Newsletter of the Campaign to Defend the Right to a Secret Ballot

January 2015 Issue No. 9
ISSN 1756-4964 (Print)

Trial by Jury and its Enemies
(Abridged Extract)

This year marks the 800th anniversary of Magna Carta, the agreement between King John and his opponents which guaranteed fundamental rights in this country, including the right to trial by jury. As shown here, trial by jury comprises the foundation upon which freedom of speech and democratic government have been developed. Yet this right is now open to threat by the European Union. In stark contrast to Britain there is not, and never has been since 1215, any established right to trial by jury in Europe.

This pamphlet aims to alert the public to the decisive importance of trial by jury and throw light on the tactics of those enemies who wish to subvert it in the cause of European integration. The primary purpose of trial by jury, as John Adams, the second President of the USA made clear, is not to prosecute criminals but to protect the people against government tyranny. Judges and magistrates are selected by the state by less than transparent methods and owe their allegiance to their paymasters and the particular political factions with which they are more often than not associated. Jurors are comprised of ordinary voters chosen from the electoral register by means of random selection, a method which self evidently helps to constrain the influence of secret factions. As readers will see, once these facts are understood, the true nature of all those who seek to undermine the right to trial by jury is revealed, including the authors of the EU secretive ‘corpus juris’ project and the Auld report on justice commissioned by the Blair regime.

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 unless caught in the act of committing a crime nobody could be tried until they had been formally accused by their victim, multiple witnesses, or by an early type of grand jury. Bearing false witness could result in harsh punishment, so victims were often reluctant to testify. Due to such difficulties trial by ordeal or combat were accepted as means to ascertain evidence of guilt or innocence. In 1198 Pope Innocent 3rd initiated a new inquisitional procedure which allowed a 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 enforced inquisitional law 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 in Europe more easily supplanted trial by jury. In the 17th and 18th centuries the full constitutional significance of jury trial was established as the cornerstone of democratic government. The refusal of a jury even when imprisoned by the judge to convict the Quaker William Penn 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 a right which government can not take away no matter what ‘laws’ it chooses to create. Similarly the Magna Carta provisions against arbitrary imprisonment became incorporated in the 1679 Act of Habeas Corpus.

Jurors refused to convict 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. 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 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.

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 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 explicitly upheld jury rights both by law and in their constitutions. In 2014 Alaska debated 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. This is the background to what Tory MP Dominic Raab has termed the ‘assault on liberty’ undertaken by the 1997 to 2010 Labour government. 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 a juryless 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. In 1999 the European Council held a special meeting 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.

The Blair regime established the Auld commission in order, so the Lord Chancellor Irvine claimed, to add ‘extra force to the requirement of fairness’ that the 1998 Human Rights Act supposedly imposes on the courts. Its 2001 report includes a very precise and 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. These provisions 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 draconian powers including the power to impose prison sentences in secret without the accused even being present. 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.

From 2010 to 2012 the Coalition government impeded the rate of EU integration by opting out of the EAW and other measures. By 2012 however this resistance to EU ambition had been subverted 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.

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
th 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.’

In 2013 the European Commission set out to create a European Public Prosecutor's Office (EPPO). It will have powers to prosecute any EU citizen in any country.

As can be seen, therefore, things are very much coming to a head in regard to Europhile schemes. In summer 2014 Cameron reaffirmed his commitment to establishing a British Bill of Rights. This however may be nothing more than a gesture and possibly even a fake gesture at that, given that his government has since opted 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. Meanwhile EU plans to develop an EPP continue and with it the prospect that Europhile forces may ultimately be able to criminalise Euroscepticism out of lawful existence.

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© Dr. Keith Nilsen