Fragile line drawn between power and accountability

Crown Prosecutor Shane Drumgold leaves the Magistrates Court in Canberra on October. Picture: NCA NewsWire / Gary Ramage

“The prosecutor,” wrote US Supreme Court justice Robert M. Jackson in 1940, “has more control over life, liberty and reputation than any other person in America.”

Now, with Bruce Lehrmann lodging a professional misconduct complaint against ACT Director of Public Prosecutions Shane Drumgold SC and a board of inquiry chaired by eminent retired judge Walter Sofronoff KC examining the police and prosecution’s conduct in the proceedings against Lehrmann, Jackson’s warning about prosecutorial power is finally receiving close attention.

It is, after all, beyond doubt that merely being charged with a serious offence substantially damages a person’s standing, health and income, quite regardless of whether the charge leads to a conviction.

In this case, however, it is not just the circumstances surrounding the decision to press charges that are controversial; it is also the fact that after Lehrmann had pleaded not guilty, and the proceedings that might have allowed him to clear his name had been discontinued by the DPP, the DPP publicly reiterated his belief in Lehrmann’s guilt.

Whether the DPP acted properly is a matter for the official inquiries. But coming in the wake of Cardinal George Pell’s case, there must be a broader question about prosecutors’ accountability for the exercise of their responsibilities.

That question has distant roots. At its origins lies Pope Innocent III’s decretal in 1203 stating “the public interest requires that crimes do not remain unpunished”.

Rapidly absorbed into the canon law that was binding throughout Christendom, the decretal redefined justice from being primarily a private matter driven by the victim’s thirst for vengeance into a public responsibility of Christian rulers. And its impacts were magnified in 1215 when Innocent III effectively prohibited trial by ordeal, forcing rulers to develop new methods of adjudication.

In continental Europe, that quest led to the emergence of inquisitorial processes directed by officials, first from the church and then by the clerks of the nascent European states. The ultimate result, formalised by Napoleon Bonaparte in 1808 and imposed by his armies throughout the continent, was a legal architecture that separated policing, prosecution and adjudication, with each of those distinct public functions only very gradually escaping from direct political control.

In stark contrast, while serious crimes in England were tried in the king’s courts, the English state played virtually no role in prosecuting criminals, excepting in cases, such as treason, that directly affected the crown.

Rather, as late as the mid-18th century, more than 80 per cent of indictable offences were prosecuted by the crimes’ victims, who bore almost the entire burden of issuing a charge and pursuing the matter at trial.

As well as the direct costs that imposed on victims, unsuccessful claims – and over a third of criminal trials ended in acquittals – exposed the plaintiff to crippling suits for damages.

The deficiencies of relying so heavily on private action were well known: at the end of the 18th century, pioneering statistician Patrick Colquhoun estimated that just a tenth of the crimes committed in London were prosecuted.

But attempts at creating a system of public prosecution were vehemently opposed by parliament, which refused to vest sweeping discretionary powers in officials who might use them to pursue the crown’s opponents.

Thus, in 1534 the House of Commons rejected a proposal from Henry VIII to give “sergeants of the common weal” the responsibility for receiving complaints and instituting criminal prosecutions.

The Commons’ resistance was even fiercer in the 18th century, when the parliamentary elite basked in the humbling of tyrannical kings, and the restoration of “ancient liberties”, by the Glorious Revolution. The furthest parliament was willing to go, through legislation passed in 1752, 1754 and 1778, was to help defray the expenses victims incurred in pursuing convictions.

Not even the crime wave of the 19th century – with estimates of crime rates, which the government began to publish in 1805, showing that the number of crimes was rising seven times faster than Britain’s population – could stop eminent legal reformer James Fitzjames Stephen from declaring in 1863 that the risks to liberty inherent in the French system of public prosecution “would never be endured” by the English.

As a result, when parliament finally created the office of Director of Public Prosecutions in 1879, the office was granted little more than a watching brief, and even in the 1950s handled only 8 per cent of prosecutions involving indictable offences. Instead, following their initial establishment in 1829, the responsibility for conducting prosecutions increasingly fell on the new police forces – with very mixed results.

Already in 1855, when that trend was barely under way, attorney-general Sir Alexander Cockburn QC complained in parliament about “how (easily) policemen become overzealous in the conduct of prosecutions”, undermining the integrity of the judicial process.

And echoing Cockburn’s emphasis on the need for “incessant vigilance” over the police, John Phillimore QC MP, a leading jurist, bemoaned the decision to entrust policemen with a prosecutorial authority which ought to be “regulated as anxiously as the functions of the Judge himself”.

But it took until the damning findings of the 1981 Royal Commission on Criminal Procedure for a clear separation to be effected between investigation and prosecution through the formation of the Crown Prosecution Service.

Even then, however, the British tradition’s longstanding concerns about the potential abuse of prosecutorial powers were apparent in judicial decisions that sought to ensure the CPS’s accountability, not least by providing far-reaching rights of judicial review.

Whether those rights suffice is contentious. What is certain is that they have no equivalent in Australia. It is true that the High Court made some helpful, if limited, steps in the direction of prosecutorial accountability in R v Mallard (2005); but the overwhelming thrust of law and policy has been to shield prosecutors from independent scrutiny to an extent that appears entirely anomalous compared with similarly structured legal systems, such as New Zealand’s.

It is therefore difficult to see how the public can be confident that the guidelines binding public prosecutors are being rigorously implemented.

And it is even harder to be confident that public prosecutors constantly bear in mind Sir John Simon’s famous dictum, formulated all the way back in 1922, that “The business of an advocate who is prosecuting a criminal is to be in the strictest sense a Minister of Justice” – which implies that “Always the principle holds, that Crown counsel is concerned with justice first, justice second and conviction a very bad third”.

A century later, Simon’s injunction retains all of its validity. With the spirit of oppression as virulent as it has ever been, nothing can be more vulnerable, more valuable and more intensely worth protecting than the thin, eternally fragile, line that prevents prosecution from degenerat­ing into persecution.