THE COMMON LAW AND FAIR TRIAL

Sir John Laws, May 2016

  1. I would like to begin with two stories. The first is told by Sir William Blackstone in the 18th century, in his great work, Commentaries on the Laws of England. The second was told in The Times newspaper, some years ago now.
  2. Here is the first. One day in the year 1708 the Russian Ambassador to the Court of St James here on London was riding in his carriage in a London street. The carriage was stopped; the Ambassador was pulled out of it, and placed under arrest for a debt of £50 said to have been incurred by him and unpaid. The matter swiftly came to the attention of the Czar of Russia, who happened to be Peter the Great. He was outraged at this gross affront to his Ambassador’s diplomatic privilege. He at once sent envoys to the British sovereign, Queen Anne, demanding that the perpetrators of the outrage should be instantly put to death. Her late Majesty replied in emollient terms. She had every sympathy with His Majesty’s concerns, but desired him to understand that she had no power to impose penalties on the least of her subjects save according to the established law of the land. Peter the Great was astonished at the very idea that the law was above the Queen.
  3. The second story was told in The Times by David Pannick QC – Lord Pannick, a distinguished senior practitioner at the English Bar and member of the House of Lords. Pannick had recently met Gabriel Bach, who had been a Justice of the Israeli Supreme Court. Many years before, Bach had been the deputy prosecutor of Adolf Eichmann at his trial in Jerusalem in 1961 for war crimes and crimes against humanity. Eichmann had been right-hand man to SS Obergruppenfuhrer Reinhard Heydrich, a principal architect of the holocaust. He – Eichmann – had been captured in Argentina in 1960 and returned to Israel for trial. In the course of preparing the case for the prosecution Bach came across some documents which might be thought helpful to the defence case. Bach handed over the documents to Eichmann’s lawyers. Eichmann was astonished; but Bach had studied law here, and as David Pannick says, “Bach’s training at Lincoln’s Inn had taught him that the rule of law so required”.
  4. These two stories are highly characteristic of the common law in two respects. The story of Queen Anne and Peter the Great illustrates the truth that everyone is under the law and has the advantage of the law: no one may be subjected to penalty save by due process of law. The story of Eichmann’s prosecutor tellsus something of what the common law’s commitment to due process means: not just a trial, but a fair trial – one in which the prosecutor, not only the judge, is obliged to see that the defendant is not deprived of justice.
  5. The first of these principles – the truth that everyone is under the law – is, I suppose, no more than an exemplification of the Rule of Law itself; and although a passing knowledge of the history of legal systems tells us that the principle has time and again been violated, mostly in undemocratic States, the Rule of Law is a fixed cornerstone now of any civilized regime. In England the Magna Carta of 1215 pointed the way to the supremacy of the law over the power of government. In the same century Henry Bracton, author of a great mediaeval work, De Legibus et Consuetudinibus Angliae, pronounced thatRex non debet esse sub homine, sed sub Deo et lege – “The king must not be under man but under God and under the law”. In 1470 Sir John Fortescue in De Laudibus Legum Angliae[1]stated that “A King of England cannot, at his pleasure, make any alteration in the laws of the land, for the nature of his government is not only regal but political”. In 1607 King James I had said it was treason to affirm that the King should be under the law; but Sir Edward Coke in the Case of Proclamations[2] threw back at him what Bracton had said nearly 400 years earlier: “The king must be under God and the law”. The writ of Habeas Corpus was developed so as to become, certainly by Coke’s time in the 17th century, the law’s principal protection against unlawful detention. In the same century the supremacy of the law was confirmed by the Petition of Right of 1628. The Rule of Law has a long history in England.
  6. But the very value of the Rule of Law, and the rule that everyone is under the law, depends on the quality of the law as it is practised day to day. For this, fair procedure is critical, as the story of Eichmann’s prosecutor tells us. Without fair procedure there can be no fair trial. And a vital feature of the quality of the law – its necessary integrity – is the impartiality and independence of the judges. This brings me to another story, one told by Lord Bingham in Chapter 9 of his book The Rule of Law[3], quoting a biography of President Eisenhower. The story dates from 1954, when Eisenhower as in office, and concerns the landmark decision of Brown v Board of Education[4], in which the United States Supreme Court held that racial segregation in public schools was unconstitutional:

“He [Eisenhower] invited Warren [Earl Warren, the Chief Justice] to the White House for a stag dinner, along with Brownell [the Attorney General of the United States], John W Davis, who was counsel for the segregationists, and a number of other lawyers. Eisenhower had Davis sit near Warren, who in turn was on the President’s right hand. During dinner Eisenhower – according to Warren – ‘went to considerable lengths to tell me what a great man Davis was’. And as the guests were filing out of the dining room, Eisenhower took Warren by the arm and said of the southerners, ‘These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown negroes.’”

