Nulla Poena sine lege

No punishment without a law. This is a famous and fundamental principle of criminal law. It has been established in assorted but growing forms over hundreds of years. You cannot punish somebody under a law which did not exist when the offending act took place, and which he therefore cannot (obviously) have known to exist.

It is vital to recognise that we (UK – to a lesser extent in Scotland) are a common law jurisdiction. Judges are said not to make new law, but in effect to have discovered wht the old law was. Thus strictly under common law, a judge is not applying new law when he creates an offence. In theory he has only re-discovered an old one, and in somewhat harsh principle, a defendant might have made the same inferences and concluded that his intended actions, though not described in any criminal law textbook, might actually yet be an offence. In practice discovering now an entirley new offence at common law would require something quite etxraordinary, but a new extension or modification of an old offence may indeed by very possible.

Common law remains, but we now have, added on top, Human Rights law. The principle is now embodied in the European Convention on Human Rights under article 7

See Cameliara v Italy

It was held there that a prosecutor could decide after the charge in which jurisdiction the prosecution would take place which would affect the sentence ranges available to a court. This was held to be a breach of the principle – exteding the issue not just to the very existence of the offence,,bt beyond that to aspects which indicated how seriously it might be taken.

Article 7 does not, I suggest, completely replace the common law latin principle. A-7 reads

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time that it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

What is not always understood is just how important case law is. Article 7 does indeed provide many substantial protections, but it works as an addition to our own law. Where our law conflicts with Convention rights, then the Conventions prevail, but where a right given or taken under our law is not in direct conflict with the Convention, that right given or taken remains given or taken. Similarly we have our own statute law. Statutes are the decisions of parliament resolved under procedure. A statute will prevail over a common law right. Many many criminal offences are now specified in detail in statutes, but many remain outside any statute. In addition once an Act (or Convention) is passed, there will be many cases offering interpretation and clarification. Access to the statute itself is only part – though a big part – of what is needed. Case law attacks statute law as do barnacles the hull of a great oil tanker.

My point such as it is that the principle – one which sets out to establish a fair system – is incomplete. The citizen needs also to have access to the law. He needs, if considering an action not only to be able to identify the possible crime by reference to existing cases and statutes, but has also to have access to those decisions. Without that facility of being able to ask meaningful. It begs the question whether having access in principle is achieved where the citizen cannot determine his question without access to a full law library of a lawyer with a full law library.

Do not underestimate how difficult it can be for anyone to research case law. Before electronic databases, cases culd be found only in case law text books. It must be understood however how limited these can be. I practiced in two medium sized towns. In one we had at various times up to seven small solicitor practices. Only one – ours – carried any case law series. We carried one – the All England. I once did the roughest of calculations, to come by an estimate that if you selected a which might be of random interest, the chances of it being in that series were about one in twenty. Buy a second series, say the Weekly Law Reports, allow for the fact that many are duplicated, and you raise the odds to about one in fifteen that any case chosen at random might be in the law reports purchased. The combined cost is in excess of what a smaller firm can afford. The situation was not a lot better on Oldham. If a semi-useless library is unaffordable to a small sized firm of professional lawyers, it is clearly well ouside that available to a litigant. Public libraries might provide an answer. No. When last I looked (some time ago) no local authority carried such series. Universities perhaps? Yes, but not all unversities teach law, and fewer are ready to make their libraries available to passing litigants. The only resources providing an answer in the past were major court centres – locally, that would be Leeds.

As in other areas of law, a remedy was available but only to those with deep pockets.

This is where, I suggest, swarb.co.uk makes a real difference. We are part of a new system which indeed makes case law available to anyone and everyone who has access to the internet. The other major players are Bailii (British and Irish Legal Information Institute, Commonlii, Worldlii, justiciary.gov.uk, and an assemblage of other free and paid for services.

The system as it is remains in an imperfect world, a long way from perfect, but the ability of people to discover what law might govern their actions is very much better satisfied for our existence, and that is in itself quite sufficient to justify our existence.

