ROME - Magna Carta crossed the oceans. In English-speaking countries, its principles are known and recognised. But it never crossed the Channel.

In 1215, in England the Barons were confronting King John; in Rome Pope Innocent III was setting up the machinery of the Holy Inquisition.

A major purpose of Magna Carta was to limit the powers of the King. In contrast, the Inquisition expanded and deepened the power of the authorities over the individual. Not only actions, and words, but even thoughts, were scrutinised and, if “culpable,” punished.

As analysed by  Italo Mereu, Professor of the History of Law at Ferrara University, in his history of the Inquisitorial system, "Sospettare e Punire," the Inquisition brought together the functions of prosecutor with that of the judge, in the new figure of the Inquisitor. The Inquisitor's job was to identify, seize, and interrogate a suspect, to arrive at the "truth". 

The arbitrary powers of the inquisitor, and of his superiors, were vast. The machinery of the Law became a tool for the ruler to ensure complete control over his subjects.

Clearly Magna Carta constituted a potent obstacle to such arbitrary exercise of power. In fact the Pope was furious when informed about it, and declared it null and void.

The specific constraints on the power of the State provided by Magna Carta include clauses 39, "No free man shall be ... punished ... save by judgement of his peers and by the law of the land," and 40, "To no-one shall we deny, delay, or sell justice." Clause 39 in particular removed from rulers a crucial power of government, the power to decide who should be punished and who not. This power was placed in the hands of a jury of the defendant's peers, thus laying a bulwark against arbitrary  punishment.

For 800 years since then, the English and the continental criminal procedures have gone in different directions.

The Inquisition ravaged the nations of continental Europe for centuries, persecuting and prosecuting witches, heretics, and ... scientists. Initially an ecclesiastical institution, its methods were adopted by secular rulers.

England alone escaped its grip. We fought off the Spanish Armada, which would have brought the Inquisition to our shores. Elisabeth I rejected the inquisitional method - "I will not make windows into men's souls". A papal  decree promised an indulgence for any Catholic who murdered her. Yet she did not outlaw those who followed the old religion, though subjecting them to constraints.

The power of Parliament grew and in the mid-17th century prevailed over that of the king in the civil war. Parliamentary supremacy - representing ultimately the will of the people - was then firmly consolidated with the glorious, bloodless revolution of 1688.

Meanwhile across the Channel absolutism held sway. The King of France proclaimed "I am the State".  

The French Revolution swept away much of the old order. The “Rights of man” were proclaimed. Then  Napoleon took over France. His armies set about invading most of Europe to export his notion of the "rights of man." His codes of law to this day underlie the legal systems used on the continent.

Some Enlightenment thinkers, like Voltaire, had drawn inspiration from the different system of government they had seen in England. But Napoleon did not adopt Magna Carta, nor its principles, in criminal procedure. He adopted and adapted the basic elements of the inquisition, redirecting it to serve the State.

In Britain, the powers of jurisdiction governing different parts of criminal procedure are attributed to different bodies. Essentially, the police, divided into 43 independent local constabularies, investigate a case; the magistrates (mostly non-lawyers, unpaid volunteers working part-time) sign arrest warrants, and then decide bail and committal to trial in public hearings; a barrister is hired to conduct the prosecution in court, where he or she faces another barrister hired by the defense; the judge presides over the proceedings in court deciding procedural disputes between the parties, and handing down the sentence after a guilty verdict. And crucially, the verdict is entirely in the hands of a jury of 12 ordinary citizens, voters selected by lot from the electoral register, peers of the defendant, as established by Magna Carta so long ago.

The distribution of these powers into different hands provides essential checks and balances, not just between the legislative, executive and judicial functions, as prescribed by Montesquieu, but within the judicial function itself, on whose delicate balance depends the individual freedom of each and every citizen from arbitrary arrest and wrongful imprisonment. Here lies the genius of Magna Carta.

Under the Napoleonic-inquisitorial dispensation used in continental Europe, all these powers are placed in the collective hands of the career judiciary.

