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Ferguson riots and secret MI6 evidence highlight necessity of open justice Ferguson riots and secret MI6 evidence highlight necessity of open justice
(about 17 hours later)
Rioting broke out in a suburb of St Louis on Monday night after a grand jury decided not to bring charges against the white policeman who shot a black teenager in August. But why should that be a decision for a jury rather than for a prosecutor?Rioting broke out in a suburb of St Louis on Monday night after a grand jury decided not to bring charges against the white policeman who shot a black teenager in August. But why should that be a decision for a jury rather than for a prosecutor?
The medieval English grand jury (of 23 men) was drawn from the local neighbourhood and was expected to survey and report criminal behaviour within the community. By the 16th century it had become a body that listened to the prosecution evidence and decided whether a case had been made out.The medieval English grand jury (of 23 men) was drawn from the local neighbourhood and was expected to survey and report criminal behaviour within the community. By the 16th century it had become a body that listened to the prosecution evidence and decided whether a case had been made out.
In England, the grand jury was replaced by committal proceedings in the magistrates’ court and effectively abolished in 1933. But it has survived in parts of the United States. Prosecutors decide which witnesses to call and the grand jury decides whether a defendant should stand trial.In England, the grand jury was replaced by committal proceedings in the magistrates’ court and effectively abolished in 1933. But it has survived in parts of the United States. Prosecutors decide which witnesses to call and the grand jury decides whether a defendant should stand trial.
Federal rules prevent the prosecutor and the jurors from disclosing what goes on in a grand jury, which seems surprising in a country that is said to abhor secret testimony. One justification is said to be that it allows the jury to deliberate without outside pressure. Another is that it avoids tipping off potential defendants or implicating people against whom there turns out to be insufficient evidence. But other legal systems manage to get round these problems without secret hearings.Federal rules prevent the prosecutor and the jurors from disclosing what goes on in a grand jury, which seems surprising in a country that is said to abhor secret testimony. One justification is said to be that it allows the jury to deliberate without outside pressure. Another is that it avoids tipping off potential defendants or implicating people against whom there turns out to be insufficient evidence. But other legal systems manage to get round these problems without secret hearings.
The real problem with grand juries is that they are putty in the hands of the prosecutor. The former New York judge Sol Wachtler famously said in 1985 that district attorneys have so much influence that they could get grand juries to “indict a ham sandwich”. It must be even easier to get the sandwich acquitted.The real problem with grand juries is that they are putty in the hands of the prosecutor. The former New York judge Sol Wachtler famously said in 1985 that district attorneys have so much influence that they could get grand juries to “indict a ham sandwich”. It must be even easier to get the sandwich acquitted.
The grand jury in Missouri that declined to indict Darren Wilson, the police officer who shot Michael Brown, met on 25 separate days and heard more than 70 hours of evidence. Bob McCulloch, the state prosecutor, seemed proud of the fact that the 112-member jury heard “every witness … and every piece of evidence”. He said the witnesses gave inconsistent evidence. The grand jury in Missouri that declined to indict Darren Wilson, the police officer who shot Michael Brown, met on 25 separate days and heard more than 70 hours of evidence. Bob McCulloch, the state prosecutor, seemed proud of the fact that the 12-member jury heard “every witness … and every piece of evidence”. He said the witnesses gave inconsistent evidence.
One of those witnesses was Wilson himself. He gave oral evidence for more than four hours. No doubt other police officers supported the officer’s claim that he was acting in self-defence. So this was, to all intents and purposes, a trial behind closed doors.One of those witnesses was Wilson himself. He gave oral evidence for more than four hours. No doubt other police officers supported the officer’s claim that he was acting in self-defence. So this was, to all intents and purposes, a trial behind closed doors.
The last “old-style committal” I covered in England was in 1995. After a seven-day hearing – which was open to the public but subject to temporary reporting restrictions – a judge decided there was enough evidence to commit Rosemary West for trial on 10 murders. West did not give evidence and neither did anyone on her behalf.The last “old-style committal” I covered in England was in 1995. After a seven-day hearing – which was open to the public but subject to temporary reporting restrictions – a judge decided there was enough evidence to commit Rosemary West for trial on 10 murders. West did not give evidence and neither did anyone on her behalf.
That is how it ought to work in the US. A prosecutor should put forward the state’s best witnesses. If a professional judge thinks there is what is called in American law “probable cause” then the case should be sent for public trial. That’s where the defence witnesses should give evidence.That is how it ought to work in the US. A prosecutor should put forward the state’s best witnesses. If a professional judge thinks there is what is called in American law “probable cause” then the case should be sent for public trial. That’s where the defence witnesses should give evidence.
