Testing the evidence: from Thorpe’s committal to Trump’s grand jury, how preliminary hearings assess a prosecution’s case
Recalling his own experiences as a young lawyer, David Burrows looks at the different approaches on either side of the Atlantic to the preliminary hearings in criminal cases that test the strength of a prosecution and assess its fitness for trial. … Continue reading
Donald Trump and a United States grand jury
This post comes with as many disclaimers as my editor will permit, by a solicitor whose practice as a criminal lawyer (such as it was) dates from 1973 to 1983. It is written on the back of the question: what is a “grand jury” in US procedural law; and how, if at all, does this compare with committal proceedings in English and Welsh magistrates’ courts?
Criminal cases are all listed at first before magistrates (ie a bench of three lay justices). More serious offences are then sent by the justices for trial to the (before a jury in the case of a defendant’s not guilty plea). How this works can be seen in practice, albeit in a relatively a rare set of local circumstances, in Judges can’t just make up the law: the Linford decree won’t last long by BarristerBlogger (Matthew Scott). Where a defendant (D) faces committal to the Crown Court, D used to have the choice of whether to test the evidence against them at the magistrates level. That is to say, did those magistrates think the prosecution evidence was sufficient to convict D even before the case was sent up to the Crown Court. Does D have a case to answer?
The concept of the “grand jury” (from the French “grand”, ie large, as distinct from “petit”, ie generally 12, as in the modern Crown Court) – now receiving prominence in relation to the former US president, Mr Donald Trump – is taken on to test the guilt at a preliminary stage of persons who are indicted to be tried for certain types of more serious crime. The grand jury can be valuable, it is thought, as a guard against instances of oppressive prosecution.
Traditionally, a grand jury consisted of 23 members so that, if they are to decide by a majority – which is possible – it gives a majority consisting of at least 12. They are derived from common law jurisdictional roots; but are thought to survive only in parts of United States criminal proceedings, and Liberia.
Committal for trial from a magistrates’ court
Committal proceedings by magistrates to an English or Welsh Crown Court – parallel, in a sense, to the grand jury system and where the offence would be triable in a Crown Court – have been abolished during the early part of this century. First this was to a limited extent in 2001. The final and complete abolition of committal proceedings dates from 2013. (The government announced: Faster justice as unneccessary committal hearings are abolished).
One of the more famous historical hearings for committal by magistrates for trial at the Crown Court was that of the then Liberal Party leader, Jeremy Thorpe in 1979. The case featured in the BBC TV series, A Very English Scandal with Hugh Grant as Thorpe. For his Crown Court trial on charges of conspiring to murder his former alleged homosexual lover, Thorpe had George Carman QC to represent him. In the Crown Court he was acquitted. His committal proceedings were, of course, prior to the Crown Court and are given no mention at all in the television series. (For more context, see The Guardian: Jeremy Thorpe scandal: attempted murder case to reopen.) The TV account gives no space to the subtleties of trial by committal proceedings before the Minehead justices; nor of the pros and cons of such an application.
Alongside his Crown Court trial Thorpe had resigned his leadership of the Liberal Party (as it was then called) but had been re-adopted by his North Devon constituency for the then approaching May 1979 general election (echoes, in hind-sight, of Trump’s and his supporters to the US electoral/criminal proceedings system; though in very different scale and context, then and now). The Liberals fared badly in May 1979 – partly thanks to Thorpe and his holding on to his failed candidacy for his North Devon seat. In separate news, the Tories won the 1979 election and Mrs Thatcher took on her first session as prime minister.
Solicitors as advocate and committal proceedings
Two facts are critical to this part of the story. First, in 1979 solicitors as advocates (ie representing their clients in court) could only do so in certain courts. In criminal courts this included all magistrates’ courts, but with a very narrow band of exceptions, only magistrates. Emphatically this did not include jury trial. I appeared a couple of times up to 1983 in the Crown Court in the very narrow band of cases where I was permitted to do so: appeals against sentence or pleas in mitigation where the justices had remitted for sentence; and the rogue – then – pre-Children Act 1989 care order case appeal (see eg AR v Avon County Council  FLR 252) which went to the crown Court. Now I can appear in any court; but this has only been since 1995.
