Third Further evidence submitted by the
Rt Hon Lord Goldsmith QC, Attorney General
1. The Committee has asked for a note on
my current practice relating to representing the Crown in person
in civil and criminal court hearings.
2. It has traditionally been part of the
Attorney General's role to act as the chief representative of
the Crown (that is to say, both the Government and the Sovereign)
in the courts. There is no set protocol governing the sorts of
cases in which the Attorney General should appear personally.
It has been for each holder of the office to determine his own
practice in this respect. From time to time in the past there
has been criticism of the tendency of the Law Officers to appear
less and less frequently in the courts.
3. I regard it as an important part of my
role to appear personally in the courts where this is merited
by the significance of the case, and subject to the demands of
my other Ministerial and Parliamentary duties. I believe it is
appreciated by the courts. It is important for the following reasons:
— It underlines the importance of the
executive's relationship with the courts, and of mutual respect
between the two, for the executive to be represented by one of
its own members in cases of particular significance. Where, for
example, there is a question about the extent to which the courts
should "defer" to the executive by declining to intervene
in a particular area of policy or decision-making, it is particularly
appropriate for these arguments to be put directly to the courts
by me, as the executive's chief legal representative. Debate on
this issue through reasoned argument in court is better than in
the columns of the newspapers.
— It is a visible manifestation of
my responsibility for upholding the Rule of Law within Government
that I appear personally in the courts to defend the lawfulness
of the Government's actions and decisions. In giving legal advice
to the Government, it is a powerful consideration that I may ultimately
have to defend that advice personally before the courts.
— In cases that go to the heart of
Government policy or practice I believe I am able to represent
the Government's position with particular authority, given my
Ministerial role and my involvement with, and access to, the processes
of policy-making and decision-making within Government.
— Conversely, the fact that I continue
to plead in the courts means that, in giving legal advice to Government,
I am able to give an informed, first-hand assessment of the likely
attitude of the courts to future policies and decisions.
— Given my responsibilities for superintending
the main prosecuting authorities, it is helpful for me to have
direct, recent experience of the operation of the criminal courts.
(For that reason I recently—in September 2006—prosecuted
a full day's list at Highgate Magistrates' Court.)
4. It is not possible to set out an exhaustive
description of the types of case in which I might decide to appear
personally. They will tend to fall within one or more of the following
categories:
— Cases with important constitutional
implications.
— Cases (including criminal cases)
raising major public interest issues.
— Cases with wide implications cutting
across the business of Government generally.
— Cases raising particularly important
or novel questions of law, especially public law.
— Cases relating to key Government
policies.
— Cases of major importance for the
UK's EU, ECHR or other international obligations.
5. It will sometimes be appropriate for
me to lead when a case goes on appeal (to the Court of Appeal
and/or the House of Lords) even where I have not appeared in the
earlier stages.
6. A full list of the cases in which I have
appeared is attached. It may be worth singling out two instances.
7. First, the challenge to the Hunting Act
2004 (Jackson and others v Attorney General). In that case I appeared
personally at all stages of the litigation—the Divisional
Court, the Court of Appeal and the House of Lords. The case involved
a challenge to the validity of the Parliament Acts and thus raised
fundamental constitutional questions about the sovereignty of
Parliament, the extent to which the courts could question the
validity of an Act of Parliament, and the relationship between
the two Houses of Parliament. It also concerned the ability of
the Government to implement a manifesto commitment. In my view
it was particularly appropriate in this case for the Government
to be represented personally by its senior Law Officer. In the
event, the Hunting Act, and the use of the Parliament Acts in
that case, was upheld at all stages.
8. Secondly, A and others v Home Secretary,
the challenge to the protective detention of suspected foreign
terrorists under Part 4 of the Anti-Terrorism, Crime and Security
Act 2001, and the UK's derogation from Article 5 of the European
Convention on Human Rights. In that case I appeared for the Home
Secretary before the Special Immigration Appeals Commission (SIAC),
the Court of Appeal and the House of Lords. The case clearly raised
important questions about the UK's obligations under the ECHR,
the balance between individual rights and collective security,
and the extent to which the courts should intervene in decisions
of the Government and Parliament in this sensitive area. The issues
were key to the Government's national security policy as well
as being controversial and legally complex. Again I believe it
was right for the Government's position in such a case to be advanced
in court by its own chief Law Officer. A majority of the House
of Lords found against the Government. Having argued the case
personally I was naturally closely involved in determining the
Government's response to the judgment.
