Prosecutions (Attorney-General's Responsibility)

– in the House of Commons at 12:00 am on 29th January 1951.

Alert me about debates like this

Motion made, and Question proposed, "That this House do now adjourn."—[Mr. Sparks.]

8.44 p.m.

Photo of Mr Lynn Ungoed-Thomas Mr Lynn Ungoed-Thomas , Leicester North East

The question I wish to raise is with regard to the responsibility of the Attorney-General for prosecutions. I do not propose to lay down a barrage of criticism or even to make any constructive proposals. My sole purpose is to obtain from my right hon. and learned Friend as comprehensive a statement as possible with regard to his responsibility for prosecutions. It is a matter that has created a great deal of confusion in the public mind and particularly with regard to quasi-political matters, such as illegal strikes.

There are two views expressed with regard to the powers of the Attorney-General. The view is expressed that they should apply automatically—that prosecution should follow automatically on the commission of the offence—and, on the other hand, there is the view that the Attorney-General should have a discretion. These two views were put forward, one view in "The Times" on 7th October, 1950, and the other in the "Daily Telegraph" of the same date. "The Times" said: The law must be enforced, as the Attorney-General declared in his speech in London last night, 'in appropriate cases at the appropriate time' and always 'without the intrusion of politics.' The "Daily Telegraph" of the same day said: Is it not in fact a basic principle of the rule of law that the operation of the law is automatic (except when the law is specifically permissive and not mandatory) where the offence is known or suspected? Is not the arbitrary implementation of the law just as offensive to the elementary notion of justice as an arbitrary law? Clearly the Attorney-General, in fact, has a discretion. We are concerned to know the scope of that discretion and concerned to know the principles on which that discretion is exercised. The kind of difficulties which arise is illustrated in the article in "The Times" from which I have already quoted. There, referring to the recent gas maintenance strike, "The Times" said: The Order, for infringement of which the 10 strikers were convicted … prohibits strikes and lock-outs unless 21 days' notice has been given to the Minister of Labour … This is the law. Until this week, however, the Order had not been involved since the end of the war, in spite of repeated unofficial strikes. It is a war-time emergency measure and not easy to apply conveniently to most peace-time industrial disputes …. Anyone who has had anything to do with the Order will profoundly agree with that observation of "The Times"— If it is invoked as soon as the alleged offence is reported opportunities for settling the dispute may be lost; if prosecution is delayed in the hope that the strike or lockout will end, the law may he brought into disrepute. When several thousand men join together and strike there is the invidious task of selecting only a few of them for prosecution. Why, I may add, in recent months were the gas strikers prosecuted but not the master printers? There are all kinds of questions and difficulties obviously arising in the exercise of this discretion, and what we are concerned to know and what the public are obviously entitled to know is the principles upon which the Attorney-General acts in exercising that discretion. I have dealt with the scope of the discretion and the principles upon which the Attorney-General acts, and the third matter which the public are concerned to know—a matter of very considerable importance in the exercise of his discretion—is the extent to which he consults his colleagues or listens to his colleagues or takes directions from his colleagues in the Government in deciding whether or not a prosecution will be proceeded with in a particular case—how far the discretion is a judicial discretion exercised independently of political, or at any rate party political, considerations.

Difficulties with regard to this responsibility are not confined, of course, to purely political or quasi-political crimes. They arise also in the case of crimes which have no connection at all with political matters, although the same delicate implications do not arise in those cases. Recently my right hon. and learned Friend refused to prosecute in a murder case. A private prosecution was started and then the Director of Public Prosecutions took the case over and the case was dismissed. Charges of this kind are matters of immense gravity with terrible repercussions irrespective of what the outcome of the prosecution may be.

Perhaps it would be a fitting opportunity for us to learn how far it is considered desirable to keep the power of private prosecution in serious crimes of this nature, and how far the Director of Public Prosecutions should, when a private prosecution is started, be permitted or encouraged to take over the prosecution. I hope I have indicated the nature of the inquiries that arise in connection with this responsibility. I hope we shall have from the Attorney-General a comprehensive statement on his powers and the principles upon which he exercises them.

8.51 p.m.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I am glad to have the opportunity of talking about the position of the Attorney-General in connection with prosecutions because, as my hon. and learned Friend the Member for Leicester, North-East (Mr. Ungoed-Thomas), said, there has been some criticism that my enforcement of the criminal law was a matter of expediency. Indeed, it was seriously suggested that the operation of the law should be virtually automatic where any breach of it was known or suspected to have occurred. The truth is, of course, that the exercise of a discretion in a quasi-judicial way as to whether or when I must take steps to enforce the criminal law is exactly one of the duties of the office of the Attorney-General, as it is of the office of the Director of Public Prosecutions, who works under the direction of the Attorney-General.

