Principled prosecutor

August 03, 2020 09:03
Photo: Reuters

The role of the Director of Public Prosecutions is little understood both in the public and, I suspect, in government circles.

Though the DPP is a government appointee, the responsibility is to the public at large, a fact reflected in the very title. Prosecutions are brought on behalf of the public, not the government.

Because the office of Hong Kong’s DPP is physically located within the Department of Justice, successive administrations have conflated the role as the government’s chief prosecutor. This is conceptually wrong.

Since 1986, the DPP heads the UK’s Crown Prosecution Service, the professional body responsible for providing the solicitorial services in support of prosecutions. It employs a body of lawyers and advocates responsible for considering the potential criminality of cases and advising the police on the nature of criminal charges.

Though CPS counsels are employed to conduct some prosecutions, the majority are briefed out to barristers in the public sector.

A critical responsibility of counsel instructed to conduct a prosecution is to act as a minister of justice. In basic terms, this means not stooping to every low means possible to secure a conviction.

One aspect of this is the duty of the prosecution to disclose to the defendant’s lawyers any evidence which assists the defence or casts doubt on any aspect of the prosecution evidence.

If prosecuting counsel becomes aware that the case cannot be sustained against the defendant, he or she has the duty to inform the court and offer no evidence.

That ethical responsibility rests firmly on the shoulders of prosecuting counsel and cannot be shifted to those from whom instructions have come.

This concept of the ethical responsibility of counsel begins with the DPP.

The decision whether or not to prosecute depends on a variety of issues: perhaps the easiest test is whether there is sufficient evidence to secure a conviction.

At the heart of the decision-making process is answering the question whether prosecution will serve the public’s interests. More complex and nuanced is where other issues have to be taken into consideration.

The multiplicity of circumstances that weigh on such a decision is too wide to provide an exhaustive list.

For any major crime where guilt falls to be determined by a jury, there will be occasions when the DPP could, in theory, relinquish responsibility to the jury but this would be an abdication.

A prime example of the necessity for the DPP to be totally independent of the administration is where there is an allegation of criminal conduct by a government employee.

Prior to the appointment of Alison Saunders from the ranks of the CPS, the UK’s DPP was invariably appointed from the private Bar, a process which emphasizes the independence of the role.

The risk inherent in making an appointment from within a government prosecuting body, whether it be the UK’s CPS or Hong Kong’s Department of Justice, is that the appointee will bring the institutions built-in prejudices to the role.

Such a mindset is inimical to the objectivity necessary for the appropriate exercise of the DPP’s work.

Max Hill QC, the current UK DPP comes from a powerful background in private practice before he became the independent reviewer of terrorism laws. Undeniably, he brings a singularly objective mind to the task.

The last Hong Kong DPP to be appointed from the private Bar was the late, and much lamented, Peter Nguyen QC (later Mr. Justice Nguyen). He brought precisely the required qualities of ethical integrity and disinterest to the role.

I well recall his impeccable prosecution of a very high-profile murder case in which I represented the Defendant. He deployed his considerable forensic skills with vigour, never losing sight of his great social responsibility but demonstrating balance, throughout.

With that courtesy that marks the fine man as much as the professional barrister, he was the first to congratulate me on securing a conviction for the lesser offence of manslaughter.

Which brings me to the resignation of Hong Kong’s DPP David Leung SC.

David Leung SC grew up in the shadow of a number of outstanding prosecutors in the Department of Justice, from whom he absorbed the unwritten conventions that help to guide the barrister through the maze of potential pitfalls.

As the head of the Prosecutions Division of the Department of Justice, it is inconceivable that he would have been omitted from any involvement in the ramifications of the application of the National Security Law. But he was.

It speaks volumes for David Leung’s integrity that he chose to resign. Equally, it trumpets Carrie Lam and her clique’s lack of it.

What, one may ask rhetorically, does it say about the Secretary for Justice? I shall not dignify her with an answer.

Crimes are offences against the criminal law not what politicians regard as offensive. That is precisely the criterion that the DPP has to apply when considering allegations of criminality.

Only a common law heretic would condone the nebulous provisions of the National Security Law.

Forget what the favour-seeking dilettante lawyers tell you about the National Security Law. Any yeoman criminal practitioner will tell you, contesting a law that changes shape according to the fickle whim of a capricious political party, is an impossibility.

We are witnessing the safeguards of a common law criminal justice system that has evolved over hundreds of years, being whittled away, piecemeal.

The loss of a principled DPP is a gravestone in the cemetery of vanishing hopes.

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King's Counsel