Article in Justice of the Peace

170 JPN (9 Dec 2006) 944

Doc. No. 2006.043

Page 944

The Prosecution Circus Continued

FRANCIS BENNION*

Another Blow at Private Prosecutions

I showed in a recent article1 how the police, aided and abetted by the Home Office, had by use of the cautions system deprived an individual of his constitutional right to bring a private prosecution, and how the Appellate Committee of the House of Lords appeared unperturbed by this blow at the constitutional rights of the citizen.2 Now I have to report an instance where the Divisional Court has similarly transgressed in the case of R v Fleming-Brown3. A private prosecution was brought under the Town Gardens Protection Act 1863 by Paula Lawton against Christopher Fleming-Brown, a City of London banker. Both live in Elgin Crescent, Kensington, whose residents have use of the gardens in question, the Arundel and Elgin Ornamental Gardens.

The charge was that in October 2004 and March 2005 the accused, in play with his five-year old son, had contravened byelaws prohibiting the playing of football or a similar game in the gardens. The prosecutor appeared in person. The accused was represented by a silk, Mr Ian Glen QC. According to a newspaper report:

“ The banker said he needed such high-powered representation because if convicted he might have been barred from visiting the US on business.”4

The West London Magistrates’ Court dismissed the charge, ruling that such play did not constitute a game of football, as defined by the Oxford English Dictionary5, namely “any number of forms of team game involving kicking a ball”. They held that, as Mr Fleming-Brown and his son were not “teams” of footballers, they were not guilty of breaching the byelaw when Ms Lawton saw them playing.

On appeal by Ms Lawton to the Divisional Court Waller LJ said:

“ We think the justices took too narrow a definition of what constituted football or a similar game by paying too much attention to the dictionary definition, which referred to two teams seeking to put the ball into the opposition’s goal. By any commonsensical, natural interpretation, the respondent and his son were playing football or a similar game. The justices misdirected themselves and came to a conclusion to which no reasonable bench could have come.”6

This ruling is open to question, but it should have meant that the case was sent back to the magistrates’ court for a retrial. The Divisional Court declined to do this. Waller LJ is reported as saying that to do so “would not be in the public interest”7 – particularly since the byelaws have since been amended to allow parent and child ball games. The Court ordered that Mr Fleming-Brown’s acquittal should stand, and that costs should be met out of central funds.

The thwarted private prosecutor was understandably upset by this. She is reported as saying she was “horrified”, adding:

“ I’m just protecting my garden. This is an ornamental garden and not a recreation ground, and football ruins the grass.”

Addressing the Court after judgment Ms Lawton said:

“ You got the decision right, but still found against me. This has set a dangerous precedent.”8

Is it really in accordance with the constitutional principle of the rule of law for the Divisional Court to stifle a private prosecution in this way? I think not. The principle has recently been recognised by statute.9 It has been the subject of an important lecture, discussed below in this article, delivered by the Senior Law Lord, Lord Bingham of Cornhill. It does not permit the Court to deprive a citizen of a constitutional right.

Admittedly the Divisional Court had a discretion over whether or not to send this case for a retrial. But it should not, in my respectful submission, have used the discretion in this particular way. Constitutionally, if a private prosecution brought before a magistrates’ court is to be discontinued by the authorities the method laid down by Parliament should be followed.

In the present case this would be for the Director of Publications, acting under the superintendence of the

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Attorney General, to take over conduct of the prosecution under the Prosecution of Offences Act 1985 s 6(2) and then either discontinue it under s 15(3) of that Act or offer no evidence on the retrial.

If the Divisional Court were of the opinion that this should be done they ought in my opinion to have sent the papers to the DPP for him to consider the matter. Discontinuance of the prosecution fell within his constitutional province, not the Court’s.

The Prosecutorial Discretion

Why is it important that it should be the DPP’s discretion and not the Court’s that should be in play here? I have told part of the story in a previous article explaining how the 1924 Campbell Case led to the emergence of the constitutional doctrine that the Attorney General has independent charge of the prosecutive power of the state, or as it is known in Australia the prosecutorial discretion.10 Now I will continue the story by reference to the decision of the Judicial Committee of the Privy Council in Mohit.11

In Mohit the question was whether exercise of the right of the local Director of Public Prosecutions under the Constitution of Mauritius to discontinue a private prosecution was subject to judicial review. Applying common law principles, a strong Judicial Committee including Lord Bingham of Cornhill and Lord Hoffmann held that it was, and examined the whole question of the prosecutive power under common law. What I go on to say about Mohit applies to the law of England as well as that of Mauritius.

The Mohit opinion said:

“ Recognition of a right to challenge the DPP’s decision does not involve the Courts in substituting their own administrative decision for his: where grounds for challenging the DPP’s decision are made out, it involves the Courts in requiring the decision to be made . . . in (as the case may be) a lawful, proper or rational manner.”12

This reconciles the Court’s overriding jurisdiction to ensure that justice is done with the exclusive right of the DPP (acting under the Attorney General) to exercise the prosecutive power.

