Certificates of very little merit: The Attorney General's power to suppress evidence is a perversion, argues Gareth Williams

MOST recent press comment on the role of Sir Nicholas Lyell, the Attorney General, in the 'arms to Iraq' affair has considerably understated the extent of his powers. He is the single most powerful component of the system of criminal justice in this country. And as the head of the Bar, it is his duty to maintain its ethical code. It is worth bearing in mind, when Sir Nicholas gives evidence before Lord Justice Scott today, just how far his influence pervades the law and its operation.

He alone can refer questions of law to the Court of Appeal (Criminal Division) and he alone may appeal against an over-lenient sentence. Many criminal offences cannot be prosecuted at all without his consent - ranging from attempts to commit explosions to genocide, developing biological weapons, corrupt practices in local government, offences under the Official Secrets Acts, to stirring up racial hatred. An application for a fresh inquest, if made under the Coroners' Act 1887, needs his permission. In all of these serious cases he is not a passive functionary. He is required to exercise an independent and scrupulous discretion.

He has the power to take over and continue private prosecutions. If he wants a private prosecution to stop, he can prevent its continuing.

Nor has he been reluctant to exercise such power in the past. The guidelines on jury vetting were issued in 1988. They were Attorney General guidelines, which entitle investigation of Special Branch records relating to particular prospective jurors. If more extensive investigation is requested, it can only be done 'with the personal authority of the Attorney General on the application of the Director of Public Prosecutions'. Following the Devlin report on identification evidence, it was the Attorney General who issued guidelines.

And finally, the chickens that will come home to roost, there are the Attorney General's guidelines about disclosure of material to the defence. These were intended to be binding upon every prosecutor, including the Attorney and the Director of Public Prosecutions. 'Sensitive' material, for instance relating to national security or danger to witnesses, may justify non-disclosure. If there is doubt about that disclosure 'such material should be submitted to counsel for advice'. If it becomes apparent that there is a clear duty to disclose, but it is so sensitive that it would not be in the public interest to do so, 'it will probably be necessary to offer no or no further evidence'.

All the material helpful to the Matrix Churchill defendants was available in Whitehall before the charges were even drawn up. Quite apart from the guidelines, the Court of Appeal in the case of Judith Ward, convicted in 1974 of the M62 coach bombing and freed on appeal in 1992, restated the common law duty on a continuing basis before and throughout a trial that demands disclosure.

Until fairly recently Attorneys General prosecuted serious cases themselves. Elwyn Jones QC prosecuted the Moors murder case, Michael Havers QC prosecuted the Yorkshire Ripper. No Attorney can claim or pretend that the duty of disclosure on him is any different from the duty resting on any other member of the Bar.

The use of public interest immunity (PII) certificates has grown over the past 15 years (as government does not make them available, precise figures are impossible to determine). They are able to have a life and being only because of the English addiction to excessive secrecy for no public purpose. They are the tools to ensure that the public never knows. Their use in any legal battle is a perversion - a necessary perversion only in the rarest circumstances.

They are also open to challenge, as established by the House of Lords in the 1967 case of Conway versus Rimmer. Mr Conway, a probationer constable in the Cheshire Police, was charged with stealing an electric torch. He was acquitted, but was dismissed from the force on the basis of internal reports. He sued for malicious prosecution and wanted disclosure of the internal reports. The House of Lords decided to inspect the reports that were covered by PII certificates, to judge for themselves their appropriateness.

The certificate supporting non-disclosure had been signed by Roy Jenkins, then Home Secretary. It is worth remembering its terms: 'I personally examined and considered all the documents . . . in my opinion the production of the documents would be injurious to the public interest.' There is nothing there to suggest an automatic 'duty' to try to suppress.

The public anger and shame which led to the Scott inquiry derived, of course, from the thought of wrongful imprisonment connived at by government ministers. But there is another, subterranean world, where PII certificates are routinely used to inhibit disclosure and to stop plaintiffs asserting their rights. They are produced to protect public bodies and government departments simply because administrative convenience wishes it. Some of the consequences are ludicrous. One example will do.

Alison Halford, the former Assistant Chief Constable of Merseyside Police, complained of unlawful treatment under the Sex Discrimination Act 1976. She went to an industrial tribunal. She wanted (probably needed) to see reports and documents from the internal police inquiry. The Court of Appeal refused her request even though both Miss Halford and the Chief Constable knew what was in the files - a neat illustration of the Alice in Wonderland school of jurisprudence.

The finest flowering of judicial independence over the past 25 years has been the development of judicial review. Ordinary people have been able to enforce their rights against stubborn governments and secretaries of state. The control of the executive, so enfeebled by Parliament, has been asserted and maintained by the judges. This is a sharp contrast to the supine approach to PII certificates. The lessons of Scott should not be confined to the double dealing over Matrix Churchill. There must be at least three consequences.

First, ministers will have to do as Mr Jenkins did, read every document and form an independent judgement. Second, the courts must be much more sceptical about national interest claims. Third, the House of Lords, as the supreme court, should review the whole area. In doing so they might draw upon a classic formulation from the US courts: 'Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.'

Lord Williams of Mostyn is a former chairman of the Bar Council.

(Photograph omitted)