As followers of the British Constitution Group and the UK Column newspaper will know, Grand Juries were convened on the last weekend of February 2015 at Telford to investigate misconduct by Crown officials who were alleged to have “suspended the law or the effect of the law” contrary to Articles 1 and 2 of the Bill of Rights 1688 by failing to cause justice to be done. The word “Justice” means to recognise rights and punish wrongs and the main focus of the weekend was child abuse.
The juries were convened on ancient customary authority acknowledged by the Coronation Oath Act 1688 and historical precedent from Magna Carta: It’s Form and Contents, by William Sharp McKechnie:
William the Conqueror established the principle that criminal trials should (in the normal case) begin with indictment of the accused by a representative body of neighbours sworn to speak the truth. This was merely a systematic enforcement of one of the many forms of inquisitio already in use: criminal prosecution was not to be begun on mere suspicion or irresponsible complaints. The jury of accusation (or presentment), instituted in 1166, has continued in use ever since, passing by an unbroken development into the grand jury of the present day…
This principle was acknowledged in Magna Carta 1215, a peace treaty settled by trial by battle between King John and the people which has the force of an Act of Parliament but since it was not made by a Parliament cannot be infringed by one:
39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.
40. To no one will we sell, to no one will we refuse or delay, right or justice…
The authority of Magna Carta and Grand Juries were confirmed in “Statute the Fifth (1351)” by Edward the Third which is a statute in force:
IV None shall be taken upon Suggestion without lawful Presentment; nor disfranchised, but by Course of Law.
ITEM, Whereas it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land; It is accorded assented, and stablished, That from henceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of good and lawful People of the same neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ original at the Common Law; nor that none be out of his Franchises, nor of his Freeholds, unless he be duly brought into answer, and forejudged of the same by the Course of the Law; and if any thing be done against the same, it shall be redresseed and holden for none…
Note the words “unless it be by Indictment or Presentment of good and lawful People”. The distinction is important because the requirement for “indictment” to be by a Grand Jury is held by main stream lawyers to have been “impliedly repealed” by a later statute, the Administration of Justice (Miscellaneous Provisions) Act 1933. Careful examination of that Act finds no mention of “Presentment” however so the 1351 statute remains in force as far as “Presentments” are concerned.
What then is a “Presentment”? The authoritative “Blackstone’s Commentaries on the Laws of England” has the answer:
THE next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury ; or without such previous finding. The former way is either by presentment, or indictment.
A presentment, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury.
A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king…
Note the words, “the notice taken by a grand jury of any offence from their own knowledge or observation”.
It is now necessary to refer to legal authorities from our American cousins. It should be remembered that they were originally Englishmen and that they have preserved their rights as such better than we did on this side of the Atlantic. The legal basis of many US Judgments is founded on UK historical precedents.
To quote “If It’s Not A Runaway, It’s Not A Real Grand Jury” by Roger Roots:
A presentment is a grand jury communication to the public concerning the grand jury’s investigation. It has traditionally been an avenue for expressing grievances of the people against government. In early American common law, the presentment was a customary way for grand juries to accuse public employees or officials of misconduct. While an “indictment” was normally thought to be invalid without the signature of a government prosecutor, a presentment required no formal assent of any entity outside the grand jury. In early America, a presentment was thought to be an indictment without a prosecutor’s signature and a mandate to a district attorney to initiate a prosecution…
[See ORFIELD’S, supra note 22, at 392 n.16 (noting that “[t]he common law powers of a grand jury include the power to make presentments . . . calling attention to actions of public officials, whether or not they amounted to a crime)…]
A “Runaway Grand Jury” is defined in the same article is:
loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today’s “runaway” grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact “runaways,” according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.
Note the words “independent” and “self governing”. That must include, I submit, the authority for loyal subjects to organise themselves into Grand Juries spontaneously and by right when individuals become aware of criminal conduct.
Blackstone gives an account of the qualifications required of Grand Jurors and how they are to proceed:
They ought to be freeholders, but to what amount is uncertain… However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel, are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty three ; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of king Ethelred…
WHEN the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill, “ ignoramus ;” or, we know nothing of it ; intimating, that though the facts might possibly be true, that truth did not appear to them : but now, they assert in English, more absolutely, “ not a true bill ;” and then a party is discharged without farther answer. But a fresh bill may afterwards be preferred to a subsequent grand jury…
If they are satisfied of the truth of the accusation, they then endorse upon it, “ a true bill ;” The presentment is then said to be found, and the party stands presented. But, to find a bill, there must at least twelve of the jury agree : for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty four of his equals and neighbours : that is, by twelve at least of the grand jury, in the first place, assenting to the accusation ; and afterwards, by the whole petit jury, of twelve more, finding him guilty upon his trial. But, if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree. And the presentment, when so found, is publicly delivered into court…
Upon which (production of a Presentment by a Grand Jury) the officer of the court must afterwards frame an indictment, before the party presented as the author can be put to answer it…
The burden of proof for a Grand Jury is the civil standard of “balance of probabilities”. When sufficient credible evidence has been obtained from members of the Jury or a witness to substantiate a case to answer the Jury may vote on the matter. No further witnesses are required. The presence of the accused is not necessary.
Petit Jury trials require the criminal burden of proof (beyond reasonable doubt) and the rules of natural justice apply.
