All entries for Saturday 04 June 2005

June 04, 2005

THE OCTROI DE MER: BOUYANT IN THE WAKE OF THE FREE MOVEMENT OF GOODS [FRENCH AND EU LAW]

[N.B. – see 'Evidence, proof and English law through the ages, (part 1)' for an explantion as to why I am posting this]

_‘The work of the water-clerk consists in racing under sail, steam, or oars against other water-clerks for any ship about to anchor, greeting her captain cheerily… piloting him firmly but without ostentation to a vast, cavern-like shop… where you can get everything to make her seaworthy and beautiful, from a set of chain-hooks for her cable to a book of gold-leaf for the carvings of her stern; and where her commander is received like a brother by a ship-chandler he has never seen before. There is a cool parlour, easy-chairs, bottles, cigars, writing implements, a copy of harbour regulations, and a warmth of welcome that melts the salt of a three months' passage out of a seaman's heart.’_

I have taken this passage from Conrad in an attempt to contextualise the subject of my discourse: the octroi de mer, the name first given to a French customs duty levied on the cargo of ships when they docked at colonial ports. Had the harbour in our extract from fiction been flying the tricouleur, the duty would have undoubtedly proved a less welcome yet unavoidable salutation for the captain. Yet, ante-diluvian though it may sound the octroi de mer continues to be levied today. It survived the post-war decolonisation process and, more recently, has endured criticism by the European Commission, which is a point I shall examine in detail below. It is now a dock due or a landing charge imposed on imports at the ports of the four French overseas departments (which I will hereafter refer to by their French acronym – DOM – or department d’outre mer) which is then channelled back as a grant to fund their economic and social development. The DOMs are Guyana, an equatorial territory roughly 3/4 of the size of England, on the South American continent, 94% of which is covered by rainforest, and the islands of Réunion, in the Indian Ocean, and Martinique and Guadeloupe in the Carribean. Under the French Constitution of the Fifth Republic they form an integral part of the French Republic. The DOMs suffer from comparative economic hardship, much of which is attributable to force majeure events such as volcanic eruptions, seismic activity and adverse meteorological events such as hurricanes. Tourism, on which Guadeloupe is particularly dependent, fishing and agricultural activities are especially vunerable to such events, particularly as the produce of the DOMs, essentially bananas, rum and sugar, is highly specialised. Other factors debilitating economic growth, such as illiteracy: currently at more than 30% for the population over the age 46 in the DOMs and unemployment, which is roughly at 30%, are anthropically remediable .

A BRIEF HISTORY OF THE OCTROI DE MER AND THE DOMS: FROM COLONIALISM TO FEDERAL INTEGRATION TO DEVOLUTION

The first reference to the octroi de mer is as a tax levied proportionally to the weight of merchandise imported into the French colony of Martinique in 1670 and in its etymology it is equally colonial: octroi derives from the old French for ‘conceding to the king, the sovereign authority,’ though it presently means ‘grant’ in French. Yet the tax always had a munificent objective: the terrestrial octroi was levied at the entrances to cities whose other revenues were not sufficient to cover their public needs. Colbert, who became controller-general of finances in 1661, followed the principle that if the octroi produced a surplus of revenue that surplus should be used to pay off public debts. Though the octroi de mer was not applied in the same way, since the French colonies were at the time governed by private companies who could spend the revenues they gained from the octroi de mer as they saw fit, the principle was the same.

Following a 30 year period in the aftermath of the French Revolution of 1789, during which the colonies and their commerce were declared independent, the octroi de mer was centrally reintroduced in 1819 by a colonial ordinance to Martinique, before being extended to Guadeloupe in 1825, and then to Réunion in 1850 and Guyana in 1878. In 1866 the senatus-consulte passed a law to transfer the power to alter the rate of the octroi de mer from the governor to the DOM council. However, the power to redistribute the revenue created by the octroi de mer remained in the hands of central government and by virtue of a law of 1892 the DOM council lost what little competence it had. Decisions made by DOM councils would thenceforth only become executive after a decree passed by central government.

On the 19th March 1946 the four colonies were departmentalised – i.e. they became DOMs – but perhaps more importantly for them the law passed on this date, in the spirit of protectionism, also brought to an end the levying of the octroi de mer on locally produced goods, a fact that had been leaving the DOM councils reluctant to enforce the charge. It was not until the law of 2nd March 1982 was passed, however, that the DOM councils gained executive powers and further devolution came in the form of another law on 2nd August 1984 which granted the DOM councils the power to modify the rate of the octroi de mer and even impose a DAOM (droit additionel à l’octroi de mer) of 1%.

Today the octroi de mer is levied based on the ‘Cost and Freight’ or CAF principle whereby, once it has been established in which of four categories the good belongs, the charge is imposed ad valorem – i.e. according to the cost price and the cost of transport of the good. The octroi de mer and the DAOM, which together brought in a revenue of 755m€ in 2003, otherwise 20–30% of the total revenue of the DOMs , have a duel purpose. They act both as a resource for the DOMs through their redistribution via funds created for the socio-economic development of the DOMs (which contribute on average to 9% of the market GDP of the DOMs) and protect local industry by the exclusion of its products from the charge. They also penalise certain targetted goods such as tobacco or alcohol, which may be taxed, respectively, up to as much as 30 and 50%.

