POLITICS, PUBLIC INTEREST AND PROSECUTIONS. - Lord Goldsmith

The office of the Attorney General, which I have been privileged to hold since June this year, is one of the most ancient under the Crown. Its history can be traced back to the 13^th century when my medieval precursors, the King’s Attorney and the King’s Sergeant were charged with the responsibility of the upholding the King’s interests in the Courts where the King himself could not appear.

From his original functions there have developed, through the following five centuries, a portfolio of quasi-judicial, professional, parliamentary and political duties of considerable breadth.

It has been an office in which the worlds of politics and the law have intersected ever since in 1461 John Herbert, the first to hold the modern title of Attorney General received what also appears to have been the first summons to attend Parliament. That meant originally of course a summons to the House of Lords, an interesting fact in itself since Gareth Williams and I, so far as I can tell, are the only holders of the office to have sat in the House of Lords since before 1700.

The link of the principal Law Officer with Parliament has rather been with the House of Commons, where the Attorney General, and his deputy, the Solicitor General has usually, though not invariably, had a place. As one of my distinguished predecessors, Sir (later Lord) Elwyn Jones, has told, even that connection is the result of what he described as a typical British compromise. By the beginning of the 16^th century, the Attorney General had become a sort of go-between for the two Houses of Parliament. As a result, he became viewed with suspicion by the Commons which came to a head when members of the Commons in 1614 objected to Sir Francis Bacon remaining in the Commons after he had been elevated from Solicitor General to Attorney General. The Commons agreed however in a resolution that "Mr Attorney-General Bacon to remain in the House for this Parliament but never any Attorney-General to serve in the Lower House again." In equally typical British compromise fashion, that injunction was consistently broken for 385 years until Gareth Williams was appointed. Some people who have expressed regret that the Attorney does not presently sit in the Commons might gain some comfort from the reflection that in one sense this might be thought to be simply a tardy response to the Commons’ own demand!

In fact I believe, as does Harriet Harman, my deputy the Solicitor General, that there is great benefit in the present arrangement for between us we cover both Houses. That is highly desirable because of the need for accountability by the Law Officers to Parliament to the importance of which I will return later in this address. With a Law Officer in each House able to respond and be questioned on the areas for which we are responsible that accountability is considerably enhanced.

In fact we cover all the bases, if I may use that modern expression in this context, in another important way. Harriet Harman is not only the first woman to be a Law Officer, she is also the first solicitor to hold the office of Solicitor General. We have, as Law Officers, particularly close relations with the legal profession. The Attorney General is by long tradition the head of the Bar and has had a close connection with it. As a result the Law Officers have been, ex officio members of the Bar Council and regularly attending its meetings. But, whilst less formal, the relationship with the solicitors branch of the profession has also been close. I am delighted however that the relationship is strengthened by the fact that one of Law Officers is now a solicitor. As I am delighted that the Bar Council, without prompting or suggestion, immediately amended its by-laws on Harriet’s appointment so that she too could sit in the Bar Council. This is, I am glad to note, a matter on which there is policy agreement between the Government and Opposition, since Mr Ian Duncan Smith, immediately on his election as Leader of the Opposition appointed Mr Bill Cash, a solicitor, to the position of Shadow Attorney General.

This connection between politics and law, between public interest and government interest has, however, throughout the history of the office from time to time given rise to moments of high controversy.

I have referred already to the Bacon episode.

Turning to more recent times, there have been a number of cases where the basis of the decision by the Law Officers has attracted debate in Parliament, the Courts or the newspapers. Examples include, the Archer Shee case, since immortalised in the Winslow Boy; the decision not to prosecute in the Rhodesia Oil sanctions case; the injunction unsuccessfully sought to stop publication of the Crossman diaries; and the Clay Cross affair. When Sam Silkin declined in 1977 to grant his consent to Mr. John Gouriet of the National Freedom Association to pursue a relator action to prevent the Union of Postal Workers from calling for a boycott on all postal communications between Britain and South Africa, the controversy raged high in the Courts and the land. As Lord Rawlinson of Ewell later recalled, the Court of Appeal, presided over by Lord Denning, in roundly criticising the Law Officer’s approach, gave him "a bloody nose". Sam Silkin’s position was of course later upheld in the House of Lords which reversed the Court of Appeal, a matter to which I will return.

