Sortition
Newsletter of the Campaign to Defend the Right to a Secret Ballot
(CDRSB)
August 2014 Issue No. 8
ISSN 1756-4964 (Print)
Trial by Jury and its Enemies
(Abridged Version)
The first formally constituted jury may reasonably be held to be the court of last appeal established by Solon, a descendant of the last king of Athens, from which later developed the thoroughgoing use of random selection / sortition at all levels of government that most distinguishes Athenian democracy. Jury trial existed among many north European tribes and their elective kingships from the dark ages to Alfred the Great and was endorsed by the Holy Roman Empire. Magna Carta fortified these rights and helped ensure the survival of trial by jury in England through the inquisition.
Before the inquisition research indicates unless people were caught in the act of committing a crime they could not be tried until they had been formally accused by their victim, multiple witnesses, or by an early type of grand jury convened for that case. Bearing false witness could result in harsh punishment, so victims were often reluctant to testify. Due to such difficulties methods such as trial by ordeal or combat were regarded as legitimate means to ascertain evidence of guilt or innocence. In 1198 Pope Innocent 3rd initiated a new inquisitional procedure which allowed an ecclesiastical magistrate to summon, interrogate and try a defendant before getting evidence from witnesses. In 1215, the Fourth Council of the Lateran affirmed the use of the inquisitional system and thereafter stopped clergy from conducting trials by ordeal or combat. Consequently the ecclesiastical courts operating under the inquisitional procedure became the chief method by which the law was enforced throughout Europe. In France lay courts also used inquisitorial procedure.
In England, however, King Henry II established separate secular courts during the 1160s. While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional system, the secular common law courts continued to use the older, ‘adversarial’ system. The practice that a person could not be tried until formally accused by a victim or witnesses continued in England and in 1215 was designated article 38 of the Magna Carta: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for these purposes."
Lacking such constraints the inquisitorial system introduced on the continent more easily supplanted the remnants of trial by jury. In the 17th and 18th centuries the full constitutional significance of jury trial was established as the cornerstone of human rights and democratic government. The refusal of a jury even when imprisoned by the judge to convict the quaker William Penn on the charge of sedition in 1670 put to the test its power to decide on matters of both fact and law. When the campaign for their release was won trial by jury became clearly recognised as the best guarantor of free speech as an inalienable right – that is as a right which government can not take away no matter what ‘laws’ it chooses to create. Similarly the provisions against arbitrary arrest and imprisonment included in Magna Carta became incorporated in the 1679 Act of Habeus Corpus.
Juries regularly refused to convict American radical leaders of sedition in the years preceding the American revolution. The American Declaration of Independence refers explicitly to the denial of trials by jury as one of the foremost acts of despotism against which the colonists began their revolution in 1776. Accordingly the right to jury trial is ‘entrenched law’ in the US constitution and is upheld in three of the ten amendments that comprise the American Bill of Rights. Thomas Jefferson recognised that when a government is tempted to resort openly or secretly to using tyrannical methods jury trial is the last means to hold it accountable to the people short of rebellion. The incorporation of the American Bill of Rights into the US Constitution in 1791 comprises the high point of jury trial. However due in large part to the deleterious influence of extremism on and defeat of the French revolution, American revolutionary radicalism thereafter became relatively isolated on a global scale and its influence went gradually into decline. Notwithstanding the decisive impact of jury refusals to convict runaway slaves and their liberators under the fugitive slave laws, this decline continued after Lincoln’s death due to to the heavy toll of the war against slavery. It was in these circumstances that Marxism – an autocratic and confused theoretical legacy of French Jacobin extremism – also began to exert a negative influence upon radical ideology. These effects combined with the corrupting force of convenience gave rise to new tendencies in politics and law willing to ‘sap and undermine’ the role of juries.
Subversion
Until 1854 trial by jury was the only form of trial used in any court of common law. That year however the UK enacted laws introducing the ‘either way’ principle: provided both parties agreed trials by judge alone were thereafter allowed. Since then to the present day more and more restrictions have been introduced on trial by jury in the UK, such that trials by judge alone now account for over 90% of the total. A similar process of jury trial subversion has taken place in the USA, though to a far less degree. In 1895 the US Supreme Court struck down the by then century old requirement that judges are duty bound to inform juries of their right to decide on matters of both fact and law. Nevertheless the US Bill of Rights stipulates that any suspect has the right to trial by jury on any matter – civil or criminal - involving more than the sum of $20. Several US states have to this day repeatedly explicitly upheld jury rights both by law and in their constitutions. Indeed, this year – 2014 - Alaska is in the process of debating a law to reinstate the original requirement that judges must inform juries of their right to decide both fact and law.