That then is what was achieved at Telford. Presentations were made about corruption and inaction by various Crown officials. Persons present decided to form themselves in four Grand Juries. They swore themselves in and debated the material which they had already seen. They called witnesses and examined them, elected Foremen and voted according to their consciences. Three out of four produced Presentments.
The first found a case to answer of misconduct in office against a police constable who placed unjustifiable conditions on a victim of the North Wales Care Home case which prevented her from exercising her Common Law right to petition the Crown for redress of her grievances.
The second found a case to answer of misconduct in office against a senior official of the Independent Police Complaints Commission who refused the right to have justice to a victim of criminal misconduct by police officers.
The third found a case to answer of misconduct in office by a Home Office minister in instructions given by him to Chief Constables to deny individual’s right to possess arms for their defence.
The fourth jury apparently (jurors are sworn to secrecy) were unable to reach a verdict by 12.
So what happens next? The first answer is noted above
[t]he common law powers of a grand jury include the power to make presentments . . . calling attention to actions of public officials, whether or not they amounted to a crime)…
The author suspects that officials in the lower Courts are unlikely to know much about the subject of Grand Juries. They need education and guidance from the top of their hierarchies.
As it happens, both the Lord Chief Justice and the Lord Chancellor have recently expressed commitment to the Rule of Law in speeches on the occasion of the 800th anniversary of Magna Carta 1215. On the 23rd February this year, the Lord Chief Justice for England and Wales, Lord Thomas of Cwmgiedd, speaking at the Global Law Summit, said:
In 1215 no one could have foreseen the significance of what can best be described as a peace treaty between our then ruler, King John, and those rebelling against him. As students of history will know, Magna Carta failed to achieve its immediate aim – but yet has had a profound influence on the development of justice and the rule of law, first in this country, next, as Churchill said, through becoming part of the ‘joint inheritance of the English-speaking world’…
None of these issues raised by the two principles of the rule of law and access to justice is easy. Some are very uncomfortable not merely to governments but to others such as corporations with immense economic power. But the task requires a commitment from us all, governments, legislatures, lawyers, judges, businesses and citizens. There can also be no doubt that some will try to obstruct this commitment to the rule of law. To others it will merely be inconvenient. As to obstruction, our duty is clear; the obstruction must be fought against and removed; obstructions to justice are a denial of justice as Magna Carta teaches…
In the words of one of my most illustrious predecessors as Chief Justice, Lord Mansfield, it is essential ‘for peace, order and good governance’ that we maintain the rule of law…
I am confident therefore that over the course of the next three days our discussions will be of the highest quality. I am equally sure that we will consider in detail how Magna Carta’s principles can be applied to shape our futures. In doing so we must I think, remember something else Sir Winston Churchill once said when he was recalling, amongst other things, Magna Carta’s inheritance. He reminded us all that when we did so – when we talked of the rule of law, genuine access to courts of justice – that we must ‘preach what we practice [as well as] practice what we preach’.
Let us indeed. In doing so we will not simply secure Magna Carta’s inheritance for the coming century, but reinforce the centrality of justice to our societies and to our global world in the way I have outline.
At the same event, the Lord Chancellor Chris Grayling had this to say:
This event is the beginning of a whole year of celebrations to mark 800 years of what is quite a remarkable document – the Magna Carta.
That document, signed on the fields by the Thames at Runnymede in 1215, as part of a truce between King John and his feuding barons, has become a foundation stone not just for our legal system, but for many other countries too. Nation after nation now derive their legal traditions from that piece of parchment.
Within that document you will find cornerstones of our legal system.
No official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it. The principle of a fair trial that survives to this day.
We will appoint as justices, constables, sheriffs or other officials only men that know the law of the realm and are minded to keep it well – a principle that still underlies our system for appointing our judges today.
To no one will we sell, to no one deny or delay right or justice. A pledge to keep a corruption-free system that remains vital to this day.
However, ladies and gentlemen, not everything stands the test of time. Some of the provisions are definitely a bit time expired.
Like the promise by the King that he will stop taking firewood from his subjects without their permission. Or that he will remove fish weirs from the River Thames.
But those core principles agreed 800 years ago are still the heart of the legal values and traditions of this country. Indeed, one of most remarkable legal minds of last century, Lord Denning, described Magna Carta as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.
I am proud that Magna Carta has been one of the UK’s greatest exports: it has inspired and formed the basis of so many legal systems and it is cited and invoked whenever and wherever basic freedoms come under threat.
I am also proud that the great legal tradition continues. The United Kingdom is respected throughout the world for the strength of its legal system, for the skills and knowledge of its judiciary and courts, for its consistency and stability as a legal jurisdiction.
Fine words indeed, by a Judge and by a Politician (Mr. Grayling is the first non lawyer to be appointed Lord Chancellor).
I propose, as a first step, to submit the Presentments to these gentlemen giving notice that Grand Juries are back and to require them to ensure that the lower Courts are aware of their responsibilities. That is what Attorney –Generals Practice Directions are for.
At the same time I will make the accused aware of their position as accused persons with all that implies for their personal bonds or liability insurance and status as operational officials.
Further developments in the lower Courts will be reported as they occur.
Read the other articles and see the two grand jury days videos at this original article link .