The rule of law and the prosecutor
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Attorney General emphasises the prosecutor's role in making sure that trials are fair, politically neutral & human rights are defended.
It gives me great pleasure to speak today at the 18th Annual Conference and General Meeting of the International Association of Prosecutors (IAP).
The aims of the IAP - to promote the rule of law, fairness, impartiality and respect for human rights and to improve international cooperation to combat crime - demonstrate the powerful and influential role which the prosecutor can play within society.
A prosecution service which is fearless and protective of its independence and impartiality, which is free of political control and direction, will be a bulwark for freedom and liberty.
As Attorney General of England and Wales I superintend prosecutions and am answerable to Parliament for their conduct. The primary prosecution services in England and Wales – the Crown Prosecution Service and Serious Fraud Office - are, however, wholly free of political control and direction. They bring prosecutions only when a two stage test has been met:
Is there is sufficient evidence to provide a realistic prospect of conviction?
And if there is; is a prosecution required in the public interest?
It matters not if a government minister, politician or even the Prime Minister demands a prosecution be started - if those two stages have not been met, then no prosecution will follow.
Political aims, petty vindictiveness or vendettas have no role to play. This process helps uphold the rule of law.
Although prosecutions are the responsibility of independent prosecuting authorities, I do not feel a fraud or interloper appearing here before so many distinguished prosecutors. I am proud to call myself a prosecutor.
As Attorney General I do in fact have a number of prosecutorial functions, for example, in certain criminal cases - terrorism, possession of explosives, offences with an international angle - my consent to prosecution is required.
I also appear regularly in the Court of Appeal to seek the review of sentences imposed in criminal cases which I believe to be too low.
When I perform these prosecutorial functions, I act wholly independent of Government. Indeed, one of my predecessors, Lord Simon, said:
The Attorney General should absolutely decline to receive orders from the Prime Minister or cabinet or anybody else.
While that may not do much for my political career, that is an important protection for the rule of law in the United Kingdom and one that I will uphold and staunchly defend.
The UK recognises the importance of developing the rule of law, legal institutions and the capacity of countries to deal with legal matters, as crucial to our mutual national interests. The ‘Golden Thread’ of the rule of law runs through not only the ability to prosecute serious crime and terrorism but increasingly wider agendas such as prosperity, development and growth.
In 2010, one of the United Kingdom’s most distinguished jurists in the last hundred years, Lord ‘Tom’ Bingham, published the seminal work ‘The Rule of Law’ (I suspect we will hear more about the thoughts of Lord Bingham as the conference progresses!).
Lord Bingham’s book built upon an academic paper which he had delivered four years earlier in 2006 and in which he had looked at what exactly is meant by the rule of law.
In his 2010 book Lord Bingham identified the core principle of the rule of law as being:
that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.
He went on to outline 8 principles which he saw as being the key ingredients necessary to support that aim. In brief these were:
The law must be accessible, intelligible, clear and predictable.
Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion.
Laws should apply equally to all.
Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers.
The law must afford adequate protection of fundamental Human Rights.
The state must provide a way of resolving disputes which the parties cannot themselves resolve.
The adjudicative procedures provided by the state should be fair.
The rule of law requires compliance by the state with its obligations in international as well as national laws.
By observing these 8 principles, and in particular the fifth, affording adequate protection of fundamental human rights, we avoid the dilemma identified by Professor Joseph Raz in his 1979 work ‘The Authority of Law’.
Professor Raz argued that, seemingly, within the framework of the rule of law, there can exist societies which oppress minorities, condone slavery, and support sexual inequalities - all of which would be abhorrent to liberal democracies. And yet, by adhering to strict legal structures and procedures such societies could still legitimately claim to excel in their conformity to the rule of law.
Such a legal system will allow discrimination and prejudice but all the time within the legal construct of decrees and legislation. Absent protection for human rights, courts and legal system may deprive fellow citizens of their freedom, property and ultimately their very existence. In such circumstances, the claim that the rule of law is observed is but a mockery of the truth.
It is troubling to see some countries publicly proclaim adherence to the Rule of Law and Human Rights, whilst at the same time eroding those very same standards behind the cover of legislative processes – providing a thin veneer of respectability and apparent conformity with legal norms.
It is all too easy for countries to develop a system of oppression and tyranny camouflaged by what purports to be a legal framework. Lord Bingham’s principles and the call for respect for fundamental human rights, expose the lie of such systems and their flawed claim to act in compliance with the rule of law.
As prosecutors and lawyers, we should therefore seek to observe and uphold each of Lord Bingham’s principles; but for the purposes of today’s plenary session, I wish to examine in a little more detail one specific principle, the seventh: the adjudicative procedures provided by the state should be fair.
It is this principle which I believe is of particular relevance to the prosecutor and one whereby the prosecutor who observes it correctly will make a significant difference.
Absent a fair adjudicator (which includes the prosecutor) the rule of law will be banished, replaced by arbitrary and flawed justice. Without fairness there can be no confidence in the courts and decision makers.
