The pre-eminent position of the Attorney-General under the common law as the chief law officer of the State, generally as chief legal adviser to the State and specifically in all court proceedings to which the State is a party, is a common feature of the Constitutions of the Commonwealth countries. In many jurisdictions, including Nigeria, the Constitution confers the officer with similar powers to the common law prerogative to exercise ultimate control over prosecutions. However, despite this statutory basis the courts traditionally bestow the powers with the orthodox common law immunity from judicial review of the prerogative powers. This article challenges both the applicability of this orthodoxy to such jurisdictions and its continued validity under the common law. The first part deals with English law. It examines the origin and development of the orthodoxy in English law and argues that it should no longer apply to prerogative prosecutorial powers in view of the House of Lord’s decision in Council of Civil Service Unions v Minister for the Civil Service  AC 374 that prerogative powers that raise justiciable issues are amenable to judicial review. It further argues that the orthodoxy should not apply to statutory prosecutorial powers including the power to stop prosecutions in order to safeguard national security set out in the new Protocol between the Attorney-General and the Prosecuting Departments. The second part analyses the relevant provisions of successive Nigerian Constitutions to show that the orthodoxy has never been imported into post-Independence Nigerian law. It uses judicial interpretation of similar provisions in the Constitutions of other Commonwealth countries to establish the error in the Supreme Court’s decision in The State v Ilori  1 SCNLR 94 by which the orthodoxy was transplanted into Nigerian law. The third part applies the established grounds for judicial review to the exercise of the respective Attorney-General’s prosecutorial powers to give effect to the rule of law in both jurisdictions. The article concludes that judicial review will restore the right to private prosecution as a necessary safeguard against executive excesses and incompetence in both jurisdictions. Although the article deals specifically with English and Nigerian laws, the principles it sets out are applicable to other Commonwealth jurisdictions where the Attorneys-General or other officers such as the Directors of Public Prosecutions enjoy similar powers.
Table of contents
- 1. Introduction
- 2. Justiciability of the Prosecutorial Powers of the Attorney-General in English Law
- 3. Justiciability of the Prosecutorial Powers of the Attorney-General in Nigerian Law
- 3.1 Prosecutorial Powers of the Attorney-General and the Director of Public Prosecutions under the Colonial Constitutions
- 3.2 Prosecutorial Powers of the Director of Public Prosecutions under the 1960 Constitution
- 3.3 Prosecutorial Powers of the Attorney-General under the 1963 Constitution
- 3.4 Prosecutorial Powers of the Attorney-General under the 1979 Constitution
- 3.5 Prosecutorial Powers of the Attorney-General under the 1999 Constitution
- 4. Grounds for Judicial Review of the Prosecutorial Powers of the English and Nigerian Attorneys-General
- 5. Conclusion
The power of the A-G to start or stop prosecutions dates from the days when it was thought … to be quite right for the King to react to his political critics by prosecuting them … and in such matters the A-G was the right arm of the government. Fortunately, nowadays nobody in this country would – at least publicly – defend the powers of the A-G on the ground that the prosecution process is inherently political, and hence a matter on which the executive must retain the final word over the institution of prosecutions. But even if the A-G’s power to control the institution of prosecutions is no longer used or justified in this crude sort of way, and the current theory is that it is just a ‘safety-valve’ to enable prosecutions to be stopped in the rare case where the broader interests of the state are threatened by their continuance, the A-G’s power to stop prosecutions on ‘political’ grounds is … unacceptable because it undermines the notion of the Rule of Law.
Professor John Spencer QC made this statement in his evidence to the House of Commons Constitutional Affairs Select Committee in April 2007.1 The Committee emphasised that ‘[t]he Attorney General’s responsibility for prosecutions has emerged as one of the most problematic aspects of his or her role’.2 It noted that:
Recent controversial issues including the ‘cash for honours’ investigation, [and] the decision not to prosecute in the BAE Systems case … have compromised or appeared to compromise the position of the Attorney General. The perceptions of a lack of independence and of political bias have risked an erosion of public confidence in the office.3
The Committee further criticised the combination of the legal roles of chief legal adviser to the Government and guardian of the public interest (in which capacity the prosecutorial powers are exercised) and the political role of Minister with responsibility for the formulation and delivery of criminal justice policy. It described the situation as ‘not sustainable’,4 and recommended ‘that the current duties … be split in two: the purely legal functions should be carried out by an official who is outside party political life; the ministerial duties should be carried out by a minister in the Ministry of Justice.’5 But the Government6 rejected the recommendation:
The Government’s settled view is that the Attorney General should remain the Government’s chief legal adviser, a Minister and member of one of the Houses of Parliament, and that the Attorney General should continue as the Minister responsible for superintending the prosecuting authorities.7
The Nigerian Constitution similarly provides for an ‘Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation’8 and confers on him the power to start or stop prosecutions in the public interest.9 The officer, usually styled ‘Attorney-General and Minister of Justice’ and invariably appointed on the basis of political considerations, has typically ‘proved to be more of a political minister than an officer of the law committed to upholding the demands of criminal justice’, thereby making ‘[p]rosecutions of political opponents upon trumped-up charges and the discontinuance of prosecutions instituted by the police against government party activists … a common phenomenon’.10 As a result, recent news reports like ‘Nigeria’s attorney-general is stalling efforts to recover millions of dollars looted by former Nigerian officials’11 need scarcely occasion great controversy except that they effectively portend the use of prosecutorial powers to perpetuate the high-level corruption that has seen over £200 billion looted from the Nigerian treasury.12 Consequent calls for a constitutional amendment to separate the political and legal functions of the Attorney-General13 have, unsurprisingly, been ignored by the Government.
Against this background, it is surprising that the case law in both jurisdictions (referred to as the orthodoxy in this article) continues to be that:
‘subject only to ultimate control by public opinion and that of Parliament or the Legislature, the Attorney-General [is] a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings.’14
This article argues that judicial review15 of the exercise of the powers is imperative to uphold the rule of law in both jurisdictions. The critical importance of the transparency and accountability derivable from judicial review is underscored by the following exposition of the prosecutorial discretion:
The decision whether or not to prosecute … and, if so, for what offence, or whether to use an out of court disposal, is a quasi-judicial function which requires the evaluation of the strength of the evidence and also a judgment about whether an investigation and/or prosecution is needed in the public interest. Prosecutors take such decisions in a fair and impartial way, acting at all times in accordance with the highest ethical standards and in the best interests of justice. In this way, prosecutors are central to the maintenance of a just, democratic and fair society based on a scrupulous adherence to the rule of law.16
Yet, accountability to the courts is an imperative of the rule of law. According to the former Senior Law Lord in England and Wales, Lord Bingham: ‘The core of the … principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.’17 Any derogation from this general principle, he insists, ‘calls for close consideration and clear justification.’18 This article seeks to demonstrate that there is no such clear justification for the orthodoxy, which is a clear derogation from the principle of the rule of law.
The origin of the office of Attorney-General is usually traced to the thirteenth century when, as King’s Attorney or King’s Serjeant, he was responsible for maintaining the interests of the King in the royal courts. The first reference to a regular Crown counsel appeared in the reign of Henry III when it was recorded that one Lawrence del Brok pleaded for the King from 1253 to 1267. However, the office appears to have become a fixed institution only after the accession of Edward IV in 1461, when John Herbert (the first person to be called ‘Attorney-General’) was appointed as the King’s principal law officer.19
Thus the prerogative power of the king to control prosecutions was vested in his Attorney-General. According to the Lord Chief Justice of the Court of Common Pleas:
By our constitution, the King is entrusted with the prosecution of all crimes which disturb the peace and order of society … As indictments and informations, granted by the King’s Bench, are the King’s suits, and under his controul; informations, filed by his Attorney General, are most emphatically his suits, because they are immediate emanations of his will and pleasure.20
Over the years, legislative activity has progressively reduced the areas in which prerogative prosecutorial powers operate. Following the ‘cash-for-honours’21 and BAE 22 controversies, which many believe hastened the departure of Tony Bair as Prime Minister on June 27, 2007, the new Prime Minister, Gordon Brown, launched a consultation to ‘renew the role of the Attorney-General to ensure that the office retains the public’s confidence’23 on 3 July 2007. The consultation was followed by the publication of a White Paper24, along with a draft Constitutional Renewal Bill25 (‘Draft Bill’, that seeks to implement its proposals) placed before Parliament in March 2008. Part 2 of the Draft Bill was devoted to ‘The Attorney-General and Prosecutions.’ Key recommendations in the Draft Bill included the abolition of the power to enter a nolle prosequi26, the transfer of most of the powers to consent to prosecutions to other prosecutors and the abolition of others,27 the provision of powers to intervene in prosecutions and certain investigations to safeguard national security.28 The Draft Bill was considered by the House of Commons Justice Committee and the Joint Committee on the Draft Constitutional Renewal Bill which reported on 24 June 200829 and 31 July 200830 respectively.
However, on 20 July 2009 the Government published the Constitutional Reform and Governance Bill, which omitted some provisions of the Draft Bill including the provisions relating to the role of the Attorney-General. The Government took the view that ‘the significant, necessary reforms to the role of Attorney-General are being achieved without the need for legislation.’31 It concluded that ‘[g]iven that it has been possible to make these reforms … without legislation, the Government have concluded that it is not necessary to include legislative changes in respect of the Attorney-General.’32 Instead on 21 July 2009 it published ‘a new protocol which clearly sets out the relationship of the Attorney General with the prosecuting authorities she superintends, produced in collaboration with the directors of the Crown Prosecution Service (CPS), the Serious Fraud Office (SFO), and the Revenue and Customs Prosecutions Office (RCPO).’33 Consequently, the prosecutorial powers of the Attorney-General in English law continue to derive from both the Royal prerogative and statutes enacted by Parliament.
The principal function of the king was the governance of England and the overseas territories under his sovereignty. He originally did so entirely by personal prerogative, before Parliament and evolving principles of English constitutional law progressively limited his powers. Consequently, the royal prerogative is usually defined in terms of its residuary character. For example, Dicey defined it as ‘the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the Queen herself or by her Ministers.’34 In his view, ‘[e]very act which the executive government can lawfully do without the authority of an Act of Parliament is done by virtue of this prerogative.’35
The wide prerogatives vested in the Attorney-General include the power to enter a nolle prosequi in criminal prosecutions, the power to maintain relator actions and, until 1967 when it was abolished36, the power to file ex officio informations in the High Court. In line with the doctrine – ‘[i]n the exertion … of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the Constitution’37 – the Attorney-General enjoyed a position of omnipotence in the exercise of these powers. Accordingly, successive Attorneys-General, with the help of deferential judges (many of whom had been Attorneys-General in the past) won some epic legal battles in leading authorities that firmly established the orthodoxy according to which the powers of the Attorney-General are not subject to judicial review. Notable amongst these cases are R v Allen (‘Allen‘),38 R v Comptroller-General of Patents (‘Ex p Tomlinson‘)39 and Gouriet v Union of Post Office Workers (‘Gouriet‘).40 Speaking in the Court of Appeal in Ex p Tomlinson, AL Smith LJ summarised the position thus:
We know that he has had from the earliest times to perform high judicial functions which are left to his discretion to decide. For example, where a man who is tried for his life and convicted alleges that there is error on the record, he cannot take advantage of that error unless he obtains the fiat of the Attorney-General, and no Court in the kingdom has any controlling jurisdiction over him. That perhaps is the strongest case that can be put as to the position of the Attorney-General in exercising judicial functions. Another case in which the Attorney-General is pre-eminent is the power to enter a nolle prosequi in a criminal case. I do not say that when a case is before a judge a prosecutor may not ask the judge to allow the case to be withdrawn, and the judge may do so if he is satisfied that there is no case; but the Attorney-General alone has power to enter a nolle prosequi, and that power is not subject to any control. Another case is that of a criminal information at the suit of the Attorney-General ….The issue of such an information is entirely in the discretion of the Attorney-General, and no one can set such an information aside. [H]is decisions, when exercising such functions, were not subject to review by the Court of Queen’s Bench, and are not now subject to review by the Queen’s Bench Division or this Court.41
Gouriet,42 in which the Attorney-General Mr Sam Silkin QC famously defended the orthodoxy against the revolutionary onslaught of Lord Denning, is the high-water mark of the principle. The case arose from Silkin’s refusal to consent to a relator action43 by Mr Gouriet44 for an injunction to stop the respondents from boycotting South African posts in protest against apartheid.45 Stocker J dismissed Gouriet’s application for a declaration and an interim injunction against the respondents on the ground that he had no power to make the order requested. However, Lord Denning ensured that the Court of Appeal was more receptive to Gouriet’s appeal at a special sitting on a Saturday.46 Silkin had followed the convention by refusing to disclose the reasons for his decision on the ground that he was only accountable to Parliament. Lord Denning condemned this as ‘contrary to the whole spirit of the law of England’47 and ‘a direct challenge to the rule of law’.48 He maintained that the courts had the power to review the Attorney-General’s refusal to grant the necessary consent. Although Lord Denning’s colleagues in the Court of Appeal supported his decision to grant Gouriet an interim injunction in view of the threat by the respondents to break the law,49 they rejected his claim that the court had the power to review the Attorney-General’s decision.50
By the time the case reached the House of Lords, Gouriet had abandoned his claim that the Attorney-General’s decision was improper or that it could be reviewed by the court. Nevertheless, after ruling that the Court of Appeal had no power to grant him an interim injunction, Their Lordships emphatically and unanimously rejected Lord Denning’s claim that the court had the power to review the Attorney-General’s decision and upheld Silkin’s contention that he was accountable to the public only through Parliament.51 Lord Edmund-Davies held that ‘the Attorney-General’s discretion is absolute and non-reviewable’;52 referring to Lord Denning’s remarks that Silkin’s contention implied that Attorneys-General ‘can, one after another, suspend or dispense with the execution of the law of England’,53 he observed that ‘Attorneys-General have for generations possessed and exercised that very power in relation to criminal prosecutions, notwithstanding which the heavens have not fallen and the stars stay their courses’.54
In his speech, Viscount Dilhorne (Attorney-General from 1954 to 1962) took the opportunity to restate the orthodoxy with specific reference to the power to enter a nolle prosequi which is probably the only surviving significant prerogative power of the Attorney-General55. In an oft-quoted dictum, he stated:
The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts.56
Lord Bingham recently confirmed that this dictum ‘remains a binding statement of English law on cases covered by it.’57 Therefore the recent affirmation by the Government that the power to enter a nolle prosequi ‘serves a useful purpose’58 and that it ‘does not intend to abolish it’59 emphasises the continued relevance of the principle established in the Gouriet line of cases.
However, the judgment in Gouriet is a reflection of past judicial refusal to enquire into the way in which a prerogative power had been exercised.60 With the progressive development of judicial review, the courts have been more willing to review the exercise of discretionary power, whether derived from statute or the prerogative.61 This change in judicial attitude reached its climax in Council of Civil Service Unions v Minister for the Civil Service62 in which the House of Lords laid the view that all prerogative powers are beyond judicial review to rest. The respondent had, in exercise of her prerogative powers,63 changed the terms and conditions of service of the Government Communications Headquarters (GCHQ)64 staff without consulting with the unions. The union then sought judicial review of the decision on the ground of unfairness. In an affidavit, the Secretary to the Cabinet claimed that prior consultation could have disrupted and exposed vulnerable areas of GCHQ’s operations. The House of Lords accepted the respondent’s explanation that the requirements of national security outweighed those of fairness. However, they held that her decision would have otherwise been vitiated by her failure to consult, and would have been amenable to judicial review even though she acted by virtue of a prerogative power.65
Lord Diplock could see ‘no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review’.66 Rather, as Lord Scarman put it:
[T]he law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…. Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.67
The prerogative prosecutorial powers of the Attorney-General were not expressly considered in this case. However, the necessary implication of the decision is that these powers are now subject to judicial review in the same way as the prosecutorial powers of other prosecutors that have long been subject to judicial review, and the statutory prosecutorial powers of the Attorney-General that should have long been subject to judicial review. The Gouriet line of cases conferred immunity from judicial review on the Attorney-General simply because his prosecutorial powers derive from the prerogative rather than statute but the basis of this privilege was, in the GCHQ case, ‘overwhelmed by the developing modern law of judicial review’.68
This contention enjoys considerable support from the decision of a very strong bench of the Law Lords sitting as the Judicial Committee of the Privy Council in Mohit v DPP of Mauritius69. In that case the Mauritian Director of Public Prosecutions, who enjoys similar prosecutorial powers to the English Attorney-General, filed a nolle prosequi and terminated the proceedings each time the appellant tried to bring a private prosecution against a senior politician. The appellant requested leave to apply for judicial review from the Supreme Court of Mauritius but the court upheld the DPP’s argument that the effect of the decision in Gouriet was that the exercise of the DPP’s powers was not amenable to judicial review. However, on appeal to the Privy Council the DPP, in an apparent attempt to avoid the adverse implication of the GCHQ case for the Gouriet precedent, supported the decision of the Supreme Court by relying less on the source of the power to enter a nolle prosequi than on the nature of the decision to enter one. Invoking Lord Scarman’s statement in the GCHQ case – that the controlling factor in determining whether the exercise of prerogative power is justiciable is its subject matter – the DPP contended that a prosecutorial decision ‘involves the assessment of factors which the courts cannot and should not seek to review’.70 The Privy Council emphatically rejected this contention, and refused to disturb ‘the ordinary assumption that a public officer exercising statutory functions is amenable to judicial review’.71
For completeness, it should be noted that the limited guidance relating to the distinction between justiciable and non-justiciable prerogative powers provided by Their Lordships in the GCHQ case indicates that the Attorney-General’s prosecutorial discretion remains justiciable even if its subject matter is regarded as different in character from that of other prosecutors in view of her unique constitutional position. They held that the power to regulate the terms of employment of civil servants was amenable to judicial review. However, Lord Roskill, with whom the rest did not disagree, specifically excluded powers such as ‘those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others’72 from judicial review.
