Re: Miles of beach to enjoy?

On Sat, 24 Jan 2009 11:04 , rlo@xxxxxxxxxxxxxxxxxxxxxxx wrote:

[cut]

Cases over the last few years have proved that.
Bethell with his naked protests, where they tried to prosecute for "causing
a public nuisance.

It was a not guilty verdict, not a ruling. Hence that case is not
binding on any court, police officer, prosecutor or anyone else. It
was a useful indication to the CPS that they were over reaching
themselves. Nothing more.

Is that completely true? The last time I read up on "case law", the
topic seemed to be in flux. While there was total agreement that
Appeal Court and Law Lord rulings did constitute case law, a major
reason why judgements in lower courts were not normally even
considered as indicating a legal principle was because they were not
widely, fully and accurately reported. In other words, case law is
_*mainly*_ about what one can unearth from the various formal Law
Reports.

On the other hand, given the relatively lowly level of the court which
tried and acquitted Vincent, it's quite possible that the CPS would
feel that enough years have passed for attitudes to have changed and
that it might be worth having another go in a similar situation -
particularly in a different part of the country and with a defendant
who was unaware of the Bethell (etc) cases which, even if not case
law, provide loads of useful information on which arguments succeeded
and which failed - under a different collection of legislative
provisions.

Anyway, are police governed by "case law"? AIUI, police don't
prosecute or judge (in theory). The police maintain order, make
arrests and investigate, but (except for fixed-penalty situations and
cautions) don't prosecute or deliver judgements.

There was the neighbour dispute in Wales where a woman
was wandering past her neighbours house naked.

That was magistrates court so again not binding on anyone. It is a
useful indication, nothing more. As it happens I have that file on the
table in front of me because a couple of days ago I was contacted
about a similar case which I am now advising on. There is a distinct
possibility that it will result in a court case that does set
precedent.

Cannot the prosecution appeal against decisions of magistrates courts
_on a point of law_, which appeal _would_ determine "case law"? Since
the prosecutor of the Welsh nurse chose not to appeal, it suggests the
CPS had de facto determined case law, if not de jure.

However, I absolutely agree with the point Malcolm makes implicitly,
which is that a case which results in irrefutable case law on this
matter could well be deeply unpleasant for the accused. It's a
toss-up whether the meeja would side with the "innocent victim of
bigotry" or the "seedy pervert". Which would itself depend on which
attitude would sell more papers? (It's clear which attitude would be
more likely to get the report publicised by Anna!)

There has been discussion of ACPO and similar police bodies being
briefed. Those with an interest in that sort of approach might be
interested in
<http://www.npia.police.uk/en/docs/Stop_and_Search_in_Relation_to_Terrorism_-_2008.pdf>,
which provides official guidance on what the police should and should
not do in regard to some specific behaviours and situations. Amongst
the guidance to officers is the following on photography:

Quote++++++++++++++++++++++++++++++++++++++

The Terrorism Act 2000 does not prohibit people from taking
photographs or digital images in an area where an authority under
section 44 is in place. Officers should not prevent people taking
photographs unless they are in an area where photography is prevented
by other legislation.

-----------------------------------Unquote

This is clear and unambiguous, and is the sort of guidance it would be
great to see in regard to non-sexual nudity in a comparable document
on public order or similar.

.

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