Andrew Kirkpatrick, Adobe Systems, Inc.
Greg Pisocky, Adobe Systems, Inc.
Mary Beth Janes, Apple, Inc.
Paul R. Michaelis, Avaya, Inc.
Aubrey Woolley, Canon USA, Inc.
Robert C. Nerhood, Dell, Inc.
Kate Walser, SRA International, Inc.
Michael Weinstein, SRA International, Inc.
Peter Korn, Sun Microsystems, Inc.
Michele Budris, Sun Microsystems, Inc.
Sections 508 and 255 are not the only Federal legislation intended to ensure access to ICT by individuals with disabilities. A number of Federal laws preceded this legislation, setting the stage for a barrier-free information age. Even where there is overlap with Sections 255 or 508, other Federal legislation establishing protections for people with disabilities remain in full force. The Committee could not reach consensus on if this additional information should be included in the report as there was concern it could cause confusion on how Sections 255 and 508 should be implemented. There was also concern by one member that it would imply agreement with each of these statues. While the Committee did take these statues into consideration, there was no specific discussion on each of them.
Rehabilitation Act of 1973 - The Rehabilitation Act of 1973, discussed briefly above, was the first piece of legislation designed to ensure that Federal agencies, its contractors, and its financially assisted programs and activities would provide access to their employees and beneficiaries. Section 501, for example, requires Federal employers to accommodate the individual access needs of their employees with disabilities when necessary for those employees to carry out the functions of their jobs, unless providing those accommodations would impose an undue hardship. Section 503 imposes similar access obligations on federal contractors, and Section 504 requires the provision of reasonable accommodations when needed to enable individuals with disabilities to participate in or benefit from federally assisted programs. Section 508’s requirements for accessible electronic and information technology facilitates compliance with the mandates of these various sections by providing federal agencies with some of the tools needed to provide these accommodations. Section 508 goes further, however, requiring federal departments or agencies that develop, procure, maintain, or use electronic and information technology to make sure that all such technology provides comparable access to and use of information and data, regardless of who may use it. Similarly, the availability of accessible information and data required under section 508 will assist Federal agencies charged with providing information to the public under Section 504 of the Rehabilitation Act.
Telecommunications for the Disabled Act - The first federal law to specifically address the need for access to telecommunications by individuals with disabilities was the Telecommunications for the Disabled Act of 1982 (TDA). Pub. L. No. 97-410, codified as amended at 47 U.S.C. §610 (1988). TDA directed that all “essential” telephones, both inside and outside the Federal government, be hearing aid compatible telephones and permitted telephone companies in the states to continue offering specialized customer premises equipment to individuals with disabilities at reasonable prices subsidized by their telephone services. In the TDA, Congress, already envisioning the dawn of major technological changes, proposed a new national policy to ensure access for people with disabilities as these changes occurred. This policy was announced in the House Report accompanying the bill: "[M]aking the benefits of the technological revolution in telecommunications available to all Americans, including those with disabilities, should be a priority of our national telecommunications policy." H. Rep. No. 888, 97th Cong., 2d Sess. 5 (1982). Setting the stage for Section 508 as well as other pieces of Federal legislation, the legislative history of the TDA revealed a new understanding by Congress that the costs to society of denying such access, by "depriv[ing] many individuals of the opportunity to have gainful employment" and "impair[ing] . . . the quality of life for disabled Americans" far exceeded the costs of ensuring such access. Id. at 4.
Hearing Aid Compatibility Act - The Telecommunications for the Disabled Act of 1982 was followed by two pieces of legislation in 1988 that again addressed the telecommunications access needs of individuals who are deaf and hard of hearing. The first of these, the Hearing Aid Compatibility Act, Pub. L. No. 100-394, codified at 47 U.S.C. §610 (1988), created a mandate for nearly all telephones made or imported into the United States after August 16, 1989, to be hearing aid compatible. Various FCC proceedings that followed produced rules that are intended to ensure nearly ubiquitous access to landline and wireless telephones by hearing aid wearers early in the twenty-first century.
Telecommunications Accessibility Enhancement Act - The second law enacted in 1988 was the Telecommunications Accessibility Enhancement Act (TAEA), Pub. L. No. 100-542, codified at 40 U.S.C. §762 (1988). TAEA created a Federal relay system for calls to, from, and within the Federal government. It also directed Congressional members to acquire TTYs for their offices, created a Federal directory of TTY numbers, and directed the FCC to complete an inquiry into the establishment of a nationwide interstate telecommunications relay system. TAEA’s provisions bear a relationship to the present Section 508 in that it was designed to specifically reduce technological barriers for Federal employees. Toward this end, the Senate’s Report on TAEA explained "[i]t has long been recognized that all employers should take whatever steps possible to fully integrate persons with physical impairments into the work force." S. Rep. No. 464, 100th Cong., 2d Sess. 2 (1988). Again, Congress concluded that the costs of installing accessible equipment and providing accessible telecommunications services were outweighed by the overriding benefits that such access created.
Americans with Disabilities Act -The Americans with Disabilities Act (ADA), Pub. L. No. 101-336, codified at 42 U.S.C. §12101, et. seq., was passed in 1990. This landmark legislation created new and comprehensive civil right protections for individuals with disabilities in the private sector. Its provisions under Title IV mandate the provision of round-the-clock nationwide telecommunications relay services, designed to make our nation’s telecommunications networks more accessible to people who are deaf, hard of hearing, or speech impaired. Other parts of the ADA led to requirements for certain forms of telecommunications access, including requirements for hearing aid compatibility, volume control, and TTYs. They also provide standards on reach ranges, for access to fixed equipment control consoles and operable parts.
Television Decoder Circuitry Act of 1990 - The Television Decoder Circuitry Act, 47 U.S.C. §§303(u); 330(b), was passed in 1990. It requires all television receivers with picture screens 13 inches or larger to contain built-in decoder circuitry designed to display closed captioned television transmissions. The FCC has also applied this mandate to computers equipped with television circuitry that are sold together with monitors that have viewable pictures at least thirteen inches in diameter, digital television sets that have screens measuring 7.8 inches vertically (approximately the equivalent of a 13-inch diagonal analog screen), and stand-alone DTV tuners and set top boxes, regardless of the screen size with which these are marketed or sold. The Act also contains a provision directing the FCC to ensure that closed captioning services continue to be available to consumers as new video technology is developed.
Section 713 of the Communications Act - Section 713 of the Communications Act, added by the Telecommunications Act of 1996, 47 U.S.C. §613, requires video programming distributors to make their television programming accessible through the provision of closed captioning. In 1998, the FCC released a detailed schedule of captioning requirements that already require closed captioning on 100 percent of new, nonexempt English video programming. Other rules are in place for older and Spanish language programming. Exemptions are available for certain defined situations, for example, when the programming is primarily textual or primarily non-vocal music, and when compliance with the rule would result in an “undue burden,” meaning significant difficulty or expense.
Help America Vote Act -The Help America Vote Act (HAVA, Pub.L. 107-252) was passed in 2002. The relevant part of the law is "Subtitle A, Section 301 Voting System Standards (3) Accessibility for Individuals with Disabilities. The voting system shall: (A) be accessible for individuals with disabilities, including non-visual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters."
1. PURPOSE: This charter establishes the “Telecommunications and Electronic and Information Technology Advisory Committee” (Committee) for the Architectural and Transportation Barriers Compliance Board (Access Board) in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, and the administrative guidelines issued by the General Services Administration's Committee Management Secretariat, 41 C.F.R. Part 101 6.
2. AUTHORITY: The establishment of the Committee is in the public interest and supports the Access Board in performing its duties and responsibilities under the Telecommunications Act of 1996 (47 U.S.C. § 255) and the Rehabilitation Act Amendments of 1998 (29 U.S.C. § 794 (d)).
3. SPONSOR AND OFFICE SUPPORT: The Committee shall report to the Access Board as its sponsor. Support services shall be provided or arranged by the Access Board.
4. SCOPE AND OBJECTIVES: The Committee shall advise the Access Board on issues related to revising and updating accessibility guidelines for telecommunications equipment and customer premises equipment and accessibility standards for electronic and information technology. The Committee shall act solely in an advisory capacity to the Access Board and shall neither exercise any program management responsibility nor make decisions directly affecting the matters on which it provides advice.
(e) contents of the revised and updated guidelines and standards.
6. MEMBERSHIP: The membership will be balanced in terms of points of view represented, including Federal agencies; the telecommunications and electronic and information technology industry, including manufacturers; organizations representing the access needs of individuals with disabilities; representatives from other countries and international standards setting organizations; and other organizations affected by the accessibility guidelines and standards. Representatives of each of these interests shall be selected by the Chairperson of the Access Board and appointed as Committee members for the duration of the Committee’s existence.
7. SUBCOMMITTEES: The Committee may form subcommittees for any purpose consistent with this charter. The subcommittees shall report to the Committee.
8. CHAIRPERSON: The Chairperson of the Committee shall be appointed by the Chairperson of the Access Board. The Chairperson of any subcommittees shall be appointed by the Chairperson of the Committee.