At first driven chiefly by the forces of conservatism and convenience the motives driving these restrictions on jury trial have, in the greatest of ironies, become increasingly leftist in nature. Historically speaking this ironic circumstance has arisen both because of the defeat and also because of the extremism of the French revolution and its failure to supplant the totalitarian inclinations of the inquisition with trial by jury and a concept of impartiality that is rooted in common sense, not the commands of the ruling faction. Ignorant of or at best insufficiently alert to the democratic and philosophical strengths of British common sense realism Marx helped confuse and divert radical sentiment from its natural inclination to uphold jury trial to that of subverting it. Communism condemned human rights as ‘bourgeois.’
Marxist influence in the labour movement, though never complete, helps explain its failure to mount any significant effort to halt or reverse the increasing restrictions upon trial by jury, including its substitution by tribunal hearings in employment law. This development has carried with it the tendency to weaken whistleblower rights since tribunals, like the judiciary itself, are more likely to be influenced by vested interests be they those of private sector employers, the public sector which is now according to Dominic Lawson run by ‘a kind of labour fifth column,’ or the trade unions.
This is the background to what, among many others, Tory MP Dominic Raab recognise to be the ‘assault on liberty’ undertaken by the Labour government during its reign from 1997 to 2010. Pervaded by discreet but ubiquitous, conspiratorially driven Fabian Marxist assumptions that international integration is a good thing because it will strengthen the left, the cross party Europhile faction, including Labour, has been happy to demolish ‘core’ British rights in order to transfer power to the EU state apparatus.
In 1997 the EU unveiled its ‘Corpus Juris’ project aimed at imposing an exclusively inquisitorial legal system across Europe. Resistance to this ambition, notably in the House of Lords, resulted in more piecemeal legal reforms aimed at the same goal. In 1998 the Blair government passed the Human Rights Act (HRA) upgrading the European Convention on Human Rights (ECHR) from being a treaty obligation to being inscribed in UK law. The Blairite argument has been that this would more than compensate for erosion of Britain’s ‘idiosyncratic’ right to trial by jury. Modern leftist human rights strategy following the post war Marxist volte face that the rights enumerated in the American Bill of Rights should no longer be flatly condemned as ‘bourgeois’ has been to increasingly overwhelm them by adding various economic, minority, racial, social, gender, migrant and ecological ‘rights’ to the rights agenda. This profusion of rights can then be interpreted in all manner of strangely contradictory, progressive ways often in open defiance of common sense by ‘judicial activism,’ more plainly known, as Nicolas Sarkozy has discovered, as an increasingly leftist infiltrated judiciary. The European Council held a special meeting in October 1999 in Tampere at which the Blair government agreed to the principle of equality of justice systems across the EU – that is to say, placing trial by jury on a par with juryless trial in other states. In 2003 the European Arrest Warrant (EAW) was created from this manoeuvre aimed again at imposing the inquisitorial system by removing all extradition safeguards against trials in juryless European states.
In 2001 the Auld commission set up by the Lord Chancellor Irvine published its report. It had been compiled so Irvine claimed because of the ‘extra force to the requirement of fairness’ that the 1998 Human Rights Act supposedly imposes on the courts. It is very precise concerning the single most problematic power which juries possess as a limitation upon the ambitions of the Europhile aristocracy and includes a specific rejection of the democratic safeguard against tyranny which jury trial provides. Auld’s proposal reads as if he were stating a clear preference for tyranny: “that the law should be declared, by statute if need be, that juries have no right to acquit defendants in defiance of the law or in disregard of the evidence...”
Thankfully this ambition has not yet been directly fulfilled. Nevertheless relentless efforts to sap and undermine the right to trial by jury have continued.
