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Article: “Ask a lawyer

An incumbent Public Solicitor took to publishing articles in the St Helena Independent. This, from 18th June 2010, is an example{1}

‘Ask a lawyer’ banner [Saint Helena Island Info:Important Information]

Question: I usually carry a knife which I use for all sorts of things like sharpening pencils or if I go fishing. I have now been told that I am not allowed to carry it. Is this true?

Answer: Well, (here we go again) it depends. You can never carry an offensive weapon, which is something which was made or adapted to cause injury. ‘Made to cause injury’ would be something like a bayonet. ‘Adapted’ is not so obvious. I started my legal working life in the East End of London just after the Kray Brothers had been convicted (yes I really am that old) and it was rough and dangerous. There was a nasty habit of getting an old cut throat razor and binding its handle with tape so that it became a rigid slashing knife - they were excellent steel and very very sharp and it turned from a gentleman’s shaving tool into a vicious weapon.

Most items like kitchen knives however have a perfectly good use but there are severe restrictions upon when they can be carried outside your home. It is an offence to carry any ‘bladed or pointed article’ which covers a lot of items. One case decided that a butter knife with no sharpened edge and no point was a ‘bladed article’ although a screwdriver wasn’t. A penknife is OK as long as the blade is no longer than 3 inches but it must be ‘foldable at all times’ a blade that locks will be a ‘bladed article’ however short the blade.

Hang on a minute”, I hear you shout. “Does that mean that the sheaf knife I have used for fishing for years has to go in the dustbin?” No, but if you have it with you in a public place, you had better have a good reason. Going down to the wharf to do some fishing is OK as is going home but beware of stopping for a beer on the way as you may no longer have a ‘good reason’ to carry the knife. Oh yes and even your penknife with a tiny 2 inch blade can be an offensive weapon if you are carrying it with the intent of using it on someone! The best advice is therefore leave knives at home and only carry them if you can prove you have a really good purpose for doing so - carrying a pruning knife if you are a gardener and need it immediately is alright but not carrying a knife if you think perhaps you might want to cut some cheese for lunch!

So why is the law so stupid? Well it is because knives are dangerous weapons and if you have one in your pocket and a few cans in your stomach and someone attacks you then you might get the knife out to defend yourself or frighten them off and the next thing you know is that someone is dead and two lives are destroyed - yours and the deceased. Not so stupid maybe?

Question: What do you think about the new media bill?

Answer: I am disturbed by it. At the end of the day human history has shown that a free press that is not frightened to show up mistakes or dishonesty is an essential part of democracy. This is especially true in a country which has chosen, for reasons I fail to understand, to deliberately exclude the Freedom of Information Act and where the default mode sometimes seems to be keeping things quiet. There is of course a danger in an overly free press. It can publish articles, editorials or letters which can seriously affect the lives of individuals and damage their right to privacy and I have seen some letters published that have saddened me on behalf of the individuals attacked - and generally individuals in no position to fight back. So yes a decent media code to provide guidelines and yes please do give it some teeth but don’t create a shark which is capable of being controlled like the huge white shark model in Jaws! I find the suggestion that the Governor should appoint the St Helena Media Commission (SHMC) (and theoretically could dismiss it if the SHMC does not punish a publication that has upset him) totally unacceptable. I am not suggesting that the current Governor would misuse the power for a moment but in principle to give those in power the ability to control the press is the sort of thing that might delight the heart of Kim Jong-il in North Korea! Then to give the right to fine huge sums totally out of scale with the powers of the Magistrates and the power simply to close the press down at a stroke without even the right for a hearing (apparently except for financial penalties) is horrific. Fortunately any such law will breach the Constitution in such a basic way (Section 10(10) for those who like to look things up as you are now guaranteed a fair trial in things like this) and don’t tell me that that will all be sorted out in Regulations - it is fundamental and proper protection must be written in.

Ask any of your Magistrates and they will tell you how very difficult it is to balance the rights and wrongs in a trial. They have training and experience and can draw on centuries of experience in enforcing the criminal law against a background where those charged are innocent until proven guilty beyond doubt. And here is a bill wanting to give the ability to impose swinging fines and close enterprises down to the great and the good who (apart from two magistrate members) have no such training and decide ‘guilt’ on a ‘we think it more likely than not’ basis and without always having to have a hearing. So given the limited resources to get proper training for your magistrates this bill suggests creating a new ‘court’ without the traditional protections and obviously untrained unless you throw a lot of money at training.

Oh yes and in case the inadequacies of the system become obvious on appeal, let’s limit appeals to Judicial Review. This is a ‘smoke and mirrors’ appeal that sounds good. “Oh well you can appeal to the Supreme Court”. What may not be realised is that this particular appeal is not ‘on the merits’ - in other words for the Supreme Court to make a judgement on what is fair and right - but means you can only win the appeal if you can prove that the SHMC was so wrong it could not reasonably have reached that conclusion. This would be an almost impossible burden as drawn the bill means any publisher or broadcaster can have their business closed down without even the right to be heard on the original complaint and with no effective appeal.

What I suppose I am saying is that the ‘C’ in SHMC should not stand for ‘Control’. My view, to answer the question, is that the bill as drawn (although intended to meet a real need that a voluntary code has simply not achieved) is so horrid and objectionable that it should be a matter of ‘back to the drawing board’ guys and let’s find a fair way of doing it that both protects both press freedom from control and restriction and individuals from being wrongfully damaged by press pillory.

Question: I hear you are going on leave. Will the Chickens be OK?

Answer: Well actually I had to apply to them for leave. They had already decided that they could take over the job of Public Solicitor pointing out that they have been Lay Advocates for some time. I thought it would be quite helpful until I found Portia rewriting WOCO as the Welfare of Chickens Ordinance with fundamental freedoms for fowls in pride of place coupled with stiff penalties (including mandatory £10,000 fines and automatic loss of licence) for using eggs for culinary purposes - ‘eggs have rights too’.

In fact a kind neighbour is doing essential hencare. I am actually more concerned about what happens to clients (actual and potential) without a public solicitor. The traditional (non hen) Lay Advocates are of course the first point of call but I have made it absolutely clear that I would expect to be contacted (and if necessary in the middle of the night) if there was any really serious matter. Aldhelm Garner is also in post as Assistant to the Public Solicitor and will be in contact with me should the need arise. It is interesting that when a lawyer from the AG’s department is away then a locum is brought in but as far as I know this has never happened for the Public Solicitor and indeed I think I detected some sighs of relief that ‘That Nuisance’ was going to be out of their hair for for a bit!

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Footnotes:

{1} Reproduced for educational non-commercial use only; all copyrights are acknowledged.



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