THE EUROPEAN COMMISSION’S CONCERNS: ART. 90 OF THE EC TREATY

The European Commission’s opposition has been levelled not so much to the octroi de mer itself but rather to the exclusion of its application to locally produced goods, which it sees as discriminatory against any imported goods that are not locally produced, particularly those originating from the EU. In response to complaints dispatched by exporters to the DOMs the European Council adopted decision 89/687/EEC – also known as the Poseidom decision – on the 22 December 1989 affirming that while in principle the exclusion of the octroi de mer from locally produced goods does contravene art. 90 (ex. 95) of the Treaty Establishing the E.C. (TEC) support measures for the DOMs could still be adopted under the banner of bilaterally agreed regional aid, in compliance with arts. 87 (92), 88 (93) and 89 (94) of the T.E.C. This ‘balancing act,’ which I put in quotation marks for to all intents and purposes the octroi de mer has come through largely unscathed from EU intervention, was achieved with the obligations found under art. 299(2) (ex. art. 227(2)) weighing down the on other side of the proportionality pivot. The third subparagraph of Article 227(2) requires the institutions of the Community, within the framework of the procedures provided for in the Treaty, in particular Article 226, to take care that the economic and social development of the DOMs is made possible. Art. 226 provides that a Member State may apply to the Commission for authorisation to take protective mesures, which may involve derrogations from the TEC, if grave economic difficulties in a particular area are liable to continue or deteriorate. In its decision Hansen v Hauptzollamt Flesburg the Court recalled that Article 227(2) made provision for the Treaty to be applied to the DOMs by stages, and in addition it made available the widest powers for the adoption of special provisions commensurate to the specific requirements of those parts of the French territories. Furthermore, the court in Hansen also acknowledged that it remained possible, after all the provisions of the Treaty had entered into force for the DOMs, subsequently to adopt specific measures in order to meet the needs of those territories.

Thus, with the need for socio-economic development in the DOMs in mind, art. 2(3) of the council decision provided for a locally produced goods exemption period from the octroi de mer of 10 years from the date of the coming into force of the new octroi de mer regime, provided that the exemption contributes to the promotion or maintenance of economic activity in the DOMs. This 10 year period began to run from 17th July 1992, when France adopted a law implementing the council decision a few months before the permission granted to France under the council decision to to continue the exclusions under her 1984 law ran out. A year before the expiration of the 10 year period the Commission would have to report on the the impact a wholesale imposition of the octroi de mer would have on the DOMs, taking into account their levels of unemployment, the balance of trade and the regional GDP.

A BREACH OF ART. 25 OF THE EC TREATY ?

In the case of Chevassus-Marche v Conseil Régional de la Réunion the European Court of Justice (ECJ) was asked to consider whether the octroi de mer exclusions are compatible with art. 25 (ex.12) TEC. This argument would appear to be barely tenable for two reasons. Firstly, as was held in the case of Co-Frutta v Amministrazione delle Finanze dello Stato , because the same levy cannot at the same time fall foul of the class of charges having an effect equivalent to a customs duty – under art. 25 – and within that of internal taxes that discriminate against imported products – under art. 90 of the Treaty. Secondly the ECJ had insisted in the case of Italy v Commission of 1969 that in order for a charge to have an equivalent effect to a customs duty the product in question would have to cross a frontier. This ruling was upheld in the case of Commission v France of 1979 Yet the DOMs form an integral part of the French Republic according to its Constitution and the TEC applies to France , despite the objections of M. Nicolo, who claimed unsuccessfully that the citizens of DOMs should not be eligible to participate in the European parliamentary elections since the TEC only applied to metropolitan France (i.e. France in Europe). In this light art. 25 would seem to be inapplicable in the absence of a frontier. However, the ECJ declared in the case of Administration des Douanes v Legros that a charge such as the octroi de mer (as it was pre 1992) imposed on vehicles coming from another part of France and originating from Germany and Sweden is a charge having an equivalent effect to a customs duty regardless of the fact that the frontier crossed is regional and not national. The court went further, maintaining that since it had held in the case of Fink-Frucht v Hauptzollamt Muenchen that where a pecuniary charge is imposed at the import stage it may be classified as internal taxation only if it is imposed on every kind of product, whatever its origin, the octroi de mer, which excluded locally produced goods, could not be caught by art. 90. Not least because it was the exclusions to the octroi de mer rather than the octroi de mer itself whose lawfulness was in question these rulings were perhaps a somewhat uneccessary and unhelpful circumnavigation of the frontier between art. 25, drafted to apply to customs duties duties on imports and exports (and charges having equivalent effect) and art. 90, which was clearly intended to outlaw discriminatory internal taxation imposed after the goods had been imported or exported and while they are circulating within a Member State. The ECJ, however, seems determined to blur the distictions between arts. 25 and 90, as was apparent in its 2001 decision, Charalampos Dounias when the court held ‘it is of no interest to determine whether the tax is considered to be contrary to art. 90 or arts. 23 and 25 of the Treaty.’