Most famously perhaps a Law Officer’s decision was said to have been the cause of the downfall of the first Labour government in 1924. It was largely brought down because it was alleged that Sir Patrick Hastings, the Attorney, changed his mind about prosecuting Mr Campbell, acting editor of the Workers’ Weekly, for a serious but politically sensitive offence of inciting mutiny by calling on soldiers not to strike break. It was alleged that the change of mind was brought about by pressure from Ramsay MacDonald’s cabinet. The truth of the allegations remains disputed but this case has long served as a warning to later Law Officers and to governments. As Dingle Foot, Solicitor General during the Wilson administration put it quite simply: "The Campbell case should have taught governments not to interfere with the Law Officers".

So the Law Officers are undoubtedly an intersection point between politics and the law, fulfilling a role as Government minister, legal adviser, prosecutor and upholder of the public interest.

In the almost 6 months since I was appointed as Attorney General, I have had some time to reflect on the demands of my role, the way that I will perform the role and the core values I should apply.

I will start by outlining some views about the role of the Law Officers. I want then to talk about the role of the prosecutor. Finally, I should like to discuss some of Robin Auld’s recommendations. I cannot talk about them all, but there are some significant proposals affecting the prosecution process which have not been widely discussed until now. I shall be frank and say at the outset that by discussing them this evening I hope to prompt and stimulate further debate.

Some of my functions are like those of any Minister of the Crown. I am answerable and politically accountable for the departments for which I have responsibility, notably in England & Wales, the Crown Prosecution Service, the Serious Fraud Office and the Treasury Solicitor. It is my responsibility to the public and Parliament to see that the Departments deliver effectively and efficiently the service to the public with which they have been charged. I have to make the case, in competition sometimes with other Departments, for the resources which my departments need to do their job.

I have a wider responsibility in relation to the criminal justice system. This Government has rightly recognised that the different parts of the criminal justice system cannot be run without regard for the others or with different and conflicting aims. So the Criminal Justice System has cross cutting overarching aims and a high level of co-ordination and close working arrangements from national to local level. At national level the Prime Minister has established a cabinet committee chaired by the Home Secretary where policy and delivery objectives can be set and monitored. It is centred on the 3 justice ministries: the Home Office, the Lord Chancellor’s Office and my office. As David Blunkett said in his recent Civitas speech, he, Derry Irvine and I are ultimately accountable for effective delivery of a world class system of justice – accountable to the Prime Minister, to Parliament and to the people of this country. I have no doubt that working in such close cooperation greatly improves the prospects of achieving a system of justice of that quality.

The next area is the role of the Law Officers as principal legal advisers to the Government.

The Attorney General sits in fact at the apex of a structure of legal advice consisting of departmental lawyers and the Treasury solicitor.

It is very important that new proposals, from early on in the policy making process, are worked up and developed with the aim of ensuring that they achieve proper respect for the rule of law, for human rights and for our domestic and international obligations.

Bringing in the Human Rights Act has focused ministerial and official minds even more closely on the human rights proofing process. But it would be wrong to see this as an entirely new departure. There is a long tradition in Whitehall of disciplined policy formulation within the constraints placed on the Government by its domestic and international legal obligations. It has after all been our obligation to comply with the ECHR for 50 years and not just since October 2000.

The process of policy formulation involves civil servants with policy-making responsibilities, government lawyers and Parliamentary Counsel.

It is invariably the case that civil servants are well-informed about the legal framework applicable to their particular type of business, as well as the policy behind a particular set of proposals.

At the next level, we have a huge wealth of expertise in the form of the lawyers in the GLS itself. It is their task to advise on the legal acceptability and practical feasibility of proposals and to formulate instructions to Parliamentary Counsel.

Finally, Parliamentary Counsel have a critical role in turning policy into draft Bills.

At any stage in the process, I might be consulted. Usually there is no need to do so. But in areas of especial sensitivity or difficulty my advice is often sought. Moreover, the system has important internal checks and failsafes which allow lawyers to have direct access to me – it is not just Ministers who have the right to come to me for advice or guidance.

Let me give you three examples -

First, Parliamentary Counsel have a right to draw to my attention any provision Ministers seek to have included in a draft Bill which in the draftsman’s view raises issues of constitutional importance – it is then for me to advise colleagues on the propriety of proceeding with legislation on those lines.

Second, Departmental legal advisers throughout the GLS have a right of access to the law officers – this is one means of ensuring the independence of, and high standard of advice given by, GLS lawyers.

