cp149 Consents to Prosecution consultation - Law Commission

1.25 The Franks Committee was “in no doubt” that there was widespread unease –
albeit, in the view of the Committee, “not well founded” – amongst those “outside
governmental and Parliamentary circles” about the Attorney-General carrying out
both political and quasi-judicial functions. 298
1.26 Two journalists, commenting on the potentially controversial Jurisdiction
(Conspiracy and Incitement) Bill 1997, 299
said of the consent “safeguard”:
The concession was to give the Attorney General and Director of
Public Prosecutions the final say in any politically-sensitive
prosecutions. That would merely compound the dangers by
introducing an additional political ingredient and making prosecutions
dependent on the diplomatic whim of the day. 300
The counter-argument
1.27 Against the argument that the Attorney-General’s office requires the office holder
to perform the impossible task of being at once political and impartial, is the
counter-argument that it is because of the very nature of the Attorney-General’s
constitutional position that he or she is the appropriate officer to decide whether
to institute criminal proceedings in cases of particular sensitivity.
1.28 The Franks Committee, in proposing a new Official Information Act, also
proposed that prosecutions for offences under the Act relating to defence, internal
security, foreign relations, the currency and reserves, and other matters should be
subject to the consent of the Attorney-General. The reasons given in the Franks
Report were:
The point of central importance is that these decisions are
irremediably decisions of a political nature, in that they are concerned
with questions of public policy although not partisan advantage.
Control by the Attorney General is a safeguard, which has the effect of
reducing and not increasing the number of actual prosecutions. He
alone is in a proper position to exercise that control, and he is
accountable to Parliament for the way in which he does so. 301
1.29 Summing up the views of a number of witnesses, 302
the Franks Committee
identified the particular contribution of the Attorney-General as follows:
The main point made by these witnesses was that when a decision
involves questions of public policy, or of a political or international
character, it is essential that the person with responsibility for the
decision should have experience of the kind of issues involved, and
essential that he should be able to consult directly the Minister
298 Franks Report, paras 250 and 251.
299 See para 4.16 above.
300 S Milne and R Norton-Taylor, “A bill which chills”, The Guardian 17 February 1997.
301 Franks Report, para 255.
302 Franks Report, para 249. The witnesses were: the Attorney-General and his Legal
Secretary, the previous Attorney-General, the DPP, Sir Philip Allen and Sir William
Armstrong.
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