This article was first published on The Bruges Group website, and we republish it here with their kind permission.
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Arrests followed by imprisonment, in Britain, in normal times, have to be supported by evidence of wrongdoing already collected by the investigators beforehand. To make sure that this happens, Habeas Corpus stipulates that an arrested person must appear in open court within hours, or at the most a few days (or in very extreme terrorist cases, 28 days), and there charged formally with a precise accusation. And if so required, the prosecution must be able to produce their evidence of a prima facie case to answer, at that hearing.
This fundamental right, which protects innocent people who are wrongly suspected of crime, descends from Magna Carta, section 38. This (usually unnoticed) section is the basis of Habeas Corpus, which prevents people from being arrested and imprisoned arbitrarily, on no evidence.
In their incredible and foresightful wisdom, 800 years ago, our forefathers laid down, in Latin – and the Latin is important – in just fifteen words, the basis of our freedom from arbitrary arrest and imprisonment, prosecution, persecution, and harassment by officers of the State. It says:
“Nullus balivus ponat aliquem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis.”
These words have rolled down the centuries to keep people in England free from arbitrary arrest and incarceration, a typical tool of tyrants. I shall give the translation in a moment!
Over the years their validity spread to all Britain, the British Isles, and the English-speaking world across the seas – Canada, Australia, New Zealand, USA (it so happens, these nations are our partners in the intelligence sharing “Five Eyes” community). Magna Carta crossed the oceans. But it never crossed the channel. Its section 38 is not recognised nor applied in continental Europe. In 1215, when we had Magna Carta, which limited the power of the King (today, the State) over the individual, on the continent they got the Inquisition, which deepened and broadened the power of Authority over everyone. The Inquisition spread all over Europe, its methods were adopted by secular rulers as a useful tool for stamping out political opposition. The French revolution in 1789 swept away much of the old order, but soon it was taken in hand by Napoleon, who asserted his command and control over not just France, but most of Europe. He did not adopt the Magna Carta-based English system of criminal justice. Instead he adopted and adapted the inquisitorial method. His codes of law are still the basis of most European legal systems to this day.
In English these Latin words of Magna Carta’s section 38 mean:
“No legal officer (balivus, originally “bailiff”) shall put anyone to the law ie shall start legal proceedings against anyone (NB it says “anyone” “aliquem” – this is a universal human right, not limited to “free men”), on his own mere say-so, without reliable witnesses having been brought for the purpose.”
N.B. Note the use of the PAST participle “aductis” – “having been brought”: the witness statements, the evidence, must have already been collected BEFORE any legal proceedings, such as an arrest followed by imprisonment, are started.
Nowadays I notice that this is often translated sloppily, as “being brought” (present participle), or even “to be brought” (future participle). Were this to be the case, then this section of Magna Carta would cover the continental procedures where suspects are commonly arrested and imprisoned first, on the basis of mere clues, before any hard evidence has been found and brought, and where the evidence is then sought AFTERWARDS, while the suspect is under lock and key, during an investigative process that can take months, or sometimes even years. And during this time the suspect has no right to a public hearing where the reasons for his detention may be tested in debate between the defence and the prosecution. This is what happens in the absence of Habeas Corpus, even today, in lands across the channel that Magna Carta never reached.
In continental jurisdictions they are allowed to do this under the provisions of their own Napoleonic-inquisitorial systems, which are alien to our own Magna Carta heritage. This procedure is NOT ALLOWED under Magna Carta and Habeas Corpus laws. This means that nobody can be subjected to any legal act, like arrest or detention, without previously collected EVIDENCE. This may be considered by some (e.g. law-enforcement officers) as an impediment to their ease of investigation. It may be thought, “Arrest someone, question them with third degree intensity, and the prospect of a long long time in prison if they don’t ‘co-operate’, and they may confess.”
However, a moment’s consideration should make anyone realise, that this way the punishment is actually being served before conviction, and above all, until and unless there is some solid evidence of guilt, how can the investigators be sure that they have got the right person? If they are punishing the wrong person, the real guilty party will be getting off, scot-free. This method has been outlawed in England for eight hundred years, thanks to Magna Carta. Quite rightly, its 800th anniversary was celebrated with much pomp and ceremony throughout the English-speaking world in 2015.
