“Due process”: the baneful legacy of Magna Carta

This year marks the 800th anniversary of the sealing of Magna Carta, the treaty which protected the rights of the Norman barons during the reign of King John, and has since become a byword for long-established rights (even those not in it) both here and in other English-speaking countries. David Cameron has been harping on its virtues while campaigning to get rid of the Human Rights Act, which provides rights associated with a modern constitution and modern notions of human rights; Melvyn Bragg recently presented a four-part series on Radio 4 about the charter and the events leading up to its sealing. In the Daily Telegraph, Peter Oborne has criticised both the series and the political celebrations, the former for ignoring a charter issued around the same time which did protect common people’s rights and for glossing over how people’s rights have been trampled by this and the last government, and the latter for being full of hypocrites who themselves trample people’s rights. There is a crucial inadequacy in Magna Carta which has survived into both law and legal discourse throughout the English-speaking world to this day, which also should be considered when promoting its virtues above that of the Human Rights Act: the satisfaction with Due Process and the notion that it is synonymous with justice.

Right now, a man called Krishna Maharaj (below left) is sitting in a jail cell in Florida, having been convicted of the murders in 1986 of Derek and Duane Moo Young, both money launderers who worked for Pablo Escobar’s drug cartel based in Medellín, Colombia. According to the charity Reprieve, there were six people able to testify that he was 30 miles away at the times of the murders, but his lawyer did not call them (which means that they could not be called at subsequent appeals). He was initially sentenced to death, but because of the obvious corruption of the two judges in his original trial, his death sentence was commuted to life imprisonment in 2002. Subsequent appeals to overturn the sentence have been rejected because the system refuses claims of factual innocence, only accepting appeals based on irregularities in the legal proceedings (e.g. evidence actually withheld at trial that could have altered the verdict). In one hearing in 2004, a magistrate rejected an appeal for a retrial for Maharaj on the basis that “newly discovered evidence which goes only to guilt or innocence is insufficient to warrant relief”, in what his lawyer, Clive Stafford-Smith, called “ten pages of nonsense”.

Picture of Krishna Maharaj, an elderly dark-skinned South Asian man wearing orange prison clothesI’ve followed other cases of miscarriages of justice in the USA, particularly the South, and a common feature is evidence of innocence being rejected on procedural grounds such as that it has been submitted too late. Another feature is the cosy nature of the legal profession in which judges are often unwilling to overrule other judges’ decisions, or verdicts based on their friends’ cases. In one case, a man convicted of murder had his conviction overturned at appeal, only for it to be reinstated by the same judge when the judge or prosecutor involved in the original case asked him to reconsider. In the UK, appeal courts will consider new evidence of innocence, but not an appeal based on the simple premise that a jury’s decision was wrong unless the defence can show jury misconduct. According to Dr Dennis Eady of the Cardiff Innocence Project, “the greatest problem is the court of appeal’s irrational belief in the infallibility of the jury and its demand for a few neat, precise, new and compelling appeal points rather than an appreciation of the holistic picture”.

Three clauses of Magna Carta remain in British law: articles 1, 9 and 29, and it is the last which states that:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

As the reader will notice, this article only mentions “lawful judgment” and the “law of the land”; it does not stipulate that nobody be subject to criminal sanction unless he is actually guilty, and this oversight has been maintained, explicitly, in opinions by conservative judges in the United States in the present day. It is assumed that due process is sufficient to deliver justice, and fails to account for the system, or the people who work in it, being inadequate or corrupt. The article does provide that nobody be imprisoned or deprived of their property capriciously by the king or one of his officials, so it is still a progressive document by the standards of the time, but it still allows for injustice to be committed and then maintained on the basis that all the legal boxes have been ticked. Any modern constitution or bill of rights should stipulate that nobody be subject to criminal sanction unless factually guilty, and that the judiciary should allow innocence to be demonstrated without hindrance; it should not be assumed that this is the law just because it looks like common sense.

As I have said on this blog before, Magna Carta itself did not improve the lot of the common people of England at the time, only protect the rights of the nobility against the king. It is really no substitute for a modern constitution with a bill of rights, and for the present government to stress its virtues while campaigning for the abolition of the nearest thing we have in the UK to a proper bill of rights demonstrates that it is reactionary and that its aim is to disempower the common people and maintain the power of the rich. Their legal aid reforms have already deprived poor people of legal representation in many non-criminal cases, including housing and challenging custody decisions over their children, so we can see that they do not even believe in equal access to the law. Due Process can easily be a smokescreen, an excuse to turn faces away from obvious injustice leading to enormous suffering. Let’s leave the feudal past where it belongs: the Magna Carta may look like progress compared to 12th-century absolutism, but we do not congratulate an adult on the baby steps he took when he was months old. A modern state demands modern rights and modern protections for its citizens.

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