What makes a Fair Trial

A Fair Trial.

The idea that people should have a fair trial before being punished is so ingrained that even quite despicable regimes often at least stage a “show trial” to make it look as thought this requirement has been satisfied. Even Pontius Pilate who as Roman procurator had no compunction in massacring protesters wanted to know what the charges against Jesus were, gave him an opportunity to answer them and had the charge on which Jesus was condemned to die: being “King of the Jews”; affixed to the cross.

Some readers may now say: “Aha, so you admit even pre-Christian (and non-Christian) peoples had some accurate ideas on justice and due process.” Well I do! And this is my reason: Justice is part of God's unchanging moral character, he is also depicted in the Bible as “Judge of all the world” and similar titles, so “fair trial” is a reflection in human terms of his character as Judge. Us humans were created in his “image and likeness” and since God is spirit, this must mean something other than looks. We are also fallen creatures, having as a race chosen to rule the world on our own resources rather than as God's viceroys. So the upshot is that all humans may show more or less of God's character and all humans may show lack of or warped versions of God's character.

In English based jurisdictions the Greek and Roman ideals have been much refined over time. On to this base has been laid a carefully constructed edifice by godly men and women whose life's work has been the practice and development of law.

Much of their work has been the practical outworking and application to their field of expertise of a Christian and perhaps Protestant world view. The danger today is that by a combination of ignorance, the reduction of Christian influence and immigration of non-Christians bringing very different world views, Western societies are in danger of losing this treasure.

What are the basic essentials of a due process in the English system?

a) To know who is accusing you and to be able to question them; to know the details of the charge(s), and to be able to answer them.

b) for the prosecutor to set aside their own “need to win”, to release all information to the defence, especially information which would help the defence.

c) for only evidence that is actually relevant to the charge be admitted, and hearsay and gossip to be excluded

d) for the judge to be independent and impartial

e) for some avenue for an appeal

“the price of freedom is eternal vigilance” as the saying goes. So too with due process. There is always temptation for it to be abused. Governments may pressure judges for political reasons. Judges themselves may decide in accordance with their own political ideas, or for all sorts of bribes rather than on the evidence. Prosecutors may be so emotionally (or say in the US career wise) involved that they cross the line, hide inconvenient evidence or the like. Lawyers will try to bring in inadmissible evidence. In every jurisdiction there are historic cases trials which have been a perversion of justice. Unless people see these for what they are and protest then standards will inevitably slide.

Cardinal Wolsey on his deathbed in 1530 is reported to have said “If I had served God as diligently as I have done the king ...” Affairs of state, from real or imagined security of the realm down to prejudices or even vindictiveness of rulers have frequently in the past and down to the present resulted in courts perverting justice.

The Bible denounces such acts as crimes of the highest magnitude. First judges are warned that they are reaching a verdict under God, not a king, president, governor or to appease a public outcry. Then there case histories – I think Ahab and Jezebel is the classic – where God's hatred of perversion of the trial process is played out in real life.

The Bible gives approval to Jehoshophat's admonition to the judges he appointed “Consider carefully what you do because you are not judging for man but for the LORD, who is with you whenever you give a verdict. Now let the fear of the LORD be upon you. Judge carefully, for with the LORD our God there is no injustice or partiality or bribery.”

King Ahab is frustrated that one of his subjects will not sell his family vineyard to him to use as a vegetable garden for the palace. Queen Jezebel, a former princess from Tyre is horrified: this is not how kings in her world act. She secretly writes to the elders of the town where this man Naboth lives instructing them to have Naboth falsely accused of blasphemy and executed. (interestingly also a modern occurrence in Moslem countries! The Christian governor of Jakarta has just been arrested on blasphemy charges ahead of an election, and in Pakistan a Christian woman has been sentenced to death for blasphemy for drinking from the same cup as Moslems). The town elders comply, and Jezebel on receiving their report tells Ahab to go and take possession of the vineyard because Naboth is dead.

God took this injustice so seriously that he sent Elijah the prophet to meet Ahab at the vineyard and deliver God's sentence on him and Jezebel. “where the dogs licked up Naboth's blood they will lick up your blood – yes yours. … (I will) cut off from Ahab every last male in Israel” and “dogs will devour Jezebel by the wall of Jezreel” These all happened, although there was a stay of execution because Ahab repented before God after Elijah confronted him. Someone famous said that although God reserves most judgement till the Day of Judgement, he gives some instances in advance as indications of what is to come. This instance – written in scripture for our instruction leaves no doubt that God really, really hates perversion of justice!

The Oxford Dictionary added a new word “Post truth” this year. It is not just in the realm of politics that truth suffers, and its not new – just more brazen. I know someone who as a barrister some decades ago changed their field of law because they were so sickened by the way so many litigants and witnesses in court lied without the slightest compunction.