THE RESPONSE OF THE FRENCH GOVERNMENT

Unsurprisingly the French government, with obligations towards the wellbeing of its DOM electorate, argued in Legros that the octroi de mer does not constitute a charge having an effect equivalent to a customs duty pointing out that it is introduction into the DOMs that gives rise to the levying of the dock dues and that that the dock dues also affect in the same manner products coming from metropolitan France introduced into Réunion. Perhaps inevitably such protests were to little avail, though the ECJ did, to its credit, rule that its judgement would not take effect retroactively so that the French authorities would not be flooded with claims for restitution from those who had paid the octroi de mer before the date of the judgement. Hilariously, between 17 July 1992 – the date of the Legros decision and the 31st of December 1992 no less than 27 proceedings were brought before the ECJ by companies who had been charged the octroi de mer during that period. The ECJ was left with little option but to accept the French government’s subsissions that, since the octroi de mer operates so that the payment of the charge is in practice passed on from the trader to the purchaser based in the DOM, it would be unjust enrichment if the importer were restituted for the expense. The court further held that the actual passing on of such taxes, either in whole or in part, depends on various factors in each commercial transaction, which it held to be matters of fact to be determined by the national court. The ECJ thus effectively indicated that it would be for the French national court to decide whether or not France should restitute traders who had paid the octroi de mer! At the same time the ruling failed to give much consideration to the fact that the trader may have suffered damage as a result of the very fact that he had passed on the octroi de mer charge, since the increase in the price of the product brought about by passing on the octroi de mer would likely lead to an increase in the price of products originating from the ‘EU in Europe’ while the the price of local products, exempt from the octroi de mer, would remain the same, so that the trader would suffer financially from decreased sales and hence a decrease in demand for his products next time he exported to the DOM.

In any event, the octroi de mer and justified exclusions thereto were finally declared to be lawful in the Chevassus- Marche decision and reaffirmed in joined cases Société Beton Express et al. v Direction Générale des Douanes so that Legros can only be of academic interest now.

France has, to its advantage, exploited the Council’s successive renewals of the exemption period of DOM produced goods from the octroi de mer and has lately adopted, following the acceptance by the Council of its application to the Commission of April 2002, for the prolongation of the exclusion of DOM produced goods from the octroi de mer until 2014 – i.e. another 10 years. A law passed on the 2nd July 2004 instigating a new regime of partial or total exclusions, which came into effect on the 1st August provides, under arts. 4 and 5, that local products may be exonerated from between 10 to 30% of the octroi de mer when the charge is passed onto businesses with an annual turnover of less than 500 000€. Art. 27 of the law provides that otherwise the octroi de mer shall be applied equally to DOM and foreign products.

CONCLUSION

Despite their efforts the various institutions of the EU have failed to jettison either the tricentennial octroi de mer or its exclusion from products originating in the DOMs. As a result the DOMs have benefited from sustained economic growth. Despite the odds stacked against the DOMs, their GDP per capita rose from a mean of 41% to a mean of 47% as a percentage of the European average between 1986 and 1996). It remains to be seen whether the EU will tolerate the octroi de mer itself once the DOMs have achieved reasonable socio-economic parity with the EU as a whole and there is no longer a need for the exclusions, though as I have indicated this is unlikely ever to happen due to the force majeure nature of the DOMs’ economically disadvantageous geographical lot.

Throughout this article I have made my opinion regarding the utility of the octroi de mer transparent as the sea around some tropical island and I have resolved not to end my voyage without taking on board some wider observations. First of all it is difficult to overlook the evident lack of effective powers of enforcement on the part of the EU institutions against member state governments and the impact this has on the outcome of the decisions of those institutions. Second of all it is perhaps necessary to remark on the avantage géostratégique that France gains from her DOM possessions. The distance separating the DOMs from metropolitan France varies between 7 000 and 9 000 km, giving her 11m km2 of maritime territory and placing her third globally in terms of the area of her exclusive maritime economic zone. Indeed, on reflection, the DOMs are perhaps less conspicuous when lined up beside L’Acadamie français and France’s international veto owing to her being a permanent member of the UN’s Security Council. Here I might also make passing reference to France’s Napoleanic Civil Code, which celebrated its bicentenary in 2004, articles 14 and 15 of which permit any French citizen who has concluded a contract with a foreigner to bring that foreigner before any French court – even if that foreigner is not resident in France – for a court ruling ordering him to carry out his contractual obligation. And no doubt while French holidaymakers are guaranteed, concurrently, winter sun and a familiar police force that may take seriously reports of stolen wallets and cameras France will be able to justify keeping her overseas possessions on the grounds that she is raising the standard of living by encouraging the growth of economies of scale etc. Yet, though the octroi de mer may exclude products produced in the DOMs and thus protect the local industry the cost of the charge on the import, which might be a key product essential to economic growth in the DOMs, is still ultimately borne by the importer, who will likely be an significant turbine driving that economic growth. Though the DOMs are no longer colonies they still concede ultimately, and like the octroi de mer, to the sovereign authority.


