FACULTY OF ADVOCATES
Edinburgh, 3 May 2001
HUMAN RIGHTS AND THE PROSECUTOR
Nicholas Cowdery QC
President, International Association of Prosecutors
“Criminal law should attract the best lawyers in the country.
No other branch of the law is so important. It is where our
commitment to fair trial and the rule of law are tested every
day, in courts throughout the nation. It is where fear of
wrongdoers intersects with respect for basic human rights.”
Kirby J, High Court of Australia
THE INTERNATIONAL CONTEXT
In an address during the XXth Annual Conference of the Canadian Federal Prosecution Service in June last year the Deputy Minister of Justice and Deputy Attorney General of Canada, Morris Rosenberg, said:
“Carrying out the duties of a prosecutor is difficult. It requires solid professional judgement and legal competence, a large dose of practical life experience and the capacity to work in an atmosphere of great stress. Not everyone can do this. Moreover, there is no recipe that guarantees the right answer in every case, and in many cases reasonable persons may differ. A prosecutor who expects certainty and absolute truth is in the wrong business. The exercise of prosecutorial discretion is not an exact science. The more numerous and complex the issues, the greater the margin for error.”
He also referred to the prosecutor’s heavy obligation to conduct himself (or herself) with dignity and fairness; and to take into account what the public interest demands. None of this should come as a surprise to this audience.
For at least the last 50 years prosecutors have been increasingly required to incorporate into the execution of their difficult duties the observance and protection of the human rights of all involved in the criminal justice process.
The Universal Declaration of Human Rights of 1948 (UDHR) requires it.
The International Covenant on Civil and Political Rights of 1966 (ICCPR) details it.
The Standards of the International Association of Prosecutors (IAP) give it immediate legitimacy and force.
The Vienna Declaration and Programme of Action of 1993 (developed at the World Conference on Human Rights) noted that:
“The administration of justice, including law enforcement and prosecutorial agencies and, specially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realisation of human rights and indispensable to the process of democracy and sustainable development.”
In the following year the UN General Assembly prepared a Plan of Action for the UN Decade for Human Rights Education (1995-2004) calling for special attention to be given to:
“the training of police, prison officials, lawyers, judges … and other groups which are in a particular position to effect the realisation of human rights.”
The following propositions, amongst many others, emerge from these various statements.
1. Prosecutors when they enforce the criminal law must do so fairly. The ultimate aim of the criminal prosecution process is a fair trial – fair to the accused as well as to the community. Fairness is not something that can be precisely measured. It is to be achieved in all legal systems – whether the purpose of a criminal trial may properly be regarded as a search for the truth (as the civil law system in its pure form sets out to do) or as a contest between opposing cases (as the common law system in its pure form may be characterised).
2. Prosecutors, by reason of their place and role in the criminal justice system, are in a particularly powerful position to protect human rights. In common law systems some have little, if any, supervisory role over police, but they may affect the course of proceedings by the attitude they take to the use of evidence that may have been illegally or improperly obtained and in the advice they give to police about further inquiries. Those who are more closely involved in investigations may have a more direct effect. In civil law systems prosecutors may supervise the investigation from the outset, ensuring by the exercise of quasi-judicial powers that the rights of the suspect (and anyone else involved) are fully protected.
What are human rights? Where do they come from? How do we know them when we see them? How may they be protected and enforced?
Last year the IAP held its annual conference in Cape Town, South Africa. That is a country that understands human rights. Those who deprived the majority of its citizens of their rights for so long knew exactly what they were taking away. Those who suffered knew exactly what they were losing. Nelson Mandela (with whom I had the privilege of dining in Johannesburg just before the conference) wrote of the old South Africa in his autobiography “Long Walk to Freedom”:
“An African child is born in an Africans Only hospital, taken home in an Africans Only bus, lives in an Africans Only area and attends Africans Only schools, if he attends school at all.
When he grows up, he can hold Africans Only jobs, rent a house in Africans Only townships, ride Africans Only trains and be stopped at any time of the day or night and be ordered to produce a pass, without which he can be arrested and thrown in jail…
It was a crime to walk through a Whites Only door, a crime to ride a Whites Only bus, a crime to use a Whites Only drinking fountain, a crime to walk on a Whites Only beach, a crime to be on the streets after 11 pm, a crime not to have a pass book and a crime to have the wrong signature in that book, a crime to be unemployed and a crime to be employed in the wrong place, a crime to live in certain places and a crime to have no place to live.”
