William John Keyte
lawandalchemy@mail.com
20th January 2025
independentreviewcriminalcourts@justice.gov.uk
The Rt. Hon. Sir Brian Leveson
Review of the Criminal Justice System 2025 – Open Letter
Dear Sir Brian
Thank you for the opportunity to submit evidence and concerns prior to the review of the Justice system. I am a lay person with a long-term deep interest in the Justice System and most particularly, Constitutional Law and am writing an Open Letter to you that many similarly interested people will, no doubt wish to read too.
I have been studying this topic quite deeply for about twelve years and do not, of course, have training or professional expertise. I therefore, tip my hat to your greater knowledge on the system and the important insights you will have, given your very considerable experience.
However, I suggest that the things I will have to say in this letter, as an outsider, might also serve as useful insights. It will probably come, however with some uncomfortable truths, which, as is often the case, happens when someone outside the relevant area of expertise adds their perspective.
Sir Brian, I am troubled that central in some of the suggestions within the proposals include a possible further erosion of our tradition of Jury Trial, as, even in the current situation, I would claim that we are well off-track. Summary Trial of any sort cuts the people from their sense of ownership of their own laws and I wish to delve into this in quite a bit of detail.
I wish to raise some crucial (but to some) uncomfortable questions about how the Constitution frames our justice system in this country and to dig a little into the nature of the people’s own relationship with morality and justice. It is critical to me and has been evident for sometime that there is meant to be a sense of ownership and personal involvement within the process of Justice within our community.
Conducting oneself with a sense of responsibility and integrity has important psychological and spiritual feed-back loops within it.
‘I police myself because I want to - because I have a responsibility to others around me and I recognise that my actions must not trample upon the individual rights of another. Doing that causes me to grow in stature, confidence, responsibility and trustworthiness’
This is perhaps a more sophisticated expression of the Golden Rule: My Rights End Where Another’s Begin. That grown-up sense of the purpose of law comes from the feeling that we’re all involved in its creation.
Trial by Jury is the reflection of this principle in law, surely. It allows people to learn about their own biases and prejudices, causes them to reflect on where they have gone into denial, come to understand that justice is complex and nuanced. It is through Trial by Jury that they take part in moral judgement, learn to humble themselves when a man’s life is in their hands, recognise that we are all fallible but also learn to call out wrong-doing. Through this mechanism more than anything else, the people learn to observe the laws that they have taken part in creating. In this way, the law is fundamentally restorative.
There is, however, a tendency by some voices in the justice system to ‘play down’ the value of the jury, Lord Justice Auld included, I am sorry to say, by attempting to make claims that members of the general public are somehow not to be trusted, are prejudiced, can’t understand complex evidence etc. But the work of Cheryl Thomas KC, since 2010 is interesting on this issue and begins to point to the opposite conclusion. Far from juries being a liability to justice, she draws some interesting conclusions from her research that, in fact, juries rise to the occasion, step up in their level of responsibility and civic mindedness. She is not the only commentator on this and there are many others who, in their memoirs and research, talk of this important dynamic at play in the jury such as Grove (1998), Gastel and Weiser (2010).
Without this critical process of civic involvement in law-making, the citizen merely, and passively accepts that the law is simply there to judge him. But, in Trial by Jury, as citizens, we begin to recognise that we are not merely the object of law - the thing needing to be ‘corrected’ – but we, through our individual consciences, also become the source of the law. People can only feel their sovereignty when they take part in the process of rejection of immorality and malice. When they, personally, are involved in resistance and the discarding of injustice.
Merely following orders through the threat of punishment entirely bypasses that healing effect, without which takes us into a very dark place, as we discovered at Nuremberg. People become increasingly disassociated from the purpose of Justice. Justice based on our shared moral principles through Jury Trial causes us to pay attention to morality, become part of the law-making process itself and to come to understand the real nature of Justice. No longer are we merely submitting to a perceived authority but we are recognising that, as sovereigns, we all share in the ownership of the law within our community because that generates positive outcomes for all and creates the equitable condition of society that is required for legitimacy.
That ‘ownership’ has always been characterised by our constitution but perhaps more correctly, in former times even though we still see glimpses of it today. The sense that the people are the Police through the Peels 9 principles of policing, is one such example. In that same sense, so the people are the Independent Judiciary and through Jury Independence/equity/nullification, dare I say it, the legislature too: a concept not liked by many members of the establishment’s judiciary, I realise.