A trial where the conclusion is pre-determined, dictated by politics, or directed by the government, does not uphold the rule of law. It is vital, therefore, that the prosecutor be a fearless defender of independence, impartiality and fairness - ensuring not just that the guilty are convicted but also the innocent remain free.
Prosecutors need to be scrupulous in ensuring the fairness of the proceedings with which they are involved. Not just when presenting a prosecution in court but also in the period before, when the prosecutor should carefully assess and analyse the evidence and public interest - that process or adjudication must adhere to the principle of fairness.
At times, the prosecutor’s compliance with this principle will undoubtedly prove to be challenging but the prosecutor, should always act independently and impartially.
Independent, in the sense that a prosecutor should determine the merits of a prosecution solely on the basis of the law and available evidence.
No prosecution should be brought so as to satisfy the political aims of a party or individual. Absent properly acquired, admissible and genuine evidence, no prosecution should ever be started. The law courts are not the forum for settling political rivalries nor should they be used as a convenient means of neutralising an opposition opponent. The selective application of justice can never be justified or appropriate.
The prosecutor must be impartial and free of political taint. Reviewing a case, the prosecutor must be open minded and unbiased. Prosecutors should never allow their personal prejudices or partisan allegiances to influence their decision.
The prospect of a promotion; the fear of demotion; the chance of an increased salary; the possibility of a reward for a decision convenient to a political master – the prosecutor should guard against any of these considerations influencing his decision.
And a state, which truly respects the rule of law, will seek always to shield and protect the prosecutor from ever being subject to such improper pressures or blandishments. Establishing constitutional and legal protections for the prosecutor.
When prosecuting a case the prosecutor should also consider the necessity to disclose material to a defendant which may be helpful to the defence or which potentially undermines the prosecution case. Save in exceptional circumstances, it can never be fair for the prosecutor in a criminal trial to withhold material which may exonerate or support a defendant. Nor, when deciding whether to bring a prosecution, should the prosecutor ignore such material. Impartiality demands that the prosecutor retains an open mind from start to finish.
Fairness means fairness to all. Just as the prosecutor should have ample opportunity to present his case before an impartial tribunal, so too should the defendant be able to effectively rebut the prosecution case. To quote a phrase, there must be ‘equality of arms’.
It simply cannot be right that the prosecution alone be allowed to present evidence. Nor can it ever be right that disputed evidence go unchallenged. Or that the tribunal of fact reaches a conclusion in advance or without having heard the evidence for both sides.
A defendant must be given sufficient opportunity to prepare his case and to have it heard. Any system that convicts a defendant without allowing him these opportunities will be flawed and outside the rule of law.
The prosecutor has a vital role in ensuring that from beginning to end the process is fair. No prosecutor should be party to a state orchestrated charade which shames and abuses the rule of law.
That is the challenge presented by the rule of law.
In saying these things, I am very mindful that it is easy to sound sanctimonious and critical of the systems of others and the challenges which they face. That is not my purpose in speaking so openly. Unless we as prosecutors are frank and honest with each other, speaking out against errors which we perceive and sharing best practice, what is the purpose of this conference?
Indeed, it is because the UK has made many mistakes, and doubtless will continue to do so, that I feel confident in speaking frankly to you - and at all times as friends.
The British system of law and government lays no special claim to infallibility or perfection. Our history is scattered with abuses of executive power and failures within the justice system.
In the 1960s, Northern Ireland was a part of the United Kingdom where the political and legal systems were perceived as being skewed against the minority catholic population. The vital quality of fairness was missing and this fuelled resentment, anger and hatred.
Where did this lead? To almost four decades of bloody conflict, instability and violence.
The government reacted, usually from the best of motives, but all too frequently oppressively and in reality beyond the rule of law. There was, for example, imposed a system of internment - imprisonment without trial. This was a system perceived as biased, unfair and unjust. It further fuelled the anger and hatred and proved to a fertile breeding ground for terrorism and discontent.
If you undermine or subvert the rule of law in the belief that by so doing you will protect your regime or system of government; you will ultimately prove to be the destroyer of all that you seek to preserve.
Fortunately, British democracy has the ability to learn, adapt and amend. Condemned in the European courts, the subject of parliamentary and press criticism, slowly, often far too slowly, the inequalities and unfairness in Northern Ireland society were reduced or removed - lawfully and within the rule of law.
As prosecutors, as lawyers, we need to be vigilant in guarding against the danger of providing a fig leaf of legal respectability to what in reality are oppressive, unfair and unjust systems of law and government. Devoid of the rule of law.
I said at the start, the prosecutor can play a vital role in safeguarding the liberties and freedoms of his fellow citizen. When the echoes of discussion and analysis of this conference have faded, and you tread your weary way home, remember the real value and contribution which you can make to ensuring the rule of law is upheld.
As prosecutors we must never lose sight of that truth - that is the challenge which we face.