The High Sheriff of Hertfordshire Annual Lecture - The Solicitor General: An Ancient Role in a Modern System - The University of Hertfordshire, 20 February 2014

Introduction

Good evening. I would like to start by thanking the High Sheriff of Hertfordshire, Lady Trenchard, for inviting me to speak to you tonight. I would also like to thank Mrs Penny Carey, Associate Dean and her colleagues at the University of Hertfordshire for all their work organising this event.

It is a pleasure to address such a distinguished audience including many of the current, and possibly some of the future luminaries of the legal and business communities in Hertfordshire.

It is particularly gratifying, and important, for me to be speaking at an event so close to my own constituency of North East Hertfordshire. I see there are some of my constituents here tonight, including the High Sheriff - it is fundamental for a member of parliament to remain in touch with those they represent. There can be a price to be paid if not, as some of my colleagues have discovered in recent weeks!

The theme of my speech this evening is the Role of Solicitor General in the modern legal system. I will talk about some of the work that I do and the constitutional duties that I perform.

However, before I do that, a bit of history.

Ancient Roles

The English constitution has ancient jobs and titles, and few are more ancient than that of High Sheriff, Attorney General and my own post of Solicitor General.  To most people, even those with knowledge of the criminal justice system, the office of High Sheriff and the role of a Law Officer can be something of a mystery.

The Office of Attorney General is a very old one, although not quite as old as that of High Sheriff of Hertfordshire which dates back to before the Norman Conquest. 

Legal historians argue about who the first Attorney General was, with some suggesting the role may go back as far as the appointment of Lawrence del Brok in around 1247, whose function was to sue ‘the King’s affairs of his pleas before him’. The first person to be called ‘Attorney General’ was John Herbert who was appointed as the King’s principal law officer in 1461.

The Office of Solicitor General is also an old one and has changed so significantly over the years, that it would be a mistake to think that the role of the ‘first’ Solicitor was, in any meaningful sense, comparable with the role today. Originally the role of the Solicitor General was seen as a natural stepping stone to becoming the Attorney General although this is not the case today. It is now generally accepted that the role of a Solicitor General is to support the Attorney General in his various functions and responsibilities; in other words the Attorney’s deputy.

The first person to take on the role of ‘Kings Solicitor’, as it was known then, was Richard Fowler who was appointed in 1461. But it wasn’t until 1515 that the title of Solicitor General was first used.

Sir Richie Rich

Readers of the work of Hilary mantel will know of a notable predecessor of mine, Sir Richard Rich, who was a particularly brutal Solicitor General. He took on the role in 1533 and was knighted for taking a leading part, with Thomas Cromwell, in the persecution of those accused of violating the Act of Succession of 1534 by which Henry VIII claimed (or reclaimed) jurisdiction over the English Church from the Pope.

One of Sir Richard’s victims was his childhood friend, Sir Thomas More, who he committed to the Tower and brought to the block. At his trial Sir Thomas More said of the Solicitor General:

“…In faith, Mr. Rich, I am sorrier for your perjury than for my own peril…”

At around the same time Sir Richard was also vigorously persecuting the Lutherans. There are historical records of a lady called Anne Askew who was imprisoned, tortured, and finally burned to death in July 1546. Her persecutors attempted to make her inform on other believers. They also hoped to gain information against Queen Catherine herself, the wife of Henry VIII. When Anne refused to give them any information, they put the frail woman upon the rack and commanded her jailer to torture her. He did so, but not very strenuously, being mindful of her feminine nature. Not being satisfied with the racking given to her, Sir Richard angrily took control of the rack with his own hands!

In 1540, when Thomas Cromwell was accused of treason, guess who was one of the chief witnesses against him: his friend and benefactor Sir Richard Rich, who by this time was the Lord Chancellor.

After Cromwell’s death, Sir Richard remained energetic in the persecution of the reformers, and those who would not subscribe to the king’s supremacy. Sir Richard was particularly active in assisting in the burning of heretics in his own county of Essex. This general theme of persecution continued until his death in 1567.

John Cooke

Perhaps, for me, the most notable Solicitor General was John Cooke, who was an active law reformer and committed independent. In 1649 he led the prosecution in the trial of King Charles I, whose conviction and execution led to the creation of Oliver Cromwell’s Commonwealth of England.