With respect to Lord Justice Auld, Justice Vaughan confirmed the right of juries to give a verdict according to conscience in the famous 1670 Bushel’s case. In that sense, the people are the government - and they continually learn to govern themselves!
As Alexis de Tocqueville said…
The jury ‘Is both the most effective way of establishing the people’s rule and the most efficient way of teaching them to rule’ (1969:276)
He also described the jury as
‘a political institution embodying the sovereignty of the people’ and ‘the very best way of preparing a people to be free’ (1988:273 - 274)
Jury Independence or Jury Equity is actually not simply an ‘awkward anomaly’ at all, as some establishment influencers might wish to suggest, but in fact, an intended feature of our Constitution…
‘an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just. If it does not, the jury will not be a party to its enforcement... The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average Member of Parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive.
’Sir Patrick Devlin, writing in 1956 (Hamlyn Lectures, pp 160, 162)
(One might add to that, …no other checks that exist today even perhaps on the power of the legislature and judiciary too.)
Surely, government has no other more critical role than that: merely to uphold the fundamental rights of the Individual in Society and to facilitate the delivery of the people’s own justice. It could be argued that a society whose justice system is, instead, largely made of rules which delivers pre-modelled punishment to its citizens through summary trial has lost its way, because the people are no longer expected or required to utilise their common sense, logic and reason and moral compass. There is a need for the recognition that judgement through the consciences of fellow citizens is a necessity in order to deliver a healthy society in which people are policing themselves. Without this involvement, the people feel powerless, resentful or angry. Instead it seems many in the establishment would rather think that the proper position would be to deny this concept and take things still further away from that principle of the people’s ownership of the law. I believe this is evidenced by two things in particular:
Justice Saini, in his Trudi Warner judgement suggested that Jury Independence was a principle of our law and a feature of our constitution. Admitting that, but then refusing to inform the population of this important duty to exercise their responsibility, might be considered by some as unconstitutional.
I also find the arguments that the jury risks breaching their oath when deciding according to conscience as illogical and perhaps a thinly-veiled attempt to dissuade the more dissident of us to remain compliant! The argument goes that a jury that returns a perverse verdict breaches their oath because they are essentially denying evidence. But I don’t believe it means that at all; it simply means that the jury has seen the evidence and understood it, heard the directions of the Judge, too, but perhaps, despite all of this, still wish to return a not-guilty verdict because, according to good conscience, they feel they cannot punish the defendant. It is a rightful decision because the God-given consciences of the jury remain supreme over the regulation from a legislature.
No oath is being broken at all but this more logical conclusion is, I think, too terrifying to consider by many in both the legal profession and judiciary - and not without reason. It is not always that the gate-keepers of control are doing it for personal gain! It may also be a genuine reflection on what this could mean for society when questions arise about the general public’s perception of morality. I understand this, but nevertheless, despite these honest concerns, in the bigger picture, this remains the active denial to the people of their God-given right to self-improvement through responsibility.
In fact the further eroding of the mechanism of Trial by Jury, will, I believe, necessarily bring about continued moral degradation to our community anyway, because, it takes us out of alignment with Natural Law and breeds resentment within the citizenry. It further obfuscates the true purpose of Justice which, as already said, is to help heal, aim to resolve, and brings a recognition that exercising one’s rights to the extent that it infringes on another’s, hurts them. No system is perfect and nothing is without risk. But we must look at what nature (or reality) intends.
All of this demonstrates, surely, that our reality favours the true condition of liberty: self-governance – as opposed to the submitting to a central authority. The relationship of self-governance to a free, healthy society is a dynamic of Natural Law (see Mark Passio’s presentation on Natural Law 2013. https://www.youtube.com/watch?v=ASUHN3gNxWo ). For this reason, the gradual erosion of Trial by Jury could be seen as working against that natural order.
It is perhaps worth quoting Lysander Spooner at this point…
‘The conclusion, therefore, is that any government that can for a day enforce its own laws without appealing to the people (or to a tribunal fairly representing the people) for their consent, is, in theory, an absolute government irresponsible to the people, and can perpetuate its power at pleasure.
The trial by jury is based upon a recognition of this principle, and therefore forbids the government to execute any of its laws by punishing violators in any case whatever, without first getting the consent of 'the country,' or the people, through a jury. In this way, the people at all times, hold their liberties in their own hands, and never surrender them, even for a moment, into the hands of the government.’
