Published online by Cambridge University Press: 18 July 2014
In the great majority of cases, the proper exercise of investigative or prosecutorial discretion presents little challenge and evokes little controversy. In a very small number of “high-profile” cases, however, such discretionary decisions become highly controversial and the subject of intense political, public, and media debate. It is such relatively rare cases that are the focus of this article. In such cases, two critical questions are typically at the forefront of debate: What does “the public interest” in such cases require? And who should have the final say as to what the public interest in such cases requires? The first of these questions typically reveals disagreements as to how the various commonly accepted “public interest” considerations should be applied to the case at hand; the second goes to the heart of the concept of “independence,” alleged to be a fundamental and constitutionally essential attribute of police and prosecutors in making such decisions. This article is concerned less with the details of discretionary decisions themselves than with the “political economy” of prosecutorial discretion, with particular reference to controversial high-profile cases that raise significant “public interest” considerations. Specifically, the article considers who currently does, and should, have the ultimate authority to exercise prosecutorial discretion in such cases, and why, and what such arrangements imply for the prevailing concept of prosecutorial “independence.” The author draws on four recent high-profile cases in the United Kingdom and in South Africa to illustrate the different ways in which these issues have arisen and the controversies that have developed out of attempts to resolve them.
Dans la grande majorité des cas, la discrétion suscite peu de contestations et évoque peu de controverses lorsqu'elle est exercée convenablement dans les enquêtes ou les poursuites. Dans un petit nombre de cas notoires, par contre, les décisions discrétionnaires deviennent très controversées et le sujet de débats médiatiques animés, intenses et politiques. Cet article se penche sur ce type de cas relativement rare. Deux questions importantes sont typiquement au cœur des débats et des controverses. Quels sont les besoins de «l'intérêt public» dans ces cas? Qui, par la suite, devrait avoir le dernier mot dans la définition des besoins de l'intérêt public? La première question révèle typiquement une divergence d'opinions sur comment les différentes considérations de l'intérêt public devraient être appliquées. La deuxième question va au cœur même du concept de «l'indépendance», concept sensé représenter, au moment de prendre des décisions, les attributs essentiels fondamentaux et constitutionnels de la police et des procureurs. Dans cet article, l'auteur se penche non pas sur les décisions discrétionnaires en tant que telles, mais plutôt sur «l'économie politique» de la discrétion judiciaire, en portant une attention particulière sur les cas controversés et publics qui suscitent un questionnement important à propos des considérations de «l'intérêt public». Plus particulièrement, cet article examine qui est capable et qui devrait être capable d'exercer l'ultime autorité discrétionnaire dans de tels cas. L'auteur cherche non seulement à comprendre pourquoi cette distribution du pouvoir existe ainsi mais aussi ce qu'une telle distribution implique pour le concept prédominant de «l'indépendance» dans le contexte des poursuites. L'auteur se penche sur quatre cas controversés récents, dans le Royaume Uni et en Afrique du Sud, afin d'illustrer les différentes façons que ces questions ont été traitées ainsi que les controverses qui, subséquemment, ont eut lieu.
1 U.K., H.C., Parliamentary Debates, vol. 188, col. 2105 (December 1, 1925). In 1951, the then attorney general, Sir Hartley Shawcross, said, It has never been the rule in this country—I hope it never will be—that suspected criminal offences must automatically be the subject of prosecution. Indeed, the very first regulations under which the Director of Public Prosecutions worked provided that he should intervene to prosecute, amongst other cases: “whenever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest.”
U.K., H.C., Parliamentary Debates, vol. 483, col. 683 (January 29, 1951).
2 The leading cases in Canada are R. v. Campbell,  1 S.C.R. 565 (re police); and R. v. Power,  1 S.C.R. 601, and R. v. Regan,  l S.C.R. 297, 202 SCC 12 (re prosecutors).
3 It is recognized that the evidential threshold is higher for a prosecution than for an investigation.
4 As I shall illustrate below, it sometimes also involves scepticism as to whether the stated reasons for a decision are the real reasons for it.