It is evident that a common feature of these excluded powers is their inherently political character.73 It can therefore be extrapolated from the decision in GCHQ that only the prerogative powers that relate to purely political matters remain non-justiciable since the principle of separation of powers requires the courts to avoid the political arena. As Lord Fraser explained in his speech, the orthodox rule is ‘plainly reasonable in relation to many of the most important prerogative powers which are concerned with control of the armed forces and with foreign policy and with other matters which are unsuitable for discussion or review in the law courts’.74
On the other hand, the existence of the prerogative prosecutorial powers and their retention in the office of the Attorney-General have long been justified on the basis that they are judicial or quasi-judicial rather than political by both judges75 and holders of the office. In the latter category is the statement in 1951 by the then Attorney-General Sir Hartley Shawcross to the House of Commons, which has since been accepted as the modus operandi of the prosecutorial powers (the so-called ‘Shawcross exercise’) by all his successors.76 According to him:
Prosecution may involve a question of public policy or national, or sometimes international, concern; but in cases like that, the Attorney-General has to make up his mind not as a party politician; he must in a quasi-judicial way consider the effect of prosecution upon the administration of law and of government in the abstract rather than in any party sense…. I think the true doctrine is that it is the duty of an Attorney General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other consideration affecting public policy.
In order so to inform him, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government, and indeed as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and it does not consist, and must not consist, in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.
Nor, of course, can the Attorney General shift his responsibility for making the decision on to the shoulders of his colleagues. 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.77
Therefore, as Professor Spencer said in the statement quoted at the beginning of this article, ‘nobody … would – at least publicly – defend the powers of the A-G on the ground that the prosecution process is inherently political, and hence a matter on which the executive must retain the final word’78,or more specifically for present purposes, a matter on which the court cannot adjudicate.79 Furthermore, in the GCHQ case, Lord Diplock stated that to be a justiciable decision, ‘the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too.’80 The prerogatives listed as non-justiciable by Lord Roskill in that case can be said to lack the effect described by Lord Diplock, in contrast to those that have been successfully challenged in court since the decision in the GCHQ case.81
Although Lord Bingham confirmed that Viscount Dilhorne’s dictum in Gouriet continues to represent the law in England and Wales in his judgement in Mohit, he suggested that this could be ‘reviewed or modified in the light of the later decision of the House of Lords in the GCHQ case’.82 Also, in a subsequent passage he referred to ‘the immunity enjoyed, at any rate in the past, by the English Attorney General when exercising the prerogative power to enter a nolle prosequi’.83
Very significantly, the House of Lords recently reviewed an Order in Council enacted under prerogative powers in R (On The Application of) v Secretary of State For Foreign and Commonwealth Affairs.84 In that case, Lord Hoffmann firmly rejected the attempt to distinguish the GCHQ case on the ground it was concerned with the validity an executive decision made pursuant to powers conferred by prerogative order rather than a prerogative order itself. In a statement that was unanimously endorsed by the House of Lords, he said:
Until the decision of this House in [the GCHQ case] it may have been assumed that the exercise of prerogative powers was, as such, immune from judicial review. That objection being removed, I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action.85
Therefore, the Supreme Court, which replaced the House of Lords on 1 October 2009, should subject the Attorney-General’s prerogative prosecutorial powers to judicial review by expressly overruling the Gouriet line of cases whenever the opportunity presents itself.86After all, as Lord Edmund-Davies would say, the courts have for generations possessed and exercised that very power in relation to the prosecutorial powers of other prosecutors, notwithstanding which the heavens have not fallen and the stars stay their courses.87
The statutory prosecutorial powers of the Attorney-General can be divided into two categories. First, a plethora of statutes now create offences that cannot be prosecuted without the consent of the Attorney-General. The former Attorney-General Lord Goldsmith provided an insight into the nature of these powers while defending his refusal to stand down from the exercise of such power under the Honours (Prevention of Abuses) Act 1925 in relation to the ‘cash for honours’ controversy:88
[S]ome commentators suggested I should simply stand aside from any involvement, but as I pointed out that it is not possible where my consent is actually required by law. No prosecution under those provisions can go ahead without it. In fact, as I also pointed out, the position goes further than that because of my constitutional responsibility to be answerable for prosecutions in this country.89
Clause 4(a) of the Protocol between the Attorney General and the Prosecuting Departments90 (‘the Protocol’) sets out how the Attorney-General’s consent to prosecute works in practice:
4(a)2. It is a constitutional principle that when taking a decision whether to consent to a prosecution, the Attorney General acts independently of government, applying well established prosecution principles of evidential sufficiency and public interest.
4(a)3. Where the prosecutor considers that there is sufficient evidence to prosecute for one of these offences and that a prosecution is or may be in the public interest, the prosecutor seeks the Attorney General’s consent to bring a prosecution. That decision is taken by the Attorney General.
4(a)4. Once a prosecution is commenced in one of these cases, the prosecutor keeps the Attorney General informed of its progress and whenever practicable, consults the Attorney General if the prosecutor is contemplating either dropping the case on public interest grounds, or accepting pleas.
4(a)5. If the case can no longer proceed for evidential reasons which emerge after a prosecution is started, the prosecutor informs the Attorney General of the decision as soon as it is taken.91
Secondly, the Directors of the CPS, SFO and RCPO who are signatories to the Protocol are all appointed by the Attorney-General92 and invariably exercise their statutory prosecution (and in the case of the Director of the SFO prosecution and investigation93) powers ‘under the superintendence of the Attorney General.’94 The Protocol explains the meaning and extent of this superintendence relationship. Clause 4(d) states inter alia:
4(d)2. The Attorney General’s responsibilities for superintendence and accountability to Parliament mean that he or she, acting in the wider public interest, needs occasionally to engage with a Director about a case because it:
- is particularly sensitive; and/or
- has implications for prosecution or criminal justice policy or practice;
- and/or reveals some systemic issues for the framework of the law, or the operation of the criminal justice system.
4(d)3. In these circumstances the Attorney General will be alerted to a case by the Director at the earliest opportunity, or may call for information about a case, or will discuss the case with the Director. The Director will keep the Attorney General informed as significant developments occur. The Attorney General may express any concerns. The decision in these cases remains the Director’s.
In line with the doctrine – ‘the King hath no prerogative but that which the law of the land allows him’95 – the courts have traditionally determined whether any claimed prerogative power existed, whether it has been properly exercised, and whether it has been superseded by statute. Therefore where a statutory power covers the same field as a prerogative power the latter is curtailed such that any restrictions and conditions applicable to the statutory power cannot be ignored.96 Professor Edwards’ notable contribution to the issue of justiciability of the statutory prosecutorial powers of the Attorney-General, which was approved by the Privy Council in Mohit, should be seen against this constitutional background. According to him:
Since the source of the discretionary power rests in statute law there are no inherent constitutional objections to the jurisdiction of the courts being invoked such as arise with respect to the prerogative powers of the Law Officers of the Crown. Most of the celebrated cases which have been concerned with the reviewability of the Attorney-General’s decisions fall within this latter category … These powers derive from the prerogative authority vested in the Attorney-General and must be carefully distinguished from the discretionary powers that owe their origin to the actions of Parliament and which are to be found embedded in the long list of statutory provisions.97
However, there is an established line of authorities that confer these statutory powers with the presumptive immunity from judicial review of the prerogative powers. Indeed, Professor Edwards noted ‘the absence in the law reports of any recorded instances in which the exercise of a consent power by the Attorney-General … has been successfully challenged.’98 Similarly powers that derive from the statutory superintendence relationship between the Attorney General and other prosecutors have been equated to prerogative powers. For example, in 1883, Pollock B reportedly held in Ex p. Hurter99 that ‘it has never yet been suggested that the exercise by the Attorney-General of the discretion vested in him, either by common law or by statute, has been controlled by the courts.’100 Bernard Dickens’s report of that case is very instructive:
The case concerned an application to the Divisional Court for an order of mandamus to compel the Director of Public Prosecutions to exercise his exclusive discretion to authorise a prosecution under the Newspaper Libel Act 1881. The Director of Public Prosecutions had been created only four years earlier101 to carry out his statutory duties “under the superintendence of the Attorney-General,” and the court considered that the Director of Public Prosecutions was beyond judicial control because of his subordination to the Attorney-General some of whose duties he shared.102
A century later, in Raymond v Attorney-General103, the Court of Appeal upheld the decision of the High Court to decline an application for judicial review of the powers of the DPP under the Prosecution of Offences Act 1979. Relying on Lord Dilhorne’s statement in Gouriet104, the court held that:
[T]the safeguard against an unnecessary or gratuitous exercise of this power is that … duties are exercised “under the superintendence of the Attorney-General.” That officer of the Crown is, in his turn, answerable to Parliament if it should appear that his or the Director’s powers under the statute have in any case been abused.105
[T]he applicants sought judicial review of a decision by the Solicitor-General, taken on behalf of the Attorney-General by virtue of section 1 of the Law Officers Act 1944 … that it was not appropriate to take proceedings for contempt of court arising out of the newspaper coverage of the trial of the applicants …. The decision had been made on the basis that any prosecution would, in the light of the evidence, have been unlikely to succeed. It was argued on behalf of the applicants that although the weight of authority was against judicial review of the Attorney-General’s decisions, that authority did not apply to those decisions, such as the instant, in which the Attorney-General had refused consent on the ground of evidential insufficiency rather than any political considerations (for which the Attorney-General was answerable to Parliament alone). The court’s attention was also drawn to the authorities which demonstrated that other prosecuting authorities were susceptible to judicial review.108 Lord Justice Stuart-Smith, giving judgment, did not accept the submissions:
‘The authorities … which lay down the rules in relation to the Attorney-General, point to his unique constitutional position…. Parliament must be taken to know the law as stated in Gouriet and the previous authorities; and if it had intended the Attorney-General’s discretion to be reviewable by this court in this instance, in my view it would have said so.’109
The above decisions are erroneous in law. The Privy Council’s judgement in Mohit reflects the correct legal position in relation to both categories of statutory prosecutorial powers. In that case, Lord Bingham referred to Lloyd LJ’s observation in R v Panel on Take-overs and Mergers110 – ‘if the source of power is a statute or subordinate legislation under a statute then clearly the body in question will be subject to judicial review’. This, according to him, ‘now represents the ordinary if not the invariable rule’. Accordingly, he stated that:
Where the Attorney General’s power derives from a statutory source, as in giving his consent to prosecutions requiring such consent, Professor Edwards has noted, and the Law Commission has tacitly accepted, that ‘[s]ince the source of the discretionary power … rests in statute law there are no inherent constitutional objections to the jurisdiction of the courts being invoked.’111
It is significant that unlike the courts in the three decisions discussed above, both the Divisional Court112 and the House of Lords113 recently reviewed the decision of the Director of the Serious Fraud Office (SFO) to stop the investigation into alleged bribery by BAE despite the fact the Director, just like the prosecuting authorities in the three cases, acted ‘under the superintendence of the Attorney-General’ under section 1(2) of the Criminal Justice Act 1987.
Section 12 of the Draft Constitutional Renewal Bill had recommended this power in these terms:
The Attorney-General may, if satisfied that it is necessary to do so for the purpose of safeguarding national security –
(a) give a direction to the Director of Serious Fraud Office that no investigation of specified matters is to take place in England and Wales;
(b) give a direction to any prosecutor, in relation to an investigation of specified matters, that no proceedings for an offence are to be instituted in England and Wales in respect of those matters;
(c) give a direction to any prosecutor that proceedings for a specified offence which are being conducted in England and Wales against a specified person are not to be continued.114
Sections 13(1) and (3) proposed that such a direction be binding on the prosecuting authority to which it is addressed. Furthermore, section 13(5) recommended an ouster provision:
If in any proceedings any question arises whether a direction under section 12(1) is or was necessary for the purpose of safeguarding national security …. a certificate signed by a Minister of the Crown certifying that the direction is or was necessary for that purpose is conclusive evidence of that fact.
Instead section 14 provided that the Attorney-General must report to Parliament where she has given or withdrawn a direction under section 12. Coming in the wake of the Administrative Court’s critical decision in the BAE case115 (and before the House of Lords favourable judgement116) the proposed section 13(5) was criticised as a direct attempt to preclude similar challenges in the future.117
This recommendation has now been superseded by the Government’s decision to reform the role of the Attorney-General through non-statutory means. However, clause 4(b) of the Protocol has substantially reproduced the provisions of sections 12 and 14 of the Draft Bill as follows:
4(b)1. The one exceptional category of case in which the Attorney General will consider the possibility that she or he may direct that a prosecution is not started or not continued (or, in the case of the SFO, that an investigation is not to take place or not to continue) is where the Attorney General is satisfied that it is necessary to do so for the purpose of safeguarding national security.
4(b)2. The offences most likely to give rise to national security considerations require the Attorney General’s consent to a prosecution. But if national security considerations emerge partway through a case or investigation, or in cases which do not require consent, the Director will inform the Attorney General as soon as this becomes evident.
4(b)3. Before considering the possibility that he or she may direct in this way, which will only be in the most exceptional cases, the Attorney General will consult the relevant Director. The possibility of direction does not prevent the Director from taking a decision not to start or continue a prosecution or SFO investigation on national security grounds.
4(b)4. If any such direction were made the Attorney General would make a report to Parliament, so far as was compatible with national security.
The ouster provision of section 13 of the Draft Constitutional Renewal Bill has been omitted from the Protocol, and the Government has stated that: ‘[w]ith no provisions in the [Constitutional Reform and Governance] Bill on the role of the Attorney General this recommendation has been superseded.’118 However, it is unclear whether the Government remains of the view that section 13 of the Draft Constitutional Renewal Bill (and by implication clause 4(b) of the Protocol) is merely a restatement of an existing constitutional principle that state that executive decisions on questions of national security are immune from judicial review. In the course of her evidence to the House of Commons Select Committee on Justice on 10 June 2008 the Attorney-General Baroness Scotland of Asthal said this in relation sections 12 and 13 of the Draft Bill:
[T]he courts understand that this is not a question of pure law, it is a question of judgment as to what is in the national interest. If it assists, I am very happy to remind the Committee what was said in relation to this. The court said this: “The question of whether something is in the interests of national security is not a question of law, it is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision, they are entrusted to the Executive”. That was Lord Hoffmann.119
The case referred to by the Attorney-General is Secretary of State for Home Affairs v Rehman120, where the House of Lords interpreted legislation that specifies ‘the interests of national security’ as a ground on which the Home Secretary may consider a deportation conducive to the public good. However, Lord Hoffmann had qualified his statement by explaining that it ‘does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary’. He also emphasised that ‘the factual basis for the executive’s opinion … must be established by evidence’ and that the court ‘may reject the Home Secretary’s opinion on the ground that it was ‘one which no reasonable minister advising the Crown could in the circumstances reasonably have held’.121 Moreover, in his speech in the same case, Lord Steyn, with whom Lords Slynn and Hutton agreed, emphasised that ‘it is well established in the case law that issues of national security do not fall beyond the competence of the courts’122 even if it is ‘self-evidently right that national courts must give great weight to the views of the executive on matters of national security.’123
Indeed, Lord Hoffmann had stated that ‘the precise boundaries were analysed by Lord Scarman, by reference to Chandler’s case in his speech in Council of Civil Service Unions v Minister for the Civil Service’.124 In the GCHQ case, Lord Scarman had to explain a statement by Lord Parker in the old case of The Zamora125, which bears a striking resemblance to Lord Hoffmann’s statement in Rehman. In The Zamora126, a neutral ship carrying contraband copper was seized by a British cruiser and kept in the custody of the Prize Court during the First World War. The court granted the Crown requisition of the copper, relying on an Order that empowered it to do so ‘where it is made to appear to the judge on the application of the proper officer of the Crown that it is desired to requisition on behalf of His Majesty’.127 The Privy Council overturned the decision on the ground that there was no evidence before the judge that the copper was required for the conduct of the war or for other matters of national security. In the course of his judgement, Lord Parker said:
…the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which it is desired to requisition are urgently required for use in connection with … the prosecution of the war, or other matters involving national security, as conclusive of the fact…. Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.128
Although this statement, just like Lord Hoffmann’s in Rehman, appears to support the Attorney-General’s contention, this was not in fact the correct view, even in 1916. As Lord Scarman explained in the GCHQ case:
These words were no abdication of the judicial function, but were an indication of the evidence required by the court…. The Crown’s claim was rejected ‘because the judge had before him no satisfactory evidence that such a right was exercisable’.129 The Prize Court, therefore, treated the question as one of fact for its determination and indicated the evidence needed to establish the fact. The true significance of Lord Parker’s dictum is simply that the court is in no position to substitute its opinion for the opinion of those responsible for national security. But the case is a fine illustration of the court’s duty to ensure that the essential facts to which the opinion or judgment of those responsible relates are proved to the satisfaction of the court.130
Also, with reference to the decision of the House of Lords in Chandler v Director of Public Prosecutions131, in which the existence of ‘a purpose prejudicial to the safety or interests of the state’ under section 1 of the Official Secrets Act 1911 was determined in criminal proceedings, Lord Scarman said:
As I read the speeches in Chandler’s case, the House accepted that the statute required the prosecution to establish by evidence … a purpose prejudicial to the safety or interests of the state…. Here, like Lord Parker in the Zamora, Lord Devlin was accepting that the Crown, or its responsible servants, are the best judges of what national security requires without excluding the judicial function of determining whether the interest of national security has been shown to be involved in the case.132
Having laid this foundation, Lord Scarman then set out the principle referred to by Lord Hoffmann in Rehman. According to him:
[W]here a question as to the interest of national security arises in judicial proceedings the court has to act on evidence…. Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the court will accept the opinion of the Crown or its responsible officer as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. There is no abdication of the judicial function, but there is a common sense limitation recognised by the judges as to what is justiciable: and the limitation is entirely consistent with the general development of the modern case law of judicial review.133
This principle, which would have applied to section 13(5) of the Draft Bill, should now apply to clause 4(b) of the Protocol. As Lord Bingham recently observed extra-judicially, ‘governments understandably go to the very limit of what they believe to be their lawful powers to protect the public, and the duty of the judges to require they go no further must be performed if the rule of law is to be observed.’134
There was an officer that acted as Attorney-General in every British Colony. He was generally appointed by an instrument under the Public Seal of the Colony in Her Majesty’s name and performed similar functions to those of the Attorney-General in England.135 In relation to Nigeria, Dr Taslim Elias136 wrote that:
The exact origin of the office of Attorney-General before 1900 would seem to be obscure. We know from Mr J. A. Otunba Payne’s Lagos Almanack that there was a Queen’s Advocate as well as a Queen’s Proctor and that he acted both parts in addition to his own substantive duties as Registrar and Taxing Master of the then Supreme Court between 1863 and 1901. The Supreme Court Ordinance 1876 did not mention the office. The office must have been instituted under that name, if not at the proclamation of the two Protectorates on January 1, 1900, at any rate between that date and 1912 when Lord Lugard assume[d] responsibility for the amalgamation of Northern and Southern Protectorates of Nigeria, which involved the merger of the two offices of Attorney-General into one as Attorney-General for the Colony and Protectorate of Nigeria on January 1, 1914.137
Section 2 of the Law Officers Ordinance138 that took effect on October 1, 1936 created the offices of Attorney-General and Solicitor General. A 1951 amendment to the Ordinance139 created the office of Legal Secretary.140 A further amendment in 1954141 provided that ‘the Attorney-General … of the Federation shall be entitled in the courts in Nigeria to the same rights and privileges as are enjoyed by the Attorney-General … of England in the courts in England.’142 The offices of Regional Attorneys-General were created by a further amendment in 1955, to replace the Legal Secretaries.143 Today, the Attorney-General of the Federation still exercises similar powers to the English Attorney-General including the constitutional powers to start or stop prosecutions and powers under various statutes to consent to prosecutions.144 Under the country’s federal Constitution, the Attorney-General and Commissioner for Justice in each of the thirty six states (who replaced the Regional Attorneys-General) exercises identical powers in relation to criminal proceedings in respect of criminal offences under their respective state laws.