Dr Maduna, South African Minister of Justice, wrote for our conference:
“The courts, too, were used as instruments of oppression. Prosecutors were an integral part of a judicial system which maintained white privilege and indoctrination. Prosecutors were not the protectors of society and fundamental human rights, but rather the defenders of the apartheid regime. The ideals of a fair trial, the rights to silence, legal counsel and to documents which would enable accused persons to prepare adequately were anathema to the legal systems and regarded as obstacles in the way of perpetrating white privilege. And so, legal practices which had been outlawed internationally, became norms upon which trials were based and on which many accused persons were convicted and even sentenced to death.”
South Africa under the apartheid regime is perhaps an extreme example of what can go wrong, but there are lessons there for others and for the future everywhere. No doubt the prosecutors and other officials who viewed human rights in that way then would now want their human rights to be respected in full measure and to be dealt with according to the rule of law. And they are. South Africa now has arguably the best Constitution in existence.
Human rights come from a number of sources. They come from religious thought. The basic principle of human dignity is firmly embedded in religious doctrines of all kinds. Natural law, traceable back to the ancient Greeks, places an obligation upon governments to protect the natural rights of citizens or be faced with forfeiting office.
Legal positivism directs us more narrowly to rights whose protection is guaranteed by specific laws. The sociological school of jurisprudence and utilitarianism provide yet other approaches.
But human rights remain first and foremost moral rights grounded in the autonomy of the human being, the full development of the human personality, respect for other persons and cultural and utilitarian considerations.
Human rights prescribe a minimum definition of what it means to be a human in a full and developed sense in any morally tolerable form of society – to lead a human life, to become a person. The law gives shape and effect to the realisation of that definition, but it does not supply the moral content – the sense of duty, responsibility and care that must come from within.
Henry James once said that we care what happens to people only in proportion to our knowledge of what people are.
A working paper prepared for the Tenth UN Congress on the Prevention of Crime and the Treatment of Offenders held in Vienna in April last year stated:
“Ever since the advent of modern democracies, criminal justice systems have had the dual function of holding offenders accountable to society for their misdeeds and holding the criminal authorities accountable for their punitive actions against the offender. A balance must be struck between crime control and due process.”
I have some real concerns that the criminal justice system should be regarded as a crime control mechanism at all; but traditionally in the common law system the balance between punishment and due process has been exemplified in the balance between the rights of the accused on the one hand and the rights (and expectations) of the community which accuses, on the other. The community as a whole is the victim of the crime, although individual members of the community often will have been more directly victimised.
In civil law systems the same adversarial description does not apply. The community does not bring the charge against the accused, for resolution by the court. The court, an independent entity with its own prosecution arm, brings the accused before it to examine the issue of guilt. The accused is not opposed by the community as such – but in some places may be opposed by the individual victim of the alleged crime. Nevertheless, as the European Convention on Human Rights (for example) recognises, all those involved in the process have rights which must be protected.
In common law systems the individual and more direct victims of crime have traditionally been regarded as third parties, on the periphery of proceedings; but the adoption by the General Assembly of the UN in 1985 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power has led to the enactment of many provisions to advance the interests and enhance the status of victims in the prosecution process. That Declaration guarantees the participation of the individual victim in the proceedings, but only so far as it does not unduly prejudice the rights of the accused.
In civil law systems and especially in some Islamic systems, individual victims are active parties playing a central role in the proceedings and prosecutors have obligations to them as well. In some places victims may, for example, lead evidence, challenge evidence, address the judge or jury during the sentencing process or in support of a compensation claim. In some central and eastern European jurisdictions the victim may act, in effect, as assistant prosecutor. This may, or may not, strengthen the position of the prosecutor. Is that unfair to the accused?
The Declaration of Basic Principles, which applies to all systems, includes the minimum rights:
- to be treated with respect and recognition;
- to be referred to adequate support services;
- to receive information about the progress of the case;
- to be present and to be involved in the decision-making process;
- to counsel;
- to protection of physical safety and privacy; and
- to compensation, from both the offender and the state.
Not many jurisdictions could confidently claim to guarantee all those rights. Failure to enforce them does not have consequences for the criminal process itself, unlike failure to enforce the rights of the accused – evidence is not excluded as a consequence, or an acquittal directed.
In all systems, however, the agents of the community who strive for criminal justice – the police and prosecutors – must be held accountable to the community at large for their conduct in the course of investigating and prosecuting the accused and seeking redress for the victimisation that has occurred. Human rights must be respected all along the line. In common law systems prosecutors usually cannot have much influence in that respect until a brief of evidence is delivered for prosecution; but in civil law systems they are in there right from the start, when first contacted by the police, and may have a vital role to play in the preservation of the rights of suspects and witnesses.