5 An interesting debate is currently going on in England as to whether policy with respect to liability to criminal prosecution for assisting suicide should be made by Parliament, the director of public prosecutions, or the courts: see Hirsch, Afua, “Assisted Suicide Ban Forcing Terminally Ill to Die Early, Lords Told,” The Guardian, 2 June 2009Google Scholar, http://www.guardian.co.uk/society/2009/jun/02/assisted-suicide-lords-multiplesclerosis. An attempt by a former Lord Chancellor to achieve an amendment of the law in this respect in Parliament, to protect relatives who accompany their loved ones to a voluntary assisted suicide clinic in a foreign country from prosecution for assisting suicide, was recently unsuccessful: see U.K., H.L., Parliamentary Debates, vol. 712, no. 103, cols. 595–636 (July 7, 2009), http://www.publications.parliament.uk/pa/ld200809/ldhansrd/lhan103.pdf.
6 In the United Kingdom recently the justice secretary intervened to countermand a prison warden's decision to deny an inmate permission to leave the institution to attend his wedding to his terminally ill fiancée: see Batty, David and Hirsch, Afua, “Goody Will Not Die on Camera, Clifford Promises,” The Guardian, February 21, 2009, 8Google Scholar. A few months later, he overruled a Parole Board decision: see Laville, Sandra, “Jack Straw Blocks Release of Train Robber Ronnie Biggs,” The Guardian, July 2, 2009, 3Google Scholar.
7 On this difficult and complex issue see, e.g., Eckstein, Harry and Apter, David E., eds., Comparative Politics: A Reader, (London: Free Press of Glencoe, 1963), pt. 5Google Scholar. As Otto Kirchheimer explained the process, “… mass democracy separates the political formula—outcome of party competition and pressures—from the executive decision. The parties lay siege to the government, but in the process of execution the government and its corps of technicians and administrators … filter and neutralize the political formula, making it objective.” Kirchheimer, Otto, “The Party in Mass Society,” in Eckstein, and Apter, , Comparative Politics, 376Google Scholar.
8 Marshall, Geoffrey, Constitutional Conventions: The Rules and Forms of Political Accountability, (Oxford: Clarendon Press, 1984)Google Scholar.
9 The contract “involved the sale of 72 Tornado fighters and 50 Hawk jet trainers, the construction of two airbases and a host of other equipment, training and spares, serviced by more than 3,000 UK experts stationed in Saudi Arabia.” Pallister, David, “The Arms Deal They Called the Dove: How Britain Grasped the Biggest Prize,” The Guardian, December 15, 2006Google Scholar.
10 Norton-Taylor, Richard, Leigh, David, and Evans, Rob, “Minister Stonewalls on Bandar's £Ibn,” The Guardian, June 13, 2007, 4Google Scholar.
11 BAE is alleged to have provided contract negotiators or agents with, among other “perks,” sports cars, chauffeur-driven luxury cars, yachts, first-class plane tickets, unlimited restaurant meals; cup final tickets, club memberships, gambling trips, luxury hotel accommodation, the services of prostitutes, and a house for a Saudi prince's mistress: Leigh, David and Evans, Rob, “BAE Accused of Arms Deal Slush Fund,” The Guardian, September 11, 2003Google Scholar. One Saudi prince is alleged to have been given a £75-million Airbus jet: Leigh, David and Evans, Rob, “BAE Bought £75 m Airbus for Saudi Prince,” The Guardian, June 15, 2007, 1–2Google Scholar.
12 The Serious Fraud Office (SFO), which is headed by a director who acts under the “superintendence” of the country's attorney general, is an investigative as well as prosecutorial agency established by legislation in 1988. In addition to the investigation into the al-Yamamah contract negotiations, the SFO was also investigating allegations of corruption by BAE in its dealings with South Africa, Tanzania, the Czech Republic, India, Brazil, and Qatar.
13 Leigh, David and Evans, Rob, “‘National Interest’ Halts Arms Corruption Inquiry,” The Guardian, December 15, 2006Google Scholar.
14 These representations were communicated to the prime minister through the British ambassador to Saudi Arabia. The attorney general insisted that neither he nor the director of the SFO had had any direct contact with Saudi officials but indicated that the director had met with the British ambassador three times before the decision to terminate the investigation was taken. U.K., H.L., Parliamentary Debates, vol. 456, col. 381 (February 1, 2007).
15 The attorney general told the House of Lords that “representations came from BAE to me about the public interest in November 2005, but I forwarded those to the SFO and did not engage with BAE at all.” Ibid.
