Could a grand jury hang News International high?
Civitas, 21 July 2011
In the aftermath of the phone hacking scandal, some commentators, including Neil Kinnock, have suggested that now is the time for regulation of the press on a par with TV broadcasters. Besides the dangerous implications for free speech such proposals have, they are fighting what is already the last battle. The mainstream press is at its weakest point economically for generations and is increasingly held to account by other actors, especially independent bloggers. Reform should be focussed on more fundamental problems that have implications for any powerful set of actors that decide they can get away with breaking the law to achieve their own ends. These are our overly centralised institutions of investigation and prosecution that have proved too easy for establishment figures to bypass. In short, we need to bring back grand juries.
Existing trial juries in the UK judge the guilt or innocence of an individual after they have been investigated and prosecuted. They are sometimes held to be representatives of the people, and thus able to make a fine judgement on what ‘reasonable doubt’ might mean, whether the evidence measures up and how a law should be understood. But this is more than a little bit idealistic. Juries are drawn randomly and you never know what sort of quality of deliberation you are going to get. It is not necessarily a high bar or even a consistent test for a prosecution to pass. But that is part of the beauty of juries: their very randomness and inconsistency makes them potentially tough customers for legal professionals. And if they can’t walk a conviction past them, then there is likely something seriously wrong with the evidence or the process of the trial. This makes any collusion between the more powerful actors in and around the courtroom (the prosecution, police and judiciary) more difficult to establish and maintain. For this reason, they are important for maintaining civil liberty in Britain.
Grand juries in the US have a similar form but are used differently. They are called to decide whether an individual is worth indicting and bringing to trial in the first instance. They can also be used to call witnesses and subpoena other forms of evidence. For the most part, they comply with the direction of professional prosecutors. But they are unpredictable, and can end up calling their own witnesses, demanding access to additional evidence and can even end up indicting different individuals from those the police or prosecutors were intending. And it isn’t just public officials who can appear before juries to request indictments; private individuals can too if the grand jury is willing to hear them. In recent years, a federal grand jury was used to compile the evidence necessary to convict the former Governor of Illinois of trying to sell Barack Obama’s just vacated seat in the U.S Senate.
How could this help Britain in the midst of the phone hacking scandal? The key feature of this crisis is that a number of important public actors had suspicions of widespread criminal acts taking place in the newspaper industry, but were persuaded, coerced, possibly even bribed or blackmailed into not pursuing those suspicions too far. It was made uncomfortable, for people with careers and interests to protect, to make enemies of the press. And the press was able to look favourably on those who colluded with them. This certainly appears to be the case in some incidents in the Metropolitan police but may well extend much further.
The advantage of jurors is that they don’t have careers at stake and their specific interest in the justice system is entirely temporary. Unlike elites that are able to trade favours over years of co-operation, it is much harder to corrupt a random selection of the British public. This would make them a suitable alternative, or complementary, mechanism for bringing prosecutions that the police and the Crown Prosecution Service, for whatever reason, struggle to enact.
Incidentally, grand juries could solve an additional problem surrounding the scandal. If a journalist uncovers some evidence of illegality but the police or CPS are unwilling to pursue the case further, a private case before a grand jury could be used to call more evidence before it, and, eventually, to the public. By providing legitimate means to challenge powerful individuals and institutions, journalists might be less tempted to use illegal techniques themselves to get to the truth. In this sense, the difficult concept of the ‘public interest’ might finally be given some non-elite representation in court. The definition would be whether a jury believes a matter to be important, not whether officials at the CPS believe it to be.
Our report, Total Recall, has more on grand juries and other ideas about how to bring power back to British citizens.