The 2002 white paper on criminal justice sought to remove the right to trial by jury in cases of serious fraud and to allow defendants the ‘right’ to be tried by judge alone in the Crown Court. Such provisions of the white paper were rejected but other autocratic measures including those with similar intent to weaken jury trial were incorporated into the Criminal Justice Act 2003. Magisterial sentencing powers were increased to 12 months; the right to jury trial in cases where jury tampering is ‘credibly’ alleged was abolished; the double jeopardy rule for serious crimes was abolished and much greater latitude allowed for the use of hearsay evidence. Witnesses used only to be able to testify about what they saw themselves, and so can be cross examined – but this safeguard is unknown in Europe and now is abolished in the UK also, such that witnesses can now testify about what others have seen, who may not necessarily be even found, leave alone cross examined. In 2005 the Court of Protection was set up under Labour’s Mental Capacity Act with powers to impose prison sentences in secret without the accused even being present. Entirely behind closed doors, it can order the vulnerable be removed from their families and handed over to the care of the state, or that a gravely-ill patient should no longer be given food or water by doctors. Astonishingly in one recent case a court ordered a forced caesarean birth and the taking into state care of the new born baby with the mother being drugged and not even aware what was happening until told after the event. Such methods are shockingly authoritarian by British standards but less so by those of Europe, where secrecy, autocracy and arbitrary imprisonment have been much more closely interwoven with the justice system quite literally for centuries. On the continent it has always been and remains quite possible for a ‘suspect’ to be held in prison for years before even being charged.
In 2006 the Fraud Act allowed a much broader definition for fraud, significantly strengthening prosecutorial powers in the pursuit of both criminals and political enemies alike. As stated, these above measures share the purpose of bringing UK law into closer correspondence with European law by subverting the safeguards against tyranny associated with trial by jury and upgrading the powers of the state prosecution to bring them into line with those exercised in the inquisitorial system.
Resistance
Since 2010 the Coalition government has to some extent halted or at least impeded the rate of EU integration by opting out of the EAW and other measures. This resistance to EU ambition is however being subverted by manoeuvres in Brussels and by Europhile tories and Liberal Democrats.
In 2011 Cameron set up the British Bill of Rights commission to try resolving Coalition differences on these issues. In March 2012 however negotiations were shown to have reached deadlock on the Commission when Dr Michael Pinto-Duschinsky, the chief advocate of defending British core rights, resigned, claiming he had been “secretly told by Tory Justice Secretary Ken Clarke and Lib Dem leader Nick Clegg to reach the conclusion that no change is needed to human rights law.”
Pinto-Duschinsky’s work threw light on the partisan, politically corrupt inclinations of the European Court of Human Rights (ECHR) most especially in its manner of appointments. Some of its judges have no professional legal experience of any kind or got their training from the former communist states. Pinto-Duschinsky described some as mere ‘cronies’ of the political factions which appointed them. He criticized the leftist political agenda that can be detected on the ECHR whereby freedom of the press has been lambasted as an ‘American fetish’ which European law can constrain by the right to privacy. Lord Hoffmann has similar misgivings about the conflict between ECHR Article 8 (Right to respect for private and family life) and Article 10 (Right to freedom of expression).
A brief and entertaining account of the leftist factional links between the Leveson inquiry, the pressure group “Hacked Off’ supposedly representing those offended by press excess and even the allegedly negligent Press Complaints Commission itself can be found in the chapter on what Rod Liddle calls the ‘faux left,’ i.e. the Gramscian left, in his recent book ‘Selfish Whining Monkeys.’
The European Constitution was fortunately rejected in Dutch and French referendums in 2005 but many of its component articles were later endorsed by the Lisbon Treaty ratified in 2009. The constitution stipulated that the EU ‘shall endeavour to ensure a high level of security by measures to prevent and combat crime, racism and xenophobia.’ Though criminalized by the EU constitution xenophobia is nowhere defined. As Torquil Dick-Erickson (reputedly the man most singularly responsible for blowing the whistle on the Corpus Juris project) has stated, this leaves the door open to the possibility that at some later date ‘criticising the EU itself and/or demanding the return of the right to national self determination could easily be held to be ‘xenophobic behaviour.’ Such concerns are by no means far fetched – at question time in the House of Commons on 18 June 2014 Bill Cash MP asked Cameron if he was aware that at a meeting of Chairmen of EU National Committees held in Athens the previous weekend an ‘attempt to treat Euroscepticism as equivalent to xenophobia and racism was defeated by the UK delegation with support from other delegates.’
