New Zealand Law Commission
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28 IN THIS CHAPTER we make proposals to improve control and
accountability in the criminal prosecution system. In the Discussion Paper we noted the present informality of the existing system, which is characterised by discretions at all stages of the investigation and prosecution process. The impact these decisions can have on an individual’s liberty and well-being reinforces the importance of control and review of these powers. In assessing reform options there are a number of competing aims that must be appropriately balanced, including:
• the need for independence in decision-making. Too much control can undermine independence and result in the appearance of political influence or even bias;
• the need for uniformity and consistency of prosecution decisions; and
• the need for transparency in the decision-making process. This in turn requires a mechanism to ensure access to information for those involved in the prosecution system.
Our preliminary view was that the legal and administrative mechanisms for controlling and reviewing prosecution decisions were often weak or unclear or were not consistently applied.
29 We now set out our concluded views and our recommendations to improve control and accountability. The reform matters considered are:
• Clarifying and formalising the roles of the Attorney-General, Solicitor-General, and Ministers in charge of prosecuting agencies.
• Development of a Crown prosecution monitoring unit within the Crown Law Office.
• The jurisdiction of the Police Complaints Authority.
• The extent of judicial review of prosecution decisions.
• Review of the investigation and prosecution functions of the Serious Fraud Office (SFO).
• The introduction of a comprehensive criminal disclosure regime. This reform is closely related to our proposed reforms of the preliminary hearing regime. Accordingly, preliminary hearings are discussed in chapter 7 and criminal disclosure in chapter 8.
30 The Attorney-General and the Solicitor-General are referred to collectively as the Law Officers of the Crown. In this section we discuss the constitutional roles of the Law Officers as overseers of the prosecution system. We consider whether the existing constitutional conventions concerning the Attorney-General are consistent with independence and accountability. We also consider whether formal powers of supervision should be delegated to the Solicitor-General from the Attorney-General. Finally, we query whether summary prosecutions should all be brought in the name of the Crown.
Who should have ultimate responsibility for prosecution policies and decisions?
It is the Attorney-General’s duty to ensure that the criminal law is enforced in a just and proper manner. [The Attorney-General] is responsible for the ultimate control of all criminal prosecutions undertaken by the Crown.
31 The Discussion Paper asked whether it was ever appropriate for the government or the Attorney-General to influence prosecution policies and asked who should have ultimate responsibility for prosecution policies and decisions.
The constitutional position of the Attorney-General and Solicitor-General
32 The position of Attorney-General, like that of the Solicitor-General, is a prerogative appointment.
It is an established constitutional practice in New Zealand that the office of Solicitor-General is non-political ... The Attorney-General in New Zealand is a Member of Parliament and a Minister who, almost invariably, is a member of Cabinet holding other policy portfolios in addition to Law Officer responsibilities.
33 The Attorney-General has four primary areas of responsibility, as the:
• principal legal advisor to the Crown;
• named plaintiff or defendant representing the Crown in all proceedings brought by or against the government;
• principal law officer; and
• link between the executive government and the judiciary.
The Attorney-General’s overriding responsibility in exercising all four functions is to act in the public interest. Acting in the public interest clearly means acting free of political influence.
34 The English Court of Appeal in Attorney-General v Blake and Anor outlined the role of the Attorney-General as the guardian of the public interest:
In connection with the criminal law, the Attorney-General historically has had, and still has, both statutory and inherent powers of great importance involving the enforcement of the criminal law, which involve him having to make decisions of a highly sensitive nature. He has the overall responsibility for the enforcement of the criminal law.
Although in England the Attorney-General is not a member of Cabinet, Lord Woolf’s comments are equally applicable to the role of the New Zealand Attorney-General in relation to the criminal law.
35 It is the role of the Attorney-General (with the Solicitor-General) to supervise all criminal prosecutions, both public and private. Because of the importance of impartiality generally in the criminal law, and the profound effect prosecution decisions may have on individuals, it is essential that the Attorney-General supervises prosecutions free of political influence.
