Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford
In the wake of the acquittal of the Colston four, the Attorney General is considering exercising her statutory power to refer a point of law to the Court of Appeal.
Some senior lawyers have claimed that in considering this course of action she is betraying her constitutional office, undermining the rule of law and politicising the legal system – and perhaps even doing her bit to perpetuate institutional racism.
These are serious charges. But there is simply no evidence to sustain them. However, the controversy is itself evidence of a wider phenomenon, in which the role of the Attorney General, at the intersection of law and politics, is often misunderstood or misrepresented.
When a person tried on indictment has been acquitted, section 36 of the Criminal Justice Act 1972 permits the Attorney General to seek the opinion of the Court of Appeal on a point of law which has arisen in the case. When a case is referred in this way the Court can consider the point and give an opinion on it.
Whatever view the Court takes of the point, the acquittal stands. The point of referring the point to the Court is, simply to try to correct or clarify the law for the benefit of other cases.
It follows that former judge, now barrister, Peter Herbert OBE is wrong when he asserts that “the Court of Appeal has no role to play in this acquittal”. His more inflammatory claim is that the Attorney General’s action “smacks of institutional racism, demonstrating the need to defend the narrative of slavery and oppression, the direct link to colonialism, and therefore to present day injustices.”
This is, to put it gently, quite a leap of logic. In decrying criminal damage, or worrying that the law in question is unclear or confused, one is scarcely assuming the role of apologist for slavery.
In any case, the Attorney General has not yet decided whether to refer a point to the Court of Appeal. But the charge against her is that in considering whether to do so she is not acting like a responsible law officer but instead like a (venal) party politician, currying favour with the voters without care for the damage done to the law. Her opposition counterpart, Emily Thornberry MP, put it this way: “The Attorney General has a duty to uphold democracy, the rule of law and the sanctity of the jury system, not play political games when she doesn’t like the results.”
If the Guardian is to be believed, a number of other senior lawyers are similarly critical and cannot recall such a referral by an Attorney General in similar circumstances. Possibly they have overlooked the previous Attorney General’s decision, in 2020, to refer a point of law, concerning section 3 of the Sexual Offences Act 2003, to the Court of Appeal, in the wake of acquittal in a jury trial.
The Guardian also reports Kirsty Brimelow QC, vice-chair of the Criminal Bar Association, saying that:
“A politician is unlikely to have expertise in the laws governing direct-action protest and may not understand the statutory defences within the offence of criminal damage and so this could be a knee-jerk reaction, which is disappointing. I have not seen any specific criticism of the judge’s legal directions and route to verdict, which appear legally sound.”
It may well be that the Attorney General does not have direct experience of the law of criminal damage, but this scarcely means she is unable to review the case, with support from other lawyers in her office, and decide whether or not a reference is warranted.
In any case, Brimelow may have spoken too soon. The judge’s legal directions have now been made available, by legal bloggers rather than the court, and a number of criminal lawyers have criticised them. The criticisms may be mistaken, of course, but there is a live controversy here about the applicable law.
In addition, reflecting on the significance of the trial, one of the lawyers for the defence stresses the novelty of several legal points that were advanced, which again suggests that a reference to the Court of Appeal may be in order. In particular, the Attorney General might reasonably seek clarification from the Court of Appeal about the implications of the Supreme Court’s Ziegler judgment and whether the trial judge should have left to the jury the open question of whether a conviction for criminal damage would be proportionate all things considered.
The criticisms made of the Attorney General in recent days are thus at best premature and ungrounded or at worst politically motivated attacks on a law officer, heedless of the damage done to public confidence in the legal system.
This is not the first time the Attorney General has been attacked in this way. Consider the speech she gave to a lawyer’s conference in October last year, in which she respectfully set out a number of criticisms of recent Supreme Court judgments. For her critics, this was to attack judges and to compromise the office she holds.
A new Policy Exchange paper explores the nature of the Attorney General’s office and shows that criticism of her October 2021 speech was misconceived.
The role of Attorney General is a challenging one in part because it requires the office-holder to operate in the world of law and politics. In relation to some questions, the Attorney should certainly strive to keep political considerations at a distance. But it is consistent with the role, as historical and comparative analysis confirms, for the Attorney to support the government’s proposals in relation to constitutional reform and to engage respectfully with courts about their jurisprudence.
As former Lord Chancellor Sir Robert Buckland QC MP, says in the foreword to the paper, the law officers can and do observe relevant constitutional boundaries without having to maintain a sphinx-like silence.
The Attorney General exercises important public power and is properly accountable for her actions. But recent criticism, whether of the action she is contemplating in relation to the Colston four or her commentary on recent cases, has been neither fair nor well-judged.