The Justice and Security Act 2013 championed by the fairly fanatically Europhile Kenneth Clarke with its ‘closed material proceedings’ provisions which may be invoked on grounds of national security can provide the state with new and immense powers to arrest and try suspects without even allowing them to know either the identity of the witnesses for the prosecution or what the evidence being brought against them consists of. At first sight the Act appears as a sternly conservative reform aimed at bolstering the fight against terrorism. At the same time however the Act replicates the methods of the inquisitorial system in regard to arbitrary imprisonment and is best also seen as part and parcel of the Europhile ambition to marginalise core British rights.
Against the background of the aforementioned 2006 widened definition of fraud, in 2013 the European Commission proposed to create a European Public Prosecutor's Office (EPPO) which would have the power to investigate and prosecute those it suspects of committing fraud against the EU budget. This may amount to a backdoor method by which the UK will effectively be opted back into the EAW irrespective of Westminster decisions. The unpleasant fate that lies in store for Eurosceptics in this regard can be judged by the outcome of Blairite schemes regarding the electoral system.
Two main reforms illustrate the dubious character of Blair’s motives in this field: the introduction of unrestricted use of postal ballots in 2000 and the establishment of the supposedly non partisan Electoral Commission (EC). Their purpose and achievements were summed up by Nigel Farage on 18 July 2014. Against the background of the fact that the EC has been accused by the UK Parliamentary Ombudsman of negligence in failing to properly investigate a Liberal Democrat fraudster donor Farage claimed the EC has pursued UKIP ‘to the point of bankruptcy’ on some obscure charges regarding party funding. He alleged the EC has a ‘thinly concealed party political bent’ and needs to be closed down especially in light of its complete failure to address the growing problem of postal ballot fraud.
As can be seen, therefore, things are very much coming to a head in regard to Europhile schemes. Cameron’s recent undertaking this summer to reaffirm a commitment to establishing a British Bill of Rights may be nothing more than a gesture, and possibly even a fake gesture at that, given that his government is also publicly entertaining opting back into the EAW. In this context Cameron’s former Attorney General Dominic Grieve has declared such manoeuvres as tantamount to creating a ‘legal train wreck’ in regard to relations with the EU. Cameron’s Bill of Rights may accordingly come to nothing nothwithstanding the possibility that efforts to defend British core rights are greatly increased. EU plans to develop an EPP continue and with it the prospect that Europhile forces may soon be able to criminalise Euroscepticism out of legal existence by both fair and foul means.
Child Protection
There is little doubt therefore that European law and politics by comparison to UK law grants factions, including secret factions, more unaccountable power. This has been of benefit to paedophiles. Though some might argue that the cross border powers of the European authorities help them to catch paedophiles, the countervailing tendencies of Europhile policy which favour unaccountable practices outweigh such considerations. Paedophile factions are by nature secretive, disloyal to normal society, criminally violent, and vulnerable to blackmail, most especially by totalitarian powers. Global in extent, there is evidence of paedophile influence among the highest echelons of the political and security establishment in at least several countries. Paedophiles provide powerful networks of clandestine influence which approach those of the intelligence services and which, it has been feared explicitly in Belgium, may be used to destabilise the state. In this country there are currently ongoing investigations into such influence among the judiciary, the privy council, the cabinet and the opposition leadership, not to mention the state funded media, the BBC.
The systemic affinity between Europhile leftist policy and paedophile methods extends beyond the purely organisational aspects of politics and law. There are characteristics of the left which render it particularly susceptible to toleration for paedophilia. Liberalism has tended to favour the view that permissiveness is a good thing, and that sexual preferences should not be subject to legal sanction. For centuries it has been the left which has promoted divorce, extramarital sex and homosexuality. As the scandal surrounding the Paedophile Information Exchange (PIE) has demonstrated, this has provided opportunities for paedophiles to present themselves as equal to other ‘oppressed minorities’ and to get leftist backing for such a project. Top leaders of the Labour Party – including Harriet Harman, Patricia Hewitt and Jack Dromey - have all been implicated in the activities of PIE.
Moreover, left support for organisations such as PIE is international in character, such as that for the North American Man Boy Love Association (NAMBLA) in the USA. NAMBLA similarly gained support from the American Democratic Party at leadership level. In 2009 fifty three members of the US Congress signed a letter organized by Iowa congressman Steve King demanding that President Obama remove his Assistant Deputy Secretary for Education Kevin Jennings, the so-called ‘tsar’ of the ‘safe and drug free’ schools policy. Critics charged that Jennings had failed in his duty to report paedophile crime and had stated he ‘admired’ the work of the known paedophile Harry Hays, a longstanding member of the Communist Party USA and supporter of the North American Man-Boy Love Association. Jennings disputed some of these allegations but lost sympathy among conservative republicans by writing the foreword to William J. Letts IV and James T. Sears‘ book ‘Queering Elementary Education: Advancing the Dialogue about Sexualities and Schooling.’