The Mohit opinion went on to cite approvingly a passage13 from the decision of the High Court of Australia in Maxwell v R.14 which refers to this power as “what is commonly referred to as ‘the prosecutorial discretion’”. This passage applies to English law and is so important that I must quote it in full.15

“ The power of the Attorney General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as ‘the prosecutorial discretion’16. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the Courts17.

That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all states and territories and in the Commonwealth [of Australia]. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute18 . . .

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute19, to enter a nolle prosequi20, to proceed ex officio21, whether or not to present evidence22, and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted.23

The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the Courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what24.”

It is clear that the effect of this passage in relation to Fleming-Brown is that the Divisional Court was wrong to take upon itself the decision to discontinue the prosecution of Mr Fleming-Brown. This is confirmed by the following passage from another judgment approved by the Judicial Committee in Mohit:

“ It is sufficient, in our opinion, in cases involving the exercise of prosecutorial discretion to apply established principles of judicial review. These would have proper regard to the great width of the DPP’s discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the Courts to

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assess their merits. This approach subsumes concerns about separation of powers.”25

Just as it is not for the Court to exercise what is truly the prosecutorial discretion in judicial review cases26, so it was not for the Court in the present case to terminate a private prosecution in purported exercise of its general discretion on an appeal from the magistrates’ court. The giveaway is that Waller LJ is reported as stating as the ground for discontinuance that to go on with the prosecution “would not be in the public interest”. Constitutional doctrine says it is for the prosecuting authorities and not the Court to make this particular judgment. Usually Courts are astute not to blur this line.27

Disturbing Observations by the Attorney and the DPP

My next task in this perambulation round the constitutional features of criminal prosecutions is to consider some recent observations by the Attorney General and the DPP. First the Attorney.

At the beginning of another recent article28 I gave extracts from a letter by Lord Goldsmith on why he will not stand aside from involvement in the Cash (or loans) for Honours affair. The passage I found disturbing runs:

“ . . . the Attorney General has statutory responsibility for the superintendence of the CPS and is answerable to Parliament and to the public for its actions. It is therefore normal for the CPS to consult the Attorney General on any sensitive cases . . . Accordingly if the CPS consult me on a prosecution in this case, I propose that my office should appoint independent senior counsel to review all the relevant material and advise on any prosecutions.”

This indicates that the Attorney will take an interest in the matter only if the CPS consults him. This seems too supine a posture. He has a statutory duty to superintend the CPS. On an important matter like this he should not wait to be consulted.

The observations that worried me by the DPP, Mr Ken Macdonald QC, were also about the Cash (or loans) for Honours affair. They were made in the BBC Radio Four Today programme broadcast on November 13 2006. For ease of reference I will break them down into numbered paragraphs.

(1) The Attorney General has a number functions. He is a government Minister and a senior member of the Government,

(2) but he is also a Law Officer and in that role he exercises judgment in the public interest.

(3) The decision about this prosecution, final decision, will be made by senior lawyers in the Special Crime Division of the CPS.

(4) The Attorney General is entitled to be consulted, and they will consult with him and he will no doubt express views about the public interest.

(5) That’s commonly done, there’s no difficulty with it, it’s not political,

(6) but the final decision in this case will be made by the CPS.”

I wrote to the DPP about this statement but as yet have had no reply. I suggested it did not represent the true constitutional position, which is that the Attorney General has the power, if he wishes, to take the final decision in the case. I said that moreover in his statements about the case the Attorney had indicated that he proposes to exercise that power, after taking independent advice.

I added that at the time when the Prosecution of Offences Act 1985 was passed I wrote an article in the Criminal Law Review29 which ended:

“The true constitutional position seems to be that the prosecutive power of the state is vested in the Attorney General, with the Director of Public Prosecutions and his staff acting as the Attorney’s executive arm.”

I said that my subsequent writings had been based on this reading, which was not challenged, and added:

“ Paragraph (2) of your broadcast statement seems an inadequate description of the Attorney’s function. Historically it is as the Attorney General rather than just as a Law Officer that he holds prosecutive functions, and these go far beyond ‘exercising judgment in the public interest’. He has overriding power both to begin and terminate a prosecution on indictment.

Paragraphs (3) and (6) suggest, surely incorrectly, that the senior lawyers mentioned will possess a power of decision overriding those of yourself and the Attorney.

Paragraph (4) inadequately describes the Attorney’s powers. No doubt these are not brandished in his everyday dealings with the CPS, but they are there just the same.

