British Government Creates New Criminal Offence By Mistake

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British Government Creates New Criminal Offence By Mistake

Post by Zaune » 2011-12-28 05:01pm

The Guardian
Weaknesses in parliament's law-making procedures have been exposed by a curious case encompassing a Tyneside egg-collector, the hatching of a non-existent offence, and the criminalisation of Britain's museums.

Seven years after a statutory instrument updating nature regulations glided virtually unobserved through Westminster, the Department for Environment, Food and Rural Affairs (Defra) has this week admitted it "unlawfully" put a new crime on the statute books.

The unintended outcome of the rarely deployed Wildlife & Countryside Act 1981 Amendment Regulations, Statutory Instrument (SI) 1487/2004, has been shot down by lawyers' persistent questioning.

Quincy Whitaker, a barrister at Doughty Street chambers, London, and Nigel Barnes, a solicitor at the Sunderland and Newcastle firm Ben Hoare Bell, realised that a parliamentary drafting error had accidentally removed a previous defence and laid in its place, cuckoo-like, a constitutionally impossible crime.

The regulations, meant to harmonise UK bird protection rules with EU laws, made illegal the possession of wild eggs collected from 1954-1981. Police and wildlife agencies used the new regulations to prosecute a number of people.

The change in the law was never the subject of public consultation, neither was it debated in parliament. The retrospective criminalisation of historic collections has caused museums, scientific research organisations and private collectors to the risk of prosecution.

One of the first people to discover the law had changed was John Dodsworth, 52, who has past wildlife convictions. His home was raided by the police wearing riot gear in 2006 and about 1,000 eggs were seized from there. "Officers used a battering ram to force their way in. The children were very upset to see their parents manhandled by the police."

At South Tyneside magistrates court three years later Dodsworth, an asbestos removal supervisor, pleaded guilty to one offence of possessing wild birds' eggs, but said: "I should never have been prosecuted.But when I was taken to court I was told it was a strict liability offence and I had to plead guilty. I was given a 100 hours community service order."

Helater decided to appeal against both conviction and sentence. The sentence –was quashed in January 2010 and Dodsworth was granted an absolute discharge on the grounds that no one was aware such possession had been an offence at the time. "But they were still prosecuting people for this as recently as September," he said.

An overturn of the disputed section of SI 1487/2004 has proved more difficult.

Whitaker told the high court: "The retrospective criminalisation of possession of eggs that were lawfully held prior to the enactment of the regulations (those collected from 1954-1981) has widespread implications for museums and other public collections, natural history and scientific research collections and private egg collectors throughout Britain.

"[The creation of a new crime] would have been expected to have been widely announced and debated within the relevant communities if it was the intention that the regulations should have such an effect." Her judicial review case was also brought against the Crown Prosecution Service to prevent pursuit of fresh cases.

Evidence was given by Bob McGowan, senior curator of birds at the National Museum of Scotland, who said that the change in the law required him to assess 36,000 clutches of eggs in his collection. "It is difficult to imagine this particular outcome was an intention of the amendment," he said in a statement.

For several years after the law was changed the CPS website continued to advise that possessing historic eggs was legal, Whitaker added. The Royal Society for the Protection of Birds believes the change was a legislative error rather than intentional.

Nigel Barnes, who represented Dodsworth in his appeals against sentence and conviction, submitted a series of freedom of information requests. "I questioned whether the statutory instrument was lawful," he said. "What are the CPS going to do now about the people who have been convicted? It may be a handful, it may be more. There are many more who may have committed an offence without realising it."

Whitaker searched through the parliamentary papers and Defra files. "When I got the papers I realised it must have been a drafting error," Whitaker explained. "The department has now conceded it was wrong.

Whitaker said: "It's an example of how much modern-day legislation is passed by civil servants without anybody understanding it.

"Had anyone realised what had happened, it should have been referred to parliament because it creates a criminal offence. As it was, it was unconstitutional.

"The House of Lords had specifically rejected the creation of the offence which the amendment regulations in fact created when the original act (the Wildlife & Countryside Act 1981) was debated in parliament.

"To create an offence that was contrary to the express will of parliament by delegated legislation without informing anyone that it has that effect is highly unconstitutional to say the least."

A Defra spokesman confirmed that the department now accepted the change to the law was illegal.

A statement said: "The 2004 consultation documents on the draft statutory instrument did not outline an intention to remove the pre-1981 defence in relation to the possession of wild bird eggs. Defra has accepted that, as the consultation did not mention those particular changes, they were unlawfully made."
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Re: British Government Creates New Criminal Offence By Mista

Post by White Haven » 2011-12-28 05:34pm

...The police broke down a door with a battering ram and stormed a home over this? Really? Even if the law wasn't quite obviously suspect at first glance, I can't even fathom the mindset that would make the jump from from 'this man is suspected of possessing wild bird eggs unlawfully' to 'Whoo! Dynamic entry!'