John Cooke was appointed the first Solicitor General of the English Commonwealth but following the Restoration of the Monarchy in 1660, he also became the first (and only) Law Officer to be hanged, drawn and quartered!

The role of the Law Officers today

Things have changed significantly since 1515: a Solicitor General can’t send anyone to the Tower, or subject anyone to the rack. Importantly and happily for me they are no longer executed.

Just as the role of High Sheriff has evolved, so has that of the Law Officers.  The High Sheriff is the Royal representative for Judicial matters and still has ancient powers to execute High Court writs, although this is no longer used. But in modern times, High Sheriffs bring people together, help to dignify the Law through the County Justice Service and other events and the High Sheriff’s Fund does valuable work with projects which will reduce crime and improve public safety.

The Oath

The role of Law Officer is one of the most interesting posts for a lawyer to hold. On being appointed by the Prime Minister in 2012, and before taking office, I was required to swear an oath of allegiance to the Queen. This was done in the Royal Courts of Justice before the Lord Chief Justice and it states:

I, Oliver Heald do declare that well and truly I will serve the Queen as Her Solicitor General in all Her Courts of Record… and sue The Queen’s process after the course of the Law, and after my cunning for any matter against The Queen where The Queen is party….”

An ancient oath for a modern role.

The Constitutional Role of the Law Officer as chief legal advisers to the Crown and the Government.

In 1997 the then Solicitor General, Lord Falconer of Thornton, introduced a bill which allowed the Solicitor General to carry out all the functions of the Attorney General regardless of whether the Attorney’s office was vacant or he was indisposed. The Bill received royal assent on the 30 September 1997. The Solicitor General is essentially the Attorney’s deputy; but since 1997 any function of the Attorney General can be exercised by the Solicitor General, so when I talk about the functions of the Attorney General I mean my own too.

The Attorney General and the Solicitor General are the Government's 'Law Officers'. We are both Ministers of the Crown and politicians appointed by the Prime Minister to be part of the political government. We vote with the Government and we accept collective responsibility with our Government colleagues.

By virtue of the office we hold we are unlike other ministers. The Law Officers are the chief legal advisors to the government and are responsible for providing unbiased legal advice to our client, the Government in its many guises, without regard to party political considerations.

The role of the Attorney General as the Government’s chief legal adviser was neatly summed up by the former Attorney General, Lord Mayhew of Twysden, who said:

The Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principle requirement of which is that the government itself acts lawfully.”

Therefore Departments will often come to us for advice on how policy can be achieved in a lawful or proper way. New technologies and ways of implementing policy raise new legal challenges. The Ministerial Code issued by the Prime Minister, states that the Law Officers must be consulted in good time before the government is committed to critical decisions involving legal considerations.

The range of subjects on which we advise is very wide from military law to zoology, from environmental matters to criminal matters and from international law to tax.

Law Officers as Government Advocates

In addition to this both the Attorney General and I are barristers – and in appropriate cases we will appear in person in the courts to represent the Government or to assert the public interest, often in cases of constitutional importance.

Indeed, last year you may have heard of the decision handed down by the Supreme Court on the question of prisoners voting rights, and whether the current ban on prisoners being able to vote in elections contravened EU law. The Attorney General had argued this case for the Government before the Supreme Court which led to the finding in the Government’s favour. The Prime Minister congratulated the Attorney General on the result in Prime Ministers questions. It’s always nice for a lawyer to receive thanks from his client!

Statutory Duties of the Law Officers

The Law Officers perform a number of statutory functions with regard to the British legal system, such as the power to refer criminal sentences to the Court of Appeal as potentially unduly lenient, or to provide consent to prosecute certain categories of criminal offences, such as those relating to Official Secrets, explosives, and certain terrorism offences.

Unduly Lenient Sentences

On the criminal side one of the Attorney’s public interest functions, and perhaps one of the most high profile, is dealing with referrals of unduly lenient sentences.

In general terms this means that if the Attorney or I consider that a sentence fell below the range which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate we may refer it to the Court of Appeal. The Court will then re consider the sentence and, if it makes a finding that the sentence was unduly lenient, has discretion to increase it. Generally such cases are referred to us by the CPS, but we also consider cases referred by the public and Members of Parliament.