Yet the European Arrest Warrant, introduced with the Extradition Act 2003, rides a coach and horses through this ancient safeguard. Not just EAW arrests are unconstitutional, but so are all arrests followed by imprisonment made on no evidence. This is the chief difference between an arrest made on a domestic arrest warrant and an arrest made on a European Arrest Warrant.
A domestic arrest warrant must be backed by evidence already collected, under our UK laws on Habeas Corpus, based on Magna Carta sec.38 (see above). In contrast, under the Napoleonic-inquisitorial systems used in continental Europe, a suspicion based on clues held by the investigator (who usually wears a judge’s robe), is enough to order an arrest and an imprisonment. Then they seek evidence, while the suspect may languish in prison for months, with no right to a public hearing during this time. See details in my speech at the House of Lords, given on 15th March 2017 . In this speech I also dealt with the inadequacy of the European Convention on Human Rights in this regard.
The injustice of the EAW when issued against a person in Britain is that the British court is not allowed to ask to see any evidence. Often there is none, or so flimsy it would not stand up for 5 minutes in a UK court. When our MPs passed the Extradition Act of 2003 they surely assumed that all our EU “partners” must have a requirement for evidence similar to ours. The assumption was unfounded, as various cases since then have demonstrated, e.g. Andrew Symeou, or Colin Dines, a British judge forcibly transported to a prison in Rome.
This is the nub of the case of the Catalan Professor Clara Ponsati, and which, it was to be hoped, would be at the heart of the debate to be held in the Sheriff’s court in Edinburgh at the extradition hearing. She was arrested in Scotland on an EAW issued by Spain, against her as an associate of Puigdemont’s Catalan separatist movement. This is a case of the EAW being used for purposes of purely political repression. In the event, the Spaniards withdrew the EAW extradition request against her, so the question did not arise.
However, here, in summary, was my suggestion as to how the EAW against her, or against anyone else, can be dismantled and declared invalid in Britain:
- She is accused by the Spaniards of “violent rebellion” and “misuse of public funds”. (It is clear that Prof. Ponsati, a silver-haired lady in her sixties who teaches economics at St Andrews University, has never used nor advocated violence against anyone; the use of the term shows bad faith on the part of Spain’s judiciary, an intention to smear her character before public opinion.)
- She should ask the prosecution to produce prima facie evidence of this.
- The court will respond that under the terms of the Extradition Act 2003 this is not necessary, these are matters that will be dealt with by the Spanish courts, and her request will be refused.
- At this point she can quote Habeas Corpus and Magna Carta sec. 38, which stipulate that no legal proceedings can be started against anyone without evidence (see details above).
- The court will reply that the Extradition Act 2003 dispenses with the need for the foreign judicial authority to produce evidence to a British court, and its provisions supersede the earlier ones in Habeas Corpus and Magna Carta, by implied repeal.
- At that point she can say that Habeas Corpus and Magna Carta are CONSTITUTIONAL LAWS, which are not subject to implied repeal, quoting the precedent of the Metric Martyrs judgement by Lords Laws and Crane (see details below).
- It then becomes apparent that the EAW is unconstitutional, repugnant to our Constitution, and invalid in the UK.
I cannot see how the Court could have answered this. They might have wished to refer it to the European Court of Justice, which of course will have no regard for our Habeas Corpus or Magna Carta safeguards (unknown in continental Europe), but at that point the matter would take on enormous public interest, not just in Scotland and Catalonia, but world-wide.
If that occurs in any future case, two contrasting legal systems will be seen to be in conflict. Our Magna Carta based heritage, versus the Napoleonic-inquisitorial heritage of continental Europe (adopted in toto in the EU’s “Corpus Juris” proposal for a single EU-wide criminal code, which was rejected by the UK in 1999. The EAW is a part of Corpus Juris, and is the first step towards the full implementation of Corpus Juris). Arrests made under an EAW side-step the British safeguard that requires evidence to be exhibited in short order.
Most think the EAW is just about catching criminals. It is not. It is potentially a tool for tyranny. It is a threat to the freedom of the innocent. It can be wielded by the British authorities against suspects in Europe, but also by any European judiciary – however reputable or however dodgy – against any of us. Here are some details of a particular case judged on Appeal which gives us the useful precedent, whereby Habeas Corpus and Magna Carta can trump the Extradition Act 2003 even though they were passed earlier.