The strongest of the relevant conventions concerns the Attorney-General’s role in prosecuting criminal offences, and prohibits the Attorney-General from acting on cabinet instructions. Prosecution decisions must be made by the Attorney-General in the public interest – without regard to the interests of the government. Thus, the prosecution of the criminal law is not discussed at cabinet, although the Attorney-General may consult with cabinet colleagues or other members of the government in determining the public interest. Unlike other ministerial decisions, the Attorney-General’s prosecution decisions are not subject to the doctrine of collective responsibility.
36 Section 9A of the Constitution Act 1986 provides that the Solicitor-General may perform a function or duty imposed, or exercise a power conferred, on the Attorney-General. It is an established constitutional convention that the Solicitor-General is
a non-political appointment, because independence from government is essential to the proper exercise of the Solicitor-General’s duties.
37 By long-standing convention successive Attorneys-General have generally not personally undertaken prosecution decisions or Law Officer decisions in relation to criminal proceedings, but have left them to the Solicitor-General. The reason for the convention is to prevent the administration of the criminal law becoming a matter of political decision-making. So the Solicitor-General, as head of the Crown Law Office, is responsible for supervision of criminal prosecutions. This includes granting consent to the commencement of certain types of prosecution, entering stays of proceedings, granting immunities from prosecution (including in relation to extradition and criminal mutual assistance), and granting leave to prosecute under various statutes. It also includes oversight of the work of Crown Solicitors.
38 Instances where the Attorney-General, rather than the Solicitor-General, becomes directly involved in decisions in individual cases are few, but do sometimes occur. These are usually cases in which the public interest factors are complex and unclear, for instance, where important international consequences might follow. In such cases, political considerations are almost unavoidable. For example, in 1991 a person wanted in connection with the bombing of the Rainbow Warrior was arrested in Switzerland. The Minister of Justice decided not to seek extradition. The Attorney-General then had to decide whether or not outstanding charges in relation to the bombing against other French nationals should be stayed. Because of the national-interest considerations involved and the international flavour of the issues, the then Attorney-General, the Honourable Paul East, decided to make the decision personally in these terms:
The decision to stay the charges was one which, once taken, the Attorney-General could reasonably be expected to justify in Parliament. The decision to intervene in the Rainbow Warrior case was one which had to be exercised personally and independently. I did not consult Cabinet in making the decision, but rather considered the merits of the case without political pressure. I did not regard pressing ahead with the prosecution as being in New Zealand’s national interest ... I therefore signed stays of proceedings in respect of the information laid against the other defendants.
39 In our view, it is entirely proper for the Attorney-General to direct prosecution policies, so long as that is done in the public interest and free from improper political influence. The Attorney-General has the constitutional responsibility of supervising the criminal prosecution system, and is ultimately responsible to Parliament for the functioning of the prosecution system. We see no need to replace or alter the current system which has been proven in its performance. Constitutional convention dictates that generally the Attorney-General will not personally exercise decisions related to the prosecution of individual cases. However, we also see that in certain cases it is important that decisions are taken personally by the principal Law Officer, not by the Solicitor-General. The present system ensures flexibility but does not encourage use of the power by the Attorney-General for political purposes.
40 Where the Attorney-General issues prosecution policy guidelines, or makes a decision in an individual case (for example, a stay of proceedings or immunity from prosecution) the policy guidelines or decision in an individual case should be publicly disclosed. Disclosure will ensure that the policies and decisions made by the Attorney-General are amenable to public scrutiny and, ultimately, to public accountability in Parliament. Where it is necessary in the interests of justice, the Attorney-General should be permitted to postpone making a decision in an individual case until the case has been disposed of.
Ministers of the Crown and prosecution policies
41 Having recognised that the Attorney-General is responsible for the supervision of the prosecution process the question now arises: what is the proper role for Ministers, other than the Attorney-General, who are in charge of departments or agencies that undertake prosecutions?
42 The system of parliamentary government requires that Ministers are responsible for controlling their departments and associated agencies, and are responsible to Parliament for the performance of the same departments and agencies.