16 BAE executives have consistently denied any wrongdoing on the company's part.
17 The inclusion of this final sentence is explained by the fact that Britain is a signatory to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, art. 5 of which provides that “[i]nvestigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”
18 Neither still holds these respective offices.
19 See, e.g., the attorney general's statement to the House of Lords on February 1, 2007: U.K., H.L., Parliamentary Debates, vol. 456, cols. 376–77 (February 1, 2007); also “Witness Statement of Robert Wardle” (Director, SFO), dated December 17, 2007, in R. on the application of Corner House Research and Campaign Against Arms Trade v. Director of the Serious Fraud Office and BAE Systems plc, CO/1567/07 (Q.B.). The director told investigators from the OECD that he would have had to resign if the attorney general had insisted on making the decision himself: OECD, United Kingdom: Phase 2bis—Report on the application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions (Paris: OECD, October 2008)Google Scholar, para. 111 [OECD Report].
20 In a statement to the House of Lords, however, the attorney general said, “The SFO took the decision that, in the public interest because of national security risks, the investigation should not go on. I agreed but I had that additional important consideration in my mind. As I said, I cannot believe that we would ever have agreed not to take that sort of national security consideration into account, still less that we should not take it into account in a case which was, at best, doubtful and, in my view, would never have got anywhere.” U.K., H.L. Parliamentary Debates, vol. 456, cols. 380–81 (February 1, 2007).
21 The AG at the time of the BAE affair, Lord Goldsmith, was an appointed member of the House of Lords, not an elected member of the House of Commons. The same is true of his successor, the current AG. Goldsmith is a long-time close friend of the prime minister who appointed him.
22 These are the Crown Prosecution Service (established in 1985), the Serious Fraud Office, and the Revenue and Customs Prosecutions Office.
23 The first Labour government, under Prime Minister Ramsay MacDonald, fell in 1924 as a result of a Cabinet directive that “[n]o prosecution of a political character should be undertaken without the prior sanction of the-Cabinet being obtained.” The circumstances surrounding this event are described in detail in Edwards, J.Ll.J., The Law Officers of the Crown (London: Sweet & Maxwell, 1964), c. 11Google Scholar.
24 U.K., H.C., Parliamentary Debates, vol. 483, cols. 683–84 (January 29, 1951).
25 “I called in the SFO investigators and asked them to take me through all the detail, which I had not been able to do before.” U.K., H.L., Parliamentary Debates, vol. 456, col. 381 (February 1, 2007).
26 The fullest accounts of all these representations can be found in the House of Lords judgment in R. (on the application of Corner House Research and others) v. Director of the Serious Fraud Office,  UKHL 60 [R. v. Director SFO; and in the OECD Report, 34–38 (paras. 136–55). The AG also indicated that he had sought advice about the case from outside (private) “very experienced leading counsel”: Debates, ibid., col. 381.)
27 The prime minister's statements are reproduced in full in U.K., H.L., Parliamentary Debates, vol. 456, cols. 361–62 (February 1, 2007).
28 Ibid., col. 376. The credibility of this explanation was not helped by an earlier controversy in which the AG was accused of having changed his opinion on the legality of British involvement in the invasion of Iraq in 2003, allegedly under pressure from his close friend, the same prime minister: see Leigh, David and Evans, Rob, “Papers Pinpoint Law Chief's Change of Heart over War,” The Guardian, May 26, 2006, 13Google Scholar.
29 See note 19 above.
30 The allegations involved all of the major political parties, not just the governing Labour Party.
31 Honours (Prevention of Abuses) Act, 1925 (U.K.), 15 & 16 Geo. V, c. 72; Public Bodies Corrupt Practices Act, 1889 (U.K.), 52 & 53 Vict., c. 69; Prevention of Corruption Act, 1906 (U.K.), 6 Edw. VII, c. 34.
32 The investigation included police interviews with senior political leaders from the three major political parties, ministerial colleagues of the AG, senior staff members of the Prime Minister's Office, and a fellow member of the House of Lords who was a major donor to, and fundraiser for, the governing Labour Party. The attorney general had also been a previous donor to the party, but it is not clear whether he was himself ever a subject of the investigation.
33 The PM was interviewed by the police three times during the investigation—the first time a serving prime minister had ever been the subject of such a criminal investigation.