Otherwise, the principle is stated as: Nullum crimen sine lege and nullem crimen, nulla poena sine lege.

Meditation

Transcendental Meditation

Many years ago, a Saturday morning in early May 1972, I learned Transcendental Meditation (TM), as taught by Maharishi Mahesh Yogi. It was a house in Leeds. I forget my teachers name (Claire?)

I came to it from a bad place. Several months earlier a friend slipped me some LSD in my beans on toast. He had been trying to persuade me to use it, but I always said no. I had tried cannabis a couple of times, and got a mildly pleasant feeling followed by several hours of discomfort. I just wasn’t interested. Within a shortish time – I do not know exactly how long – I was hallucinating severely in Baker Street tube station. It left me frightened. I had no understanding of what had happened or how. My explanation now is not something which occurred to me until several weeks later.

So, come that May morning I felt terrified of letting go. I was trying hard constantly not to let my mind wander. I feared where it might go. I had considered TM for a couple of years, and then a very good friend, Mas, learned it, and recommended it to me.

I was instructed to do the very thing which terrified me – to let go – to leave my mind entirley free to go where it wanted, without my learned constraint. I had decided that I could no longer allow my life to be ruled by the fear I felt. It was a leap into frightening, completely unknown possibilities. Instead, within rather less than ten minutes of actually starting, something astonishing happened. The deepest relaxation I had ever felt simply overwhelmed me. In an instant, I knew I had found a home.

Fifty years later, I still meditate (TM) every day. It has had an enormous and beneficial effect on my life, and I will continue. In the early years I became more committed to TM, and learned several advanced techniques and much theory. Each time I willingly gave a promise to keep what I had learned to myself. At the same time, it is many years since I have had any close contact with the movement – several years before Maharishi died. We had a family tragedy which put a hold on many elements in our lives and we never got back to some former interests. I would not have got through that without TM, but the advanced stuff fell by the wayside. I still get emails, but they reflect a very different movement to the one I first entrance. I do not deny it, but it does not attract me.

I willl not therefore do anything which I consider to be a betrayal of any of my promises, but my own understanding and feel for how this works has changed a little. I want to set that my present understanding out, in the hope that others may be encouraged to try something for themselves.

For clarity, I am not teaching TM. TM comes from a background I respect immensely, and I wish to very clear that I make no pretence of understanding the tradition. I am not a Hindu, or any variant of it. TM says that such an association is not integral to the movement. Well it did, but whether it persists with that assertion I do not know.

This will not be TM under another name. I anticipate that TM texts giving full details of the teachings, guidance, practice and mantras are available on the net. I do not speak as to their accuracy. I think that I know and respect the boundaries.

I had an extraordinarily good introduction to TM. Some people, more that I would wish, do not get the same instant results, and do not persist as I think they should. I do not blame them – we are all time pressed. I paid a tiny amount to learn. Nowadays it is a much more significant sum. That sum would have been worth it for me but, I simply would not have been able to find anything like it at the time.

To be continued.

Getting Flushed

Today, I am back in hospital for my second ‘flush’ of oxaliplatin by cannula. The infusion lasts two to two and a half. I have a fifteen minute saline drip on either side. I receive this in the MacMillan unit at Calderdale Royal.

. .

Am now back. it went better than last time (which wasn’t too bad either), having started with the pins and needles only after the treatment finished. I hope to get away with something a little less painful this time.

Running in the Cold

Running today it was cold, -1c, feels like -6c. I hadn’t checked the weather. I did not think about it, but the canal was frozen over in parts, and it snowed.
I wore a thin vest, a merino running jacket and a thin black gillet. It was quite slippy, but after the first few minutes I was not cold. I might helpfully have worn gloves for the first mile or so, but otherwise it was fine.

Had I known, I would have overdressed. Had I stopped, I would have been underdressed, but as it was, it was fine.