43 There are, however, important exceptions in the cases of the SFO and police, who enjoy a large degree of independence from both their responsible Minister and the Attorney-General. Our comments do not affect those bodies. Other government prosecuting agencies do not have the statutory autonomy the SFO clearly has, or that the police appear to have. The practice for other prosecuting agencies is that the relevant Minister will be required to answer questions in Parliament relating to the law enforcement decisions of the agency. However, the agencies are free from direct executive interference by their Minister in individual cases.
44 Importantly, a Minister can impose administrative and resource requirements upon a prosecuting state agency, which will have flow-on effects in relation to prosecution policies.
45 We emphasise the importance of the prosecution system being, both in appearance and reality, free from political influence. It is therefore inappropriate for a Minister, or the government as a whole, to dictate prosecution policy. But some operational or administrative directives from a Minister are appropriate, notwithstanding they may have an impact on prosecution activities. Prosecuting agencies remain clearly responsible to the relevant Minister for the overall performance of their functions in terms of budgets and purchase agreements. But all prosecuting agencies are ultimately responsible for their prosecution functions to the Attorney-General, rather than their Minister. Ministers should never have any direct influence on prosecution policies; but indirect influence by means of budget agreements and purchasing arrangements is unavoidable and must be accepted.
46 It is never proper for a Minister to try to influence the exercise of the prosecution discretion in an individual case. Decisions about whether or not to prosecute in individual cases must rest with
the prosecuting agencies, who are ultimately responsible to the Attorney-General. This is vital to ensure the independence of
the prosecution process from the political process.
Should oversight of the prosecution function be formally delegated by the Attorney-General?
47 We have concluded that prosecution is a state function that requires clear lines of control and accountability. Given that the Attorney-General has ultimate responsibility for the Crown’s prosecution processes, should the responsibility for overseeing the prosecution function be formally delegated to the Solicitor-General, and then down to the Commissioner of Police and the chief executive officers of government prosecuting agencies? In our Discussion Paper we considered this to be appropriate in order to promote control and accountability. We also noted difficulties that might be caused by formal delegation.
48 Most submissions indicated a pragmatic view; there was not a problem which made formal delegation necessary.
49 Currently, day-to-day decisions concerning the prosecution system are made by the Solicitor-General. This is as much the result of practicality as it is the need for the appearance of independent and politically neutral administration of the justice system. However, ultimate constitutional responsibility for the prosecution system remains clearly with the Attorney-General. Indeed, most of the powers of the Solicitor-General are co-extensive with the Attorney-General’s, as a result formerly of section 4 of the Acts Interpretation Act 1924 (Repealed) and now of section 9A of the Constitution Act 1986.
50 Given that the Law Officers have overarching authority over the prosecution system, it is appropriate for them to issue prosecution guidelines. It may be appropriate for the Guidelines to reiterate the fact that all prosecutors bound by the Guidelines are ultimately responsible for the exercise of their prosecution function to
the Attorney-General. Also, to the extent that it comes to the attention of the Law Officers that there are difficulties in
the operation of the prosecution system, such as unevenness
in prosecution patterns throughout the country, or systemic failure to comply with disclosure obligations, it is their right and responsibility to intervene to correct such problems.
51 It is significant that the already large number of prosecuting agencies is increasing, because of further fragmentation of Crown functions, resulting in the creation of increasing numbers of quasi-Crown entities with responsibilities to prosecute. This increase makes it even more important that the agency with power or responsibility to prosecute under a statute is aware that ultimately it is responsible to the Attorney-General for the exercise of its prosecution function, and not to the responsible Minister.
52 We conclude that there is no need for formal delegation of the power to oversee the prosecution system. The convention that ensures the Attorney-General exercises prosecution powers independently and free from political influence is a strong one, and works well in practice. We see no compelling reason to dilute the responsibility and authority of the Attorney-General by formal delegation. Indeed, it is important for the Attorney-General to retain the ultimate authority over the prosecution system. Parliamentary accountability is only meaningful so long as the Attorney-General retains real authority over the prosecution process.
Should all prosecutions be in the name of the Crown?
53 The Discussion Paper suggested (paragraphs 430 and 431) that the current practice of commencing all prosecutions with an information in the name of the individual informant, such as a police officer, was not satisfactory. In order to reflect truly the public nature of prosecution the Commission asked whether all prosecutions should be conducted in the name of the Crown.
