Freemen on the Land

Document Sample
Freemen on the Land Powered By Docstoc
					Freemen on the Land –Guidance on the Management of Proceedings - OFFICIAL RESPONSE
TO FMOTL

1 Introduction

1.1         Individuals who describe themselves as “Freemen on the Land” have begun with
            increasing frequency to appear before the courts. These appearances may be in
            connection with civil proceedings (such as the recovery of unpaid council tax), family
            proceedings or criminal prosecutions. At such appearances the individual may assert
            that the court does not have jurisdiction (possibly describing the court as a
            “commercial” court) and claiming the primacy of their understanding of common law.
            In this they may argue that statute law may only apply with consent; a consent
            which they do not give.

1.2         Individuals describing themselves as “Freemen on the Land” may also appear as
            supporters of other associations (for example the British Constitution Group).

1.3         It is neither necessary nor appropriate to examine their arguments in any detail to
            identify that their rejection of statute law as without merit. However, though they
            may not accept the jurisdiction of our courts, the courts must both ensure that an
            individual’s right to a fair trial is protected and the integrity of the judicial system is
            maintained. This may however be difficult as “Freemen” may undertake direct action
            which disrupts judicial proceedings .

2     Actions before Hearing

2.1         Courts are generally made aware of those proceedings which involve “Freemen”;
            either because the applicant/prosecutor identifies the respondent/defendant as a
            “Freeman” or because the individual in correspondence in advance of a hearing
            (frequently e-mails correspondence without a postal address) asks questions either
            about or challenging the court’s jurisdiction . When so aware it is suggested that the
            following preparatory actions be taken:

      (i)      the Justices/District Judge be briefed ;(ii) Court Security Officers be alerted and
               reminded of their responsibility to facilitate the hearing of proceedings and of
               their powers under sections 52 to 56 Courts Act 2003; and(iii) the Police be
               contacted to confirm incident control plan, if there is an indication of disruptive
               action.

2.2         There is evidence from web-site postings of those present at “Freemen” protests,
            recording proceedings in circumstances which may breach section 41 Criminal Justice
            Act 1925 (prohibition on taking photographs in court) or section 9 Contempt of Court
            Act 1981 (use of tape recorders). Court Security Officers may use the powers in
            section 54 Courts Act 2003 to seize and detain devices which could be used to record
            (audio or video recordings) proceedings in court. Such devices would include mobile
            phones which have increasingly sophisticated recording capabilities.

2.3         As is noted above “Freemen” may seek to engage court staff in correspondence. It is
            suggested that correspondence is acknowledged and responses are limited to factual
            issues and that there is no debate in the correspondence on the merits of the
            arguments advanced by “Freemen”. It is also suggested that because of the nature
            of e-mail correspondence, including the inability to identify the correspondent’s
            address or identity, it is suggested that court staff should use recorded delivery
        postal correspondence for such communication (enabling the court to be satisfied
        that the address for correspondences is the address used for process (summons,
        adjournment notices etc.). In some cases the volume of e-mail correspondence has
        been large as to fill mail boxes; though it is possible to ask that certain e-mail
        address be blocked, it is suggested that the better course is to send an
        acknowledgement, indicating that there will be no substantive response by electronic
        means (explaining that e-mail, correspondence does not establish the identity or
        location of correspondents).

3     Management of the Hearing

3.1     In managing the hearing the Magistrates (or District Judge) and Legal Adviser need
        to work in partnership to ensure that all individuals have an opportunity of being
        heard but also that that they cannot use the court process to either advance political
        arguments or to disrupt proceedings. Any challenge to the jurisdiction of the court
        from a party should be identified at the start of the proceedings. To assist
        management of the case the court should consider making directions either under
        Rule 3.10 Criminal Procedure Rules 2010 or Rule 3A Magistrates’ Courts Rules 1981
        requiring the parties to identify the issues in dispute and for the court to set a
        timetable for proceedings.

3.2     At court hearings Freemen (or their supporters) have brought mobile recording
        equipment into courts. In any case where such equipment is seen the user should be
        challenged and security staff directed to seize the equipment. Following the issue of
        the Lord Chief Justices’ Interim Practice Guidance on the use of live text-based forms
        of communication (issued on 20th December 2010) Freeman may make application
        to keep equipment which would support text communication (e.g. communication
        about the proceedings by Twitter). When dealing with any application Magistrates
        should be reminded that there is a total prohibition on the taking of photographs
        (including moving images) and that sound recording is only permissible with the
        consent of the court.