9. MEETINGS: Meetings shall be held as necessary at the call of the Chairperson of the Committee, with the approval of the designated Federal official. Meetings shall be open to the public and timely notice of each meeting shall be published in the Federal Register. Meetings shall be conducted and records of the proceedings kept, as required by applicable laws and regulations.
Committee and the Access Board determines that the member’s participation in the Committee is necessary to assure adequate representation of the various interests potentially affected by the accessibility guidelines and standards.
11. ESTIMATED ANNUAL COSTS: The costs for the Committee, excluding the cost of Board staff, are estimated at $105,000. No government staff positions are being allocated to the Committee on a full time basis.
12. DURATION: The Committee will terminate two years from the date of filing this charter with the appropriate Committees of Congress, unless the Committee is renewed or terminated sooner.
2 The Access Board’s Guidelines cover customer premises equipment and telecommunications equipment, but do not address services.
3 Section 508 requires the Access Board to review and update its regulations periodically. Similarly, Section 255 requires the Access Board to review and update its Section 255 guidelines periodically. Under both statues the timing of the review is left up to the Access Board.
5 We recognize that many stakeholders will not use the “raw” form of the regulations, but will create tools to help them focus on their specific accessibility obligations.
6 Section 3 of the Act defines "telecommunications" as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." The FCC adopted a Report & Order (FCC 99-181) on July 14, 1999, which determined that adjunct-to-basic services should also be covered by Section 255. Adjunct-to-basic services include such services as call waiting, speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller identification, call tracing, and repeat dialing. The FCC also asserted its ancillary jurisdiction to extend the accessibility requirements to providers of voicemail and interactive menu service, as well as to manufacturers of equipment that performs those functions. On May 31, 2007, the FCC adopted a Report & Order (FCC 07-110) to extend the disability access requirements to providers of “interconnected voice over Internet Protocol (VoIP) services,” and to manufacturers of specially designed equipment used to provide those services.
7 The full FCC analysis of the readily achievable standard is contained at In the Matter of Implementation of Sections 255 Report and Order and Further Notice of Inquiry, WT Dkt 96-198, FCC 99-181, 16 FCC Rcd 6417 (September 29, 1999), ¶¶43-74; 47 CFR §§6.3(g); §7.3(g).
8 These examples are not exhaustive, nor do they indicate specific recommendations.
10 We also considered additional information for user activities, product characteristics and product types relevant to the provisions, but were not able to complete this work.
11 These categories of test methods were used in the Accessibility and Usability section of IEEE P1583-Voting System Standards. This draft standard was balloted, but then abandoned in favor of the US Election Assistance Commission Voluntary Voting System Guidelines 2005.
16 Web Content Accessibility Guidelines 2.0, http://www.w3.org/TR/2007/WD-WCAG20-20071211/, 11 December 2007, W3C Working Draft. Latest version at http://www.w3.org/TR/WCAG20/. Copyright, 2007 W3C (MIT, ERCIM, Keio) http://www.w3.org/Consortium/Legal/2002/copyright-documents-20021231.


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On 6 June 2018, the English High Court (the Court) ruled in Nori Holding Limited et al. that a European court was not entitled to grant anti-suit injunctions in order to prevent parallel judicial proceedings taking place in another EU Member State. The Court’s judgment is in line with the West Tankers ruling handed down by the Court of Justice of the European Union (the CJEU) in 2009.
In the case at hand, the claimants (Nori Holding Ltd and al.) asked the Court to issue an anti-suit injunction in order to halt court proceedings in Russia and Cyprus which, they argued, violated arbitration clauses contained in several agreements entered into with the defendant.
The facts of the case are rather complex and are not necessary to understand the opinion of the Court. The most interesting part of the case concerns the possibility, for an English court, to issue an anti-suit injunction against a Cypriot court (i.e. another EU court). Consequently, only this aspect of the case is discussed here.
As most of you know, in the West Tankers case the CJEU ruled that EU law (and in particular Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation)) prohibited the grant, by a court of an EU Member State, of anti-suit injunctions issued to restrain court proceedings brought in another EU Member State in violation of an arbitration agreement.
In the case at hand, however, the claimants argued that two developments took place since the CJEU handed down its West Tankers‘ decision, which justified the reconsideration of those findings.
The first development was the adoption of Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Recast Regulation), which replaced the Brussels I Regulation. In particular, the Brussels Recast Regulation contains a Recital 12 which makes abundantly clear that arbitration proceedings are excluded from the scope of that regulation and that nothing prevents “the courts of a Member State, when seized of an action in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties to arbitration“.
The second development was the reasoning of Advocate General Wathelet in his Opinion delivered in the Gazprom case before the CJEU. In this Opinion, Advocate General Wathelet found that Recital 12 of the Brussels Recast Regulation was “a retroactive interpretative law [which] explains how [the exclusion of arbitration from the scope of the European rules on courts’ jurisdiction] should always have been interpreted“.
According to the claimants, these two developments have “effectively reversed the decision in West Tankers“. More specifically, they argue that those developments removed the basis under which the CJEU in West Tankers prevented the grant of an anti-suit injunction restraining continuation of court proceedings in breach of an arbitration agreement. This is because Recital 12 of the Brussels Recast Regulation, which expressly excludes arbitration from the scope of the European rules on courts’ jurisdiction, has (according to Advocate General Wathelet) a retroactive effect. In other words, arbitration is now considered as having always been excluded from the scope of the European jurisdictional rules, and, consequently, the West Tankers decision is no longer valid – or, at least, would have to be decided differently if it came before the CJEU today. Therefore, according to the claimants, nothing prevents an English court from issuing an anti-suit injunction in order to restrain the pursuit of proceedings in another EU Member State which are in violation of an arbitration agreement.
The Court disagreed with this position.
According to the Court, “[n]either the [Brussels] Recast Regulation itself nor its recitals say expressly that [the principles affirmed in West Tankers] no longer apply or that an anti-suit injunction in support of arbitration issued by a court in a member state takes precedence over them. If the EU legislature intended to reverse the West Tankers decision, it chose an odd way in which to do so“.
The Court also recalled that the views expressed by Advocate General Wathelet in his Gazprom Opinion were not in fact followed by the CJEU in its judgment and that the CJEU “plainly regarded West Tankers as a correct statement of the position under the [Brussels I Regulation]”.
Importantly, the Court added that its findings did not necessarily mean that the proceedings in Cyprus would continue. According to the Court, the Cypriot court might very well stay the proceedings or the arbitrators (and not a court) might issue an anti-suit injunction restraining the further pursuit of the case in Cyprus (something that the CJEU precisely accepted in Gazprom).

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU


text:
[265 U.S. 224, 225] Messrs. B. I. Salinger, of Carroll, Iowa, and St. Clair Adams, of New Orleans, La., for Salinger.
Mr. Alfred A. Wheat, of New York City, for Loisel.
These three cases involve certain phases of a protracted resistance by B. I. Salinger, Jr., to an effort by the United [265 U.S. 224, 226] States to have him removed to the district of South Dakota to answer an indictment for a violation there of section 215 of the Criminal Code (Comp. St. 10385), which makes it a punishable offense to use the mail for the purpose of executing a scheme or artifice to defraud.
The indictment was returned in the District Court for the District of South Dakota when sitting in the Western division, and the offense was charged as committed in the Southern division; but the grand jury which returned the indictment had been impaneled from the body of the district, regardless of the divisions, and instructed to inquire into and make due presentment of offenses committed in any part of the district. After receiving the indictment, the court, at the suggestion of the United States attorney, remitted it to the Southern division for trial and other proceedings. A bench warrant was issued for Salinger's arrest, and he appeared before a commissioner in Iowa and gave bond for his appearance in the Southern division on the first day of the next term. But he failed to appear, and the bond was declared forfeited.
Later, Salinger being in New York City, a proceeding was begun before a commissioner there for his arrest and removal to South Dakota under section 1014 of the Revised Statutes (Comp. St. 1674). He was arrested, taken before the commissioner, and accorded a hearing. The indictment was produced, he admitted he was the person charged, and on the evidence presented the commissioner found there was probable cause and committed him to await the issue of a warrant of removal. He then sued out a writ of habeas corpus in the District Court for that district; but after a hearing the court discharged the writ, remanded him to the marshal's custody, and issued a warrant for his removal. On his appeal, that decision was reviewed and affirmed by the Circuit Court of Appeals for the Second Circuit. In re Salinger, 288 Fed. 752. He made no attempt to obtain any other or further review. When the mandate of the [265 U.S. 224, 227] Circuit Court of Appeals went down, to avoid being removed in the custody of the marshal, he gave a bond for his appearance two weeks hence in South Dakota. Again he failed to appear, and that bond was declared forfeited.
After giving the bond in New York, and before the day stipulated therein for his appearance in South Dakota, Salinger went to New Orleans, appeared with a representative of the surety in that bond before a commissioner there, and was surrendered by the surety's representative to the marshal of that district in the commissioner's presence. Such a surrender in a distant district may not have been in accord with section 1018 of the Revised Statutes (Comp. St. 1682), and may not have discharged the surety; but nothing turns on that here. The surrender seems to have been made with Salinger's full consent; but, however made, it constituted no obstacle to further proceedings for his removal. The commissioner accordingly directed that he be held in the marshal's custody to await the institution of such a proceeding. He then sued out a writ of habeas corpus in the District Court at New Orleans and was admitted to bail pending a hearing on the writ.