EVIDENCE, PROOF AND ENGLISH LAW THROUGH THE AGES: PART TWO

[N.B. See Part One for an explanation as to why I am blogging this]

CONFESSIONS AND TORTURE

Unlike her continental neighbours, England has rarely employed torture to obtain confessions. The peine forte et dure or ‘pressing to death’ was created in 1275 was practised in England and reached the pinnacle of its use during the reign of Henry IV but this was not to obtain evidence but rather a pre-trial method used to oblige the accused to participate in the first stage of his trial: the pleadings stage . This might be contrasted with the practices of the now infamous Star Chamber , which was neither a court of common law nor of equity but an offshoot of the King’s Council that first emerged in the 13th C though it was not until 1487, that an Act passed by Henry VII made the Chamber a separate judicial body with a panel consisting of the Chancellor, the Treasurer, the Keeper of the privy seal, a Lord temporal and a Lord spiritual and two other justices with a mandate to hear petitions of redress in instances of public disorder, disputes over property rights, public corruption, trade and government administration. The Romano-canonic procedures the chamber adopted were readily abused by the sanguine Tudor and Stuart dynasties who used it to ensure their opponents suffered cruel, ruthless and humiliating financial and corporeal sentences such as, respectively, ear-cropping and fines of thousands of pounds. By the time of Charles I the court had become a byword for abuse of power by the King and his circle who used it to examine cases of sedition – in practice, anyone who dared to oppose royal policies – this was undoubtedly a catalyst for the Civil War especially as the chamber was used as a substitute for Parliament, which the King refused to convoke between 1628 and 1640. The Chamber was abolished by an Act of Parliament of 1641. Though it is technically true, as modern authors such as Barnes and Elton have argued, that most incidences of torture being used to obtain confessions were in cases of treason, outside the Chamber’s jurisdiction but within that of the Privy Council, in practice the Privy Council, composed of Chancellor, the Treasurer, the Lord Privy seal…. was the same establishment . It would be perhaps unfair, though, to draw comparisons between a sinister dearth of inter-governmental department responsibility for statist acts of torture in unseperated juro-executive 17th C. with the recent dicta of Laws LJ, unfortunately siding with the majority of the court, in a Court of Appeal decision of 11th August 2004 who was ‘quite unable to see that any such principle (prohibiting courts from considering evidence obtained by torture in Britain) prohibits the (Home Secretary) from relying… on evidence coming into his hands which has been obtained through torture by agencies of other states… If he has neither procured the torture nor connived at it, he has not offended the constitutional principle.’ The appeal had been brought by lawyers representing ten foreign nationals interned indefinitely without charge or trial under the Anti-Terrorism Crime and Security Act 2001 in Belmarsh and other high-security prisons.

RULES OF ADMISSABILITY OF EVIDENCE

Having discussed institutions and practices having a bearing on proof, it would perhaps be helpful to deal directly with evidence henceforth. The number of rules governing the admission of evidence have steadily multiplied, particularly since the 16th C, though it has always been the case that evidence must be admitted separately and in respect of logic, being juxtapositioned together only thereafter, to determine the decision of the court. I shall approach this subject by dealing with oral and written evidence separately.
1. ORAL EVIDENCE

Oral evidence, historically decided on by juries, usually took the form of the testimonies of witnesses, though when the jury first emerged in the 11th and 12th Cs jurors were not permitted to hear the testimonies of witnesses. This was because at that time they were themselves witnesses, of character, whose subjectivity might be tainted by hearing other accounts of the accused and remained the case until the jury became a judge of fact. Though witnesses had minimal value in criminal cases since no one could be convicted on the sole grounds of a testimony the maxim testis unus testis nullus – i.e. at least two witnesses must testify – was not applied in England. The maxim was even overlooked with high treason until the case of Reniger v Fogossa (1551) in which it was held that the testimony of a sole person is insufficient in any law – i.e. including the divine law. In the 18th C. Montesquieu reproached laws that imposed the death penalty on the strength of a sole witness statement. But while Montesquieu distrusted witnesses and saw conflicts between the testimonies of witnesses and the defence submissions of the accused as a dilemma this incensed Blackstone who averred that the words of an accused are inferior to those of a witness. Such a conflict, between the words of the accused and that of a sole witness are exemplified by the case of Elizabeth Canning and Mary Squires, which was to become the subject of gossip and firewood for the tabloid press in 18th C London. On New Year’s Day 1753 Canning, an 18-year-old maidservant was abducted in the City by two ruffians. She was carried off in a carriage to a brothel in Enfield, eleven miles out of London. Here, `Mother Wells', the madam of the establishment, tried to force her to become a prostitute. Canning refused. A hideous gypsy staying in the house, Mary Squires, cut off the girl's stays, worth 10 shillings, and Elizabeth was imprisoned in an attic with only a few crusts of bread and a jug of water to live on. On January 29th, after almost a month in captivity, she escaped through a window and walked all the way back to her mother's house in the City. This was at least her story, and she kept to it. Mother Wells and the gypsy were arrested and hauled before an Enfield magistrate. In court the later to be novelist Henry Fielding, who was a then a Middlesex magistrate was asked to interrogate the unaptly named Virtue Hall, a girl from Wells' house who maintained she had never set eyes on Canning. Yet under Fielding's pressure she recanted and supported Elizabeth's story. Squires and Wells were tried at the Old Bailey in 1753. Wells was sentenced to be branded on the thumb for keeping a disorderly house – a punishment carried out forthwith amid a jeering, exultant crowd. Squires, the gypsy, was sentenced to be hanged for stealing Canning's stays. But Sir Crisp Gascoyne, who as Lord Mayor of London was ex officio chief magistrate and sat in on the trial, was apparently dissatisfied with the verdict on the grounds that Squires had an apparently watertight alibi – she was in Dorset at the time. Gascoyne appealed to George II, who granted, first a stay of execution, then a free pardon to the gypsy. Elizabeth Canning was indicted for perjury and imprisoned in Newgate-where Hogarth painted her portrait, and then sentenced to be transported to America for seven years . In 1754 the case was so well-known that it divided the nation . The two opposing factions were known as `Canaanites' (those who supported Canning) and `Egyptians' (the gypsy).

