The Public Interest and Prosecutions

Transcription

1 The Public Interest and Prosecutions Gordon Anthony * Introduction 1. This is a short paper about the public interest and how the term is used in the context of prosecutorial decision-making. It develops three main points. The first is that the term has multiple uses in public law and that these set the background for understanding more specific uses of the term in relation to prosecutions. The second (well known) point is that the decision whether it is in the public interest to bring a particular prosecution is a matter for the Public Prosecution Service (PPS) acting under the authority of the Director of Public Prosecutions (DPP). 1 Such decisions are taken in the light of a corresponding Code for Prosecutors 2, and the courts have long emphasized that they are reluctant to interfere with decisions taken under that Code and/or related statutory provisions. 3 This is thus the third point to be made: that it is only in the most extreme of circumstances that the choices of the PPS/DPP will be interfered with by the courts The paper begins with some general comments on the idea of the public interest and the different ways in which it can be used in public law. It then notes some of the public interest considerations that are contained in the Code for Prosecutors and explains how those are factored into the decision-making processes of the PPS/DPP. The commentary under the final heading returns to the point about the courts reluctance to engage in the review of the choices of the PPS/DPP. The multiple uses of the public interest 3. Perhaps the first comment that should be made about the public interest is that it is a term that escapes precise definition. Although the term is in common usage in law and politics, it is widely recognized that the public interest is a vague term that can (arguably) mean anything or nothing at one and the same time. 5 At a * Professor of Public Law, Queen s University Belfast; Barrister-at-Law. 1 Justice (Northern Ireland) Act 2002, ss The Code is available through 3 See, e.g., Re Shuker s Application [2004] NI E.g., Re Cranston s Application [2001] NIQB 40 (PPS decision to prefer certain charges was an abuse of process). 5 For an overview of debates see B Bozeman, Public Values and Public Interest (Georgetown University Press, Washington, 2007) ch 1. 1

2 philosophical level, it is sometimes also said that the public interest presupposes the existence of a political community with one bloc interest which can be safeguarded by governmental decision-making. For some commentators, this means that the idea of the public interest is essentially anti-democratic because it assumes that the legitimate interests of individuals can indeed, should be subject to the invented wishes of a majority community. Other commentators have taken a less hostile view when suggesting that different individuals will often have shared interests and that these can be pooled within some broader notion of the public interest Whatever the strengths or weaknesses of such arguments, the public interest occupies a central place in much of public law. What follows are some of the main and not always complementary ways in which the term can be used: i. The public interest in upholding the rule of law. The courts have used this to justify the expansion of judicial review and, for instance, to allow pressure groups to bring proceedings in court. 7 ii. iii. iv. Public decision-makers take decisions in the public interest. It is sometimes said that public bodies do not have interests of their own and that they make decisions altruistically and on behalf of the public. An example of such a decision-maker would be the PPS/DPP. 8 There is a public interest in protecting fundamental rights. The point here is that rights can act as a brake on governmental power and that this, in itself, is a good thing. An example would the public interest in freedom of expression, as that allows individuals to critique public decision-makers and thereby (potentially) to hold them to account. 9 There can be a public interest justification for limiting fundamental rights. Notwithstanding point iii, above, the common law and the European Convention on Human Rights also recognise that the wider interests of the community may mean that some individual rights should be limited. An example is the right to privacy, which may be limited for reason of, among other things, the prevention of crime See further V Held, The Public Interest and Individual Interests (Basic Books, New York, 1970). 7 E.g., R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR On such ideas see further D Oliver, Psychological Constitutionalism (2010) 69 Cambridge Law Journal 639, Derbyshire CC v Times Newspaper Ltd [1993] AC See Art 8(2) ECHR. 2