54 The Summary Proceedings Act 1957 sets out the form in which informations must be sworn. Commonly, one police officer is given the task each day of swearing all informations going to a particular court that day, whether he or she has real knowledge of the offence and offender or not. This is inconsistent with the information itself, which requires the officer to swear on oath that he or she has “just cause to suspect and do suspect” a named person of committing a particular offence.
55 In New Zealand Police Court Based Resolution Project: Process Design the police suggest dispensing with the necessity of requiring a constable to swear a summary information before a judicial officer. The report also proposes a system of electronically generated summary informations. We agree with this proposal provided that the document initiating the prosecution sets out clearly the name of the person who laid the charge. An amendment to section 15 of the Summary Proceedings Act 1957, that requires informations to be filed in the prescribed form and upon oath, would be required to implement this proposal.
56 The Commission recommends:
• that summary proceedings should be brought in the name of the prosecuting agency (eg, Inland Revenue Department v X, or Police v X) rather than the name of the individual swearing an information, provided that the information contains the name of the person who made the decision to prosecute; and
• that indictable proceedings should continue to be prosecuted in the name of the Crown (R v X).
57 One way of ensuring control and accountability in the prosecution system is to provide adequate means for review of prosecution decisions. The Police Complaints Authority is a specialist body that already performs the important task of holding the police accountable for their actions and decisions. However, the jurisdiction of the Authority to accept complaints is not limitless, and for good reason. We have considered the ability of the Authority to act as an independent check upon police action by examining its jurisdiction to investigate complaints. No good reason has been suggested to us to expand the present jurisdiction of the Authority, or how it determines whether or not a complaint is justifiable. Sufficient avenues for review and independent scrutiny exist both through the Authority, and by virtue of the High Court’s power of judicial review. Our present observations are to be considered in the light of the current review of the Police Complaints Authority being performed by the Hon Sir Rodney Gallen QC.
58 Section 12(1)(a) of the Police Complaints Authority Act 1988 empowers the Authority to receive complaints –
(i) Alleging any misconduct or neglect of duty by any member of the police; or
(ii) Concerning any practice, policy, or procedure of the police affecting the person or body of persons making the complaint in a personal capacity ...
In the course of taking action in respect of any complaint, the Authority may investigate any apparent misconduct or neglect of duty by a member of the police, or any police practice, policy, or procedure, that appears to the Authority to relate to the complaint, notwithstanding that the complaint itself does not refer to that misconduct, neglect, practice, policy or procedure.
59 The Authority believes that the discretion to prosecute is an operational decision of the police. As a consequence, it will not generally review prosecution decisions:
unless there is evidence of material bias, bad faith, failure to carry out an adequate investigation which might have affected the exercise of the discretion, or some other convincing reason giving rise to possible misconduct or neglect of duty.
The Authority is also firmly of the view that it should not have a general power to review prosecution decisions of the police. However, some cases investigated by the Authority suggest that the Authority sees itself as having some discretion to review cases falling outside its stipulated criteria, where it considers the need arises. This is illustrated by the example given in the Authority’s 1997 Annual Report:
... cases involving death in motor accidents are often the genesis of bitter criticism of Police either for prosecuting or not prosecuting. ... One such case which was particularly distressing and demanded the most compassionate and sensitive approach was this. A 13-year old girl was killed while cycling to school. This was the tragic result of being involved in a collision with a motor vehicle. Police made a decision not to prosecute the driver of the vehicle. The decision was made some four months after the event. It was made by a senior officer after a legal opinion was obtained.
The decision not to prosecute was not accepted by the parents of the young victim. The result was a private prosecution alleging the driver was guilty of careless driving causing death. After a two-day hearing the charge was dismissed ...
Some seven months after the hearing a complaint was made to the Authority by Solicitors acting for the parents ... The primary complaint to the Authority was the failure of Police to prosecute. Linked to this was the claim that the Police investigation into the death was not made out professionally or competently. The complaint ... also raised the concern that five days after the tragedy a local radio station announced that there would be no prosecution arising from the accident ... Naturally [the parents] took the view that there could not have been an adequate investigation in a such a short time on which to base this decision not to prosecute ... because of the distress this family was obviously continuing to suffer the complaint was accepted for investigation ... The Authority concluded that in fact there had been a full and professional investigation and the decision not to prosecute was reached only after a most careful consideration.
