There is a certain concomitance, in the week that we commemorated the 800th anniversary of King John setting his seal upon Magna Carta to secure certain rights and liberties for the free men of this kingdom, that we also celebrate the 200th anniversary of the defeat of Napoleon in the Battle of Waterloo. On 18th June 1815, the British infantry under Wellington finally ended the imperial ambitions of a little Corsican ‘Consul for life’, whose dream had been to unite all Europe under one emperor (ie himself), and forge a constitution to codify certain collective principles of governance in his ever-expanding autocracy.
We have incrementally abrogated almost every clause of Magna Carta – which has been no bad thing for Jews and the Welsh – but only three ‘foundational liberties’ have withstood persistent incursions of parliamentary omnipotence, and even those may be seen to have been eroded. Take the preeminent Clause 39: “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.” The contemporary political instinct has been to curtail this right: remember the The Fraud (Trials Without a Jury) Bill 2007? The current situation is helpfully explained by the Crown Prosecution Service:
Sections 44 to 50 of Part 7 of the Criminal Justice Act (CJA) 2003, came into force on 24 July 2006, and provide for non-jury trial in cases where there is danger of jury tampering or where jury tampering has taken place.
Although section 43 (non jury trials for cases of serious and complex fraud) has been repealed by section 113 Protection of Freedoms Act 2012, nothing prevents a non jury trial in such cases where the conditions in section 44 or section 46 are satisfied.
Clear? Not really. You have a right to trial by your peers except where it is deemed imprudent to allow. It is nothing new: ‘Diplock’ courts were introduced in Northern Ireland in 1973 for certain “scheduled offences” relating to terrorism. The right to trial by jury was suspended, and the court consisted of a single judge. And now we have closed courts and secret evidence – deployed where the state determines a ‘risk to national security’, or matters of child custody are decided to ‘protect privacy’, or to shield the state from ’embarrassment’. Liberty explains:
On May 28th 2012 the Government introduced Justice and Security Bill in the House of Lords. Announced in the wake of high-profile and embarrassing litigation and media investigations which revealed the UK Government’s shameful involvement in extraordinary rendition, torture and indefinite detention without trial, the Bill seeks to limit public scrutiny of the Government and our security services and public bodies and avoid further embarrassment by sweeping aside a centuries-old justice system in favour of one that is deeply flawed and unfair.
And as for no detention without trial, well, one word: Guantanamo. What kind of hell must it be to be incarcerated without charge, without access to family or lawyers, and without any indication of a release date, if it ever comes at all? And then there’s the European Arrest Warrant..
It is now possible to be extradited to another EU country, incarcerated in a foreign prison, refused an early appearance in court and required to prove that you have not committed the offence of which you stand accused (just ask Ben Herdman). The English system of Common Law has been subsumed to the Napoleonic system.
Corpus Juris brought an end to the presumption of innocence and the ancient rights of trial by jury and habeas corpus: unlike the UK, other EU countries are not obliged to charge you or bring you to court within 48 hours of arrest: indeed, you may now apparently be detained indefinitely at the foreign prince’s pleasure. When these foreign potentates demand your extradition by invoking the European Arrest Warrant, HM Government is powerless to resist.
The fundamental rights of the free men of this kingdom – enshrined in Magna Carta – have been usurped by a Napoleonic system in which the state has become the ultimate arbiter of what privileges (‘rights’) are permitted and what liberties are protected. The state has been made omnipotent and has become both judge and jury, responsible for prosecution and retribution. And anyone who presumes to oppose any of this is labeled ‘extremist’, which in turn is fast becoming justification for summary arrest and incarceration, despite the term not being defined in law. Is it really ‘extremist’ to insist that there is no salvation except through Jesus? As the Rev’d Dr Mike Ovey asks: “Is a police officer going to listen to me saying that Jesus is the only way in a Muslim part of the East End?” One man’s extremist is another man’s faithful, passionate, pious and sincere adherent.
Magna Carta has become historic artifact; our notions of liberty and justice abjured by those we have elected to sustain or traditions of law and guard our customs. 200 years ago today, Napoleon the man was defeated in the Battle of Waterloo. 200 years on – an ever-expanding European Legal Area, a European Public Prosecutor and a European Criminal Code – Napoleon the Code is supreme.