This concept at the centre of criminal justice in England & Wales defines the death Penalty argument. Will we ever give the public a say on this issue so dear to their hearts? To keep putting this question aside will be a terrible capitulation to those who do not respect our Judges and their judgements.
1. My Understanding
This is the challenge thrown down by the mediaeval knight or American cowboy in the 19th Century. In Boxing we speak of the title holder and challenger. The challenger seeks to overturn the champion and make himself King of the Castle. Clearly this challenge goes to the heart of the reigning sovereign like King Harold defeated by William the Conqueror – the challenger has deadly intent and Harold lost his life at Hastings in 1066 with an arrow to the eye as the famous Bayeux tapestry relates. Yes Charles Stuart lost his life on the scaffold in Whitehall to Cromwell and the New Model Army.
His direct descendants, the old and new Pretenders, could not reverse the overthrow of the Old Pretender himself, another unsuccessful Stuart King. Indeed the Old Pretender was that very James II who fled his own Country in 1688. In modern politics Margaret Thatcher was overthrown by her own backbenchers led by Sir Michael Heseltine. We remember powerful challengers far better than those who cling to power. e.g. Adolf Hitler in 1944 after the bomb plot, and Bill Clinton in his final term of office in the 1990’s, after the Lewinsky scandal.
There is no honour in power for its own sake – it must have good reason and nowadays a proper policy. The Whig Supremacy was founded by the ousting of the Catholic James II in 1688. That Supremacy was built upon the Bill of Rights and the Protestant constitutional monarchy we have come to cherish, as opposed to James Stuart and his autocratic Catholicism in the late 17th Century. Catholicism has often been upturned namely the loss of the Papal States by Pius IX in the late 1860’s, and the debacle that befell the Catholic Louis Napoleon in France and his devoutly Catholic spouse the Empress Eugenie in 1870-71. Also the overarching and grandiose Catholic Spanish Armada was repelled by Protestant England in 1588. England has proved time and again she can repel that challenge, and what is more her sovereignty will not be encroached upon viz: Napoleon 1805 and Hitler 1940. England disproves the theory that the Challenger rests above the challenged.
2. The Modern Analysis
The balance of power in Europe has swung to Brussels and Berlin. The French have permitted this state of affairs. We are about to challenge the English people – will you support a secession from the EU? If they do our Conservatives must take the challenge to Europe and deliver on that mandate to secede. That will be an enormous challenge not to be weakened upon in the modern era. We control our own destiny if we have the strength of purpose. England once more will rise to the challenge of re-securing and then restoring her parliamentary democracy. I have no doubt the people will speak with one voice and our Conservative Party will respond.
Do we leave the ECHR enshrined in our law after we have left the EU? It does not make sense to leave our Judges tied down by the European Judiciary if our Country is breaking free from the European directives and the Brussels legislative framework. If England is to truly follow this European challenge through we must pull down this ECHR edifice and take it apart bit by bit without qualification and ruthlessly. We govern by our Crown our Cabinet and our Parliament. Our London High Court should reign supreme subject only to that English Parliament. Yes we will meet this challenge head on and overcome any opposition at home and abroad.
3. The Final Challenge
In the Criminal Courts in England & Wales it is a fundamental rule of cross-examination that Defence Counsel and Crown Counsel must put their case, to the prosecution witnesses by Defence Counsel, and the Defendant and his witnesses by Prosecuting Counsel. Otherwise the Prosecution witnesses may not answer the Defence case. This is crucial as the Jury’s verdict will depend upon these Prosecution witnesses and how they answer Defence Counsel. There can be no proper trial if Defence Counsel “pulls his punches” and does not come out with his case to these Crown witnesses. The Prosecution case is in the Indictment and the bundle disclosed to the Defence by the Crown. The Jury will see the Defence Statement of case. But the acid test is, do the Crown witnesses give any concessions or show weaknesses in their evidence? Thus I say this challenge by Counsel for the Defence to these witnesses is the heart of the trial. This Defence cross-examination should not be nitpicking, but a swingeing blade that cuts the Crown case in half or is blunted on the sturdy Crown witnesses’ testimony. The Crown case must be put to the test.
I must be open and put my case myself and that case is well understood. If I do not declare my case and put it to the other party I will be wrong footed. I consider myself to be in an analogous position to Crown Counsel, but there is no alleged crime or defendant. Who am I questioning? Yes the general public I do on occasion interrogate and not infrequently they concede the weight of my Death Sentence case.Where does this take me? To support the case I articulate however I may. This case will be decided by the English politicians and the British public of England & Wales. But the case must be put not only by myself, but also to the public by Parliament. We have made one step by the Referendum to be held in 2017 as a commitment on EU continued membership. Parliament must be the final arbiter – the leaders: Conservative will put the case for secession and repeal ECHR to the Chamber of our Parliamentary: Westminster Members. I have put my Death Penalty case already, but I am a lone voice in the wilderness. That voice is being heard as the Baptist’s cry was heard in Trans Jordan all those centuries ago.
I am no John the Baptist but a mere essayist and no political animal even. John the Baptist made the way straight for the Lord. All I can do is put my case strongly and with Christian zeal to my readership. I can be heard and read. The path is clear for me to resolutely challenge those who oppose the Death Penalty whatever their arguments may be. I will continue to put my case and the Judge who comes again will be content with my conduct of my case – of that I am sure.