymous Coward]

Exactly as intended

"This makes it very difficult to find out what the law on any particular issue is quickly and easily".

Which is exactly what our masters set out to accomplish a few years ago. As a result, the only way to find out what you are and are not allowed to do is to ask an official. And you have to assume that what she tells you is right, as you have no easy way of checking its accuracy. Compare the following farsighted extract from Ayn Rand's novel "Atlas Shrugged" (first published in 1957, just over half a century ago).

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, and once you understand it, you'll be much easier to deal with".

[Anonymous Coward]

Agreed on fewer laws

This government passes something like a law a day. It's just not feasable.

I would love to see a chart of new laws per year over the last forty years.

[Anonymous Coward]

Good point Julian

I've often thought that laws that come as basically a series of edits to a previous document would be better published as a patch file - applying the changes is definitely a job for a machine and not a human. Even if you do try to do it by hand a text editor is a major help, but you won't find any existing laws published in word processor formats as far as I'm aware.

Maybe these legal/political types just aren't aware of what a computer could do for them when it comes to managing all those document revisions. Given the laws they pass, I wouldn't be surprised if some of them don't even know what a computer is to be honest.

[Red Bren]

Lawyers Paradise

That's what you get when you leave a lawyer in charge of the country for 10 years.

The law should be understandable by anyone of average intelligence, without needing a law degree. There should be proper separation between the executive and the judiciary, so if your career is in law, then you can't stand for election for at least 5 years.

[David Haworth]

don't patch, re-issue

Our current law seem based around bills created which patch a series of other bills created 2 years earlier, which patch other bills from the 70's which patch original laws made 2 centuries ago, or similar.

I'd rather see a different approach. if it's decided that part of the criminal justice bill is wrong and needs changgnio, then don't pass a bill which patches/edits it. pass a new criminal justice bill which completely overrides the old bill, and then repeal the old one. they could do this even if the edit was relatively small, that means that the original law should always be the current one.

are there any major problems with this approach?

dave

[John Ozimek]

Repeals Acts

Actually, just to prove that Parliament do occasionally tidy up some things, take a look at:

http://www.opsi.gov.uk/acts/acts2008/ukpga_20080012_en_1

This went through last year, mostly tidies up some very obscure law. But does change a few things like the 1751 Disorderly Houses Act - though possbily only as a prelude to their much more wide-ranging regulation of prostitution in the Police Bill this year.

Paris - because legality confuses her too.

[Anonymous Coward]

Dutch system

IMHO, they should

Eliminate statutory instruments, the current gov shows that they simply abuse the system to bypass Parliament. (The world isn't so different now that Parliament can't discuss the detail of law).

... and Implement the Dutch system, if a law hasn't been used to successfully prosecute someone for a number of years (think it's 5) you can apply to have it struck off the books.

That way the batty old cow can dream up her new micromanagement laws, but the courts and jury effectively remove them by failing to prosecute successfully and we can apply to have her 'contribution' struck off the law books.

[umacf24]

@Red Bren

> The law should be understandable by anyone of average intelligence, without needing a law degree.

Nice idea. But the law also regulates areas which are moderately complex and have a huge amount of topic-specific knowledge -- trade, banking, accountancy. You could say "understandable by a subject area expert without specific legal training" but there aren't that many of those, in the technical areas.

I don't spend a lot of time reading laws, but the UK legal drafting is mostly pretty good. It's not hard to refer to the copyright and designs acts to find out what soft of copying is legal. What's a bit mind boggling is to realise that anyone in the UK (it's different in the States) who rips a CD for their own MP3 player is breaking the criminal law....

[umacf24]

That Database could work.

Databases aren't just tables. That's just Codd.

Way back in 1986 Marek Sergot etc published "The British Nationality Act as a Logic Program" in CACM. That's a list of sentences in symbolic logic, but it's sufficiently comprehensible in English to check, and, get this, it's executable. Any question about the meaning of the law, as written, can be answered by an interpreter. Judges will be left with the external questions "what did parliament (or the minister) mean by leaving this case undefined?, or by using this basic term?" We'll all be a little closer to knowing where we stand.

