Friday, February 01, 2008


Magna Carta

Gary Weddell was out on bail and he (apparently) used this opportunity to kill his mother-in-law and then commit suicide.

See: for a good summary of this tragic case.

The ensuing outrage resembles a witch-hunt against the Judge involved and calls into question the whole relationship between suspect, police and judiciary.

First, let's see what the law says, or as much of the law as can be understood by we commoners. Magna Carta is a good starting point.

Found in: Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction > CHAPTER THIRTY–SIX. > paragraph 1221

As trial by combat became rapidly obsolete, the original purpose of the writ was forgotten, and its once subsidiary object became more prominent. Before Bracton’s day, this change had taken place: the writ had come to be viewed primarily as an expedient for releasing upon bail homicides per infortunium or se defendendo. Bracton, in giving the form of the writ,2 declares it to be iniquitous that innocent men should be long detained in prison: therefore, he tells us, an inquisition is wont to be made, at the request of sorrowful friends, whether the accusation is bona fide or has been brought de odio et atia. This pleasing picture of a king moved to pity by tearful friends of accused men scarcely applies to John, who listened only to suitors with long purses: the writs that liberated homicides had become a valuable source of revenue. Sheriffs were reprimanded for releasing prisoners on bail without the King’s warrant, but, in spite of heavy amercements, they continued their irregularities. Thus, in 1207, Peter of Scudimore paid to the exchequer 10 marks for setting homicides free upon pledges, without warrant from the King.3 In that year, John repeated his orders, strictly forbidding manslayers to be set free upon bail until they had received judgment in presence of the King’s justices.4

The barons were fed up with the King pocketing all the cash just so the accused could get out of jail whilst proper inquiries were made. So, they grabbed their chance in the Great Charter to try to force the King to grant bail even in capital cases (my italics).

The U.S. Constitution seems to guarantee the accused bail under the provisions of the Eight Amendment. But, as the following article points out, this is not usually available in capital cases.

Just to make things even more complicated, the European Court now has a say!


The requirement for “trial within a reasonable period or release pending

trial” is in fact two distinct and cumulative requirements. A detainee must

be tried within a reasonable period and has a qualified right to release

pending trial. The former need be of no concern.


In respect of the latter, the Court must be satisfied that there were

reasonable grounds for continued detention before a denial of bail can be

compliant. To determine the question, the Court concentrates on the

actual decision making process in the national court. Potentially good

grounds for denying bail include that


there is a danger that the defendant would fail to attend trial,

interfere with evidence or witnesses or otherwise obstruct justice, or

commit a serious offence;


it is necessary for the purposes of the investigation;


the defendant’s release would disturb public order; and


detention is necessary for the defendant’s own protection.



Release can be conditional on “guarantees to appear for trial”.


The ominous point here is (b) “for the purposes of the investigation”. D seems more than a bit subjective as well.

The summation is rather problematical. I remember attending a session at the Royal Courts of Justice with my father-in-law, who was a probation officer. This was many years ago, yet I believe the experience hasn't changed much!

What struck me as more than odd were the bail arrangements – or lack of them if you prefer. The Crown would read the charges against the defendant and then the judge would ask if the defence would like to make any applications? The defence would invariably apply for bail. The Judge would ask for a police report. The police would outline how many time the defendant had been arrested and charged with whatever.

That's arrested and charged – not convicted!

The Judge would always say the same thing. Application denied.

Things must have radically changed for Mr Weddell to have received bail so easily.

Or, have they? Perhaps, is this yet another case of the “Establishment” looking after one of its own?

Here we have Mr Weddell, an ex-police officer, out on bail after being charged with murder. I'd like to know how many others who face similar charges were bailed last year? Then we might be able to make a convincing case for justice one way or the other.

And, where are the statistics for prisoners having bail applications approved from various socio-economic groups? Must you be an upstanding member of the community or an ex-police officer to get bail?

It's possible we haven't really made much progress since King John.

People who are on remand for months and years awaiting trial are longing for Magna Carta and the Human Rights Act to get them bailed.

They wait in vain. In light of this case it's likely that the government will make it even more difficult to get bail.

Let's hope you and I don't get arrested by mistake.

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