In a few days-during which Salinger failed to appear in South Dakota as stipulated in the bond given in New York-a proceeding for his arrest and removal under section 1014 was begun before the commissioner in New Orleans. He was arrested, taken before the commissioner, and accorded a hearing. The indictment was produced; evidence was presented tending to show he was the person charged, and he gave testimony tending to show he was not in South Dakota at the times he was charged with unlawfully using the mail. On all the evidence the commissioner found the requisite identity and probable cause, and committed him to await the issue of a warrant for his removal. He then sued out another writ of habeas corpus in the District Court, and was admitted to bail pending a hearing on the writ. [265 U.S. 224, 228] On a hearing in the two cases, all the proceedings in South Dakota, New York, the Circuit Court of Appeals for the Second Circuit, and New Orleans, which have been recited herein were produced in evidence, and on consideration thereof the court discharged both writs of habeas corpus, remanded Salinger to the marshal's custody, and issued a warrant for his removal. Direct appeals to this court in two cases were then prayed by Salinger and allowed by the District Court; it being especially directed in both cases that the appeal operate as a supersedeas on Salinger's giving approved bail. The bail was given and approved. These cases are Nos. 341 and 342.
Notwithstanding the supersedeas so effected, Salinger was taken into custody by the marshal under the warrant of removal with a view to executing its command. He then sued out a third writ of habeas corpus in the District Court; his petition therefor being like his earlier petitions, save as in it he additionally complained that his detention under the warrant of removal was in contravention of the supersedeas allowed on the appeals in Nos. 341 and 342. After a hearing the District Court discharged the writ of habeas corpus and remanded him to the marshal's custody for removal under the warrant. An appeal was taken to the Circuit Court of Appeals for the Fifth Circuit, where the decision was affirmed. Salinger v. United States, 295 Fed. 498. The case is here on certiorari ( 263 U.S. 683 , 44 Sup. Ct. 136, 68 L. Ed. --), and is No. 705. Bail in this case was allowed and given here when certiorari was granted.
In disposing of the additional ground of complaint advanced in No. 705, the Circuit Court of Appeals proceeded on the assumption that there were three distinct warrants of removal, and that one of these was neither involved in the appeals in Nos. 341 and 342 nor covered by the supersedeas. But the assumption was not well founded. There was but one proceeding for removal before the [265 U.S. 224, 229] commissioner in New Orleans and it was based on the single indictment in South Dakota. There was also but one commitment for removal in that proceeding. The warrant of removal issued by the District Court was based expressly on that commitment; but for reasons not explained the warrant was issued in triplicate. In substance, form, and date the three papers were identical. Taken either collectively or separately, they embodied a single command, which was that the marshal 'forthwith' remove Salinger to South Dakota and there deliver him to the proper authority to be dealt with under the indictment. To execute the command of one triplicate was to execute that of all. In legal effect, therefore, there was one warrant, not three. One was all that was sought, and no basis was laid for more. The obvious purpose of the supersedeas was to stay the execution of the command for removal pending the appeals to this court in Nos. 341 and 342, and of course that purpose could not be thwarted by merely duplicating or triplicating the warrant embodying the command. It follows that the additional ground of complaint advanced in No. 705 was well taken. But, as that ground could be effective only during the life of the supersedeas in Nos. 341 and 342, it has no bearing on the decision to be given in them on the right to remove.
Before coming to the questions presented in those cases we think the procedure which was followed in them calls for comment. The first case was begun when Salinger was committed by the commissioner to await a proceeding for his removal. Later, when such a proceeding was begun and the commissioner definitely committed him to await the issue of a warrant of removal, that change in the situation should have been shown in the first case by an appropriate amendment or supplement to the petition, instead of being made the basis of a new and separate case. And when, in disregard of the propriety of taking that course, [265 U.S. 224, 230] the second case was begun, the two should have been consolidated and conducted as one. The parties were the same and the cases presented a single controversy. Maintaining them separately was productive of confusion, and led to two appeals to this court, when, had the right course been taken, one appeal plainly would have sufficed, and would have lessened by one-half the printing and other costs. As it is now, one record is largely a duplication of what appears in the other, and both are exceedingly confusing. The course that was taken should not have been selected, nor should the court have permitted it.
In Nos. 341 and 342 the right to arrest and remove in virtue of the indictment was questioned on the same grounds that were set up in the earlier case in New York, where that right was upheld. Because of this situation, counsel for the appellee invoke the doctrine of res judicata and insist that the decision in the New York case was a final adjudication of the right and is binding on all other courts, including this court. We are unable to go so far. At common law the doctrine of res judicata did not extend to a decision on habeas corpus refusing to discharge the prisoner. The state courts generally have accepted that rule where not modified by statute; the lower federal courts usually have given effect to it; and this court has conformed to it and thereby sanctioned it, although announcing no express decision on the point. The cases of Carter v. McClaughry, 183 U.S. 365, 378 , 22 S. Sup. Ct. 181, and Ex parte Spencer, 228 U.S. 652, 658 , 33 S. Sup. Ct. 709, are notable instances. We regard the rule as well established in this jurisdiction.
But it does not follow that a refusal to discharge on one application is without bearing or weight when a later application is being considered. In early times, when a refusal to discharge was not open to appellate review, courts and judges were accustomed to exercise an independent [265 U.S. 224, 231] judgment on each successive application, regardless of the number. But when a right to an appellate review was given, the reason for that practice ceased, and the practice came to be materially changed-just as, when a right to a comprehensive review in criminal cases was given, the scope of inquiry deemed admissible on habeas corpus came to be relatively narrowed.
In practice the rules we here have outlined will accord to the writ of habeas corpus its recognized status as a privileged writ of freedom, and yet make against an abusive use of it. As a further safeguard against abuse, the court, if not otherwise informed, may on receiving an application for the writ require the applicant to show whether he has made a prior application, and, if so, what action was had on it.
Here the prior refusal to discharge was by a court of co-ordinate jurisdiction and was affirmed in a considered opinion by a Circuit Court of Appeals. Had the District Court disposed of the later applications on that ground, its discretion would have been well exercised, and we should sustain its action, without saying more. But its decision does not appear to have been put on that ground; and, as circumstances are disclosed which make it appropriate that we consider and pass on two of the objections urged against a removal, we turn to them.
Both objections go to the jurisdiction of the court before which it is proposed to take and try the accused. One is that under the Sixth Amendment to the Constitution there can be no trial in the District of South Dakota, because the indictment shows that the offense charged was not committed in that district but in a district in Iowa, and the other that, even if the indictment be taken as charging an offense in the District of South Dakota, it shows that it was returned in a division of that district other than the one in which the offense was committed.
It must be conceded that under the Sixth Amendment to the Constitution the accused cannot be tried in one district on an indictment showing that the offense was not committed in that district; and it also must be conceded that there is no authority for a removal to a district [265 U.S. 224, 233] other than one in which the Constitution permits the trial to be had. We proceed therefore to inquire whether it appears, as claimed, that the offense was not committed in the district to which removal is sought.
The indictment charges that the defendants, of whom Salinger is one, devised a scheme and artifice to defraud divers persons by means described and thereafter for the purpose and with the intent of executing their scheme and artifice did unlawfully and knowingly 'cause to be delivered by mail,' according to the direction thereon, at Viborg within the Southern division of the district of South Dakota, a certain letter directed to a named person at that place; the letter and the direction being particularly described. The indictment then adds, in an explanatory way ( see Horner v. United States, 143 U.S. 207, 213 , 12 S. Sup. Ct. 407), that on the day preceding the delivery the defendants had caused the letter to be placed in the mail at Sioux City, Iowa, for delivery at Viborg according to the direction thereon. There were other counts in the indictment, but they need not be particularly noticed, for the one just described is a fair sample of all.
Section 215 is a re-enactment, with changes, of an earlier statute which made it an offense for the deviser of a scheme or artifice to defraud to place or cause to be placed [265 U.S. 224, 234] in the mail any letter in furtherance thereof, but did not contain the clause making it also an offense for the deviser to cause such a letter 'to be delivered by the mail according to the direction thereon.' Under the original statute the offense was held to be complete when the letter was placed in the mail depository for transmission, and the place of the deposit was held to be the place of commission, regardless of whether or where the letter was delivered. The appellant insists that the introduction of the new clause into the statute as re-enacted is not of material significance here. We are of a different opinion. That clause plainly provides for the punishment of the deviser of the scheme or artifice where he causes a letter in furtherance of it to be delivered by the mail according to the direction on the letter. This is done by way of enlarging the original definition of the offense, the clause dealing with the placing of such a letter in a mail depository being retained. Evidently Congress intended to make the statute more effective and to that end to change it so that where the letter is delivered according to the direction, such wrongful use of the mail may be dealt with in the district of the delivery as well as in that of the deposit. A letter may be mailed without being delivered, but if it be delivered according to the address the person who causes the mailing causes the delivery. Not only so, but the place at which he causes the delivery is the place at which it is brought about in regular course by the agency which he uses for the purpose. United States v. Kenofskey, 243 U.S. 440, 443 , 37 S. Sup. Ct. 438. Were the government attempting to prosecute at both places, a question might arise as to whether it should be required to elect between them (see Haas v. Henkel, 216 U.S. 462, 474 , 30 S. Sup. Ct. 249, 17 Ann. Cas. 1112); but, as there is no such attempt here, that question need not be considered. The appellant relies on United States v. Stever, 222 U.S. 167 , 32 Sup. Ct. 51, as showing that the offense was committed at the place of the deposit and not at that [265 U.S. 224, 235] of the delivery; but the case is not in point. It arose before the statute was changed. The indictment there was in two counts. One was based on the original statute and was expressly abandoned by the government. The other was based on another statute relating to the use of the mail in promoting lotteries and other schemes of chance.