Third, Government lawyers have a right of access to me on ethical matters, which I take very seriously. This is a key means by which we resolve any possible conflicts between the demands made on a government lawyer as a civil servant and the ethical standards with which his professional body requires him to comply.

This focus on the role of law in Government is I believe a powerful statement of our commitment to the rule of law.

Of course the giving of legal advice is not the same as making policy. It is not the function of the Law Officers to make or decide policy (outside of course those areas for which we do have responsibility). Making policy in the light of the legal advice given, and often the making of the judgements to which the legal advice attaches is the job of the Minister in whose policy area the issue arises. It is also pertinent to remember that we are sometimes called on to advise on specific aspects of a proposal, whilst in relation to other aspects the Minister will rely on departmental or other legal advice. So the fact that the Law Officers have advised on one part of a proposal does not imply they have blessed it all.

This last issue is complicated by the Law Officers’ convention that neither the substance nor the fact that there has been Law Officers’ advice can be communicated without our consent, which is not often given. Whilst I am sure that Ministers and therefore the public interest are best served by a rule of non-disclosure of the substance of our advice - which promotes candid and full legal advice, examining the weaknesses as well as the strengths of the proposed course of action - there is an air of unreality in some areas in denying even that advice has been given when it appears to be common knowledge, as for example, the fact that I have at least some involvement in legal advice relating both to the fact and the conduct of the present armed conflict. It is therefore not surprising that there is some pressure to give some further consideration to this latter part of the convention.

What then of my own approach to advising my ministerial colleagues on the issues of the day? I try to operate by three guiding principles, which are principles I encourage all Government legal advisers to follow –

• First, that my advice should be independent and impartial.

• Second, that my approach should be constructive.

• And finally that I am prepared to give unwelcome advice and to stand firm where that is called for.

That my advice to colleagues should be independent and impartial is important above all else. It must be rigorous and in no way tailored to please. No client is well served by a lawyer who tells him what he would like to hear instead of what he ought to be told.

There may, however, as all lawyers here will recognise, come a point in some cases where the best advice which any Law Officer can give is advice which will be wholly unwelcome to the client. Should that be the case, and I do conclude that what is being proposed is open to fatal legal objections, I will not hesitate to say so and to do so firmly. We all do well to remember Mark Twain’s advice –

If accompanied by rigorous analysis, it is my firm belief that even advice which the client was hoping not to hear will nevertheless be respected and heeded.

The third area of my functions is my public interest role. Here I act not for the Government but independently of it.

The areas in which I exercise the public interest role are themselves wide: in criminal prosecutions, in extradition, in charity matters, family law, vexatious litigants, contempt proceedings and in enforcement of the law. In these cases I act in the public interest.

When I put on my public interest hat, I exercise these functions in a quasi-judicial way. It is now well established that when the Law Officers act in the public interest we are outwith the doctrine of collective responsibility. We are not taking a Government decision and not acting for it, albeit we have ultimate accountability to Parliament.

Examples of the exercise of these functions are frequent. There are many in the criminal field. There are many Statutes which require the consent of the Attorney General before they can be brought at all, for example under the Explosive Substances Act, the Official Secrets Act or the offences of incitement to racial hatred. In other cases, my advice may be sought on a particularly difficult or sensitive case. In all cases I have the power to stop a prosecution. As a result of this last power, I am sometimes asked to give immunity from prosecution for certain people, perhaps as the necessary condition to such people providing important evidence in a public inquiry. I have the power by Statute to refer cases to the Court of Appeal on a point of law or as an appeal from an unduly lenient sentence.

It is absolutely crucial that in exercising all of these powers the Law Officers act, and are seen to be acting, with absolute adherence to the principle of independence and of fairness. Nothing could be more damaging to public confidence in the administration of justice than a suspicion that the important powers I have referred to were exercised on political grounds.

Today the classic statement of the constitutional position remains that of Attorney General Sir Hartley Shawcross, given to the House of Commons in 1951:

Robust independence in the prosecuting function is the only way to ensure that potentially controversial prosecution decisions command respect.