Secondly, my early mentoring as a newly admitted criminal advocate was under David Roberts, an experienced criminal law solicitor, whose advice to me was never – but never – to advise a client to elect a committal hearing (ie to have the likelihood of success on trial tested on a preliminary basis by magistrates) unless you are certain of your client not being committed (i.e. in effect acquitted by the justices). This was for a variety of reasons, not least that magistrates tended to be much more pro-police that juries; and why give prosecution witnesses a free rehearsal of their evidence? I did not ever advise committal or otherwise take part in a committal application in my ten years as a criminal advocate.
Jeremy Thorpe was advised to seek a committal hearing by his then solicitor; the then very well-known Sir David Napley (entitled to an automatic knighthood at that stage as, till the early 1980s, were all former presidents of The Law Society) of the eponymous firm Kingsley Napley. And so it was, on Napley’s advice (as I understand it), that the committal application came on before the Minehead Justices in early 1979 (just as James Callaghan’s Labour government tottered to its ungainly end (“crisis, what crisis?” etc)).
Two other items of historical trivia are relevant. In 1973 I joined the Liberal Party. We regarded ourselves as much more left-wing than the then trades union bound Labour Party. Our ideas for workers councils and for the sharing of wealth by those with labour and with capital was more modern than the Clause IV approach of Labour. In 1974 there were two general elections: I was agent for the Liberal candidate in Bristol West in February 1974 and in October 1974 I was the candidate in Bristol South. (My opposition was Labour’s chief whip, Michael Cocks. He won the seat. My aim was to secure more votes than the Tory: I failed in that too.)
As the election approached all five of us Liberal candidates shared a stage with our leader, Jeremy Thorpe (whose foray into criminal courts was still four years and more away). The public meeting was in the then Bristol Central Methodist Hall (just opposite the Pied Powder (Pieds Poudre Court) pub, in Old Market, central Bristol. According to my Google search neither Methodist Hall nor pub are still there. In my brief file of cuttings from the 1974 election, there is a photo of Jeremy Thorpe addressing in us all. You will have to take my word for it that to his stage right is my besuited knee, no more… I was sitting almost immediately behind him.
Sir David Napley arrived in his Rolls Royce briefly to address The Law Society advocacy training course which I attended in the Lake District in April 1973, and on the strength of which I cut my teeth as an advocate a few days later. Bristol developed the first English duty solicitor scheme. My first court appearance was on that scheme. I was considerably taken aback by the fact that – and no one had told me this – I was expected to take on my first live advocacy: pleas in mitigation and bail application that first day in the magistrates’ court. That is, I was not just expected to take instructions to be passed on to a more senior solicitor to appear in court (as I had expected); but to run the full advocacy gamut all on my own.
Publicity: Thorpe (client) v Napley (solicitor)
The question must remain, who was the greater plunderer of publicity in the conduct of Thorpe’s committal proceedings (US version: grand jury hearing): Jeremy Thorpe (who must have known his political star was fast waning; and perhaps thought his exposure in a magistrates’ court many miles from London made the outside chance of not being committed worth the risk) – or his solicitor David Napley, who certainly received a variety of publicity in the national press?
I cannot say whether Napley courted the publicity or not. The fact is that by running a committal application as Jeremy Thorpe’s advocate over many days – even in Minehead, in North Somerset – Napley ensured the kind of press coverage he could not have commanded by his own advocacy for most other clients in any magistrates’, or other, court (as opposed to a barrister instructed by his firm in, for example, the Crown Court). The magistrates did not accede to his client’s application, or to Napley’s prosecution dismissal application on his behalf. Thorpe’s case was duly committed for trial at the Crown Court; though he was later acquitted.
By 1979 I had for a couple of years or more left the Liberal Party to devote my political activity to causes less exclusively linked to one particular party.
As to Mr Trump: it will be interesting with a limited experience of committal proceedings in mind, to see how his (ineluctable) grand jury trials develop.
Featured image: scene from the trial of Jeremy Thorpe at the Old Bailey as depicted in A Very English Scandal (BBC). Thorpe, played by Hugh Grant, is on the left in the dock.