English Law Students' Association address at Durham University
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Role of the Law Officers, history and current work
It is a pleasure to be speaking here tonight at the English law Students Association. May I first of all thank your president Anna Louise Thomond for inviting me to do so. I would like to talk to you this evening about the role of the Law Officers (the Attorney General, Dominic Grieve and myself, the Solicitor General, but before I do that, a bit of history.
The Office of Attorney General is an ancient one and much has changed over the years. Legal historians argue about who the first Attorney General was, with some suggesting the role may go back as far as the appointment of Lawrence del Brok in around 1247, whose function was to sue ‘the King’s affairs of his pleas before him’. While the first person to be called ‘Attorney General’ was John Herbert who was appointed as the King’s principal law officer in 1461.
The Office of Solicitor General or ‘secundarius attornatus’ as it was judicially described, is also an old one and has changed so significantly over the years, that it would be a mistake to think that the role of the ‘first’ Solicitor was, in any meaningful sense, comparable with the role today. Originally the role of the Solicitor General was seen as a natural stepping stone to becoming the Attorney General although this is not the case today. It is now generally accepted that the role of a Solicitor General is to support the Attorney General in his various functions and responsibilities; in other words the Attorney’s deputy.
The first person to take on the role of ‘Kings Solicitor’, as it was known then, was Richard Fowler who was appointed in 1461, it wasn’t until 1515 before the title of Solicitor General was first used.
A notable predecessor of mine was Sir Richard Rich who was a particularly brutal Solicitor General. He took on the role in 1533 and was knighted having taken a leading part, with Thomas Cromwell, in the persecution of those accused of violating the Act of Succession. One such person was his childhood friend, Sir Thomas More, who he committed to the Tower and brought to the block. At his trial Sir Thomas More said of the Solicitor General:
…In faith, Mr. Rich, I am sorrier for your perjury than for my own peril…
At the same time he was also persecuting the Lutherans for not conforming to the Six Articles. In 1540, when Thomas Cromwell was accused of treason, guess who was one of the chief witnesses against him: his friend and benefactor Sir Richard Rich, who by this time was the Lord Chancellor. After Cromwell’s death, Rich took an active part in the persecution of the reformers, and those who would not subscribe to the king’s supremacy. This general theme of persecution continued until his death in 1567.
Perhaps, for me, the most notable Solicitor General was John Cooke, who was an active law reformer and committed independent. In 1649 he led the prosecution in the trial of King Charles I, whose conviction and execution led to the creation of Oliver Cromwell’s Commonwealth of England. John Cooke was appointed the first Solicitor General of the English Commonwealth but following the Restoration of the Monarchy in 1660, he also became the first (and only) Law Officer to be hanged, drawn and quartered! Fortunately for me, the ultimate sanction is far less severe today. Needless to say things have moved on a bit from then and there have been some significant changes.
Up until 1893 both the Attorney General and the Solicitor General were able to maintain their right to represent private litigants. It was generally accepted that the role of the Law Officers was primarily that of ‘leading counsel’ who could be called upon by the government to look after the litigation concerning the Crown. This role still exists today but it is now conducted by Treasury Counsel who are appointed by the Attorney General.
The Attorney General as a Cabinet minister
Up until the early twentieth century the general practice was for the Attorney General not to be a member of Cabinet and this was confirmed in 1889 when a leading treatise on parliamentary government made the categorical statement that in England the Attorney General was never admitted to the Cabinet . He could, however attend in an advisory capacity when appropriate.
In 1912 the then Attorney General, Sir Rufus Isaacs, was the first ever Attorney General invited to be a member of Cabinet. This was in order to appease him having not been given the Lord Chancellor post when it became vacant which was common practice up to that point. This was significant because all future Attorney Generals up to 1928 were also made members of the Cabinet.
In 1928, following the proposal to introduce a draft bill preventing an Attorney General or Solicitor General from becoming a member of cabinet, the incumbent Attorney General, Thomas Inskipp, was not made a member of the Cabinet.