It has never been the rule in this country—I hope it never will be—that suspected criminal offences must automatically be the subject of prosecution. Indeed, the very first regulations under which the Director of Public Prosecutions worked provided that he should intervene to prosecute, amongst other cases: wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest. That is still the dominant consideration. I should perhaps say that, although he is called the Director of Public Prosecutions, constitutionally I am responsible for all his decisions, and as a Minister of the Crown I am answerable to the House for any decision he may make in particular cases.

So, under the tradition of our criminal law the position is that the Attorney-General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it in the public interest so to do. Lord Simon, who was once himself a most distinguished Attorney-General, put the position very clearly when he said in debate in this House: there is no greater nonsense talked about the Attorney-General's duty than the suggestion that in all cases the Attorney-General ought to decide to prosecute merely because he thinks there is what the lawyers call 'a case.' It is not true, and no one who has held that office supposes it is."—[OFFICIAL REPORT, 1st December, 1925; Vol. 188; c. 2105.] My hon. and learned Friend then asked me how I direct myself in deciding whether or not to prosecute in a particular case. That is a very wide subject indeed, but there is only one consideration which is altogether excluded, and that is the repercussion of a given decision upon my personal or my party's or the Government's political fortunes; that is a consideration which never enters into account. Apart from that, the Attorney-General may have to have regard to a variety of considerations, all of them leading to the final question—would a prosecution be in the public interest, including in that phrase of course, in the interests of justice?

Usually it is merely a question of examining the evidence. Is the evidence sufficient to justify a man being placed on his trial? The other day, in a case of murder to which the hon. and learned Gentleman referred—a case which became the subject of a good deal of publicity—I personally decided not to prosecute. I examined the papers myself, and I came to the conclusion that it was not an appropriate case in which I should instruct the Director of Public Prosecutions on behalf of the Crown.

It is not in the public interest to put a man upon trial, whatever the suspicions may be about the matter, when the evidence is insufficient to justify his conviction, or even to call upon him for an explanation. So the ordinary case is one where one has to review the evidence, to consider whether the evidence goes beyond mere suspicion and is sufficient to justify a man being put on trial for a specific criminal offence.

In other cases wider considerations than that are involved. It is not always in the public interest to go through the whole process of the criminal law if, at the end of the day, perhaps because of mitigating circumstances, perhaps because of what the defendant has already suffered, only a nominal penalty is likely to be imposed. And almost every day in particular cases, and where guilt has been admitted, I decide that the interests of public justice will be sufficiently served not by prosecuting, but perhaps by causing a warning to be administered instead.

Sometimes, of course, the considerations may be wider still. Prosecution may involve a question of public policy or national, or sometimes international, concern; but in cases like that, the Attorney-General has to make up his mind not as a party politician; he must in a quasi-judicial way consider the effect of prosecution upon the administration of law and of government in the abstract rather than in any party sense. Usually, making up my mind on these matters, I have the advice of the Director of Public Prosecutions and very often of Treasury Counsel as well. I have hardly ever, if ever, refused to prosecute when they have advised prosecution. I have sometimes ordered prosecution when the advice was against it.

I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.

In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and does not consist, and must not consist, in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.

Nor, of course, can the Attorney-General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which, in the broad sense that I have indicated, affect government in the abstract arise, it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations.

That was the view that Lord Birkenhead once expressed on a famous occasion, and Lord Simon stated that the Attorney-General: … should absolutely decline to receive orders from the Prime Minister, or Cabinet or anybody else that he shall prosecute. I would add to that that he should also decline to receive orders that he should not prosecute. That is the traditional and undoubted position of the Attorney-General in such matters.

Questions have been raised, I know, in regard to prosecutions in respect of illegal strikes under the Conditions of Employment and National Arbitration Order—Order No. 1305, as it is more familiarly called. The law laid down by that Order, as the hon. and learned Gentleman said, is not always easy to apply to all industrial disputes in peace-time. If one prosecutes too soon, it may only exacerbate the difficulties and impede the opportunities of settling the dispute by negotiation or arbitration. Prosecution may result in the individuals proceeded against being made martyrs in the opinion of their colleagues, and instead of leading to the observance of the law it may produce even greater disregard of it and so bring the law further into disrepute. But whilst I would never allow a threat of criminal action to be used as a kind of pawn in industrial relations, I shall not hesistate to prosecute in what "The Times" described as "appropriate cases" "and at the appropriate time." The public cannot be held to ransom nor the law as it is at present be brought into complete disrepute.

On the other hand, there may well be circumstances in which the public convenience is not affected by the strike or in which, for other reasons, the public interest is not served by prosecution. Lord Birkenhead, again, in one case felt that the public interest was best met by a withdrawal of proceedings which had already been started, on an undertaking by the individuals concerned to resume work. I cannot pretend to lay down in advance any rules on which I should act in these matters. I am always loth to proceed against the rank and file in an industrial dispute where the real inciters and leaders have succeeded in covering up their activities.

