Whilst taking part in a recent Politics Hour programme on BBC Three Counties radio I was surprised when one of us (a barrister) held that the jury trial system was due to Magna Carta, first sealed in 1215 AD. As so often happens the answer to the assertion is important to us today as the country decides whether or not to stay in the European Union.
The Magna Carta
The assertion was not true although it is easy to see how the confusion arose. Article 39 of Magna Carta states “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” – See more at: http://www.bl.uk/magna-carta/articles/magna-carta-english-translation#sthash.L95SfHJV.dpuf
However this is a reference to a way of decision making in medieval courts that had long been part of the system not only in England, but also on the continent.
“The voice of a court, whether of a county, a hundred or an honour, was traditionally that of its suitors, who owed attendance – suit – there because this particular responsibility had come to be entailed upon their landed holdings. Their duties included making the judgments of the court concerned”,
and in these courts the more land you held the more “equal” you were. http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39
English Common Law
In one respect this was the English Common Law at work. Judges originally had been rather like Presidents of a Court and acted much as facilitators of a process until the full flowering of the English Common law started in the 12th century with Henry II. However there were other ways of reaching a judgement and these included swearing an Oath of an appropriate ‘weregild’*, Trial By Ordeal and Trial by Combat. If you did not think your neighbours liked you very much and you did not wish to be at their mercy you could choose one of these other methods, depending on the matter at court and, in the matter of the oath, on the total weregild of you and your mates.
In effect with Article 39 the nobles merely wanted to ensure that the ancient lawful methods were followed instead of King John’s usual ‘plunder’ approach to getting what he wanted.
Trial By Jury
Whilst jury trial was not then used in criminal cases in English courts it had by 1215 a history of use in some civil cases. The Anglo-Saxon Kings in England, particularly the those of Mercia, had a longstanding history of embassies with foreign kingdoms most significantly with the Carolingian Empire in Europe. This ran from 687 AD when Pippin II gained effective control over the entire Frankish Empire until its effective end in 887 AD. From the Carolingians the Anglo-Saxons borrowed the idea of Juries.
“A jury is a body of people that are sworn to account for facts and to furnish courts of law with true and honest information. This idea was not unique to England and was used across ancient empires and within England and Normandy long before the Norman conquest.
At this early time, these bodies were called inquests. Its long history is attributable to the fact that without it, there was no efficient way to collect information about the number of livestock in an area or who owned which piece of land and where the boundary of that land was.” https://englishlegalhistory.wordpress.com/2013/06/10/history-of-trial-by-jury/ So Juries were used in civil cases. In England the jury of 12 freemen was incorporated into civil law by the Assize of Clarendon in 1166 AD.
Trial by Ordeal
In the same year as the Magna Carta, 1215 AD, the Pope banned priests from attending trials by ordeal. This was a serious blow to criminal court procedures throughout Europe as well as England. Trial by ordeal called on God to witness the outcome of an ordeal – for example holding pieces of metal heated in a fire in your hands, These were then bandaged up and looked at a set number of days later. If the hand was healthy then you were innocent. Since it was universally accepted that God’s judgement was at work the participation of a priest was vital. Without the priest there could be no trial by ordeal.
In Europe this led to a very dark period. Europe, following the Roman Law system settled for the inquisitorial system (HP p78: “Law, Liberty and the Constitution: A Brief History of The Common Law” by Harry Potter, The Boydell Press, 2015). In this system the emphasis was on finding the truth, the most convenient source of which was the accused who could be subjected to unremitting torture by experts until he confessed – professors of innocence were not admissible.
The Difference between England and Continental Europe
Following King John’s death in 1216 King Henry III, or at least his counsellors as he was too young, asked the shire courts what system of trial they would like in criminal cases. The courts could have chosen the Roman Law inquisitorial system. After all the only system of law taught at Oxford and Cambridge was Roman Law. Instead the Shire Courts chose what they knew worked and were used to employing – trial by jury.
It is difficult to underestimate the importance of this decision and the means by which it was made.
Henceforth the English would be subject to their Common Law, a system that in essence tells you what you may not do but allows all else, and this includes the future, judged by a criminal court system which put the decision on guilt or innocence in the hands of a jury of people like you. In other words a system that worked to maximise your freedom and their safety and allowed you to move confidently into the future.
Europe on the other hand was subject to Roman Law a system that in essence told you what you could do forbidding all else, and this included the future, judged by a court system that could and would put you to unremitting torture until you confessed.
Loss of Our Liberties Under EU Rule and the European Arrest Warrant
But since we joined the EU this English system is changing. There are already calls to reduce the cases in which trial by jury is allowed. One of the cornerstones of our freedom, Article 38 of the Magna Carta is no more. It said “In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it. – See more at: http://www.bl.uk/magna-carta/articles/magna-carta-english-translation#sthash.L95SfHJV.79A0w8Vw.dpuf.
The European arrest warrant does not require either that an offence be committed nor that credible witnesses be produced. It requires only that it is completed correctly. We are back 801 years in the days of bad King John. The protection afforded by the Magna Carta has been given away, or sold for a ‘mess of potage’. The European Arrest Warrant has been sold to us as being essential to control terrorism – a group so protected by Human Rights legislation that it takes years to deport them – whilst entrapping, abusing and treating abominably decent law abiding citizens. Two cases reported in the media will suffice.
The Spectator reported that an elderly couple were returning from a holiday in Europe. When they got to the British customs at Calais they were handed to the French police on a warrant issued by Greece, He was not allowed to see either his wife nor a lawyer. After many months of incarceration in a Greek goal his case came to court. When the prosecution called their first witness the whole court burst out laughing, the witness was well known as a mischief maker. The man was released, with a £45,000 legal bill to pay! No credible witness there then! No justice either.
The second case concerns the family with the young child ill with cancer. They wanted a form of treatment, only available in Europe, that NHS experts said was of no use and would not authorise payment for it. When the family took their son out of hospital and decamped to Spain to sell a property they owned so they could pay for the treatment themselves some bureaucrat issued an European Warrant for the parents even though the bureaucrat insisted that no offence had been committed. The Spanish police arrested the parents and put them in goal leaving the children to be cared for by the state. Eventually the whole farrago came to an end. But recently the method of treatment that was deemed so poor is now recognised as a ‘must have’. NHS England that so arrogantly deprived an innocent couple of their freedom is now running catchup. Perhaps in a couple of years or so they will have caught up to where those parents were a year ago.
Even more importantly England will only catch up to where it was in 1215 AD if we leave the EU AND if Members of Parliament learn to protect the rights and freedoms of the people who vote for them and so absolve themselves from their moral failure in this regard.