Recent constitutional changes serve actually to underline the requirement of independence. From next April I will have formal Ministerial responsibility for the activities of the Customs Prosecutions Group, a transfer to me from the Customs & Excise Commissioners. Other government prosecutors remain within their Departments, but under arrangements established 2 years ago by John Morris, the Law Officers now have regular meetings with the heads of all government prosecuting bodies to discuss casework issues and receive briefing on cases of particular sensitivity, complexity or public importance. This role enables the Law Officers to give guidance on the conduct of these prosecutions and, if necessary, advice to the departmental Minister. While there has been no formal change in accountability, in practice I would expect that colleagues would not lightly ignore views that I might express.

In the other areas of public interest, robust independence and fairness are the principles which guide our decisions: in charity cases, in contempt cases – which are brought to protect the trial process or court orders, for example to protect the anonymity of vulnerable witnesses or even their lives – and in cases where we are more generally called upon to protect the public interest.

I believe that these decisions are still best made by a Law Officer who is also close to political colleagues. There are two main reasons. First, in many cases it is important, in understanding the public interest to have access to the understanding of the public interest that colleagues in Government and Parliament have about those interests. What would be the effect, for example, on national security if certain information were revealed in Court? The Defence Secretary and Home Secretary’s explanation of the facts will be important in understanding that risk.

The other reason is perhaps even more important: public accountability. It is essential that the Law Officers in exercising this public function are publicly accountable. The new climate reinforces the call for accountability and openness. Both the Solicitor General and I are accountable to our respective Houses of Parliament and we frequently receive Parliamentary correspondence dealing with CPS casework as well as casework of our own. It is not always reasonable for Parliament to require the Law Officers to rehearse all the detailed factors which tip the balance one way or the other in making prosecution decisions. There may be particular reasons why a certain amount of discretion is necessary. Parliament must therefore be trusting and tolerant and exercise a prudent self-restraint. But equally, where no special factors apply, I regard it as important that Law Officers and prosecutors are open and accountable for our decisions and those of the CPS.

It was in the Gouriet case that the Courts most sharply came to examine the public interest role of the Law Officers. Sam Silkin’s argument was that he was not accountable to the Courts for the exercise of his discretion in the public interest. Lord Denning did not agree. But the House of Lords most certainly did. I would quote just one passage from the speech of Lord Wilberforce:

The next area on which I would like to focus is the role of the prosecution.

When the public thinks of the criminal justice system the prosecutors are not the first part that they think of. They will think first of the police and prisons, of the Magistrates and judges and the juries and perhaps even of the defence lawyers.

It is my belief, however, that the contribution of the prosecution services to the Criminal Justice system is disproportionate to the public prominence they have. What is more, the contribution of the prosecution to ensuring the fairness, as well as the efficiency, of the trial process, is key. Indeed, if the recommendations of Sir Robin Auld’s report are implemented – and I will want to say something about those which especially relate to the prosecution service a little later – the role of the prosecutor will become even more crucial to achieving fairness and efficiency.

What values should the prosecutor therefore apply? How confident can we be that they are in a position to fulfil this key role?

The Attorney General’s role is ancient – but the CPS is new. There has only been a national and independent prosecution service for 16 years.

Before 1986, prosecutions in modern times were, in general, the responsibility of the police, who either presented the prosecution case in the Magistrates’ Courts themselves, increasingly through prosecuting solicitors’ departments, or instructed lawyers to do so. Some cases were reserved to the Attorney General or to the Director of Public Prosecutions but these were very much the exception and generally restricted to the most serious cases. The office of DPP was created in 1879 but until 1986 his responsibilities were limited to this type of casework.

It was the Philips Committee in 1981 which recommended the creation of a national prosecution service. The service was created as the Crown Prosecution Service in 1986 following the Prosecution of Offenders Act 1985.

It is worth reminding ourselves of the reasons given by the Commission for that recommendation because they cast much light on how we should today see the role of the Service. There were 3 key objectives: to secure fairness, efficiency and accountability in the prosecution system. I should elaborate on what they meant. The objectives of a fair prosecuting system, they explained, meant not simply prosecuting the guilty and avoiding prosecuting the innocent. It meant a system which brought to trial only those against whom there was an adequate and properly prepared case and whose prosecution was justified in the public interest. "This requires," they went on "a high standard of competence, impartiality and integrity in those who operate the system. The guilty should not escape prosecution nor the innocent be prosecuted because those who make the decisions or collect the necessary evidence upon which the decisions can be made are inefficient or are motivated by sectional political, social or economic interests or are corrupt. That is essential to public confidence in the system."