There have been some strikes in the past in which I could not prosecute under this Order because technically there was no trade dispute. There have been several where I was about to prosecute when the strike collapsed. I prosecuted in the case of the gas strike in North London recently because the public were being caused great inconvenience and hardship. Moreover, the information available to me showed that, whilst there was a pretence being made of urging strikers to return to work, the truth was that the Communists were anxious to see the strike continue.

There was a Mr. Berridge, who was the North London organiser for the Amalgamated Engineering Union, an avowed Communist, whose official duty it was to his union to secure a return to work, but who bent his unofficial efforts in the opposite direction In his office, whether as a mere clerk, as nominally he is, or as an invigilator over Mr. Berridge, as in accordance with Communist technique he may be, was a Mr. Glading, a gentleman who was implicated in the Communist conspiracy in Meirut and who in this country in 1938 got six years' penal servitde for acting as a professional spy for Russia. In that case, the strike prosecution brought home to everybody that what was in point was not merely some matter of industrial regulation, but that the criminal law was being broken; and the prosecution had a salutary effect.

In the printing trade dispute which occurred recently, where both parties were in breach of the law, although I think the initial illegality was on the part of the compositors, I did not in the earlier stages consider that the criminal law should be invoked, but as the strike went on, I caused police inquiries to be made with a view to prosecuting the leaders on both sides, and the dispute then came to an end. I just mention these as examples of particular cases in recent times. One has to look at each case on its merits as it arises. I shall apply my unfettered discretion to all these cases, prosecuting when, with a knowledge of all the circumstances, it seems in the public interest so to do.

Those who criticise me for prosecuting in one case and not in another are either unfamiliar, as they may very easily be, with all the facts and circumstances, or they are really saying that I should be influenced by political considerations in this matter, but that, of course, no Attorney-General could possibly allow himself to be, even if the course of pursuing that duty might involve him in personal unpopularity.

There was a case the other day in which I was asked whether or not something which had been published in one of the newspapers amounted in law to treason, and I said that I thought that what had been done was legally treason, but that, as at present advised, I did not propose to prosecute. That may sound very startling, but although the sentence for treason is always death, the offence itself is of varying degrees of gravity. In some ways it is akin to sedition. There, again, if I may quote Lord Simon, who was himself quoting that great constitutional authority Professor Dicey: The legal definition of sedition might easily he used to assist to check a great deal of what is ordinarily considered allowable discussion, and would, if rigidly enforced, he inconsistent with the prevailing forms of political agitation."—[OFFICIAI REPORT, 1st December, 1925; Vol. 188, c. 2107.] I do not think myself that law and order are necessarily promoted by prosecution in every case, but, of course, in talking of treason, it must be said that treason is a very grave offence, and nobody should think that I would lightly refrain from prosecuting in properly established cases.

The existence of this discretion and the utility of this discretion in the Attorney-General whether or not to prosecute in particular cases has been so well recognised that there has been an increasing tendency in recent years to provide that there shall be no proceedings as to particular classes of offences created by Statute without the consent of the Attorney-General or the Director of Public Prosecutions. That kind of provision has been made to ensure that there will be no automatic prosecutions and that there will be no frivolous and unnecessary prosecutions in such cases. That is a Parliamentary recognition, if any such recognition were required, that it is the duty of the Attorney-General and the Director to exercise their discretion in every case whether or not to invoke the machinery of the criminal law.

But where a provision of that kind does not exist, where it is not expressly provided that there shall not be any prosecution without the consent of the Attorney-General or the Director of Public Prosecutions, the general position in English law—I think it is different in Scotland where my right hon. and learned Friend the Lord Advocate prosecutes at his discretion in all cases—is that any private citizen can come along and set the criminal law in motion. That is really the safeguard if the Attorney-General and the Director of Public Prosecutions and the police all neglect their duties and do not prosecute in cases where, manifestly, prosecutions ought to take place.

That was how in the recent case, to which my hon. and learned Friend referred, it was possible to start a private prosecution in that case of murder. My hon. and learned Friend referred to the fact that the private prosecution having been initiated in that case, the Director of Public Prosecutions subsequently took over the conduct of the case, and that eventually the case was dismissed by the magistrates. In a case of murder, although a private citizen may initiate proceedings to the extent of applying for and obtaining a warrant for the arrest of some named individual, it is the statutory duty of the Director of Public Prosecutions to step in and take over the conduct of the case, no doubt because Parliament has thought that in cases of such gravity it is important that the prosecution should be conducted with all possible safeguards by an experienced official such as the Director of Public Prosecutions. He took over that particular case, he instructed Treasury Counsel of standing to conduct the proceedings, and, in the end, the magistrates, having heard the whole of the facts, decided that there was no primâ facie case for the defendant to be called upon to answer.

