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2016 Hamlyn Lectures: Dame Sian Elias and the origins of our criminal justice system

Tonight at Cardiff Law School I attended the first of Dame Sian Elias’ three Hamlyn Lectures. The second will be in Exeter, home of the Hamlyn Trust, and the third will be in Lincoln’s Inn. Elias is Chief Justice of New Zealand, and she was accompanied by our own Lord Chief Justice, John Thomas having agreed to act as a kind of senior judicial chaperone.

Elias reminded us that much of our criminal justice system is relatively modern. The right to silence, the privilege against self-incrimination, the right to legal representation, the availability of trial by jury and the requirement for jury unanimity, and the respective role of judge and jury were not firmly established as basic principles until the Victorian era. This is an interesting observation for lawyers from the former outposts of British Empire, because it means that in many colonial jurisdictions, the heavy weight of England’s legal history did not really press upon the development of criminal law as it did in other areas, like equity. As regards criminal law, we all grew up together.

Elias dwelled on 1842 trial of Wiremu Maketu, a young Maroi who would ultimately be the first person executed in New Zealand under British rule. It was the first major criminal trial to follow the Treaty of Waitangi, by which the Maori chiefs acceded to Britain’s declaration of sovereignty over the islands, and thus the trial was seen as a kind of show case for British justice. Whilst far from perfect (Maori apparently only secured legal counsel an hour before trial) it resembled in most aspects the sort of murder trial we would see today.

It is not apparent from the outset precisely what Elias may ultimately conclude in her upcoming lectures. However, I struck by her response to a question from the floor. A functional criminal justice system is, of course, essential to the rule of law, and one attendee wondered if it wasn’t the case that poorer countries, with societies of great material inequality, simply couldn’t sustain rule of law as we Westerners might conceive of it. Elias replied that it was precisely those sorts of countries where the rule of law was most needed. And this caused me to reflect on New Zealand.

At the time of Maketu’s trial, New Zealand’s ruling class were an ethnic minority, and they were as far from their homeland as they could possibly get (arguably, this has not much changed). The Maori chiefs were easily capable of hostile insurrection. The need for a reliable criminal justice system that could be seen to be fair to all was paramount. British sovereignty couldn’t function otherwise.

Is it not the case that the United Kingdom may owe much of its criminal justice system to its nineteenth century imperial responsibilities? I have no idea how Elias’ lectures will ultimately conclude, but it seems to me that Britain’s global presence that may have necessitated the dramatic improvement of its criminal law. These reforms certainly can’t be attributed to popular demand. The British public were as authoritarian then as they are today. Hangings were massively popular.

By this token, is it a complete coincidence that Britain’s criminal justice system is declining just as our responsibilities abroad evaporate? There is some significant overlap, is there not, between those who would withdraw from the EU and the ECHR, and those who want harsher prisons, heavier sentences, the further curtailment of legal aid, the admissibility of all prosecutorial evidence, etc?

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