Lord Ken Macdonald QC, former Director of Public Prosecutions for England & Wales and presently Warden of Wadham College, Oxford, discusses his career and comments on his recent Ming Pao article, The Rule of Law is not a Movable Feast, in which he outlines the essential features of a rule of law system.
Lord Ken Macdonald QC, former Director of Public Prosecutions (“DPP”) for England & Wales and presently Warden of Wadham College, Oxford, was drawn to a career in law by his love for debate and his desire to pursue a career that had social worth. “Justice seemed to be paramount among other societal values – it binds everything together,” he said. Given his early disposition, his gravitation towards a career in the law is fitting.
Over the nearly four decades that he has practised, his avid interest in justice and criminal justice policy has motivated him to pursue a variety of complex criminal work. As an advocate, he has worked on both sides of the justice system, achieving the highest levels of excellence in both criminal defence and prosecutorial work. And not only as a lawyer and judge, but also as a scholar and civil servant, he has remained a stalwart advocate for protecting civil and human rights and safeguarding the essential features of a rule of law system.
Here, Lord Macdonald engages in a remote discussion with Hong Kong Lawyer about his legal career and then elaborates on some of the views he expressed in his recently published article, The Rule of Law is Not a Movable Feast, which appeared in Ming Pao on 5 September 2017.
Opposite Sides of the Same Coin
In 1978, Lord Macdonald was admitted to practise law in England & Wales, starting his career at the bar as the first pupil of Helena Kennedy QC, now herself a member of the House of Lords. As a barrister, much of his time was spent defending leading IRA and Middle Eastern terrorist suspects. He also defended major drug dealers and alleged fraudsters, and was also a junior in the Matrix Churchill case over the alleged smuggling of arms to Iraq. In 2000, he was among a group of barristers who set up Matrix Chambers in anticipation of work flowing from the UK’s then-new Human Rights Act.
In 2001, he was appointed a Recorder of the Crown Court. In 2003, he was elected Chairman of the Criminal Bar Association, and later that year he was appointed DPP, becoming the first prominent defence lawyer in England & Wales to be appointed to that post.
When the opportunity to become DPP came about, Lord Macdonald said that it was just “irresistible”. To work in criminal law at this level and to have the opportunity to shape an agency which is so integral to the delivery of criminal justice – it seemed like the best job in the country, he explained.
In spite of the fierce criticism he faced upon appointment due to his lack of prosecutorial experience, upon taking office, Lord Macdonald insisted, to the contrary, that his defence experience would be a huge advantage to him. “I saw prosecution work as being connected to human rights and due process, just as defence work was. Fair prosecutors acting under the law are guarantors of fair trials just as defence lawyers are,” he said. “I had no doubt that I would be able to leverage my experience to succeed in this new role.”
In a 2004 article that appeared in The Guardian, Lord Macdonald was quoted as saying: “[t]o suggest that someone who comes from the defence side is somehow disabled [as a prosecutor] is a complete misreading of the way the criminal law and the criminal trial process works. It’s rather like saying that because you’ve played for Tottenham [football team], you can’t play for Arsenal. The truth is, whichever side you’re on, if you have practised criminal law in the courts [at the highest levels] for many years, you know the system inside out.” As he predicted, he was very successful in prosecuting serious crime during his tenure as DPP, while also receiving praise for remaining outspokenly attached to due process, fair trials and defendants’ rights.
However, that is not to suggest that Lord Macdonald’s time in office was without challenge. When discussing difficult cases, he noted that his term as DPP was marked by a series of major terrorism cases. “I felt it critical that we met this challenge while respecting fundamental human rights. We were firm in these cases and relentless in pursuing them. But we always obeyed the rules and juries respected this. Our conviction rates were very high and there were no major successful appeals during that period,” he said. His success, without a doubt, was due to him being able to leverage his rare insight into the thinking and modus operandi of those who perpetrate politically motivated violence, which he gained as a barrister by defending the accused in many of the leading terrorism trials brought in England & Wales during the 1980s and 1990s.
As DPP, he established the Counter Terrorism Division, the Organised Crime Division, the Special Crime Division and the Fraud Prosecution Service. He also played a major role across Whitehall in the development of criminal justice policy, especially in relation to international treaties and jurisdictional issues, mutual legal assistance, extradition, terrorism and grave cross- border crime.
Upon completing his term as DPP, Lord Macdonald returned to private practice at Matrix Chambers. In between 2009–2012, he was the trustee of Index on Censorship, the leading free expression advocacy group. In 2010, he was appointed Deputy High Court Judge and became a member of the House of Lords. In 2011, he was appointed Chair of Reprieve, the anti-death penalty organisations, in succession to Lord Bingham of Cornhill. In 2012, he became Warden (Head) of Wadham College, Oxford.
In addition to practising in England & Wales, Lord Macdonald is also regularly admitted to the Hong Kong Bar to conduct cases before the Hong Kong courts.
Essential Features of Rule of Law System
Turning to his Ming Pao article, The Rule of Law is Not a Moveable Feast, the first point of discussion was his statement that: “[i]n a rule of law system, it is obviously not just the law that counts. After all, a tyranny can easily create oppressive laws to build dictatorship. So the law must be borne out of democratic accountability and loyalty to human rights. That’s how it earns respect: it’s how a government of laws rather than of men avoids tyranny and promotes human happiness.”