But such a system required, as they said, also to be efficient and accountable. Efficient in the sense that it achieved the objectives set for it with the minimum use of resources and the minimum delay. Accountable in the sense that those who make the decisions to prosecute or not can be called publicly to explain and justify their policies and actions as far as that is consistent with protecting the interests of suspects and accused.

In the Commission’s view the best way to achieve these aims was the creation of an independent prosecuting authority. This would recognise "the importance of independent legal expertise in the decision to prosecute and to make the conduct of the prosecution the responsibility of someone who is both legally qualified and is not identified with the investigative process."

Those three objectives of fairness, efficiency and accountability remain, to my mind, the objectives we should set for the prosecution service. They are what the public are entitled to demand from our prosecutors. These three objectives are the way that the CPS will contribute to the key Government aims for the criminal justice system as a whole: the reduction of crime; the reduction in the fear of crime and increasing public confidence in the criminal justice system.

Let me say a little more later about how I see the CPS in particular fulfilling each of these objectives of fairness, efficiency and accountability, and how the Auld recommendations could impact on those areas.

Fairness, as I have noted, was at the heart of the reason for bringing the CPS into existence. It is at the heart too of how the Service sees itself today. It is apparent in the declared Aim of the Service to meet the Government’s aims by "fair and independent review of cases and by firm, fair and effective presentation at court." And it is at the heart of how it operates.

Prosecutors have a major part to play in ensuring the fair conduct of trials. But fairness extends also to pre-trial decisions and conduct. A key role of the prosecutor is reviewing the evidence and deciding whether the charge is appropriate. Philips considered that an important element in public confidence in the fairness of prosecution arrangements was the consistency with which criteria for prosecution are applied throughout the country. The Code for Crown Prosecutors, a public statement of the criteria applied by prosecutors in making decisions, was introduced shortly after the CPS was established. It has been adopted by all Crown prosecuting authorities.

Fairness is key too in decisions in relation to disclosure to the Defence of material which the Prosecution has but does not intend itself to use. Last year Gareth Williams issued guidelines on disclosure. I know that they will have been valuable in giving practical guidance in areas which can often be difficult. But they were only intended as an interim solution. I shall return to the Auld recommendation in this field.

Of course we must maintain vigilance that the ethic of fairness does not fade. It is all too easy for the red mist of conflict to obscure our view of what is right. I shall maintain my own close watch. I have told the Chief Crown Prosecutors that Harriet Harman and I expect that they and their staff will articulate these values as clearly in practice as they have on paper. The practice of them needs to be instinctive, not forced: part of the bloodstream.

A fundamental safeguard to fairness is the independence of the prosecutor. National and international standards recognise the importance of the independence of the prosecutor; the ability to exercise the prosecutor’s discretion independently and free from political interference; to perform their duties without fear, favour or prejudice.

It is plain how important this principle is when prosecutors have to make prosecution decisions about people in the public eye, including even politicians. But it is just as crucial in every other case. Whoever the defendant is, the decision to prosecute is a serious step and even in the smallest case the prosecution will have serious implications for all involved: victims, witnesses and defendants. Only where decisions are demonstrably taken on an independent, fair and consistent basis can there be public confidence in the decision-making process. No-one seriously doubts that the CPS makes these decisions entirely objectively, freely and independently: indeed, there is not a breath of a suggestion otherwise. We should not take that for granted. I cannot stress too much how important this is. You simply cannot maintain a free and democratic society without the checks and balances that over the centuries we have evolved as part of our constitution. The independence of prosecutors is crucial to this.

But there are further elements to fairness which must be addressed. One of these is the question of non- discrimination and equality.

Earlier this year, Sylvia Denman produced her final report in her independent review into racial discrimination within the CPS. At the same time the CRE produced a report on its investigations into one of the CPS branches. The Reports did not make comfortable reading, finding that institutional racism did exist in the CPS. But the response of the DPP was to accept the findings of both reports and all the recommendations that were made.

Tackling these problems is essential for two reasons First, as an aspect of fairness: fairness in employment, in terms of providing equal opportunity to all, recognising that the CPS must reflect the multi-cultural society that we all share in. Secondly, because members of ethnic minorities must have confidence that the criminal justice system will afford them an adequate protection against being wronged, especially if that wrong is on account of their race, and deal robustly and fairly with those alleged to have done that wrong; and they must have confidence that they will themselves be dealt with fairly and justly if they are alleged to have committed an offence.