So count me as one vote for expressing all new law in Horn clauses. Hurrah!

I reckon that's an election winner!

[Eitsop]

The obivous?

If we're supposed to abide by laws - shouldn't we be able to know what they are? Isn't it as simple as that? Otherwise how do we know if something is legal or not?

If an average peson can't read the law then how can they abide by them?

The best thing I have been is: http://www.askthe.police.uk/

[Mark]

@umacf24

"What's a bit mind boggling is to realise that anyone in the UK (it's different in the States) who rips a CD for their own MP3 player is breaking the criminal law...."

Well the problem is that the UK used civil tort for copyright. There you have to prove damages. And damages for YOU copying what YOU bought so YOU can use it for YOURSELF is, approximately fuck all. Trying to get that back would see you in contempt for wasting court time.

Therefore no law says that you are committing a crime in ripping because there is no crime there to be committed: damages remain nil.

Its just that you WILL get your arse handed into court for it because someone read THAT law, not the law it bolstered (which would have told you that you have no case).

[Columbus]

read the riot act

"Our sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King."

The punishments for ignoring the Act were severe - penal servitude for not less than three years, or imprisonment with hard labour for up to two years.

They don't make em like they used to...

Unfortunately when the riot act was read then you then had an hour to disperse, amazing what you could burn in that time.

[Mark]

@umacf24

" It's not hard to refer to the copyright and designs acts to find out what soft of copying is legal. "

Copyright also needs topic-specific knowledge, especially to find meaning in the case law. The legality of each sort of copying is easy to ascertain, but whether the copying you actually do is ok is a different matter, certainly in terms of extent. Care to define "substantial"?

"What's a bit mind boggling is to realise that anyone in the UK (it's different in the States) who rips a CD for their own MP3 player is breaking the criminal law...."

This would be a civil matter - the copyright owners could sue you for damages but Inspector Knacker would only come to call if you starting selling copies.

It's ok, I've already got my coat on and am halfway out of the door...

[reg]

Some countries have such database

Atleast in Finland the ministry of justice maintains an online database with all current laws and regulations and even the goverment proposals to the parliament for upcoming laws, all freely available over the internet.

http://www.finlex.fi/en/ has the english explanation.

[Mark]

That first @umacf24 Mark wasn't me

I would never write the word fuck on a public site.

[Graham Marsden]

You're not supposed to be able to understand the law anymore...!

How could our Great Leaders maintain acceptable levels of FUD which allow them to pass *even more* laws whittling away our basic freedoms and liberties in the guise of "protecting us" from terrorists/ pornography/ whatever...?

[Anonymous Coward]

Are those numbers correct?

I make that one page of legislation for every six minutes of the working day in 2005.

[Lukin Brewer]

Old statutes can cause trouble too.

You've probably heard of some of them. The statute that requires all able-bodied men to practice archery every Sunday, for instance, on an archery range that the parish is obliged to set up and maintain. It would never be invoked now, no matter how angry the authorities might be with someone, but it still has legal force.

More hazardous are the statutes that we don't know about. There are hundreds of old statutes on scrolls of vellum tied with red tape and sealed with wax, some in Old English some in Old French, sitting in vaults, long forgotten. Unless specifically repealed (or possibly, unless contradicted by more recent legislation - IANAL), these statutes form part of the law. In one infamous example, trial by combat remained a legal right until the 1830s when a man on trial for murder invoked it. To the horror of the judiciary and the victim's family, the old statute was ruled valid, and since none of the victim's family felt ably to go up against the murderer in single combat, he was acquitted. Needless to say, that old statute was repealed in record time.

English law could do with some serious purging. Unfortunately, this is less likely to happen while its guardians are so busy pumping out new stuff.

(By the way, to give reassurance and head off discussion, the so-called right of "Primae Noctes"/"Droit de Seigneur"/"The Local Lord Gets to Rumpy-Pumpy the Virgin Bride on Her Wedding Night" was never written into law. Rather, it was an application of force majeur - i.e. it happened because nobody who was prepared to stop it was powerful enough to do so.)