Better still, the prosecutor should decide whether there is enough evidence for a trial and bring charges accordingly. As happens here, a court – sitting in public – should then decide whether the case has been proved.Better still, the prosecutor should decide whether there is enough evidence for a trial and bring charges accordingly. As happens here, a court – sitting in public – should then decide whether the case has been proved.
That, of course, is what happened in the case of Fusilier Lee Rigby. Michael Adebolajo and Michael Adebowale were arrested immediately after attacking the soldier in May 2013 and convicted of his murder in December.That, of course, is what happened in the case of Fusilier Lee Rigby. Michael Adebolajo and Michael Adebowale were arrested immediately after attacking the soldier in May 2013 and convicted of his murder in December.
What everyone wanted to know was whether the attack could have been prevented by the security and intelligence agencies. According to parliament’s intelligence and security committee, the agencies could not have stopped the murder, given what they knew at the time. However, the committee continued, if the security service had obtained access to a substantial and graphic online exchange in 2012 between Adebowale and an al-Qaida extremist overseas, there was a “significant possibility” that the attack could have been prevented.What everyone wanted to know was whether the attack could have been prevented by the security and intelligence agencies. According to parliament’s intelligence and security committee, the agencies could not have stopped the murder, given what they knew at the time. However, the committee continued, if the security service had obtained access to a substantial and graphic online exchange in 2012 between Adebowale and an al-Qaida extremist overseas, there was a “significant possibility” that the attack could have been prevented.
Before the report was published, there were complaints that the intelligence and security committee – chaired by Sir Malcolm Rifkind MP – had failed to speak to Adebolajo’s associates. Given what the committee has found out, it seems hard to believe that interviews with these witnesses would have affected its conclusions. The committee said it was essential that it did not “comment on the allegation that MI5 had been trying to recruit Adebolajo as an agent”.Before the report was published, there were complaints that the intelligence and security committee – chaired by Sir Malcolm Rifkind MP – had failed to speak to Adebolajo’s associates. Given what the committee has found out, it seems hard to believe that interviews with these witnesses would have affected its conclusions. The committee said it was essential that it did not “comment on the allegation that MI5 had been trying to recruit Adebolajo as an agent”.
But the broader question is whether the committee’s 191-page report is open enough to command public confidence – not least because it is being used by the government to justify greater online surveillance.But the broader question is whether the committee’s 191-page report is open enough to command public confidence – not least because it is being used by the government to justify greater online surveillance.
The report is riddled with redactions – indicated by asterisks and required, we are told, to protect national security. On the other hand, it surely tells us more than we have ever been told by the agencies themselves about how they tackle Islamist extremists networks and the individuals that they describe as subjects of interest. We learn the difference between a lead and a trace, a P1a and a P2H. We learn about communications between a Scotland Yard officer based in Nairobi and the MI6 East Africa representative. And there are plenty of intriguing references to intrusive surveillance and technical operations.The report is riddled with redactions – indicated by asterisks and required, we are told, to protect national security. On the other hand, it surely tells us more than we have ever been told by the agencies themselves about how they tackle Islamist extremists networks and the individuals that they describe as subjects of interest. We learn the difference between a lead and a trace, a P1a and a P2H. We learn about communications between a Scotland Yard officer based in Nairobi and the MI6 East Africa representative. And there are plenty of intriguing references to intrusive surveillance and technical operations.
But one policy question now under consideration in Whitehall is whether a report of this kind is enough to satisfy legitimate public concerns. Should oversight of the security service remain the responsibility of retired appeal judges and senior members of the Commons and Lords? Or should it be transferred to a single media-friendly, security-cleared supremo who would give interviews from time and reassure us that everything is under control?But one policy question now under consideration in Whitehall is whether a report of this kind is enough to satisfy legitimate public concerns. Should oversight of the security service remain the responsibility of retired appeal judges and senior members of the Commons and Lords? Or should it be transferred to a single media-friendly, security-cleared supremo who would give interviews from time and reassure us that everything is under control?
My vote is for the status quo. I have yet to be convinced that what’s under consideration would be any more effective than the very British scheme of giving oversight to well-meaning amateurs. And Rifkind’s committee strikes me as a lot more open than McCulloch’s grand jury.My vote is for the status quo. I have yet to be convinced that what’s under consideration would be any more effective than the very British scheme of giving oversight to well-meaning amateurs. And Rifkind’s committee strikes me as a lot more open than McCulloch’s grand jury.