3.1 Prosecutorial Powers of the Attorney-General and the Director of Public Prosecutions under the Colonial Constitutions
The Criminal Procedure Ordinance145, which came into force in 1945, codified the prosecutorial powers of the Law Officers. Amendments to the Ordinance in 1954146 and 1955147 conferred on the Federal and Regional Attorneys-General respectively the powers to ‘exhibit to the High Court informations for all purposes for which Her Majesty’s Attorney-General for England may exhibit informations in the High Court of Justice in England’148 and to ‘enter a nolle prosequi.’149. In 1958, an amendment150 to the Law Officers Ordinance transferred the powers of the Attorneys-General of the Western and Eastern Regions to initiate, conduct, and discontinue criminal proceedings to the newly created office of the Director of Public Prosecutions of both Regions.151
Thus in Shittu Layiwola & Others v The Queen152 (Layiwola), Acting Chief Justice Abbott, sitting in the defunct Federal Supreme Court153 made the following statement ‘after disposing of the appeals’154 from a decision of the Ibadan High Court in Western Nigeria:
The learned trial Judge saw fit, in his judgement, to pass adverse comment on the action of the prosecuting authorities in charging ten of the rioters in this case before a Magistrate with malicious damage and stealing and charging the eight persons before the learned trial Judge with murder. The Judge expressed the view … ‘in my opinion it was not open for the prosecution to elect or select which of the accused persons should be charged with the minor offences which (with) the graver. The fact that only one witness identified some of the persons charged is, in my view, beside the point. This is a matter which relates to proof and it is the province of the court.’ With due respect … we find ourselves unable to agree with this view. It is without question the province of the Law Officers of the Crown (in this case the Director of Public Prosecution) to decide, in the light of what public interest requires in any particular case, who shall be charged, and with what offence. It is entirely a matter for this Officer’s quasi judicial discretion, and, in our view, in order to secure the proper administration of justice, he must be left to exercise his discretion according to his own judgment, neither acting on any rule of thumb nor taking into account any other consideration other than public interest.155
As demonstrated below, in The State v Ilori156, the Supreme Court interpreted this obiter statement as an importation of the common law orthodoxy into Nigerian law. However, it is apparent that Justice Abbott only emphasised the considerable width of the DPP’s prosecutorial discretion, which the trial judge appeared to deny. As Lord Bingham explained in Mohit, ‘recognition of a right to challenge the DPP’s decision does not involve the courts in substituting their own administrative decision for his.’157 According to him:
It is, however, one thing to conclude that the courts must be very sparing in their grant of relief to those seeking to challenge the DPP’s decisions … and quite another to hold that such decisions are immune from any review at all, as a line of English authority relating to the DPP and other prosecuting authorities has shown.158
In any event, since the Crown prerogatives were, except where limited by local statutes, as extensive in the colonies as they were in England159 and since the Law Officers Ordinance and the Criminal Procedure Ordinance did not appear to contain any such limitation, the Federal Supreme Court would have been on strong constitutional ground to invoke the orthodoxy in Layiwola. However, the same cannot be said of the Supreme Court’s conclusion in Ilori that the position in 1959 was unaffected by subsequent constitutional changes, notably the independence and republican Constitutions of 1960 and 1963 respectively.
Section 1(2)(a) of the Nigeria Independence Act 1960 declared that as from 1 October 1960, ‘Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of Nigeria or any part thereof’. Therefore under the constitutional monarchy created by the 1960 Constitution160, the Queen held her sovereignty by virtue of her Nigerian Crown. This meant that she exercised it on the advice of the Nigerian government.161 Section 78 of that Constitution vested the executive powers of the Federation in the Queen to be exercised on her behalf by the Governor-General either directly or through his officers. Crucially, these powers were ‘subject to the provisions of this Constitution.’ Therefore section 1 of the Constitution, which provided that ‘this Constitution shall have the force of law throughout Nigeria and if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void’ effectively abrogated the Crown prerogative in Nigeria and subjected any prerogative power that arguably survived by virtue of section 78 to the provisions of the Constitution in accordance with settled constitutional law.162
The politicisation of the office of the federal Attorney-General in Nigeria started with the 1960 Constitution163, which provided that there ‘shall be an Attorney-General of the Federation who shall be a Minister of the Government of the Federation.’164 However, in order to insulate the prosecutorial powers from political influence, the Constitution vested them in the Director of Public Prosecutions (DPP) of the Federation ‘whose office shall be an office in the public service.’165 According to section 97(2) these were the powers:
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of any offence created by or under any Act of Parliament;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.
To further secure the DPP’s independence, section 97(6) provided that ‘in the exercise of the powers conferred upon him by this section the Director of Public Prosecutions … shall not be subject to the direction or control of any other person or authority’.166 However, to prevent any suggestion that section 97(6) placed the DPP’s prosecutorial powers beyond judicial review, section 154 (5) emphasised that:
No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in exercising any functions under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law.
The practice of vesting the prosecutorial powers in an independent DPP rather than the Attorney-General was a common feature of the Constitutions of newly-independent former British colonies. Although some of the countries have since restored the powers to the Attorney-General, the DPP still holds the powers in countries like Barbados, Belize, Fiji , Guyana, Jamaica Mauritius, Samoa and Vanatu. Therefore judicial interpretation of similar provisions to section 97(2) of the 1960 Constitution of Nigeria in the Constitutions of Guyana,167 Barbados,168 Jamaica,169 Samoa170 and Fiji171 are pertinent to this discussion. The reasoning in these judgments varies but the unanimous view is that the prosecutorial powers are subject to judicial review.172
For example, in their judgement in Matalulu v DPP173 (Matalulu), which was approved by the Privy Council in Mohit, and which represents the correct interpretation of DPP’s powers under the 1960 Constitution of Nigeria, the Supreme Court of Fiji held that:
‘The decisions of the DPP challenged in this case were made under powers conferred by the 1990 Constitution. Springing directly from a written constitution they are not to be treated as a modern formulation of ancient prerogative authority. They must be exercised within constitutional limits.’174
Furthermore, that judgement confirmed the view expressed above that the availability of judicial review is not inconsistent with Acting Chief Justice Abbot’s obiter statement in Layilwola:
It is sufficient … in cases involving the exercise of prosecutorial discretion to apply established principles of judicial review. These would have proper regard to the great width of the DPP’s discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits. This approach subsumes concerns about separation of powers.175
Unfortunately, the conventional wisdom is that the prosecutorial powers of the DPP under the 1960 Constitution were not amenable to judicial review. For example, Justice Brett (one of the three Justices that decided Layiwola) writing extra-judicially, listed them amongst ‘certain matters excluded from control by the judiciary’176 on the ground that the DPP ‘should enjoy the same freedom from direction and control by the courts as … the Attorney-General in England in the discharge of their constitutional responsibilities’.177 However, the Privy Council had rightly expressed a strong disapproval of slavish interpretation of the constitutional provisions of independent countries in Adegbenro v Akintola.178 The case arose over the political crisis in Western Nigeria that led to the removal of the respondent premier by the governor in 1961 purportedly under the constitutional power to do so if ‘it appears to him that the premier no longer commands the support of a majority of the members of the House of Assembly”.179 Acting on the basis of a letter signed by 66 of the 124 Assembly members, the governor removed the premier and replaced him with the appellant. The Federal Supreme Court180 held that the removal of the premier was unconstitutional since it was not carried out after a vote on the floor of the House as required by a convention of the British constitution.
The Privy Council disagreed and held that it had ‘not been able to find any indications either in the general scheme or in other specific provisions which would enable them to say that the Governor is legally precluded from forming his opinion upon the basis of anything but votes formally given on the floor of the House.’181 Delivering the judgement of the Board, Viscount Radcliff made this important statement:
It is true that the Western Nigerian Constitution … does embody much of the constitutional practice and principle of the United Kingdom…. But, accepting that, it must be remembered that, as Lord Bryce once said, the British Constitution “works by a body of understandings which no writer can formulate”; whereas the Constitution of Western Nigeria is now contained in a written instrument in which it has been sought to formulate with precision the powers and duties of the various agencies that it holds in balance. That instrument now stands in its own right; and, while it may well be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced … it is in the end the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of this Constitution.182
The application of this principle of interpretation to the 1960 Constitution shows very clearly that that Constitution subjected the prosecutorial powers of the DPP to judicial review. Justice Brett had further supported this contention that the prosecutorial powers of the DPP were not amenable to judicial review by relying on the above-stated section 97(6) of that Constitution. Similarly, Justice Ekundayo, also writing extra-judicially, opined in relation to the identical provision of section 104(6) of the 1963 Constitution, that ‘the words any other person or authority in the subsection can only mean “any other person or authority outside himself … the courts inclusive”‘.183
With respect, this is a misinterpretation of the provision of section 97(6). The Privy Council interpreted an identical provision in the 1970 Constitution of Fiji in Attorney General of Fiji v Director of Public Prosecutions184 and held that it merely ‘amounted to a constitutional guarantee of independence from the direction or control of any person’. The Board recently confirmed this view in Mohit by holding that an identical provision in the Mauritius Constitution is subject to the Mauritian equivalent of section 154(5) of the 1960 Constitution of Nigeria, which preserved the powers of the court. It also endorsed the view of the Supreme Court of Mauritius in Lagesse v Director of Public Prosecutions185 that the latter provision is
… a clause inserted ex abundant cautela to spell out that the various provisions of the Constitution which protect various public officers and authorities from other kinds of interference should not be taken to mean that the Courts are thereby precluded from exercising such jurisdiction as it or may be conferred on them by the Constitution or any other law’.186
It is pertinent to note that non-justiciable matters were explicitly set out under the 1960 Constitution. For example, section 86(2) provided that ‘where by this Constitution the Governor-General is required to act in accordance with the advice of any person or authority, the question of whether he has in any case received, or acted in accordance with, such advice shall not be enquired into in any court of law’. Similarly section 99(3) provided that the Prime Minister may give binding directions to the Inspector-General but section 99(5) provided that ‘the question whether any, and if so what, directions have been given under subsection (3) of this section shall not be enquired into in any court’. The omission of the prosecutorial powers of the DPP from this special treatment provides decisive evidence of their justiciability.
The furore provoked by the Privy Council’s decision in Adegbenro v Akintola precipitated the abolition of appeals to that court and also of the monarchy.187 Thus on October 1 1963 a republican Constitution took effect in Nigeria. The Queen formally lost her sovereignty over Nigeria and her functions devolved upon the President and the Governors of the Regions.188 Consequently, any prerogative power not previously abrogated by the 1960 Constitution or any other statute was extinguished by the 1963 Constitution.
With regard to the prosecutorial powers, a 1962 amendment to the 1960 Constitution189 had required the DPP to exercise them in accordance with any general or special directions given by the Attorney-General. The 1963 Constitution completed the restoration of the powers to the Attorney-General and subordinated the erstwhile independent office of the DPP to the Attorney-General. According to section 104(1):
There shall be a Director of Public Prosecutions for the Federation, whose office shall be an office in the public service of the Federation … an office in the department of government for which responsibility is assigned to the Attorney-General of the Federation.190
But for the substitution of Attorney-General for DPP, who could only exercise the prosecutorial powers if authorised by the Attorney-General,191 the wordings of sections 104(2) and (6) of the 1963 Constitution are identical to the wordings of sections 97(2) and (6) of the 1960 Constitution set out and analysed above. Similarly, in exactly the same wordings as section 154(5) of the 1960 Constitution, section 165(5) of the 1963 Constitution confirmed that the jurisdiction of the courts was not excluded by any provision that any person or authority shall not be subject to the direction or control of any other person or authority in exercising any functions. Also, section 161, titled ‘Prohibition of certain legal proceedings’ explicitly excluded certain matters from the jurisdiction of the courts.
Therefore the above discussion in relation to the DPP under the 1960 Constitution applies mutatis mutandis to the Attorney-General under the 1963 Constitution. Indeed, the republican and autochthonous nature of the 1963 Constitution reinforces the contention that the prosecutorial powers of the Attorney-General under it were subject to judicial review.
The 1979 Constitution that introduced the presidential system of government to Nigeria clearly separated the powers of the three arms of government. Section 6 vested judicial powers in the courts. Section 6(6) provided that the powers:
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
(b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria…;
(c) shall not … extend to any issue or question as to whether any act or omission … is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
(d) shall not … extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.
It is therefore clear that, apart from the two matters specifically excepted by section 6(c) and (d), every other question, including the exercise of the prosecutorial powers of the Attorney-General, was subject to judicial review under the 1979 Constitution.
However, in view of the abuse of the prosecutorial powers by the Regional and Federal Attorneys-General under the 1963 Constitution, the 1979 Constitution Drafting Committee had recommended (in section 159(2) of the Draft Constitution) that the Attorney-General’s power to take over or discontinue criminal prosecutions instituted by some other person or authority ‘shall only be exercised with the permission of the court,’ which in deciding whether or not to grant permission, ‘shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.’ This recommendation was rejected by the government.192 Instead, sections 160 and 191 of the 1979 Constitution, which conferred prosecutorial powers on the Federal and States’ Attorneys-General respectively, provided as follows:
- The Attorney-General … shall have power –
- to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act …
- to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
- to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
- The powers conferred upon the Attorney-General … under subsection (1) of this section may be exercised by him in person or through officers of his department.