But, apart from certain particular cases where, if proceedings are started, the Director of Public Prosecutions must intervene and take them over, the general rule of law is that if the Director, the Attorney-General or the police do not institute criminal proceedings themselves, then it is open to any private individual so to do. On the whole, I think that is a safeguard which we have to maintain in this country so long as the Attorney-General and the Director retain, as they always must, a discretion whether or not they are going to set the law in motion. They may make mistakes and may not initiate prosecutions when they ought to be initiated. I do not think that is likely to happen, but the safeguard against its happening is that anybody else can step in, and, if the justices think right, proceedings can be initiated and a criminal prosecution started.

Summing up the whole matter, I can only say that so long as I hold my present office, I shall try to the best of my ability to continue to administer the duties of the office in what appears to me to be the public interest, and to do whatever I can at least to maintain, if not to strengthen, the influence of the office in the promotion of justice, as well as its traditional independence and integrity.

9.13 p.m.

Photo of Sir Lionel Heald Sir Lionel Heald , Chertsey

I think that the statement which the right hon. and learned Attorney-General has just made about the principles upon which he exercises his powers is one which will commend itself to the House. I can certainly say that it is one which commends itself very much to those who, like myself, have the privilege of belonging to the same great profession as he does, because, he being the head of our profession, we are always most insistent that he should proceed in precisely the way he has explained to us tonight.

My only reason for intervening is that I should like to pay my personal tribute to the way in which he does exercise those functions. Shortly before the Recess I asked him if he would inquire into certain happenings which had taken place at a large works at Park Royal outside London, with a view possibly to taking action with regard to intimidation. He promptly replied that he would inquire into the matter. The sequence of the matter was that he later informed me that, having inquired into the matter, he was satisfied that although there was certainly ground for the complaint that had been made, he was equally satisfied that the prompt action which had been taken, and with which I was glad to have been able to co-operate with him, had had the result of stopping the things that were going on, and he did not think that a prosecution was necessary or desirable.

I entirely concur with that and, as far as I know, there has been never any suggestion since the right hon. and learned Gentleman occupied his office that he has proceeded in any other way. I think it is very desirable that it should be understood generally in the country that there is no question whatever of his taking any other view.

Major Hicks-Beach:

As a member of the junior branch of the legal profession, I should like to join with my hon. and learned Friend the Member for Chertsey (Mr. Heald) in congratulating the Attorney-General on the statement he has made. So far as my side of the profession is concerned, we are more and more convinced that provided the Attorney-General took the completely impartial view which, as an officer of the Crown he always has done, the legal profession of this country would bear comparison with any other profession in the world. I have heard no criticism at all of the way in which and the impartiality and fairness with which the Law Officers of the Crown of this Government or any Government conduct themselves.

9.16 p.m.

Photo of Mr Hector Hughes Mr Hector Hughes , Aberdeen North

I think my hon. and learned Friend the Member for Leicester, North-East (Mr. Ungoed-Thomas) has done a public service in bringing this matter before the House, and also in giving the Attorney-General an opportunity of stating the principles on which he acts in these matters. What the Attorney-General has said will do much to clear doubts in the public mind, and will, it is hoped, obviate the writing of articles by uninformed people with untrained minds on the lines of those articles to which my hon. and learned Friend the Member for Leicester, North-East, referred.

It will also help to resolve the doubts in the minds of the relatives of persons murdered and whose murders have remained unsolved. Such relatives often, rightly or wrongly feel themselves aggrieved because no prosecution has followed. In their distress many of these persons possibly would like themselves to apply the law of an eye for an eye or a tooth for a tooth. The fact that prosecutions are directed by the Attorney-General rather than by the persons who are aggrieved and are distressed makes for the proper administration of justice.

The Attorney-General asked a question and answered it as to whether the operation of the law should be virtually automatic. Obviously, it could not and should not be so, because of a variety of elements which he has put clearly before the House. Therefore, I feel sure it will be agreed that my hon. and learned Friend the Member for Leicester, North-East, has done a public service in giving the opportunity to the Attorney-General of making the admirable statement he has made.

9.18 p.m.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

Amid these almost universal congratulations I rather hesitate to express any view whatsoever. I was sorry not to hear the observations of the hon. and learned Member for Leicester, North-East (Mr. Ungoed-Thomas), and to have missed some parts of the observations of the right hon. and learned Gentleman the Attorney-General; but, having heard a good deal of it, and having had the rest interpreted to me by the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes), I feel sure that the statement made by the right hon. and learned Gentleman will put the position and, indeed, the duties of the Attorney-General beyond doubt and beyond dispute. In that respect I am sure he has served a most useful purpose in what he has said tonight.

Question put, and agreed to.

Adjourned accordingly at Nineteen Minutes past Nine o'Clock.