With regard to rules of exclusion, English law has long established that hearsay- the testimony of a third party who does not witness the event himself but hears a course of events narrated by a third person is inadmissible (by contrast it has historically been admissible on the Continent). Traditionally, there have nonetheless been exceptions. Hearsay was permitted in the exception of cases of murder where a statement had been made in articulo mortis and it was certain that the victim had no hope of survival and under the res gestae rule. This translates as "a transaction" and is used to describe a statement which relates to and is closely associated in time and place with a state of affairs or event so that it can be said that they form part of the same transaction. If a statement made by witness A, the victim of an attack, in the presence of witness B, made just after the attack, indicating the identity of the attacker. under the res gestae exception witness B may be able to give admissible evidence of what was said by witness A. The rationale is that there is thought to be less danger of concoction or fabrication of the evidence in circumstances where the events in question are likely to monopolise the thoughts of the witness . Another exclusion is that of legal parties testifying in sua causa – in their own case, established in civil law in 1589 in the Dymoke case, though it has been a principle taken for granted in criminal law since the 15th C. During the 19th C. advocacy as an artificial discipline flourished, and though barristers were precluded from asking leading questions that could be answered only by either a ‘yes’ or ‘no,’ sometimes they were the authors of masterful psychoanalytical strokes of cross examination. In one notable case Frederick Smith, QC, Earl of Birkenhead (1872–1930), cross examining the complainant, a boy who claimed to have been paralysed in his upper limbs by the acts of the defendant, successfully kindled a discussion about sport with the lad and asking whether he enjoyed cricket tricked him into demonstrating to the court how he bowled over arm . Sir Patrick Hastings a celebrated QC and Labour MP listed among the qualities vital to a good barrister a special talent to determine the profitability of a witness, his intelligence or stupidity and the mode of attack to take.
2. WRITTEN EVIDENCE

As with oral evidence, until its domaine was restricted to less than 1% of criminal cases and a negligible number of civil cases, it would principally be for the jury to appraise and determine the validity of written evidence. Originally only what the French would term as actes authentiques were admissible – i.e. those that constituted a complete proof of the text contained therein – which usually meant those bearing a seal. Since the coming into force of the Evidence Act 1938, S.1, any statement made by a person in a document establishing a given fact is, on production of the original document, admissible as evidence, provided that oral evidence of the fact would also be admissible and that the maker of the statement had personal knowledge of the proceedings. Some forms of written evidence, however, could not be proven or disproven by a jury and these include most notably those protected by the doctrine of estoppel, a phenomenon that Coke once remarked is ‘excellent and curious.’ Estoppel, an ancient doctrine akin yet different from presumption insofar as it only binds those who are a party to an action and is entirely irrebuttable, is a conclusive admission which cannot be denied by the party it affects, irrebutable written evidence that no other evidence can act as proof to the contrary. Indeed the parties would be rendered silent as though their mouths had been stopped to prevent them from speaking .

Some forms of evidence must be written, conspicuous examples of which include contracts for the sale of land and the will and testament. From the early 13th century until the Court of Probate Act 1857 and the establishment of a specialised civil court, the Principal Probate Registry, which started functioning on 10 July 1858, jurisdiction over wills and testamentary matters was held by the church . Due to illiteracy and the comparative gravity of illness in the absence of modern healthcare, which rendered people too ill to write it was unusual for testators to write their own wills. Tellingly pregnant women, especially if recently widowed, would be likely to ensure they had made a will. It is for these reasons that prior to 1837, when the law was amended, up to a third of wills were spoken (non-cupative) wills. As long as the dying testator had been resident at the place of death for at least 10 days and spoke his last wishes in the presence of three witnesses, the written account of his words were deemed to be legal even though the will was not signed by him. Any land or property disputes were usually conducted in Chancery . In diametric opposition to mandatory written evidence, in some cases the doctrine of judicial notice applies, that is to say that a statutory device will allow a judge to accept as true, and direct the jury to do likewise, certain fundamental facts not subject to serious dispute, so that the parties need not offer proof of these facts. Well known historical examples of judicial notice, which resulted from the copulation of strict rules of evidence and principles of reason include the existence of the Gregorian calendar, which until 1456 had not been proved by evidence as well as the location of the county of Hereford – no one had ever proven that it lies on the border with Wales.

Since the second half of the 19th C medical and forensic evidence have become increasingly more reliable and accurate, and expert witnesses, whether psychiatrists, dentists or ballistics experts now frequently take the stand. For example, in 1903 the Alphonse Bertillon method – a system which had for a long time been used for the identification of suspects by recording the dimensions of certain skeletal body parts was replaced by fingerprinting. DNA can, of course, now provide proof that is practically certain. Moreover, even though the expert may make a mistake and the science may only be a probability these forms of evidence are infinitely surer and safer than their irrational predecessors. In light of Jeremy Bentham’s treatese on judicial proofs, in which he postulated that the object of proof is to determine the truth we can not but ask the question: is the law keeping pace?