- In exercising his powers under this section, the Attorney-General … shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
As a result of this formulation, subsection (3) of sections 160 and 191, rather than section 6(3), was frequently but erroneously invoked whenever the issue of whether the prosecutorial powers under the 1979 Constitution were amenable to judicial review arose. For example Professor Sagay, commenting on the power to discontinue proceedings, remarked that:
There had been much controversy whether this power … is absolute and unfettered, or whether it is subject to judicial review and control. Those in favour of the latter view placed much reliance on section 160(3) (Federal) and 191(3) (States) of the Constitution. It was thought that the court had power to determine whether an Attorney-General exercising his power … was doing so in the interest of justice and in the public interest, and if this was not the case, then the court has the power to declare the Attorney-General’s action invalid.193
It is fair to acknowledge that the fact that Professor Nwabueze, who was a leading member of the Constitution Drafting Committee,194 supports the attention paid to subsection (3) gives this view considerable credence.195 Indeed, as Justice Ekundayo queried, ‘how else would we explain the attitude of the legislative which refused to have the Attorney-General’s powers tamed in the manner recommended in section 159 of the draft of the 1979 Constitution!’196 However, in the final analysis, as Lord Chief Justice Tindal famously held in the Sussex Peerage case:
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.197
3.4.1 The Ratio Decidendi of The State v Ilori (‘Ilori’) 198
In this case, the appellant lawyer, Mr Fred Egbe, was charged with obtaining money by false pretences and stealing by the first respondent, the Lagos State DPP. Following the dismissal of the charges, the appellant requested the Lagos State Attorney-General to prosecute the DPP and the two police officers that investigated the case for conspiracy to bring false accusations against him and for conspiracy to injure him in his profession. The Attorney-General declined the request. The appellant instituted a private prosecution but the Attorney-General filed a nolle prosequi in exercise of his powers under section 191 of the 1979 Constitution. The trial judge heard arguments on the propriety of the nolle prosequi and upheld the Attorney-General’s decision. The appellant appealed the decision contending that the trial judge should have taken evidence and examined his allegations of malice and extraneous considerations against the Attorney-General pursuant to section 191(3).
The Court of Appeal dismissed the appeal on the ground that the appellant started the private prosecution without obtaining the consent of a judge as required by law, but nevertheless considered whether the Attorney-General’s decision was justiciable. Justice Kazeem, who delivered the judgement, distinguished the English case of R v Comptroller-General of Patents199 by observing that ‘in this country the powers of the Attorney-General are provided for under section 191.’200 Referring to that section he said that:
Unlike section 104(2) of the 1963 Constitution, subsection (3) hereof now specifically provides for the additional safeguards which the Attorney-General should show regard for when exercising his powers under subsection (2). These are the public interest, the interest of justice and the need to prevent abuse of legal process. Hence whenever an aggrieved person complains of an infraction of his fundamental right and that the Attorney-General has failed to have regard to those safeguards in exercising his powers, and he can successfully prove it, I am of the opinion that the courts in this country in exercise of their wide powers under section 6(6)(b) of the 1979 Constitution can inquire into such complaint and grant appropriate remedies.201
The learned Justice accurately summarised the interaction between section 6 and subsection (3) of section 191 but his unnecessary attempt to distinguish the provisions of the 1963 Constitution detracts from the validity of his judgement and directed attention to the wrong issue. As Justice Eso put it in Ilori, ‘the Court of Appeal thus created a distinction between the situation at common law, the pre-1979 Constitutions and the situation following the provision of S. 191 of the 1979 Constitution.’202 The proper distinction, as shown above, is between the position under the common law and the pre-1960 Constitutions on the one hand and the position under the various post-Independent Constitutions on the other.
Unfortunately, the Supreme Court repeated the Court of Appeal’s error by defining the issue for their determination as:
whether, by virtue of the provision of subsection 3 of Section 191 of the 1979 Constitution the position has changed from what it was under the common law and the 1960 and 1963 Constitutions, and the powers of the Attorney-General are now by virtue of the provision of the said Section 191(3) of the 1979 Constitution circumscribed by a precondition or, notwithstanding the provision of the sub-section, the legal position is still the same.203
In resolving this issue, a full bench of the court204 unanimously transplanted the common law orthodoxy into Nigerian law. Relying on English authorities like R v Allen205, R v. Comptroller-General of Patents (Ex p Tomlinson)206 and the Nigerian case of Layiwola v The Queen207, Justice Eso, who delivered the leading judgement, held that:
All these cases have shown that both in England and in this country before the 1979 Constitution, what guided the Attorney-General in the exercise of his discretion, whether in the institution or in the discontinuance of a case were public interest, interests of justice and the need to prevent abuse of legal process. When sub-section (3) of section 191 prescribes what the Attorney-General “shall have regard to” … the sub-section is merely declaring, in the 1979 Constitution, what had obtained at common law and under the Constitutions which preceded the 1979 Constitutions…. In other words, under the provision of sub-section (1) of section 191 of the 1979 Constitution, the Attorney-General, as in the period before the 1979 Constitution, still has an unquestioned discretion in the exercise of his powers to institute or discontinue criminal proceedings. His common law pre-eminent and incontestable position in this regard is still preserved by that provision and notwithstanding sub-section (3) thereof, which is a restatement of the law up to 1979, he is still not subject to any control, in so far as the exercise of his powers under S.191 of the Constitution is concerned, and, except for public opinion, and the reaction of his appointor, he is still, in so far as the exercise of those powers are concerned, law unto himself. 208
He concluded that ‘the position of the law therefore in regard to the powers of the Attorney-General to institute and discontinue criminal proceedings is as it was when the Federal Supreme Court gave its decision in Shittu Layiwola v The Queen.’209 But the right question was whether the position of the law in regard to the powers of the courts to review the exercise of the powers of the Attorney-General to institute and discontinue criminal proceedings remained as it was when the Federal Supreme Court gave its decision in Layiwola. As with the English cases on which they placed slavish reliance, the Justices failed to grapple with the constitutional landscape under which Layiwola was decided and thus overlooked the decisive changes wrought on that landscape by subsequent Constitutions. Justice Eso merely recited Acting Chief Justice Abbot’s dictum in Layiwola and without further ado decided ‘to adopt his reasoning.’210 Neither he nor any of his fellow Justices identified any provision in the 1979 Constitution (or in any of the previous Constitutions) that purportedly ousted the jurisdiction of the courts. Rather, one after the other, they fell into the error that Viscount Radcliff counselled against so eloquently in Adegbenro v Akintola.211
It is instructive that in Mohit, the Privy Council gave short shrift to Ilori, which212 the DPP had relied on as authority for the contention that his power to enter a nolle prosequi cannot be subject to judicial review. According to Lord Bingham:
The Board should approach the present issue on the assumption that the powers conferred on the DPP by … the Constitution are subject to judicial review, whatever the standard of review may be, unless there is some compelling reason to infer that such an assumption is excluded. What compelling reason is there in a case such as this?
The DPP cannot … rely on the immunity enjoyed, at any rate in the past, by the English Attorney General when exercising the prerogative power to enter a nolle prosequi since he is not the Attorney General, he is not (like the Attorney General) answerable to Parliament, he has no prerogative power, his power derives from the Constitution and the Constitution does not use the language of nolle prosequi…. There is here nothing to displace the ordinary assumption that a public officer exercising statutory functions is amenable to judicial review on grounds such as those listed in Matalulu.213
The judgment in Mohit, which is strong persuasive authority in Nigeria, represents an accurate interpretation of the prosecutorial powers of the Attorney-General under the 1979 Constitution. It is immaterial for present purposes that the powers were conferred on the Attorney-General rather than on the DPP in Nigeria because both officers enjoy statutory, rather than prerogative, powers.
A remarkable feature of Ilori is the curious volte face of some of the Justices that sought to leave some room for judicial intervention in a separate civil claim in several obiter statements that are difficult to reconcile with their wholesale importation of the common law orthodoxy in the ratio decidendi. For example, after comparing the Nigerian Attorney-General to ‘the King or Queen of England’, who ‘had chosen personally to enter the nolle’214, Justice Aniagolu stated:
Where, however, the problem arises, is in the contention that the Attorney-General is so unchallengeable, so impregnable in his position in the exercise of that power, that not even in a separate and subsequent proceedings can his conduct be questioned by the courts. Suppose, for example, ‘A’ stole the property of ‘B’ who lodged a complaint leading to the prosecution of ‘A’ and the Attorney-General received a bribe from ‘A’ in consequence of which he entered nolle prosequi thus terminating the proceedings against ‘A’, could ‘B’ not institute a civil suit against the Attorney-General seeking the court’s declaration that the Attorney-General entered the nolle prosequi … in consequence of his receipt of a bribe … ? I am by no means convinced that such a suit cannot be entertained by the court. The immunity of the Attorney-General from legal process … is not all that pervading to exclude the jurisdiction of the courts in that regard, or to neutralise the express provisions of s.6(6)(a) and (b) of the 1979 Constitution as to judicial powers of the courts.215
With respect, ‘the express provisions of section 6(6)(a) and (b) of the 1979 Constitution’ clearly forbids any notion of ‘the immunity of the Attorney-General from legal process’. Besides, if the Crown’s ‘own courts could not challenge or question his or her exercise of that right’216, as Justice Aniagolu stated in his judgment, it necessarily follows ‘that that such a suit cannot be entertained by the court’217 in Nigeria, whether in the same criminal proceedings or in a separate civil claim, if the orthodoxy applies.
The English case of Raymond v Attorney-General218, the facts of which are remarkably similar to those of Ilori, shows that the applicability of the orthodoxy precludes any such separate claim. The plaintiff instituted a private prosecution for perjury and other offences against a prosecution witness who gave evidence against him. The DPP took over the prosecution but offered no evidence against the witness, who was consequently discharged. The plaintiff challenged the DPP’s actions in several civil proceedings but failed successively. Following the dismissal of his ex parte application for judicial review of the DPP’s decision and an order of mandamus to compel the DPP to continue the prosecution, he sued the DPP and two of his officials seeking a series of declarations and an injunction and damages. The Attorney-General, under whose ‘superintendence’ the DPP had acted, was substituted as defendant and he persuaded a Master to strike out the claim as disclosing no reasonable cause of action. The High Court dismissed the plaintiff’s appeal and a further appeal was also dismissed by the Court of Appeal, which held that the only remedy available in the circumstances was the Attorney-General’s accountability to the Parliament in line with the decision in Gouriet. The court suggested that the plaintiff, ‘if he is still concerned to bring [the witness] to trial, can seek to start again’219 in the hope that ‘the major reasons which prompted the intervention of the DPP … may no longer exist’.220 However, his attempt to obtain relief via civil proceedings, as suggested by the Supreme Court in Ilori, was dismissed as ‘the fruitless pursuit of those engaged in the important and sensitive duties attaching to prosecutions.’221
In justifying the separate civil claim the Supreme Court laid down the proposition that the trial judge cannot interfere with a prosecution brought by the Attorney-General under any circumstance. According to Justice Aniagolu:
Mr. Egbe has submitted that where the bona fides of the Attorney-General in entering nolle prosequi is challenged … the trial judge, in the same proceedings, should commence a trial within a trial of the allegation against the Attorney-General – a voire dire proceeding – in order to determine the bona fides of the Attorney-General in entering the nolle prosequi. I certainly do not subscribe to that view. The trial judge, in my view, is under no such procedural obligation.
In his leading judgement Justice Eso sought to explain the rationale for this proposition thus:
It is to be observed, and this is of great importance, that sub-section (3) of s. 191 applies to the entire section. If the Court of Appeal is right, then whenever the Attorney-General, in pursuance of paragraph (a) of subsection (1) of section 191, institutes or undertakes criminal proceedings against any person, and that person complains that the Attorney-General has failed to have regard to the content of sub-section (3), then the court must stop the prosecution, commence an enquiry into the complaint by the accused person, and determine that complaint as a condition precedent to the prosecution of that person. Surely, this cannot be in the contemplation of the 1979 Constitution. And, if anything at all, it does not accord with commonsense.222
The Supreme Court’s proposition flies in the face of section 6 of the 1979 Constitution that vested the courts established under that section (including the High Court, the Court of Appeal and the Supreme Court) with ‘all the powers of a superior court of record’223 and ‘all inherent powers and sanctions of a court of law’.224 Indeed, the abuse of process principle, which was adumbrated by Lord Devlin in Connelly v Director of Public Prosecutions in very similar terms to the previously-cited provisions of section 6 of the Nigerian Constitution225 (which is consistent with the requirement of that Constitution that ‘the Attorney-General shall have regard to … the need to prevent abuse of legal process’226) has been used in other jurisdictions to control prosecutorial discretion in the manner rejected by the Supreme Court.227
Barton v The Queen 228, for example, is a case where the High Court of Australia, like the Supreme Court three years later in Ilori, relied on the common law to exclude the Attorney-General’s statutory power to file an ex officio indictment from judicial review. Nevertheless, the court held that once such an indictment is filed the court can intervene to prevent an abuse of process or patent unfairness. In the words of Justices Gibbs and Mason:
There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place. As a result of the speeches in Connelly v Director of Public Prosecutions229, it is now established in the United Kingdom that although a judge has no 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, the courts have a general power to prevent unfairness to the accused, even to the extent of preventing an abuse of process resulting from the prosecution of proceedings brought without reasonable grounds…. The view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will be ultimately acquitted and because he can bring an action for damages for malicious prosecution has been emphatically rejected, as indeed it should be.230
Similarly, in Sharma v Brown-Antoine and others,231 the Privy Council extended the abuse of process principle to deny the appellant (Chief Justice of Trinidad and Tobago) permission to apply for judicial review of the decision of the DPP to prosecute him, and a stay of the criminal proceedings pending determination of the judicial review.232 The Board was ‘not persuaded that the Chief Justice’s complaint could not properly be resolved within the criminal process.’233 It concluded that ‘it is clear that the criminal courts would have the power to restrain the further pursuit of any criminal proceedings against the Chief Justice if he could on the balance of probabilities show that their pursuit constitutes an abuse of the process of the court.’234
In conclusion, it is necessary to comment briefly on the Supreme Court’s claim in Ilori that an errant Attorney-General ‘could easily fall out of the favour of his appointor or the National or the State Assembly … leading to a clamour for his removal’.235 Even by the higher standards of accountability of the Second Republic, this comment appears to ignore the fact that the Nigerian political system is largely immune to public opinion. Recent developments236 have again shown that the observation of the Privy Council in Mohit – ‘it cannot, in the Mauritian context, be accepted that the extreme possibility of removal … provides an adequate safeguard against unlawfulness, impropriety or irrationality’237 – applies a fortiori to Nigeria.
The wordings of sections 174 and 211 of the 1999 Constitution that confer prosecutorial powers on the Federal and States Attorneys-General respectively are identical to sections 160 and 191 of the 1979 Constitution. Section 6 of the 1999 Constitution is similarly identical to section 6 of the 1979 Constitution. Therefore the prosecutorial powers currently exercised by the respective Attorneys-General should be subject to judicial review for the reasons discussed above.
However, the judgement in Ilori remains the law because ‘an order or judgment of court, no matter the fundamental vice that afflicts it, remains legally binding and valid until set aside by due process of law’.238 Fortunately, the Supreme Court has the power to ‘depart from and overrule its previous decisions where, inter alia, it is shown that the decision is erroneous in law; or was given per incuriam; or it is shown that the previous decision is contrary to public policy or is occasioning miscarriage of justice or perpetuating injustice’.239 There is therefore no reason why the Supreme Court should not abandon its pretension to infallibility to end more than a quarter of a century of judicial abdication and slavishness by overruling Ilori at the earliest possible opportunity.240 It is impossible to overemphasise what Justice Aniagolu aptly described in Ilori as ‘the necessity of the courts being wary whenever any issue which has not been expressly, by law, excluded from their jurisdiction is sought to be shielded from their gaze and scrutiny, especially having regard to the wide provisions of our … Constitution designed to protect the rights of the citizens of this country.’241
4. Grounds for Judicial Review of the Prosecutorial Powers of the English and Nigerian Attorneys-General
The three classic grounds for judicial review were enunciated by Lord Diplock in his speech in the GCHQ case. According to him:
Judicial review has … developed to a stage today when … one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” …
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.242
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.243
It is important to bear in mind that judicial review, as the name implies, is not an appeal against the merits of the impugned decision, but a review of the decision making process itself.244 Nevertheless, while there is no reason to rule out ‘irrationality’ and ‘procedural irregularity’ as grounds for judicial review of the Attorney-General’s prosecutorial decision in principle, it is difficult to envisage a successful attack on those grounds in view of the width of the prosecutorial discretion.245 Although each case will no doubt be decided on its own merit, it is well established that judicial review of prosecutorial decisions, where already available in principle in relation to other prosecutors, is an exceptional remedy.246 Therefore the threshold of a successful challenge of the Attorney-General’s decision must be equally high, if not higher, in view of the quasi-judicial character of his or her office. However, as Lord Bingham observed in Mohit,
It is … one thing to conclude that the courts must be very sparing in their grant of relief to those seeking to challenge the … decisions not to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any review at all.
Moreover, the authorities indicate that the threshold of a successful challenge is considerably lower where the decision is not to prosecute rather than to prosecute247. This is because in the former the aggrieved person cannot raise his or her complaint in the criminal trial or on appeal and therefore judicial review affords the only possible remedy.248 Some of the grounds for judicial review of the prosecutorial powers of Director of Public Prosecutions under the Constitution of Fiji, which are very similar to the powers of the English and Nigerian Attorneys-General, were listed in Matalulu v DPP249. In a passage that was cited and endorsed by the Privy Council in Mohit, and adopted by the House of Lords in R (Corner House Research and another) v Director of the Serious Fraud Office (the BAE case)250, the Supreme Court of Fiji stated that a purported exercise of power would be reviewable if it were made:
- In excess of the DPP’s constitutional or statutory grants of power – such as an attempt to institute proceedings in a court established by a disciplinary law ….
- When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion – if the DPP were to act upon a political instruction the decision could be amenable to review.
- In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe.
- In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved.
- Where the DPP has fettered his or her discretion by a rigid policy – eg one that precludes prosecution of a specific class of offences.