It was a famous case a few years ago, when some market traders in Sunderland were convicted and given a criminal record for having sold bananas by the pound weight instead of by the kilogram as had become compulsory under an order complying with an EU directive, issued under the legal force of the European Communities Act 1972 (ECA72). The defendants of this absurdly unfair conviction became known as “The Metric Martyrs”. They appealed against their conviction, but their appeal failed.
We must look at the reasons given, why their appeal was turned down. When the Appeal Court Lords Laws and Crane confirmed the conviction of the Metric Martyrs, they gave a novel answer to the defence’s arguments: the defence had argued that the 1985 Weights and Measures Act (WMA85), which allowed market produce to be sold in lb and/or kg, was subsequent to the ECA72 (under whose provisions the order criminalising the sale of fruit by the pound weight instead of by the kilogram had been issued). Therefore, argued the defence, the WMA85 over-rode that part or that effect of the ECA72 under the doctrine of implied repeal, whereby if there be a conflict between laws then the subsequent law is deemed to have over-ridden and annulled the provisions of the earlier law.
Not so, said their Lordships. They said that the ECA72 had the status of a “constitutional Act”, and so could not be over-ridden by subsequent legislation under implied repeal, but only if the repeal was explicitly spelt out in the text of the subsequent Act.
Since the WMA85 did not explicitly repeal any provisions of the ECA72, which it might have done by including words like “any provisions in or deriving from the ECA72 notwithstanding”, but didn’t, then in this case the earlier ECA72 must be held to prevail over the later WMA85. They even added, as a consolation “sop” to the defence, that Parliament is in any case free to repeal the ECA72 wherever it wishes, as long as it does so explicitly.
The Metric Martyrs then presented a request to appeal to the House of Lords, but it was thought that their appeal was not worthy of consideration, so the decision of the Appeal Court acquired the status of LEGAL PRECEDENT, which as every law student knows, is now binding on subsequent decisions.
This “innovation” by Laws and Crane can be summarised in general terms as follows:
1. There are now two levels of law in the United Kingdom: a) Constitutional laws and b) Ordinary laws. There are different rules applicable if Parliament wishes to repeal any of them.
2. In cases where there is a conflict between two ordinary laws, the later law is deemed to annul those provisions of the previous law in conflict with it, under the well-established doctrine of “implied repeal”, whereby that part of the earlier law, if found to be in conflict with the later, is declared null and void.
3. In cases where there is a conflict between an ordinary law and a previous constitutional law, then the constitutional law is held to prevail over the subsequent ordinary law, UNLESS the subsequent ordinary law EXPLICITLY repeals a provision in the preceding constitutional law. Parliament can repeal any constitutional law by simple majority vote, for one bedrock rule of our constitution is that No Parliament Can Bind Its Successors. This is also the basis for the doctrine of implied repeal.
4. So, what Laws and Crane established is the principle that Parliament cannot change the constitution by implied repeal.
5. By the same token, if there is a conflict between two “constitutional laws”, then it must surely follow that UNLESS the subsequent constitutional law EXPLICITLY repeals a provision in the preceding constitutional law, then the preceding constitutional law prevails.
Therefore if the Extradition Act of 2003 had been intended to over-ride Habeas Corpus and Magna Carta sec. 38, it should have said so explicitly. In fact it did not abrogate section 38 of Magna Carta! Indeed section 38 is hardly ever talked about because, in the English-speaking world at least, it is considered too obvious that you need to already have evidence of wrong-doing before starting legal proceedings against anyone.
To get round this, a UK court would have to deny that Magna Carta and Habeas Corpus had constitutional status, or Parliament would have to repeal them. It is highly doubtful that either would have the heart and stomach to do so. The wave of public anger and indignation would be overwhelming.
That the European Arrest Warrant is in fact incompatible with Habeas Corpus is dealt with by Jonathan Fisher QC in his learned Opinion (para. 4 page 2, and para.s 70-85 pages 19-22)
In any case, rather than wait for another EAW case to come up and be thus contested, HMG has decided to remain outside the EAW provisions anyway. I hope that the reasons I have given for doing away with the EAW in its present form may be of use in the ensuing debate.