3 v. It is in the public interest to limit the liability of the police when they are investigating crime. This has been a highly controversial point in the case law, as it has meant that the families of deceased individuals have been unable to sue the police even when there have been credible allegations of police negligence. The corresponding justification has been one of public policy: the vital police function of the investigating crime which benefits wider society would be undermined if finite resources were diverted so as to defend legal proceedings. 11 vi. Public interest immunity. This is a rule of evidence whereby a public body asks a court or tribunal to exclude from the proceedings before it certain material that is held by the public body. It has long been a controversial rule, and the courts do not lightly accede to requests for evidence to be suppressed. The rule exists as a further outworking of point iv, above, as it limits aspects of the individual s right to a fair trial (guaranteed at common law and under Article 6 of the European Convention on Human Rights). 12 The public interest and prosecutorial decisions 5. Of course, the central focus of this paper is the role that the public interest plays in prosecutorial decision-making. As has already been seen above at point 2.ii, the PPS/DPP is a public body and should, in that broader sense, be motivated solely by serving the public interest. However, in the particular setting of prosecutorial decisions, the public interest also plays a much more elaborate role within the test that the PPS/DPP uses when deciding whether to proceed with criminal charges. Here, the Code for Prosecutors requires the PPS/DPP to ask whether there is sufficient evidence to provide a reasonable prospect of conviction and, if so, whether the public interest requires prosecution. 13 While a decision not to prosecute will be inevitable where there is insufficient evidence to support charges, the matter is more complex when there is sufficient evidence but the PPS/DPP decides that it would not be in the public interest to proceed. In that instance, the PPS/DPP is exercising a very wide discretion, and one that the courts are reluctant to intrude upon (see paragraphs 7 9, below). 6. The question of when the public interest will militate against prosecution is not left unaddressed in the Code for Prosecutors, which contains an indicative list of considerations that may lead the PPS/DPP to make a no prosecution order. The Code s starting point, here, is the presumption is that the public interest requires 11 See, most famously, Hill v Chief Constable of West Yorkshire [1989] AC For recent consideration of the rule see Al-Rawi v Security Services [2012] 1 AC See the Code for Prosecutors, at sections

4 prosecution where there has been a contravention of the criminal law In some instances the serious nature of the case will make the presumption a very strong one (the Code then lists public interest considerations that would favour prosecution 14 ). However, the Code also notes that there may be circumstances in which prosecution is not required in the public interest. Some of the corresponding reasons, listed at paragraph of the Code, are: i. Where the court is likely to impose a very small or nominal penalty. ii. iii. iv. Where the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by an error of judgement or a genuine mistake. Where the offence is not of a serious nature and is unlikely to be repeated. Where there has been long passage of time between an offence taking place and the likely date of trial unless: (a) the offence is serious; (b) delay has been caused in part by the defendant; (c) the offence has only recently come to light; or (d) the complexity of the offence has resulted in a lengthy investigation. v. Where a prosecution is likely to have a detrimental effect on the physical or mental health of a victim or witness, particularly where they have been put in fear. vi. vii. viii. ix. Where the defendant is elderly or where the defendant is a child or a young person. Where the defendant was at the time of the offence or trial suffering from significant mental or physical ill-health. Where the defendant has put right the loss or harm that was caused (although defendants must not be able to avoid prosecution simply because they pay compensation). Where the recovery of the proceeds of crime can more effectively be pursued by civil action brought by the Serious Organised Crime Agency. 14 These include i. the seriousness of the offence i.e. where a conviction is likely to result in a significant penalty; ii. where the defendant was in a position of authority or trust and the offence is an abuse of that position; iii. where the defendant was a ringleader or an organiser of the offence; iv. where the offence was premeditated; v. where the offence was carried out by a group; vi. where the offence was carried out pursuant to a plan in pursuit of organised crime; vii. where the offence involved the possession or use of a firearm, imitation firearm or other weapon such as a knife; and viii. where the offence was motivated by hostility against a person because of their race, ethnicity, sexual orientation, disability, religion, political beliefs, age or the like. 4

5 x. Where details may be made public that could harm sources of information, international relations or national security. The judicial control of prosecutorial decisions 7. The fact that the PPS/DPP enjoys a wide discretion under the Code has been noted in many cases, where the courts have said that judicial intervention will be rare in the extreme 15 and sparingly exercised 16. It is to emphasized that this does not mean that the PPS/DPP occupies a more generally privileged position within the criminal justice system, as the courts will be rigorous in ensuring that the PPS/DPP observes all laws of evidence etc within the context of the criminal trial. However, where the courts will exercise restraint is in the context of judicial review proceedings that challenge a decision whether or not to prosecute, as the courts consider that the PPS/DPP is best placed to evaluate all relevant information and to reconcile the interests of the victim with those of the accused and the wider public interest. This triangulation of interests is understood to bring a considerable degree of complexity to the role of the PPS/DPP, and the courts have therefore said that intervention by way of judicial review can be expected to be very much the exception rather than the rule. As Lord Steyn said in Kebeline: I would rule that absent dishonesty or mala fides or exceptional circumstances, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review This imperative of self-restraint can be seen in two well-known cases that, while not concerned with the Code for Prosecutors, arose in analogous prosecutorial/investigative settings. The first is Re Shuker s Application 18, which concerned a challenge to a decision of the Attorney-General whereby he had elected not to de-schedule charges that had been brought against the applicant under the Terrorism Act 2000 (this meant that the applicant would be tried without a jury). The applicant challenged the decision on a range of grounds, which included a breach of the rules of procedural fairness. An initial question for the Divisional Court was whether the decision of the Attorney-General was even justiciable, as counsel for the Attorney-General had argued that the choice at hand was not open to judicial scrutiny. While the Divisional Court was not willing to accept that argument in its entirety, it did accept that the Attorney-General had a very broad discretion and that the Court should be slow to intervene in the decision-making process. Moreover, on the argument that there had been a breach of the rules of procedural fairness notably of the applicant s right to be heard in advance of the Attorney-General s 15 R v Inland Revenue Commissioners, ex parte Mead [1993] 1 All ER 772, R v DPP, ex p C [1995] 1 Crim App R 136, R v DPP, ex p Kebeline [2000] 2 AC 326, [2004] NI