The relevant consideration under the common law has long been the public interest. However, as discussed in the first part of this article, the statutory superintendence relationship between the Attorney-General and the Directors of the prosecuting authorities spelled out in the Protocol empowers the Attorney-General to stop any SFO investigation and all prosecutions in England and Wales if she is ‘satisfied that it is necessary to do so for the purpose of safeguarding national security.’251 Crucially, part of the reforms to the role of the Attorney-General is the proposed modernisation of her oath. She would no longer be bound by her oath to ‘duly and truly minister The Queen’s matters and sue The Queen’s process after the course of the Law, and after my cunning.’252 Rather, she would be bound by an express duty to ‘respect the rule of law’. According to a Government announcement:
[T]he change to the oath will re-emphasise the basis on which the Attorney gives legal advice and exercises her functions in the public interest, rather than on the basis of political convenience or party loyalty. As the oath of the Attorney is currently not a statutory one, this change can be made without legislation.253
Therefore the relative weight to attach to national security and the rule of law is bound to dominate any judicial review of the Attorney-General’s prosecutorial powers under the new regime. The recent case of R (Corner House Research and another) v Director of the Serious Fraud Office (the BAE case)254, which arguably informed the formula adopted initially in the Draft Bill255 and subsequently in the Protocol, highlights the difficulty in striking the right balance between both considerations.
The case related to the decision of the Director of the SFO to stop an investigation into alleged bribery and corruption by BAE Systems256 in relation to military aircraft contracts with Saudi Arabia. By virtue of the Criminal Justice Act 1987, subject only to the superintendence of the Attorney General, the Director has the discretionary powers to: ‘investigate any suspected offence which appears to him on reasonable grounds to involve serious or complex fraud’257; and ‘institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud; and take over the conduct of any such proceedings at any stage.’258 At the early stages of the investigation, BAE complained to the Attorney-General that pursuing the investigation would be ‘seriously contrary to the public interest on the grounds that it would adversely and seriously affect relations between the UK and Saudi Arabian Governments and would almost inevitably prevent the UK securing its largest export contract in the last decade’.259 The investigation continued despite this and similar representation by the Ministry of Defence.
However, just as the SFO was about to obtain access to some bank accounts in Switzerland, Prince Bandar, the Saudi official at the centre of the bribery allegations, met the Prime Minister’s Chief of Staff:
Bandar … went into Number 10 and said ‘get it stopped’… Bandar suggested to Powell260 he knew the SFO were looking at the Swiss accounts… if they didn’t stop it the Typhoon contract was going to be stopped and the intelligence and diplomatic relations would be pulled.261
This threat triggered further representations particularly by the British Ambassador to Saudi Arabia who advised the Attorney-General and the Director that ‘British lives on British streets were at risk’. Acting on this advice, the Director stopped the investigations. In a press release he announced that:
This decision has been taken following representations that have been made both to the Attorney General and the Director of the SFO concerning the need to safeguard national and international security. It has been necessary to balance the need to maintain the rule of law against the wider public interest. No weight has been given to commercial interests or to the national economic interest. 262
In a judicial review of the decision brought by two campaign groups, the Divisional Court accepted, ‘at least as a generality, that the Director’s discretion is of sufficient width to entitle him to take into account risk to life and to national security in deciding whether to continue an investigation.’263 Furthermore, it noted that ‘the court, in an application for judicial review, is not in a position to assess the extent of the risk to life or to national security, asserted by those who advised the Attorney General and the Director.’264 This is because ‘the separation of power between the executive and the courts requires … in a case touching foreign relations and national security the duty of decision on the merits is assigned to the elected arm of government.’265 Nevertheless, Lord Justice Moses, who delivered the judgement of the court266, said that
… to describe the claimants’ application as a challenge either to the relevance of national security to the decision of the Director, or to the Government’s assessment of the risk to national security misses the essential point of this application. The essential point, as we see it, derives from the threat uttered, it is said, by Prince Bandar to the Prime Minister’s Chief of Staff. The nature and implications of that explicit threat have a significant impact on this application.267
The court maintained that the principle of separation of powers requires that when such a threat appears to compromise the integrity of the criminal justice system the issue was no longer a matter only for the government: ‘At the heart of the obligations of the courts and of the judges lies the duty to protect the rule of law.’268 Interestingly, the court appeared to locate the statutory basis for this responsibility outside the 1987 Act. In the words of Lord Justice Moses:
The legislature has sought to reinforce the separation of powers by statutory regulation of the relationship between the Executive and the Judiciary in the Constitutional Reform Act 2005. S.1 recognises the rule of law as an existing constitutional principle. The Act acknowledges the relationship between the independence of the judiciary and the rule of law in s.3.269
On the other hand, the Director relied on his discretionary powers under the 1987 Act, and contended that ‘to invoke the rule of law adds nothing to the argument in this case’.270 It was submitted on his behalf that:
[I]n the context of the Director’s decision, the rule of law requires no more than he should act in a manner consistent with the well-recognised standards which the courts impose by way of judicial review. The Director must exercise the powers conferred on him by the 1987 Act reasonably, in good faith, for the purposes for which they were conferred and without exceeding the limits of such powers … as Lord Hoffman[n] has observed, judicial review gives effect to the rule of law.271
In the event, the Divisional Court held that ‘the Director’s submission to the threat was unlawful’.272 It held that:
The Director failed to appreciate that protection of the rule of law demanded that he should not yield to the threat. Nor was adequate consideration given to the damage to national security and to the rule of law by submission to the threat. No-one took any steps to explain that the attempt to halt the investigation by making threats could not, by law, succeed.273
The court disputed the notion ‘that there is any true distinction between national security and the rule of law’.274 Furthermore, in support of its decision, the court advanced this principle:
The principle we have identified is that submission to a threat is lawful only when it is demonstrated to a court that there was no alternative course open to the decision-maker. This principle seems to us to have two particular virtues. Firstly, by restricting the circumstances in which submission may be endorsed as lawful, the rule of law may be protected…. Secondly, as this case demonstrates, too ready a submission may give rise to the suspicion that the threat was not the real ground for the decision at all; rather it was a useful pretext.275
However, in a unanimous decision in a ‘leap-frog’ appeal the House of Lords overturned the judgement of the Divisional Court and upheld the Director’s decision.276 In his leading speech, Lord Bingham dismissed the principle proposed by the court as ‘novel and unsupported by authority.’277 According to him:
The objection to the principle formulated by the Divisional Court is that it distracts attention from what, applying well-settled principles of public law, was the right question: whether, in deciding that the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens, the Director made a decision outside the lawful bounds of the discretion entrusted to him by Parliament.278
In the only reference to the rule of law in his speech, he remarked that ‘[s]uch an approach involves no affront to the rule of law, to which the principles of judicial review give effect.’279 However, in a forceful criticism, Professor Jowell noted that:
In arriving at this conclusion, Their Lordships papered over the fact that this case involves not just one threat, but two. The first threat is to public safety. In assessing that threat, the Director must indeed consider the risk to “British lives on British streets” if the investigation and/or prosecution were to continue. The second threat is, however, of a different order. It is to the integrity of our system of justice. Here the Director has to consider the risk of caving in to blackmail to the confidence and resilience of our legal structures as a whole.280
There is considerable force in Jowell’s criticism. The treatment of the rule of law in Their Lordships’ reasoning does not appear to measure up to the judicial and legislative advances on the subject. Lord Bingham identified the case as involving a decision not to prosecute but did not undertake a stricter scrutiny of its implications on the rule of law. He merely noted that ‘[t]he House was not referred to any case in which a challenge had been made to a decision not to prosecute or investigate on public interest grounds’281, and proceeded to cite with approval the passage in Matalulu that emphasised the great width of the Director’s discretion.282
In sharp contrast, the Divisional Court relied heavily on cases like R v Chief Constable of Devon and Cornwall, Ex p Central Electricity Generating Board283 and R v Coventry City Council, ex parte Phoenix Aviation and others284 in which public officials were held to have breached the rule of law by submitting to threats. Lord Bingham distinguished both cases on the ground that they ‘involved no choice between competing aspects of the public interest.’285 Similarly, Lord Brown, who sat as Brown LJ in Phoenix Aviation case, disapproved the reliance the Divisional Court had placed on his judgement in that case on the ground that ‘that was … a strikingly different case.’286
Professor Jowell aptly summarises the shortcoming in this aspect of the House of Lords’ reasoning:
By subsuming the rule of law into all of judicial review, and by requiring its application only as one of a number of relevant factors to be taken into account by the decision maker, the House conspicuously disregarded the now established line of cases that require more rigorous scrutiny where constitutional principle or fundamental rights are engaged. In those cases the courts have, time and again, required more anxious scrutiny than the Wednesbury test of “fair balance” allows. In some cases they have gone further by requiring the decision-maker positively to justify his departure from the relevant right or principle on the basis of the structured test of proportionality, under which the infringement must not be shown to be “necessary” and not merely “desirable”.287
Furthermore, it is important to emphasise that statutory support for this super-Wednesbury standard of judicial review in cases involving the rule of law is provided by the Constitutional Reform Act 2005, which affirms ‘the existing constitutional principle of the rule of law’288 and which the Divisional Court had placed significant weight on. Indeed, speaking extra-judicially in a lecture on the rule of law, Lord Bingham said in relation to that legislation:
… the statutory affirmation of the rule of law as an existing constitutional principle … does have an important consequence: that the judges, in their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so. They would be bound to construe a statute so that it did not infringe an existing constitutional principle, if it were reasonably possible to do so.289
Yet there is little evidence in his leading speech to indicate that Lord Bingham construed the Director’s discretion under the Criminal Justice Act 1987 so that it did not infringe the rule of law or that it was not reasonably possible to do so. In fact, he referred to the rule of law only once, and even then to expressly adopt the Director’s contention that judicial review gives effect to the rule of law, thereby effectively endorsing his further contention that the rule of law adds nothing to the argument in the case. But clearly, the conservative principle of public law applied by the House of Lords to arrive at their decision in that case cannot be said to have given effect to the fundamental principle of the rule of law that requires the criminal law of the land to apply to all regardless of influence or power.
The debate between the super-Wednesbury and traditionalist290 schools of judicial review on matters affecting constitutional principles like the rule of law is far from being resolved. However, it seems uncontroversial that the combined effect of the affirmation of the rule of law in the Constitutional Reform Act 2005 and the Attorney-General’s proposed non-statutory oath to respect it is that the traditional ground of judicial review will not be sufficient in a judicial review of the prosecutorial powers of the Attorney-General today. In his lecture on the rule of law, Lord Bingham rejected the suggestion that the rule of law is not justiciable. He said: ‘I find this impossible to accept. A constitutional principle that cannot be legally enforced would not appear to me to be very valuable.’291 Furthermore with regards to section 1(b) of the 2005 Act that provides that the Act does not adversely affect the Lord Chancellor’s existing constitutional role in relation to the rule of law and section 3(1) that provides that: ‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary’, Lord Bingham also opined that ‘the Lord Chancellor’s conduct in relation to that principle would no doubt be susceptible, in principle, to judicial review.’292
It therefore seems clear that the conduct of the Attorney-General, a pre-eminent Minister of the Crown with very important responsibilities for matters relating to the administration of justice, in relation to the rule of law in the exercise of her existing common law and statutory prosecutorial powers, will equally be susceptible to judicial review. Furthermore, since the negative prosecutorial discretion could potentially undermine the rule of law and the principle of separation of power by excluding from the court matters that should properly be prosecuted in court, the Attorney-General’s obligation to uphold the rule of law by virtue of the 2005 Act seems rather obvious.
Therefore, in the exercise of her prosecutorial powers under the new regime the Attorney-General will be subject to judicial review on two bases: her duty to safeguard national security; and her duty to respect the rule of law. Adopting Jowell’s criticism of the House of Lords’ decision, it could be argued that:
If … the first …. public safety… were in play, then of course the assessment of risk would, within the limits of reason, good faith, relevant considerations, etc., be for the prosecutor to decide. Such a case would, for example, permit the [the Attorney-General] broad discretion to evaluate whether an investigation should be abandoned in view of the danger of revealing the names of intelligence officers during the course of the litigation. The second … is directed at a fundamental feature of the rule of law, namely that a person’s criminal liability must depend on what has been done, and not his power or influence, here or abroad. Another element of the rule of law is that the process of investigation or prosecution should not be influenced by extraneous threats or inducements.293
The formulation thus proposed by Jowell strikes a workable balance between the relevant considerations. According to him: ‘The rule of law, like other fundamental principles … is not absolute, but the courts should only countenance its limitation where strictly necessary for the preservation of some other important interest in a democratic society, of which public safety may be one.’294 Indeed, a similar conclusion could be reached under the more traditional approach to judicial review, as the following statement in Lord Diplock’s speech in the GCHQ case shows:
[T]hat a decision of which the ultimate source of power to make it is not a statute but the common law (whether or not the common law is for this purpose given the label of “the prerogative”) may be the subject of judicial review on the ground of illegality is, I think, established by the cases cited by my noble and learned friend, Lord Roskill, and this extends to cases where the field of law to which the decision relates is national security, as the decision of this House itself in Burmah Oil Co. Ltd. v. Lord Advocate, 1964 S.C. (H.L.) 117 shows.295
Sections 174(3) and 211(3) of the 1999 Nigerian Constitution provide that in exercising their prosecutorial powers the Federal and States’ Attorneys-General ‘shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.’ In Ilori, Justice Nnamani suggested that ‘the public interest … is wide enough to subsume interest of justice and the need to prevent abuse of judicial process’296 but, as the preceding discussion shows, the public interest could equally subsume other interests that are very different from the interest of justice and the need to prevent abuse of judicial process, such as national security and national economic interest.297 Arguably, ‘the interests of justice and the need to prevent abuse of legal process’ are synonymous with the rule of law; the former particularly suited to decisions not to prosecute and the latter to decisions to prosecute. Thus where appropriate, the courts should keep the rule of law (the interest of justice and the need to prevent an abuse of process) distinct from the wider public interest, and require evidence that the Attorney-General has had regard to both considerations in reaching a prosecutorial decision. In line with Jowell’s formulation above, the courts should only countenance a limitation of the interest of justice and the need to prevent an abuse of process only where strictly necessary for the preservation of some other important public interest, which may include national security and economic interest.
It is important to bear in mind that the provisions of sections 174(3) and 211(3) of the 1999 Constitution come into play upon a determination of the ground for judicial review of the prosecutorial powers. Although English case law is not binding on Nigerian courts298 they constitute very strong persuasive precedents, as the judgment of the Supreme Court in Ilori demonstrates. Therefore applying Lord Diplock’s grounds for judicial review to sections 174(3) and 211(3) of the 1999, a prosecutorial decision taken without demonstrable due regard to the public interest, the interests of justice and the need to prevent abuse of legal process should in principle be open to attack on the grounds of illegality and/or irrationality and/or procedural irregularity, depending on the facts of each case.
The Supreme Court erred in Ilori by considering the identical provisions of the 1979 Constitution at the justiciabilty stage, when section 6(6) should have been considered.299 Moreover, in a crucial part of his leading judgment, Justice Eso, with whom the rest of the Justices agreed, held that:
The words “shall have regard to,” are certainly not equivocal. They are plain and unambiguous. They are words which are merely declaratory of what the Attorney-General takes into consideration in the exercise of his powers. (See the dictum of Earl Cairns L.C. in Julius v. Lord Bishop of Oxford (1880) 5 AC 214,; at p.222 where the Lord Chancellor interpreted similar expression as “directory, permissory and enabling”). Such words are merely potential and never in themselves significant of any obligation (see Julius v. Lord Bishop of Oxford ibid p.235 as per Lord Selborne).300
However, the House of Lords’ decision in Julius v Lord Bishop of Oxford301 (‘Julius‘) does not sustain and, indeed, contradicts, the Supreme Court’s reasoning. The relevant legislation provided that in relation to certain charges against any Clerk in Holy Orders, it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for inquiry. The appellant lodged a complaint of ‘unauthorized deviations from the ritual of the Church’ and ‘the use of unauthorized vestments’ against the Rector of his parish but the Bishop refused to issue a commission of inquiry. Therefore the issue in that case was: ‘under the words “it shall be lawful” is the bishop bound, on the application of any party, to issue a commission, or has he a discretion as to whether he will issue it or not?’302 Accordingly, Lord Cairns L.C held that:
The words “it shall be lawful” are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. 303
Therefore it is clear the provision that is similar to the one interpreted in Julius in section 191304 of the 1979 Constitution was subsection (1), which provided that the Attorney-General ‘shall have power‘ to exercise the prosecutorial powers, rather than subsection (3) which provided that he ‘shall have regard to‘ the public interest while exercising the power. Even then, whichever subsection the reasoning in Julius is extrapolated to, the result will be a mandatory provision. In the remaining part of his dictum, not referred to by the Supreme Court, Lord Cairns stated:
But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.305
The appellant lost in Julius because he failed to prove the existence of this duty because of the nature of the office of the Bishop.306 According to Lord Selborne, ‘the only proof offered of the alleged duty, consists in the assumption that the public must always have an interest in the punishment of every clergyman offending against any part of the Ecclesiastical Law. I cannot make that assumption.’ 307 But clearly such an assumption can be made in relation to the Attorney-General who, as the guardian of the public interest, must exercise his prosecutorial powers to promote the public interest and the administration of justice. In fact Lord Selborne noted that the discretionary power of the Bishop was not ‘for the due course and administration of justice after the commencement of any prosecution or suit’308, which is precisely what the prosecutorial powers of the Attorney-General are provided for.