But what of the rights of the community, the collective victims, represented in all systems by the prosecutor? For example, what if a victim is unwilling to testify in a public court (perhaps because of the sensitive nature of the offence)? Or the victim is unwilling to testify because a private settlement or accommodation has been reached with the offender? What if the offender is fined, but the victim is not awarded compensation? What if the victim disagrees with a decision by the prosecutor (perhaps a decision to discontinue a charge)? The prosecutor may in some cases be obliged to disregard the individual victim’s wishes.
There may indeed be another informal “party” to criminal proceedings: the media. It claims to serve the community but will often have other partisan interests and obligations, to particular personalities, to a political party, to owners, to advertisers. What obligations, if any, does a prosecutor have towards the media and the rights it may assert?
Fairness to the accused may be measured in an approximate fashion: largely by the extent to which a jurisdiction complies with Article 14 of the ICCPR through its constitution and procedural laws. Many criminal justice systems now guarantee at least the following rights:
- the right not to be subject to arbitrary arrest, detention, search or seizure;
- the right to know the nature of the charge and the evidence;
- the right to counsel;
- the presumption of innocence;
- the standard of proof of beyond reasonable doubt;
- the right to a public trial by an independent court;
- the right to test the prosecution evidence (eg by cross-examination);
- the right to give and call evidence; and
- the right to appeal.
In some circumstances (for example, in relation to transnational or organised crime) the rights of the accused are commonly eroded. If a community feels particularly threatened by some form of illegal conduct, rights may be more readily compromised, either in the name of expediency or in the name of revenge (but usually out of fear).
And the media? If it is not held in check it can certainly impact upon the prosecution process by forcing the postponement or abandonment of proceedings. It may also infringe other rights of both the accused and the victim (eg the right to privacy). It is confined by few, if any, requirements to act fairly. It can inflame public opinion about those facing court and create a climate in which it becomes very difficult to ensure a fair trial; nevertheless, we must try.
When Adolf Eichmann was tried in Jerusalem in 1961 the presiding judge, Moshe Landau, said:
“When a court sits in judgment, the judges who compose it are human beings, are flesh and blood, with feelings and senses, but they are obliged by the law to restrain those feelings and senses. Otherwise, no judge could ever be found to try a criminal case where his abhorrence might be aroused … It cannot be denied that the memory of the Nazi holocaust stirs every Jew, but while this case is being tried before us it will be our duty to restrain these feelings, and this duty we shall honour.”
He was really making the point that to do justice to Eichmann’s victims, past and present, it was necessary to do justice to him – regardless of the feelings of the judges or of prevailing popular opinion.
In order to do justice, prosecutors are frequently called upon to exercise discretion in their decision making. This may affect the rights an accused person (or others caught up in the process) could otherwise rely upon.
In my jurisdiction the exercise of such discretions is aided by published Prosecution Policy and Guidelines. We do not have a Bill of Rights or overriding Human Rights Convention in any form. Maybe, one day, we will have – but until then we are ruled by the general principles of the common law and by statute. The Director of Public Prosecutions Act gives me concurrent powers with the Attorney General in most respects; but the Attorney General has made it known that he will intervene in my exercise of discretion only if a decision has been affected by fraud, bias or corruption, or if significant fresh evidence has been produced and I decline to consider it, or my decision is manifestly unreasonable (in a Wednesbury sense), or if I have been affected by incompetence or incapacity.
The only attempt at judicial review of any decision of mine was made against my refusal to consent to a trial by judge alone in the “backpacker” murders case. The judge held that he had no power to review that decision.
In England and Wales it has been held in R v DPP; ex parte Kebilene (House of Lords, 28 October 1999) that a decision by the DPP to consent to a prosecution under the Prevention of Terrorism (Temporary Provisions) Act 1989 was not, in the absence of dishonesty, mala fides or some exceptional circumstance, amenable to judicial review. Lord Steyn said: “Such satellite litigation should rarely be permitted in the criminal justice system”. In R v DPP; ex parte Manning et anor (Queen’s Bench Divisional Court, 17 May 2000) it was held that although the DPP is under no duty to give reasons for his refusal to prosecute he should normally do so, in the absence of compelling reasons to the contrary, where his decision related to a death in custody in respect of which, at the conclusion of a properly conducted inquest, the jury returned a verdict of unlawful killing implicating a clearly identified though unnamed person whose whereabouts were known.