Warren, however, was apparently unmoved and gave judgment in favour of Brown and therefore of reform. The point of the story, of course, is not to underline President Eisenhower’s racism (shocking as it seems, even 60 years later), but to emphasise the dangers of any attempt – especially any political attempt – to influence the course of justice by seeking to put pressure on the judge outside the courtroom.

  1. It is not only the judge who must be free from illegitimate pressures. In the UK trial by jury is the normal mode of trial for serious criminal cases. This is a signal feature of the common law. It means that the decision of such cases is out of the hands of any State functionary. But it is possible, of course, for pressures to be put on juries. A famous attempt to do so was made in 1670, at the trial of two Quakers, William Penn and William Mead, on a charge of unlawful assembly. They had been arrested in August 1670 for violating the Conventicle Act, which forbade religious assemblies of more than five people outside the auspices of the Church of England. The jury at their trial found the two “guilty of speaking in Gracechurch Street” but refused to add “to an unlawful assembly”. The infuriated judge, who I think was the Lord Mayor of London, charged the jury that they “shall not be dismissed until we have a verdict that the court will accept”. The jury modified the verdict to “guilty of speaking to an assembly in Gracechurch Street” –but not an unlawful assembly. The judge had them locked up overnight without food, water, fire or even a chamber pot. Penn protested. The judge ordered him bound and gagged (it is not known whether this order was carried out). Finally, after a two-day fast, the jury returned a not guilty verdict. The judge fined the jury for contempt of court for returning a verdict contrary to their own findings of fact, and removed them to prison until the fine was paid. Penn protested that this violated the Magna Carta. He was forcibly removed from the court.
  2. Edward Bushel, a member of the jury, refused to pay the fine, and petitioned the Court of Common Pleas for a writ of habeas corpus. Sir John Vaughan, Chief Justice of the Court of Common Pleas, ruled[5] that a jury could not be punished simply on account of the verdict it returned, though individual jurors could still be punished if it could be demonstrated that they had acted improperly.
  3. Bushel’s case – the trial of Penn and Mead – stands as a foundation stone if the jury’s right and duty to return a wholly independent verdict. As I have said jury trial is a signal feature of the common law’s criminal jurisdiction. It means that the decision of such cases is out of the hands of any State functionary. But I think the institution of the jury adds another value. It is axiomatic in the common law that a defendant is presumed to be innocent until he is proved guilty beyond a reasonable doubt. This rule applies, as I understand it, in civilian systems as well. But because in England the judge has to direct the jury about the burden and standard of proof, and our adversarial system of justice means that the prosecutor has to present the case against the defendant at arm’s length, so to speak, from the decision-maker,the application of the burden and standard of proof is open to be testedby what is said in court in public. And it is tested, very rigorously, by the Criminal Division of the Court of Appeal. If there were no jury, the judge would be judge both of law and fact; he would, so to speak, no doubt direct himself that the prosecution must prove the case beyond a reasonable doubt; but it would be a private or internal process. In the system we have, the minds of the members of the jury are surely concentrated by the public and formal direction of the judge as to the burden and standard of proof.
  4. However I would not wish to give the impression that ever since the trial of Penn and Mead in 1670the procedures of the criminal law in Englandhave displayed nothing but an unblemished perfection. Far from it. There has been a long and in some respects painful evolution. Let me cite this short passage from Lord Bingham’s The Rule of Law:

“It was only in 1836, after failures in 1821, 1824, 1826 and 1834, that a measure was introduced granting defence counsel (if the accused was lucky enough to be represented) the right to address the jury on his behalf. So the prosecutor could tell the jury why the defendant was guilty, but there was no advocate to say why he was not… Not until just over a century ago was the defendant entitled to give evidence at his own trial. For the first thirty years of the twentieth century attempts to provide legal assistance for criminal defendants who could not afford it were largely frustrated by official hostility and the obstructiveness of magistrates and judges.”

  1. So there have been grave deficiencies. It is interesting, however, that many would say that that same period – the first thirty years or so of the last century – was a golden age: the golden age of dramatic advocacy in the English criminal courts. Great advocates such as Sir Edward Marshall Hall QC were the celebrities of the day. Their theatrical style is not seen in the modern era; but the trials for serious crime, often conducted at the Central Criminal Court – the Old Bailey – in which they took part in that period drew enormous crowds to the public galleries. A biography of Sir Edward Marshall Hall published in the 1960s[6]conveys the atmosphere:

“The day-to-day course of these forensic battles was followed with breathless interest. Press reports were snatched from bawling newsboys, heads wagged over the latest skirmish in a cross-examination and bets were laid on the outcome of the case. Intricate points were argued as fiercely in clubs and pubs as they were in court. There was public rejoicing when the verdict was a popular one, angry demonstrations when it was not. The closing speeches for the prosecution and defence, with their emotional exordiums and thundering perorations, were read and quoted everywhere.”