[Guy Herbert]

Even worse than it seems

"Nor does it help that government is amending laws passed as recently as 18 months ago."

Worse than that. It was pointed out in the CJB debate that the government there seeks to repeal and replace sentencing rules that were enacted in 2008, less than 10 months ago, and have yet to be brought into force.

A great deal of law is in suspended animation waiting to be arbitrarily brought into force by those self-same statutory instruments.

Parliament in its wisdom - doing whatever the whips told it, which was to do whatever the Home Office wanted - completely transformed the law of incitement in the Serious Crime Act 2007, overturning centuries of common-law understanding. Nobody has a clue what it means, except for the general intention to make the prosecution's job a lot easier. But we'll only have to find out when a Home Secretary decides to issue a commencement order, so there is always the hope it might be repealed first.

[Andy Enderby]

@Red Bren

In fairness Red, a legislature of lawyers isn't peculiar to new labour. Barristers and others of the legal ilk are heavily represented in all the major parties.

[RichardB]

Simple answer to a simple problem

We simply need a number of highly skilled, and respected members of the community to rule on these matters guided by the law.

Historically we have had Judges for this, but they have gone the way of the UN and become irrelevant.

Hence the only natural solution is to replace them with people trained explicitly for this task, fully accountable to the home secretary or Justice Minister. These people will be fully briefed by the political authorities to ensure that all laws are enforced the same way, in tune with the current feeling of the populace. We shall call these officials Commissars, and they will be authorised to apply all forms of justice - from fixed penalty, corporal punishment and where appropriate - capital, with oversight directly from the Justice Minister.

easy really.

[Mark]

Sweden's answer

(I think it Sweden) is that when the Prime Minister is sworn in on the same day he has to enumerate the laws for that session. Any forgotten or don't fit in that day are no longer law.

Sounds good to me.

And yes, definitely kill any signing papers. A law must be made like a law.

[Vincent Ballard]

Replacing rather than patching

David Haworth, I see three issues with that suggestion. Firstly, it will probably increase the paperwork for prosecutors because they'll have to avoid precisely the situation described in the story of putting the wrong version number down.

Secondly, and more importantly, patches have the advantage of making it easy to see what's changed. If Acts are replaced wholesale then that leaves opportunities for people to sneak in changes which they hope won't be noticed. The happy medium would be for Hansard to publish both the patchset of every Bill and the patched versions of the Acts it affects.

Thirdly, it will make it difficult to have two separate Bills in a year which amend (different portions of) the same Act. This may result in Bills being lumped together and hence in a reduction in scrutiny. (I hear the Lords still engage in that from time to time).

[Dave Bell]

Better drafting, better scrutiny: more info needsd?

I'm sure I've seen clauses in Acts, amending existing law, which do nomore than say that one phrase is replacedby another.

I can't see why such amendments shouldn't be before Parliament with a clear context. Quote the whole original, list the amendments, and quote the result. Don't expect a busy MP to look up the details.

Of course,maybe the busy MPs are glad of an excuse for making a dreadful mistake.

[Dermot Bradley]

@Julian I-Do-Stuff

> Ever tried to find out what the current Construction and Use regulations for Motor

> Vehicles actually are?

Yupe, they're not that bad. Also these days they're irrelevant anyway as EU regs take effect (CoC/WVTA) unless you're building a custom vehicle or its a very old vehicle where its registered age pre-dated the various EU regs.

[Anonymous Coward]

you aren't alone

In the US they pretty much to the same thing. Layer upon layer of law which nobody really knows and all the old, really obsolete stuff is never taken off the books...including stuff which should have never been on the books in the first place. With the co-mingling of religion and government (yeah, forget about that seaparation of chuch and state business) we had "blue laws" on the books for probably 100 years that should never have been possible to have been put there in the first place.