The Supreme Court’s position, supported by Professor Nwabueze – ‘the command to the Attorney-General to have regard to these factors is merely directory, not mandatory’309 – yields the startling proposition that it is perfectly constitutional for the Attorney-General to disregard ‘the public interest, the interests of justice and the need to prevent abuse of legal process’ in the exercise of his prosecutorial powers. As Justice Nnamani curiously put it, ‘the matters set down in that section of the Constitution are matters which the Attorney-General ought to take into consideration in exercising his powers therein and I cannot put it higher than an assumption that he has duly considered them.’310
This position flies in the face of established principles for the construction of statutory discretion. A statutory discretion is not necessarily absolute but is usually qualified by express and implied legal duties to comply with substantive and procedural requirements. Therefore, there may be a discretion whether to exercise a power, but no discretion as to the mode of its exercise. Moreover, words that ostensibly confer a power to act may exceptionally be construed as imposing a duty to act and to act in a particular manner, when prescribed conditions are present. For example, in R v Derby Justices, ex p Kooner311 subject to the limitations imposed by s 75 of the Criminal Justice Act 1967, justices have a complete discretion in the first instance under s 74(1) whether or not to grant legal aid in criminal proceedings: “… a legal aid order shall be exercisable by a court having power under section 73 of this Act to do so where it appears to the court desirable to do so in the interests of justice, and a court having power to do so shall make such an order … where a person is committed for trial on a charge of murder ….” Yet, the court issued an order of mandamus compelling the justices to exercise the discretion in committal proceedings for alleged murder in that case.
The legal philosopher, John Finnis, described the rule of law as “[t]he name commonly given to the state of affairs in which a legal system is legally in good shape”.312 Against this background, this article has argued that the common law doctrine which established that the prosecutorial powers of the Attorney-General are not subject to review is no longer good law in England and Wales and has never been incorporated into the Nigerian Constitution. Therefore any person313 who is aggrieved by a prosecutorial decision by the Attorney-General in England and Wales and Nigeria should be able to challenge it either in a trial within a trial or in a separate civil claim for judicial review in order to give effect to the rule of law.
The fact that the key cases discussed in this article, including Gouriet314, Ilori and Mohit, all related to aborted private prosecution justifies the assertion by Professor Isabella Okagbue that the Attorney-General’s power to stop prosecutions ‘renders largely illusory the significance of the right of private prosecution as the last bastion of the citizen against an oppressive executive.’315 She further concluded that whichever position one adopts on the issue of whether or not the Attorney-General’s prosecutorial powers should be subject to judicial review, ‘a case can … be more strongly made that in relation to private prosecutions … the individual should not be arbitrarily deprived of his right to seek justice and an appeal against such attempt should properly lie to the courts.’316Therefore the availability of judicial review of the exercise of the Attorney-General’s prosecutorial powers will restore private prosecution to its pride of place.
With the importance of private prosecution to the administration of justice and the rule of law being directly proportional to corruption and ineptitude of the executive, the case for private prosecution is undoubtedly stronger in Nigeria, where the Supreme Court has remarkably extended the right to ‘any person who cares to prosecute an offender’.317 As Justice Aniagolu observed in Ilori:
‘Experience has shown … that in many parts of the world, especially in the developing countries, bizarre and unprecedented events do occur and what goes without question, and are taken for granted, in more developed countries, sometimes present extreme difficulties by reason of persons charged with the responsibility of exercising sensitive powers in trust for the citizenry, deviating from the spirit and intendment of the laws which they are supposed to enforce.’318
On the other hand, the case for private prosecution in England and Wales was presciently made by Douglas Hay in 1984. According to him:
[T]hat the democratic franchise is the only necessary safeguard of civil liberties, and that the Crown will always be vigilant in their protection, are assumptions that have not been tested and never will be… [N]ew technologies make misdirected surveillance, misinterpreted intelligence and covert illegality a standing temptation to governments and their police forces. It is an unwise person who assumes that the case for criminal proceedings by private citizens even against agents of the state or against their will, is now wholly irrelevant.319
In the final analysis, the availability of judicial review will uphold the rule of law by enhancing the independence and impartiality of the respective Attorney-General’s prosecutorial decision making both in perception and reality. As Lord Goff of Chieveley said in his speech in Reg. v. Gough  A.C. 646, 659G:
[T]here is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart C.J. in Rex v. Sussex Justices, Ex parte McCarthy  1 K.B. 256, 259, that it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’
Nowhere is public confidence in the justice system more critical than in the institution and conduct of criminal prosecutions where the public rightly expects scrupulous fairness and the complete absence of political interference. This is particularly more so in relation to the exercise of Attorney-General’s prosecutorial discretion, which necessarily involves the balancing of conflicting legal, political and public interest considerations. The vindication of the former Attorney-General for England and Wales, under whose superintendence the Director of the SFO acted, by the House of Lords in BAE case after overwhelming public criticism shows that the proposal in this article will serve both the wider interests of the rule of law and the specific interests of the Attorney-General better than the orthodoxy.
* LLB (Hons), BCL (Oxon), Barrister-at-Law (Nigeria), Solicitor (England and Wales). The author belongs to the Anti-Corruption Committee and the Public and Professional Interest Division of the International Bar Association and works in the Office of the General Counsel and Solicitor to Her Majesty’s Revenue and Customs, London. He thanks Dr Onyeka Osuji, Bushra Razaq, Chinedum Odenyi and Claudia Mba for their helpful comments on the numerous drafts of the article. However, the views expressed in this article are strictly the author’s personal views.
1 Constitutional Affairs Committee, ‘Constitutional Role of the Attorney General’ HC (2006-07) 306, Ev 106. From 6 November 2007 the Committee was renamed the Justice Committee (JSC) to reflect the transfer of the responsibilities of the former Department for Constitutional Affairs to the new Ministry of Justice.
2 Constitutional Affairs Committee (n 1) .
3 Ibid. .
5 Constitutional Affairs Committee (n 1) 3.
6 The United Kingdom comprises England, Scotland, Wales (which together constitute Great Britain) and Northern Ireland. The Attorney General for England and Wales, whose powers and their justiciability are discussed in this article, is the chief legal adviser to the UK Government and has a largely supervisory role in relation to public prosecutions in England and Wales and Northern Ireland. The Lord Advocate is the chief public prosecutor for Scotland (which has a separate legal system) and the chief legal adviser to the Scottish Government on matters within the devolved powers of the Scottish Parliament. The Advocate General for Scotland is the UK Government’s principal legal adviser on Scots law. Although the UK and the Scottish Secretaries of State for Justice are both responsibility for certain aspects of criminal law and procedure within their respective jurisdictions, neither has any oversight of prosecutions.
7 Attorney General, The Government’s Response to the Justice Committee’s Report on the Draft Constitutional Renewal Bill (provisions relating to the Attorney General), Cm 7689, July 2009, 2. http://www.attorneygeneral.gov.uk/attachments/Justice%20Committee%20response.pdf
8 Constitution of the Federal Republic of Nigeria 1999 s 150. Section 195 contains equivalent provision in relation to the Attorneys-General of the 36 States of the Federation. This article is primarily concerned with the Attorney-General of the Federation.
9 Constitution of the Federal Republic of Nigeria 1999 s 174.
10 Benjamin Obi Nwabueze, Nigeria’s Presidential Constitution: The Second Experiment in Constitutional Democracy (Longman, London 1985) 309, referring to the First Republic. For details of similar abuses in the Second Republic, see AAM Ekundayo, Constitutional Provision of Nolle Prosequi – A Blessing or a Curse (Nigerian Institute of Advanced Legal Studies, Lagos 1988) 21-2.
11 Anita Coulson, ‘Nigeria ‘slow’ on graft inquiry’ BBC News (29 November 2007) http://news.bbc.co.uk/1/hi/world/africa/7113216.stm accessed 17 March 2010. Matthew Green, ‘Nigeria blunts graft inquiry’ Financial Times (Abuja 10 October 2007) Sebastine Ebhuomhan, ‘Halliburton: No plan to prosecute bribe takers yet – FG’ Punch (Lagos 14 Febraury 2009) http://www.punchng.com/Articl.aspx?theartic=Art200902141126437 accessed 17 March 2010.
12 See D Blair ‘£220bn stolen by Nigeria’s corrupt rulers’ Daily Telegraph (London June 26 2005)
13 See for example, CI Umeche and PN Okoli, ‘An Appraisal of the Powers of the Attorney General of the Federation with Respect to Criminal Proceedings Under the Nigerian Constitution’ (2008) 34 Commonwealth Law Bulletin 43.
14 The State v Ilori  1 SCNLR 94, 106 (Justice Eso).
15 Judicial review in the context of this article includes both a trial within a criminal trial and the traditional application for a declaration or injunction or orders of mandamus, prohibition and certiorari (now mandatory, prohibiting and quashing orders respectively in English law by virtue of The Civil Procedure (Modification of Supreme Court Act 1981) Order 2004).
16 See Clause 4.1 of the Protocol between the Attorney General and the Prosecuting Departments, July 2009, page 4
17 The Rule of Law’  CLJ 67, 69. The Sixth Sir David Williams Lecture, given at Cambridge, 16 November 2006.
19 See generally John Llewelyn Jones Edwards, The Law Officers of the Crown (Sweet & Maxwell, London 1964) and James William Norton-Kyshe The Law and Privileges relating to the Attorney General and Solicitor-General of England (Stevens and Haynes, London 1897).
20 R v Wilkes (1768) Wilm 322, 326; 97 ER 123, 125 (Wilmot CJ).
21 It emerged in 2006 that the Labour Party had received a number of secret loans from donors some of whom had been offered peerages. The possibility that the Attorney-General’s senior Government colleagues (including the Prime Minister), who were investigated by the police, could be prosecuted under the Honours (Prevention of Abuses) Act 1925 that required his consent raised questions of a potential conflict of interest for the Attorney General should he be faced with a decision whether to give or refuse consent to any such prosecution.
22 On 14 December 2006, the Attorney-General announced that a corruption investigation into the affairs of BAE Systems plc in relation to a multi-billion pounds defence contract had been discontinued following representations made both to him and the Director of the Serious Fraud Office concerning the need to safeguard national and international security.
23 Ministry of Justice, ‘The Governance of Britain’ (Cm 7170, July 2007) http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf; Ministry of Justice, ‘The Governance of Britain: A Consultation on the Role of the Attorney General'(Cm 7192, 2007) 3 http://www.official-documents.gov.uk/document/cm71/7192/7192.pdf.
24 ‘The Governance of Britain – Constitutional Renewal’ (Cm 7342-II, March 2008) http://www.official-documents.gov.uk/document/cm73/7342/7342_ii.pdf
25 HC Bill (2007-08) [551-1] HL Bill (2007-08) [166-1].
26 Section 11.
27 Sections 7-10.
28 Section 12.
29 Draft Constitutional Renewal Bill (provisions relating to the Attorney General), HC 698, Session 2007-08, 24 June 2008.
30 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL 166-I and HC 551-I, Session 2007-08, 31 July 2008. http://www.publications.parliament.uk/pa/jt200708/jtselect/jtconren/166/16602.htm
31 HC Deb 20 July 2009, col 106WS. http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090720/wmstext/90720m0004.htm. See also The Government’s Response to the Justice Committee Report on the Draft Constitutional Renewal Bill (provisions relating to the Attorney General), Cm 7689, July 2009.
33 See News Release of 21 July 2009. http://www.attorneygeneral.gov.uk/attachments/AG%20PROTOCOL%20WITH%20DIRECTORS%20210709.pdf
34 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10th edn Macmillan, London 1959) 425. This definition was quoted with approval in A-G v De Keyser’s Royal Hotel  AC 508 (HL) 526 (Lord Dunedin), Burmah Oil Co Ltd v Lord Advocate  AC 75 (HL) 99 (Lord Reid) and in Laker Airways v Department of Trade  QB 643 (CA) 719 (Roskill LJ). It also appears to be the basis of the decision in Council of Civil Service Unions v Minister for the Civil Service  AC 374 (HL) (‘GCHQ‘). In contrast, Blackstone defined it more strictly as ‘that special pre-eminence which the king hath, over and above all other persons’, which ‘can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects’. See William Blackstone, Commentaries on the Laws of England (16th edn Butterworths, London 1825) vol 1, 239.
35 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10th edn Macmillan, London 1959) 425.
36 See the Criminal Law Act 1967 (UK) s 6(6).
37 See William Blackstone, Commentaries on the Laws of England (16th edn Butterworths, London 1825) vol 1, 250.
38 (1862) 1 B & S 850; 121 ER 929 (nolle prosequi). See also R v Prosser (1848) 11 Beav 306; 50 ER 834.
39  1 QB 909 (CA) (ex officio informations).
40  AC 435 (HL) (relator actions).
41 Ex p Tomlinson  1 QB 909 (CA) 913-14. Indeed, as Sir Alexander Cockburn (Attorney-General from 1852 to 1856) declared in his capacity as Lord Chief Justice of the Court of Queen’s Bench in Allen, the Attorney-General was only ‘responsible for his acts before the great tribunal of this country, the High Court of Parliament.’ Allen (1862) 1 B & S 850, 855; 121 ER 929 , 931.
42 See n 40.
43 A relator action is a civil procedure through which the prerogative is made available to private plaintiffs (through the Attorney-General) to enforce a public right. The Attorney-General can act independently, but in practice he acts at the relation (at the instance) of a private individual. Therefore the Attorney-General agrees to be the nominal claimant while the conduct of the action is in the relator’s hands, subject to the Attorney-General’s general control.
44 The founder and leader of the right-wing National Association for Freedom.
45 The Post Office Act 1953 made the boycott illegal.
46  QB 729 (CA) (‘Gouriet (CA)’).
47 Gouriet  QB 729 (CA) 753.
48 Gouriet  QB 729 (CA) 758.
49 Gouriet  QB 729 (CA) 762-3 (Lord Denning MR), 770-1 (Lawton LJ) and 777-8 (Ormrod LJ).
50 Gouriet  QB 729 (CA) 766-8 (Lawton LJ), 772 (Ormrod LJ).
51 Gouriet  AC 435 (HL) 512 (Lord Edmund-Davies); 524 (Lord Fraser).
52 Gouriet  AC 435 (HL) 512.
53 Gouriet  QB 729 760.
54 Gouriet  AC 435 (HL) 507.
55 A relator action provides the only way of obtaining an injunction where the relator has no special interest beyond that of any other member of the public and where the injunction required was to restrain the respondent from committing a criminal offence. Consequently the relaxation of the requirements for locus standi has severely restricted the use of the procedure.
56 Gouriet  AC 435 (HL) 487. For a comprehensive account of this case see John Llewelyn Jones Edwards, The Attorney General, Politics and the Public Interest (Sweet & Maxwell, London 1984) 129-37.
57 Mohit v DPP of Mauritius  UKPC 20 ,  1 WLR 3343, 3350 (PC).
58 Attorney General, The Government’s Response to the Justice Committee’s Report on the Draft Constitutional Renewal Bill (provisions relating to the Attorney General), Cm 7689, July 2009, page 8. http://www.attorneygeneral.gov.uk/attachments/Justice%20Committee%20response.pdf
59 Ibid. Although the Government stated there that the power ‘is not used very often, indeed very sparingly, and usually only in a case where a defendant is ill and there is no other way of bringing the proceedings to an end’, there is no legal bar for a wider use of the power.
60 See for example, China Navigation Co Ltd v Attorney-General  2 KB 197, CA (manner of disposition of armed forces); Blackburn v Attorney-General  2 All ER 1380,  1 WLR 1037, CA (entry into a treaty); Hanratty v Lord Butler of Saffron Walden (1971) 115 Sol Jo 386 (prerogative of mercy).
61 See for example, R v Criminal Injuries Compensation Board, ex p Lain  2 QB 864,  2 All ER 182, CA (award by the Criminal Injuries Compensation Board set up under the royal prerogative) and Laker Airways Ltd v Department of Trade and Industry  QB 643,  2 All ER 182, CA (withdrawal of designation of airline to operate a transatlantic service).
62  AC 374 (HL) (‘GCHQ‘).
63 Under the Civil Service Order in Council 1982, art 4.
64 The GCHQ handles secret information vital to the UK’s national security: GCHQ  AC 374 (HL) 374 5.
65 GCHQ  AC 374 (HL) (Lord Scarman, Lord Diplock and Lord Roskill). Lord Fraser assumed the opposite without deciding.
66 GCHQ  AC 374 (HL) 410 (original emphasis)
67 GCHQ  AC 374 (HL) 407.
68 GCHQ  AC 374 (HL) 407 (Lord Scarman).
69  UKPC 20,  1 WLR 3343 (‘Mohit‘) (Lords Bingham, Hoffmann, Hope, Carswell and Brown).
70 Mohit  UKPC 20 ,  1 WLR 3343, 3354.
72 GCHQ  AC 374 (HL) 418.
73 See Barry Hough, ‘Judicial Review where the Attorney General Refuses to Act: Time for a Change’ (1988) 8 LS 189, 194 for a similar view. Cf HWR Wade, ‘Procedure and Prerogative in Public Law’ (1985) 101 LQR 180, 191 for the view that Dicey’s loose definition of the prerogative was prominent in the judgements, and the contention that the powers excepted correspond to Blackstone’s stricter definition ( n 34).
