THE ATTORNEY‐GENERAL'S CONSENT TO PROSECUTIONS
| Published date | 01 July 1972 |
| Date | 01 July 1972 |
| Author | Bernard M. Dickens |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02353.x |
THE
ATTORNEY-GENERAL’S
CONSENT
TO
l’.ROS
E
C
UTIONS
A
FEATURE
of several sensitive areas of possible criminal law-enforcc-
nient affecting public affairs is that statute provides that no procced-
ings may be instituted except
‘‘
by,
or
with the consent of, thc
Attorney-General.” More recent developments in this respect
include the Theatres Act 1968 concerning proceedings
for
instancc
for obscenity and provocation of breach
of
the peace, the Prices and
Incomes Acts 1966 and 1968 concerning proceedings against
employers and trade unions as such, and the Criminal Justice Act
1967 concerning prosecutions of newspapers for publication
of
improper reports
of
committal proceedings.
Early in 1970, however, the Attorney-General’s discretion uridcr
the Official Secrets Act
1911
became
a
cause
of
particular concern
in thc context of the position of Members of Parliament. The
Owen
case appeared to suggest that there was no privilege enjoyed, but in
the later case concerning the Nigerian war brought against
The
Sunday Telegraph,
its editor,
Mr.
Brian Roberts, and
Mr.
Jonathan
Aitken. some selectivity was suspected.
Mr.
Hugh
Frascr
1f.l’.
openly stated that he received
and
published the document in
qucs-
tion but he was not charged, causing a leader in
The Times
to
observe that, if its view
of
the matter was correct, the Attorney-
General
“
made
a
most serious error
of
judgment
”
?
in seeming to
award
a
Member of Parliament
a
privilege of this nature not avail-
able to, for instance,
a
newspaper editor. In an earlier leader on
the discretion to enforce the 1911 Act
The Times
stated that
“
A
dispensing power to remit
or
exercise
a
law which
is
habitually and
necessarily broken in the ordinary course
of
public business by cvcry
member
of
every government is anathema to the British Constitu-
tion,” which revived memories of the Duncan Sandys case in 1938.
A
Selcct Comniittee investigating the Attorney-General’s conduct
under the 1911 Act in that case found that the decision undcr his
statutory discretion
“
must be arrived at upon principle and not
on
grounds
of
expedience,’’ but realised that it was
“
clearly
proper
I
Or
the
Solicitor-General
when
the
officr:
of
Attorney-General
is
varant
or
its
holder
is
unable
to
act
owing
to
absence
or
illness;
Law
ORicers
Act
1914,
8.
1.
’.
s.
A.
3
6.
92
(1)
and
s.
S
respcctively.
4
s.
3
(G).
i
s.
8.
The
Times,
March
91,
1970.
i
Ibitl.
*
The
Times,
March
18,
1070.
‘I
Report of
the
Select Committee
011
the
Official
Secrets
Act
1939,
H.C.
Paper
101,
3447
1’.
13.
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