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Police Assault Fork Thread

Discussion in 'Jollies Bar' started by ThreadpigeonsAlpha, Aug 26, 2019.

  1. JWJ

    JWJ Active Member

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    Its happened every time common law is codified into statute by a legislative body. Before its codified, it was judged based on common law precedent. After it was codified, it was judged not on that existing precedent but by the statute, and then precedent from those initial interpretations of the statutes form the basis of future common-law covering the offence.

    Common law and statutory law work hand in hand.
     
  2. rkec

    rkec Member

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    All I'm asking for is an example of this someone you are imagining in the first quote above. I've never seen it happen before.
     
  3. JWJ

    JWJ Active Member

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    If we consider Murder as alluded above, whilst the act of 'murder' is defined in common law, the interpretation of what constitutes to be said act and the due sentencing and defences, has been codified into statutory law; initially (I believe) in the Offences Against the Person Act 1861.

    To make it clearer, before this act, the sentence of the convicted murderer was reached by consulting common law, i.e precedent. After this act, the statutory sentencing supersedes any common law judgements on the appropriate sentence and defines the sentence as death.

    Another example to do with murder, is excusable homicide. Prior to this act being passed, it would be down to the court and common law precedent on if a defendant was guilty of murder, or if it was excusable. After this act, it is defined in statutory law that "No Punishment or Forfeiture shall be incurred by any Person who shall kill another by Misfortune or in his own Defence, or in any other Manner without Felony."

    Now when a court considers this, they will not look at pre-existing common law, and instead, interpret statute onto the situation. That statutory definition will superseed previous rulings in common law, and new common law is created by said interpretations.
     
  4. rkec

    rkec Member

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    I think this is another issue, I'm only talking about the offence and not the sentencing. I wouldn't dispute that sentencing is a statute issue.

    But which of these statements contradict what was in common law before the statute was passed?

    "No Punishment or Forfeiture shall be incurred by any Person who shall kill another by Misfortune or in his own Defence, or in any other Manner without Felony."

    Please remember I'm only arguing that statute never contradicts common law, non of those is an example of any contradiction in my opinion.
     
  5. JWJ

    JWJ Active Member

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    I see you're asking for a specific example of when a new statute contradicts existing common law, and I'll have to research that as I can't give you an example of my head, and I'm not going to just google and try to scrape it together.

    But going back to the inital point you made - "as far as I know no powers given by any Parliament can trump Common law in this country". Parliamentary Sovereignty is a mechanism that directly disproves that notion. Prof. Tomkins stated in a Parliamentary committee hearing that "what the doctrine establishes is the legal supremacy of statute. It means that there is no source of law higher than - ie more authoritative than - an Act of Parliament. Parliament may by statute make or unmake any law, including a law that is violative of international law or that alters a principle of the common law. And the courts are obliged to uphold and enforce it"
     
  6. rkec

    rkec Member

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    It's difficult to find, I have genuinely tried myself but Google isn't really helpful on bringing back decent results either way. I wouldn't blame you or infer any answers either way if you decided to give it a miss with others things to do in our busy lives.

    I'd disagree with Prof Tomkins, but as we don't have a written constitution I'm actually not sure there is a definitive answer. If there was to be such a serious issue that was ratified by Parliament that contradicted Common Law, they will need the Courts to enforce it. Would the courts be willing to nullify their own power? If they didn't, then what?
     
  7. JWJ

    JWJ Active Member

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    We don't have a specific text containing our constitution, but a lot of it is contained within the statutes, and ironically, common law.

    https://www.parliament.uk/about/how/role/sovereignty/

    But yeah it is a complex and interesting question and ties back into the role of the monarchy.

    Have a look into Pickin vs British Railways Board [1974]. Essentially Pickin argued that the BRB had misled parliament, and because of that, the new law governing what happens to railways land that's been abandoned should be repealed and the court should uphold the old law (which would have meant he was given part of the land as he owned adjacent land).

    The Court found that they had no power to question the validity of a statute or the process by which it is developed. “The function of the UK courts is to construe and apply enactments of Parliament, and save declarations made under the Enrolled Act Rule. The Court has no concern for the manner in which Parliament makes such enactments.”
     
  8. Chelonian

    Chelonian Moderator

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    I was taught that much of the UK's constitution does exist in the written format. Some of it scratched onto one-thousand-year-old vellum.

    But our constitution is not unified into one single document as is common in many other jurisdictions, as stated in the link above by @JWJ
     
  9. ThreadpigeonsAlpha

    ThreadpigeonsAlpha Royal Marines Commando

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    Breach of the peace you say? Well where was this when certain groups were quite literally inciting hatred, violence and death...

    I seem to remember the press reporting it was their right to freedom of expression... but now an old guy wants to preach and suddenly it’s “breach of the peace”...

    Playing devils advocate, if it was an old guy preaching about a certain religion, would they have dared treat him the same?

    Smug little doorknob saying thank you to the camera like he’s just done some great service to the community.
     
  10. ThreadpigeonsAlpha

    ThreadpigeonsAlpha Royal Marines Commando

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  11. Chelonian

    Chelonian Moderator

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    It's difficult—for me anyway—to make a judgment about Oluwole Ilesanmi’s bible bashing episode because in the first clip we only see the confrontation with Police and not what caused members of the public to report him.

    Mr Ilesanmi did get in the officer’s face but it’s recognised that some ethnic cultures communicate with their hands as well as their voices and that it should not be assumed that such gestures are always hostile.
     
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  12. rkec

    rkec Member

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