Praemunire

[nomadrush]

An historic law that may never have been repealed, could mean that the UK government have committed treason by signing the Lisbon Treaty.

PRAEMUNIRE:-

prae·mu·ni·re  (pr

Comments

[major_clanger]

Hmmm. An interesting approach but it might run into the Doctrine of Implied Repeal, which says that if Parliament passes a law which contradicts an earlier law then the latter is deemed to be repealed, or at least ineffective insofar as it conflicts with the later one. Since McKinnon would be extradited under English or UK laws that implement extradition treaties, this would probably apply.

If praemunire was applied strictly, no EU Regulations would be enforceable! (EU Directives are different, they have to be enacted as local laws anyway; you'll have the joy of learning all about this if you do the OU law course...)

But thank you for teaching me some more arcane legal jargon :-)

Praemunire

[nomadrush]

Someone posted a comment on my main blog saying:-

"The Statute of Praemunire was finally repealed by Criminal Law Act 1967(section 13 and Schedule 4, Part 1), which removed several obsolete offences from the lawbooks."

However, would a "criminal law" statute deal with matters of territory and foreign policy, as my feeling is that this would not fall within "criminal law". I will try to locate the section he/she speaks of and look into it.

Ross

Re: Praemunire

[major_clanger]

Well, praemunire was a criminal law offence itself, so yes. Mind you, the short title of an Act is not always helpful; quite often the X Act will do Y and Z too. The full text of the Criminal Law Act 1967 is available here, and the preamble says:

An Act to amend the law of England and Wales by abolishing the division of crimes into felonies and misdemeanours and to amend and simplify the law in respect of matters arising from or related to that division or the abolition of it; to do away (within or without England and Wales) with certain obsolete crimes together with the torts of maintenance and champerty; and for purposes connected therewith.

Sure enough, under Part II of the Act ("Obsolete Crimes") we find Section 13:

13. Abolition of certain offences, and consequential repeals

Re: Praemunire

[major_clanger]

But there's more! Part III of Schedule 4 ("Savings, etc") says:

The repeal by this Act of the Statute of Praemunire shall not affect the punishment for offences against section 11 of the Habeas Corpus Act 1679, and accordingly in that section for the words “shall incur and sustain the pains penalties and forfeitures limited ordained and provided in the Statute of Provision and Praemunire made in the sixteenth year of King Richard the Second” there shall be substituted the words "be liable to imprisonment for life".

If you look at the Habeus Corpus Act 1679 you'll find Section 11 (well, XI in those days) which is headed:

No subject to be sent Prisoner into Scotland, &c. or any Parts beyond the Seas. Persons so imprisoned may maintain Action against the Person committing or otherwise acting in respect thereof, as herein mentioned; Treble Costs and Damages; and the Person so committing or acting disabled from Office, and incur Premunire 16 R. 11. c. 5. and be incapable of Pardon.Does this ban extradition then? Well, no. For a start,

Re: Praemunire

[nomadrush]

Thank you for this, it's most intriguing.

It may well be the case, that although not previously challenged under the terms this 1679 act, a current challenge based on possible previous precedents could still use this old law, to contest the newer extradition treaty signed by former Home Secretary David Blunkett.

It could also possibly be argued, that the case of McKinnon represents someone NOT a prisoner, and who has NOT been found guilty of any crime, being innocently shipped to a foreign territory to stand trial, and could fall within the realms of common law and the human rights of "the person" being withdrawn. Again refering to articles contained within Magna Carta 1297, the common law principles, may override current statutes.

I'm sure Gary's lawyers have looked into all of this, but just maybe they have missed one important fact?

Thanks for taking the time to come back on the matter though - much appreciated.

Ross

Re: Praemunire

[major_clanger]

Given that this is the highest-profile extradition case in living memory, I'd be surprised if McKinnon's legal team hadn't considered all possible approaches. He's being represented by Edward Fitzgerald QC, who is one of the best civil liberties and extradition lawyers in the country, so I'd say his legal advice is as sound as it can be.

I've quickly reviewed the court decisions - which summarise the legal arguments - and whilst this particular point was not stated specifically under Habeus Corpus it was addressed as part of the arguments under the European Convention on Human Rights, the underlying principle (extradition should not be used oppressively) being the same. But this is now getting into very specialist areas of law where I have no expertise.

Re: Praemunire

[nomadrush]

Yes I was told Gary has a very good barrister, but to date all appeals and evidence have been turned down as you know, so the family are looking for any little crumb that may have been overlooked to date.

Once upon a time in this green and pleasant land, holding a British passport meant protection from foreign powers, and attempts by our government on our behalf to have people safely brought back to the UK. These days however, we see our elected politicians doing the will of the USA and the European Parliament, and I can't see any end to it the way things are, and that saddens me.

Ross