  1. Those days are long gone; the barristers’ “thundering perorations” would, I think, be mocked today. But they were a vivid example of an important truth about common law trials: the power that drives the trial’s result – guilty or not guilty – is not the power of the State: not any power of government. Sometime it may be the meretricious power of the advocate’s speech; prejudices in the minds of the jurors no doubt sometimes play their part; the jury’s sense of what is fair and unfair will sometimes drive the result, whatever the law, in all its strictness, has to say. And this is as true today as it ever was. There are cases where the jury thinks the case for the Crown is unfair or oppressive, and will acquit the defendant for that reason.
  2. So it is a cardinal rule of the English common law that trials are conducted under no shadow of governmental power. Their decision-makers are randomly chosen members of the public;and they are conducted according to the objective criminal law. Perhaps that is no more than one is entitled to expect. But it is at the heart of the Rule of Law, and importance puts me in mind of another story.
  3. During the Second World War a man called William Joyce, nicknamed Lord Haw-Haw, broadcast pro-Nazi propaganda on the radio from Germany into Britain. The propaganda was sometimes accurate; the broadcasts achieved very wide currency; they were calculated to undermine the morale of the British people. Hitler awarded the Cross of War Merit 1st Class to Joyce in 1944. He was brought back from Europe to England in 1945 and in September of that year he was tried at the Old Bailey on a charge of high treason, contrary to the Treason Act 1351. He was convicted and sentenced to death, which was the only available penalty. His appeal to the Court of Criminal Appeal was dismissed on 7 November 1945. He appealed to the House of Lords, with a certificate from the Attorney Generalwhich stated that thecase involved a point of law of exceptional public importance. At the end of the hearing in December 1945 the House of Lords announced that the appeal was dismissed. Joyce was hanged in January 1946. Their Lordships gave their reasons on 1 February 1946.
  4. Joyce was born in the USA and was a natural born American citizen. But he came to England and obtained a British passport, which was renewed twice. His offending broadcasts were all from Germany. The question in the case was, as the Lord Chancellor, Lord Jowitt, put it, “whether an alien who has been resident within the realm can be held guilty and convicted in this country for high treason in respect of acts committed by him outside the realm”.
  5. Joyce’s case is a signal example of the Rule of Lawat work in the context of criminal process. His broadcasts were notorious. They were full of twisted propaganda. But the legal debate was dispassionate, careful and scholarly. Opening the case at the Old Bailey the Attorney General urged the jury to put any feelings of dislike and detestation out of their minds, and “to try this man according to our law and upon the evidence alone”. In the course of argument legal authority going back to the early 17th century was referred to. There was much discussion of a resolution of the judges made in 1707. Much other learning was relied on. The decision of the House of Lords was by a majority only: Lord Porter would have allowed Joyce’s appeal.
  6. Some have thought that Joyce’s case was wrongly decided. Whether that is right or not, it is a striking example of the common law at work in extraordinary times, its robust independence not merely unchallenged but, rightly, taken for granted.
  7. Now, the common law faces new challenges. The threats posed by religious and political extremists tempt governments to give increasing weight to the pressure of State security, sometimes at the expense of the imperative of judicial due process. What sanctions are justified against dangerous supporters of terrorism who, however, cannot be brought to trial for want of evidence that can be deployed to support a criminal prosecution? Detention without trial is, as Sir Winston Churchill said, “in the highest degree odious”. Lesser forms of restraint without trial may also affront the value of due process. But State security is the duty of government: perhaps its first duty. Even so, no solution may be allowed to undermine the Rule of Law.
  8. There are other challenges too. Criminal justice statutes have imposed minimum sentences in some criminal cases, undermining (so it is sometimes alleged) the authority and autonomy of sentencing judges. Prison conditions may constrain sentencing options. There have been controversies over female Muslim witnesses wearing the niqab in court. There have been drastic cuts in legal aid funding for professional representation for the defence in criminal cases. There has been criticism of the police for their conduct of historic sex abuse investigations. More broadly, what are called Henry VIII clauses – a provision in an Act of Parliament allowing a Minister of the government himself to amend the statute – are far too frequently enacted.
  9. But above the rancour and asperity of all these issues we are apt to think that the common law sits in a kind of tranquil splendor. It is not always so. Perhaps we should remember another, final story, a moment in England’s history where, at a criminal trial, the Rule of Law was defeated by political revolution.
  10. In the afternoon of Saturday 20 January 1649 King Charles I went before the Commissioners assembled to conduct his trial in Westminster Hall. Lord President Bradshaw sat in the Chair. John Cook of Gray’s Inn had drafted the charges. It was he who read the accusation[7]: “I do accuse Charles Stuart here present, of high treason and high misdemeanours, and I do, in the name of the Commons of England, desire the charge may be read unto him”. So the particulars were read out. Bradshaw called on the King to reply. Charles I said:

“I would know by what power I am called hither... I would know by what authority, I mean lawful. There are many unlawful authorities in the world…”