34 This statement referred to the commissioner's interactions with the PM and with the Cabinet's “Cobra” Committee following the terrorist bombings in London in July 2005, as well the commissioner's very active and public support for the government's (unsuccessful) attempts to get legislation passed that would extend the period for which suspected terrorists could be detained without charge from 28 to 96 days: The Guardian, November 6, 2006.
35 The full text of the attorney general's letter is reproduced in U.K., H.C., Constitutional Affairs Committee, Party Funding—Oral evidence from the Lord Chancellor on the role of the Attorney General: First Special Report of Session 2006–07, HC222 (London: Stationery Office, 2007)Google Scholar, Appendix 4, Annex B. in March 2007, the AG, at the request of the Metropolitan Police, obtained an injunction to prevent the BBC from broadcasting a news story about some developments in the cash-for-honours investigation. The AG's spokesman told the press that: “The attorney-general acted in this respect completely independently of government and in his independent public interest capacity”: The Guardian, March 3, 2007.
36 The assistant commissioner was called to appear before the committee again in March 2007 to explain why the investigation had still not been concluded: “MPs to Publish Police Update on Honours,” The Guardian, March 15, 2007Google Scholar. It was reported in February 2007 that the Metropolitan Police commissioner was planning to launch an internal inquiry into the conduct of the investigation once it was completed, the aim of which would be to “examine the controversy surrounding the investigation and its impact on politics.” It was also expected to “look at the constitutional problems thrown up by investigating a government in office, particularly if nobody is prosecuted, and the handling of an inquiry which has soured relations between Britain's biggest police force and the government overseeing it”: Barnett, Antony, Hinsliff, Gaby, and Townsend, Mark, “Revealed: Blair's Private Call to Levy over Arrest,” The Observer, February 11, 2007Google Scholar. After the case was concluded, the assistant commissioner, the senior member of the CPS who had made the final prosecutorial decision, and the independent counsel who had advised the CPS on the case appeared in person before the Public Administration Committee to review and discuss “lessons to be learned” from the way the investigation had been conducted.
37 There was evidence that the investigation was having an adverse effect on public opinion about the government at a time when elections were imminent. In February 2007, a YouGov survey found that only 16% of people thought the prime minister was “honest and straightforward” and that 56% said they believed he had handed out peerages in return for donations to the Labour Party.
38 The CPS also released a nine-page explanation of the decision, the text of which can be found at http://www.cps.gov.uk/news/assets/uploads/files/146_07_document.pdf. It has never been disclosed whether either Lord Goldsmith or his successor as attorney general was consulted with respect to this decision. But given that the decision was based on insufficiency of the evidence rather than on “public interest” considerations, it seems likely that they were not.
39 U.K., H.C. Parliamentary Debates, vol. 462, col. 817 (July 3, 2007). In its subsequent consultation paper on the role of the AG, the government noted that the authority of the AG to direct the DPP with respect to particular cases has survived following the enactment of the Prosecution of Offences Act 1985 (U.K.), 1985,. c. 23, s. 3 (establishing the Crown Prosecution Service under the direction of the DPP, who in turn exercises his or her authority “under the superintendence of the Attorney General”), “has never been settled definitively,” but also noted that “successive Attorneys General have not sought to give formal directions to the prosecuting authorities”: U.K. Attorney General's Office, The Governance of Britain: A Consultation on the Role of the Attorney General (London: Stationery Office, 2007), 8)Google Scholar. Writing in 1989, however, J.Ll.J. Edwards insisted that the 1985 act had not changed the historical relationship between the AG and the DPP in any significant way: Edwards, J.Ll.J., Walking the Tightrope of Justice: An Examination of the Office of Attorney General—A Series of Opinion Papers, vol. 5 of Report of the Royal Commission on the Prosecution on the Donald Marshall, Jr., Prosecution (Halifax: Nova Scotia Government Printer), 36–37Google Scholar. In its very recent report on the United Kingdom's compliance with the OECD Convention on Bribery of Foreign Officials, the OECD Working Group on Bribery in International Business Transactions indicated that “[a]t the [OECD's] on-site visit, the then-Director [of the SFO] indicated that the Director (and others subject to Attorney General superintendence, such as the DPP) have not conceded the existence of such a power. He indicated that if such a direction were given, he would have to resign.” OECD Report, para. 111.
