The Attorney General Dominic Grieve has been criticised for refusing to intervene in the case of Danny Nightingale, a soldier who pleaded guilty at a Court Martial recently to illegal possession of a gun and ammunition. Apparently Danny Nightingale’s solicitor intends to appeal, presumably against the sentence of 18 months detention. Grieve refused to intervene following a written request to do so from the Secretary of State for Defence, Philip Hammond.

A spokesperson for the Attorney said:

It would be inappropriate for the Attorney General to review either the decision to prosecute or comment on the appropriateness of the sentence. That is a matter for the Court Martial Appeal Court, in due course.

The criticism of Grieve’s decision has been, from some quarters, quite severe. The Daily Mail’s deputy political editor Tim Shipman, for instance, tweeted:

and there was this, from former MP Louise Mensch:

On ConservativeHome, some commenters have asked for Grieve’s resignation.

But this is indeed a matter for the appeal court. Grieve is quite right to refuse to intervene in a criminal prosecution because of political pressure.

Only a few years ago, many people were more than ready to criticise the “role” of the Attorney General. Quite a few people held the view that Lord Goldsmith had wrongly intervened in the “cash for honours” affair and that he was wrong to stop the prosecution of BAe Systems – a decision he didn’t actually take.

I didn’t go along with those criticisms at the time. But the general trend of opinion was that the Attorney was insufficiently independent of other ministers, and that his “role” should be reformed. In public consultation in 2007, according to Baroness Scotland,

Concern, in varying degrees, was expressed about the Attorney General’s role in individual criminal cases. Suggestions included clarifying the Attorney’s function of superintending the prosecuting authorities to provide expressly that it does not include any power of direction in individual cases.

Part of the then government’s response, after Baroness Scotland took over the Attorney’s job, was to make such a clarification. A protocol was signed between her and the prosecuting authorities the Attorney superintends: the Crown Prosecution Service, the Serious Fraud Office and the Revenue & Customs Prosecution Office.

At this point, someone might object to the fact that the military prosecutors aren’t party to this protocol. Fair enough, as a pedantic point. But that’s because the Attorney does not superintend the Service Prosecution Authority in the way he superintends the CPS or SFO – the SPA is not, unlike them, a “Law Officers’ Department”. He only has an arguably more distant, general oversight role in relation to the military prosecutor.

The protocol says (paragraph 4.3) that, apart from those cases where his consent to prosecution is required by law – not something that applies in this case

decisions to prosecute or not to prosecute are taken entirely by the prosecutors. The Attorney General will not seek to give a direction in an individual case save very exceptionally where necessary to safeguard national security

The principle is quite clear, then. In order to maintain prosecutorial independence, and the independence of the Attorney that was so devoutly wished by many commentators a few years ago, the Attorney does not intervene in individual cases on grounds other than national security. The principle so clearly applicable in civilian prosecutions cannot just be ignored in Courts Martial.

In any event, it would be quite wrong for the Attorney to decide to intervene in any criminal case because of pressure from any politician – and especially a member of the government. That would be exactly the sort of suspicion that made people concerned about the “role” of the Attorney a few years back. So Dominic Grieve was absolutely right to respond to the Secretary of State in the way he did – and criticism of him is wrong-headed.

What was wrong – and difficult to understand – is that the Ministry of Defence decided to publicise its Secretary of State’s letter to a minister asking him to do something that was clearly inappropriate. What was Hammond thinking? This incident reminds me of the 2006 case of Craig Sweeney (see para. 45 of this report), in which the then Home Secretary John Reid publicly asked the Attorney to intervene in sentencing; the Attorney’s spokesman quite rightly responded:

the Attorney will make a decision … purely on the merits of the case and not in response to political or public pressure.

Perhaps the civil service has abandoned the tiresome caution that the Prime Minister, going by his speech yesterday, is fed up of. Perhaps Philip Hammond decided to cut through all the awful risk-aversion. In any case, he has brought ill-informed criticism on the head of a ministerial colleague by his thoughtlessly publicised letter, instead of just getting MoD civil servants to talk first to their counterparts at the Attorney’s Office. They could have explained politely why the Attorney should not intervene.

I don’t think this silly, chaotic and entirely avoidable government spat should lead to any resignation. But if all proportion’s lost and there is one, it should be Hammond’s.

2012-11-20T17:19:09+00:00Tags: , , , |