The DPP is determined to stamp out discrimination of any sort in the CPS and has made this clear in public. To assist in the commitment of the CPS to tackling the problems identified in both reports I have set up the Attorney General’s Race Advisory Group to assist me in overseeing the CPS’s implementation of them.

But the CPS can also play a part in creating fairness in other ways. For instance, encouraging staff from non-traditional backgrounds to qualify as lawyers, and creating family-friendly working practices to encourage women to return to or stay in work. In the last couple of years the CPS has made important changes in these areas. A legal trainee scheme has been established enabling administrative staff to progress to qualify as lawyers. Part-time working is encouraged, maternity leave is being extended, and the CPS is now working up plans to create more flexibility for women who want to work part-time for the CPS.

Efficiency – the second of the 3 objectives – is one of the elements of delivery. The public rightly demands results and efficiency from public services. The justice system is a public service too. The public therefore has as much right to demand that the justice system run efficiently – producing results, producing value for money – as other public services. The public has a right to expect that the justice system will serve and protect them. Delivery is not an end in itself; it is designed to produce results that will affect everyday lives of people. Tackling persistent offenders by assembling the strongest possible cases will improve the quality of life in many of the poorest areas. Improving the information we provide to victims, and engaging more readily with the wider community will improve public confidence. The Government is determined to tackle crime – not least because one of the ugliest aspects of deprivation and social exclusion is communities where people live in fear of crime and parents live in fear of their children being drawn into crime.

Accountability is also expected by the public.

I would single out two aspects: Transparency of the decision making process. The results of a pilot project by the CPS to test different means of providing an improved service to victims this year, whereby the CPS explains the basis of its decisions, were encouraging and a lot of effort has gone on since then to absorb the lessons that were learned and ensure a successful rollout. By this time next year a victim information scheme will be in place throughout the CPS.

For my part, I think the potential gains are huge. It must be right that those who make decisions then have the responsibility of explaining them. It is frustrating for victims to learn at second-hand about decisions that affect them, and until now the CPS has not had control of the message that they receive. Knowing and understanding why decisions are taken, even if these are disappointing, sharply improves the experience by victims of the criminal justice process.

Exposing to public view the basis on which decisions are made generally is also important. The Code for Crown Prosecutors was an important step. This shows the general principles on which prosecution decisions are taken up and down the country. But I believe the Service can go further. In many sensitive areas the Service have developed key tests and criteria to guide decision making. Already later this month there will be launched a public statement of the CPS’s policy concerning the prosecution of cases involving domestic violence. I believe the public have a right to know how the Service proposes to make the decisions when to prosecute and when not to. I hope that later further areas where there will be similar legitimate interest can be published.

And now I want to say a word about the Auld Report. A process of obtaining views and comments began as soon as the Auld Report was published last month. It is important that everyone with views on the radical and far-reaching recommendations made in the report should set out those views to the Government in writing or through the conferences in all regions that will allow Ministers in the Home Office and Lord Chancellor’s Department and Law Officers to listen to views. We will not reach conclusions until the outcome of this process has been fully considered, and it is important that the process should be vigorous and full. What I want to do this evening is to draw attention to some proposals and thereby provide some stimulus to the debate.

Many of the recommendations, if ultimately accepted, could have a radical and far reaching effect on the prosecuting authorities.

There are three areas I would particularly like to mention. They all have special relevance to the prosecuting services. They have not received as much public attention as some other recommendations but they equally deserve public consideration.

(1) Charging

Robin Auld has recommended that, except in minor or routine cases, or cases where a holding charge is necessary, the responsibility for charging offences should in future rest with the CPS and not the police. He pointed out that 22% of police charges relating to assault, public order and road traffic were found by the CPS to be incorrect, according to the last CPS Inspectorate Annual Report. 13% of cases are discontinued.

There is an anomaly in the current system. The test that the police apply in deciding whether there is sufficient evidence to charge, appears to be a lower threshold of probability than the requirement that there should be a realistic prospect of conviction, the test which is applied by the CPS. There is no requirement at all to consider the public interest. The system at present is therefore inevitably going to result in a proportion of cases that are begun by police charge, but then discontinued by the CPS. Though both organizations apply their tests properly, the result does not make sense. Equally it is reasonable to suppose that there are a proportion of cases not currently being pursued to charge by the police because of misconceptions about evidential or public interest factors. Offences of domestic violence are an example: it is not the case that because the victim in those cases decides she doesn’t want to proceed therefore a case should not be brought. It is a factor but there are others to consider.