Since that date no Attorney General or Solicitor General has ever been a member of the Cabinet.
Some have argued, that by leaving the Cabinet, the role of the Attorney General has lost some of its influence however, in reality, the Attorney General has returned to a position of independence whilst recognising the need to maintain knowledge of the decisions of Cabinet.
Since 1928, without exception, the Attorney General has attended cabinet when required to provide advice on legal or constitutional matters, or in relation to questions arising as a result of the superintendence role.
Changes to the role of the SG
Another significant change came in July 1944 with the introduction of the Law Officers Act. The 1944 Act provided for the exercise of statutory powers by the Solicitor-General in place of the Attorney. In other words it allowed the Solicitor General to carry out the functions of the Attorney General only when the Attorney was indisposed or his office was vacant. In 1997 the then Solicitor General, Lord Falconer of Thornton, introduced a bill which allowed the Solicitor General to carry out all the functions of the Attorney General regardless of whether the Attorney’s office was vacant or he was indisposed. The Bill received royal assent on the 30 September 1997.
Where are we today?
As I have already mentioned, things have changed significantly since 1515: a Solicitor General can’t send anyone to the Tower, or be executed and they can no longer represent private clients whilst in office. However, as I have already said, the Solicitor General is still essentially the Attorney’s deputy; but since 1997 any function of the Attorney General can be exercised by the Solicitor General, so when I talk about the functions of the Attorney General I mean my own too.
To complete the Law Officer picture I need also to mention the Advocate General for Scotland, Lord Wallace of Tankerness QC, who is the UK Law Officer responsible for advising the UK Government on matters of Scots law. In the devolved administrations some of the roles of the law officers are performed by the Lord Advocate in Scotland, the Attorney General for Northern Ireland and the Counsel General in Wales, although not all their powers are the same as those of the Law Officers in England and Wales.
The role of the Law Officer
The role of Law Officer is one of the most interesting posts for a lawyer to hold. On being appointed by the Prime Minister in 2012, and before taking office, I was required to swear an oath of allegiance to the Queen. This was done in the Royal Courts of Justice before the Lord Chief Justice and it states:
I, Oliver Heald do declare that well and truly I will serve the Queen as Her Solicitor General in all Her Courts of Record… and sue The Queen’s process after the course of the Law, and after my cunning for any matter against The Queen where The Queen is party….
In addition to being the chief legal adviser to the Crown, the Attorney is also the minister responsible for the law officers departments (which consist of: The Crown Prosecution Service (CPS), The Serious Fraud Office (SFO), Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI), the Treasury Solicitors department (TSol). He is also the guardian of the public interest and a protector of charity.
But in addition to this both the Attorney General and I are barristers – and we are therefore entitled to appear in Court as advocates on cases relevant to our role as Law Officers. Indeed, you may have heard last week of the decision handed down by the Supreme Court on the question of prisoners voting rights, and whether the current ban on prisoners being able to vote in elections contravened EU law.
The Attorney General had argued this case for the Government before the Supreme Court in May. And then last week the Supreme Court issued its judgment - finding in the Government’s favour. The Prime Minister congratulated the Attorney General on the result in Prime Ministers questions. It’s always nice for a lawyer to receive thanks from his client!
So, as you can see it is a role which includes both ministerial and non-ministerial duties, and the role of giving effect to the constitutional principle of the rule of law; we are essentially the point at which politics and law meet. But what does this mean in practical terms?
Chief legal advisers to the Crown and the Government.
The role of the Attorney General as the Government’s chief legal adviser was neatly summed up by the former Attorney General, Lord Mayhew of Twysden, who said:
The Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principle requirement of which is that the government itself acts lawfully.
Therefore Departments will often come to us for advice on how policy can be achieved in a lawful or proper way. This is reinforced by the Ministerial Code issued by the Prime Minister, which states that the Law Officers must be consulted in good time before the government is committed to critical decisions involving legal considerations.