EVIDENCE, PROOF AND ENGLISH LAW THROUGH THE AGES: PART ONE

[N.B. As the editors of Orbiter Dicta, the Warwick Law School Magazine have given me no indication when, if ever my article on the above topic is going to be published, or indeed when the next issue of the magazine will come out I have taken the liberty to blog it. The next entry will be another unpublished article… (yes, I am a self-gloryfying, pretentious bastard). I apologise for the footnotes and references notable by their absence but I haven't the time to trundle through and format these just now. Will do so once my exams have finished.]

It is plain that the law cannot exist as a just and impartial system without rules that attribute culpability and wrongdoing or innocence and entitlement according to rational evidence and proof. What I hope to demonstate in my rapid flight through this immense theme is how the rules governing these instruments of legal verification have evolved from dark, Darwinist irrationality to enlightened rationality. In order to achieve this I have dealt consecutively with the principle historical institutions and mechanisms that provide sources of evidence and proof, loosely respecting the chronological order in which they appeared in English history. First of all, however, evidence and proof would do well to be distinguished. Evidence denotes information before a court which may prove an unknown or disputed fact before a law court whereas proof is anything that does determine legal truth. Historically this has often been convincing evidence in documentary form.

PRESUMPTIONS

Presumptions are legal fictions, either rebuttable/ permissive or irrebuttable that weigh a case in favour of either the claimant or the defendant and determine the burden of proof, which normally, of course, lies with the plaintiff – the ancient and now universal principle of actori incombit probatio. Probably the most famous presumption is the presumption of innocence though, despite universal reverance for it, the maxim cannot be found in Magna Carta, the English Bill of Rights of 1689, in the works of the great English jurists, Bracton, Coke, or Blackstone or any English case law prior to c.1800 . Nevertheless, the origins of presumptions penetrate so deeply into ancient history that it would be absurd to try and fix a date at which they first began to be used in English law. The Anglo Saxon king of Wessex, Ine, (688–726) held that foreigners who sounded horns in a wood near a road should be presumed theives and killed, while according to the law of Cnut (1017–1035) if a wife hid her husband after he had reported an object stolen she would be presumed to be a thief and punished alongside him. Thus a presumption stipulates that if the commission of an act can be demonstrated then another may or must be inferred from it . When a presumption is irrebuttable – for example, that a minor under a certain age may be doli incapacita, i.e. unable to have committed certain crimes – no factual inquiry challenging the truth of the presumed fact may be entertained by the court. In 1584, for example a statute was passed stating that a sale immediately proceeded by a second sale is presumed irrefutably to be fraudulous. Conversely, when a presumption is rebuttable, some factual debate as to the truth of the assumed fact is allowed. If a mother hid the death of her newborn there would be a rebuttable presomption of infanticide. Similarly in the case of the presumption of legitimacy – that a child born during a marriage is the legal issue of both spouses – the the factual inquiry is limited to a few exceptions that are difficult to prove. The presumption can be rebutted only by proof of the husband's impotence, sterility, or non-access to the wife This example raises interesting questions. In the absence of scientific proof to the contrary, courts dating back to the Middle Ages have employed presumptions to limit or bar the introduction of evidence to ascribe paternity. Current developments in genetic testing, however, can prove or disprove paternity and, thereby, call into question the validity of such presumptions. At present is is possible to establish by genetic testing to a 99.85% certainty that a particular man is not the father of a particular child, or to a 99.99999% certainty that a particular man is the father of a particular child . Consequently, courts must decide whether to preserve presumptions of paternity and legitimacy that protect children from bastardy or to yield to scientific advances. How should the law respond when advances in scientific knowledge reveal what was presumed to be true as scientically false? A judge once remarked that presumptions are ‘common sense and shrewdness. . .brought to bear upon the facts elicited.’ Another noted that the ‘weight of evidence depends on rules of common sense.’ These are, both very pertinent and compelling statements but then again bastardy no longer carries the social stigma it took delivery of under Victorian society. The social benefits served by the presumption of legitimacy were once manifold. It ensured that children were eligible to the financial support, inheritance rights, and filial obligations of their parents, preventing them from becoming wards of the state so that neither king, nor church, or taxpayer was forced to provide for them. Such arguments no longer hold weight. S.1 of the Family Law Reform Act 1987 established the general principle that there should be legal equality for children, whether or not their parents have been married to each other. Nevertheless the argument that the presumption of legitimacy maintains the stability of the family may still remain valid. The question remains, independent of the issue of equal treatment: is fatherhood a biological question or a socio-legal construct? This is just one way in which the incongruity between law and science has questioned the validity of presomptions. Yet the two might continue to co-exist: writing in the 18th C., the Scottish philosopher and historian David Hume nonetheless submitted an idea that remains convincing today. ‘In vain,’ he cautions, ‘should we pretend to determine any single event, or infer any cause or effect, without the assistance of observation and experience.’