The statement in paragraph (5) that ‘it’s not political’ overlooks the fact that this case is inevitably political. What matters is that the prosecution question should not be decided by political considerations. It is important to stress that our constitution requires an Attorney in such circumstances to act with strict impartiality. There is no doubt he will do so, even though wearing other hats he is a member of a Labour Cabinet. Modern cynicism tends to suppose this degree of mental separation (often required in law) is not possible; and that must be combated.”

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Lord Bingham again

At the beginning of an article referred to earlier in this piece30 I criticised the Senior Law Lord, Lord Bingham of Cornhill, for saying that the Crown Prosecution Service is an “arm of the executive”, whereas in fact it is a constitutionally separate and independent body acting quasi-judicially under the superintendence of the Attorney General. I also criticised certain statements Lord Bingham made in his speech in Jones v Whalley31 criticising the right of private prosecution.

It was suggested by Professor J. R. Spencer32 that in these statements Lord Bingham was not himself criticising the right of private prosecution, but was doing two other things, namely (i) summarizing the argument of counsel on what in the judgments was called the wider ground33, and (ii) indicating that the House should not accept that argument because it had not been properly ventilated. In an earlier reply34 I pointed out that not only was Lord Bingham doing those two things but he was also quite clearly indicating opposition to the right of prosecution on his own behalf in the following passage:

“It is for the state by its appropriate agencies to investigate alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing the law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value, and can be exercised in a way damaging to the public interest.”35

I will now examine this passage more closely than I did in the previous article. The first italicised passage is objectionable in muddling together the investigation of alleged crimes (which is a function of the executive in the shape of the police) and the decision whether an offender should be prosecuted (which is a function of the entirely separate CPS). It is also objectionable in failing to recognise the longstanding right of the private citizen to investigate offences and take the decision that he himself should prosecute.36 This is all the more remarkable since the case he was dealing with concerned that very right. Moreover it was a right which had been affirmed by Parliament in modern times.37

The second italicised passage is objectionable because it disregards material contained earlier in his own speech, and in Lord Mance’s speech, which shows that private prosecutions are a common feature of the current scene and that the right of citizens to prosecute is supported by senior members of the judiciary and by the Law Commission.38

A further objectionable feature appears when we look at the question of the wider ground referred to above. In Jones v Whalley the appeal against the decision of the Divisional Court favouring the private prosecutor was based on a narrower and a wider ground. The narrower ground, which I support, was that it was an abuse of process to secure a conviction when the person convicted had been told by the police officer administering the caution that he would not be prosecuted unless he reoffended. The wider ground was that “irrespective of what may be said to, or stated in a form given to, a person who is cautioned, conditionally cautioned, reprimanded or warned, it can [never] be other than an abuse of process for a Court thereafter to entertain a private prosecution against him”39.

The case was decided by the Appellate Committee on the narrower ground. Lord Bingham said of the wider ground:

“I [do not] think the House should in this appeal accept it, for reasons which I find, cumulatively, to be compelling. It was not advanced in the Divisional Court, so we lack the benefit of its judgment on it. It was scarcely foreshadowed in Mr Whalley’s written case, and there was no hint that the correctness of Hayter was to be challenged40. Thus Mr Swift had little opportunity to prepare an argument in reply. The question is one of some importance, and should not be resolved in the absence of representation of the Crown or any police force, both of whom might be expected to have views on how the issue should be decided. The question is one which might well benefit from legislative attention. It is not necessary to resolve this question to decide the present appeal.”41

My contention is that not only should the Appellate Committee not have accepted the argument for the wider ground but it should not even have entertained it, since it clearly required legislation and so was beyond their powers. Lord Mance virtually admitted this when he said “It requires some consideration of the general value of any right of private prosecution in modern conditions”.42 Lord Brown of Eaton-under-Heywood said “Plainly . . . such a rule, were it to be established, would substantially diminish what many understand to be the present scope for private prosecutions”.43 When Parliament had declared as recently as 1985 that the right of private prosecution is to remain, it was for Parliament and not the judiciary to abolish or truncate that right.

Ironically Lord Bingham acknowledged this in a recent lecture he gave on the rule of law.44 He said:

“ The core of the existing principle [of the rule of law] is, I suggest, that all persons and authorities within

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the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the Courts.”

Stripped of wording unnecessary in the present context, this reads:

“The core of the existing principle is that all authorities within the state should be bound by laws publicly and prospectively promulgated and publicly administered in the Courts.”45

This clearly includes the Appellate Committee of the House of Lords. They are bound by the law that establishes and continues the right of private prosecution, and their function is obediently to implement it.

Lord Bingham rams the lessons of the present article home by saying later in his lecture: “. . . one can agree with Justice Heydon of the High Court of Australia that judicial activism, taken to extremes, can spell the death of the rule of law”46.

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* Francis Bennion is an author, constitutional lawyer and draftsman of state constitutions. A former UK Parliamentary Counsel and member of the Oxford University Law Faculty, he is currently a Research Associate of the Oxford University Centre for Socio-Legal Studies.

