The right to a fair trial: part one

Our legal history stretches back well over eight centuries, to long before Magna Carta (1215). But however long this history may be, it is not one of which we can be universally proud, and the freedoms which we enjoy today have had to be hard won over the centuries. These are now encapsulated in the Human Rights Act 1998, which came into force in 2000, and which incorporates the European Convention on Human Rights. They include, amongst others: the right to life, freedom from torture or being subjected to inhuman or degrading treatment or punishment, freedom from slavery, and the rights to a fair trial, free speech (freedom of expression) and respect for private and family life. But these freedoms have not suddenly emerged from a twentieth century statute. Our history is peopled by many remarkable characters, and includes the stories of very many fascinating cases, some of which have created and developed freedoms over the ages.

For hundreds of years jury trials bore little resemblance to those we hold today, for when it came to matters of monarch and state against the citizen, juries did little more than rubber stamp the guilty verdicts which were demanded of them. Nevertheless, as the years went by, juries trying criminal cases did become increasingly courageous and independent. They may not have realised it at the time, but by bravely standing up against unfair prosecutions and oppressive judges they had a vitally important effect on the development of our liberties. One of the most important of these cases was Bushell’s Case:

In 1670, William Penn and William Mead were tried for preaching to an unlawful assembly. They were two devout Christians and peace-loving men who belonged to the Quaker sect. After attending a service in a Friends Meeting House they were accused of breaking a law which made it a crime to attend ‘conspiratorial gatherings’.

The trial was a disgrace and it began with a farce. The two men had lost their hats when they were arrested. The Lord Mayor, who was present in court, ordered hats to be put on their heads. Then the judge, who was the Recorder of London, fined each of them for disrespect to the court by wearing them! When William Penn demanded to know what he had done wrong, he was ordered to be locked away in an area at the back of the court.

The evidence against Penn and Mead was worthless, and the judge’s summing-up extremely unfair. When the jury refused to find the two men guilty they too were threatened and insulted. They were ordered to be locked up without food and drink; and when on the third day they found the men not guilty, they were all fined.

Eight of the jurors paid their fines, but four, led by Edward Bushell, refused to pay, and spent months in prison. At last their case came before Chief Justice Vaughan, who ruled that juries had the right to ‘give their verdict according to their convictions’, and no jury could ever be punished for its verdict.

Only eighteen years later—a tiny fraction of time in our legal history—another jury, put its newfound power to such use that it helped to bring down an unpopular king, and led to a landmark reform in UK constitutional law. This was in the trial of The Seven Bishops.

James II was a tyrannical monarch, bent on overthrowing the constitution. In 1688, he had seven bishops, including the Archbishop of Canterbury, prosecuted for ‘seditious libel’—the offence of publishing words exciting disaffection against the Crown.  The ‘crime’ which the bishops committed was to petition him against the forced reading in church of a declaration. James said the petition itself was seditious libel. He had the bishops imprisoned in the Tower. By this time he was so deeply unpopular with Parliament, the Church, and the people that when at last they came to trial, amidst great public rejoicing, the jury found the bishops not guilty.

A plot to oust James was already under way, but the jury’s verdict was taken as the signal the plotters needed. On the very day of the verdict (30 June) a written ‘invitation’ was sent to his son-in-law, William of Orange (then part of the Netherlands), to ‘come to England to redress grievances’—a polite way of inviting rebellion. William accepted, and on 5 November he landed with an English and Dutch army of 15,000 men. They quickly gained a huge following. James fled the country. Parliament declared the throne vacant, and William and Mary (James’s daughter) were proclaimed King and Queen. Soon afterwards, major constitutional freedoms were guaranteed in the Bill of Rights 1689. This Bill became another foundation of our liberties because amongst its provisions limiting the power of the Monarch, its ‘human rights’ enactments included: that the election of members of Parliament should be free, laws should not be dispensed with or suspended without the consent of Parliament, the right to petition the Monarch should be without fear of retribution, and excessive bail should not be required, nor excessive fines imposed.

The second part of this article was published 10 November, 2015.

Featured image credit: The Seven Bishops Committed to the Tower in 1688, by Pieter Schenck. Public domain via Wikimedia Commons.