We conclude that there is no sound basis for the claim that the indictment shows that the offense was not committed in the district to which removal is sought. An effort was made to strengthen that claim by producing testimony tending to show that Salinger was not in that district at the time. But of that effort it suffices to say that the nature of the offense is such that he could have committed it, or have participated in its commission, even though he was not then in the district. In re Palliser, 136 U.S. 257 , 10 Sup. Ct. 1034; Horner v. United States, 143 U.S. 207, 213 , 12 S. Sup. Ct. 407; Burton v. United States, 202 U.S. 344, 386 , 26 S. Sup. Ct. 688, 6 Ann. Cas. 362.
South Dakota constitutes a single judicial district, with one District Court; but the district is divided into four divisions, where sessions are held at times fixed by law, such sessions, whether in one division or another, being 'successive terms of one and the same court.' Hollister v. United States, 145 Fed. 773, 782, 76 C. C. A. 337, 346. A like situation exists in many of the states. [265 U.S. 224, 236] Formerly special statutes applicable to particular districts indicated the division in which criminal proceedings should be had, but the statutes were not uniform. Some provided that crimes and offenses should be 'indictable' and triable only in the division where committed, or that all criminal proceedings should 'be brought' and had in such division. But the greater number, in varying terms, required that the trial be in that division, unless the accused consented to its being in another. In districts where the latter were in force, it was common to impanel a grand jury from the district at large, to charge such grand jury with the investigation and presentment of offenses committed in any part of the district, and when indictments were returned to remit them for trial and other proceedings to the divisions wherein the offenses were committed, save as the defendant assented to a disposal in another division. The practice is illustrated in Logan v. United States, 144 U.S. 263, 297 , 12 S. Sup. Ct. 617, and Rosencrans v. United States, 165 U.S. 257 , 17 Sup. Ct. 302. The general provision in section 53 here relied on superseded the special statutes. It obviously is less restrictive in its terms than some of them were; and the prevailing practice under it has been like that theretofore followed in districts where the less restrictive provisions were in force. See Biggerstaff v. United States (C. C. A.) 260 Fed. 926; United States v. Chennault (D. C.) 230 Fed. 942.
The contention is that the word 'prosecution' in the general provision includes the finding and return of an indictment. That the word sometimes is used as including them must be conceded. But there are also relations in which it comprehends only the proceedings had after the indictment is returned. Here we think it is used with the latter signification. It appears twice in the provision, doubtless with the same meaning. The first time is in the clause directing that 'all prosecutions' be had in the division where the offense was committed, and the second [265 U.S. 224, 237] is in the clause permitting the court or judge, at the instance of the defendant, to order 'the cause to be transferred for prosecution' to another division. The connection in which it appears the second time shows that it refers to the proceedings after the indictment is found and returned; that is to say, after there is a cause susceptible of being transferred. Besides, had Congress intended to put an end to the prevailing practice of impaneling a grand jury for the entire district at a session in some division and of remitting the indictments to the several divisions in which the offenses were committed, unless the accused elected otherwise, it is but reasonable that that intention would have been expressed in apt terms, such as were used in some of the exceptional special statutes. That practice was attended with real advantages which should not be lightly regarded as put aside. In many divisions only one term is held in a year. If persons arrested and committed for offenses in those divisions were required to await the action of a grand jury impaneled there, periods of almost a year must elapse in many instances before a trial could be had or an opportunity given for entering a plea of guilty and receiving sentence.
In our opinion the real purpose of the provision, that which best comports with its terms when taken in the light of the circumstances in which it was enacted, is to require, where a district contains more than one division, that the trial be had in the division where the offense was committed, unless the accused consents to be tried in another. The Circuit Court of Appeals so held in a well considered opinion in Biggerstaff v. United States, supra. The only decision the other way, of which we are advised, was by the District Court for the Eastern District of Louisiana in United States v. Chennault, supra, and that court receded from that decision in the cases now before us. [265 U.S. 224, 238] The appellant relies on Post v. United States, 161 U.S. 583 , 16 Sup. Ct. 611, as making for the contrary conclusion. But it does not do so. The case turned on a special statute, now superseded, declaring that 'all criminal proceedings' for offenses in the district of Minnesota 'shall be brought, had and prosecuted' in the division in which the same were committed. The difference between that special direction and the general one now before us is so marked that further comment is not required.
Other objections to the removal are urged, but those we have discussed and overruled are all that can with any propriety be regarded as open to consideration on these appeals.
A survey of the records before us shows that the resistance to removal has been unreasonably protracted. The mandate in these cases will issue forthwith and will embody an order requiring under the bail given on the appeals in Nos. 341 and 342 and under that given on the granting of the writ of certiorari in No. 705, that Salinger surrender himself into the custody of the marshal for the Eastern district of Louisiana, at New Orleans, within 10 days from the day the mandate bears date preparatory to a removal under the warrant heretofore issued by the District Judge of that district, or, in the alternative, that he surrender himself within such 10 days into the custody of the marshal for the district of South Dakota at some place within that district, to be dealt with according to law.
Judgments in Nos. 341 and 342 affirmed.
Judgment in No. 705 reversed.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


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Year in Review – This has been a bumper year for development in the law relating to migrant children’s rights. See the Year in Review Practice Note highlighting some of the key developments in migrant children’s rights this year.
This analysis of Collins J apparently is based on a belief that the judge had (at §21) that assessments from an authority such as Kent which regularly deals with age assessments could be normally assumed to be Merton compliant. This may have been a dangerous assumption to have made in view of the fact that one of the authorities which regularly deals with age assessments (Croydon) is in fact one of the authorities whose age assessments have routinely been set aside by the Court. Thus query the soundness of the assumption made by Collins J.
In deciding to detain the claimant, the SSHD must have considered the Wiltshire assessment. Although the SSHD was entitled to rely on a Merton compliant age assessment, there was an independent obligation on the part of the SSHD to consider that assessment and to reach a conclusion as to whether the assessment was Merton compliant. Although the detail of the assessment was looked at in the case, there was no discussion with the local authority and no reconsideration of the position as to age despite obvious flaws in the age assessment. The SSHD could not have rationally concluded that the Wiltshire assessment was Merton compliant and therefore should not have relied on it: §§30-32.
That the FTT considered the issue of age and found against the child in terms of age did not itself mean that the issue of age had been resolved as against the SSHD. Although it was not appropriate to criticise the FTT judge given his judgment was not appealed, before the FTT judge there was a competing and fresh assessment of age fro Cardiff which indicated support for the claimant’s claimed age. The FTT judge may not have understood the purpose of this re-assessment. In any event, the FTT judge may not have appreciated the fairly obvious points which Coulson J made as to why the Wiltshire assessment was not Merton compliant as they were not canvassed properly before the FTT. That however did not mean that the SSHD could necessarily be bound by the decision of the FTT in circumstances where the flaws of the Wiltshire assessment were so obvious.