40 Much of the information in this section is derived from Ginwala, Frene, Report of the Enquiry into the Fitness of Advocate VP Pikoli to Hold the Office of National Director of Public Prosecutions (November 2008)Google Scholar, http://www.scribd.com/doc/8728454/The-Ginwala-Report [Ginwala Report].
41 Constitution of the Republic of South Africa 1996, No. 108 of 1996, s. 179.
42 National Prosecuting Authority Act 1998, No. 32 of 1998, s. 20.
43 In addition to the NDPP, s. 6 of the act provides for the appointment of directors of public prosecutions (DPPs) to head up the offices of the Prosecuting Authority at the seat of each of the Provincial Divisions of the High Court. The provincial DPPs are accountable to the NDPP.
44 Established by the National Prosecuting Authority Amendment Act 2000, No. 61 of 2000.
45 There had been long-standing friction between the SAPS and the Scorpions since the latter were established in 2001, and Commissioner Selebi had been lobbying to have them transferred from the NPA to the SAPS (see la Grange, Borrie and Mabena, Khethiwe, “Selebi Papers Reveal Acrimony,” The Times (South Africa), June 27, 2008)Google Scholar. This transfer eventually occurred in 2008, following a resolution calling for it at the ANC's National Conference in December 2007. The Scorpions were disbanded and a new investigative unit established in the SAPS: “SA Abolishes Crime-Fighting Unit,” BBC News, October 23, 2008Google Scholar, http://news.bbc.co.Uk/l/hi/world/africa/7685927.stm.
46 Ginwala Report, 166, para. 264.
52 His application to cancel the search warrants was refused: see Office of NDPP, “Arrest and Search Warrants” (media release, October 5, 2007), http://www.npa.gov.za/UploadedFiles/Media%20statement%20on%20the%20status%20of%20the%20arrest%20and%20search%20warrants.pdf.
53 See Office of NDPP, “Announcement of the Review Panel” (media release, October 12, 2007), http://www.npa.gov.za//UploadedFiles/Selebi%20review%20panel%20announced.pdf.
54 Ginwala Report, 206, para. 349, and 212, Recommendation I.
55 Ibid., 206, para. 348. The Commission commented that “[h]ad these facts been presented as the reason for the suspension, when the conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate. However, these were not the reasons put forward by the government.” Ibid., 210, para. 357.
60 Ibid., 205, para. 347. The Commission agreed with the NDPP's own interpretation, in his response to the minister's letter, that she had not intended to convey such an unlawful instruction.
62 Acting President Motlanthe is reported as having said that “[t]he recommendations made by the report that Pikoli should be restored to office is illogical. Once you have gone through the full report including his own representations, you would come to that same conclusion.” “Motlanthe Relieves Pikoli of His Duties,” SABCNews.com, December 8, 2008Google Scholar.
64 “Pikoli Removed from Office, Vows to Fight Back” Mail & Guardian online, February 17, 2009Google Scholar, http://www.mg.co.za/article/2009-02-17-pikoli-removed-from-office-vows-to-fight-back; “Pikoli Files Court Papers Challenging His Dismissal,” SABCnews.com, February 18, 2009Google Scholar.
65 “Selebi Trial Postponed,” Mail & Guardian online, May 4, 2009Google Scholar, http://www.mg.co.za/article/2009-05-04-selebi-trial-postponed. Selebi's trial began on Monday, October 5, 2009: “Selebi Pleads Not Guilty at Graft Trial,” Mail & Guardian online, October 5, 2009Google Scholar, http://www.mg.co.za/article/2009-10-05-selebi-pleads-not-guilty-at-graft-trial. As of this writing, Pikoli's legal challenge to his dismissal is set down for hearing in November 2009: “Opposition Welcomes Pikoli Ruling,” Mail & Guardian online, August 11, 2009Google Scholar, http://www.mg.co.za/article/2009-08-11-opposition-welcomes-pikoli-ruling.