Government ministers responsible for the Law Officers’ Departments
As I have already said the Attorney General and I also superintend the CPS, SFO, HMCPSI and Treasury Solicitors department. This superintendence role involves supporting the independence of the prosecutors in taking prosecution decisions and ensuring that there is proper public and parliamentary accountability for the conduct of prosecutions; the Attorney is answerable to parliament for these prosecuting bodies. While most of you may be familiar with the CPS, you may not be aware that we also have oversight and residual responsibility for prosecutions brought by other Government departments including: the Department for Business Innovation and Skills (BIS) and the Office of Fair Trading (OFT). The Attorney is generally consulted, and may assist in particularly difficult cases, but he also has an oversight of the cases that are being run by these departments and is regularly updated by them.
Guardians of the public interest
On the criminal side one of the Attorney’s public interest functions, and perhaps one of the most high profile, is dealing with referrals of unduly lenient sentences. In general terms this means that if myself or the Attorney consider that a sentence fell below the range which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate we may refer it to the Court of Appeal. The Court will then re consider the sentence and, if it makes a finding that the sentence was unduly lenient, has discretion to increase it. Generally such cases are referred to us by the CPS, but we also consider cases referred by the public and Members of Parliament.
The power to refer an unduly lenient sentence is often thought of as a right for the prosecution, or indeed an interested party, to ‘appeal’ against a lenient sentence. But that is to misunderstand the nature of the power. It is an exceptional remedy to be used in the most serious cases and to address those sentences which fall so far below the range of sentences it was reasonable for the judge to impose that they risk damaging public confidence in the criminal justice system.
The Attorney and I must consider personally each case we are asked to look at, provided it falls within the scheme and is within the time limit. We take advice, as you may expect, from experienced independent counsel (Treasury Counsel), but the decision is ours personally. It is only where we feel that a sentence was significantly outside the appropriate bracket that we will ask the Court of Appeal to interfere and it is then a matter for the Court as to whether it decides to increase the sentence. A recent example of an unduly lenient sentence reference was the l case of a local man, Joseph Wright, from Burhope. Wright was sentenced to an 18 month custodial sentence for possession of a Luger pistol and 15 rounds of ammunition. Such an offence attracts a mandatory minimum sentence of five years unless exceptional circumstances apply. I did not believe that Mr Wight’s circumstances had been exceptional and referred his case to the Court of Appeal.
The Court agreed with me and quashed the original sentence, replacing it with the mandatory 5 year custodial sentence.
When time permits I will personally present cases to the Court of Appeal. An example of this was during the summer when I appeared in the Court of Appeal in the case of Francis Knight. The offender had pleaded guilty to causing or inciting large numbers of children to engage in sexual activity over the internet by the offender who at times pretended to be a teenage girl and making indecent images of children. The court agreed with my submissions and quashed the original sentence of 16 months and replaced it with a sentence of 4 years.
The Attorney General also appears when he can and you may remember the case of Stuart Hall which the Attorney General referred and subsequently presented before the Lord Chief Justice. In this case the original custodial sentence of 15 months was increased to 30 months.
Having said this, it is only a tiny proportion of the sentences passed in the Crown Court which come to our attention. By way of example, in 2012 the sentences passed on 344 offenders were considered by the Attorney General and me. Of those, only 88 were referred to the Court of Appeal and the Court increased the sentences in 62 cases. This may not sound a lot but it is an even smaller amount when you consider that each year somewhere in the region of 80,000 cases are sentenced in the Crown Courts. It is nevertheless important that there is a route by which people are able to draw cases to our attention.
Consents to proseute
Consent cases are statutorily created, with the requirement for consent being imposed in order to prevent certain offences being prosecuted in inappropriate circumstances. In a memorandum to the 1972 Franks Committee, the Home Office set out five overlapping reasons why certain offences require consent:
- To secure consistency in prosecution, e.g. where it is not possible to define the offence very precisely
- To prevent abuse or bringing the law into disrepute
- To enable account to be taken of mitigating factors, which may vary so widely from case to case that they are not susceptible to statutory definition
- To provide some central control over the use of the criminal law when it has to intrude into areas which are particularly sensitive or controversial, such as race relations
- To ensure that prosecution decisions take account of important considerations of public policy or international nature that may arise, for example, in official secrets or hijacking
Since being appointed in 2012 I have given consent in a broad range of cases involving corruption, explosive substances, criminal trespass and cases where the death has occurred more than a year after the original injury.
