The British Attorney General and his Role in Modern Times Since 1900
The British Attorney General in the Modern age.
The British Attorney-General who is a King’s Counsel or Queen’s Counsel is a member of parliament in the governing party but not a member of the Cabinet. He is the Senior Law Officer – the other being the Solicitor-General and they advise the government on legal matters within their province. The government may also rely on the Official Solicitor (Family matters) and the Treasury Solicitor and the various departmental legal advisors and instructed advisors and counsel external to the Administration and Civil Service.
2. ROLE OF ATTORNEY-GENERAL IN PREVIOUS YEARS AND PRESENTLY:
Traditionally he represented the prosecution as leading Counsel in the most high profile criminal cases. The Director of Public Prosecutions (the DPP) always speaks in parliament through the Attorney-General to whom he is accountable yet the DPP makes up his own mind as Head of the Crown Prosecution Service. The Attorney-General has the final choice to prosecute or not to prosecute in the most grave of cases.
In England and Wales this is the current position. The question of political interference with the Director and the Attorney-General has been raised recently but it is unlikely there has ever been wrongful meddling now or in earlier years by politicians. The Director and the Attorney should work together on the really heavy cases.
3. THORPE CASE 1977-79
In Jeremy Thorpe’s Conspiracy to Murder Trial in 1979, (a former Leader of the Liberal Party) the DPP (Sir Thomas Hetherington) and the Labour Attorney-General Sir Samuel Silkin agreed on a prosecution with the benefit of the written independent opinion of the then Leader of the Bar’s South Eastern Circuit: Sir Peter Taylor QC was leading Counsel for the Crown in the Old Bailey trial. By then Sir Michael Havers QC was Attorney General in the Thatcher Administration but as Havers knew Thorpe in the Commons before Thorpe lost his seat in 1979 at the General Election called by James Callaghan PM and won by Thatcher he declined to intervene or take any view on Thorpe’s trial. Moreover he did not wish to undo his predecessor’s decision. That decision to prosecute Thorpe was sanctioned by the Labour Attorney-General sometime before his trial which actually took place when Sir Michael was Attorney-General. Thorpe was acquitted with the other accused and the whole prosecution decision making process was correctly carried out without any political interference yet Thorpe was a Privy Councillor and had been Party Leader of the Liberals for 10 years or more. It was right to prosecute Thorpe and the Jury came close to convicting him after he and his co-defendants failed to take the stand. The Hon. Mr. Justice Cantley fairly and concisely summed up the case against all the alleged conspirators including Thorpe. He was defended adroitly by George Carman QC.
4. OTHER EXAMPLES
The whole meaning of the Attorney’s legal office is to lend proper power to a particular prosecution but not political punch. The Attorney stands for Justice and the High Court Judiciary cannot do Justice without an Attorney playing his part to the full. The Attorney must be fearless and have impeccable judgement and be prepared to back up his decisions with good arguments in Court. The Attorney should be visible. The Prime Minister and the Cabinet are advised by their Law Officers – the Attorney General and Solicitor General. These deliberations are properly covert. Ultimately the decision whether or not to indict a suspect lies with the Attorney subject to the jurisdiction of the High Court of Justice and the Trial Court. Normally the Law Officers will not become involved in minor cases. Yet see “The Winslow Boy” 1913-14 cause celebre “(Theft of a postal order)” in which Sir Edward Clarke Solicitor-General represented Asquith’s government (the Admiralty) on a Petition of Right (ancient remedy) applied for by Winslow’s father to clear his son.
The Attorney prosecutes Treason as a matter of custom e.g.: Sir Roger Casement (1916) and John Amery (1945) – both capital cases resulting in convictions. Sir Michael Havers QC, as Attorney-General, prosecuted “The Yorkshire Ripper, Peter Sutcliffe” in the early 1980’s and recommended to the Trial Judge (High Court Judge) at the Central Criminal Court that the Defendant’s plea to manslaughter be accepted. This was the worst case to come before the Courts for years. Either way murder or manslaughter Sutcliffe would never see the “light of day” again. The trial Judge insisted on a murder trial which achieved little. Sir Michael was a highly respected and experienced criminal Advocate and Attorney-General. It was foolish of the Trial Judge to question Sir Michael’s judgement in those circumstances where the notorious accused was admitting all the killings. The Attorney-General’s lead should have been followed – Sutcliffe would have pleaded to the manslaughters. The psychiatrists supported Sir Michael’s view.
5, THE MOST RECENT CASE
Litvinenko the Russian dissident who was radio-activated in London and killed thereby in 2006 comes to mind. A terrible crime ordered by the East. My understanding is there is credible evidence against more than one suspect for this undoubted murder on English soil. The Metropolitan Police have investigated the crime thoroughly and possess this evidence. Why has there been no intent to prosecute declared? Presumably the current DPP and Attorney (Con) do not publicly support such an indictment, or are they hedging their bets? Reports of political intermeddling may be dismissed. The matter I am concerned about is that the Law Officers and the DPP are a little reluctant to take the case forward. The Law Officers cannot be dictated to by the government however strongly the Prime Minister and his Cabinet feel. Clearly the Cabinet should support the Law Officers in this matter. I detect a weakening in the will of the Law Officers in this particular case for whatever reason.
