I was interested to read political columnist Charlie Elphick refer to the Magna Carta in his objection to trials without juries (Juryless trials are not the answer, August). I have also heard both the Government and the Tories use the great charter to justify jury trials, with Justice Minister Sarah Sackman referring to the Magna Carta as a reason why jury trials will remain the ‘cornerstone’ of our justice system.
However, the Magna Carta never mentions trial by jury and certainly does not enshrine it in law. This is a myth. Jury trial as we now see it came later. The Magna Carta was a royal charter of rights granted by King John of England on June 15, 1215, under the threat of civil war.
It followed the rejection of unequal and tyrannical royal power by a group of rebellious English Barons. It was, in fact, a peace treaty that prescribed fairness across a range of areas, including customs, trading standards, tax and inheritance, and ‘liberties’, covering the freedom of the English church, the payment of fines (usually corn or chattels) and the rule of law – asserting the novel idea for its time that the law should be applied fairly.
The closest that the Magna Carta came to mentioning jury trials was in clause 3a, translated from Latin as saying ‘…nor will we go against such a man, or send against him, save by lawful judgement of his peers or by the law of the land’. The word ‘peers’ should not be interpreted as being your humble next-door neighbour who might be called for jury service. It means a non-royal.
The Magna Carta supported judicial oversight by ‘justices’ (judges) who were our peers, not noble elites as was previously the case. When the Magna Carta referred to ‘the lawful judgement of his peers’, it meant by judges as opposed to the royals. There was no mention of juries. However, it is broadly accepted that the Magna Carta was important in the later evolution of the modern jury trial we now see.
At the time, trials were often an inhumane and barbaric ritual of ‘trial by ordeal’ which could have involved the torture of the accused, any witnesses, and sometimes the accuser too. If I were a current or former government minister, I would be very hesitant about referring to the Magna Carta because in clause 40 it was clear in saying: “To no one will we deny or delay justice.”
Sixty percent of rape complainants drop out of the trial process because of delays. This is an atrocity. The Government has no right to use this ancient text when it serves it, and then completely disregard it when it doesn’t. Beyond sentimental reflection, any reference to the Magna Carta needs to be dropped when it comes to reform, with a strong and sustained focus instead placed on Article 6 of the European Convention on Human Rights – the right to a fair trial.
It doesn’t seem fair that we have a current jury model that gives its most difficult cases, between 3 and 10 per cent, to our least competent group of people to decide on a safe verdict. Despite what ‘public instincts’ might tell us, there is no compelling empirical evidence that jury trials actually work.
Jury research is banned. In effect, we rely on a crucial evidence-focused model of justice when there is no evidence that it actually works. How can that prove anything beyond ‘reasonable doubt’? Worse than that, we could develop a true and efficient model where guilt or innocence could be clearly determined through one robust and scientific and technical evaluation of the evidence in a way that would leave little doubt – but we choose not to because of some outdated sentimental nonsense about an old treaty and ‘human instinct’. Is that fair?
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