Robin Auld goes on to say that it would be logical, and certainly more efficient, to give the CPS control from the start. If Auld is right, then the recommendation provides a prospect of better-prepared cases and more appropriate charges when cases first enter the system. In large and complex cases where an investigation that goes wrong may cost millions of pounds, there is an argument for involvement by the CPS at an even earlier stage, when advice is needed on the key strategic decisions that have to be made.

There is a powerful case made that there will be other substantial benefits as well. Public confidence ought to improve as would the confidence of victims: they would learn about decisions to prosecute by the CPS rather than have expectations raised by the original charge only then to learn that the CPS have changed the charge or in some instances dropped the case. A charging role could also support Robin Auld’s proposed court structure and case allocation: early allocation and grip of cases will depend in part on the early identification of the right charge. It is also reasonable to expect benefits in terms of increasing the amount of cases prosecuted, and reducing overall delay.

We will be considering these arguments, and others that may be put forward, when we make decisions about the whole of the Auld report early next year. In the meantime, though, it has seemed to us to be sensible to gather further information. Questions have been raised about how the recommendation would work in practice. Would timeliness of handling cases be affected? One might envisage a reduction in timeliness at the beginning of the process, but will there be overall savings in time and expense? We do not yet have the material to begin to answer these questions. It is for that reason that I can say that the Government has decided to lose no time in piloting the proposals. The CPS and the police are working closely together to produce models to test the recommendation. These will include a scheme for involving CPS prosecutors right at the outset of an investigation, when the key strategic decisions that I have referred to are being made. We will also need to consider whether the police should have a provisional charge in mind during the course of an investigation. The pilots will begin early in the New Year and the results will inform decisions that Ministers will be making later on.

(2) Disclosure

Robin Auld’s proposals on disclosure also envisage a greater role for the CPS. He argues that the responsibility for examining and identifying potentially disclosable material should be removed from the police to the prosecutor: in other words, the CPS will take on the responsibilities currently discharged by the disclosure officer. The argument is that the task of assessing the materiality of information to issues or likely issues in a trial – as distinct from gathering and scheduling all unused material in an investigation – is a lawyer’s task. Indeed it is one of the most critical tasks in the preparation of a case for trial: essential for the fair conduct of the prosecution case.

This is a strong argument that bears close examination. Many of the major miscarriage of justice cases, which led to a great loss in public confidence, had their root in non-disclosure of crucial information, for example the Birmingham 6 and Guildford 4 cases some years back. The scope for human error can never be entirely eradicated, whether by the police, the prosecution or the defence, but the function of analysing material is essentially a legal function. Giving this task to the prosecutor would provide a better prospect of avoiding miscarriages of justice, and could also result in weeding out weak cases or taking remedial action at an earlier stage. The key question it seems to me is, do the legal profession and the public want this change? Perceptions in this area are important. Ministers are bound to ask if we should embark on the major structural as well as legal reform, with associated resource implications, that would be required if the perception will remain that the rules will still be unsatisfactory. We need to know your views.

(3) Appeals

Two years ago in delivering this lecture, Gareth Williams posed a question as to whether the rules prohibiting the prosecution from appealing could any longer be justified. The Law Commission considered the issue and made a proposal for greater prosecution rights of appeal. Robin Auld backs this. Whilst comparatively few cases would be affected, they can often be significant in terms of weight or seriousness, for instance, large scale drugs importation cases. Cases lost through judicial error which cannot be corrected and for which there is no other chance to look at them again do nothing for public confidence and leave victims with a lasting sense of injustice.

Lord Chesterfield said of the Law Officers in medieval times that they were known as the "bloodhounds of the Crown", a comment on the manner in which they prosecuted State criminals. The author of a book on the life of Francis Bacon went further, describing the Law Officers as gentlemen who thought themselves, "by the duty of their places, absolved from all the obligations of truth, honour and decency". I hope that I have demonstrated this evening that we have travelled some way since then. The modern Law Officer is guided by three principles: independence, fairness, and accountability. We have reached this point through incremental development, to the point where the modern Law Officer can, I hope, be seen as one example of the way in which we have reached maturity as a democracy. Harriet Harman and I will strive to be seen as upholders of the best traditions of the Office.