Prosecutorial Discretion and the Rule of Law

Keir Starmer QC, the Director of Public Prosecutions, delivered a lecture for the Bingham Centre in which he explained why not all crimes should be prosecuted and how discretion is (and should be) exercised when deciding whether a prosecution is or is not required in the public interest.

Mr Starmer said, "I am not under any illusions; there are risks attached to the exercise of discretion. Whilst in appropriate circumstances it can be a force for good, poorly exercised discretion can mask corruption and malevolence."

To avoid potential for abuse and to ensure victims, suspects and the community can have faith n the CPS, he argued that the process must be consistent with fundamental rule of law requirements identified by Lord Bingham: "The CPS should exercise its discretion whether to prosecute on stated criteria, and our decisions should be amenable to legal challenge." He also argued that if these are to truly be given effect then the CPS must go beyond those two Bingham principles and, additionally, explain how decisions have been reached.

A feature of Mr Starmer's tenure as DPP has been the publication of guidelines that set out how the CPS will approach decision making in difficult sensitive areas such as offences by journalists, end-of-life assistance, offences on social media, and where the victims of rape withdraw allegations. In keeping with the demands of explanation, he argued that "the more visible prosecutor" has been an important innovation, with reasons often being published and explained to media.

"Prosecutorial discretion", he said, "is a good thing. It takes the edges of blunt criminal laws; it prevents injustice; it provides for compliance with international obligations; and it allows compassion to play its rightful part in the criminal justice response to wrongdoing. But is also calls for strict accountability through guidelines, reasons and challenge."

The DPP's speech was delivered on 16 July 2013 at a seminar convened by the Bingham Centre for the Rule of Law. The Bingham Centre is grateful to Lady Justice Arden for chairing the seminar, to Hogan Lovells LLP for hosting the event, and to the DPP for kindly providing the text of his speech.

Read Keir Starmer's Speech here