R (AS) v LB of Croydon  EWHC 2091 (Admin) (HHJ Anthony Thornton Q.C.): The claimant applied for judicial review of an age assessment undertaken by the defendant local authority. He was an Afghan who had arrived in the United Kingdom as an unaccompanied minor. He claimed that his date of birth was March 18, 1996. The local authority conducted two separate assessments and concluded that his date of birth was March 18, 1994. The Claimant served three different expert reports which all assessed his date of birth at approximately March 18, 1995. The parties agreed to accept the date put forward by the experts and sought a declaration that the two local authority assessments should be quashed and that the Claimant’s date of birth was March 18, 1995. The issues were (i) whether the court should quash the local authority's age assessments; (ii) whether the declaration of S's date of birth was an order in rem, which was therefore binding for all purposes upon everyone. Held (1) When a judge was presented with a proposed settlement of an age assessment dispute, he had to independently consider its terms and satisfy himself that he could and should approve it. The parties had to submit an agreed statement of reasons for the court to consider – see N v Croydon  EWHC 862 (Admin) In the instant case, the statement submitted provided cogent reasons for accepting the date put forward by the experts. Further, the local authority assessments had not complied with the procedural guidance given in Merton. The local authority assessments would be quashed since the question of whether the Claimant was a "child" was one of jurisdictional fact under the Children Act 1989 and determined whether the Claimant had been eligible for assistance at the date of his original application to the local authority. The courts, rather than public authorities were the ultimater arbiters of that issue. A declaration would be granted of S's date of birth as reflected in the expert reports. (2) In light of the decision in A v Croydon LBC, it was possible to identify factors which had to be established for a declaration to be made in rem. A claimant had to show that: (a) the determination was in the form of a judgment and not simply a finding of facts upon which a judgment was based; (b) the tribunal had jurisdiction to make the relevant determination; (c) the relevant statute, expressly or by necessary implication, conferred on the tribunal the jurisdiction to make a determination in rem, indicated by the conferral of exclusive jurisdiction to make a final determination about the status of the claimant; (d) the judgment was final, on the merits and not by consent; and (e) there was a public interest in the judgment being one which bound everyone, R (on the application of PM) v Hertfordshire CC (2010) EWHC 2056 (Admin) applied. (3) In the instant case, the determination was to the effect that S was a child. In light of A v Croydon LBC, the court had the jurisdiction and obligation, to make the age determination, under s.20 of the Act. The determination was clearly intended to govern all future considerations of S's eligibility for assistance under the Act and under UK Border Agency protocol. Since the instant court had been given exclusive jurisdiction to determine whether the Claimant was eligible for such assistance and since that issue of fact determined an incidence of his status and had to be determined first, the determination was an in rem determination which was binding on the world at large. Although the instant judgment was made without an oral hearing, there had been a full trial on the merits in the sense required for a judgment in rem since there had been a formal age assessment, a clear crystallisation of a dispute, an application for judicial review, a reasoned joint agreement to settle and an independent assessment of the claim by a judge which was embodied in a formal and final order. Finally, there was a clear public interest in the judgment being expressed as a judgment which bound everybody, not merely the local authority. It would be contrary to the best interests of a child defendant to be subject to further and possibly different age assessments. The declaration should be expressed to be in rem.
R (U) v LB of Croydon  EWHC 3312 (HHJ David Pearl): Judicial Review on fact finding of age dismissed on basis of Judge’s acceptance of social worker’s age assessment.
R (T) v LB of Croydon (2011), extempore 5/12/11 (Nicol J): Condition four in the Senior Courts Act 1981 s.31A, namely that a judicial review application should not call into question any decision made under, amongst other things, the Immigration Acts, was not to be given a wide interpretation. It did not prevent a transfer. The immigration judge's decision was confined to immigration matters. The judicial review proceedings did not call into question the legality or validity of his decision. It had to be remembered that the fourth condition conferred a power on the High Court, which was not an obligatory power, to transfer matters to the Upper Tribunal and that the court could take all circumstances into account. Further, when s.31A was first inserted into the 1981 Act, the Asylum and Immigration Tribunal was not then to be incorporated into a First-tier Tribunal and Upper Tribunal system. The suggestion that the exclusion had to be given a wide interpretation had therefore lost some of its force as the AIT had since been absorbed into the unified appellate structure. Section 31A conferred a power on the High Court which was not obligatory to transfer matters to the Upper Tribunal.
R (CJ) v Cardiff CC  EWCA Civ 1590 (Laws, Pitchford LJ, and Lloyd Jones J): Court of Appeal held that the concept of a burden of proof cannot be imported into the consideration of the jurisdictional fact of age. Neither the putative child or the local authority has the burden to prove age. The matter is one of fact for the judicial review court to determine taking an inquisitorial manner. See in particular paragraphs 21-22.
SH (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1284 (Ward, Moses and Patten LJ): Established the correct test for adjourning and and removing asylum appeals from the Detained Fast Track. Hearings held in the Detained Fast Track (DFT) must be adjourned, and if necessary, taken out of the DFT, in order to allow a party to answer the case against him by way of evidence, e.g., to secure his own social work report on age, in an age dispute case, if it would not be pointless to do so. The First Tier Tribunal's failure to do so had been unlawful and the Upper Tribunal also acted unlawfully by dismissing the appeal on the basis that the FTT had not acted irrationally and new evidence would not have made a difference (i.e. failing to apply the "pointlessness test"). The legal test established will make it very difficult for any case to remain within the DFT where there is a genuine dispute on which the appellant wishes to adduce relevant evidence.
R(T and ors) SSHD  EWCA Civ 1446 (Maurice Kay, Moses LJ and Baron J): Where the Court of Appeal decided to refer to the Court of Justice of the European Union the question of whether Article 6 of Dublin II permitted unaccompanied asylum seeking minors to be removed at all to the Dublin State where they first claimed asylum. Delivering the judgment of the Court, in R (MA, BT, DA) v Secretary of State for the Home Department  EWCA Civ1446, Maurice Kay LJ pointed out that "Mr Knafler frankly acknowledges that .... he is taking a point which is at variance with what appears to be a common understanding among Member States and which is unsupported by any previous judicial decision ..... [or] any textbook .. [and is contradicted by] R(Mosari) v Secretary of State for the Home Department  EWHC 1343 ... and [a paper by] the European Council on Refugees and Exiles". However, Maurice Kay LJ went on to say that "Notwithstanding the volume of contrary argument and practice stacked against them, we tend to the view that [the appellants'] construction may well be correct" and that "the construction issue at the centre of this litigation cries out for resolution because, if the appellants are correct in their construction, there would need to be an EU-wide change of State practice".
The Court of Appeal also doubted whether the Nasseri presumption applied to unaccompanied minors and whether "cogent reasons" were required, to doubt the quality of the welfare conditions likely to apply, before the Secretary of State was obliged to consider whether reception conditions in a Dublin II receiving State were such that it would safeguard and promote the welfare of a child to be removed there, pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009.
When considering whether it is proportionate to grant or refuse a parent or grandparent of a child living with that person indefinite leave to remain in the United Kingdom or to remove that person from the United Kingdom, the decision-maker must balance the reason for expulsion or refusal against the impact upon the child, particularly when the child can reasonably be expected to follow the removed parent or grandparent.
The child's best interests must be taken account of in undertaking this balancing exercise. These best interests that are referred to are the child's upbringing and well-being in general and whether it is reasonable to expect the child to live in another country.
These best interests must be a primary consideration which should be considered first. These interests are, however, not paramount. However, any other consideration should not be treated as inherently more significant but the strength of these other considerations may, when taken together, outweigh the child's best interests.
The nationality of the child must be taken account of. That nationality is of particular but not decisive importance, particularly if the child is British since deportation would deprive that child of her country of origin and the protection and support that she has acquired socially, culturally and medically from growing up in a British lifestyle and would also lead to a social and linguistic disruption and a loss of educational opportunities. Equally, the fact that a child is non-British may ensure that deportation is of less significance for her but her non-British nationality is not of decisive importance.
The views of a child who is capable of forming her own views in all matters affecting her must be heard and due weight must be given to them in accordance with her age and maturity. Procedures should be adopted that ensure that those views are fully and freely obtained.
Importantly, the Court in Tinizaray held that the s55 BCIA 2009 duty and the assessment of ‘best interests’ cannot be limited to information which is supplied by the child / her family members, particularly if it is clear that that information is either incomplete or potentially slanted. The s55, BCIA 2009 duty requires further information to be sought by the decision maker including, in appropriate cases, interviews of the applicant and separate interviews of the child, questionnaires, and seeking / soliciting the views, assessments and reports of other agencies such as local authority social services, CAFCAS or local children’s welfare groups and schools: see §24 of the judgment. This is akin to the well-established public law Tameside duty to inquire (i.e. did the decision-maker ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?).
R (CZ) v Secretary of State for the Home Department, extempore judgment 5/12/2011 per Mitting J where judicial review proceedings were brought challenging the removal of a mother with a young child following the refusal to accept their fresh claim. Mitting J held that concerns expressed about removing a child from the UK to live in China with her mother and father, after her mother’s application for asylum had failed, were insufficient to overturn the decision to remove her. The best interests of a child were not a trump card and in any event an immigration judge would conclude that the child’s best interests were served by her returning to China to live with her mother.
R (on the application of (1) VC & ORS (2) K) v Newcastle City Council and SSHD  EWHC 2673 (Admin) (Munby LJ and Langstaff J): Case concerned whether the Children Act 1989 takes precedence over 'hard case' support under 'section 4' for families with no immigration status. Held that a local authority could not automatically withdraw, or decline to offer, support under the Children Act 1989 s.17 to a child whom it had assessed to be "in need" simply on the basis that support was available under the Immigration and Immigration and Asylum Act 1999 s.4. It could only do so in the very unlikely event that it could be shown that the secretary of state was able and willing, or could be compelled, to provide s.4 support and that the s.4 support would suffice to meet the child's assessed needs.
R (on the application of O) v Hammersmith and Fulham LBC  EWCA Civ 925 (Rix, Lloyd and Black LJ): The court's duty under the Children Act 1989 s.1(1) to treat the child's welfare as the paramount consideration did not apply to judicial review proceedings involving a challenge to a local authority's decision as to where a child in need should be accommodated.
