The issue that has proved enduring over Christmas and the New Year has been the news that no criminal proceedings will be launched against the former Chief Executive, C.Y. Leung and the current legislator, Holden Chow.
Lawyers who have followed this matter have been interested not so much in the merits of the decision not to prosecute, but in the decision-making process of the Secretary for Justice, Ms Teresa Cheng.
She has apparently broken with established practice by not seeking outside legal advice before making a decision about a prosecution. The precedent of seeking external advice existed so as to avoid the criticism that is now being made which is that there may have been a conflict of interest in the decision-making process.
I do not intend to rehearse the powerful arguments for the Secretary for Justice seeking outside advice before a decision was made on prosecution. They have been ventilated in many publications and been the subject of television and radio interviews. In any event, the Secretary for Justice may yet give a full explanation of her decision-making to the Legislative Council later this month.
Instead, I begin by going back in history to look at the consequences of a decision of another principal government law officer, the Attorney General of England & Wales, who made a decision about a prosecution which brought down a government.
In January 1924, much to the surprise of the British Labour Party leader, Ramsey McDonald, an invitation came from King George V to form a government.
The Labour Party had fought a general election in 1923 but it had not won a majority of seats in the House of Commons. The Conservative party had called the election confident of victory, but its members were mortified to discover that it had lost seats and the Labour Party, with Liberal Party support, could form a government.
The Labour minority government that was formed lasted only until November of the same year. It was brought down by a vote of no confidence.
Behind the vote was a sorry tale of the then Attorney General, Sir Patrick Hastings, appearing to let a decision not to prosecute be influenced by political, and not wholly legal, considerations. The Labour Party was defeated at the election that followed from the no-confidence vote and the Conservatives were returned to power.
In July 1924 an article appeared in the Communist Party of Great Britain’s newspaper, ‘Workers Weekly’. The article took the form of an appeal to British soldiers, sailors and airmen not to bear arms against the workers of another country and to show solidarity with them by turning their weapons against the ruling class.
In early August the Attorney General, announced that a prosecution would be launched against the acting editor of ‘Workers Weekly’, John Ross Campbell, for the offence of incitement to mutiny under an Act of Parliament passed in 1797 to deal with disaffection in the army and navy when Britain was at war with Revolutionary France.
Some Labour Members of Parliament objected to the prosecution. The party represented the interests of working people some M.P.’s were left-wing and sympathised with the position of Campbell who was not a full-time editor of the newspaper. These M.P.’s let their views be known to the Attorney General.
Sir Patrick Hastings reviewed his decision. He now factored in the information that Campbell was something of a war hero. He had served in the Army in World War 1 and had been decorated for conspicuous bravery and had also been so badly wounded that he had a permanent disability.
Hastings thought it might look bad if the public thought that a decorated veteran was being prosecuted for what was, on a charitable view of the newspaper article, extreme political speech. Hastings had also received an apology from the printers of the newspaper and the news that it had terminated its publishing agreement with ‘Workers Weekly’.
Hastings canvassed the merits of going ahead with a prosecution with the Prime Minister and other Ministers. It was decided to approve the Attorney General’s decision to drop the case. Hastings announced the decision to discontinue proceedings on 13th August.
Conservative M.P.’s denounced the decision. They accused the Prime Minister of being soft on Communism and criticised the Attorney General for letting political considerations affect a decision to prosecute.
The no-confidence motion was tabled on 1 October 1924, supported by many Liberal M.P.’s and, a week later, MacDonald’s government lost the vote 364 votes to 198. A Conservative administration was formed three days later on 4 October.
There have been other sensitive decisions made by Attorneys General in other jurisdictions which have given rise to claims that a decision to prosecute, or not prosecute, had been politically motivated.
The United States deals with possible conflict of interest situations for that country’s Attorney General by providing for a Special Counsel to look into matters that might warrant the prosecution of senior government officials or involves sensitive political issues.
Currently, as is well known, Robert Mueller is Special Counsel investigating allegations that Russian state agencies interfered with the 2016 Presidential election that saw Donald Trump elected. The prosecutions that Mueller has begun concerning people in the President’s circle has caused Trump some well-publicised discomfort.
In the U.K. the 1924 Campbell affair cast a long shadow when, in 2006, Lord Goldsmith, the then Attorney General, appeared to have allowed political considerations influence his decision making in two criminal cases.
One case concerned alleged bribery of Saudi nationals to secure an arms deal for a British company. The other concerned ministers who were alleged to have been involved in a scheme whereby political honours would be granted for donations to the Labour Party.
Unlike 1924, the government-which enjoyed a healthy majority- did not fall because of these concerns but they did give rise to a report by the House of Lords Select Committee on the Constitution in April 2008 into the office of the Attorney General.
The committee suggested that there could be reforms that would minimise the possibility of conflicts of interest in decisions to prosecute. These included an arrangement whereby a civil service career lawyer would make decisions to prosecute in the majority of cases that might otherwise go to the Attorney General.
The Select Committee’s advice was taken on board by the Attorney General. In July 2009 the Attorney General and the three prosecuting agencies in the U.K.-Crown Prosecution Service, Serious Fraud Office and Revenue and Customs Prosecutions-agreed on a new prosecutorial decision-making protocol.
The ‘Protocol between the Attorney General and the Prosecuting Departments’ provided that in cases where the Attorney General’s consent to a prosecution was not required by statute, which was the vast majority of cases, the Attorney General would not be involved in decisions to prosecute.
There was one exception. That was where it was necessary for him or her to become involved ‘for the purpose of safeguarding national security’. In these kinds of case, in the event the Attorney General made a decision not to prosecute, a report would made to Parliament ‘so far as was compatible with national security’.
Now would seem to be a good time to review the existing arrangements concerning decisions to prosecute-or not prosecute, as the case may be-taken by the Secretary for Justice. There is, in my opinion, a strong case for publication of a protocol dealing with the circumstances when the Secretary for Justice becomes involved in a decision to prosecute and when and if external legal advice is sought.
By the Way|About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.
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