The power to refer an unduly lenient sentence is often thought of as a right for the prosecution, or indeed an interested party, to ‘appeal’ against a lenient sentence. But that is to misunderstand the nature of the power. It is an exceptional remedy to be used in the most serious cases and to address those sentences which fall so far below the range of sentences it was reasonable for the judge to impose that they risk damaging public confidence in the criminal justice system.

The Attorney and I must consider personally each case we are asked to look at, provided it falls within the scheme and is within the time limit. We take advice, as you may expect, from experienced independent counsel (Treasury Counsel), but the decision is ours personally. It is only where we feel that a sentence was significantly outside the appropriate bracket that we will ask the Court of Appeal to interfere and it is then a matter for the Court as to whether it decides to increase the sentence.

Ilyas & Talyat Ashar

Where I perceive that an exceptional issue of public interest arises and when time permits I will present cases to the Court of Appeal personally.  A recent example of this was the case of Ilyas and Talyat Ashar which I presented in the Court of Appeal earlier this month. This involved the modern scourge of human trafficking.

Last year Ilyas Ashar was convicted of human trafficking, benefit fraud and rape. His wife, Tallat, was convicted of human trafficking and benefit fraud. On 23 October 2013 Ilyas Ashar was sentenced a total sentence of 13 years’ imprisonment. Tallat Ashar was sentenced to 5 years’ imprisonment. In all the circumstances I considered these sentences were unduly lenient.

The facts are as follows. The victim, a young Pakistani woman, was brought to the United Kingdom in June 2000 so that she could work for the offenders as an unpaid domestic servant. The victim was very vulnerable; she was deaf and unable to speak and could not read or write. For 9 years the victim was kept in the offenders’ cellar in total isolation; she was forced to work and repeatedly raped by Ilyas Ashar.

The offenders claimed various benefits in the victim’s name but she was never paid the benefit money. Ilyas Ashar and Tallat Ashar were arrested but both denied any wrongdoing.  They showed no remorse and pleaded not guilty, forcing the victim to give evidence in court and causing her more distress.

The Court of Appeal agreed with me that the sentences were imposed were unduly lenient and increased the sentences of Ilyat and Tallat Ashar from 13 and 5 years to 15 and 6 years’ imprisonment respectively.

Contempt of Court and the Internet

The Law officers also have responsibilities and powers to safeguard the public interest in individual cases, for example, the power to bring proceedings for contempt of court.One of the significant developments during my time as a Law Officer has been the increase of complaints regarding contempt of court resulting from the seemingly inexorable rise of the use of social media on the internet. 

These new ways of communicating and disseminating information have contributed to greater public interaction and interest with the issues and news of the day – and a concomitant rise not only in complaints from members of the public to my Office, but also contempts committed by members of the public.

It is my belief that - when required - steps can and should be taken to ensure the internet and Social Media do not interfere with the administration of justice and the cherished principle of a fair trial. 

Joanna Fraill

A defendant in a trial had been acquitted of the charges she faced but the jury continued to consider their verdicts regarding her co-defendants. The night of her acquittal, one of the jury, Joanna Fraill, decided to go online and chat on Facebook.

Unfortunately Fraill chose to track down the acquitted defendant on Facebook and proceeded to let her know her thoughts on the trial and the ongoing debate in the jury room.  Knowledge of jury discussions is forbidden to all outside the jury.  It is an offence under the Contempt of Court Act 1981 to ‘obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings’

In this case Fraill and the former defendant engaged in a Facebook chat about what was happening in the jury room.  Their conduct came to the attention of the Judge and eventually to the Attorney General.  In the Law Officer’s role as Guardian of the Public Interest, proceedings for this type of contempt of court cannot be instituted save by or with Law Officer’s consent or on the motion of a court having jurisdiction to deal with it.  In this instance Attorney General concluded a contempt had been committed.

Fraill admitted her contempt and was committed to prison for 8 months.  The former defendant denied wrongdoing but, after a brief trial, was found also to be in contempt – she too was committed for 2 months, although in her case the order was suspended for 2 years.

The case highlighted important principles and again showed that the internet does not provide some form of immunity from prosecution.  Jurors must feel able to openly express their views and opinions to their fellow jurors without fear that they will be subjected to public exposure and possible ridicule or disgust.  This prevents juries from being inhibited as they discuss the merits of the evidence which they have heard.  It is essential that the sanctity of the jury room is preserved.