R (on the application of S) v LB of Croydon  EWHC 2467 (Admin) (Walker J): Challenge was to refusal of the local authority to accept a duty under s20, Children Act 1989. The local authority had a duty to accommodate and support the Claimant pursuant to s.20, Children Act 1989. Under that section a statutory regime was provided under which the local authority had to conduct an appropriate exercise to determine what accommodation it should provide. The child’s wishes were not binding, but they were important. It was plainly of the utmost importance that the local authority, when deciding how to accommodate the child, should investigate the options and make sure that, when the child was considering what he wanted, he had the fullest possible information and was not in a position where he felt under pressure. It was not appropriate to turn the process of consideration by the local authority of its statutory duties into a court battle. It was positively unhelpful for matters to become over-legalised. That would be the consequence of going into the rights and wrongs of the suggested first declaration. The second declaration also adopted an over-legalistic approach. What had to be done pursuant to the duty under s.20 was not something to be argued about in a courtroom. The local authority was bound to put into effect the process required by statute for consideration of the position under s.20. As part of that process, it could properly ascertain what the child’s position was, and take a carefully considered decision as to what, by way of accommodation, was appropriate to be provided under s.20. The court therefore ordered that the local authority had a duty under s.20 to provide safe and suitable accommodation to the child and should continue to provide appropriate financial support to him.

matches: §21 EWCA EWCA EWCA EWCA §24 EWCA


Motion to suppress. Cobb State Court. Before Judge Campbell.
McIlhinney Sessions, Daniel B. Sessions, for appellant.
Barry E. Morgan, Solicitor-General, Barbara F. Berger, Assistant Solicitor-General, for appellee.
Following a bench trial, the State Court of Cobb County found James Adcock guilty beyond a reasonable doubt of driving under the influence of alcohol while having an alcohol concentration of 0.08 grams or more, in violation of OCGA § 40-6-391 (a) (5). Adcock appeals, contending that the trial court erred in denying his motion to suppress evidence seized as a result of a traffic stop. Finding no error, we affirm.
"When the evidence is uncontroverted and no question of witness credibility is presented, the trial court's application of the law to undisputed facts [in ruling on a motion to suppress or a motion in limine] is subject to de novo appellate review." (Citation and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 ( 611 SE2d 139) (2005).
The record shows the following undisputed facts. Just before midnight on October 11, 2007, a concerned motorist called 911 and said that he had seen a black Toyota Tacoma that was heading north on Canton Road going "all over the road" and then hitting a curb in the drive-through lane of a McDonald's restaurant. Based on this, the caller suspected that the driver might be impaired. The caller reported the Tacoma's tag number and said that the Tacoma had pulled out of the McDonald's, which was closed, and was headed toward a nearby Taco Bell restaurant. A dispatcher broadcast the information to officers who were on patrol, and several responded. The responding officers and the caller converged behind the Tacoma in the Taco Bell parking lot. The caller confirmed that the Tacoma was the same car he had seen weaving and striking the curb. The ensuing DUI investigation resulted in Adcock's arrest.
Adcock's sole argument on appeal is that there is no evidence that the investigative detention was supported by a reasonable suspicion that he was committing or had committed a crime. In support of this, Adcock contends that the officer who initiated the traffic stop did not testify at the hearing on his motion to suppress and that the trial court could not presume that the officer who initiated the traffic stop had the same information about Adcock's driving as did the officer who testified at the hearing.
See Kazeem v. State, 241 Ga. App. 175, 177-178 (1) ( 525 SE2d 437) (1999) (where the officers who initiated a traffic stop and detained the defendants did not testify at the hearing on the defendants' motion to suppress or at trial, the State failed to meet its burden of showing that the stop was justified by an objective and particularized basis for suspecting the defendants of criminal conduct and, therefore, the trial court erred in denying their motion to suppress).
The record does not support Adcock's claim that the officer who testified was not the one who first detained Adcock. Although the officer testified that he was not the first to arrive at the Taco Bell parking lot, it is undisputed that he was the first officer to approach Adcock and his car and the first to interact with Adcock in any way. There is no evidence that Adcock pulled into the parking lot in response to a siren, display of lights or other command by any police officer or that the officers took any action to trap Adcock's car in the parking lot. Thus, there is no evidence that any officer other than the one who testified at the hearing on Adcock's motion to suppress initiated Adcock's detention.
See generally Darden v. State, 293 Ga. App. 127, 130 (1) (a) ( 666 SE2d 559) (2008) (a brief investigative detention of a driver must be justified by a reasonable suspicion of criminal conduct, that is, by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity); Stadnisky v. State, 285 Ga. App. 33, 36-37 (2) ( 645 SE2d 545) (2007) (a brief investigative detention of a driver, or "second-tier" police-citizen encounter, occurs when, in view of all the circumstances surrounding the incident, a reasonable person would believe that he or she is not free to leave).
We conclude that, under the totality of the circumstances, the officer's investigative detention of Adcock was justified by a reasonable suspicion that he was driving illegally, under the influence of an intoxicant. Accordingly, Adcock has shown no basis for reversing the trial court's order denying his motion to suppress.
See Darden v. State, 293 Ga. App. at 130 (1) (a) (in considering the legality of an investigative traffic stop, a court must consider the totality of the circumstances of a particular case).
See State v. Gomez, 266 Ga. App. 423, 426 (3) ( 597 SE2d 509) (2004) (an officer had a reasonable, articulable suspicion to justify an investigative traffic stop where a concerned citizen reported that a red Honda Prelude with tag number 588ZJC was traveling northbound on I-85 and that the driver was driving "all over the roadway" and appeared to be intoxicated and where, after hearing this dispatch, the officer spotted a vehicle that matched this description on an exit ramp from northbound I-85, and confirmed that the tag number matched that given in the lookout); Brown v. State, 253 Ga. App. 741, 742-743 (1) ( 560 SE2d 316) (2002) (an officer had a reasonable, articulable suspicion to justify an investigative traffic stop where a concerned citizen reported that a suspected drunk driver was driving a white Ford truck with tag number 962JDB westbound on Highway 92 near the intersection with Highway 5 and where, within two minutes after hearing this dispatch, the officer spotted the truck at that intersection of Highways 5 and 92, checked the tag number, and confirmed that it was the reported truck).


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According to Art. 6 Paragraph 1, letter b DSGVO (GDPR), personal data will continue to be collected and processed if you provide it to us for the execution of a contract or when opening a customer account. Which data is collected can be seen from the respective input forms. It is possible to delete your customer account at any time and can be done by sending a message to the above-mentioned address of the responsible person. We store and use the data provided by you for contract processing. After complete processing of the contract or deletion of your customer account, your data will be blocked in consideration of tax and commercial retention periods and deleted after expiry of these periods, unless you have expressly consented to further use of your data or a legally permitted further use of data has been reserved by our site, about which we will inform you accordingly below.
If you subscribe to our e-mail newsletter, we will send you regular information about our offers. The only mandatory information for sending the newsletter is your e-mail address. The indication of further possibly data is voluntary and is used to be able to address you personally. We use the so-called double opt-in procedure for sending the newsletter. This means that we will not send you an e-mail newsletter until you have expressly confirmed to us that you agree to the sending of the newsletter. We will then send you a confirmation e-mail asking you to confirm that you wish to receive future newsletters by clicking on an appropriate link.
By activating the confirmation link, you give us your consent to the use of your personal data in accordance with Art. 6 paragraph 1, letter a DSGVO (GDPR). When you register for the newsletter, we store your IP address entered by the Internet Service Provider (ISP) as well as the date and time of registration so that we can trace any possible misuse of your e-mail address at a later point in time. The data collected by us when registering for the newsletter will be used exclusively for the purpose of addressing you in advertising by means of the newsletter. You can unsubscribe from the newsletter at any time via the link provided in the newsletter or by sending a message to the responsible person named above. After your cancellation, your e-mail address will be deleted from our newsletter distribution list immediately, unless you have expressly consented to further use of your data or we reserve the right to use data in excess thereof, which is permitted by law and about which we inform you in this declaration.
Our e-mail newsletters are sent via the technical service provider The Rocket Science Group, LLC d/b/a MailChimp, 675 Ponce de Leon Ave NE, Suite 5000, Atlanta, GA 30308, USA (http://www.mailchimp.com/), to whom we pass on the data you provided when registering for the newsletter. This disclosure is made in accordance with Art. 6 Paragraph 1, letter f DSGVO (GDPR) and serves our legitimate interest in the use of an effective, secure and user-friendly newsletter system. Please note that your data is usually transferred to a MailChimp server in the USA and stored there.
MailChimp uses this information to send and statistically evaluate the newsletter on our behalf. For evaluation purposes, the e-mails sent contain so-called web beacons or tracking pixels, which represent single-pixel image files stored on our website. This allows you to determine whether a newsletter message has been opened and which links have been clicked on. In addition, technical information is recorded (e.g. time of retrieval, IP address, browser type and operating system). The data is collected exclusively pseudonymised and is not linked to your other personal data; direct personal relationship is excluded. This data is used exclusively for statistical analysis of newsletter campaigns. The results of these analyses can be used to better adapt future newsletters to the interests of the recipients.
Furthermore, MailChimp can use this data according to art. 6 paragraph 1, letter f DSGVO (GDPR) itself because of its own legitimate interest in the demand-oriented design and optimization of the service as well as for market research purposes, for example, to determine from which countries the recipients come. However, MailChimp does not use the data of our newsletter recipients to write them down or pass them on to third parties.