6 decision being taken the Court held that such grounds for review did not apply in the given context. As Kerr LCJ (as he then was) put it: Ultimately the question whether the Attorney General should be subject to judicial review in respect of decisions about de-scheduling must be answered in a way that takes account of the particular features of this process of decision-making. We have concluded that it is not a process which is suitable for the full panoply of judicial review superintendence. In particular, we do not consider that the decision is amenable to review on the basis that it failed to comply with the requirements of procedural fairness. The exercise involved in deciding whether offences should be de-scheduled is in some respects akin to the decision whether to prosecute. It involves the evaluation of material that will frequently be of a sensitive nature and the assessment of recommendations made by or on behalf of the Director of Public Prosecutions based on his appraisal of matters that may not be admissible in evidence or whose disclosure would be against the public interest. This is par excellence a procedure on which the courts should be reluctant to intrude. It is, moreover, a task that has been entrusted by Parliament to the Attorney General and while this will not in all circumstances render judicial review impermissible, it signifies a further reason for reticence The other case is R (Corner House Research) v Director of the Serious Fraud Office. 20 The applicant challenged a decision of the Director whereby he had discontinued an investigation into allegations of corruption in BAE System s dealings with officials in Saudi Arabia. The investigation had been commenced on the basis of the Director s powers under section 1(3) of the Criminal Justice Act 1987 as read with sections of the Anti-terrorism, Crime and Security Act 2001 (the latter provisions giving effect to the UK s obligations under the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions, 1997). 21 As the investigation progressed, the Saudi authorities made an explicit threat that they would withdraw cooperation with the UK on matters of anti-terrorism, and there were very real concerns within the UK government that this would put British lives on British streets at risk. The Director s decision to discontinue was therefore taken with reference to the public interest in public safety, and Corner House challenged that decision with reference to the competing public interest in upholding the rule of law (on which see 2.i, above). The applicant initially succeeded in the Divisional Court, which held that the Director had acted unlawfully by, in effect, surrendering his discretion in the face of the Saudi threat. However, the House of Lords allowed the Director s appeal. Having noted the breadth of the discretion that is generally entrusted to public prosecutors under UK law, the House of Lords emphasized again the limited role that the courts should play when 19 [2004] NI 367, And for subsequent application of Shuker see Re Arthurs Application [2010} NIQB [2009] 1 AC See now the Bribery Act

7 decisions are challenged by way of judicial review. The House also noted that the facts of the case had placed the Director in an impossible situation and that he had been entitled, in law, to make the decision to discontinue. As Lord Bingham expressed it: The Director was confronted by an ugly and obviously unwelcome threat. He had to decide what, if anything, he should do The issue in these proceedings is not whether his decision was right or wrong but whether it was a decision which the Director was lawfully entitled to make In the opinion of the House the Director s decision was one he was lawfully entitled to make. It may indeed be doubted whether a responsible decision-maker could, on the facts before the Director, have decided otherwise. 22 Conclusion 10. This paper has provided a short account of how the term the public interest is used in the context of prosecutorial decision-making. It has emphasized that the PPS/DPP has a broad discretion when making decisions about whether to prosecute. While the corresponding decisions of the office may sometimes prove (politically) controversial, this does not mean that the decisions are also unlawful. On the contrary, the case law has established that it is only in the most extreme circumstances that a prosecutorial choice will be reviewed by the courts, for instance where a decision is vitiated by dishonesty or bad faith. In the absence of that, it is clear that day-to-day decisions about the public interest have been entrusted to the PPS/DPP. 22 [2009] 1 AC 756, 844-4, paras