A further characteristic of leftist ideology which renders it vulnerable to toleration of paedophilia has been its support for cultural relativism, just as has been its support for permissiveness. The systemic affinity between cultural relativism and toleration for child sex abuse extends to foreign and defence policy, where credence has been given to strategems of collusion with paedophilia: “A recent Wall Street Journal article described the U.S. Army’s final-draft handbook, which indoctrinates our military personnel heading to Afghanistan in how to be sensitive to and accept Muslim and Afghan 7th-century customs and values — or possibly be killed by our Afghan partners. Unbelievable. This is being done to prevent the so-called “green-on-blue” attacks, which have cost 63 American lives this year. According to the Army’s Combined Arms Center at Ft. Leavenworth, Kan., it is our military’s ignorance and lack of empathy for Muslim and Afghan cultural norms that is the basic cause for our Afghan military partners to react violently and kill our troops. For example, if our military personnel hear or witness an Afghan soldier sodomizing a young boy, the handbook tells U.S. service members to voice no objection, accept it or ignore it, or they could be killed......”
The left Gramscian strategy of infiltration in the legal establishment, the media, the academic world and even primary school education has a colluding relation to the Europhile cause and possibly paedophilia. As Rod Liddle has observed, the ‘faux left’ networks extend from the organisation ‘Liberty’ (to which PIE had affiliated before its name change from NCCL) through the BBC to the Leveson inquiry and ‘Common Purpose,’ probably the most influential recruiting forum used by Europhiles. Such connections could even be traced to the organisation ‘Hacked Off’” including those ‘who were pissed off that newspapers kept trying to find out if they were up to their armpits in gak or fiddled with kiddies...’ Labour party member Ron Liddle’s dissent from the ‘faux left’ is of some significance because it demonstrates that though the cabal of Gramscian, Trotskyite and Fabian Marxist trends comprise the dominant ideology in the Labour movement it has not yet extinguished other influential viewpoints.
An illustration of the affinities that exist between Europhile extremism and paedophilia can be seen in recent EU legislation regarding the so called ‘right to be forgotten’ whereby Google must delete information not to the liking of the person it refers to. The greatest beneficiaries of such developments next to totalitarian ‘agents of influence’ in this respect are paedophiles. The leftist preference for privacy rights over those of freedom of expression has been manifested in several areas and, in tandem with the abolition of jury trial in employment law, has undermined the rights of whistleblowers who are likely to be threatened with unfair dismissal. This has an especially negative outcome in the education system where leftist strategies of factional infiltration for political and/or paedophile purposes comprise a toxic combination of ideological and criminally subversive forces. Leftists in controlling influence at both managerial and union levels in the education system has come to be euphemistically titled ‘the blob.’ Under this regime there have been cases of attempted or threatened legal action against primary school employees for whistleblowing child protection matters in which it has been demonstrated that the privacy article of the European Convention on Human Rights (ECHR) can be used to suppress information retrieved by means of Google.
In one South London case the suspects were so overbearingly confident of victory in invoking the privacy article of the European Convention in a juryless tribunal that they tried to prevent voluntary withdrawal of grievance proceedings for unfair dismissal by the employee so that the suspect Headteacher and his allies could get legal sanction over any future speech rights used concerning the child protection allegations against them. What pandora’s box of tyrannical measures this may have opened in regard to later secret court proceedings against freedom of expression on this matter cannot be known. To our knowledge public sector unions have to date still failed to alert teachers to the fact that their public sector employers can now prevent withdrawal of grievance proceedings if other public sector decision makers in the tribunal system deem it to be ‘in the public interest.’
It can be seen, therefore, that the importance of preserving traditional British rights which have their origin in Magna Carta has relevance across the whole spectrum of justice and law enforcement ranging from freedom of expression to trade union rights and matters of child protection.
CDRSB, 27 Old Gloucester Street, London, WC1N 3XX
Website: www.sortition.com
Tel: +44 (0)7795 464677
© Dr. Keith Nilsen