united-kingdom common-law driving magna-carta
Has a common law defence ever held water?
<p>The UK is a common law country. It is a widely held belief of many people that statute Acts of parliament (i.e. most 'laws') only apply with the "consent of the governed"; and that one may be a "free man of the land" or a "Scottish Sovereign".</p>

<p>They assert that only common law applies to them, i.e. laws surrounding assault, threat or theft. Statutes such as the Road Traffic Act are seen as enacted by the private corporation of 'parliament'; and since they don't consent to being governed, these 'laws' don't apply to them, e.g. speeding.</p>

<p>Going one step further, free men and other groups of people state they have a right to travel under the Magna Carta, and since Blacks Law defines 'driving' as doing so commercially; they're entitled to drive ("travel") non-commercially without insurance.</p>

<p>Has such a defence ever held in court? If you look on <a href="https://www.youtube.com/results?search_query=free%20man%20on%20the%20land%20uk">YouTube</a> you'll find plenty of people who believe it will.</p>

<p>I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed.</p>

<p>There are a couple of Freedom of Information requests to the government which state very clearly that it <em>won't</em> work:</p>

<p><a href="https://www.whatdotheyknow.com/request/statute_law_4">https://www.whatdotheyknow.com/request/statute_law_4</a>
<a href="https://www.whatdotheyknow.com/request/consent_of_the_governed">https://www.whatdotheyknow.com/request/consent_of_the_governed</a></p>

<p>The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer:</p>

<p><a href="https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html">https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html</a></p>

<p>Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. </p>

<p>Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court.</p>

<p>No.</p>

<p>These theories are legally unrecognisable.  The concept of governance by consent is misapplied, as is the 'private corporation' nonsense; <a href="http://www.legislation.gov.uk/aep/Edw1cc1929/25/9/contents">almost all of Magna Carta has been repealed</a>; Black's is not an instrument of law and does not bind the courts.</p>

<p>You may wish to consider the implications of discarding all statute law.  The age of sexual consent, for example, is not defined in the common law: definitely not a desirable state of affairs.</p>

<p>Common law, i.e. law made by judges in courts, has always been inferior to the dictations of the <a href="http://en.wikipedia.org/wiki/List_of_English_statutes" rel="nofollow">monarch</a> and <a href="http://en.wikipedia.org/wiki/Acts_of_Parliament_in_the_United_Kingdom" rel="nofollow">parliament</a>. Courts do have some power of judicial review, but they may not usurp the authority that created them and pays the judge's paychecks.</p>

<p>Some quotes:</p>

<blockquote>
  <p>"The law of the land depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament.... Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament." ~ William Blackstone (1760)</p>
  
  <p>"Are we to act as regents over what is done in Parliament with the consent of the Queen, Lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it." ~ Lee v Bude &amp; Torrington Junction Rly Co (1871-U.K.)</p>
  
  <p>"The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution." ~ Pickin v British Railways Board (1974 -U.K.) HL</p>
</blockquote>
