Many who followed the September Assange Hearing have published that it was a ‘show trial’. This document outlining the expectations of (UK) Crown Prosecutors to uphold the rule of law is published here so that readers can make up their own mind whether the Crown Prosecution is following its own guidelines.
If you feel that the Rule of Law is being violated – what then ?
Public prosecutors and those external advocates briefed by them, uphold the rule of law and deliver justice for and on behalf of their communities. That function is central to the maintenance of a just, democratic and fair society.
The way in which we perform this role is of crucial importance. It has long been recognised that the prosecutor has a special and overriding responsibility to act without fear, favour or prejudice, in the interests of justice and to provide the cornerstone of an open and fair criminal justice system. The criminal justice system continues to evolve. It is now important to refresh and restate the fundamental principles and values which we believe to be constant and which lie at the heart of all our decisions.
This Statement sets out the ethical principles that underpin and guide our work as public prosecutors. It confirms our commitment to internationally agreed standards of probity, fairness, openness and accountability in our dealings with others, whether they are victims, defendants or other criminal justice legal professionals. In abiding unswervingly by the principles set out in this Statement, we shall continue to serve the public and uphold justice in a rapidly changing world.
Keir Starmer QC
Director of Public Prosecutions
2 November 2009
1.1 Public prosecutors play a key role in the criminal justice system. By their actions in advising on investigations, deciding on whether prosecutions are to be brought, prosecuting those who are accused of criminal offences and assisting the courts in sentencing, prosecutors uphold the rule of law and deliver justice for and on behalf of their communities.
1.2 The manner in which prosecutors discharge their powers and duties directly affects victims, witnesses and defendants as well as society as a whole. The behaviour of prosecutors also affects the ability of others in the criminal justice system the police and other investigators, the courts and defence practitioners, among others to fulfil their own responsibilities.
1.3 The central role that prosecutors play in the criminal justice process places obligations on them to act at all times in accordance with the highest ethical standards and in the best interests of justice. Except where the contrary is expressly stated in the text, this document lays down the standards of conduct and practice which are expected of every prosecutor who prosecutes on behalf of the public.
2. Basic Obligations
2.2 In addition to their duty to comply with the law and the rules of procedure, prosecutors must, at all times, act in accordance with the Code for Crown Prosecutors (the Code) and all departmental policies currently in force. They must have due regard to any guidelines issued by the Attorney General.
2.3 As a member of the Bar, the Law Society or as an Associate Prosecutor member of the Institute of Legal Executives, prosecutors must act in accordance with and uphold the Codes of Conduct and professional and ethical standards set by their professional regulators. Prosecutors are in the same position as other professionals providing legal services. Prosecutors are subject to the same duties to the court and to others with whom they have dealings, and they must uphold the same professional standards of conduct and ethics. Prosecutors who are Civil Servants are obliged to act in accordance with the Civil Service Code and, in particular, the statement of core values set out in it.
3. Professional Conduct in General
3.1 When acting in the course of their employment or in accordance with their instructions, prosecutors must, at all times, adhere to the highest professional standards. This means that prosecutors must:
- exercise the highest standards of integrity and care;
- not conduct the prosecution of a case which is beyond their competence, knowledge or experience;
- take reasonable steps to maintain and enhance their professional knowledge and skills and keep themselves well-informed and aware of relevant legal developments;
- strive to be, and to be seen to be, consistent, independent, fair and impartial;
- preserve professional confidentiality at all times, subject to the requirements of the law;
- serve and protect the public interest; and
- respect the right of all people to be held equal before the law – prosecutors must never act in a way that unjustifiably favours or discriminates against particular individuals or interests.
3.2 Prosecutors must perform their duties without fear, favour or prejudice. They must:
- take decisions based upon an impartial and professional assessment of the available evidence, independently and with objectivity within the framework laid down by the law, the Code, all departmental policies currently in force and all guidance issued by or on behalf of the Attorney General; and
- take into account all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the defendant.
3.3 Prosecutors must not knowingly participate in, or seek to influence, the making of a prosecution decision in regard to any case where their personal or financial interests or their family, social or other relationships would influence their conduct as a prosecutor. They should not act as a prosecutor or advise in cases in which they, their family or business associates have a personal, private or financial interest or association.
3.4 Prosecutors must not act as an advocate in any case in which their action or decision is the subject matter of litigation, or in which, for any other reason, they are likely to be called as a witness.
3.5 Prosecutorial discretion in deciding whether to initiate or continue a prosecution, in the selection of charges, in the acceptance of pleas and in any other matter, shall be exercised independently and impartially, in accordance with the law, and having due regard to the Code and all departmental policies currently in force. When making such decisions, prosecutors must not allow themselves to be influenced by individual, sectional or political interests or media pressures.
3.6 Public prosecutors who exercise rights of audience in the higher courts are entitled ultimately to consult the Attorney General as guardian of the public interest if they have reason to doubt the propriety of any action or proposed action in a case proceeding in the higher courts for which they have responsibility. If an employed prosecutor considers that they are involved in such a matter, they must first discuss their concerns with their line managers before contacting the Attorney General.
3.7 Prosecutors must report to their line manager (or instructing prosecutor, if an external advocate) any improper attempt to influence their decision-making, or where any person does an act with the intention of attempting to pervert the course of justice. Prosecutors should also draw to the attention of their line manager or their instructing prosecutor any potential conflict of interest of which they are aware which could reasonably be perceived as affecting their independent judgment in any case of which they have conduct.
