On the 800th anniversary of Magna Carta, two of its most important principles – the right to due process and the presumption of innocence – are under threat. The right to due process, as established in Clause 39, is one of three Magna Carta clauses still on the English statute books. Lawyers are right to point out, as they often do, that the term ‘presumption of innocence’ does not actually appear in Magna Carta. However, inherent in the right to due process is the presumption that, prior to the proper judgement, you are undeserving of punishment. Accordingly, most people – even lawyers – accept that the modern idea of the presumption of innocence owes a significant debt to the provisions of the charter.
Clause 39 of the charter reads: ‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.’ In 1868, this clause formed the basis for the Fourteenth Amendment to the US Constitution.
Historians will say that, in 1215, the right to be tried by a ‘judgement of his peers’ meant the right to be tried by the king’s justice, rather than by a jury as we know it today. Others suggest that the clause was really just a means for the barons to stop King John from mounting an army against them. The clause was not thought to apply to members of the wider public until seventeenth-century jurists said that it did. But whatever the impact of the clause at the time, it has provided a common-law right to be free from arbitrary incarceration for centuries. In court judgement after court judgement in the UK and the US, Clause 39 has been recognised as a constitutional safeguard against the arbitrary will of the state. It was a historic recognition of the rights of the individual over and above the arbitrary will of a governing power.
But, today, the rights established by the charter are at risk. Two things have worked to limit the impact of Clause 39. The first, and by far the most significant, is human-rights law, which brought the process of deciding what amounts to a presumption of innocence, or a right to due process, under the adjudication of the court itself. Secondly, there is a hostage to historical fortune contained within the text of the charter itself: the idea that due process and the presumption of innocence are always subject to judgement by the ‘law of the land’.
Today, it is the European Court of Human Rights (ECHR) in Strasbourg that decides what amounts to due process in a fair trial. Article 6 of the European Convention on Human Rights is now the primary means of challenging those aspects of the law that appear, at first blush, to ride roughshod over due process and the presumption of innocence. If you think you have been chucked in prison without a fair trial, then you seek recourse in the convention. Except, such is the irony of history, that today it is the court itself that decides whether its own processes are fair. In order to bring a claim under Article 6 you have, first, to raise a case with the relevant courts in the UK. If that doesn’t work, you have to try to convince a body of judges on the continent that your right to due process has been undermined. It turns out that the judges at the Court of Appeal and the ECHR are highly unlikely to share your idea of what constitutes fairness.