Annexes to Appendix 4
ANNEX A
COPY OF A LETTER FROM DOMINIC GRIEVE MP, TO RT HON
THE LORD GOLDSMITH QC, ATTORNEY GENERAL
As you will be aware, there has been considerable
public comment over the last few days in respect of the role of
the Attorney General in any decision to bring a prosecution against
any leading public figure. In particular, the issue has centred
on the ability of an Attorney General to determine whether it
is in the public interest for a prosecution to be brought in circumstances
where a conflict of interest could be perceived to exist because
of the Attorney General's political relationship with such a person.
You will also be aware that in the course of the
giving evidence to the Select Committee on Constitutional Affairs,
Lord Falconer gave his opinion that in such a case any decision
would be taken by the DPP and the Crown Prosecution Service and
the Attorney General would not interfere in the course of the
decision being made.
I understand that it is your view that the Attorney
General could not remove himself from determining the public interest
in such a case and that ultimate responsibility in determining
the public interest in bringing a prosecution must remain with
him.
In view of the uncertainty created by these contrary
views and of the controversy now surrounding the matter, I feel
it would be helpful if you could set out your position and, in
particular, how public confidence in the impartiality of the operation
of the prosecution system would be maintained when such a potential
conflict of interest clearly arises.
7 November 2006
ANNEX B
COPY OF A LETTER FROM RT HON THE LORD GOLDSMITH QC,
ATTORNEY GENERAL, TO DOMINIC GRIEVE MP
Thank you for your letter of today's date. This gives
me a helpful opportunity to clarify my position in the light of
recent public comments in this case.
It is important to stress that these issues are wholly
hypothetical at this stage. The police investigation is still
underway and I do not know whether it will lead to a recommendation
for any person to be prosecuted. The need for any decision on
my part has not yet arisen and may never do so. I know you will
understand that anything I say in this letter must not be taken
as an indication that I have knowledge of possible charges: I
do not.
There have been suggestions that I should stand aside
from any involvement in this case. However, it would not be right
for me to do that.
First, there are a small number of offences for which
any decision to bring a prosecution would require my personal
consent under statute. In such cases the need for my consent (or
that of the Solicitor General) is an essential legal condition.
It is not one which can be avoided. Nor can the consent power
be delegated by the Law Officers to any third person. I emphasise
that I do not know at present if there is any prospect of such
charges being considered.
Secondly, even in relation to those prosecutions
for which my personal consent is not required, the Attorney General
has statutory responsibility for the superintendance of the CPS
and is answerable to Parliament and to the public for its actions.
It is therefore normal for the CPS to consult the Attorney General
on any sensitive cases. As the Director of Public Prosecutions
said yesterday: "The Attorney General is entitled to be consulted
about cases, and it is normal practice for him to be consulted
in serious and complex cases", such as the current inquiry.
Lord Morris of Aberavon has also said that: "At the end of
the day, [the Attorney General] and he alone is answerable to
Parliament and there should be no question of this or any other
Attorney General stepping aside".
As you and others have suggested, it can often be
helpful for the Law Officers to instruct independent counsel to
advise, and it is in fact quite normal for this to happen in sensitive
or difficult cases. Accordingly if the CPS consult me on a prosecution
in this case, I propose that my office should appoint independent
senior counsel to review all the relevant material and advise
on any prosecutions.
As you have acknowledged, I could not simply "rubber-stamp"
the views of counsel, since this would not be consistent with
my ultimate legal and constitutional responsibilities. However,
if a decision were taken not to prosecute, I would consider at
that stage how best to ensure that the basis for that decision
was explained, including (so far as compatible with the interests
of justice) making known what course counsel had advised. This
would give greater confidence in the objectivity and impartiality
of any decision.
You refer to comments made by the Lord Chancellor
to the Constitutional Affairs Select Committee. The Lord Chancellor
referred to decisions being taken by the DPP and CPS in the "normal
way". As I have explained, it would be entirely normal for
the Attorney General to be consulted by the CPS in relation to
a case of this nature. In any event, as you know the DPP himself
would not in fact be consulted or take any decision in this case
since he has stepped aside from any personal involvement in it.
Finally, in view of certain recent press reports
which the DPP has denied, I also take the opportunity of enclosing
the text of his statement yesterday.
7 November 2006
STATEMENT ISSUED BY THE DIRECTOR OF PUBLIC PROSECUTIONS,
KEN MACDONALD QC, IN RESPONSE TO AN ARTICLE IN THE EVENING STANDARD
6 NOVEMBER:
"There is no question of my having threatened
to resign on this or any other issue and any media reports based
on that premise are wrong. The Attorney General is entitled to
be consulted about cases, and it is normal practice for him to
be consulted in serious and complex cases such as the "Cash
for Honours" inquiry. There is nothing political about the
Attorney General's involvement. The CPS and I have a close and
harmonious working relationship with the Attorney General."
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