4. Professional Conduct in the Context of Criminal Proceedings
4.1 When exercising a right of audience before any court or conducting litigation in relation to any court proceedings, prosecutors have a duty to the court in question to act with independence in the interests of justice.
4.2 Prosecutors must maintain the highest standards of fairness and impartiality at all times. In particular, they must uphold the principle of a defendants right to a fair trial as enshrined in Article 6 of the European Convention on Human Rights.
4.3 In relation to victims and witnesses, prosecutors must fulfil the obligations and responsibilities set out in the Victims Code of Practice and The Prosecutors’ Pledge and any other relevant guidance.
4.4 Prosecutors must discharge their duties to the courts, witnesses, defendants and their legal representatives, the police or other investigative agency, whether nationally or internationally, with respect and courtesy.
4.5 Prosecutors must perform their duties fairly, consistently, effectively and efficiently. Throughout the proceedings, including when giving pre-charge advice to investigators, prosecutors must:
- remain impartial and objective;
- when deciding whether to start or continue criminal proceedings, apply the Full Code Test as set out in the Code (except in those circumstances where the Threshold Test may properly be applied). Prosecutors must not start or continue a prosecution unless the requirements of the appropriate Test (whether the Threshold or the Full Code Test) are fully met;
- in accordance with the law and the requirements of the Code, give due consideration to alternatives to prosecution;
- subject to the requirements of a fair trial, consider the rights, views, legitimate interests, privacy and concerns of victims and witnesses, when their personal interests are, or might be, affected;
- seek to ensure that victims and witnesses are informed of their rights, as far as they reasonably can;
- having due regard to the rights of the defendant, prosecute firmly and fairly and not beyond what is indicated by the evidence;
- bearing in mind the Courts discretion to exclude improperly obtained evidence, decline to use evidence reasonably believed to have been obtained through unlawful methods which constitute a grave violation of the suspect’s or other person’s human rights, against anyone other than those who applied such methods;
- draw to the attention of the appropriate authority any instance where a public official may have committed a criminal offence or acted improperly in the course of a criminal investigation; and
- render mutual legal assistance to the prosecution services and investigative agencies of other jurisdictions, in accordance with the law and in a spirit of mutual co-operation.
4.6 To ensure the fairness and effectiveness of prosecutions, prosecutors must:
- endeavour to ensure that all reasonable enquiries are made and the results disclosed in accordance with law, whether that points towards the guilt or the innocence of the defendant;
- endeavour to ensure that the facts are presented fairly and that all relevant authorities are drawn to the courts attention, whether they are in the favour of the prosecution or defence;
- endeavour to ensure that evidence which is favourable to the defendant or which undermines the prosecution case is disclosed as soon as reasonably practicable in accordance with the law, the Attorney Generals Guidelines on Disclosure and the requirements of a fair trial;
- assist the court in the administration of justice and not deliberately, knowingly or recklessly mislead the court;
- endeavour to ensure that the criminal justice process operates as expeditiously as possible, being consistent with the interests of justice; and
- bring to the attention of the court any matters of law relevant to sentence in accordance with the Attorney Generals Guidelines on the Acceptance of Pleas and the Prosecutors Role in the Sentencing Exercise.
5. Public Prosecutors who hold Judicial Appointments
5.1 Public prosecutors who hold a judicial appointment will be subject to the terms and conditions of judicial appointment and to the Codes of Conduct applicable to their branch of the profession.
5.2 When employed prosecutors are appointed to judicial office, they carry out the duties and responsibilities of that office in their personal capacity and not as an employee of the Service. Prosecutors holding a judicial appointment are not accountable to the Service for their conduct or their decisions whilst acting in that capacity and the Prosecution Service does not have any part to play in their judicial decisions.
6. Failure by External Advocates to Observe the Statement of Ethical Principles
6.1 Failure by any external advocate instructed by a public prosecutor to adhere to the principles set out in this document may result in the public prosecutor withdrawing current instructions from them and not briefing that advocate again. Where the public prosecutor thinks it appropriate, any breach of this Statement of Ethical Principles by an external advocate will be referred to the appropriate professional regulator for its consideration. (This paragraph should be read in conjunction with paragraph 4.10 of The Farquharson Guidelines: The Role and Responsibilities of the Prosecution Advocate).
6.2 Any enquiry by an external advocate in relation to this Statement of Ethical Principles, or any request for further guidance in respect of areas of potential conflict, should be addressed to the public prosecutor from whom the advocate has received instructions.
7. Review of this Statement
7.1 This Statement will be reviewed regularly to ensure that it continues to reflect the appropriate standards that can be expected of all those who practise as public prosecutors.
This Statement of Ethical Principles has been informed by
- Guidelines for the Role of Prosecutors (1990) adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders;
- Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors (1999) – International Association of Prosecutors as recognised and promulgated by the United Nations Commission on Crime Prevention and Criminal Justice in April 2008;
- Council of Europe Recommendation 19 (2000) on the Role of the Public Prosecution in the Criminal Justice System;
- The Budapest Guidelines (2005) adopted by the Conference of Prosecutors General of Europe;
- The Code of Conduct for the Bar of England and Wales (2004);
- The Solicitors Code of Conduct (2007);
- The Code of Conduct and Supporting Guides to Good Practice issued by the Institute of Legal Executives (2008);
- The Farquharson Guidelines: The Role and Responsibilities of the Prosecution Advocate (2002);
- The CPS Code of Conduct; and
- The CPS Disciplinary Policy.