The Scope of the Rule of Law and the Prosecutor some general principles and challenges It gives me great pleasure to speak today at the 18 th 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 (the Attorney referred to an IAP award which had just been awarded and said he was pleased to see the award go to an environmental prosecutor given his own background in this area). 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. Be Just and Fear not 1 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. It is my positive duty to ensure they remain just that. 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; 1 Shakespeare - Henry VIII, Act 3 1
is a prosecution in the public interest? It matters not if a government minister, politician or even the Prime Minister thinks that a prosecution should be started if those two stages have not been met, there wont t be a prosecution. It is not for politicians to decide if the stages are met in the first place. 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 consider myself a prosecutor. As Attorney General I do in fact have a number of prosecutorial functions, where my consent to bringing 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. But when I perform those prosecutorial functions, I must and do 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. 2
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 his key work The Rule of Law (I suspect we will hear more about the thoughts of Lord Bingham as the conference progresses!). Indeed we have already heard about it in the opening remarks of James Hamilton. 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 eight principles which ought to support that aim. In brief these were: 1. The law must be accessible, intelligible, clear and predictable. 3
2. Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion. 3. Laws should apply equally to all. Equally applying to government as to the governed. 4. 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. 5. The law must afford adequate protection of fundamental Human Rights. 6. The state must provide a way of resolving disputes which the parties themselves cannot resolve. 7. The adjudicative procedures provided by the state should be fair. 8. The rule of law requires compliance by the state with its obligations in international as well as national laws. This is something which is in the Ministerial Code issued by every Prime Minister who comes into office into the UK. By observing these eight 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. 4
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 citizens of their freedom, property and ultimately their very existence. In such circumstances, the claim that the rule of law is actually being observed actually a mockery of the truth. It is troubling to see some countries publicly proclaim adherence to the Rule of Law and Human Rights, and yet at the same time are still eroding those very same standards behind the cover of legislative processes providing a thin veneer of respectability and apparent conformity with the law. It is too easy for countries to develop a system of oppression and tyranny camouflaged by what appears 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. So 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 think we only need to look at one of them: 5
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. If a fair adjudicator is absent (which includes the prosecutor as the adjudicator) the rule of law will be banished.. 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 that the innocent remain free. And 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 for the period before, when the prosecutor has to 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 the available evidence. 6
No prosecution should be brought so as to satisfy the political aims of a government, a party or individual. In the absence of properly acquired, admissible and genuine evidence, no prosecution should ever be started. The law courts are not the place for settling political rivalries.. The prosecutor must be impartial and free of political taint. 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. 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. And a state, which truly respects the rule of law, must always 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 must be the hallmark from start to finish. 7
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 much used in England and Wales, there must be equality of arms. It simply cannot be right that the prosecution alone be allowed to present evidence. It can never 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. And a defendant must be given sufficient opportunity to prepare his case and to have it heard. And be heard if he wishes it. Any system that convicts a defendant without allowing him these opportunities will be flawed and outside the rule of law. So the prosecutor has a vital role in ensuring that from beginning to end the process is fair.. 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 to you this morning. Unless we as prosecutors are frank and honest with each other, speaking out against errors which we perceive and sharing best practice, there is nopurpose to this conference? Indeed, it is because in my own country, in the UK, many mistakes have been made over the years over how prosecutions are conducted. The UK has made many mistakes, and doubtless 8
will continue to happen, 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 examples 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. So the vital quality of fairness was missing and this fuelled resentment, anger and hatred. Where did this lead? It ultimately led to almost four decades of bloody conflict, instability and violence. The government reacted, usually from the best of motives, but too frequently oppressively and at times outside the rule of law. There was, for example, imposed a system of internment - imprisonment without trial. That system was biased, unfair and unjust. It did nothing to solve the underlying problem 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. 9
Fortunately, British democracy has the ability to learn, adapt and amend. With some adverse judgments, European courts, the subject of parliamentary and press criticism, slowly, sometimes probably too slowly, the inequalities and unfairnesses 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 ever providing a fig leaf of legal respectability to what in reality are oppressive, unfair and unjust systems of law of 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 our discussion and analysis of this conference have faded, and we tread our weary, and I m sure contented, way home, we need to remember the real value and contribution which we 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. Thank you. ENDS 2,157 words 10