Lysander Spooner from his essay on Trial by Jury 1852
I believe it was US Judge Oliver Wendell Holmes Jnr. In 1997 who was suggesting that a heavily legislated society is necessary in order to deal with the ‘Bad man’. But, in the process, he failed to realise that the ‘bad man’ favours legislation because he can pre-plan how he might ‘get around’ the law; whereas principle-based law decided through conscience benefits the moral man. The concern here, then, is that, within a society that is heavily legislated, it is the immoral man who is shaping the law.
It is no surprise to anyone, that an ever-enlarging body of legislation in our increasingly complex and centrally-managed society will only lead to a progressively heavier burden on the Justice system and cheapen the experience of justice; more rules to follow, more falling foul of the law. One could hardly claim anymore, in this situation, that ‘ignorance of the law is no excuse’. Justice is delivered less based on principle, but more on an ever-increasingly complex technical landscape of rules pre-modelled by a legislature – ultimately a futile exercise due to the infinitely complex nature of reality. It appears that judgement is delivered less through latitude and discretion in this formulaic and algorithmic framework. You, Sir Brian, will know only too well that Judges themselves are experiencing this in the ever-tightening sentencing guidelines – as is a magistrate also hampered, perhaps, by the legal advisor when wishing to exercise latitude and discretion.
This is why I have talked much about the sense of ‘ownership’ of the law by the people that make up our society. More and more, we hear statements from the government that lead us to believe falsely that our rights stem from the authority of man (government) rather than being grounded in the inevitability of Universal Truth (Natural Justice and Individual Rights).
One cannot fail to notice further the obfuscation around the technical understanding of our Constitutional Law. Our Constitution is sometimes claimed to be ‘unwritten’ and this is interesting from the perspective that although it is expressed quite clearly in the Great Charter, what it expresses are less man-made constructs but more inevitable truths. Is this what we mean, perhaps, by unwritten? To be clear, it is the 1215 Magna Carta, specifically (the Great Charter) and not the conventionally preferred legislative re-writes made by the King that came later in 1225 and 1297. It was under the 1215 specifically, that the government, in perpetuity, was bound; because that one was the Charter containing the articles of Common Law, and not the government’s (or King’s) own legislation. It was the 1215 that remains beyond the reach of the King or government in general.
The purpose of a Constitution, after-all, is to place lawful limitations on government so that the ownership of the Rule of Law remains firmly with the people. And, to return to the point of the unwritten nature of the Constitution, the legitimacy of it comes specifically from the fact that these are simply inevitable truths and not made-made constructs. One can’t help noticing the language of the founding fathers of the American Constitution in their use of this similar language in the Declaration text: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…’. The everlasting promise of King John at Runnymede placed him once again, under these lawful, legitimate and universal constraints that had always existed, those same constraints under which he should already have been bound by his earlier Coronation Oath through the Law of the Land or Legem Terrae. This was his Trial by his peers – the peers of the realm – who rightfully brought him to account for committing crimes under the Constitution. These ancient laws (or inevitable truths) were mentioned by many commentators in the history of our law.
Yet the English were very zealous for them [the laws of Edward the Confessor/Common Law] no less or otherwise than they are at this time for the Great Charter; insomuch that they were never satisfied till the said laws were reinforced, and mingled, for the most part, with the Coronation Oath of King William I, and some of his successors.
1 Hale’s History of Common Law, 157
It is agreed by all our historians that the Great Charter of King John was, for the most part, compiled from the ancient customs of the realm, or the laws of Edward the Confessor; by which they mean the old common law, which was established under our Saxon princes.
Blackstone’s Introduction to the (Great) Charters; Blackstone’s Law Tracts, p. 289
These are the same laws and customs which were called by the general name of ’the law of the land’, or ‘the common law’, and with some slight additions, were embodied in Magna Carta. This oath not only forbid the king to enact any statutes contrary to the common law, but it proves that his statutes could be of no authority over the consciences of a jury since... it was one part of this very common law itself (that is, of the ancient “laws, customs and liberties” mentioned in the oath) that juries should judge of all questions that came before them, according to their own consciences independently of the legislation of the king.
Lysander Spooner, An essay on ‘Trial by Jury’ 1852
It is illogical to claim, therefore, that the source of Constitutional authority lies with the government’s own legislative powers – whatever phrases may be trotted out such as ‘Constitutional Statutes’, ‘implied repeal’ or the purported absurd notion of ‘Parliamentary sovereignty’. The government cannot legitimately write itself into Constitutional authority; only pretend or claim to do so whilst acting unconstitutionally. In reality, all branches of government sit under the authority of the legitimate Constitution embodied in the original 1215 Great Charter.