Then go into the newest, greatest series of laws and "near-laws" for the uber-secret government spying and "terryist" control and you're left completely in the dark...you not only don't know....you aren't even allowed to look it up; and even if you look it up, you can't find any decisions because they are all made in secret courts. numpties

[Lewis Mettler]

not as simple as it sounds

It may surprise some but lawyers do not go to law school to find out what the law is.

Rather they educate themselves on "how to determine what the law is" given certain facts and in certain jurisdictions.

And there is a big difference between the two.

Once educated (no longer a lay person) certain methods and procedures can be put into play in order to make that determination.

It may also surprise many to learn that judges do not research and determine the law by their own efforts. By and large they rely on lawyers (at least one on each side) to do that research and make the argument as to what law applies. And, yes, if those lawyers are not adequately trained or skip the process, there is no telling what the decision might be.

No database is going to help the untrained. And yes, law school is between a 3 and 4 year study program not to mention the very tough bar exams that follow. And, those exams do not ask anyone what the law is on any point anywhere. Rather they are designed to bring out the ability of the student to evaluate the facts in light of what the law might be.

There are many reasons why lawyers have their own profession. And, yes, most judges are trained lawyers too. But, as pointed out, judges rely very heavily upon the lawyers to dig up the relevant law and argue how it should be applied to the case before the court.

If that system breaks down (or one side does not hire a lawyer or pay enough to get the work done) the decisions do come out wrong. Just like a pile of code that won't compile. The only difference is that few people know the decision was wrongly decided. Certainly not the lawyers and judge in the case. They did their best. But, it may still be wrong.

[A J Stiles]

Database not necessarily the answer

When all you have is a hammer, everything looks like a nail. It's natural for IT people who know about databases and things to suggest a searchable online database to keep track of the statute books, but that would be solving the wrong problem. What we really need is statute books that don't require a database to keep track of in the first place.

Also, if we're going to have a written constitution, we could run afoul of all manner of unforeseen consequences. At the very least, the government must be dissolved immediately upon the adoption of a new written constitution, so that nobody could write themself a new rôle and walk into it: they would all have to stand for election all over again.

[Anonymous Coward]

Odd..

That you can replace UK with US, Parliament with Senate and its the same situation over here... Then there is the whole issue of State laws and the county laws and even a couple of city laws that don't make much sense either.

They really should just have a system of patches but then re-issue the law every 25 or so years.

Maybe even have special courts for different areas such as a separate court for Copyright infringement, another for drugs and vices, another for capital crimes, etc..

[Anonymous Coward]

Also,

Many judges are idiots who would not understand the law even if they happened by chance to know it.

It is a sad fact that there is no such thing as a "sure thing" in a British court (this may apply to other countries too) - no matter how clear the case or how totally iron-clad the evidence, a judge can take a fancy to the opposing lawyer and ride roughshod over you and it'll be up to you to scrape the money together for an appeal.

[Mark]

re: Replacing rather than patching

However, that has one of two consequences that help with clawing back the rising tide of Law:

a) The law has to be done FULLY again. If the problem isn't that important, who can be bothered to put the time and effort in?

b) They can still say "these were changed" but we can do a simple diff to check it.

It CAN be that they slip new law in there, but they can do that now (just put a rider on like the fisheries bill that had ODF support to be denied), so no loss there.

[davenewman]

Justis consolidates amendments but still confuses

I was part of a team evaluating the usability of on-line legal databases for a European project (see Behaviour and IT, Sept. 2008 and www.addwijzer.info).

We found some commercial on-line databases (particularly Justis) were very good at consolidating amendments and producing timelines of what law applied when. They went beyond the simple recounting of legislation in one place in Bailii (http://www.bailii.org/).

But they still were unusable by people who were untrained in the law, despite being subject specialists (in this case in planning). The biggest problem was finding the relevant information in the retrieved documents, when they had no ideas of the document structure.

In the end our Dutch partners put all the planning laws into a GIS, so that people could just say "find me a legal site for an LPG filling station". The application greyed out half the map where there was some regulation preventing development. If you clicked on something you got the relevant regulation.