In Italy, criminal investigations, prosecutions, assessments of clues, decisions on arrest, bail or remand, the direction of courtroom proceedings, judgements of guilt or innocence and sentencing are all under the exclusive control of members of the career judiciary.

To become a judge, young law graduates must pass a stiff State exam, and then they are in. After one year's "apprenticeship" ("uditorato"), they are assigned to a judicial office as a prosecutor/investigator or a judge, where they sit, pen in hand, empowered to order criminal investigations, arrests, bail, committals, etc. They are not trained in detective techniques, relying on book knowledge of the law. But they direct the police (who may have such training) in the conduct of criminal investigations. This separation between competence and responsibility in investigations may explain why many cases are not investigated fruitfully.

Trial by Jury – that great heritage of Magna Carta - has no place in the Napoleonic-inquisitorial dispensation. Most cases are decided by professional judges alone. Very serious cases are heard by what might look like a jury of ordinary citizens chosen by lot.  Actually, the verdict and the sentence are decided by a mixed panel of six lay “jury-people” and two professional career judges. They all go into the jury-room together, where the “judge’s summing-up” is delivered in secret. Although the six jury-people can outvote the two professionals, the latter obviously take a leading role in guiding the verdict. There are no safeguards against double jeopardy – the prosecution are perfectly entitled to appeal against an acquittal, even if no fresh evidence has emerged.

Two other direct legacies of Magna Carta are clause 40 – “to no-one shall we delay justice,” and the not-so-often celebrated clause 38. The latter states, “No judicial officer shall initiate legal proceedings against anyone on his own mere say-so, without reliable witnesses brought for that purpose.”

These provisions are ensured by Habeas Corpus. Under Habeas Corpus, a suspect if arrested must be brought into open court within hours (or at the most, a few days), and there charged formally. And the charge must be based on enough hard evidence, already collected, to show there is a prima facie case to answer. 

It is perhaps taken for granted in English-speaking countries that any proceedings must be based on evidence. Not so however on the continent. In Italy, for example, a person may be arrested on the orders of two members of the judiciary (one acts as “prosecutor-cum-investigator” and the other as “judge of the preliminary investigations”), at the outset, on suspicion based on clues (“indizi”).  Hence the title of Prof. Mereu’s book. The prisoner becomes a “person-under-investigation” (“indagato”), and can be kept in prison during  the investigation, which can last many months, before the authorities try him. There is no right to any public hearing during this time. Within hours of arrest, the prisoner is interrogated by the two judges who ordered his arrest, in a secret hearing. He is assisted by his lawyer (or by a lawyer appointed by his interrogators if he cannot afford his own). He can try to persuade them of his innocence, but he cannot see any evidence against him until much later.

All this directly violates clauses 38 and 40 of Magna Carta. Yet this is what happens in Britain today to those who are subjected to a European Arrest Warrant.  Under the EAW no British court is allowed to see any evidence of a prima facie case. Presumably the Parliamentarians who voted for this measure must have believed that the foreign judicial authority issuing the EAW would already have the necessary evidence, soon to be exhibited  in a public hearing. Yet numbers of innocent Britons can testify that this is not the case. Famously,  Andrew Symeou spent 11 months in a Greek prison before his first appearance in an open court hearing, where the case was dropped, owing to lack of any serious evidence.

It is thought that the European Convention of Human Rights offers adequate safeguards for the innocent. It does not. The ECHR makes no provision for Habeas Corpus, let alone Trial by Jury. Article 6 vouchsafes an appearance in a public hearing within a “reasonable” time after arrest, but does not specify what is “reasonable”. For us it is a matter of hours or at most days.  In Europe it can be months or even longer.

Our sagacious forefathers laid down these safeguards. Their words have rolled down eight centuries, to protect us. Yet today, the British are abandoning them, for an illusion, based on wishful thinking.

This 800^th year after Magna Carta is also the 200^th anniversary of Waterloo. How ironic if Napoleon should have the last laugh after all.

This is an edited  version of  “Magna Carta & Europe,” which appears on the  website, magnacarta800th.com.

(c) by Torquil Dick-Erikson