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Fair trial first and foremost

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Attorney General

The role of the Attorney General encompasses a number of different responsibilities, from being leader of the English Bar to being the person who appoints and supervises the DPP. Although the Attorney General must act in the public rather than party political interest, and cannot be told what to do by Ministers or the Cabinet, he can canvass opinions or information from colleagues as regards matters such as the public interest. The Attorney has been somewhat under the spotlight of late because of his role in deciding on prosecutions which may arise from the "cash for honours" investigation.

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Injunction against the BBC

That investigation of course has now taken a dramatic turn with the Attorney obtaining an injunction against the BBC preventing the broadcasting of a television programme regarding "cash for honours". He took this step as a result of concerns expressed by the Metropolitan police.

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Trial by media

Having no details of the basis of the order (understandably as to publicise the details might well negate the public policy behind the order in the first place), and having neither seen the programme nor having any clue as to the nature of the information, it is difficult to comment precisely. It is likely however that only two points were at issue. Potential prejudice to an investigation (i.e. publicising the details might cause a problem with further inquiries which are about to take place) or potential prejudice to a trial (suggesting that a prosecution may be on the cards, and understandably wanting to avoid any suggestion that a trial cannot proceed because there has already been "trial by media" making it impossible for any particular defendant to get a fair trial).

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Prosecutions?

I was originally of the view that a prosecution for "cash for honours" was unlikely given that it was difficult to see realistically that crude promises of that sort would have been made. We shall see. If however there have been efforts to delete or hide information from the police then ironically it could be that even if there is no substance in or pursuit of the original charges, that charges of conspiracy to pervert the course of justice or of obstruction might be brought. That remains to be seen.

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Safeguard prosecutions, not politicians

Of most concern for lawyers is how the public perceives the acts of the Attorney General. It is quite plain that these acts have been taken in the wider public interest to ensure that if there is a prosecution it can proceed, or to ensure that if the investigation is not finished it can proceed without hindrance. That is a classic instance of the Attorney General doing what he ought to do. There is always a risk that parts of the public will labour under the misapprehension that the point of getting the injunction is to stop the public finding out about wrongdoing by politicians or officials, and that the Attorney General is acting to protect politicians rather than safeguard potential prosecutions. While such a view would be wholly erroneous, it is easy to see how it could be taken, and if it is taken it will be harmful to the image not just of the Attorney, but of the law and lawyers in general. It would be a terrible irony if an act which both shows that the Attorney is acting properly and that the legal system will seek to safeguard potential prosecutions against anyone, important or not, is misunderstood by sections of the public as indicating precisely the opposite. After all, we do seem to live in the age of the conspiracy theory.

Michael J. Booth QC