[RW]

@ Graham Marsden

Isnt' there a legal principle in the UK that the law must be understandable, and if it is misunderstood in good faith, no offense has occurred? I may have badly garbled this concept, but I'm sure there's such a principle, wholly distinct from "ignorance of the law is no excuse."

One can only pray for the learned justices to start finding NuLabour enactments unenforceable because they can not be understood even by someone making an effort to do so.

[The Mysterious Panda]

Ignorance of the law!

I read about this a while back on http://www.jp-bishop.com where I think they quote from the Westlaw report - it has some of the discussion that isn't in the subsequently released reports.

The issue seems to be that the government makes ridiculous amounts of secondary legislation under the authority of primary legislation. OPSI seems to be having such a hard job keeping up with the primary stuff that the secondary stuff is pretty much ignored.

As for the database, the EU has a much better online database for law than the UK - http://eur-lex.europa.eu/en/index.htm which is fairly comprehensive and includes caselaw.

Paris, because she might be ignorant of pretty much everything but she doesn't need the excuse...

[Paul]

Wikilaws

If they're going to treat the laws like a wiki, why don't they just turn them into one?

On second thought, maybe that's not a joke. At least you could look it up then.

[Graham Marsden]

@RW

> Isnt' there a legal principle in the UK that the law must be understandable, and if it is misunderstood in good faith, no offense has occurred?

That may, once, have been the principle of English Common Law but (of course I'm not a lawyer!) it certainly doesn't seem to be the case any more.

To give an example from the situation I'm most familiar with, the Ministry of Justice has said of the so-called "Extreme Pornography" legisation: "it may not be possible for an individual to have absolute certainty about which side of the line an image may fall."

To justify this they carried on: "On this issue, it has been held by the Court of Appeal that “it is not necessary for an individual to be able to be sure in advance whether his conduct will be characterised by a jury as a crime” (R v O’Carroll [2003] EWCA Crim 2338). This was in relation to an argument that the term “indecent” (in the context of images of children) was too imprecise to enable the applicant to know in advance whether this conduct was criminal."

IMO, of course, this is a thoroughly specious argument because it is being mis-applied to a situation in which it is not relevant, but still the MoJ wants to justify a ridiculous piece of vague and incomprehensible legislation by using it :-(

[Stewart Haywood]

@don't patch, re-issue

Ah, you mean that you would like a government run by engineers in place of failed lawyers, failed accademics, failed accountants and failed doctors? A good idea but, when it comes to it, how many engineers would really want to do it?

[Julian I-Do-Stuff]

@Lukin, @Dutch

So, is it still true that if you kill someone while practising your archery on Sunday afternoon that's just your target's hard luck?

And I like the Dutch system too...

But just occasionally the law can be used to one's advantage... much disturbed once by someone's 2kW car audio system that showed no sign of running out of petrol I called the police on the local station number to do something about it...

"Sorry sir, we can't deal with nuisances..."

"How about behaviour likely to lead to a breach of the peace?"

"Don't quite follow you sir, just 'cos it's loud doesn't mean it's breaching the peace"

"No, I mean if you don't do something about it *I* am going to go down there and breach the peace!"

"Oh. Right." followed by "now we've got something to work with" or words to that effect, and 5 minutes later - peace.

So I think I might get the Hom. Sec. on the same grounds...

[Andy Bright]

Delete it all

Time to start over I think. Format the Law hard disk and install a fresh copy. All these patches and service packs are just bogging the whole thing down.

Plus if we make Parliament spend the next 5 or 6 decades re-writing all the law into something someone, anyone, can understand, that will keep them out of trouble long enough for the rest of us to think of something useful they could do when they've finished.

[wulff heiss]

Austria...

http://ris.bka.gv.at/defaultEn.aspx

and yes, piracy is a reason for extradition (not that we have that many seaports, but still :) )

[elderlybloke]

Riot Act - in NZ

Columbus above told us about the Riot Act in the UK.

I remember many years ago my father telling me that down here in NZ , that after the riot act was read out, any rioters carrying on could be shot without further ado.