THE ORDEALS

The ordeals were physical trials of resilience, undergone to prove the innocence or guilt of an accused, that originated as heathen customs prevailing in China, Japan, India and Egypt and among the barbaric races of Europe. They reversed the principle that a man is innocent until proven guilty, and throws the burden of proof upon the accused instead of the accuser. With the assistance of pious rulers the ordeals were exploited by the Church in mediaeval Christendom who staged them as the thaumaturgic intervention of providence divine to vindicate justice. Indeed the ordeal was a powerful means for the Church to enforce her authority over the ignorant masses she had to deal with . The customary ordeals in the middle ages were by either by fire, reserved for patricians or by water, meted out to plebians. In the cold water ordeal, or judicium aquae frigidae, often reserved for suspected witches, the accused was bound with cords and lowered with a rope into a reservoir or pond, with a prayer (The indication of guilt would be if the accused floated, while the innocent would, rather conveniently lest there be any doubt, sink and thus be accepted by the pure element. The judicium aquae ferventis obliged the accused, with his naked arm, to find a small stone or ring in a boiling caldron of water. The ordeal by fire (judicium ferri or ferri candentis) conversely was either administered either by means of a piece of red-hot iron, which he had to carry for a distance of nine feet or more, or in the form of six or twelve red-hot plough-shares (vomeres igniti), over which the person had to walk bare-footed while blind-folded. This last ordeal was undergone by Emma of Normandy, the wife of King Aethelred and mother of Edward the Confessor, after she had been accused by Robert, the Archbishop of Canterbury, of rather too close an intimacy with Ælfwine, the Bishop of Winchester. The choice of episcopal lover was short-sighted since the aforesaid Ælfwine had been dead three years at the time, but the brave-hearted Emma agreed to undergo the ordeal nonetheless (in lieu of compurgation – swearing innocence on oath). Miraculously Emma passed over the plough-shares unscathed, which was, needless to say everything to do with her having invoked the protection of St. Swithun the preceding night and nothing whatsoever to do with the scorching plough-shares being spaced at regular intervals or even with cold plough-shares having been painted red. The Church also invented and substituted new ordeals including the ‘ordeal’ of corsnæd which it reserved for its own bretheren and which involved undergoing the torture of eating consecrated barley bread and cheese after appropriate religious ceremonies. The profanity of the ordeal is ironic: those who regurgetated the holy sustenance would be deemed to be guilty, since God would send Archangel Gabriel to stop his throat. Miraculously not a single incident of this is recorded.

The genuine spirit of Christianity, however, urged towards an abolition rather than improvement of all these ordeals and more miraculous than the ordeal itself, perhaps, was the fact that certain of the clergy exposed the ordeals for what they were St. Agobard, archbishop of Lyons, (who died c.840) attacked the duel and the ordeal in two special treatises, which breathe an evangelical spirit of humanity, fraternity and peace. He says that the ordeals are falsely called judgments of God, ‘for God never prescribed them, never approved them, never willed them; but on the contrary, He commands us, in the law and the gospel, to love our neighbour as ourselves, and has appointed judges for the settlement of controversies among men.’ Several popes, and the fourth Lateran Council of Innocent III (1215) which outlawed the participation of the clergy in duels condemned more or less clearly the superstitious provocation of miracles . It was by the influence of these pontiffs, aided by secular legislation, that the God-tempting ordeals finally disappeared during the twelfth and thirteenth centuries, being abolished by an order of council of Henry III in 1220, but the underlying idea survived in the torture which for a long time took the place of the ordeal.

It would be expedient at this juncture to make reference to the judicial duel, a.k.a. the bilateral ordeal, which is, needless to say, the universal resort of all wild men and beasts to defend or gain possessions or to avenge insults. It prevailed among the ancient Danes, Irish, Burgundians, Franks, and Lombards, but was unknown among the Anglo-Saxons before William the Conqueror introduced it into England. The duel, considered by Ranulf de Glanvill in his De Legibus et Consuetudinibus Angliæ (1188) to be the chief mode of trial in treason, concealment of treasure trove, homicide, arson, robbery, rape and falsification accorded legal victory to the stronger party, or he who was better able to wield his weapon and was therefore well-suited to the interests of belligerent Mediaeval society. Cowardice was considered to be co-existent with treachery. In 1162, the Earl of Essex was accused by Robert de Monfort of having traitorously suffered the royal standard of England to fall in a skirmish with the Welsh, five years beforehand and challenged the Earl to a duel. Accepting the challenge, Essex was nonetheless unhorsed and severely wounded such that all present thought he was dead. Essex was, however, not dead but merely stunned and recovered under the care of the monks of the Abbey of Reading a few weeks later. Though his corporeal wounds had healed, he could not, however, return to the world having been vanquished by single combat so he took vows and passed the remainder of his days cloistered at the abbey. The Church, while not being able to exercise the power of deciding culpability as they were able to do, de facto, in the case of the ordeals, nonetheless expeditiously traced the judicial duel back to Cain and Abel and reminded the laity of the benevolent intercessions of the omniscient Lord. However, as Francis Bacon, an outspoken critic of the duel writes, ‘for the law of God, there is never to be found any difference made in homicide’ . The judicial battle was usually allowed only to freemen; often aged and sick persons, women, children, and ecclesiastics were permitted to furnish substitutes, though not always. The custom died out in the sixteenth century but it remained lawful in England until an Act of Parliament outlawing the practice was passed in 1819 and continued to be practiced privately ex justicio for many decades after. By the 19th C. the combatants were often sensitive and Romantic, yet foolish young gentlemen well versed in chivalry, whose honours could be easily aggrieved and who would rather die in honour than live in shame.

