8 LEGAL WORLD COMMENT 22 June 2018 | www.newlawjournal.co.uk

Potentially important witness for A very English scandal the prosecution not called The original alleged ‘hit man’ was to Alec Samuels shares his reflections on the legal be one Meighan, but he resiled from significance of the Jeremy Thorpe case the conspiracy and merely supplied the gun which was used, unsuccessfully, by Newton. If called he might have strengthened the case for the he trial of Jeremy Thorpe, covered prosecution; but he might not have done recently in the BBC drama, A Very so. Why was he not called? English Scandal, took place nearly T40 years ago. The trial makes a Circumstantial evidence good story and good drama, despite the Theoretically circumstantial evidence passing of time. But what is the continuing may be as good and cogent as direct legal significance of the case? Some of the evidence, but in practice tends not to be legal issues have been resolved, some are so perceived. The defence says that too still very much with us. much reliance cannot be placed upon it, and there may be no corroboration. Conspiracy The judge may warn the jury to be In moral terms conspiracy to commit a particularly careful, and thus weaken the serious crime is almost as bad as actually evidence or at least not encourage much committing the crime, and involving others reliance upon it. as well may be seen as an aggravating factor. However, to the jury the intention Corroboration and the agreement will not seem as Corroboration is not required by law. bad as an execution of the conspiracy. Uncorroborated evidence may be very Furthermore, the execution, the act, would cogent, albeit standing alone. But again probably have been clear cut, whereas the the defence will make play about its mere preliminary agreement may be very absence, and the judge may urge caution Joan Wakeham/REX/Shutterstock unclear and uncertain. The intent was not © upon the jury. to shoot and kill the alleged victim but Hugh Grant: Thorpe’s doppleganger? merely to frighten him off, say the defence. Police impropriety or incompe- A conspiracy is indeed admitted, but it was tence? only for a comparatively minor purpose. Proof of guilt & There may be evidence of police Similarly when Thorpe was accused of guilt are not quite impropriety or incompetence, which a homosexual act his counsel admitted “ ought to be investigated, reported to the that Thorpe had homosexual inclinations, the same things” Independent Office for Police Conduct thus by admission deflecting the gravity (IOPC), and disclosed to the defence of the accusation but offering a plausible in good time at the trial. In the Thorpe explanation for a misunderstanding. Newton fired the shot that killed the case various failings emerged. The dog and aimed at Scott, but the gun police interviewed a witness, obtained a Preliminary proceedings jammed. Before the Thorpe trial he had confession, but did not act under caution The defending solicitor, David Napley, been convicted for the dangerous use of so the evidence was inadmissible. The future President of the Law Society no a firearm and imprisoned for two years. police altered a witness statement less, was in favour of full preliminary So he was very much an accomplice in the and persuaded the witness to sign the proceedings. The defence, he said, alleged intended murder. He was shown redacted statement, there being no would be able to see and to hear the to be a liar. He was receiving money from reference to Thorpe. This was done to prosecution witnesses before the trial and the media for his story. Bessell admitted protect a prominent public figure, such as better prepare the defence accordingly. deviousness and hypocrisy and lying; and Thorpe. Conversely though the prosecution that he was being paid by a newspaper for witnesses would have a sort of dress his story, and would be paid more if there Defendant not called to give rehearsal, and at the trial would be was a conviction. evidence prepared for the cross-examination and Whether to advise the defendant not to be able to give a more persuasive and The victim give evidence can be a difficult matter convincing performance. The procedure Scott, the intended victim, was for counsel; and is a difficult decision has been abolished, partly because of the unimpressive. He had been disclosing his for the defendant himself. If he does not Thorpe case, and the delay and expense homosexual relationship with Thorpe to give evidence the jury may think that involved removed. Thorpe’s family, friends and colleagues. by inference he is admitting guilt, he is He had been taking money from Thorpe, afraid to face up to the truth, and the Immunity for the prosecution the inference being in return for keeping warning to the jury by the judge may witness quiet about the relationship with Thorpe. not be sufficient to repair the damage. The prosecution may be compelled to He was shown to be inconsistent, a By law the jury are entitled to draw such rely upon rather ‘shady’ characters as fantasist, suffering psychiatric delusions, inferences as appear proper Criminal witnesses, and obliged to grant them and a liar. He was receiving money from a Justice and Public Order Act 1994, s 35. immunity. newspaper for his story. On the other hand if he does go into the www.newlawjournal.co.uk | 22 June 2018 COMMENT LEGAL WORLD 9

witness box he could ‘hang himself’, he as the ‘fragrant Mary’, allegedly an Conclusion could be ‘shredded’ by cross-examination. indication of a certain bias. The judges Despite the not guilty verdict Thorpe, on advice, did not give evidence. strive for impartiality. Any perceived Thorpe’s public life was at an end. partiality may well have a counter effect Today all the indications are that he The impact of counsel upon the jury. was guilty. But as the case shows, It is widely believed that counsel can win and the problem still obtains, proof or lose a case contrary to the evidence in Belated prosecution of guilt and guilt are not quite the the case, or the ‘right decision’. The belief The prosecution witness Newton was same things. NLJ is largely mythical. The judge will strive prosecuted and convicted for unlawful for the fair trial based on the evidence, use of a dangerous firearm with and will seek to curb any advocate excess intent to endanger life, in fact killing Sources or abuse. Griffiths-Jones was widely a dog; and then given immunity as a ff Jeremy Thorpe, Michael believed to have lost Lady Chatterley’s prosecution witness in the Thorpe trial. Bloch, Little Brown, lover case by inept advocacy. But in In 2018 could he be prosecuted for a London, 2014, hardback, Thorpe the acquittal was widely and conspiracy going back 40 years or so? Or £25 – very fully sourced and justly believed to be in large part due to attempted murder? referenced, eg p 584. ff In my own time, Jeremy the superb cross-examinations and final The terms of the grant of immunity Thorpe, Politico, 1999. speech of George Carman QC, a renowned would need to be scrutinised. There ff A Very English Scandal, jury defence advocate. is no time limit for serious crime John Preston, Viking, 2016. in England. Though the defendant ff A Very English Scandal, adapted by The biased judge? is entitled to a fair trial, European T Russell Davies, BBC May-June 2018. In Thorpe the trial judge Cantley J was Convention on Human Rights Article 6 ff Panorama, Tom Mangold, BBC, accused by some of bias in his conduct and Police and Criminal Evidence Act 3 June 2018. of the trial and in his summing up. 1984, s 78. ff Not without prejudice, David Napley, Certainly he already formed a poor Harrap, London, 1982. opinion of the prosecution witnesses. He Offence at the time, not any longer ff No ordinary man, a life of George Carman QC, Dominic Carman, Hodder was lampooned: ‘Members of the jury, The alleged homosexual act was an and Stoughton, 2002. whatever I may say the verdict is for you. offence at the time it was committed, Please retire and consider your not guilty but no longer so at the time of the trial. verdict’. In the Jonathan Aitken trial the Would a prosecution then be possible for Alec Samuels, barrister judge spoke of a defence character witness the offence and, if so, proper?

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