False witnesses and false accusations have been around a long time – Potiphar's wife accusing Joseph of molesting her because he had rejected her advances – the false witnesses testifying against Jesus and so on. The Bible is once again absolutely clear on God's abhorrence of such things. The Biblical injunction was that false witnesses should suffer the exact punishment which would had befallen the accused person.

There is a brilliant story in the Apocrypha (Daniel, Bel & Suzanna) about this. Susanna, a virtuous married woman rejects the advances of two men who have been stalking her. In revenge they accuse her of adultery and testify that they saw her in the very act under a tree. She is condemned and about to be dragged out and stoned to death when one Daniel steps forward and demands to be allowed to cross examine the witnesses. He has one sent out and asks the other “what type of tree was it” and then sends him out, brings in the other and repeats the question. Of course without opportunity to get their stories straight they give conflicting answers. The lie is exposed, Susanna vindicated, and the two lying witnesses deservedly stoned to death.

I am not for a moment suggesting the rule of OT times should be in modern laws. However when perjury is rarely punished at all, and less and less of the population fear God's judgement on them if they lie in court, our justice system is in trouble.

Just one more item: Rules of Evidence

They have been developed over millennia (even a Roman emperor persecuting Christians ordered that anonymous denunciations were not to be accepted) to help achieve fair trials.

Humans are fallible, so even the best run trials may give the wrong verdict. One Judge Blackwood is famed for saying “I would rather release ten guilty murderers than hang one innocent man” People are right to be angry when a guilty person gets acquitted. But they often blame the rules of evidence saying things like “But if the jury had bee allowed to hear such and such piece of evidence they would have convicted ...” Possibly they would, but in another instance had they heard such and such a piece of evidence they would have convicted an innocent person! Nothing human is perfect but remember, it is God who said “Justice is mine: I will repay” the acquitted guilty person will not escape punishment! But to punish an innocent person is a great evil.

PS I have not been citing chapter and verse for scripture reference lately because with the Internet, particularly search engines like “Bible Gateway” it is simple to bring up the text on screen and then look at it in any other translations you wish. I am using the TNIV version

Government by the People

Government by the People

Lincoln’s passion that the populace should have government for the people and by the people resonates throughout Western democracies even if it is expressed in differing terms. However “by the people” is more problematic than it looks.

If we go back to ancient Athens, that fabled birthplace of democracy we begin to see problems. Plato lived through the turbulent days of an oligarchy imposed after the Spartans defeated Athens, then revolution and restoration of democracy. He remained apart from the bloodthirsty oligarchy, who killed off the democratic leaders, even sending death squads after those who fled the country. He saw the injustice of political opponents executed so that their property could be seized. But when democracy was restored he saw that “the people” were scarcely any better.

Plato scornfully noted how easily the demos or people could be swayed by an artful speaker. Particularly one, as he wrote, who promised to “plunder the rich and give to the poor”. However his conclusion, that government should be not “by the people” but by the most able thinkers is exactly what British voters have rejected in their decision to leave the European Union with its burgeoning unelected technocracy.

It is a long time since I studied Plato and Aristotle, but I think it was the latter who made the distinction between “mob rule” and “constitutional democracy”.

If my memory serves me correctly (since Google has let me down!) Aristotle saw the same problem as Plato and said in effect: “If the demos rules unrestrained by law and custom will they not, being in the majority, say 'let us plunder the rich, by God it is just'”. However his solution was to limit what the assembly could vote by overarching rules.

If we look at one element of government: the dispensing of justice this difference is clear. In the Wild West the lynch mob ruled. Then lawmen brought peace and progression to “a fair trial”. Law courts with due process, rules of evidence and the ability of the accused to put their side of the case are are much superior to the lynch mob. Interestingly fair trial was commanded back in the Old Testament, where ideals of justice were repeatedly set out and the danger of lying witnesses and the fickleness of the crowd warned against. However every few generations we seem to have to learn them anew – now we seem to be falling back into the lynch mob mentality with “trial by social media”.

Lord Acton, author of the famous “power corrupts...” quote also said;

“The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections.”

In recent times this has been borne out in Western democracies by the proliferation of regulations ostensibly aimed at protecting minorities which has led to the tyranny by these minorities over the majority – which simply inflicts the claimed injustice on even more people!

The reservations all these thinkers have had about rule “by the people” can, I think, be summed up by saying: “We are all sinners”. We are all capable of being selfish and greedy, so there is a danger that we will elect those who promise us most. We can go with the crowd and the spirit of the age against what is righteous and just.

I think two things are required to make democracy work:

1. Rule of Law. Where there is a constitution, hundreds of years of judicial precedent on what is right and just and an independent judiciary that can curb the excesses even of an elected president

2. Moral Backbone. Where there are enough people of good conscience to save the nation from the particular evils taking flourishing at that time.

Without these, government by the people is only as good as the worst half of the people, and historically, that is not very good.