Charles Gomez: Open Justice and the Nolle Prosequi

Lady Justice is often shown wearing a blindfold. But justice itself must never be allowed to operate unseen. It must be watched carefully, in the open, and in the cold light of day.

 

Open justice is not a slogan. It is one of the safeguards by which the public may scrutinise the exercise of power. That scrutiny is more important than ever in an age when social media has exposed, with unusual clarity, the influence of politics, wealth and vested interests in western democracies.

 

It is therefore striking that, within the English constitutional tradition, there remains a power from another age, the power of the principal Law Officer of the Crown to bring criminal proceedings to an end without the leave of the court and, historically, without any obligation to give reasons. This is the nolle prosequi, from the Latin meaning an unwillingness to prosecute.

 

The use of a nolle prosequi is rare; but its rarity makes it all the more constitutionally significant when it is used.

 

In England and Wales, it appears that the last nolle prosequi was entered many decades ago. I make no comment on the circumstances of that case. It is, however, noteworthy that Gibraltar appears to have had more recent experience of the nolle prosequi than England and Wales. 

 

In Gibraltar, as in England and Wales, the power is exercised by what is generally known as the Attorney General’s fiat.  

 

The position in England and Wales must be understood against its own constitutional background. There, the Attorney General’s authority is rooted in a system shaped by the supremacy of Parliament, a principle established and jealously guarded since the constitutional settlement following the English Civil War. Contrary to a common misconception, the power to enter a nolle prosequi in England and Wales is not entirely beyond accountability. The Attorney General may be answerable to the “High Court of Parliament”; that is, to the Parliament at Westminster when acting in that constitutional capacity.

 

Ultimately, the English Attorney General is responsible to the House of Commons. That House is a vigorous national legislature, composed of members elected from across the United Kingdom, representing a broad range of political, social and regional interests. It may be criticised for many things, but not usually for passivity in matters of public controversy. In practical terms, the United Kingdom Parliament has the institutional capacity to demand accountability, transparency and adherence to the rule of law from its Attorney General.

 

Gibraltar is different.

 

There is no “High Court of Parliament” in Gibraltar. Gibraltar’s Parliament is a local legislature, created under the constitutional arrangements derived from the Royal Prerogative and embodied in the Gibraltar Constitution Order 2006.

 

The power of the Attorney General for Gibraltar to enter a nolle prosequi is found in section 223 of the Criminal Procedure and Evidence Act 2011. That provision closely reflects section 59 of the Gibraltar Constitution Order, which states moreover that, in exercising the powers conferred by that section, the Attorney General “shall not be subject to the direction or control of any other person or authority”.

 

That independence is important. Indeed, any attempt to improperly influence or control the Attorney General would be a very serious matter. The independence of the Attorney General should not be confused with immunity from the law.

 

In my view, the constitutional and statutory provisions dealing with the Gibraltar Attorney General’s powers should not be read as a modern restatement of the ancient prerogative authority historically associated with the English Attorney General. In Gibraltar, the power to enter a nolle prosequi must be exercised within constitutional limits.

 

It follows that the purported exercise of such a power may be reviewable by the courts in appropriate circumstances. For example, judicial scrutiny may arise if the Attorney General acted beyond the limits of the power conferred by law. It may also arise if the decision were shown to be contrary to the Constitution, or if the Attorney General had acted under the direction or control of another person or authority rather than exercising an independent discretion. A decision taken on political instruction would raise obvious constitutional concerns.

 

The courts may also be entitled to examine whether the decision was made in bad faith, for example through dishonesty, improper purpose, or by an unlawful fettering of discretion.

 

Nothing in this analysis is intended to suggest any impropriety in any particular case.

 

The point is a constitutional one. The nolle prosequi is an arcane and exceptional power. Its use may affect the administration of justice, the rights of individuals, and public confidence in the rule of law. It is therefore essential not to confuse the position in England and Wales, where the Attorney General is answerable within a very different parliamentary structure, with the position in Gibraltar.

 

In Gibraltar, the relevant constitutional safeguard is not a High Court of Parliament. It is the Supreme Court of Gibraltar.

 

Accordingly, where a person can establish the necessary standing arising from a decision by the Attorney General to enter a nolle prosequi, that person should in principle be able to seek appropriate relief from the Supreme Court of Gibraltar. That court is the constitutional forum through which the legality of such a decision may be tested.

 

The rule of law does not require every decision to be second-guessed but it does require that no public power, however old or exceptional, be placed beyond constitutional limits.

 

Lady Justice may be blindfolded; the public must not be.