THE ATTORNEY GENERAL'S CHAMBERS
15 February 1996
THE ROLE OF THE ATTORNEY GENERAL
The Attorney General is the First Law Officer of the Crown. He has a wide
range of functions but his two main roles are to act as the Government's Chief
Legal Adviser and to superintend the DPP and Director of the Serious Fraud
Office.
When he intervenes in criminal prosecutions he acts wholly independently of
Government and is not subject to collective Ministerial responsibility.
In acting as the Government's Chief Legal Adviser he gives his objective
analysis of the law as he sees it.
He does not superintend Customs and Excise prosecutions and was not
responsible for the Matrix Churchill prosecution. He took the initiative in
asking to see Prosecuting Counsel shortly before the trial in order to satisfy
himself that Counsel thought the prosecution a proper one.
The Attorney General's responsibility in the Matrix Churchill case was to give
advice on PII in his capacity as the Government's Chief Legal Adviser.
His advice followed the case law and the most authoritative opinion available
on the application of PII to criminal cases. This had been obtained from the
then Common Law Junior, Mr John Laws (now a High Court Judge) and Mr Michael
Kalisher QC (Chairman of the Criminal Bar Association 1991-93).
This opinion accorded with advice from the present Common Law Junior, Mr
Stephen Richards, and Mr Justice Laws' predecessors, Lord Justice Simon Brown
(now a Court of Appeal Judge) and Lord Woolf (now a Law Lord). The
application of PII to criminal cases has been confirmed by a series of cases
in the Court of Appeal, presided over by Lord Taylor (Lord Chief Justice).
A detailed note on the Attorney General's responsibilities is attached.
WHAT THE ATTORNEY GENERAL DOES
Introduction
The Attorney General is the First Law Officer of the Crown. He has a wide
range of functions but his two main roles are to act as the Government's Chief
Legal Adviser and to superintend the DPP and Director of the Serious Fraud
Office.
When the Attorney General intervenes in criminal proceedings he acts wholly
independently of Government and is not subject to collective ministerial
responsibility. When he acts as the Government's Chief Legal Adviser he
gives his objective analysis of the law, as he did when advising on PII in the
Matrix Churchill case.
The Attorney General's Department
The Attorney General is assisted by a second Law Officer, the Solicitor
General, and a small department, the Legal Secretariat to the Law Officers.
At present there are 12 lawyers in the department, generally seconded from
elsewhere in the civil service in much the same way that administrators are
seconded to the Cabinet Office. They cover civil, criminal, international
and Northern Ireland legal issues. Any matter coming to the Law Officers is
normally looked at first by one of these lawyers.
Intervention by the Attorney in criminal proceedings
In the past Attorneys General were directly responsible for prosecutions,
frequently conducting cases personally. Nowadays this work is done by a
number of prosecuting authorities but the Attorney General retains certain
powers. He is, for example, able to grant immunity from prosecution and stop
a case on indictment by issuing a "nolle prosequi".
The two main prosecuting authorities, the Crown Prosecution Service (CPS) and
Serious Fraud Office (SFO), are "superintended" by the Attorney General.
This is a statutory function and means that he is answerable for them in
Parliament.
This is not the case with Customs and Excise who are an independent
prosecuting authority. Unlike the CPS and SFO, they do not routinely tell
the Attorney General about cases of particular difficulty although he stands
ready to be consulted about a matter of law, propriety or public interest.
The relationship is described as overall purview or overview. Customs and
Excise are not superintended by the Attorney General and he played no part in
the conduct of the Matrix Churchill case, apart from giving advice to
Ministers on PII, until the meeting with Customs and Excise and prosecuting
counsel on 10 September 1992. This was called at his request to make sure
that they were satisfied that the prosecution was fair and proper. Contrary
to some reports he was not responsible for the prosecution.
Government and external lawyers
It would be quite impractical for all the Government's legal advice to go
through the Attorney General's Department. There are about 1,100 lawyers in
the Government Legal Service (not including the Crown Prosecution Service).
Each Department either has its own lawyers or uses lawyers in the Treasury
Solicitor's Department. They give advice to Ministers on their own
responsibility and refer issues to the Attorney General only if there is a
particular reason to do so.
The Government also uses independent external lawyers to give advice and
conduct cases in court. These external lawyers, usually barristers, are
either selected because they have the right expertise for a particular task
or are approved by the Attorney General on a continuing basis, after
consultation with the Bar and others.
The most important appointments on the civil side are of two "First Junior
Treasury Counsel", Common Law and Chancery, who work for the Crown on an
exclusive retainer. The two Treasury Juniors commonly become High Court
Judges at the end of their appointment as a mark of their outstanding quality.
The present Common Law Junior, Mr Stephen Richards, and his three
predecessors, Mr Justice Laws (now a High Court Judge), Lord Justice Simon
Brown (now a Court of Appeal Judge) and Lord Woolf (now a Law Lord) have all
given the Crown advice on public interest immunity on which the Attorney
General relied and which he quoted to the Inquiry.
The Laws/Kalisher/Ainley Opinion on PII is a good example of the way in which
the Attorney General uses specialist counsel as well as the Treasury Juniors.
In order to obtain the most authoritative Opinion possible on the application
of PII to criminal cases, instructions were sent in 1990 not only to the then
Common Law Junior, Mr John Laws, but also to Mr Michael Kalisher QC (Chairman
of the Criminal Bar Association 1991-93) and to Mr Nicholas Ainley, an
experienced junior counsel. They refined their Opinion five times before it
was signed at the beginning of 1992.
Treasury Counsel (currently 13) are also appointed to do criminal work. They
are based at the Central Criminal Court and work largely for the Crown
Prosecution Service. A large number of other counsel are also approved for
prosecution work both for the Crown Prosecution Service and other prosecuting
authorities, like Customs and Excise.
The leading prosecuting counsel in Matrix Churchill, Mr Alan Moses QC, was
nominated by Sir Patrick Mayhew (then Attorney General) at the request of
Customs and Excise. Junior prosecuting counsel until committal was Mr David
Calvert-Smith, one of the Treasury Counsel at the Central Criminal Court.
Mr Gibson Grenfell (now a QC), who then took over, was one of the "Standing
Juniors" approved for Customs prosecution work.
