Magna Carta or golden thread?

24 February 2015

The Global Law Summit is celebrating 800 years since the sealing of the Magna Carta, widely regarded as one of the most important legal safeguards but has it been overtaken by events?

Magna Carta, is still credited with making governments accountable and securing rights of freedom for individual citizens although some feel that maybe strained. To many, the safeguards in Chapters 39 and 40, set out in Latin, still apply today; they asserted the Rule of Law. Magna Carta was even referred to by the Founding Fathers in the United States and by Nelson Mandela during his trial in South Africa and in 1964.

But is a greater threat the attack on the golden thread which is said to run through the English legal system. The famous Lord Sankey speech in the case of Woolmington in the House of Lords; “Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's  guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... The prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

Consider the inferences that can now be drawn from silence in interview, not mentioning a fact later relied upon or a defendant deciding not to give evidence.  Defendants are now being encouraged at an early stage to indicate their plea without the requirement of the prosecution to fully prepare the case, they are invited to set out the issues agreed or contested at a management hearing, have to serve a statement setting out the defence or risk adverse comment at the trial and inform the prosecution of the witnesses they intend call allowing the police to make arrangements to interview them. And then there are the restrictions in preparing cases that are publicly funded.

Furthermore if the prosecution fail through inadvertence to prove one of the required parts of their case they can after closing apply to reopen it in order to do so: the days of the defence submission that the prosecution have not proved  their case on this basis have long gone.

Jury trial is not under any more threat than in previous years – for now; but the suggestion has recently been made in a review that after the prosecution open their case before the jury there should be “a public identification by the defence of the issues in the case”.

Many refer to the rights enshrined in the Magna Carta as relevant safeguards today and no doubt they are.  Perhaps the famous golden thread is becoming a little strained at times or the goal posts have been moved.

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