66 National Director of Public Prosecutions v. Zuma,  ZASCA 1 (S.C.A.) at para. 40 [NDPP v. Zuma].
67 Part of the prosecution's evidence against Shaik was an allegation that he had made a corrupt payment to Zuma.
69 In December 2005, Zuma was charged with raping the daughter of a deceased struggle comrade. He was acquitted in 2006. In an article in Prospect magazine, Andrew Feinstein, a former ANC member of Parliament's Public Accounts Committee, wrote that “[t]he fact that only Zuma and Schabir Shaik have faced prosecution in relation to the [arms] deal reinforces the view that Mbeki uses the justice system selectively to address his political needs. Some in the South African media even suggest that a further reason for the suspension of [NDPP] Vusi Pikoli is his seeming unwillingness to re-charge Zuma before the ANC electoral conference [in December 2007].”. Feinstein, Andrew, “The ANC's Awful Choice,” Prospect, January 2008, 142Google Scholar. Pikoli was suspended in September 2007. From this point of view, the first reason President Mbeki cited in his letter to Pikoli advising him of his suspension (noted above), may be open to a more sinister interpretation.
70 Mbeki was precluded by law from seeking a third term as president of the Republic.
71 “Zuma Charged with Corruption, Fraud,” Mail & Guardian online, December 28, 2007Google Scholar, http://www.mg.co.za/article/2007-12-28-zuma-charged-with-corruption-fraud.
72 Section 179(5)(d) of the Constitution provides that the NDPP “may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following: i. The accused person, ii. The complainant, iii. Any other person or party whom the National Director considers to be relevant.”
73 Zuma v. National Director of Public Prosecutions,  ZAKZHC 71,  All S. A. 54 (Natal Prov. Div.).
76 Ibid. at para. 210. Nicholson J. concluded that “[i]f the NDPP is to be totally independent and perform his functions without fear or favour he should not be liable to suspension by the executive at any given moment.”
78 Note that the Ginwala Commission concluded in its report that there was no such evidence of inappropriate presidential interference in the Selebi case: see Ginwala Report, 205, para. 346.
80 NDPP v. Zuma.
81 Ibid. at para. 15. The Court held that Nicholson J.'s finding with respect to “political meddling” were “gratuitous,” “unwarranted,” and not supported by evidence. The Court emphasized (at para. 51), however, that it was not deciding “whether there was or was not political meddling,” since this was not a matter relevant to the case. On the “proper boundaries between judicial, executive and legislative functions” see the recent South African case of Glenister v. President of the Republic of South Africa,  ZACC 19, (2009) 2 B. Const. L.R. 136 (S. Afr. Const. Ct.).
82 The Court held that s. 179(5)(d) of the Constitution was not applicable to the earlier decision by the former NDPP not to prosecute Zuma, and that he was therefore not entitled to be invited to make representations to the NDPP before a decision to charge him could be made.
83 In Re the Constitutional Relationship between the Attorney-General and the Prosecutor-General, ex parte Attorney General, Namibia,  3 L.R.C. 507, (1995) 8 B. Const. L.R. 1070 (S.C. Namibia), accessible at http://www.saflii.org/na/cases/NASC/1995/1.pdf.
84 NDPP v. Zuma at para. 32. The Court did not specifically comment on the relationship between the NPA and the president of the Republic.
85 Moketedi Mpshe, “Statement by the National Director of Public Prosecutions on the matter S v Zuma and others” (National Prosecuting Authority, April 6, 2009), http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=124273&sn=detail.
86 See, e.g., “Trengove: Zuma Decision ‘Tipping Point,’” Mail & Guardian online, April 16, 2009, http://www.mg.co.za/article/2009-04-16-trengove-zuma-decision-tipping-point; Linscott, James, “On Mpshe's Legally Flawed Decision,” politicsweb, April 17, 2009Google Scholar, http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=l25843&sn=Detail.
87 “Zuma Must Have His Day in Court Says Zille,” SABCnews.com, April 10, 2009.
88 R. v. Director SFO at para. 23 [emphasis added]. The House of Lords commented that the director was, “as the Divisional Court rightly held, obliged and entitled to rely on the expert assessments of others” with respect to the threat to national and international security. Ibid. at para.40.
89 Lord Goldsmith's comment to the House of Lords on this point is worth noting: “I set out the basis of the national security interest in the Statement of 14 December and in the letter to the noble Lord, Lord Garden. I obviously cannot go into the precise details, as that would involve disclosing information about our counter-terrorism arrangements. U.K., H.L., Parliamentary Debates, vol. 456, cols. 381–82 (February 1, 2007) (Lord Goldsmith). Similar constraints arguably come into play in protecting the privacy interests of people whom, after investigation, it has been decided not to prosecute.