TRIAL BY JURY

Unlike any biological organism the jury probably had three parents: the lay Anglo- Saxon judge, the Carolingian inquest and the witnesses of Romano-canonical procedure . At the dawn of English common law the form of jury most commonly in use was a committee known as a jury of presentment or grand jury, whose task it was to accuse someone who might be prima facie guilty of a crime, quite different to the petit or trial jury that we are familiar with in England today. Under the Doom Law of Anglo Saxon King Aethelred (980–1016), twelve landholders and one king's representative were appointed to serve as an accusatory body which would point out crimes which had come to their attention in their small jurisdictions of residence. The same practice continued under and after William the Conqueror and into the 12th C. In the reign of Henry II at the Assize of Clarendon (1166) it was restated that 12 lawful men of every hundred (shires were divided into hundreds, each roughly 1/100 of the area of the shire and four of every village, acting as a jury of presentment, were bound to collectively testify on oath whether any local man was a robber or murderer. They were a source of evidence but not of proof since it was only the king’s justiciar who could decide guilt or innocence .

There was then a sea change; starting with their occasional use in civil law to resolve land tenure disputes, the orientation of juries in England began to shift from accusatory to resolutive and functionally the institution’s object became to try questions of fact. In the feudal world, especially in times of turmoil, violent ejections and usurpations were common, with consequent violent vendettas arising and pleas brought to feudal courts could be delayed or altogether frustrated. As a remedy Henry II established the possessory writ, an order from the Exchequer , directing the sheriff to convene a sworn local jury at petty assize to establish de facto dispossession, whereupon the sheriff had to reinstate the defendant pending a subsequent trial at the grand assize to establish de jure his rights. This was the writ of Novel Disseisin (recent dispossession). A similar writ of Mort d'Ancestor decided whether the ancestor of a plaintiff had, in fact, possessed the estate, whereas that of Darrein Presentment (last presentation) decided who, in fact, had last presented a parson to a particular benefice. All these writs gave rapid and clear verdicts subject to later revision thereby facilitating the role of the judge, but more importantly revolutionising the jury by making it effectively a source of proof per se . Moreover, Henry's decrees ensured that the judge-and-jury combination would become normal and that the jury would gradually supplant the irrational verdicts of ordeal and battle, especially as the Assize of Clarendon, aforementioned, stipulated that even if the accused had survived the ordeal, if they were convicted by jury they would be exiled. It may be argued that juries were seen as a more humane substitute for the ordeals, this being an age where unwitnessed felonies or supernatural crimes such as witchcraft posed grave difficulties for the machinery of justice, forensic evidence being either rudimentary or non-existent.

Despite the fact that the power of the judiciary was enhanced considerably by the Tudors the jury maintained its independence. Among the trials of the period was that of Sir Nicholas Throckmorton (1554), a protestant courtier, parlementarian and member of the Warwickshire gentry during the reign of Catholic queen Mary accused of treason in the wake of a rebellion led by Thomas Wyatt the younger. Despite not being permitted counsel – such was the custom of the time – Throckmorton defended himself spiritedly and with quick-witted skill and was acquitted by the jury: an almost unheard of occurrence for Tudor times. However, not all was fine and dandy: according to Sir Thomas Smith by 1664 English juries routinely appeared before the Star Chamber and were fined for acquitting prima facie guilty defendants. Such was the case in the 1670 political trial of William Penn, who was charged with preaching Quakerism to an unlawful assembly. Four of the twelve jurors voted to acquit – and continued to acquit even after being imprisoned and starved for four days. This was common practice: the need for quick verdicts was so great that juries were habitually incarcerated in a room deprived of food, drink, fresh air and a fire. Under such duress, most jurors paid the fines. However, one juror, Edward Bushell, refused to pay and brought his case before the Court of Common Pleas. As a result, Vaughan CJ issued an historically important ruling: that save in cases of corruption jurors could not be punished for their verdicts even if they had been pronounced contro plenam et manifestam evidentium. Bushell's Case secured the verdict of the jury as an unimpeachable proof and was one of the most important developments in the common-law history of the jury. Perhaps unintentionally this ruling laid the foundations for popular lobbying: during the 18th C. juries would often acquit palpable criminals in the knowledge that if they were convicted they would face the death penalty.

Despite being multifariously protected by current laws, there is still, to this day no guarantee that a jury will put its civic responsibilities before its personal interests and issue a just verdict, though the common sense that a jury may, and often does convey to legal injustice is, with reason highly valued and indispensable. The age old dilemma is poetically captured by Alexander Pope:

_Meanwhile declining from the Noon of Day,_
_The Sun obliquely shoots his burning ray; 3:20,_
_The hungry Judges soon the Sentence sign,_
And wretches hang that Jury-men may dine

The Game of Ombre from Canto III of Rape of the Lock


June 2005

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