Government ministers responsible for the Law Officers’ Departments

The Attorney General and I also superintend the Crown Prosecution Service, Serious Fraud Office, HMCPSI and the Treasury Solicitors department.

This superintendence role involves supporting the independence of the prosecutors in taking prosecution decisions and ensuring that there is proper public and parliamentary accountability for the conduct of prosecutions; the Attorney and I are answerable to parliament for these prosecuting bodies.

Digital working in the Criminal Justice System

As a Law Officer, I am a member of the Criminal Justice Board and I am assisting in the transformation of the Criminal Justice system through the use of digital technology. We are moving in a few years from the days of Rumpole of the Bailey, the fountain pen and the blue Counsel’s notebook to modern working practices. I visit Crown Prosecution Service offices around the country and am constantly impressed by how the use digital technology is making processes more flexible and efficient.

Technology has a critical role to play in delivering swift and efficient justice. The law has long been heavily dependent for its functioning on large amounts of paper. But that is all changing. A great deal of money is being spent on IT in all the criminal justice agencies. The Government’s ambition is for all the information and evidence collected and relevant to a criminal investigation to be captured once, digitally.

The criminal justice system is already beginning to move away from depending on great bundles of paper towards storing data in clouds and being a predominantly digital service. The police, CPS and Courts Service are developing the use of the digital file and a common or ‘shared’ IT platform, which will hold all the evidence associated with any criminal case. Over the next couple of years courts will be fully equipped with new IT, including large TV monitors for the presentation of evidence and all will be enabled for WiFi allowing case information to be shared instantly.

Digital Working in Thames & Chiltern CPS

Great examples of the improvements offered by technology exist right here in Hertfordshire – part of theal CPS Area Thames and Chiltern.

Hertfordshire Local Criminal Justice Board, Crown Prosecution Service, the police and the Justices Clerk have a very effective working relationship which they have used to advance digital working and the wider use of technology across the Area.

The installation of video equipment in a substantial number of police stations means that police officers do not always have to attend Court, but can give their evidence remotely.  Applications to utilise the live-links whenever a police officer is required to be called has been critical in terms of saving police time and resources.

The installation of technology allows flexibility in distributing cases around the justice system. If there are too many overnight remand cases in Hatfield, there are arrangements in place to deal with them at other court centres in Herts.

Early in 2011 the local CPS piloted digital working in the Magistrates Court.  Information which had previously been submitted on paper began to be sent from police forces into the CPS computer system.  Upon receipt of the information digitally, CPS prepare initial details for the defence, court and probation/youth offending service and can provide it using secure e-mail in advance of the first hearing.   Prosecutors can now present cases from mobile devices and in excess of 90% of Magistrates Court case material is now being received and presented by advocates digitally.

Access to wi-fi in Court is due to be rolled out in Thames & Chiltern starting from December 2014, this will support digital working for all agencies, giving prosecutors access to their case management software tools from the courtroom.   The rollout programme of Wi Fi is currently a 21 month programme.

Victims & Witnesses

Aside from efficiency improvement these technological advances have very real benefits for witnesses and the victims of crime.

For example, in domestic violence cases victims can provide evidence via video-link, away from the Defendant, which can mitigate some of the anxiety and distress that the process undoubtedly involves.

Careers

We who work in the legal profession are experiencing challenging, but also very exciting and innovative times. As we are at Hertfordshire University this evening, I would like take the opportunity to say a few words to those students who may be here tonight and are considering a career in the law.

Although I have no doubt that you will be fascinated by the intellectual rigour of the law and getting to grips with, for example, the finer points of estoppels and easements, there is no substitute for practical experience.

I urge you to go to see the law in action. Attending and observing hearings at the local courts, and witnessing the associated human experiences. It is invaluable as a context to your academic studies and will bring them to life.

The CPS for this area offers opportunities for work experience in the criminal justice system as well as formal trainee positions. All trainees work closely with supervising prosecutors and will experience a full range of the prosecutor’s role including reviewing evidence, taking decisions on charges, preparing for trials and advocacy.

I would encourage you to contact the CPS, and see if you can arrange to spend some time there, in order to gain fist hand experience of the law and I hope that some of you who are studying at this University may be inspired to become involved in this work.

Conclusion

I hope that this has given you a flavour of the work that I do, how the role of the Solicitor General has evolved over time. An ancient office working in a modern system.

It has been a pleasure to speak to you this evening and thank you for your time and attention.