Expanding on this, he explained that the rule of law is not just about the law. “This is because tyrannies can also have laws. A true rule of law system is one that combines three elements: legality, democracy and human rights. This means a system in which the law respects human rights and has democratic legitimacy. That is to say the laws are created through democratic process and respect the inalienable rights of citizens. But once they are created in this way, they must be respected. In a rule of law system, you cannot pick and choose which laws to obey. Legality requires loyalty to the law. Obviously this is not always so easy. Sometimes one group or another might feel that a particular law is unfair. But you can’t pick and choose. In a rule of law system, laws should be changed by legislation, not by force. ”
Continuing, Lord Macdonald explained that rule of law cannot survive without an independent judiciary. “This is why it is vital the judiciary is made up of judges who are able and willing to issue unpopular decisions when the case and law necessitates doing so.”
The judiciary’s job is to adjudicate disputes between citizens and between citizens and the State. “Obviously it cannot do this in a way that commands public respect unless it is seen to be impartial and independent, and possessed of integrity. Independence and impartiality mean that judges cannot simply follow the public will. Sometimes they have to stand against it, because justice makes that demand. If judges are not prepared to stand up in this way, the whole system collapses. I wrote the article in Ming Pao because I strongly felt that the senior Hong Kong judiciary is both independent and loyal to due process under the law. It seems very counterproductive, given the sensitivities of Hong Kong’s constitutional position, to attack that very institution that does the most to uphold the rule of law here. People should be careful what they wish for,” he said.
Right to Appeal a Sentence: UK versus Hong Kong
In both the UK and Hong Kong, the Attorney General or Secretary for Justice, respectively, can refer cases to Courts of Appeal to reconsider a criminal sentencing decision.
In England & Wales, the Unduly Lenient Sentence procedure is a scheme that permits anyone to ask the Attorney General to review a criminal sentencing decision. Where the senior law officer deems appropriate, the case can be referred to the court of appeal for reconsideration. The proceedings will always take place in public, with a represented defendant, before the senior, independent judiciary. It is a process of open justice, respectful of rights and according to law, Lord Macdonald explained.
Reflecting on his time as DPP, he noted that during his tenure he would advise the then-Attorney General to exercise this jurisdiction when he felt a sentence warranted it.
In Hong Kong, a sentence may be appealed if, in the Secretary for Justice’s view, it is manifestly inadequate and the interests of justice require it to be appealed. If he does so, the case will be considered in the Hong Kong Court of Appeal, before senior, independent judges, sitting in public. The defendant will be fully represented. Again, this process unfolds strictly according to law.
The main difference between this right as it exists in the UK and Hong Kong is that jurisdiction is only available in England & Wales for serious crimes. Albeit the UK’s Unduly Lenient Sentence scheme was recently expanded to cover an additional 19 terror-related offences, including supporting extremist organisations, encouraging acts of terror or failing to disclose information about a terrorist attack, Lord Macdonald added.
Sentencing Not an Exact Science
In discussing the UK’s Unduly Lenient Sentencing procedure, incumbent UK Attorney General Jeremy Wright recently noted that sentencing exercises are not an “exact science”. While judges generally get it right, in cases where there may have been an error in the sentencing decision, the right to appeal a sentence ensures that this decision is reviewed, and appealed, when necessary.
Although in cases where judges do get it wrong, the revision of sentencing decisions can often be unpopular, especially when Courts of Appeal in both the UK and Hong Kong increase sentences when some sections of the public feel that they should not. “Usually, if the court had made the opposite decision, it would simply mean a different section of the public would be outraged,” Lord Macdonald said.
This is why it is vital that judges pay no attention to public opinion when they adjudicate. If courts judged according to public feeling, a frightening new form of tyranny would be borne: mob rule. There would be no rule of law at all, he explained.
That being said, it is equally important that the decision to exercise this right be strictly legally motivated and an appeal never be brought for improper reasons. “That, in itself, would amount to an attack on the rule of law. All prosecution decisions must be strictly free from political influence. When politicians seek to influence the legal process, or to bend judges to their will, they undermine both the rule of law and public confidence in it. This is when judges need the courage to stand up to impropriety on the part of the executive,” he said.
Additionally, it is critical that this procedure unfold openly so that public confidence in the justice system is not undermined. “It is obviously critical to public confidence in justice that the processes of justice are open to public gaze. This provides reassurance that the rules are being followed and that adjudications are fair. Justice and daylight go together,” he said.
“Fortunately, the UK and Hong Kong each possess a senior judiciary both willing and able to fulfil this critical role. They should be supported in doing so,” he added.
In recent months there has been much discussion in the UK and Hong Kong about the Courts of Appeal’s review of various sentencing decisions and the policy underlying the procedures that grant the courts the jurisdiction to do so. Commenting on these discussions, Lord Macdonald explained that there is no problem with people taking issue with the ruling of judges and expressing their disagreement forcefully. That is the underlying tenet of free speech. However, what he finds gravely concerning is when disagreements stray into attacking a legitimate and universally recognised process of law, such as a prosecutor’s right of appeal, or the personal integrity of judges deciding the case. He believes that in such instances, it is not really that legal process or those judges being attacked, it is the law itself.
Why does he believe this is dangerous? “Well, people engaged in these rhetorical assaults risk undermining the very values they claim to defend,” he explained. “It’s a slippery path best avoided.”
Commenting on the challenges that lie ahead for the UK and Hong Kong, Lord Macdonald said, “the challenge for all countries that profess allegiance to the rule of law is to maintain a system of laws that are legitimate and rights compliant, upheld by courts that are impartial and open to public scrutiny, so that public confidence and respect for the law underpins all social and economic relations. This provides the contrast between tyranny that imposes its will by force, and a rule of law society capable of achieving its ends by popular consent.”
“The rule of law depends on legality, democracy and human rights. These are interdependent values and each must be nurtured. Laws that lack democratic legitimacy will fail to command allegiance, and laws that fail to respect human rights serve only tyranny.”