1. “Jones v Whalley: Constitutional Errors by the Appellate Committee”, p. 847 above.

2. This action by the police was under non-statutory executive powers. The cautions system has also been applied by statute: see Crime and Disorder Act 1998 ss. 65, 66; Criminal Justice Act 2003, Pt 3.

3. A law report of the case is not available at the time of writing, so I have had to rely on press accounts of the judgments.

4. The Guardian, 23 November 2006.

5. This is the dictionary named in the report in the Times of 23 November 2006. In the Daily Mail of the same date the dictionary consulted by the magistrates is said to be the Concise Oxford Dictionary.

6. The Daily Mail, 23 November 2006.

7. Ibid.

8. Ibid.

9. Constitutional Reform Act 2005 s. 1.

10. For the Campbell Case see F A R Bennion, “Jones v Whalley: Constitutional Errors by the Appellate Committee”, p. 847. above at p. 849.

11. Jeewan Mohit v The Director of Public Prosecutions of Mauritius [2006] UKPC 20.

12. Paragraph 13.

13. See para. 15.

14. Maxwell v R [1996] 1 LRC 299.

15. In order to shorten the quotation I have converted the numerous citations into footnotes.

16. See Barton v R (1980) 147 CLR 75 at 91, 94 per Gibbs and Mason JJ, R v McCready (1985) 20 A Crim R 32, R v von Einem (1991) 55 SASR 199 and Chow v DPP (1992) 28 NSWLR 593 at 604-605 per Kirby P.

17. See Wheeler “Judicial Review of Prerogative Power in Australia: Issues & Prospects” (1992) 14 Sydney LR 432.

18. See Newby v Moodie (1988) 83 ALR 523; see also R v Toohey, ex p Northern Land Council (1981) 151 CLR 170 at 217, 220 per Mason J.

19. See Connelly v DPP [1963] 3 All ER 510 at 519, [1964] AC 1254 at 1277, DPP v Humphrys [1976] 2 All ER 497 at 527-528, [1977] AC 1 at 46 and Barton v R (1980) 147 CLR 75 at 94-95, 110.

20. See R v Allen (1862) 1 B & S 850, 121 ER 929 and Barton v R (1980) 147 CLR 75 at 90-91.

21. See Barton v R (1980) 147 CLR 75 at 92-93, 104, 107, 109.

22. See, for example, R v Apostilides (1984) 154 CLR 563 at 575.

23. See R v McCready (1985) 20 A Crim R 32 at 39 and Chow v DPP (1992) 28 NSWLR 593 at 604-605.

24. Barton v R (1980) 147 CLR 75 at 94-95, Jago v District Court (NSW) (1989) 168 CLR 23 at 38-39, 54, 77-78 per Brennan J, Gaudron J, Williams v Spautz [1993] 2 LRC 659 at 690, (1992) 174 CLR 509 at 548 per Deane J and Ridgeway v R [1995] 3 LRC 273 at 320, (1995) 129 ALR 41 at 82 per Gaudron J.

25. Paragraph 17. This is an extract from the judgment of the Supreme Court of Fiji in Matalulu v DPP [2003] 4 LRC 712 at 735-736.

26. In Mohit the Judicial Committee allowed judicial review because the points at issue were outwith the prosecutorial discretion and within the court’s supervisory powers as exercised in judicial review proceedings.

27. See, eg, R (on the application of “C”) and Chief Constable of “A” Police v “A” Magistrates’ Court [2006] EWHC 2352 (Admin), where Underhill J declined to make a declaration that a police investigation of the applicant was unlawful since this “would involve an unwelcome blurring of the separate roles of Court and prosecutor/investigator” (see para. [32]).

28. “Déjà Vu, or the Judge Addresses the Society”, p. 888 above.

29. [1986] Crim LR 3.

30. “Jones v Whalley: Constitutional Errors by the Appellate Committee”, p. 847 above.

31. [2006] UKHL 41, [2006] 4 All ER 113, at [10].

32. See p. 916 above.

33. I return to this below.

34. Also given at p. 916 above.

35. Para. [16] (emphasis added).

36. In the case of certain offences this right is for special reasons curtailed by statute.

37. See Prosecution of Offences Act 1985 s. 6.

38. See para. [9], and in Lord Mance’s speech para. [43].

39. Paragraph [14]. For the argument advanced for this see para. [15].

40. Accepting the wider ground involved reversing the decision in Hayter v L [1998] 1 WLR 854.

41. Paragraph [16].

42. Paragraph [38].

43. Paragraph [34].

44. Sixth Sir David Williams Lecture, delivered by Lord Bingham of Cornhill on 16 November 2006.

45. Page 5.

46. See J D Heydon, “Judicial Activism and the Death of the Rule of Law”, Quadrant, January-February 2003.