It is easier for me as a lay person on the subject of Constitutional Law, to see how all of this was really supposed to work. From outside the official world of the legal profession, the Judiciary and the Court system, it is easier to cut through what I believe to be a smoke and mirrors exercise to obfuscate over centuries these simple truths. It is no doubt uncomfortable, however, for any state-trained professional to accept the awkward notions that our Constitution’s legitimacy emerges only when it is understood in this form, and was understood as a mechanism of limitation or constraint on the entire machinery of government; because it cannot be a construct of man. It is naturally ‘the people’s Constitution’, and ‘the People’s Law’. As an artificial construct, the government itself is fundamentally a servant of the people and when one thinks this through afresh and is honest with oneself, it is, though distasteful to a collectivist mindset, quite obvious. If one thinks that a Constitution can be changed through legislation then, frankly, what would be the point of it? A constitution loses its very legitimacy if that claim were correct!
It stands to reason that the final arbiter of law must be the citizenry and it is, surely, through the mechanism of Trial by Jury that the consent of the people is obtained. The claim that this consent can be acquired through adult suffrage and the majority vote is ludicrous, again, when one is being honest with oneself. No man can be expected to give consent to any future law that is to be proposed by a political party for which he didn’t vote, at some future point within the next political term! How would that be just or moral in any sense – even for those that did vote for the party? The conventional claim that this is the only way in which the people of a society can influence their own governance would be ridiculous even if it could be said that the will of the majority has an inherent right to hold sway over the minority, simply due to a superior number.
The authentic Rule of Law never intended adult suffrage to cause the formation of laws – merely to elect public servants. According to the Constitution and the principles expressed in the 1215 Magna Carta, all legislation must be in alignment with the Common Law (Legem Terrae) and be subject to the test of Judicium Parium.
So, in conclusion, (you will be relieved Sir Brian!) with respect, the government has no Constitutional right to limit Trial by Jury at all and certainly not still further than it already has. In fact, I would argue that under the Constitution, it is a requirement that the justice system is properly funded and even returned to full trial by peers. I would go further still, and suggest that there is a lawful obligation on the part of government as a whole to begin educating legal professionals and the general public on the profound importance of Trial by Jury as the primary tool to bring about an equitable society in which we should be living.
I would also suggest that much of the legislation on the statute books is unlawful, constitutionally as it breaches the free will of the people. Simplifying the law by reducing the amount of legislation (and reducing the size of government itself) would go a long way to cause the justice system to manage once again at least in the short to medium term.
Beginning to let go of the levers of control will (to a broadly collectivist state) be tough but I am sure they are all up for that challenge! Individual Rights (or an ideology of Individualism and Natural Rights) is what the Constitution frames in its legitimate form. Anything else is merely a man-made construct or an artificial ‘authority’ desperately kept in place by a controlling mindset. Clearly this will be a long process, but perhaps it is time that public servants across the entirety of government machinery came to face the elephant in the room - which is that, in their official capacity, as a government functionary, they sit beneath the authority of the Constitution and cannot in any capacity alter that limiting framework. We have been for a long time, and are now, in an unconstitutional state of affairs. To a more cynical mind looking on from outside ‘the system’ this is beginning to look like a contrived situation; a deliberate under-funding of the justice system in order, perhaps, to take out the last remaining vestiges of the people’s Constitution. Why would that be, I wonder?
You did ask contributors to be bold, Sir Brian, so I am clearly doing just that! Perhaps, you could merely push back against the executive and legislature and suggest that there are no shortcuts to this and that they must fund the justice system properly, not only because they are required to do so but also because it is perhaps the primary reason for the government’s existence. Perhaps by stopping the funding of foreign wars to the tune of billions might help in this regard!
So, in short, my suggestions to the government would be (!)…
As a result, the nation begins to understand what justice is really about, how complex judgements can be and how much there is to learn from legal professionals. But, most importantly, we begin to shift society back to an individual rights-based one, which is functioning equitably as the Constitution (and Archbishop Stephen Langton) had always intended.
Good luck in your work, Sir Brian, and thank you for your invitation and kind attention,
Yours sincerely,
William Keyte
www.CommonLawConstitution.org