60 After considering submissions, the Commission recommends no change to the Police Complaints Authority Act 1998. The Police Complaints Authority should not be empowered to make recommendations on pending prosecutions to the Commissioner of Police. However, neither should the Authority be precluded from investigating complaints of the kind outlined above, which it currently, and justifiably, considers within its ambit. No legislative clarification is needed to enable it to deal with such complaints.
61 The Discussion Paper (paragraphs 219 to 232) suggested that judicial review of decisions to prosecute, or more particularly decisions not to prosecute, was arguably already available for proceedings in a District Court in the light of C v Wellington District Court and R v Bedwellty Justices, ex parte Williams. However, it is very rare that the High Court will use its civil jurisdiction to intervene in the exercise of the court’s criminal jurisdiction by way of judicial review under the Judicature Amendment Act 1972 and the High Court Rules. The Discussion Paper suggested that such judicial review would be exceptional and at most available only if no reasonable agency could have made such a prosecution decision.
62 The Discussion Paper envisaged that judicial review would be a principal form of accountability, and that the majority of requests for judicial review would be of decisions not to prosecute, rather than of decisions to prosecute. The Commission proposed no general legislative intervention to encourage judicial review of prosecution decisions and suggested that it might best be left for the courts to develop.
63 The Discussion Paper also asked (paragraph 435) whether, in principle, all prosecution decisions should be judicially reviewable. If so, it proposed that all prosecuting agencies should be amenable to judicial review on the same footing. In particular, it proposed (at paragraph 220) that section 20 of the Serious Fraud Office Act 1990, which exempts the prosecution decisions of the SFO from judicial review, be reviewed in light of the C v Wellington District Court and Bedwellty cases.
64 The issue of judicial review of prosecution decisions perhaps attracted more adverse comment than any other proposal in the Discussion Paper. There were fears expressed that it would become a routine tactic in criminal cases, placing another obstacle in the path of prosecutions. Several respondents implied that judicial review was not now available. Either way, it is certainly not used now as a routine tactic. The Department of Labour believed that any move to open up legal avenues for external review should be resisted. The police were of a similar view.
65 After careful consideration the Commission considers that the state of the law of judicial review as it relates to prosecution decisions needs no amendment. The Commission is mindful of the necessity to ensure that the use of judicial review as a delaying tactic does not become routine as it might if judicial review of decisions to prosecute became commonplace. The Commission considers that the criminal courts already have the capacity to control proceedings before them, as by the court’s inherent power to prevent abuse of its process.
66 The Commission recommends no change to the law relating to judicial review of prosecution decisions. Further, section 20 of the Serious Fraud Office Act 1990 does not need to be repealed; it is noted that the section already seems to allow for decisions of the Director not to prosecute to be reviewed.
67 In the Discussion Paper (paragraphs 362 and 363) we proposed increased oversight of the prosecution system by the Solicitor-General. However, the ability of the Solicitor-General (and alternatively or ultimately, the Attorney-General) to oversee the prosecution system effectively is dependent to a large extent upon the mechanisms in place for supervision and control of the system. With that in mind, the Discussion Paper suggested that a small unit within the Crown Law Office should be established, under the control of a Deputy Solicitor-General. Its role would be to monitor the operation of the prosecution system, and in particular to ensure national standards of transparency and consistency in prosecution decision-making.
68 Having revisited the issue, we again stress the importance of this reform proposal. It is significant that the already large number of prosecuting agencies is increasing, because of further fragmentation of Crown functions, resulting in the creation of increasing numbers of quasi-Crown entities (such as the Accident Compensation Corporation, and Health Benefits Limited). This increase makes it more difficult for the Solicitor-General (on behalf of the Attorney-General) to oversee the entire prosecution system and ensure quality and consistency of prosecutions. Therefore, it is more important that a unit within the Crown Law Office be responsible for assisting the Solicitor-General in this role. There was support for this idea both in submissions and in meetings held with prosecuting agencies.