9. The Committee has asked whether the current
practice is likely to, or should, change. From my own point of
view I would expect and hope that the current practice will broadly
continue. If anything I would wish to undertake more, rather than
less, advocacy for the Government but pressures of other business
will inevitably place limits on this. Future Attorneys General
will, as I have said, determine their own practice in this area
and obviously I can give no commitments about that.
27 February 2007
Annex
ATTORNEY GENERAL'S COURT APPEARANCES
R on the application of Hurst v Commissioner
of Police for the Metropolis
The Attorney General appeared for the Lord
Chancellor as interested party.
Issue
Extent of coroner's duty under Human Rights
Act in respect of deaths occurring before coming into force of
HRA—retrospectivity of HRA.
Court
House of Lords
Date of Judgment
Awaited outcome
Outcome
Awaited
The General Medical Council v Professor Roy
Meadow [2006] EWCA Civ 1390
The Attorney General intervened in this case
in the public interest.
Issue
The extent to which expert witnesses are immune
from fitness to practice proceedings brought by their regulating
body in relation to their conduct as an expert witness.
Court
Court of Appeal
Date of Judgement
26 October 2006
Outcome
That expert witnesses were not immune from fitness
to practice proceedings in relation to their conduct as expert
witnesses.
Webster & French
Issue
Sentence referred by the Attorney General as
an unduly lenient sentence.
Court
Court of Appeal
Date of Judgment
8 June 2006
Outcome
Sentence held to be unduly lenient, and increased.
Attorney General's Reference No. 80 of 2005
sub nom R v Wedlock-Ward (Adam Arthur)
[2005] EWCA Crim 3367
Issue
Sentence referred by the Attorney General as
an unduly lenient sentence.
Court
Court of Appeal
Date of Judgment
16 November 2005
Outcome
Court held that the original non-custodial sentence
was unduly lenient and replaced it with a sentence of 2 years'
imprisonment.
Oakley Inc v Animal Ltd and others
[2005] ECWCA Civ 1191
The Attorney General appeared for the Secretary
of State (Intervener).
Issue
Whether the Registered Designs Regulations 2001,
reg. 12, had been validly made by the Secretary of State under
section 2(2) of the European Communities Act 1972.
Court
Court of Appeal
Date of Judgment
20 October 2005
Outcome
The Court held that they were validly made.
Jackson and others v Attorney General (Hunting
Act 2004)
[2005] UKHL 56
Issue
Whether the legislative process provided for
under the Parliament Act 1911 can validly be used to amend the
provisions of the 1911 Act itself, and hence whether the Parliament
Act 1949 and the Hunting Act 2004 (which was passed under the
1911 Act as amended by the 1949 Act) are valid Acts of Parliament.
Court
House of Lords; Court of Appeal; Divisional
Court
Date of Judgment
13 October 2005
Outcome
Decided in favour of the Attorney General
Trial of Zardad
The Attorney General appeared on behalf of
the Crown.
Issue
First torture case in UK legal history. Attorney
General consented to prosecute, and decided to lead the prosecution
in order to mark the case's importance
Court
Old Bailey
Date of Judgment
19 July 2005
Outcome
Initially the jury could not reach a decision.
There was a retrial in 2005 and the defendant was convicted.
R v Z (Proscription of Real IRA)
[2005] UKHL 35
The Attorney General appeared on behalf of
the Crown.
Issue
Whether the Real IRA was a proscribed organisation
for the purposes of s.3 of the Terrorism Act 2000
Court
House of Lords; Court of Appeal, Northern Ireland
Date of Judgment
19 May 2005
Outcome
It was held that the Real IRA was a proscribed
organisation.
A (FC) and others v Secretary of State for
the Home Department; X (FC) and others v Secretary of State for
the Home Department
[2004] UKHL 56
The Attorney General appeared on behalf of
the Home Secretary.
