Tuesday, 15 July 2008

The Shepherd Trial - ILLEGAL AND UNLAWFUL

It appears that the latest two free speech criminals, the misogynist and pro-cannibalism nutcase Simon Shepherd and his 'accomplice' have done a bunk after being convicted of race hate crimes in Leeds.

As one of the people frequently attacked as a 'jew', 'zionist' and 'red' by Shepherd and his nasty little clique, I have no respect for shepherd or his views.

I consider him a nutter who has damaged the interests of nationalism with his idiotic hollywood nazi nonsense, but the fact remains I believe his conviction is flawed and unlawful.

No doubt the shepherd two are on a beach somewhere surrounded by swarthy cypriots lamenting the lack of Nordic women to despise, but their case raises an interesting question that it appears their barrister did not address during the trial, and which should have thrown the whole case into doubt.

In the case of Copland vs United Kingdom, 3 April 2007 it states ;


http://www.legi-internet.ro/index.php/Copland_vs_United_Kingdom_EC/278/0/?&L=2


3. Whether the interference was “in accordance with the law”

46. This expression not only requires compliance with domestic law, but also relates to the quality of that law, requiring it to be compatible with the rule of law (see, inter alia, Khan v. the United Kingdom, judgment of 12 May 2000, Reports of Judgments and Decisions 2000-V, § 26; P.G. and J.H. v. the United Kingdom, cited above, § 44). In order to fulfil the requirement of foreseeability, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are empowered to resort to any such measures (see Halford, cited above, § 49 and Malone, cited above, § 67).


In the Shepherd case it appears that this principal of 'forseeability' was breached and also the principle of 'non-retroactivity' of the law itself.

In the shepherd case the case itself resolved around an extension of the Public Order Act 1986, which was never drafted to apply to the internet or to apply outside the jurisdiction of the UK in relation to material posted on foreign computer servers held in the US, and the POA sections relating to incitment to racial hatred itself being applied in circumstances that the drafters of the law never foresaw or intended the law to be applied in such a way.

Prior to the shepherd case the POA 1986 did not apply to internet postings or to foreign computer servers in foreign jurisdictions, yet the case was brought and the shepherd two prosecuted on the basis that the law already did apply in their respective circumstances. This is a false contention.

Until the jury recorded their verdict of guilty no such offences had ever been in existence in relation to the internet, nor were such offences relating to the internet listed as coming under the POA 1986 in relation to either the defined statutory offences or case law relating to those sections of the POA 1986 they were charged under.

As such it should have been argued that because ;

1) The drafters of the POA never intended the POA to apply to the internet

2) The drafters of the POA in Hansard never expressed any intent to apply the POA to the internet

3) That the defined statutory offences under the POA did not specifically define postings on the internet as a specific medium coming under the act

4) That the defined stautory offences under the POA did not define that the POA 1986 applied to computer servers OUTSIDE UK JURISDICTION

Then the principles of legal certainty and 'forseeability' in relation to the POA 1986 COVERING THE CIRCUMSTANCES OF THE SHEPHERD CASE IN RELATION TO THE INTERNET AND COMPUTER SERVERS OUTSIDE THE UK cannot be said to have been fulfilled.

Forseeability is based on the law being clear TO THE GENERAL PUBLIC and that restrictions on rights such as free expression (protected under the ECHR) should have a formal STATUTORY DEFINED basis in the law and be sufficiently precise for an individual to assess whether or not his or her intended conduct would constitute a breach of the law and what consequences this conduct may entail.

As far as the required level of precision is concerned, the more specific the legislation is, the more precise the language needs to be (e.g., constitutional provisions, because of their general nature, may be less precise than other legislation ) BUT CRIMINAL LAW OFFENCES MUST BE STRICTLY AND TIGHTLY DEFINED.

The POA 1986 applies a punishment of seven years for an offence, and therefore any offences that come under the PAO must be strictly regulated and listed UNDER THE POA OR IN CSE LAW ITSELF in order clearly in legislation in order for individuals not to inadvertently breach the POA itself.

In this case until the court held that the POA 1986 applied to the internet and computer servers outside the UK, then nobody in the UK - INCLUDING THE CPS - was aware that the POA 1986 covered such circumstances.

Therefore how can one be said to be able to regulate ones conduct - as the conduct now crminalised was not defined, was never crminal and never defined until after the jury returned its veerdict and 'DEFINED' the law itself.

The fact is that by the law not being defined in the circumstances of the shepherd case, then in effect the shepherd two have been found guilty of a retrospective crime - as the offence they were charged with did not exist until they were found guilty.

Therefore they should not have been found guilty on the grounds that ;

1) Legal Certainity did not exist

2) Forseeability did not exist

3) The imposition of criminality was retrospective in effect

See European Court of Human Rights, Rekvényi v. Hungary, Judgment of the Court, 20 May 1999, para 34.


http://www.echr.coe.int/Eng/Press/1999/May/Rekv%C3%A9nyi%20epresse.html

" 34. According to the Court’s well-established case-law, one of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 31, § 49, and the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 19, § 40). The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see, mutatis mutandis, the Cantoni v. France judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1628, § 32). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see the previously cited Vogt judgment, p. 24, § 48). Because of the general nature of constitutional provisions, the level of precision required of them may be lower than for other legislation. "



The Court took it for granted that the pursuit of activities of a political nature came within the ambit of Article 10 in so far as freedom of political debate constituted a particular aspect of freedom of expression, being at the very core of the concept of a democratic society.

The Court found that there had been an interference with the applicant’s right to freedom of expression. Such an interference gives rise to a breach of Article 10 unless it can be shown that it was "prescribed by law", pursued one or more legitimate aim or aims as defined in paragraph 2 and was "necessary in a democratic society" to attain them.

According to the Court’s well-established case-law, one of the requirements flowing from the expression "prescribed by law" is foreseeability. Nevertheless, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain. However, the level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.


The Shepherd case is in breach of so many fundamental laws that I seriously wonder why their barrister did not challenge the legality of the basis of the prosecution itself.

The fact they are now on the run now also means the legality of their conviction will not be challenged.

All in all this is very sinister - and worrying.













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4 comments:

MrMopHead said...

FFS why werent you defending the two if you are the legal genuis the nationalist movement so badly needs? Bad back again was it?If you are such the fogging expert youd be making a fortune defending the hundreds of people nationalists and others who the tyrants want to lock away.

Gerry said...

"I consider him a nutter who has damaged the interests of nationalism"

That’s fucking rich coming from you, you're regarded as the greatest loon on the web; fuck knows how much damage you have done to the cause of nationalism with your hate-filled rants.

Defender of Liberty said...

Thanks Gerry,

I never knew you cared so much about nationalism coming to power - will that mean you are now supporting the BNP ?

Mr Potter said...

Fine legal work Lee.

It's a great pity for both the two defendants and nationalists in general (and the General Public too)that their legal reps did not do their homework and come up with the loopholes that you have managed to discover.

The two defendants should come in from the cold now.

If they're looking in - or someone is in touch with them - get your legal rep to check this stuff out.

Their case is of fundamental significance to nationalists and they need to appeal for their sake - and for the sake of free speech.