Further Thoughts On The Rulings of Judges of Our High Court and Senior Counsel
By the interaction of leading Crown Counsel and the presiding Judge the essence of Justice is distilled in our murder trials. The Jury will not be dissuaded against that force of law as the history of our great trials teaches us.
The pivotal matter is the meaning of the rulings of our English & Welsh High Court Judges over the ages, always remembering our modern Crown Court and its Judges are considered part of the High Court by virtue of those statutes creating the Crown Court in the 1970’s. The Crown Court now tries all murder cases. The essence of my case in the 27th March 2015 essay: “Quashing Conviction” is that the Rules governing trials in our Crown Courts are procedural and evidential but the mode of trial in the Crown Court for murder is distinct from those Rules and is established under separate more esteemed authority.
No Judge may dispense with trial by Jury for an indictable only offence such as murder. Thus trial by Jury for murder is not a mere Rule of Court but an historic practice and privilege going back to the Magna Carta eight hundred years ago. The Bill of Rights in the Glorious Revolution of 1689 reinforced that freedom under our Rule of Law. By contrast a purely summary offence such as causing alarm and distress under the Public Order Act 1986 may only be tried in the lowest Criminal Court by the statutes governing the powers of Lay Justices and District Judges (paid lawyers) in that Magistrates Court.
3. Further considerations on mode of trial.
I posed the question in my 27th March 2015 paper:
“Is our Country to be ruled by obscurantism or the noble virtue of punishing those who take life under the present Rules?”
What did I mean? All the Rules of the Crown Court: Judge made and enacted by Parliament are well known regarding grant of bail to Defendants discharge or his detention by determinate or indeterminate sentence. We still have this priceless virtue from arraignment to conviction in criminal procedure for murder. Yet I argue this virtue will perish if we do not graft on the modern mode of trial by Judge alone with the Death sentence to follow for murder most foul as Denning once believed - the famous Judge of our High Court in the 20th Century. Juries sitting with Judges have delivered verdicts in accordance with our law since ages past, and shown their strength of purpose and courage.
I say the electronic communication vogue has made the continuation of trial by Jury very difficult to sustain in the worst cases as things stand. Is trial by Judge with a Jury tenable any longer, however attractive it may appear in the splendour of our English & Welsh constitution? It has become part of the “Crown Jewels” to remain guarded in the Tower, but no longer worn as of old on the Monarch’s head to signify Royal power, majesty and absolutism. Such seriously contested murder matters cannot properly be managed or controlled by the Trial Judge in the modern day, and as a result the confidence to prosecute also drains away. Juries discharged due to an inability to agree and deliver a verdict are failed Juries and failed justice. Thus I say these Juries have become hidebound. Moreover Juries have in some cases lost their impetus, incision and solemnity. I am bound to say Juries no longer deserve their place in our murder trials, but through no fault of those jurors. The trial by Jury process does not command the complete and sincere respect in murder cases of those who count in our Criminal Justice and such trials.
4. The new regime:
I have no desire to hammer trial by Jury. Many Jurors have done very good service as all criminal lawyers know. The Country has been well served by their assiduous concentration and self sacrifice as Jurors. What I seek to define is trial for murder in England & Wales namely the “beating heart” and “pumping artery” of our criminal justice. Sentencing in murder cases has always been for the Judge alone and I argue that should remain, but with this life or death discretion added on, which I seek to introduce into our most elevated Criminal Court Rooms where there is a murder conviction. Not all cases are open and shut. We must also try the more evenly balanced court cases, especially murders. I am concerned that some murder trial cases are “suffocated at birth” due to the highly audacious and controversial approach required by the Crown. I mean not the complexity of the evidence as in fraud trials, but the so called “uproar” these difficult cases elicit when they see the light of day.
Scientific evidence is thought de rigeur, but there are other murder cases where non-forensic circumstantial evidence is of the essence. I also have in mind that the scales have tipped too far towards justice for the accused as opposed to the deceased victim’s interest. The case cannot be decided by the victim and his connections against the accused’s party. In almost every case some facts speak for themselves as the old lawyers used to say: “Res ipsa loquitur”. Are these inferences being properly drawn? Do the Crown lawyers as they sift the evidence pre-murder charge drive the analytical questions to their final conclusion? Are cases not being prosecuted for murder which should be? We shall never know the answer! It is not our business.
I say the London Police will not slip up. Slipper of the Yard and Nipper Read did not shirk their duty years ago (Ronnie Biggs and the Kray twins respectively). I have trust in the way our Police investigate murder cases in London. They also investigate murders in foreign countries so high is their esteem. e.g. Recently a murder in St Lucia where our powers that be would not let our detectives pursue the culprit in the West Indies. You do not play at Justice in murder cases. We have the adversarial system and the swordfight must be in earnest and, dare I say it, in anger or the murder trial will be a flop. That would be unforgiveable.
5) Sir Michael Havers QC
The noble virtue I return to. The time honoured Rules will not fail us, but without the branches grafted on I write of, we will sink beneath the waves and perish without trace. I am seriously concerned for modern criminal justice in murder cases in the England & Wales jurisdiction without these two additions. We currently lack rigour and vigour - the branches at present are not bearing fruit - be warned. This is the noble virtue to which I aspire for my Country. A society which does not ensure such cases reach arraignment and are then strongly propelled before the tribunal of trial, will allow a malaise of the most fundamental kind to persist. I cannot tell what murder files have not been given life and discarded over the past 25 years since Sir Michael Havers QC Attorney-General days were over. I am sure a good number have not satisfied the test applied to them.
I know Sir Michael led for the Crown in the Guildford Four murders trial in 1974 at the Central Criminal Court. He did not prevent that case of the utmost gravity coming for trial despite no scientific evidence. Admittedly the public were rightly appalled at these 1974 Public House bombings against the innocent. Whenever do alleged multiple murderers have any sympathy from our common man?! Nevertheless Sir Michael had to be sure he could legitimately argue for murder convictions against these four Defendants based on their written signed admissions to the investigating detectives after their arrest. He did not lack candour or decisiveness. He knew the principle was the same: If the evidence was there then you arraign the accused for murder and prosecute to the bitter end, whether there is one murder or several and one Defendant or more. Sir Michael did not expect anyone else to do the case. He shouldered the burden himself. I have not the slightest doubt that this Queens Counsel and Law Officer of the highest rank later would not flinch in the exercise of his barristerial duty to prosecute and defend those convictions in the highest Appellate Tribunals when such convictions were achieved at trial in 1974.
That is the mark of a true advocate and an honest servant of our Crown. One man must learn from another - yes the strong will help the weak, and then justice will firmly be done by our English & Welsh custom in our Crown Courts of Law of Criminal Jurisdiction.
6) Final Word
I have no doubt Crown Counsel do their duty to the Crown, the Court and the people in these murder cases, as their predecessors have done in the last Century. The Nuremberg War Trials of 1945-46 stand out for certain great English & Welsh prosecuting Counsel: e.g. Sir Hartley Shawcross QC Attorney-General in Attlee’s 1945 Administration and Nuremberg Prosecutor. All I have written since 19th June 2013 for public reading must be seen in the light of the pure virtue of justice. That cardinal virtue cannot be understood in its full glory and definition: It is hidden from our view and we may only catch glimpses. This virtue is at the heart of this essay and my 27th March 2015 essay in their polemical quality. Yes we learn from past errors, but we glean much more from the example of our virtuous forbears in their victorious progress. I say don’t be intimidated. It is utter fearlessness which will expose falsehood and expound the truth.
“His mercy shall reach from age to age for those who fear Him.”
From the Magnificat
Yes His name is Holy!