I thought the UK police forces had a more sober, restrained outlook on that sort of nonsense.
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Re: British Government Creates New Criminal Offence By Mista

Post by Eternal_Freedom » 2011-12-28 05:49pm

White Haven wrote:...The police broke down a door with a battering ram and stormed a home over this? Really? Even if the law wasn't quite obviously suspect at first glance, I can't even fathom the mindset that would make the jump from from 'this man is suspected of possessing wild bird eggs unlawfully' to 'Whoo! Dynamic entry!'

I thought the UK police forces had a more sober, restrained outlook on that sort of nonsense.
They generally do, which means that when they do fuck up it gets all the more publicity than in, say, America.
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Re: British Government Creates New Criminal Offence By Mista

Post by Serafina » 2011-12-28 05:53pm

Well, illegal trafficking in endangered species should be a serious offense, and those conducting it often have serious criminal energy. And it looks like this got classified like that.
Which is of course ludicrous in the case of eggs collected decades ago, but that's not the polices fault.
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Re: British Government Creates New Criminal Offence By Mista

Post by White Haven » 2011-12-28 05:55pm

It really is, actually, the police's fault. These aren't robotic drones, they're human beings who can look at the details of the evidence and say 'wait a minute, this's misclassified...' and then go knock on the door.
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Re: British Government Creates New Criminal Offence By Mista

Post by Mr Bean » 2011-12-28 06:26pm

White Haven wrote:It really is, actually, the police's fault. These aren't robotic drones, they're human beings who can look at the details of the evidence and say 'wait a minute, this's misclassified...' and then go knock on the door.
Also... if I'm not mistake this law runs smack into the principle of ex-post facto which hell might be legal in Britain but a law passed can't criminalize activity that happened before the law was passed. Which is why if America or Britain re-banned alcohol tomorrow we can't then arrest 80% of the adult population for the crime of drinking it before the law was passed.

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Re: British Government Creates New Criminal Offence By Mista

Post by Lord Relvenous » 2011-12-29 04:39am

Mr Bean wrote:
White Haven wrote:It really is, actually, the police's fault. These aren't robotic drones, they're human beings who can look at the details of the evidence and say 'wait a minute, this's misclassified...' and then go knock on the door.
Also... if I'm not mistake this law runs smack into the principle of ex-post facto which hell might be legal in Britain but a law passed can't criminalize activity that happened before the law was passed. Which is why if America or Britain re-banned alcohol tomorrow we can't then arrest 80% of the adult population for the crime of drinking it before the law was passed.
The collection was made illegal. The possession was. AFAIK, that means any citizen has the responsibility to dispose of any illegal materials, consulting the local authorities for the proper steps for doing so.

Or in your example: if possession of alcohol was made illegal tomorrow, you could be arrested for possession of liquor that you had purchased two years previously.
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Re: British Government Creates New Criminal Offence By Mista

Post by Simon_Jester » 2011-12-29 05:40am

When laws like that are passed, there is some obligation on the part of the state to provide a reasonable span of time, and a reasonable amount of information, to the citizens. I have to tell people that liquor is about to become illegal, and give them time to dispose of it in a responsible fashion.

As far as I can tell, the law here was passed without any lawmaker grasping the implications, or intending them to apply under these circumstances. That's a very bad starting point for passing new laws, and it's only made worse by their failure to spread information about the new statute.

One might reply that "ignorance of the law is no excuse," but like most sound bites that idea has its limits. Law is meaningless if it is not public. There have to be mechanisms by which the state tells you what the rules are before it can justly punish you for breaking them. That's why good governments will publish big books of regulations, including new changes to the law as they're added on, and keep up running documentation on the deliberations of the legislature- so that responsible people can easily learn what is and is not legal.

Here, at first glance the egg law seems to have been added rather covertly, with no attempt to bring it to the attention of the affected community. Come to think of it, how did this violation even come to the attention of the police in the first place? Dig into this story and I bet you'll find some jackass with a personal grudge against the egg-collector.
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Re: British Government Creates New Criminal Offence By Mista

Post by Duckie » 2011-12-29 08:28am

Mr Bean wrote:
White Haven wrote:It really is, actually, the police's fault. These aren't robotic drones, they're human beings who can look at the details of the evidence and say 'wait a minute, this's misclassified...' and then go knock on the door.
Also... if I'm not mistake this law runs smack into the principle of ex-post facto which hell might be legal in Britain but a law passed can't criminalize activity that happened before the law was passed. Which is why if America or Britain re-banned alcohol tomorrow we can't then arrest 80% of the adult population for the crime of drinking it before the law was passed.
Technically as far as I know parliamentary supremacy means parliament could pass ex-post facto laws if it felt like it, as Britain is one of the few western countries that thus technically have no protections for that. In practice, it's about as likely as the Queen refusing to sign things- it doesn't happen, but theoretically it could save for custom. The UK by treaty obligation with the EU is prohibited from exercising its ability to create ex-post facto criminal law, for instance.

However, checking wikipedia, the UK has numerous times passed ex-post facto laws for regulatory purposes, and tax law. The US however has a similar exception, and regularly passes ex-post facto regulatory and taxation law.

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