3.3     In some cases “Freemen” having attended court, have nonetheless declined to give
        their names or refused to acknowledge conventional naming styles (e.g. a Freeman
        may not accept that he is John Doe but may accept that he is “John of the Family
        Doe”). It is suggested that courts should use the style of name that an individual has
        adopted. So that if an individual attends court and will not identify him or herself as
        named in the charge or summons, but will accept that he or she is “John or Jane of
        the Family Doe”, it is open to a court to determine that this individual is the
        defendant/respondent in the proceedings. If however, the court is not satisfied that
        the individual present is the person against whom proceedings have been
        commenced, it should deal with the matter as if there had been no appearance. In
        criminal proceedings, the court shall proceed to deal with the matter unless to do so
        is contrary to the interests of justice . Whilst for proceedings on complaint the court
        has a power to proceed in the respondent’s absence when satisfied that adequate
        notice has been given .

3.4     In Freeman cases individuals (possibly including the defendant or respondent) may
        describe themselves as the agent or the lay representative of an absent defendant or
        respondent. The court should be clear that agents or lay representatives have no
        status before the court. They cannot be treated as an advocate, nor can an “agent or
        lay representative” represent an absent party to proceedings (section 122
        Magistrates Courts Act provides that an absent party is deemed to not to be absent
      when represented by a “legal representative” this would not include an agent or lay
      representative). Such an individual may act as a McKenzie friend, assisting the
      Freeman to represent him or herself. However, for there to be a McKenzie friend the
      party being “befriended” must be present in court. If a Freeman is allowed to act as
      a McKenzie friend, he/she should be confined to that role, assisting but not acting as
      an advocate.

3.5   There have been incidents where Freemen have interrupted or disrupted a court;
      such conduct can constitute an offence of contempt and be dealt with under section
      12 of the Contempt of Court Act 1980 . On 4 April 2011 the provisions in the
      Consolidated Criminal Practice Direction dealing with contempt were superseded by
      Rule 62 Criminal Procedure Rules 2010. The new Rule 62 was introduced by The
      Criminal procedure (Amendment No 2) Rules 2010 – SI 2010 No. 3026; section 2 of
      Rule 62 deals with Contempt of Court by obstruction, disruption, etc.

3.6   Rule 62.5 applies where the court observes or someone reports to the court a
      contravention of -• Section 97 (4) of the Magistrates’ Courts Act (refusing to give
      evidence)• Section 12 of the Contempt of Court Act 1981 (insulting or interrupting
      the Court)• Contravention of Section 9 of the Contempt of Court Act (Without the
      Courts permission recording proceedings, etc)• Any other conduct which the court
      can deal with as, or as if it were a criminal contempt.

3.7   When dealing with such conduct, unless the respondent’s behaviour makes it
      impracticable, the court has a responsibility to explain:

      • the specific conduct that is in question, • that the court can impose imprisonment
      or a fine for such conduct, • that, where relevant, the court has the power to order
      immediate temporary detention, and• that the respondent may explain the conduct,
      may apologise and may take legal advice.

3.8   Having given the required explanations the court must allow the respondent a
      reasonable opportunity to reflect, to take advice and explain. The court may then (a)
      take no action, (b) enquire into the conduct immediately, or (c) postpone that
      enquiry to later the same day. The procedure to be followed at an immediate or
      postponed enquiry is set out in Rule 62.8. This requires that the court again explain
      what is alleged, explains what procedure will be followed, and asks the respondent if
      he/she admits the conduct (when the court need not receive evidence). If the
      respondent does not admit the conduct the court will hear evidence and
      representation. The court is required to make a written record of its findings
      following the enquiry. The court that conducts an enquiry need not include the same
      member or members of the court that observed the conduct, but may do so unless
      this would be unfair to the respondent. Before Magistrates who observed the conduct
      deal with an enquiry they should specifically consider whether their presence be
      unfair to the respondent and record their decision in the court register.

3.9   Because of the risk of disorder arrangements should be put in place to summon the
      police (if not present at the hearing). In the event of disorder, individuals may be
      arrested and either prosecuted or brought before the court for an application that
      they be bound over to keep the peace. On an application that a person be bound
      over arrangements should be put in place to enable the court to hear evidence at the
      first hearing and for the defendant to have access to legal advice. In the event that
      the court decides that an order is necessary and a defendant refuses to enter into a
      recognisance, the expectation would be of committal to custody in accordance with
      Section 115 (3) Magistrates’ Courts Act 1980. In such cases it is good practice, that
      an individual is committed be given the opportunity to appeal, including being
      provided with a draft notice of appeal to complete. Once any notice of appeal is
      lodged the court would be entitled to consider the grant of bail.

4.    Conclusion

4.1   Courts need to ensure that when dealing with Freemen or other protest groups they
      maintain their focus on proper procedure and the protection of individual rights,
      including the rights of other court users. This will require courtesy, patience,
      precision and rigour in the management of the court.

      The Justices’ Clerks Society, October 2011 – Steve James

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:16
posted:12/13/2012
language:English
pages:4