74 GCHQ (n 72) 398. Indeed recent decisions have affirmed that questions of foreign policy and the deployment of the armed forces (R (Campaign for Nuclear Disarmament) v Prime Minister  EWHC 2777,  ACD 36), and particularly whether military action against Iraq was permitted under UN Resolution 1441 (R (Gentle) v Prime Minister  EWCA Civ 1689;  QB 689) are not justiciable.
75 See the comments of Smith LJ in Ex p Tomlinson (n 41) 913-14.
76 Edwards notes that the statement represents what has been the conventional wisdom since the late eighteenth century when Lord Eldon held the office. See John Llewelyn Jones Edwards, The Law Officers of the Crown (Sweet & Maxwell, London 1964) 190. The statement was also endorsed in the communiqué issued after the Commonwealth Law Ministers’ Conference in Winnipeg in August 1977. See William Dale, The Modern Commonwealth (Butterworths, London 1983) 118.
77 See Hansard HC vol 483 cols 681-3 (29 January 1951). The Shawcross exercise carried out by the Attorney-General in the recent BAE case was prominent in the judgement of both courts. See R (Corner House Research and Campaign Against Arms Trade) v Director of the Serious Fraud Office  EWHC 714 (Admin),  NPC 42 - and R (Corner House Research and another) v Director of the Serious Fraud Office  UKHL 60,  3 WLR 568 -.
78 Evidence submitted by Professor John Spencer QC (April 2007), Select Committee on Constitutional Affairs, ‘Constitutional Affairs – Fifth Report’ HC (2006-07) http://www.publications.parliament.uk/pa/cm200607/cmselect/cmconst/306/306we15.htm accessed 15 June 2009.
79 Nor can it be argued that the quasi-judicial nature of the prosecutorial powers makes them unsuitable for judicial review when the decisions of inferior courts and tribunals are subject to judicial review.
80  AC 374, 408.
81 See for example, R v Secretary of State for the Home Department, ex p Ruddock  2 All ER 518,  1 WLR 1482 (acknowledgement of jurisdiction to examine the issue of a warrant to intercept telephones); R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett  QB 811,  1 All ER 655, CA (refusal of a passport); R v Secretary of State for the Home Department, ex p RP and TG  COD 507, CA (refusal by Criminal Injuries Compensation Board to make an award for an offence of sexual abuse); A-G of Trinidad and Tobago v Phillip  1 AC 396,  1 All ER 93, PC; R v Secretary of State for the Home Department, ex p Fire Brigades Union  2 AC 513,  2 All ER 244, HL (refusal of Secretary of State to bring statutory provisions into force). R v Secretary of State for the Home Department, ex p Bentley  QB 349,  4 All ER 442, appears to be a hybrid case. In that case, the court acknowledged that the formulation of criteria for the exercise of the prerogative of mercy was a matter of policy and not justiciable but held that the Secretary of State’s decision was justiciable on the grounds that he failed to recognise that the prerogative of mercy was capable of being exercised in many different circumstances over a wide range and therefore failed to consider the form of pardon which might be appropriate.
82 Mohit  UKPC 20 ,  1 WLR 3343, 3350.
83 Mohit  UKPC 20 ,  1 WLR 3343, 3354
84  UKHL 61 (22 October 2008).
85  UKHL 61, paragraph 35.
86 The House of Lords could overrule its previous decisions until 1898 when it held in London Street Tramways v London County Council  AC 375 (HL) that its decision on a question of law could only be corrected by an Act of Parliament. However, the Practice Statement (Judicial Precedent)  1 WLR 1234 restored the court’s power to overrule its previous decisions.
87 See his remarks in Gouriet  AC 435 (HL) 507 (n 54)
88 The possibility that senior Government colleagues could be prosecuted under the 1925 Act raised questions of a potential conflict of interest for the Attorney General, if faced with a decision whether to give or refuse consent to such a prosecution.
89 Lord Goldsmith QC, ‘The Role of the Attorney General in Changed Constitutional Circumstances’ (Lecture at Birmingham College of Law November 29 2006). See http://www.publications.parliament.uk/pa/cm200607/cmselect/cmconst/306/30606.htm#n91
90 Protocol between the Attorney General and the Prosecuting Departments, July 2009, page 5.
91 The Government has indicated that ‘in the long term some consents to prosecute need to be abolished or reallocated to the Directors to provide the safeguards that Parliament intended and this work will continue and be completed when parliamentary time allows.’ Attorney General, The Government’s Response to the Justice Committee’s Report on the Draft Constitutional Renewal Bill (provisions relating to the Attorney General), Cm 7689, July 2009, 8. See also ibid 4.
92 Section 2(1) Prosecution of the Offences Act 1985; section 1(2) of the Criminal Justice Act 1987; and section 34(1) of the Commissioners for Revenue and Customs Act 2005 respectively.
93 The functions of the Director of the Serious Fraud Office cover investigations and prosecutions. The functions of the DPP and the Director of RCPO are essentially limited to criminal prosecutions of matters investigated by the Police and Revenue and Customs respectively.
94 Section 3(1) Prosecution of the Offences Act 1985; section 1(2) of the Criminal Justice Act 1987; and section 36(1) of the Commissioners for Revenue and Customs Act 2005).
95 Sir Edward Coke’s remarks in the Proclamations Case (1611) 12 Coke Rep 74, 77 ER 1352.
96 See Attorney-General v De Keyser’s Royal Hotel  AC 508, 526 (Lord Dunedin); 537-540 (Lord Atkinson); 549-50 (Lord Moulton); 561-562 (Lord Sumner); 568-569 (Lord Padmoor). Cf Barton v Commonwealth (1974) 131 CLR 477. See also Laker Airways Ltd v Department of Trade  1 QB 643, and C Horan, Judicial Review of Non-Statutory Executive Powers  Federal Law Review 15.
97 John Llewelyn Jones Edwards, The Attorney-General, Politics and the Public Interest (Sweet & Maxwell, London 1984) 29-30. See Mohit v Director of Public Prosecutions of Mauritius  UKPC 20 paragraph 14 (n 111).
98 Ibid 32.
99 (1883) 47 J.P. 724.
100 Cited in Bernard Dickens ‘The Attorney-General’s Consent to Prosecutions’ 35 (1972) Mod. L. Rev. 347, 353. This statement is similar to that of A.L. Smith L.J in ex p. Tomlinson in which he extended the orthodoxy to the powers of the Attorney-General ‘found in old and in recent statutes.’  1 QB 909, 914. (Insert cross reference).
101 By the Prosecution of Offences Act 1879.
102 Bernard Dickens ‘The Attorney-General’s Consent to Prosecutions’ 35 (1972) Mod. L. Rev. 347, 353
103  QB 839. The Divisional Court followed the decision in R. v DPP Ex p. Hussein  C.O.D. 88.
104  AC 435 (HL) 487
105  QB 839, 847 (Sir Sebag Shaw).
106 LCCP 149 Criminal Law: Consents to Prosecution, September 1997, 29 http://www.lawcom.gov.uk/docs/cp149.pdf See Mohit v Director of Public Prosecutions of Mauritius  UKPC 20 paragraph 14 (n 111).
107 The Times 14 August 1995, case no: CO 2117 -94.  1 F.C.R. 206;  C.O.D. 61.
108 R v Commissioner of Police, ex p Blackburn (No 3)  QB 241 (in relation to the Police); R v General Council of the Bar, ex p Percival  1 QB 212 (in relation to disciplinary proceedings by professional bodies); R v Inland Revenue Commission, ex p Mead  1 All ER 772 (in relation to the Inland Revenue) and R v Director of Public Prosecutions, ex p C  1 All ER 385 (in relation to the DPP).
109 R v Solicitor-General, ex p Taylor, The Times 14 August 1995, case no: CO 2117-94, at pp 21-22 of the transcript.
110 Ex p Datafin Plc  QB 815, 847.
111 Mohit v Director of Public Prosecutions of Mauritius  UKPC 20 paragraph 14, citing J Edwards, The Attorney-General, Politics and the Public Interest (Sweet & Maxwell, London 1984) 29-30 and LCCP 149 Criminal Law: Consents to Prosecution, September 1997, 29 http://www.lawcom.gov.uk/docs/cp149.pdf. However, the Law Commission appeared to withdraw their tacit approval in their Final Report, which merely stated, in relation to Ex p Taylor, ‘As counsel for the applicants in Ex p Taylor pointed out, unlike the decisions of the Law Officers, those of the DPP and other prosecuting authorities are susceptible to judicial review.’ See LC 255 A Final Report, 20 October 1998, 21 http://www.lawcom.gov.uk/docs/lc255.pdf.
112 R (Corner House Research and another) v Director of the Serious Fraud Office  EWHC 714 (Admin).
113 R (Corner House Research and another) v Director of the Serious Fraud Office  UKHL 60.
114 Section 12(1).
115 R (Corner House Research and another) v Director of the Serious Fraud Office  EWHC 714 (Admin).
116 R (Corner House Research and another) v Director of the Serious Fraud Office  UKHL 60.
117 See for example, D. Hencke, ‘Tories join Brown in bid to block fraud investigations’ The Guardian (London, 12 April 2008)
118 Ibid 6.
119 See Minutes of Evidence, Q81, Report from the Select Committee on Justice HC Fourth Report (2007-08)
120  UKHL 47.
121  UKHL 47, paragraph 54.
122  UKHL 47, paragraph 31, citing Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/84)  QB 129; R v Secretary of State for the Home Department, Ex p McQuillan  4 All ER 400; R v Ministry of Defence, Ex p Smith  QB 517 and Smith and Grady v United Kingdom (2000) 29 EHRR 493; and P Van Dijk and G J H Van Hoof, The Theory and Practice of the European Convention on Human Rights 1998, 515-521.
123  UKHL 47, paragraph 31.
124  AC 374, 406.
125  2 AC 77.
126  2 AC 77.
127  2 AC 77, 79.
128  2 AC 77, 106-107.
129  2 AC 77, 108.
130  AC 374, 405.
131  AC 763.
132  AC 374, 406.
133  AC 374, 406-407. Lord Scarman also referred to Secretary of State for Defence v. Guardian Newspapers Ltd  AC 339 (HL). The principle set out by Lord Reid in Padfield v Minister of Agriculture, Fisheries and Food  AC 997, 1030, is also applicable here.
134 ‘The Rule of Law’  CLJ 67, 79.
135 The officer was also known as Queen’s Advocate, Advocate-General, Procureur, or Advocate in some jurisdictions. See J W Norton-Kyshe The Law and Privileges Relating to Colonial Attorneys-General and to the Officer corresponding to the Attorney-General of England in the United States of America (Stevens and Haynes, London 1900) 1-11.
136 The first indigenous Attorney-General of Nigeria.
137 T Elias, ‘The Office and Duties of the Federal Attorney General in Nigeria’ (1972) The Nigerian Law Journal 149, 149.
138 40 of 1936 (later Cap 100 of 1958 Edition of the Laws of Nigeria and Lagos).
139 Order 47 of 1951.
140 S 2 of the Law Officers Ordinance (as amended).
141 L.N. 131 of 1954.
142 S 5 of the Law Officers Ordinance (as amended).
143 L.N. 1 of 1955. See section 2 of the Law Officers Ordinance (as amended).
144 The consent of the Attorney-General of the Federation is required to initiate prosecution for offences like sedition, treachery, unlawful societies, refusal by a public officer to perform his duty, publication of defamatory matter concerning a dead person: see T Elias, ‘The Office and Duties of the Federal Attorney General in Nigeria’ (1972) The Nigerian Law Journal 149, 153 to 154. However, subject to these specified cases, other prosecuting agencies like the Police Force and the Economic and Financial Crimes Commission and private persons can initiate criminal proceedings on their own without the consent of the Attorney-General although the Attorney-General can take over or discontinue such prosecution: see The Federal Republic of Nigeria v George Osahon & Others 2006 5 NWLR (pt.973) page 361 (SC).
145 42 of 1945 (later Cap 43 of 1958 Edition of the Laws of Nigeria and Lagos.
146 L.N. 131 of 1954.
147 L.N. 47 of 1955.
148 S 72 of the Criminal Procedure Ordinance (as amended).
149 See ss 73 and 74 of the Criminal Procedure Ordinance (as amended).
150 L.N. 65 of 1958.
151 Thus the Attorney-General became a political appointee in the Eastern and Western regions in 1958 (Amendment Order, SI, 1958/429) and in the Northern region in 1959 – when the office of the DPP of the Northern Region was created (Amendment Order, SI, 1959/368). However, the federal Attorney-General remained a public servant until independence in 1960, when the office of the DPP of the Federation was created under the 1960 Constitution.
152 (1959) 4 F.S.C. 119.
153 With Brett, FJ and Mbanefo FJ.
154 (1959) 4 F S C. 119.
155 (1959) 4 F S C. 119-120.
156  1SCNLR 94, 111 (Justice Eso), 118 (Justice Nnamani). Benjamin Obi Nwabueze, The Machinery of Justice in Nigeria (Butterworths, London 1963) 208-209.
157 UKPC 20, paragraph 13.
158 UKPC 20, paragraph 18, citing R v Commissioner of Police of the Metropolis, Ex p Blackburn  2 QB 118; R v General Council of the Bar, Ex p Percival  1 QB 212, 234; R v Chief Constable of the Kent County Constabulary, Ex p L (a minor)  1 All ER 756; R v Inland Revenue Commissioners, Ex p Mead  1 All ER 772; R v Director of Public Prosecutions, Ex p C  1 Cr App R 136; R v Crown Prosecution Service, Ex p Hitchins (Queen’s Bench Divisional Court, 13 June 1997, unreported); R v Director of Public Prosecutions, Ex p Treadaway Queen’s Bench Divisional Court, 31 July 1997, unreported; and R v Director of Public Prosecutions, Ex p Manning  QB 330.
159 See Kielley v Carson (1842) 4 Moo PC 63, 85; 13 ER 225, 234 (Baron Parke); Solicitor-General, ex p Cargill v. City of Dunedin (1875) 1 NZ Jur 1, 14 (Williams J); Liquidators of Maritime Bank of Canada v Receiver-General of New Brunswick  AC 437, 441 (Lord Watson); Re Bateman’s Trust (1873) 15 Eq 355, 361 (Sir James Bacon VC).
160 The full title is The Nigerian (Constitution) Order in Council 1960.
161 Benjamin Obi Nwabueze, A Constitutional History of Nigeria (London, C. Hurst & Co 1982) 73.
162 This is akin to the principle set out in cases like Attorney-General v De Keyser’s Royal Hotel Ltd  AC 508 and Laker Airways Ltd v Department of Trade  1 QB 64.
163 The Attorney-General became a political appointee in the Eastern and Western regions in 1958 (Amendment Order, SI, 1958/429) and in the Northern region in 1959 (Amendment Order, SI, 1959/368).
164 S 81(11) of the Constitution of the Federation of Nigeria. See s 34(11) Constitution of Northern Nigeria, s 33(1) Constitutions of Western and Eastern Nigeria, for the regional Attorneys-General.
165 S 97(1).
166 S 145 also provided that the DPP could only be removed from office for inability or misbehaviour, and such a removal must have been recommended by an independent tribunal appointed at the instance of the Prime Minister by the Governor-General. The Auditor General was also not subject to the control of any other person in the exercise of his functions: s 128(4).
167 Tappin v Lucas (1973) 20 WIR 229.
168 Re King’s Application (1988) 40 WIR 15.
169 Tapper v Director of Public Prosecutions (Supreme Court of Jamaica in the Constitutional Court, 8 February 1999 unreported).
170 Aii Taito Galu Teo v Attorney-General & Misa Tlefoni Retzlaff, Court of Appeal of Samoa, judgement rendered 23 November 2001.
171 Matalulu v DPP  4 LRC 712.
172 See the observations of Lord Bingham in Mohit v DPP of Mauritius  UKPC 20, paragraph 11.
173 Matalulu v DPP  4 LRC 712.
174 Matalulu v DPP  4 LRC 712, 735-736 cited in Mohit v DPP of Mauritius  UKPC 20 paragraph 17.
176 Brett (ed) Constitutional Problems of Federalism in Nigeria (Times Press, Lagos 1961) 15.
177 Ibid 17. But he added that he did ‘not read the Constitution as meaning that nothing they do can be challenged in the courts, or as excluding the doctrine of ultra vires‘.
178  AC 614.
179 The Constitution of Western Nigeria s 33(10).
180 Ademola CJF, Taylor and Bairamian FJJ. Incidentally, Brett FJ dissented.
181  AC 614, 632 (Viscount Radcliffe).
182  AC 614, 631- 632. See also Alli v. Okulaja  2 All NLR 35, which held that Nigerian courts are not bound by English case law.
183 See A Ekundayo ‘Constitutional Provision of Nolle Prosequi – A Blessing or a Curse’ (1988) Nigerian Institute of Advanced Legal Studies Series 1, 10.
184  2 AC 672, 679.
185  MR 194 cited in Mohit  UKPC 20 paragraph 13.
187 See B Obinna Okere, ‘Judicial Activism or Passivity in interpreting the Nigerian Constitution’ (1987) 36 ICLQ 788 for a detailed consideration of the circumstances leading to the adoption of a republican Constitution.
