The courts have no jurisdiction to review the Attorney General's decision not to bring proceedings for contempt of court.
The Divisional Court dismissed an application by the applicants, Michelle Ann Taylor and Lisa Jane Taylor, for judicial review of the Attorney General's decision that it was not appropriate to take proceedings for contempt of court under the Contempt of Court of Act 1981 arising out of newspaper coverage of the applicants' trial in 1992.
The court certified a point of law of general public importance: where the law officers, in the exercise of a statutory power which makes the pre- existing right of private prosecution dependent upon their consent, decide there was insufficient evidence to prosecute, is that decision reviewable on the application of the victim of the offence?
The applicants were convicted in 1992 of the murder of Alison Shaughnessy. The prosecution's case was that the first applicant, who had had a sexual relationship with the victim's husband before and after his marriage, was motivated by jealousy and the second applicant disliked the way her sister was treated. The trial attracted extensive media coverage, including the publication of a frozen still from a video of the Shaughnessys' wedding which made a peck on the cheek between the groom and first applicant look more than that, accompanied by headlines such as "Cheats' kiss".
The applicants' convictions were quashed by the Court of Appeal in 1993 on the ground that non-disclosure of material evidence was a material irregularity which made their convictions unsafe and unsatisfactory and that the extensive press coverage precluded a fair retrial. The Court of Appeal referred the media coverage to the Attorney General to consider contempt of court proceedings.
The Solicitor General, in the Attorney General's absence, considered the newspaper coverage, took advice from specialist counsel and prosecuting counsel at the trial, and considered representations from the newspaper editors, and decided that publication of the photographs did not prejudice the applicants in any significant way and proceedings for contempt of court were unlikely to succeed and so no proceedings for contempt of court would be taken. The applicants' solicitors were told that detailed reasons for the decision would not be made public.
The applicants applied for judicial review of those decisions.
Geoffrey Robertson QC, Kate Markus and Robin Oppenheim (Stephens Innocent) for the applicant; Philip Havers QC and Stephen Richards (Treasury Solicitor) for the Attorney General.
Lord Justice Stuart-Smith said that for many years the courts had taken the view that they would not review the exercise of the discretion of the Attorney General in respect of decisions taken in his public office. The House of Lords had said that if the Attorney General were to commit a serious error of judgment the remedy must lie in the political field. The cases pointed to the unique constitutional position of the Attorney General. That clearly established position could not be overridden.
Section 7 of the 1981 Act took away the right of citizens to move for committal for contempt so that contempt proceedings had to be brought by the Attorney General. Parliament must be taken to know the law as stated in the cases. If the Attorney General's decision was reviewable, Parliament would have said so. What had been said about the constitutional position of the Attorney General was not affected by changes brought about by judicial review. The source of the Attorney General's power was immaterial. The court had no jurisdiction to review the Attorney General's decision in this case.
Further it was impossible to say the Attorney General's decision was irrational. No criticism could be made of the decision not to give the reasons for the decision and the applicants now had detailed reasons.
Mr Justice Butterfield concurred.
Ying Hui Tan, Barrister