Could Hain have withstood a Grand Jury investigation?

James Gubb, 11 December 2008

As previous experience could have predicted, the Crown Prosecution Service has dropped its 11-month investigation into donations to Peter Hain’s deputy leadership campaign. Thus Hain joins a growing list of politicians who acknowledge having failed to follow ‘the rules’ (or what ordinary folk call ‘the law’) but have yet to see the inside of a courtroom. These investigations in the past have ended on various grounds, sometimes due to lack of evidence, other times on the grounds that prosecution is not ‘in the public interest’.

Hain’s escape route is new though, as David Hencke in the Guardian explains, ‘[The police] say they could not find someone responsible for declaring all the donations, therefore nobody could be charged.’ The supposed mistake of the Electoral Commission was to take Peter Hain (as the deputy leadership candidate) to be the ‘regulated donee’ when he couldn’t have been because he wasn’t the one signing in the cheques. The police haven’t pinned this responsibility for donations for anyone else involved in his campaign and so there is no one to charge. This seems to imply one of two things: either electoral law is so badly framed that it is possible to avoid prosecutions merely by muddying the waters as to who is responsible for donations, or the CPS’s interpretation of the law is mistaken and that the Electoral Commission was correct.
These difficult legal questions are perhaps best dealt with by the courts, but the opportunity for those sort of judgements seems unlikely to emerge so long as the CPS is the gatekeeper to initiating prosecutions. Contrast this with the scandal unfolding in Chicago over Gov. Blagojevich’s attempt to sell President Elect Obama’s vacant Senate seat.
What hasn’t been given centre stage as of yet has been the role of a Federal Grand Jury
in the toppling of the Governor. It has been worming its way through this Chicago corruption network, demanding documents, calling witnesses and issuing indictments (a call to prosecute) against alleged conspirators.
As outlined in our new report, Total Recall, grand juries in the US (like ordinary trial juries) are made up of ordinary men and women. Police and other agencies go before the jury to testify, not to try and prove an individual is guilty, but to show there is a probable cause to prosecute. The jury returns a ‘true bill’ or ‘no true bill’. But the jury can also call witnesses and evidence of its own accord. Some form of investigation by police or other law enforcement agencies even require the permission of a grand jury in the US. This institution, though a British invention, was dissolved last century in the UK and little about it is now known this side of the Atlantic. But it might represent a missing link in our justice system, most obvious when holding our public officials to account but also holding back police powers. We currently have a situation where police can raid any MP’s office without judicial oversight, and yet at the same time MPs hardly ever come before a court to face actual charges because of a ‘CPS says no’ mentality. A grand jury convened in Westminster could redress this imbalance and allow ordinary citizens to decide what police actions and which prosecutions really are in the public interest.
But perhaps we are over-reacting. These things might happen in Chicago, but the idea of a politician trying to sell seats in the Upper house of the national legislative assembly is, of course, utterly preposterous in the UK. Perish the thought!