69 The Commission therefore recommends that the Crown Law Office, through whatever means the Solicitor-General thinks appropriate, should develop mechanisms that allow it to:
• assist all prosecuting agencies with the development of compliance and prosecuting guidelines and ensure that their practices are consistent with the Guidelines; and
• review the Guidelines to ensure their relevance to summary prosecutions.
70 The SFO occupies a unique place in New Zealand’s criminal prosecution system. It is a government-funded entity established by the Serious Fraud Office Act 1990, solely for the purpose of combating serious or complex fraud. The Director of the SFO has wide powers to investigate such fraud and to take criminal proceedings against those suspected of committing it. The Attorney-General is responsible for the SFO in terms of the State Sector Act 1988, but the Director is specifically exempted from responsibility to the Attorney-General for decisions to investigate or prosecute. The Commission has examined the role and structure of the SFO to see whether this independent creature of statute is properly accountable for its prosecution decisions and processes.
71 SFO investigators and forensic accountants undertake investigations where serious fraud is suspected. An in-house prosecutor is assigned to an investigation, but his or her role is to give advice on any legal issues arising in the course of the investigation and to provide a report to the Director on the legal aspects of the case, the strength of the evidence, and what charges, if any, in their opinion could or should be brought in the particular matter. Separate reports are supplied to the Director by the investigators and the forensic accountants.
72 The Director, assisted by the head of the Investigations branch and the head of the Prosecutions branch, reviews the reports and determines whether or not a prosecution will be taken, and if
so the charges to be laid. A case may be reviewed several times until the Director is satisfied that there is sufficient information to determine whether or not to proceed with a prosecution. In particularly complex cases a panel prosecutor may be involved
in advising on the case. The Guidelines are used by the Director in arriving at decisions on whether or not to prosecute, and are also used by the panel prosecutors.
73 The Director of the SFO does not have the power to file an indictment. Any indictment to further a SFO prosecution must be filed either on behalf, and in the name, of the Solicitor-General or by a Crown Solicitor. Further, no one other than a member of the Serious Fraud Prosecutors’ Panel may act for the SFO in any SFO prosecution. Appointment to this panel is by the Solicitor-General after consultation with the Director of the SFO. Panel members operate under a set of instructions prepared by the Solicitor-General and their fees for conducting trials are approved and paid by the Crown Law Office. The SFO’s own lawyers act on some interlocutory matters such as name suppression and bail applications and may also act as junior counsel to a panel prosecutor if appropriate.
74 It is evident from this that the SFO cannot act as a law unto itself. Any prosecution brought by it will be subject to the oversight of the Solicitor-General once the defendant has been committed for trial. In the Commission’s view this accords with the constitutional role of the Solicitor-General and is particularly necessary given the SFO’s statutory independence from the Attorney-General.
75 The Commission does have a concern relating to the limited degree of control a Solicitor-General can exercise over the Serious Fraud Prosecutions Panel. It seems clear that section 48 of the Serious Fraud Office Act 1990 was intended to ensure that the SFO has independent senior counsel experienced in fraud cases and that its cases are handled objectively. However, it is the Director of the SFO who decides which panel prosecutor should handle each case and this gives rise to the possibility of patronage. It is stressed that the Commission’s concern is with the system itself, and the use that might be made of it at some future time if a difference were to arise between a Director of the SFO and a Solicitor-General as to proper prosecution practice. The danger is that a lawyer/client relationship could develop between the Director and panel prosecutors resulting in a loss of objectivity and a distancing of the SFO from the practices approved by the Solicitor-General. We note that the Solicitor-General has the power to remove a case from the authority of a Crown Solicitor. In practice this means a high degree of oversight, and where necessary would enable the Solicitor-General to direct a particular trial to another Crown Solicitor or to a member of the Crown Solicitor’s prosecution panel. No such ability to direct or control exists in relation to the SFO.
76 The Commission recommends that section 48(3) of the Serious Fraud Office Act 1990 be amended to read:
(3) No proceedings relating to serious or complex fraud shall be conducted on behalf of the Director except by a member of that panel selected by the Solicitor-General after consultation with the Director.