In Canada there has been a constitutionally entrenched Charter of Rights and Freedoms since 1982. Many attempts have been made to rely on the Charter in seeking review of the exercise of discretion by prosecutors. Wayne Gorman, DPP of Newfoundland, has recorded many of them in an article in the Criminal Law Quarterly [Vol. 44 – 2000 – p 15] which followed his presentation to the Canadian Federal Prosecution Service conference last year. The Supreme Court of Canada has clearly held (he notes) that the existence and exercise of prosecutorial discretion does not offend against the Charter and it will only be reviewed if there is evidence of impropriety or other serious irregularity.
The following exercises of discretion have been the subject of unsuccessful attack.
· Refusal by the Crown to consent to trial by judge alone.
· The selection of particular charges.
· Taking over a private prosecution.
· Election to proceed summarily or on indictment.
· Proceeding by direct indictment (without a preliminary inquiry).
· Requiring that an accused be tried by judge and jury.
· Deciding what witnesses to call.
· The entry of a stay of proceedings.
There are still prosecutors, no doubt, who see human rights as obstacles in the way of doing their job; perhaps not obstacles in the way of pursuing any particular agenda (like white supremacy in the old South Africa), but obstacles in the way of securing the conviction of those who are “obviously” guilty.
How convenient it would be – for a prosecutor intent on “winning” – an infallible prosecutor, of course – to be able directly or indirectly:
- to investigate or direct the investigation of crime without restriction: to be able to go anywhere and search anything, to watch and listen to all and sundry by surveillance devices and telephone intercepts, to question and detain anybody, to seize property;
- to detain suspects at will and be able to deny them bail (or conditional release);
- to interrogate suspects without restriction and to require them to answer;
- to prevent a suspect’s access to legal advice;
- to undermine and destroy those who dissent against the social order, to target and remove “troublemakers”;
- to have juveniles dealt with in adult courts;
- to bow to political pressures in deciding whether to proceed;
- to delay trials until conditions were right for the prosecution;
- to excite the media to spread prejudicial pre-trial publicity about the accused person;
- to conduct trials in private, away from the gaze of those connected with the accused and from public commentators;
- to have the judiciary constantly on one’s side;
- to refuse to cooperate with and to obstruct the defence at every turn and to disclose nothing about the case in advance;
- to require an accused person to pay for his or her own interpreter, where translation is necessary;
- to be able to prove the prosecution case by easy shortcuts – indeed, to require the defence to disprove matters or even to prove innocence;
- to be able to rely on illegally and improperly obtained evidence;
- to be able to have inferences of guilt drawn from the silence of the accused;
- to have the accused shackled in court, at whim; or
- to have available and serving the needs of the prosecution the severest possible punishments, even by way of extrajudicial killings.
What would we have where such a system operated? Something perhaps approaching some pockets in the old South Africa – certain regimes made infamous by past despots – and something like the systems operating in a handful of countries even today.
What prevents such a system from operating with impunity? Human rights – reflected in provisions such as Articles 9, 10, 14, 17 and 19 of the ICCPR. These are mighty obstacles to abuse by the criminal legal system and should be reflected in the domestic law of every country. Without these minimum guarantees a country cannot claim to be a true democracy under the rule of law. It should also be remembered that it is possible to have law and order without human rights; but it is not possible to have human rights without law and order.
Human rights provisions also have a practical effect on the way in which criminal trials are conducted. The principles expressed must be given effect by substantive and procedural laws – and by the willingness of prosecutors, above all, to see them enforced. That desire must come from within.
Human rights are not soft and fuzzy things that we can pull around us on a cold night to keep us warm and safe. They are not something observed only by left-leaning fringe dwellers. Nor are they optional add-ons to a criminal justice system or the practice of law – something that we embrace only if we feel like it. Human rights are fundamental. Prosecutors have no reason to fear them – they belong to us as well and from time to time we may need to rely on them.
The pursuit of human rights is about as hard as any political and legal exercise can be. People die doing it – occasionally even a prosecutor. But prosecutors are tough – ordinarily they can protect human rights without dying. They can also do it without compromising their cases. It should never be forgotten that prosecutors are ministers of justice.
To return finally to South Africa: when on 12 June 1964 he sentenced Nelson Mandela to life imprisonment Judge Quartus de Wet, a man who had sworn the judicial oath “to administer justice to all persons alike without fear, favour or prejudice in accordance with the laws and customs” of South Africa, said:
“The function of this court, as is the function of the court in any other country, is to enforce law and order and to enforce the laws of the state within which it functions.”
Yes, but what about justice? And laws must be made, in any democracy, according to the rule of law as properly understood and not just by the group with the preponderance of political power. And the enforcement of laws must also be in accordance with the rule of law. The rule of law does not ignore fundamental human rights. Nor must prosecutors.