Evidence submitted by Professor John Spencer
Thank you for your letter of 21 March inviting
me to send the Committee written evidence. Unfortunately it arrived
just after I set off for an extended visit to Japan, and in consequence
I was not able to respond by 16 April, as you asked. Although
I have missed the deadline, I thought I would still reply, in
the hope that my views might still be of some use or interest.
My comments in this letter will be about one
aspect of the matter only: namely, whether the Attorney General
("A-G") should have the legal right to stop a prosecution.
On this my view is "no".
The theoretical objection to this power is that
it is, potentially, a tool for what is sometimes called "the
instrumentalisation of criminal justice"; that is to say,
the use of the criminal process by the government of the day a
means of attacking its political opponents, and protecting its
political friends. Historically, of course, that is one of the
reasons why the power existed. The power of the A-G to start or
stop prosecutions dates from the days when it was thought (at
least by many people) to be quite right for the King to react
to his political critics by prosecuting them for "political
offences" such as seditious or blasphemous libel, and in
such matters the A-G was the right arm of the government. Fortunately,
nowadays nobody in this country wouldat least publiclydefend
the powers of the A-G on the ground that the prosecution process
is inherently political, and hence a matter on which the executive
must retain the final word over the institution of prosecutions.
But even if the A-G's power to control the institution of prosecutions
is no longer used or justified in this crude sort of way, and
the current theory is that it is just a "safety-valve"
to enable prosecutions to be stopped in the rare case where the
broader interests of the state are threatened by their continuance,
the A-G's power to stop prosecutions on "political"
grounds is (to me) unacceptable because it undermines the notion
of the Rule of Law.
The main argument for the present state of affairs
is this. "In this country, the rule is one of discretionary
prosecution. There are some cases in which prosecutions can and
should be dropped on grounds of the broader interests of the state.
To allow this does, admittedly, involve a potential risk of the
`instrumentalisation of criminal justice' by reason of the fact
that the politicians who are in charge will see the interests
of the state as coincident with their own (or those of their political
supporters). But in order to guard against this risk, we have
the rule that, when he makes the decision, the A-G acts independently
of the government. He will, of course, listen to what his political
colleagues have to say. But when he takes the decision, it is
his, not theirs. And in making it, he leaves considerations of
party politics out of account."
I do not think this argument stands up, for
the following reasons:
(a) The present position is enshrined in
a "convention", and it is not a Rule of Law. It exists
because, since the early 20th century, successive A-G's have chosen
to follow the conventionand successive Prime Ministers
have accepted this. But like all constitutional conventions, it
could end by those involved just ceasing to respect it. (At one
time, we thought it was a constitutional convention that Ministers
did not publicly abuse judges whose decisions they did not like.
But when Mr Blunkett, as Home Secretary, made a habit of it, his
political colleagues smiled upon himand the convention
(b) The A-G's supposed "independence"
is no different, surely, from the position of any other Minister
who is charged with decision-making in a particular area. It is
the same in principle, as the Home Secretary's whenas used
to be the case, and is still the case occasionallyhe decides
on when a prisoner held on an indeterminate sentence shall be
released. (And to me, it is equally inconsistent with the politically
independent administration of justice.)
(c) The A-G, like any other Minister, can
be removed from office at the will of the Queen (in theory)which
means, of course, of the Prime Minister. This appears to be a
serious limit, in reality, on his supposed independence.
(d) The position, surely, is both contradictory
and hypocritical. If it is really necessary for there to be a
power to stop prosecutions in cases where their continuance would
put at risk the higher interests of the state, why should this
decision rest with the Attorney General? The higher interests
of the State, surely, ought to be a matter not for the Prime Minister
and the Cabinet to decidenot a lone Minister, who by convention
is not a member of the Cabinet.
The real question, surely, is whether it is
necessary for the Executive (in whatever shape of form) to have
a power to stop prosecutions on grounds of the broader interests
of the state. There are arguments in favour of this, and arguments
against. At one time, I thought (like Lord Goodhart) that the
arguments in favour were more convincing. I no longer do so. My
present view is that the risks of abuse exceed the benefits. And,
as I said in an interview with Clare Dyer of the Guardian some
weeks ago, one of the risks is that political leaders in other
countries which do not respect the Rule of Law will lean on our
Government to stop prosecutions which they find embarrassing.
As long as the power exists, the Government can be put under pressure
to exercise it. If it does not, the Government can reply "Sorry,
we cannot help you"as it would if a foreign dictator
tried to lean on the Government to restrain adverse comment in
The other argument for the present state of
affairs is that "We need a Minister at the head of the CPS,
who is politically responsible for it". Yes, of course we
do. But I fail to see why that means the Minister must have the
power to stop a prosecution. The Home Secretary is the Minister
responsible for the police; butfortunatelythat position
does not carry with it the right to force the police to investigate
or prosecute, or to halt an investigation in a given case.
I find it strange how, in this country, we accept
as an article of political faith the need for the police to be
independent of the Government in their decision-makingbut
do not transfer this argument to the next layer, which is the
CPS (and other prosecution agencies).
As you know, the new prosecution arrangements
for Northern Ireland, when eventually brought into force, will
set the DPP for Northern Ireland free from the power of the Attorney
General to give him orders in a given case. I think this was the
right decisionand the same legal formula should be adopted
for England and Wales.