Issue
Whether the UK's derogation from Article 5,
ECHR, and the protective detention powers in relation to suspected
foreign terrorists in the Anti-terrorism, Crime and Security Act
2001, were lawful. The Special Immigration Appeals Commission
was satisfied that there was a public emergency which justified
the derogation and that in principle the protective detention
powers were lawful. However, because those powers only applied
to suspected foreign nationals, the Special Immigration Appeals
Commission held that they were discriminatory. On appeal, the
Court of Appeal held that the legislation and underlying derogation
were lawful. It also held, allowing the Home Secretary's appeal,
that the differential treatment of suspected foreign terrorists
as compared with suspected UK terrorists was justified and that
there was no discrimination. The applicants appealed this decision.
Court
House of Lords; Court of Appeal; SIAC
Date of Judgment
16 December 2004
Outcome
Appeals allowed. Human Rights Act 1998 (Designated
Derogation) Order 2001 quashed and declaration of incompatibility
made in respect of section 23 of ATCSA (Article 5 and 14).
R (on the application of Ullah) v Special Adjudicator;
Thi Lien Do v Secretary of State for the Home Department
[2004] YJGK 26
Issue
Whether the domestic court had to consider Convention
rights, other than Article 3, might be engaged in the removal
of a person to the receiving State.
Court
House of Lords
Date of Judgment
17 June 2004
Outcome
Other Convention rights could be engaged in
the removal of a person from the UK, even if the anticipated treatment
by the receiving State did not reach the minimum requirements
of Article 3. However, on the facts of these cases, the applicants
had not shown that other rights (namely Article 9) had been breached.
R (on the application of Razgar) v Secretary
of State for the Home Department
[2004] UKHL 27
The Attorney General appeared on behalf of
the Government
Issue
Razgar was an asylum seeker who resisted a removal
decision on the grounds that it would violate Article 8 because
he was undergoing psychiatric treatment in the UK. The Secretary
of State argued that Article 8 was not violated and the applicant's
claim unfounded under Immigration and Asylum Act 1999 s.72(2)(a).
Court
House of Lords
Date of Judgment
17 June 2004
Outcome
Held that the foreseeable consequences for the
mental health of an asylum seeker on removal could engage Article
8, even if the removal did not violate Article 3.
Attorney General's Reference No. 92 of 2003
sub nom R v Pells (James Philip)
[2005] ECWCA Crim 3367
Issue
Sentence referred by the Attorney General as
unduly lenient. Offender had committed racially aggravated assault
occasioning actual bodily harm.
Court
Court of Appeal
Date of Judgment
22 March 2004
Outcome
Court held original sentence of 12 months' detention
was unduly lenient and increased the period of detention to 30
months.
In Re McKerr
[2004] UKHL 12
Issue
State's obligations under Article 2 in relation
to pre-HRA deaths.
Court
House of Lords
Date of Judgment
11 March 2004
Outcome
The duty to investigate unlawful killings under
Article 2 did not arise in domestic law in relation to deaths
before the Human Rights Act 1998 came into force.
R v C; R v H
[2004] UKHL
Attorney General appeared on behalf of the
Crown.
Issue
What the judge must consider when ruling on
a claim of public interest immunity.
Court
House of Lords
Date of Judgment
5 February 2004
Outcome
It was held that the judge had failed to consider
in detail the material that the prosecution had sought to withhold.
The House of Lords emphasised the overriding principle that derogation
from the principle of full disclosure had always to be the minimum
necessary to protect the public interest and must never imperil
the overall fairness of the trial.
Opening of the Gaul Inquiry on 13 January 2004
Issue
Inquiry into the FV-Gaul Fishing Vessel incident
Court
Public Inquiry
Department for Environment, Food and Rural
Affairs v ASDA Stores Limited
[2003] UKHL 71
Attorney General appeared on behalf of DEFRA.
Issue
Whether section 14 of the Agriculture and Horticulture
Act 1964 as amended created a criminal offence that was currently
applicable. The Divisional Court had ruled that criminal law had
to be clear and it was necessary to have clear words in domestic
legislation which imposed criminal liability by reference to present
regulations and those made or amended in the future. DEFRA appealed
this decision.
Court
House of Lords
Date of Judgment
18 December 2003
Outcome
DEFRA succeeded in their appeal. The House of
Lords indicated that courts should not approach the interpretation
of statues/regulations implementing Community legislation as if
they did not embrace future Community law changes.