91 It is perhaps worth noting here that art. 16 of the 1998 Statute of Rome, establishing the International Criminal Court, provides for such factors to be decided by a political body (the UN Security Council) in some cases, rather than by the chief prosecutor, or the Court itself, alone.
92 I note that what I am suggesting here seems to have been implicitly suggested by the House of Commons Constitutional Affairs Committee: U.K., H.C., Constitutional Affairs Committee, Constitutional Role of the Attorney General: Fifth Report of Session 2006–07, HC 306 (London: Stationery Office Ltd., 2007)Google Scholar: “It would be a major departure from past practice for the Government to abandon any role in seeking the ending of prosecutions on national security grounds or other wider public interests [sic] grounds. There is likely to be a need for a mechanism through which Ministers can communicate to the independent Attorney General their recommendation or their insistence that a particular prosecution should not proceed on national security grounds. This should be a transparent process” (34, para. 82 [emphasis added]); “Where Ministers instruct the independent head of the prosecution service on public interest grounds, whether national security or other grounds, the Secretary of State for Justice would be accountable to Parliament for that instruction” (41–42, para. 105 [emphasis added]); “If a [prosecutorial] decision has been taken on the basis of political instructions, it is ministers who should take responsibility and be accountable for those instructions” (42, para. 107 [emphasis added]). See also at 35, para. 83, which refers to cases in which the AG is “instructed by Ministers” with respect to prosecutorial decisions in individual cases. There is no sign in the committee's report, however, of any recognition that this would constitute a radical departure from past conventions, and in particular from the “Shawcross Doctrine” (quoted above), according to which “If political considerations which in the broad sense that I have indicated affect government in the abstract arise it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations” [emphasis added].
93 In the Selebi case, there may well be more judicial scrutiny to come: Omarjee, Hajra, “Pikoli ‘Could Take President to Court,’” Business Day, January 7, 2009Google Scholar.
94 In the BAE case, the OECD Report (see note 19 above); in the Selebi case, the Ginwala Report (see note 40 above).
95 It must be acknowledged, however, that it is not always so easy to clearly distinguish between these types of interests.
96 In this context, Nicholson J.'s comments in his judgment in the Zuma case, quoted at notes 68–72 above, are of interest. See also MacNair, M. Deborah, “In the Name of the Public Good: ‘Public Interest’ as a Legal Standard,” Canadian Criminal Law Review 10 (2006): 175–204Google Scholar. The rather strange (and controversial) decision of the Transvaal Provincial Division of the High Court in Nkadimeng v. National Director of Public Prosecutions (32709/07), December 12, 2008, http://www.lrc.org.za/docs/judgments/15_12_2008_Nkadimeng.pdf, provides a recent example of judicial circumscription of prosecutorial discretion with respect to “public interest” considerations.
97 Philip C. Stenning, “Prosecutions, Politics and the Public Interest: Some Recent Developments in the UK, Canada and Elsewhere,” Criminal Law Quarterly, forthcoming.
98 Ginwala Report, 42–43, para. 55. A somewhat more detailed (and less charitable) account of this change can be found at paras. 77–89 of Nicholson J.'s judgment in Zuma v. NDPP.
99 See Edwards, J.Ll.J., The Attorney General, Politics and the Public Interest (London: Sweet & Maxwell, 1984)Google Scholar.
100 Edwards, J.Ll.J., Ministerial Responsibility for National Security as it relates to the Offices of Prime Minister, Attorney General and Solicitor General of Canada (Ottawa: Minister of Supply and Services Canada, 1980), 120–21Google Scholar.
101 See Stenning, Philip C., ed., Accountability for Criminal Justice: Selected Essays (Toronto: University of Toronto Press, 1995)CrossRefGoogle Scholar. The recent very detailed public explanation, by the English director of public prosecution, of his prosecutorial decision in a highly controversial case concerning assisted suicide may, I think, be regarded as an encouraging illustration of this trend: see “Decision on Prosecution—The Death by Suicide of Daniel James” (CPS news release, December 9, 2008), http://www.cps.gov.uk/news/articles/death_by_suicide_of_danieljames/; and see more recently “DPP Publishes Interim Policy on Prosecuting Assisted Suicide” (CPS news release, September 23, 2009), http://www.cps.gov.uk/news/press_releases/144_09/.