THE ATTORNEY-GENERAL’S POWERS OVER CRIMINAL PROSECUTION

• Date: 01 December 1996
• Author: M SORNARAJAH
• Citation: (1996) 8 SAcLJ 47
• Published date: 01 December 1996

The decision of Chief Justice Yong Pung How in PP v Norzian bin Bintat1 raises a question of fundamental importance as to the extent of the power of the Attorney-General over criminal prosecutions in Singapore. In that case, the Chief Justice upheld the power of the court to compound a criminal case at the behest of the complainant despite the objection of the Public Prosecutor. He held that, though the Public Prosecutor had supervisory powers over the prosecution, “the decision whether to allow composition has always been and still is a judicial decision”.2 In his view, “a compoundable offence may be compounded by the victim even if the prosecution was mounted by the Public Prosecutor and the Public Prosecutor objects to the composition“.

The decision calls for a study of the power of the Public Prosecutor, an alter ego of the Attorney-General, over criminal prosecutions and raises especially, the issue as to whether the Public Prosecutor can countermand a complainant’s consent to compound an offence and insist on the trial proceeding despite such consent. The Chief Justice made a comparative survey of the authorities in India, Malaysia and Singapore in arriving at the decision. Since the question deserves a wider comparative study, particularly of the power of prosecution by the Attorney-General, this article looks at the position in several other Commonwealth jurisdictions as well. It begins with a statement of basic principles affected by the area of law.

1. The Unemendability of Crime

In defining a crime and distinguishing it from other wrongs like torts or breaches of contracts, Kenny, in his Outlines of Criminal Law, identified “emendability” as the single criterion which distinguished crimes from other wrongs.3 A crime was unemendable because a crime was directed not only at the victim but at society at large and it was therefore not possible for the victim alone to forgive the offender either through mercy or because of financial rewards provided for such forgiveness.4 The public interest in the crime as well as the social objectives such as deterrence of similar behaviour further justify crime being treated as unemendable.

But, there do arise circumstances in which there is no social interest served in the prosecution of the offender. In such circumstances, theoretically, the state has the power to grant a pardon to the offender, permit the

composition of the offence or decide not to prosecute. The issue is in which agency of the state the power resides. Is the power vested in the Attorney-General or in the judicial organ of the states? More specifically, can the Attorney-General insist that the criminal prosecution he has initiated be continued, when the offence is compoundable, the victim and the offender are prepared to compound it and the judge hearing the case believes that the case should be compounded? It is necessary to begin with the position in English law as to where the power resides. The model of the powers of Commonwealth Attorneys-General are provided for in the office of the Attorney-General in England. It must, however, be pointed out that there is no provision for compounding offences in English law as there is in the Criminal Procedure Codes of India, Singapore and Malaysia.

2. The English Law:

The office of the Attorney-General in the Commonwealth jurisdictions is modelled on the office as it evolved in England.5 There is little doubt that the office both in Singapore and Malaysia are based on the office as established in English law, without the political connotations which accompany that office in England.6 In England, the Attorney-General has a dual function, both as a political figure who is a member of the cabinet and as the principal law officer of the Crown. It has come to be established that the two roles should not be mixed and that the holder of the office should not be influenced by political considerations in exercising his legal functions as the law officer of the Crown. The discretion he exercises has been described as “quasi-judicial”, the term meaning not the exercise of a power which could be reviewed by the courts but the exercise of a power akin to a judicial power, requiring detachment and neutrality in its exercise.

Under English law, it is well settled that “in matters which concern the public at large, the Attorney-General is the guardian of the public interest”.7 This is particularly so in the area of criminal prosecutions. The decision to prosecute and maintain the prosecution are prerogative powers which reside in the Crown and are exercised by the Attorney-General. There is no authoritative statement as to the factors to be taken into account in exercising this discretion. However, Lord MacDermott, in a Hamlyn Lecture, has identified some of the factors that should affect the exercise of this discretion.8

Though efforts have been made to subject the discretion over prosecutions exercised by the Attorney-General to judicial control, these have generally resulted in failure. In Connelly v DPP,9 the position of the DPP was that if there was an abuse of the power to prosecute, this abuse was for the Crown to correct and not a matter for the courts. An abuse of the process of private prosecutions could be corrected through the Attorney-General entering a nolle prosequi. Lord Devlin responded to this proposition thus:

“The fact that the Crown has, as is to be expected, and private prosecutions have (as is also to be expected for they are usually public authorities), generally behaved with great propriety in the conduct of prosecutions has up till now avoided the need for any consideration of this point. Now that it emerges, it is seen to be one of great constitutional importance. Are the courts to rely on the executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the executive of the responsibility for seeing that the process of the law is not abused”.

In Lord Devlin’s view, the matter concerned separation of powers and became one of constitutional significance, involving individual liberties.10 The courts, in his view, become the bulwark against the abuse of the executive discretion to prosecute and, like any other executive discretion, the possibility of the control of the discretion of the Attorney-General to prosecute remains, though confined to extreme circumstances of abuse.

But, if any doubt existed that the speech of Lord Devlin recognized the existence of a wide power of controlling the institution of prosecutions in the courts, it was soon dispelled in DPP v Humphreys11. Viscount Dilhorne, himself a former Attorney-General, referring to the power of the courts said:

“If there is the power to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances — a judge must keep out of the arena. He should not have to appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not

be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval”.

Lord Salmon was more forthright as to whether the judge had any discretion in the matter of criminal prosecutions. He observed:

“…a judge has not and should not appear to have any responsibility for the institution of prosecutions nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved.”

The power of the courts is kept alive though confined to the most exceptional cases.12 An eminent expert on the power of Attorneys-General in English law, Professor Llewelyn Edwards, referring to the two cases, has observed:13

“My reading of the two English leading cases, Connelly and Humphrys, lends no colour to the proposition that there exists a general accountability to the courts rather than to Parliament for the manner in which the Law Officers of the Crown and their agents exercise their discretionary powers in the field of prosecutions. No such claim can reasonably be deduced from the very broad statements attributed to those Lords of Appeal who have espoused the abuse of process principle as a natural corollary to the inherent power of a judge to control the procedure of his court. The illustrations used to exemplify the principle, as well as the results of its application in the cases concerned, mark the very exceptional circumstances in which it would be constitutionally proper for the court to impose its discretion over that of the Crown and its representatives.”

In English law, the power of the Attorney-General to institute and continue criminal proceedings is almost absolute14 and is only subject to interference

by courts in extreme circumstances of abuse of process.15 It is recognized that the institution and maintenance of such prosecutions is an executive function which should not be subjected to the control of the courts. At the same time, there is a need to reconcile this proposition with the inherent power of the court to prevent the abuse of its process and the need for the protection of individual rights in the face of an abuse of executive powers. The English courts have found the balance in asserting the general...