Reference by Her Majesty's Attorney General
for Northern Ireland Nos. 2, 6, 7 and 8 of 2003 sub nom R v Robinson,
Humphreys, McGuone and James)
[2003] NICA 2
Issue
Unduly lenient sentence references by the Attorney
General against sentences for death by dangerous driving and other
serious driving offences in Northern Ireland.
Court
Court of Appeal, Northern Ireland
Date of Judgment
11 July 2003
Outcome
Court held that all the original sentences were
unduly lenient and imposed increased sentences.
Wilson v Secretary of State for Trade and Industry
[2003] UKHL 40
The Attorney General appeared for the Secretary
of State.
Issue
Appeal against a declaration of incompatibility
against the Consumer Credit Act 1974 section 127(3).
Court
House of Lords
Date of Judgment
10 July 2003
Outcome
It was held that the court had been wrong to
make the declaration because the events and the cause of action
took place before the Human Rights Act 1998 came into force.
R (on the application of Q and others) v Secretary
of State for the Home Department
[2003] EWCA Civ 36
Issue
The procedure and application of section 55
of the Nationality, Immigration and Asylum Act 2002 (claims for
support from asylum seekers).
Court
Court of Appeal
Date of Judgment
18 March 2003
Outcome
The Court held that there were procedural deficiencies
in the process for refusing claims for support, which could result
in unfairness. However, once they were remedied, there was no
reason why section 55 should not operate effectively and the "real
risk" that an asylum seeker might be reduced to a state of
degradation did not itself engage Article 3.
Attorney General's Reference Nos. 58 to 2002
sub nom R v Coudjoe, Day, Gordon, McGlacken, Simons, Proverbs,
O'Too, Thorney and Boakye
[2003] EWCA Crim 636
Issue
Sentences referred by the Attorney General as
unduly lenient. The offenders had been members of a gang called
the "Pit Bull crew"" and had all been convicted
of gun related or drugs offences.
Court
Court of Appeal
Date of Judgment
21 February 2003
Outcome
Court held that Gordon, Thorne, Boakye and Simons'
sentences were unduly lenient and imposed increased sentences.
Attorney General's References Nos. 120, 91
and 119 of 2002 sub nom R v (1) CCE (2) NJK (3) TAG
[2003] EWCA Crim 5
Issue
These separate cases all involved, in varying
degrees, sexual abuse of children (rapes, indecent assaults),
with one case having an additional element of physical abuse,
by either the father or someone in a position of some responsibility
over the children. The issue was whether the sentences imposed
by the Crown Court were unduly lenient.
Court
Court of Appeal
Date of Judgment
21 January 2003
Outcome
In each of the three cases the Court concluded
that the sentences were unduly lenient. The sentences were increased
from a custodial sentence of 6 months to one of 13 months' from
a (non-custodial) rehabilitation order for 3 years to a custodial
sentence of 3 years; and from a custodial sentence of 8 years
to one of 13 years.
R v Lyons and Others (Guinness case)
[2002] UKHL 44
The Attorney General appeared on behalf of
the Director of the Serious Fraud Office.
Issue
Whether the original convictions of "the
Guinness Four" were to be set aside because the European
Court of Human Rights had subsequently held that the admission
of answers given under compulsion was a breach of Article 6.
Court
House of Lords
Date of Judgment
14 November 2002
Outcome
Judgment given for the Director of the SFO.
R v Secretary of State for the Home Department,
ex parte Saadi and others [2002] UKHL 41
The Attorney General appeared on behalf of
the Home Secretary.
Issue
Whether or not the detention of asylum seekers
at the Oakington Detention Centre was lawful. It had previously
been held by Collins, J. that it was contrary to ECHR to detain
asylum seekers who were not at risk of absconding.
Court
Court of Appeal; House of Lords.
Date of Judgment
31 October 2002 (HL)
Outcome
Judgment was given for the Home Secretary in
both the Court of Appeal and the House of Lords.
R v Secretary of State for the Home Department,
ex parte (1) Yogathas (2) Thangarasa
The Attorney General appeared on behalf of
the Home Secretary.