188 Benjamin Obi Nwabueze A Constitutional History of Nigeria (C Hurst & Co, London 1982) 76-77.
189 The Nigerian Constitution Second Amendment Act 1962.
190 The Attorney-General for each of the four regions had identical powers over prosecutions relating to criminal offences under Regional laws: see s 47 Constitutions of Western and Mid-Western Nigeria respectively and s 47, Constitutions of Northern and Eastern Nigeria respectively.
191 By virtue of section 104(3), the Attorney-General could exercise the powers in person and through the DPP, acting under and in accordance with his general or special instructions, and through other officers of his department.
192 See the Constitution of the Federal Republic of Nigeria (Enactment) Decree No 25 of 1978.
193 I Sagay ‘The Supreme Court 1980-87 and the Development of an Independent Judiciary, a Free, Fair and Just Society in Nigeria’, cited in A Ekundayo ‘Constitutional Provision of Nolle Prosequi – a Blessing or a Curse’ (1988) Institute of Advanced Legal Studies 12. See also The State v. Ahor (1981) 2 NCLR 410 where the High Court and the Court of Appeal fell into the same error.
194 He recently said he and the Committee Chairman did ‘the main work’. See M Mbamalu, ‘Nwabueze Defends Obasanjo’s Appointment of Self As Petroleum Minister’ Guardian (Lagos January 4 2009).
195 Benjamin Obi Nwabueze, Nigeria’s Presidential Constitution 1979-83: The Second Experiment in Constitutional Democracy (Longman, New York 1985) 313-15
196 A Ekundayo, ‘Constitutional Provision of Nolle Prosequi – A Blessing or a Curse’ (Nigerian Institute of Advanced Legal Studies, Lagos 1988) 30.
197 11 Cl & F 85, 143; 8 ER 1034, 1057.
198  1 SCNLR 94, 106.
199  1 QB 909 (CA).
200 Cited in Justice Eso’s judgment in Ilori  1SCNLR 94, 110.
201 Ilori  1SCNLR 94, 110.
202 Ilori  1SCNLR 94, 105.
203 Ilori  1SCNLR 94, 106.
204 Fatayi-Williams CJN, Irikefe, Idigbe, Eso, Aniagolu, Nnamani and Uwais JJSC. The Supreme Court is constituted by five Justices but when interpreting the Constitution it is constituted by seven Justices: s 214 of the 1979 Constitution and s 234 of the 1999 Constitution.
205 (1862) 1 B.&S 850.
206  1QB 909, also known as ex p. Tomlinson.
207 (1959) 4 F.S.C. 119.
208  1SCNLR 94, 109. For a similar view, see Benjamin Obi Nwabueze, The Machinery of Justice in Nigeria (Butterworths, London 1963) 208-209.
209  1SCNLR 94, 111.
210  1SCNLR 94, 108. Justice Nnamani only referred to the case to support his contention that the orthodoxy has always been part of Nigerian law (118).
211  AC 614, 631- 632. (n 182)
212 Together with the Australian cases of Barton v The Queen (1980) 147 CLR 75 and The Queen and Hanna v Director of Public Prosecutions of NSW  NSWSC 134.
213  1 UKHL 20 [20-21],  1 WLR 3343.
214  1SCNLR 94, 115.
215  1SCNLR 94, 115-116. Justices Eso (111) and Uwais (119) also expressed similar views.
216  1SCNLR 94, 115.
217  1SCNLR 94, 116.
218  QB 839. (n 103). The Divisional Court followed the decision in R. v DPP Ex p. Hussein  C.O.D. 88.
219  QB 839, 847
220  QB 839, 847. But as observed by Cockburn J in R v Allen (1862) 1 B. & S. 850, 85, and echoed by Justice Aniagolu in Ilori  1SCNLR 94,115, ‘there is nothing to prevent the Attorney-General entering a nolle prosequi toties quoties.’
221  QB 839, 847.
222  1SCNLR 94, 110.
223 Section 6(6).
224 Section 6(3).
225 (1964) AC 1254, 1347, ‘the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court’s process is used fairly and conveniently by both sides.’
226 See part three of this article.
227 See the decision of the Supreme Court of Canada in Rourke v R  1 SCR 1021.
228 (1980) 147 CLR 75.
229 (1964) AC 1254, 1296 (Lord Reid) 1347-1353 (Lord Devlin) 1361-1362 (Lord Pearce) ] and Director of Public Prosecutions v. Humphrys [(1977) AC 1, 46 (Lord Salmon) and 53-55 (Lord Edmund Davies).
230 (1980) 147 CLR 75, 97.
231  1 WLR 780.
232 This is consistent with the principle that judicial review is not available if there is an adequate alternative remedy: see, e.g. R v Secretary of State for the Home Department Ex p. Swati  1 WLR 477; R v Birmingham City Council Ex p. Ferrero  1 All ER 530; R (G) v Immigration Appeal Tribunal  EWHC 588 (Admin),  1 WLR 2953.
233  1 WLR 780, 794-795 per Baroness Hale, Lords Carwell and Mance citing R v Horseferry Road Magistrates’ Court; Ex p Bennett  1 AC 42, 61-62 (Lord Griffiths); and in a subsequent passage R v Grays Justices, Ex p Low  1 QB 54; Hui Chi-ming v The Queen  1 AC 34, 57; Attorney General of Trinidad and Tobago v Phillip  1 AC 396, 417; and R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326.
234  1 WLR 780, 794-795.
235  1SCNLR 94, 116 (Justice Aniagolu). Justices Eso (111) and Uwais (119) also expressed similar views.
236 The former Attorney-General, Mr Aondoakaa, has survived persistent headlines like ‘Nigeria’s Attorney-General is stalling efforts to recover millions of dollars looted by former Nigerian officials’. See A Coulson, ‘Nigeria ‘slow’ on graft inquiry’ BBC News (29 November 2007) http://news.bbc.co.uk/1/hi/world/africa/7113216.stm accessed 1 June 2009; M Green, ‘Nigeria blunts graft inquiry’ Financial Times (10 October 2007) http://www.ft.com/cms/s/0/d0f160fe-76ca-11dc-ad83-0000779fd2ac.html accessed 1 June 2009.
237  UKPC 20 paragraph 22.
238 A-G of Anambra State v A-G of the Federation & Ors  9 NWLR (Pt 931) 574, 606 (Supreme Court) Katsina-Alu JSC. See also A-G of Ondo State v A-G of the Federation (2002) NWLR (Pt.111) 2167.
239 A-G of the Federation v Guardian Newspapers Ltd  9 NWLR (Pt 618) 187, 266 (Iguh JSC). See also Odi v Osafile (1985) 1 NWLR (Pt 1) 17, 34-5; Cardoso v Daniel (1986) 2 NWLR (Pt 20) 1; Ifediorah v Ume (1988) 2 NWLR (Pt 74) 5; Bronik Motors Ltd v Wema Bank Ltd  1 SCNLR 296 (SCN); Rossek v ACB Ltd (1993) 8 NWLR (Pt 312) 382, 431; and Eperokun v University of Lagos (1986) 4 NWLR (Pt 34) 162.
240 The Supreme Court’s decision in Ilori was delivered on February 25 1983.
241  1 SCNLR 94, 117.
242  AC 374, 410
243 Ibid, 411.
244 See Chief Constable of the North Wales Police v Evans  3 All ER 141, 154-155 , HL (Lord Brightman; R v Panel on Take-overs and Mergers, ex p Datafin plc  QB 815, 842 (Sir John Donaldson); Lonrho plc v Secretary of State for Trade and Industry  2 All ER 609, 617 (Lord Keith of Kinkel).
245 It is indeed arguable that ‘illegality’ is wide enough to include ‘irrationality’ and ‘procedural irregularity’.
246 The language of the cases shows a uniform approach: “rare in the extreme” (R v Inland Revenue Comrs, Ex p Mead  1 All ER 772, 782); “sparingly exercised” (R v Director of Public Prosecutions, Ex p C  1 Cr App R 136, 140); “very rare indeed” (R (Pepushi) v Crown Prosecution Service  Imm AR 549, para 49); “very rarely”: R (Bermingham) v Director of the Serious Fraud Office  2 WLR 635, para 63. See Sharma v Antoine  UKPC 57;  1 WLR 780, 787-788, per Lord Bingham. See also, Lord Carwell in Marshall v. The Director of Public Prosecutions  UKPC 4.
247 In Sharma, the Privy Council remarked that it was not aware of any English case in which leave to challenge a decision to prosecute has been granted. Also in Wayte v United States (1985) 470 US 598, 607, Powell J described the decision to prosecute as “particularly ill-suited to judicial review”.
248 See R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening)  1 AC 800 and Matalulu  4 LRC 712, 736, cited in Sharma, 788.
249  4 LRC 712.
250  EWHC 714 (Admin) paragraphs 30-31.
251 See section 4(b)(1) of the Protocol between the Attorney General and the Prosecuting Departments (July 2009).
252 The oath continues as follows: ‘I will duly in convenient time speed such matters as any person shall have to do in the Law against The Queen as I may lawfully do, without long delay, tracting or tarrying the Party of his lawful process in that that to me belongeth. And I will be attendant to The Queen’s matters when I shall be called thereto.’
253 See News Release ‘Package of Reforms to Historic Role of Attorney General Announced’ 25 March 2008.
The Government has confirmed that it will be ‘modernising the oath of the Attorney General to refer explicitly to respecting the rule of law.’ See See Attorney General, The Government’s Response to the Justice Committee’s Report on the Draft Constitutional Renewal Bill (provisions relating to the Attorney General), Cm 7689, July 2009, 12.
254  EWHC 714 (Admin).
255 See for example, D. Hencke, ‘Tories join Brown in bid to block fraud investigations’ The Guardian (London, 12 April 2008)
256 Britain’s biggest arms company.
257 Section 1(3) of the Act.
258 Section 1(5).
259 See R (Corner House Research and another) v Director of the Serious Fraud Office  EWHC 714 (Admin) paragraph 9.
260 The Prime Minister’s Chief of Staff.
261 R (Corner House Research and another) v Director of the Serious Fraud Office  EWHC 714 (Admin) paragraph 22. See also Sunday Times (London June 10 2007).
262 R (Corner House Research and another) v Director of the Serious Fraud Office  UKHL 60 paragraph 22.
263 See R (Corner House Research and another) v Director of the Serious Fraud Office  EWHC 714 (Admin) paragraph 54.
264 Ibid paragraph 55.
265 Ibid paragraph 56.
266 He sat with Sullivan J.
267 Ibid paragraph 57.
268 Ibid paragraph 63.
269 Ibid paragraph 64.
270 Ibid para 61.
271 Ibid para 62.citing R (Alconbury Developments Ltd) v Secretary of State for the Environment  UKHL 23, 73.
272  EWHC 714, paragraph 102.
274 Referring to ‘the Attorney General’s adoption of the principle that preserving the rule of law constitutes an important component in the means by which democracy is secured’: Speech to the Cour de Cassation June 2004.
275 R (Corner House Research and another) v Director of the Serious Fraud Office  EWHC 714 (Admin) paragraph 99-101.
276 Lords Bingham, Hoffmann, Roger, Brown and Baroness Hale.
277 R (Corner House Research and another) v Director of the Serious Fraud Office  UKHL 60 paragraph 38 (Lord Bingham).
278 R (Corner House Research and another) v Director of the Serious Fraud Office  UKHL 60 paragraph 38 (Lord Bingham).
279 R (Corner House Research and another) v Director of the Serious Fraud Office  UKHL 60 paragraph 41 (Lord Bingham).
280 J Jowell, ‘Caving In: Threats and the Rule of Law’  JR 273, 275.
281 R (Corner House Research and another) v Director of the Serious Fraud Office  EWHC 714, paragraph 30 (Admin).
282 R (Corner House Research and another) v Director of the Serious Fraud Office  EWHC 714 paragraphs 31 (Admin).
283  QB 458.
284  3 All ER 37.
285 R (Corner House Research and another) v Director of the Serious Fraud Office  UKHL 60 paragraphs 36 and 37.
286 Ibid paragraph 58.
287 J Jowell, ‘Caving In: Threats and the Rule of Law’  JR 273, 275, citing H Woolf, J Jowell and A Le Sueur, De Smith’s Judicial Review (Sweet & Maxwell, London 2007) paragraphs 11-086 ff.
288 Section 1.
289 ‘The Rule of Law’  CLJ 67, 69, citing R v Secretary of State for the Home Department, Ex p Pierson  AC 539, 575 (Lord Browne-Wilkinson); R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, 131 (Lord Hoffmann).
290 See R Hopkins and C V Yeginsu ‘Storm in a Teaup: Domestic and International Conservatism from the Corner House Case’  JR 267, for an enthusiastic support of the House of Lords decision in the BAE case.
291 ‘The Rule of Law’  CLJ 67, 68 footnote 11. He was commenting on a suggestion by Lord Kingsland that a slightly different earlier version of section 1(a) of the Constitutional Reform Act 2005 was not justiciable. See House of Lords (HL Hansard 7 December 2004, cols 742-743).
292 The Rule of Law’  CLJ 67, 69
293 J Jowell, ‘Caving In: Threats and the Rule of Law’  JR 273, 275.
295  AC 374,411.
296  1 SCNLR 94, 118.
297 The nolle prosequi entered on July 13, 2009 by the Attorney-General of the Federation under section 174(1)(c) of the 1999 Constitution to stop the prosecution for treason of the leader of the Movement for the Emancipation of the Niger Delta (MEND), whose violent militancy has led to a significant reduction in the country’s oil production, provides a good example of the interaction of national security and national economic interest as parts of the wider public interest. See Isa Abdulsalami ‘Okah free, may meet Yar’Adua’, The Guardian, July 14 2009,
298 See Alli v. Okulaja  2 All N.L.R. 35.
299 Leading critics of the decision in Ilori have similarly concentrated on subsection (3) whilst paying little or no regard to section 6(6). See for example, A Karibi-Whyte ‘The Relevance of the Judiciary in the Polity – In Historical Perspective’ (1987) Nigerian Institute of Advanced Legal Studies 83-84. See also, Sagay, The Supreme Court, 1980-87 and the Development of an Independent Judiciary, A Free Fair and Just Society in Nigeria, cited in A Ekundayo ‘Constitutional Provision of Nolle Prosequi – a Blessing or a Curse’ (1988) Institute of Advanced Legal Studies 12. I Okagbue, ‘Private Prosecution in Nigeria: Recent Developments and Some Proposals’ (1990) 34 Journal of African Law 53, 64 correctly distinguished the statutory powers of the Nigerian Attorney-General from the royal prerogative but then appeared to support Karibi-Whyte’s view that the jurisdiction to review their exercise derives from subsection (3) rather than from section 6(6).
300 1SCNLR 94, 110-111.
301 (1880) 5 App Cas 214, 44 JP 600, 49 LJQB 577.
302 (1880) 5 App Cas 214, 222 (Lord Chancellor Cairns)
303 (1880) 5 App Cas 214, 222.
304 Identical to s 160 for the Federal Attorney-General and ss 174 and 195 of the 1999 Constitution.
305 (1880) 5 App Cas 214, 222-223.
306 The principle that powers which are not derived from statute or the prerogative will be amenable to judicial review if they involve a sufficient public element, see (R v Panel on Take-overs and Mergers Ex p Datafin Ltd  QB 815, does not extend to judicial bodies dealing with the affairs of purely religious bodies, see R v Chief Rabbi of the United Hebrews Congregations of Great Britain and the Commonwealth Ex p Wachmann  1 WLR 1036.
307 (1880) 5 App Cas 214 at 235-236.
309 Nwabueze, Nigeria’s Presidential Constitution 1979-83 (1983, Longmans) 313; his contention that ‘it is not enough for the Constitution to direct the Attorney-General to have regard to the public interest, the interest of justice and the need to prevent abuse of legal process without making it mandatory for him to do so’ runs against the grain of the Constitution, which as shown above, makes all matters justiciable by default under section 6(6) before excepting two specified matters.
310  1 SCNLR 94, 118.
311  1 QB 147,  3 All ER 399.
312 John Finnis, Natural Law and Natural Rights (Oxford University Press, Oxford 1980) 270.
313 This could be an individual or a civil society group or a corporate body or a different level of government. In Owodunni v Registered Trustees of Celestial Church 2000) 10 NWLR (Pt 675) 325, the Supreme Court confirmed that their earlier decision in Adesanya v President of the Federal Republic of Nigeria (1981) 2 NCLR 358 did not restrict the class of persons entitled to locus standi to those whose civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of. In Fawehinmi v President of the Federal Republic of Nigeria (2007) 14 N.W.T.L.R. 275 (PT: 1054) 334 paragraph F – G, the Court of Appeal held that the requirement of locus standi is unnecessary in constitutional issues.
314 Which involved a relator action for leave to prevent the commission of a crime.
315 I Okagbue, ‘Private Prosecution in Nigeria : Recent Developments and Some Proposals’ (1990) 34 Journal of African Law 53, 62.
316 Ibid, page 65.
317 See Fawehinmi v Akilu (1987) 4 NWLR 797, 832 (Justice Obaseki).
318  1 SCNLR 94, 116. In addition to the plethora of high-level corruption cases yet to be prosecuted there are numerous high-level murders that would benefit from the loosening of the grip of the orthodoxy on the right of private prosecution, including the murder of a former Attorney-General of the Federation, Chief Bola Ige, who was killed on December 23, 2001 at his residence by unknown gunmen while in office.
319 D. Hay ‘Controlling the English Prosecutor’ (1983) 21 Osgoode Hall Law Journal 165, 167.
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