To protect your data in the USA, we have concluded a data processing agreement (“Data-Processing-Agreement”) with MailChimp on the basis of the standard contractual clauses of the European Commission to enable the transmission of your personal data to MailChimp. If interested, this data processing agreement can be viewed at the following Internet address: http://mailchimp.com/legal/forms/data-processing-agreement/.
MailChimp is also certified under the US European data protection agreement “Privacy Shield” and thus undertakes to comply with EU data protection regulations.
Based on our legitimate interest in personalised direct mail, we reserve the right to store your first and last name, your postal address and – if we have received this additional information from you within the framework of the contractual relationship – your title, academic degree, year of birth and your professional, industry or business name in accordance with Art. 6 paragraph 1, letter f DSGVO (GDPR) and to use them for sending interesting offers and information on our products by letter post.
You can object to the storage and use of your data for this purpose at any time by sending an appropriate message to the person responsible.
7.1 For the processing of your order we work together with the following service provider(s), which support us wholly or partly in the execution of concluded contracts. Certain personal data is transferred to these service providers in accordance with the following information.
The personal data collected by us will be passed on to the transport company commissioned with the delivery within the scope of contract processing, insofar as this is necessary for the delivery of the goods. We will pass on your payment data to the commissioned credit institution within the framework of payment processing if this is necessary for payment processing. If payment service providers are used, we explicitly inform you of this below. The legal basis for the transfer of data is Art. 6 paragraph 1, letter b DSGVO (GDPR).
Our website uses so-called social plugins (“plugins”) of the social network Facebook, which is operated by Facebook Inc, 1 Hacker Way, Menlo Park, CA 94025, USA (“Facebook”).
In order to increase the protection of your data when you visit our website, these buttons are not fully integrated into the page as plug-ins, but only by using an HTML link. This type of integration ensures that when you visit a page on our website that contains such buttons, no connection to Facebook’s servers is established. When you click on the button, a new browser window opens and opens the Facebook page, where you can interact with the plugins (if necessary after entering your login data).
Facebook Inc., based in the USA, is certified for the us-European data protection agreement “Privacy Shield”, which guarantees compliance with the data protection level applicable in the EU.
Our website uses so-called social plugins (“plugins”) of the online service LinkedIn, which is operated by LinkedIn Corporation, 2029 Stierlin Court, Mountain View, CA 94043, USA (“LinkedIn”).
In order to increase the protection of your data when you visit our website, these buttons are not fully integrated into the page as plug-ins, but only by using an HTML link. This type of integration ensures that no connection to LinkedIn’s servers is established when you access a page on our website that contains such buttons. When you click on the button, a new browser window opens and opens the LinkedIn page, where you can interact with the plugins (if necessary after entering your login data).
LinkedIn Corporation, headquartered in the USA, is responsible for the US -European Privacy Shield”, which guarantees compliance with the data protection level applicable in the EU.
Our website uses so-called social plugins (“plugins”) of the microblogging service Twitter, which is operated by Twitter Inc. 1355 Market St, Suite 900, San Francisco, CA 94103, USA (“Twitter”).
In order to increase the protection of your data when you visit our website, these buttons are not fully integrated into the page as plug-ins, but only by using an HTML link. This type of integration ensures that no connection to Twitter’s servers is established when a page of our website containing such buttons is accessed. When you click on the button, a new browser window opens and opens the Twitter page, where you can interact with the plugins (if necessary after entering your login data).
Twitter Inc., based in the USA, is certified for the US-European data protection agreement “Privacy Shield”, which guarantees compliance with the data protection level applicable in the EU.
Our website includes plugins of the video portal Vimeo of Vimeo, LLC, 555 West 18th Street, New York, New York 10011, USA. When you access a page of our website that contains such a plugin, your browser establishes a direct connection to Vimeo’s servers. The content of the plugin is transmitted by Vimeo directly to your browser and integrated into the page. By this integration, Vimeo receives the information that your browser has called up the corresponding page of our website, even if you do not have a Vimeo account or are not currently logged in to Vimeo. This information (including your IP address) is transmitted directly from your browser to a Vimeo server in the USA and stored there.
If you are logged in to Vimeo, Vimeo can immediately associate your visit to our website with your Vimeo account. If you interact with the plugins (such as pressing the start button of a video), this information is also transmitted directly to a Vimeo server and stored there.
The described data processing operations are carried out according to art. 6 paragraph 1, letter f DSGVO (GDPR) on the basis of Vimeo’s justified interest in market research and the demand-oriented design of the service.
If you do not want Vimeo to associate the information collected through our website directly with your Vimeo account, you must log out of Vimeo before visiting our website.
The tracking tool Google Analytics is automatically integrated into videos from Vimeo that are integrated on our site. This is Vimeo’s own tracking system, to which we have no access and which cannot be influenced by our site. Google Analytics uses “cookies”, which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of this website is usually transferred to a Google server in the USA and stored there.
This processing is carried out in accordance with art. 6 paragraph 1, letter f DSGVO (GDPR) on the basis of Vimeo’s legitimate interest in the statistical analysis of user behaviour for optimization and marketing purposes.
This website uses the online advertising program “Google AdWords” and in the context of Google AdWords the conversion tracking of Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). We use the offer of Google Adwords to draw attention to our attractive offers with the help of advertising materials (so-called Google Adwords) on external websites. We can determine in relation to the data of the advertising campaigns how successful the individual advertising measures are. We are interested in showing you advertisements that are of interest to you, to make our website more interesting for you and to achieve a fair calculation of advertising costs.
The conversion tracking cookie is set when a user clicks on an AdWords ad served by Google. Cookies are small text files that are stored on your computer system. These cookies usually expire after 30 days and are not used for personal identification. If the user visits certain pages of this website and the cookie has not yet expired, Google and we can recognize that the user has clicked on the ad and has been redirected to this page. Each Google AdWords customer receives a different cookie. Cookies cannot, therefore, be traced through the websites of AdWords customers. The information collected using the conversion cookie is used to generate conversion statistics for AdWords customers who have opted for conversion tracking. Customers see the total number of users who clicked on their ad and were redirected to a page with a conversion tracking tag. However, you will not receive any information that personally identifies users. If you do not wish to participate in tracking, you can block this use by deactivating the Google Conversion Tracking cookie via your Internet browser under User Settings. They are then not included in the conversion tracking statistics. We use Google Adwords because of our legitimate interest in targeted advertising in accordance with Art. 6 Paragraph 1, letter f DSGVO (GDPR).
This website uses Google Analytics, a web analysis service of Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). Google Analytics uses “cookies”, which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of this website (including the shortened IP address) is generally transmitted to a Google server in the USA and stored there.
This website uses Google Analytics exclusively with the extension “_anonymizeIp()”, which ensures an anonymization of the IP address by shortening and excludes a direct personal relationship. As a result of the extension, your IP address will previously be reduced by Google within member states of the European Union or in other signatory states to the Agreement on the European Economic Area. Only in exceptional cases will the full IP address be transmitted to a Google server in the USA and shortened there. In these exceptional cases, this processing is carried out in accordance with Art. 6 Paragraph 1, letter f DSGVO (GDPR) on the basis of our legitimate interest in the statistical analysis of user behaviour for optimisation and marketing purposes.
As an alternative to the browser plug-in or within browsers on mobile devices, please click on the following link to set an opt-out cookie that will prevent future collection by Google Analytics within this website (this opt-out cookie only works in this browser and only for this domain, if you delete your cookies in this browser, you must click this link again): Disable Google Analytics.
Our website uses the functions of Google AdWords Remarketing, which we use to advertise this website in Google search results, as well as on third-party websites. The provider is Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). To this end, Google places a cookie in the browser of your terminal device, which automatically uses a pseudonymous cookie ID and the pages you visit to enable interest-based advertising. Processing is based on our legitimate interest in the optimal marketing of our website in accordance with Art. 6 Paragraph 1, letter f DSGVO (GDPR).
Any additional processing will only take place if you have agreed with Google that your Google Internet and app browsing history will be linked to your Google Account and information from your Google Account will be used to personalise ads you view on the web. If you are logged in to Google while visiting our website, Google will use your data together with Google Analytics data to create and define target group lists for cross-device remarketing. To this end, Google temporarily links your personal data with Google Analytics data to form target groups.
On our website, we use Google Maps (API) from Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). Google Maps is a web service for displaying interactive (country) maps in order to display geographical information visually. Using this service will show you our location and make it easier for you to find us.
When you access the sub-pages that contain the Google Maps map, information about your use of our website (such as your IP address) is transmitted to and stored by Google on servers in the United States. This is regardless of whether Google provides a user account that you are logged in with or whether no user account exists. If you are logged in to Google, your information will be directly associated with your account. If you do not wish to be associated with your profile on Google, you must log out before activating the button. Google saves your data (even for users who are not logged in) as usage profiles and evaluates them. Such an evaluation takes place in particular according to art. 6 paragraph 1, letter f DSGVO (GDPR) on the basis of the legitimate interests of Google in the insertion of personalised advertising, market research and/or demand-oriented design of its website. You have the right to object to the creation of these user profiles, whereby you must contact Google to exercise this right.