The Inquest was inconclusive. If the evidence is there a prosecution should ensue (when the suspects are in our jurisdiction). The Attorney-General should represent the Crown as of old I argue if this case may be brought to Court. A Public Inquiry is a matter for the Cabinet but such a course would obstruct the start of a prosecution and cause further delay and prevarication. I do not think an Inquiry will achieve anything. The sensitive foreign nature of the matter dictates caution but the Foreign Office has dealt with this position before – the Law Officers’ opinion should be disclosed to the Foreign & Commonwealth Office with the Metropolitan Police Report privately.
Our Ambassadors will advise and act accordingly. If the suspects are out of the jurisdiction as I would expect the Law Officers and our police officers must bide their time. A prosecution may see the light of day if the evidence is carefully preserved however. It is simply a matter of time. The Attorney must have the will to see it through.
6. BLOODY SUNDAY - NORTHERN IRELAND
Despite a very costly Second Enquiry which ended not long ago and went on far too long there have been no charges brought. At the time of Bloody Sunday in the Bogside, Londonderry, Northern Ireland namely the early 1970’s this province came under the English Attorney-General Sir Peter Rawlinson QC, MP and later Sir Samuel Silkin QC, MP. They would have had to ratify the prosecution of any soldier or officer in the Parachute Regiment for an act of unauthorised violence on this Sunday in conjunction with the DPP for Northern Ireland. Thirteen civilians died by soldier’s bullets. This did not transpire then or later even after the cumbersome Second Enquiry. There was a sustained and lengthy outcry at the time of the thirteen civilian deaths amongst Irish Republican sympathisers and supporters. As I have said you cannot expect charges to be brought and criminal trials to proceed properly with a large section of the populace in Northern Ireland and the mainland clammering for so called “justice”. The Parachute Regiment and its officers restored order as was their duty in the Bogside on that Sunday. L.C.J.Widgery acknowledged this truly in his first Enquiry. We are not concerned with convictions at any cost but peace and stability. The Law Officers including Sir Michael Havers in the 1980’s had to keep the peace and uphold law and order which those Law Officers recognised meant no risky prosecutions of military personnel even before a Diplock single Judge Court (no jury). You should never give way to a “tirade” as these law officers demonstrated. Even a token prosecution would have been a sign of weakness – e.g.: Lee Clegg case: a rank and file paratrooper in the Parachute Regiment in Northern Ireland. His case was post 2000 and resulted in a murder conviction but was overturned by our Supreme Court in London. The Labour Attorney-General post 1997 weakened to bring that case. It was a long time after “Bloody Sunday” and unconnected. Clegg has been restored in his good character.
7. “SHOW” TRIALS AND CONCLUSION
This was a feature of the English Courts in 16” and 17” Centuries to our great discredit as a Nation and shame as lawyers practising in our Courts now. Thank God those trials have vanished never to reappear in our Palais de Justice. Examples were Sir Thomas More tried in Westminster. Abbot Richard Whiting tried in Wells, Somerset both in 1530’s under the Henrician Tyranny of Thomas Cromwell. Oliver Plunkett Archbishop of Armagh was tried for treason in 1681 in London and convicted. Their death sentences followed. The three show trials or so called trials were for religious reasons in each case. More was put to death on Tower Green and Whiting on Glastonbury Tor with two companions. Plunkett was put to death in 1681 at Tyburn, Marble Arch.
It was the then Attorney-Generals who sanctioned these show trials and refused to intervene. Plunkett was probably prosecuted in 1681 by the English Attorney-General himself. Thomas Cromwell was the architect of More’s showcase trial and he also appears to have engineered Whiting’s conviction and condemnation to death in 1539 at Wells.
It is the duty of the English and Welsh Law Officers in London to withstand public clamour for charges to be brought and yet pursue prosecutions where the evidence demands such action and the crimes are sufficiently grave for the Law Offices to represent the Crown themselves in the Crown Courts.
It does matter how well connected and supported the defendants may be if these criteria are met for a prosecution to proceed. The Law Officers should authorise and insist such a trial takes place. In the modern era Sir Michael Havers QC is the foremost example of what an Attorney-General should be. Despite the Provisional IRA lead atrocities and powerful Pro-Irish lobby on the mainland he carried out his duties to the utmost even when he was Shadow Attorney-General (Guildford Four and Maguire Seven trials). He would not be deflected from the task in front of him. He was Thatcher’s Attorney-General from 1979 to 1987 approximately and never let her down.
Why do I give him such praise? Because of his articulate manner, his utter impartiality, his formidable character and above all his reliability.