The vast majority of consent applications come from the CPS and other prosecuting bodies; however a very small number of applications for consent are received each year from private individuals such as applications under the Housing Act 1985 to prosecute a housing authority for permitting overcrowding.
Contempt of court
Another distinct area we have involvement with is contempt of court proceedings. As part of this the Attorney receives a number of referrals from judges, the police and members of the public in relation to media reporting. There is no desire to censor but there is a public interest in ensuring that court cases are decided solely on the evidence that is presented in court. The right to free speech and open justice is of fundamental importance but at times can clash with another fundamental right – that to a fair trial. The contempt of court jurisdiction and the Law Officers’ role in overseeing it is borne of an attempt to strike the right balance between these two rights.
The Attorney’s role in contempt is increasingly determined by statute, not least with the introduction of the 1981 Contempt of Court Act. The starting point is, as I believe it should be, in favour of open justice protecting fair and accurate contemporaneous, written in good faith, legal reporting. However the publication of material which creates a substantial risk that the course of justice may be seriously impeded or prejudiced will fall foul of the legislation.
In that situation it is for the Attorney General to decide whether to instigate proceedings against the publisher. There have been high profile examples of this in the past. For instance at the start of a murder trial, in which the defence was one of self-defence, The Daily Mail and Sun both published a photograph of the defendant holding a pistol, with his finger on the trigger.
A jury had been sworn and given instructions and guidance by the Judge, not the least of which was that they should not consult the internet. After careful investigation by the Judge, it was apparent none of the jurors had seen either article; and fortunately the trial was able to continue with the defendant subsequently being convicted.
However, the Judge said that there was a prima facie case of contempt. Despite these publications having been on the internet, the Attorney agreed and initiated proceedings for contempt. Following a trial, the Court fined each paper £15,000 and ordered to pay costs of £28,117.
Another aspect of contempt proceedings relates to breaches of injunctions contempt,which speaks for itself.
Earlier this year the Attorney General brought proceedings in the High Court against two individuals who posted messages and pictures which purported to be images of Jon Venables and Robert Thompson – the child killers of Jamie Bulger. A High Court injunction prohibits the publication of any images which purport to be of Venables and Thompson. This injunction has been in place since 2001.
They were both found guilty and received a custodial sentence of 9 months suspended for 15 months. The Court warned that in future anyone who posted pictures purporting to be of Venables and Thompson could expect to go to gaol for a long time.
Thankfully proceedings of this sort are comparatively rare.
Otherwise the Attorney is consulted by the Director of Public Prosecutions (DPP) in relation to a range of key prosecution policy issues and sometimes in relation to individual cases which carry a particular difficulty or sensitivity. The Director of Public Prosecutions also keeps us informed of progress in high profile cases. In comparison to the number of cases which pass through the CPS you will note that I only see a very small proportion of these, however the ones I do see often have an influence on future prosecution policy so it is important that we are kept in touch.
The Attorney also has the power to end criminal proceedings on indictment before a judge and jury by issuing a Nolle Prosequi (latin for unwilling to pursue – do not prosecute). By entering a Nolle Prosequi on an indictment the prosecution is brought to an end, but it is not a discharge or an acquittal and therefore the defendant remains liable to be tried in the future.
The power of the Attorney to issue a Nolle Prosequi has no statutory basis and the exact origin is uncertain. Its underlying basis seems to be drawn from the need for the Crown to reserve the right to terminate the proceedings at will.
A Nolle Prosequi will usually only be entered where either the Attorney or I are satisfied that it is in the public interest to do so, this usually arises where proceedings cannot be terminated in any other way. The most common ground of application is the ill-health of a defendant, although some defence solicitors do attempt to use the system as a form of appeal against a prosecutor’s decision to continue with the prosecution.