To do this, the browser you are using must connect to Google’s servers. This gives Google knowledge that our website has been accessed via your IP address. The use of Google Web Fonts is in the interest of a uniform and appealing presentation of our online offers. This represents a legitimate interest within the meaning of Art. 6 paragraph 1, letter f DSGVO (GDPR). If your browser does not support web fonts, a default font is used by your computer.
Right to information in accordance with Art. 19 DSGVO (GDPR): If you have exercised your right to have the data controller correct, delete or limit the processing, he/she is obliged to inform all recipients to whom the personal data concerning you have been disclosed of this correction or deletion of the data or restriction on processing, unless this proves impossible or involves a disproportionate effort. You have the right to be informed of these recipients.
Right to revoke consent given pursuant to Art. 7 paragraph 3 DSGVO (GDPR): You have the right to revoke consent once given to the processing of data at any time with effect for the future. In the event of revocation, we will delete the data concerned without delay, unless further processing can be based on a legal basis for processing without consent. The revocation of consent shall not affect the legality of the processing carried out on the basis of the consent until revocation; right of appeal under Article 77 of the DSGVO (GDPR): If you believe that the processing of personal data concerning you infringes the DSGVO (GDPR), you have the right of appeal to a supervisory authority, in particular in the Member State where you reside, work or suspected infringement, without prejudice to any other administrative or judicial remedy.
IF WITHIN THE FRAMEWORK OF A CONSIDERATION OF INTERESTS, WE PROCESS YOUR PERSONAL DATA ON THE BASIS OF OUR PREDOMINANT LEGITIMATE INTEREST, YOU HAVE THE RIGHT AT ANY TIME TO OBJECT TO THIS PROCESSING WITH EFFECT FOR THE FUTURE ON THE GROUNDS THAT ARISE FROM YOUR PARTICULAR SITUATION.
1.2 Verantwortlicher für die Datenverarbeitung auf dieser Website im Sinne der Datenschutz-Grundverordnung (DSGVO) ist Chemnitzer Wirtschaftsförderungs- und Entwicklungsgesellschaft mbH (CWE), Innere Klosterstraße 6 – 8, 09111 Chemnitz, Deutschland, Tel.: 0371 – 366 0 200, Fax: 0371 – 366 0 211, E-Mail: office@cwe-chemnitz.de. Der für die Verarbeitung von personenbezogenen Daten Verantwortliche ist diejenige natürliche oder juristische Person, die allein oder gemeinsam mit anderen über die Zwecke und Mittel der Verarbeitung von personenbezogenen Daten entscheidet.

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text:
Rehearing Denied May 18, 1954.
William K. Bachelder, Chicago, Ill., for appellant.
Latham Castle, Atty. Gen., William C. Wines, Asst. Atty. Gen., Raymond S. Sarnow, A. Zola Groves, Asst. Attys. Gen., of counsel, for appellee.
Before DUFFY, SWAIM and SCHNACKENBERG, Circuit Judges.
Relator (hereinafter called petitioner), an inmate of the Illinois State Penitentiary, petitioned the district court for a writ of habeas corpus, charging that he had been convicted of a crime in an Illinois State Court by the use of perjured testimony knowingly used by the prosecution. On motion of respondent the court dismissed the petition.
Petitioner was convicted in 1934 after a jury trial in the Criminal Court of Cook County, on the charge of armed robbery of a tavern. As he had a previous felony conviction, he was sentenced to life imprisonment, which term was later commuted to 48 years. In 1952 petitioner initiated proceedings in the Criminal Court of Cook County, under the Illinois Post Conviction Hearing Act, Ill.Rev. Stats.1951, Ch. 38, Par. 826-832. After a hearing relief was denied. This action was affirmed by the Illinois Supreme Court, in its order entered November 21, 1952, certiorari denied 344 U.S. 930, 73 S.Ct. 501, 97 L.Ed. 716.
At the trial of the charge of armed robbery, petitioner was identified as one of the two robbers by a patron of the tavern and also by the wife of the tavernkeeper. Petitioner asserted, by way of alibi, that on the night in question he was at home throughout the evening playing cards with his father, two brothers, and a cousin, John O'Connell. At the trial these persons all testified to the same effect, claiming that they remembered the date because it was petitioner's birthday. After John O'Connell had testified, a recess was called at which time John O'Connell was taken to the office of the State's Attorney under circumstances which are the basis for petitioner's claim of conviction by perjured testimony. The Illinois Supreme Court described the incident in its order of November 21, 1952 as follows: "In his (petitioner's) post conviction petition he charged that a defense witness who had testified that he was with defendant on the date of the crime had been induced by the State to change his testimony. Liberally construed this might be considered as a charge of knowing use of perjured testimony. Numerous other charges were made, none of which raised constitutional questions and the post conviction hearing below was directed almost entirely to the above charge. At the post conviction hearing, this witness testified that as he left the stand at the original trial he was `grabbed' by two men, and taken to the State's Attorney's office where he was told that he could be sent to jail for perjury and that when he was next placed on the stand, he should simply say, `I don't remember what day I was with defendant.' He was placed on the stand by the State for further cross-examination and testified that he didn't remember the exact date. He further testified that he did remember, but that he so testified from fear. * * *"
At the post conviction hearing the State of Illinois presented petitioner's petition for parole which was executed in 1950, and which, among other things, stated, "As I prepare this petition for consideration I am confronted with the knowledge that fifteen years ago I fought vigorously for my freedom even though I was guilty of the crime." The district court referred to this statement as follows: "That was very properly received, not upon the question of his guilt or innocence but upon the question as to whether or not there was any perjury on the trial for armed robbery. * * * if the relator was guilty, as he said he was, then, of course, his cousin did not perjure himself when he came back to the stand."
Petitioner's counsel argues that the district court should not have given any consideration to the petition for parole because it was not a confession of guilt. Counsel says that it was well known at the prison that an inmate's only chance for obtaining a parole was to show proper (in the eyes of prison authorities) contrition; that to continue to assert innocence of the crime would have resulted in a denial of petitioner's petition for parole. Counsel insists that the statement, made after fifteen years of confinement, was induced by a promise of benefit, and therefore is untrustworthy, citing People v. Campbell, 359 Ill. 286, 194 N.E. 533; 3 Wigmore, Evidence, 3d Ed., 1940, §§ 833, 834-836.
It is a well established principle of law that if a State obtains the conviction of a defendant through the use of testimony known by the prosecuting officers to have been perjured, the judgment of conviction should be set aside as a violation of due process. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Hysler v. State of Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214. It is also true, as asserted by petitioner's counsel, that even if a petitioner is guilty of the crime charged, he is nevertheless entitled to the protection of due process of law. Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.
However, where the merits of the claims of a petitioner for habeas corpus in a federal district court have been presented to and have been passed upon by the State courts, including the highest court in the State, and the United States Supreme Court has denied certiorari, a federal district court may decline to grant a writ of habeas corpus without holding a second hearing. Brown v. Allen, 344 U.S. 443, 464-465, 73 S.Ct. 397, 437, 97 L.Ed. 469. In proceedings under the Illinois Post Conviction Remedies Act, the petitioner herein presented the claim that his conviction had been obtained by testimony known to the prosecuting officers to have been perjured, and the court denied relief. On appeal the Illinois Supreme Court carefully considered this claim and again relief was denied. As hereinbefore stated, the United States Supreme Court denied certiorari.
In White v. Ragen, 324 U.S. 760, 764-765, 65 S.Ct. 978, 981, 89 L.Ed. 1348, the court said, "If this court denies certiorari after a state court decision on the merits, or if it reviews the case on the merits, a federal District Court will not usually reexamine on habeas corpus the questions thus adjudicated."
The latest word from the Supreme Court is in Brown v. Allen, supra. The court there said, 344 U.S. 443, at pages 457-458, 73 S.Ct. at page 407, 97 L.Ed. 469, "The fact that no weight is to be given by the Federal District Court to our denial of certiorari should not be taken as an indication that similar treatment is to be accorded to the orders of the state courts. * * * Furthermore, where there is material conflict of fact in the transcripts of evidence as to deprivation of constitutional rights, the District Court may properly depend upon the state's resolution of the issue." The court in that opinion further stated, 344 U.S. at pages 464-465, 73 S.Ct. at page 411, "Although they have the power, it is not necessary for federal courts to hold hearings on the merits, facts or law a second time when satisfied that federal constitutional rights have been protected. * * * As the state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has been determined, on the facts presented, by the highest state court with jurisdiction, whether through affirmance of the judgment on appeal or denial of post-conviction remedies."
In the case at bar the district court had in mind the pronouncement above quoted in Brown v. Allen, supra, referring to that case in its opinion. We hold, therefore, that the district court was correct in granting the motion to dismiss the petition for a writ of habeas corpus.
This court appointed William K. Bachelder, Esq., a member of the Chicago bar, to represent the petitioner upon this appeal. We have been favored with ably prepared briefs, as well as a well presented oral argument. We thank Mr. Bachelder for his very fine services.

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