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Tyrants and Radicals

by Bryan Gibson (author of The Pocket A-Z of Criminal Justice)
(page 3 of 4)

Taking on the State
It may have been worse in the time of Charles I, hence the Civil War and the emergence of Oliver Cromwell as Lord Protector. Cromwell is, I suppose, the ultimate example of the freedom fighter as terrorist. The eventual trial of Charles I for treason is interesting on so many fronts for the student of radical heritage, first, that it happened at all; but ultimately for its irretrievable outcome. It has recently been revisited and from a refreshing perspective by Geoffrey Robertson QC in his invaluable book The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (2006, Vintage). This extensively researched, expertly informed and quite outstanding account merges the story of brute radicalism and extremism with legal biography and is a must for any legal practitioner who wishes to contemplate the meaning of independence of mind. “The Man” in question is the little known John Cooke (sometimes Cook) (1606-1660), a barrister and son of an impoverished farmer from Burbage, Leicestershire, who rose from obscurity to become Solicitor-General under Cromwell and, later (though perhaps to get him off the scene) Chief Justice in Ireland. As Robertson explains, in 1649 Cooke was the barrister who was chosen to receive “the tyrannicide brief”, that for the prosecution of Charles I, after others more senior to him quit London for the country and the person to whom it was first sent, William Steel, the Attorney-General, “fell ill”. At which point Cook stepped up to lead the prosecution team.

Cooke was a lawyer and reformer of some considerable forensic skill and courage, who attracted the respect of his colleagues whilst being at odds with many of them due to his radical or unconventional views set down by him in numerous pamphlets and other publications including, eg, that an accused who was otherwise guilty ought not to escape on a technicality (an idea now, ironically, back in fashion with government and some police forces). Cooke has also been credited with originating – or drawing attention to, the importance of the cab rank rule for advocates under which the barrister must take any case that comes along unless there is good reason to decline it (so that even the most “undeserving” need never go unrepresented), the right to silence and the duty to act pro bono for the poor as a forerunner to legal aid. The following is just a flavour of the kind of man Cooke was and sums up the unenviable situation in which he found himself:

“In short, John Cooke was respected but not trusted. He tended to do and say what he believed was right, rather than what was popular or politic or likely to ingratiate himself with the prevailing power. Be it King or Parliament or a bench of Judges. He would do nothing merely to please ... So he was a risky choice ... His appointment as ‘Solicitor-General of the Commonwealth’ – a job that came with his acceptance of the brief – was a measure of Parliament’s desperation, as more senior and reliable barristers ran for cover.”

After the restoration of the monarchy (1660), Cooke himself stood trial at the Old Bailey as one of the Regicides and following his conviction for treason was sentenced to be hung, drawn and quartered; this being carried out at Charing Cross in a particularly gruesome fashion before a large crowd that reportedly included Charles II masquerading as a mere spectator. A poor end for someone with a first-class mind to whom, as Robertson explains, the instigators of both the French Revolution and the American Revolution were both to turn for posthumous justification and support. The king and his underlings later went after his publishers and did the same to them.

What Robertson also makes clear as one of the UK’s leading human rights and civil liberties lawyers is that there is room for protest amounting, in the extreme, to impeachment of a head of state for crimes against his or her own people. Cooke provided the blueprint for the Nuremburg Trials and those in the modern-day of Saddam Hussein, Slobodan Milosevic and other tyrants. The argument that no one is above the law begins not, as is often claimed, with Thomas Fuller but with the lesser known and much earlier John Cooke who sought to establish that even the King (even in the days before a constitutional monarchy) was not above the law: Rex did not equal Lex and no one is immune from prosecution for heinous crimes. A momentous argument that underpins the Rule of Law and which has lost nothing over the years.

Robertson also explains how remarkable it was that there was a trial at all in Charles’s case: he had been in prison for years (of a kind) and could (as Winston Churchill urged of the Nuremburg defendants) have simply been taken out and shot under military law, at any time as so many deposed leaders have been, globally speaking, over the years.

Radicals may riot, attack, take part in uprisings and rebellions, but they can also be decent human beings at the same time. Charles I was given a fair and proper trial in which the Judges went to lengths to ensure justice and fairness. In the end it was Charles who would not give up on his theories of absolute power and the divine right of kings. In stark contrast, Cooke’s own trial was biased, dismissive and served to fast track him (and the other Regicides) onto a hurdle to the gallows. The Crown Prosecution Service does not, so far as I know, have a patron saint. They should beautify and then adopt Cooke.

Continue ... 1 2 3 4

© Bryan Gibson 2006. This article appeared in Justice of the Peace in February 2006

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