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There are a number of external safe-guards and checks and balances. First of all, there is this Council. The ability of this Council to question an Attorney General about prosecutorial decisions is a valuable and significant safeguard. Of course, I can understand the frustrations of members when I decline to go into the reasons for a particular decision. Let me say this, I, too, have experienced frustration in not being able to answer publicly the barrage of criticism, to which I and my Department have been subjected over decisions taken in certain cases. However, there are sound reasons of public policy why an Attorney General cannot discuss his decision to prosecute, or not to prosecute, a particular case.
Mr President, the only forum, I repeat, the only forum, in which a person's guilt or innocence should be assessed is in a court of law, where that person has all the safeguards provided by the criminal law to ensure that he or she has a fair trial. Any discussion of the correctness of a decision to prosecute, or not to prosecute, a particular person is likely to raise the question of whether there was sufficient evidence to prosecute, which is just a step away from the question whether he or she was guilty. But, as I have said, that question is one exclusively for our courts.
Where a decision has been taken not to prosecute a particular case, there are other reasons why an Attorney General should not discuss the basis of that decision. To make public the grounds on which the evidence was judged to be insufficient to secure the likelihood of a conviction would, in the first place, breach the confidentiality of police reports and statements taken by the police from potential witnesses. Disclosure of the reasons for not believing prospective witnesses might require revealing the criminal record of those witnesses. The same reasons would apply to making public details about the defendant with the result that there would be a public "trial" of the potential defendant without his or her having all the safeguards that are an integral part of a criminal trial in open court.
Mr President, I make no apology for repeating the explanation that I gave in a letter to the Chairman of the House Committee in May 1993, and which I gave to members of this Council in answer to a question put to me in April of last year. In explaining why decisions to prosecute or not to prosecute should not be discussed I gave the following three reasons.
(a)
(b)
If the defendant has been prosecuted but acquitted, it cannot be in the interests of justice and fairness for that acquittal or its reasons to be debated in public.
If the defendant has been prosecuted and convicted, it would hardly be proper to discuss whether the conviction was correct or not. If the defendant felt he should not be convicted, he would appeal.