The Crown being the protector of charity means that the Attorney has powers derived from the Crown to represent charity, or the beneficial interests of any particular charity, before the courts. This can range from considering whether to make ex-gratia payments from charitable funds to bringing proceedings against charitable trustees who act in breach of their trust.
Having spoken about the history of the role and what we, the law officers, do I would now like to turn to the future of the legal profession, which has undergone, and is still going through, enormous change.
Future of the legal profession
A good example of the direction the legal profession is heading is the recent development of digitalisation. Technology has a critical role to play in delivering swift and efficient justice. The law has long been heavily dependent for its functioning on large amounts of paper; you only need to read John Mortimer’s ‘Rumpole of the Bailey’ to see how the bar used to function; and this certainly was the case when I started my career as a barrister. But that is all changing. A great deal of money has been spent on IT in all the criminal justice agencies during the last decade. The Government’s ambition is for all the information and evidence collected and relevant to a criminal investigation to be captured once, digitally.
The criminal justice system is already beginning to move away from depending on great bundles of paper, towards being a predominantly digital service. The police, CPS and Courts Service are developing the use of the digital file and a common or ‘shared’ IT platform, which will hold all the evidence associated with any criminal case. Over the next couple of years many courts will be fully equipped with new IT, including large TV monitors for the presentation of evidence and all will be enabled for WiFi allowing case information to be shared instantly.
An excellent illustration of this shift in attitude is the recent case of Michael Hughes which was heard by the Supreme Court in July this year. For the first time, the CPS presented a fully electronic criminal law case to five Supreme Court Justices, who like the QCs appearing before them, navigated their way through electronic bundles of complex legal documents displayed on screens and manipulated via laptops. This may not be impressive to you, but believe me, this is a revolution for some. The benefits were clear and a hearing listed for two days was completed in one.
In five years’ time the way cases are managed and presented in court will be fundamentally different to the way they have been in the past. Laptops and courtroom TV monitors will soon become the norm in the same way as counsel’s notebooks and fountain pens have been a part of mine. As future lawyers, you will be the first generation to use this new system.
Another example of this can be seen in the impressive Rolls Building which was opened by the Queen on the 07 December 2011. The Rolls building is the largest specialist commercial court centre which for the first time houses, under one roof, the Chancery Division, the Admiralty and Commercial Court and the Technology and Construction Court.
This commercial law court complex has 31 court rooms and 3 ‘super courts’ and it is designed and intended to function on an almost paperless basis. How successful this will be, only time will tell, but such aspirations are without doubt an indication of the clear direction of travel for the legal profession. This brings me to my final topic this evening– another very positive aspect of the changing legal landscape, which has seen significant growth in the last decade and which looks set for further expansion in the future. This is the UK’s standing as a world leader in the provision of commercial legal services and, in particular, London’s success as a centre of international litigation.
Recent research shows that the number of international litigants resolving disputes in the Commercial Courts has increased by 30% since 2009 and that London’s popularity as a litigation centre is higher than ever before. Of course, there have been some very high profile and high-value battles between Russian oligarchs in recent years, but the number of litigants from Europe and the US has also increased significantly over the last five years.
There may be many reasons for this success, but one of the most important of these is surely that this jurisdiction is seen internationally as an example of a Rule of Law state, with a scrupulously independent judiciary and legal profession. This brings with it the opportunity both to do good on the world stage and to benefit commercially. In fact, the legal services sector now contributes 1.4% of the UK’s GDP and is a major asset to this country.
As I have said the role of the law officers has changed significantly over the years but it has always been one which is at the heart of government. As the protector of the public interest and the chief legal advisor to the government we face many challenges often on a daily basis. This is also true of the legal profession which is going through significant changes. The days of John Mortimer’s Rumpole of the Bailey will soon be gone and in its place will be court centres and digitalisation. But with this comes opportunity as more and more businesses choose to come to the UK and more international litigants use the English legal system to resolve their disputes. As future lawyers you will be well equipped to meet these challenges and they should be embraced.