Tuesday, 13 March 2012
My most reliable legal counsel told me about Ashford vs Thornton the other day.
It was 1816. Thornton went for a walk with Ashford's sister after a dance. She was found raped and murdered. Thornton was arrested, tried, and quickly acquitted (public sentiment was against him, but that's a different thing).
Ashford launched an appeal, Thornton was rearrested and he claimed the right to Trial by Battle, which had never been removed from the statute books. Since, in the view of the judges, the evidence against Thornton was not overwhelming, the this right was granted. Ashford declined the offer of battle, which is an offer not many people offer me for whatever reason, and Thornton emigrated to America.
The offer of battle was a literal throwing down of a literal gauntlet, literally in Westminster Hall. One of the judges, Lord Ellenborough, explained that:
The general law of this land is in favour of the wager of battle, and it is our duty to pronounce the law as it is, and not as we may wish it to be. Whatever prejudices may exist therefore against this mode of trial, still as it is the law of the land, the Court must pronounce judgment for it.
Trial by Battle was repealed in 1819, in a great hurry with all three Lords readings being passed in a single night, because someone else (unnamed) was about to have a crack.
Two Scottish brothers accused of armed robbery tried to claim the right in 1985, saying the repeal didn't count for Scotland. The defendants, however, could offer no evidence to oust the statutory presumption that Parliamentary acts apply to the entire United Kingdom. I, for one, am not surprised
A minor driving offender tried it in 2002 saying that battle was still valid under European human rights legislation. He didn't realise that, on the whole, European human rights legislation is not as barmy as lazy comedians and newspaper columnists think.