Issue
Appeals relating to decisions of the Secretary
of State to order the return of the appellants (Tamil asylum seekers)
to Germany as a safe third country under the Dublin Convention.
Court
House of Lords
Date of Judgment
17 October 2002
Outcome
Judgment given for the Home Secretary
Peter Robinson v SoS for Northern Ireland and
Others
[2002] UKHL 36
The Attorney General appeared on behalf of
the Secretary of State for Northern Ireland.
Issue
Whether the election of David Trimble and Mark
Durkan was lawful, being 2 days over the 2 week period provided
by s.16(8) Northern Ireland Act 1998.
Court
House of Lords
Date of Judgment
25 July 2002
Outcome
Judgment given for the Home Secretary
Persey v Secretary of State for the Environment,
Food and Rural Affairs and others
[2002] ECWHC 371 (Admin)
The Attorney General appeared on behalf of
the Secretary of State for the Environment, Food and Rural Affairs.
Issue
This was a judicial review challenge to the
decision to hold the Foot and Mouth Disease Inquiries in private.
The Divisional Court had previously held in relation to the Shipman
Inquiry that it was open to the courts to order a public inquiry.
The Court in Persey made remarks indicating that decisions of
this kind (whether or not to hold an inquiry in public) are political
ones, in which the courts should not intervene. The Court accepted
the principle that, while it is for the courts to say whether
Government is acting unlawfully, it is not for the courts (but
the electorate) to say whether Government is governing well. The
Court also ruled that the right to freedom of expression (under
Article 10, ECHR) does not include a right to receive information.
Court
Administrative Court
Date of Judgment
15 March 2002
Outcome
Judgment was given for the Secretary of State
Hatton and Others v UK
The Attorney General appeared on behalf of
the UK Government.
Issue
The Third Section of the European Court of Human
Rights had earlier found that the regime for permitting night
flights at Heathrow (because of the associated noise pollution)
was in breach of Article 8, ECHR. This was because in setting
the night-flight limits the Government had (in the view of the
Third Section of the ECtHR) failed to strike a fair balance between
the economic well-being of the UK and the applicants' right to
peaceful enjoyment of their homes. The decision had implications,
not just for night flights, but also for other sections (eg roads,
railways) where a balance had to be struck between economic interests
and environmental concerns. The UK appealed against the decision.
Court
European Court of Human Rights (Grand Chamber)
Date of Judgment
8 July 2003
Outcome
The State had not violated Article 8, but the
absence of a domestic remedy gave rise to a violation of Article
13.
Kingsley v UK
The Attorney General appeared on behalf of
the UK Government.
Issue
Whether someone whose rights were violated under
Article 6 ECHR was necessarily entitled to monetary compensation
apart from costs. On the applicant's appeal, the Grand Chamber
held that the finding of a violation under Article 6 was itself
sufficient to afford "just satisfaction" in respect
of the applicant's non-pecuniary loss and no damages were to be
awarded.
Court
European Court of Human Rights (Grand Chamber)
Date of Judgment
28 May 2002
Outcome
Judgment in favour of the UK Government on the
issue of monetary compensation and just satisfaction.
Van Schaijk v Directeur van de Rijksdienst
voor de Keuring van vee en Vlees (Foot and Mouth Disease)
The Attorney General appeared on behalf of
the UK Government.
Issue
The extent of the powers conferred on Member
States by Article 10(1) of Directive 90/425
Court
European Court of Justice
Date of Judgment
10 March 2005
Outcome
The Directive confers on Member States the power
to adopt additional measures to control the disease, in particular
to order the slaughter of animals on a holding near to a holding
containing inflected animals.
Ireland v UK (the MOX Plant case)
The Attorney General appeared on behalf of
the UK Government.
Issue
Whether the Irish Government should be granted
various injunctions ("interim measures") it had applied
for, including an injunction to prevent the commissioning of the
MOX Plant at Sellafield.
Court
International Tribunal for the Law of the Sea
Date of Judgment
3 December 2001
Outcome
Judgment was given in favour of the UK Government,
in that Ireland failed to obtain an injunction to prevent the
commissioning of the MOX Plant. Both governments were also ordered
to exchange information about discharges from the plant and to
cooperate on measures to prevent marine pollution.
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