The applicants sought the consent of the Attorney General and the Director of Public Prosecutions to institute proceedings against the Prime Minister and the Secretary of State for Defence for conspiring to commit genocide under the Genocide Act 1969 and for conspiracy to murder citizens of the Soviet Union, involving breaches of the Geneva Conventions Act 1957 . Neither the Attorney General nor the Director of Public Prosecutions agreed to initiate the prosecution sought. The applicants sought judicial review of these decisions. The Court refused to review the decisions.

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PANEL: Lloyd L.J. and Macpherson J.

LLOYD LJ: This is a renewed application for judicial review after refusal by Mr Justice Simon Brown. The applicants are Mr Frederick Starkey and Mr Norman Guy, two retired lecturers living near Mold, North Wales. Together with two others they have formed an organisation known as Pax Legalis. On 9th June 1987 they wrote to the Attorney General requesting consent to the prosecution of the Prime Minister and the Secretary of State for Defence for conspiring to commit genocide contrary to section 1 of the Genocide Act 1969. On the same day they wrote to the Director of Public Prosecutions mentioning various other offences such as conspiracy to commit grave breaches of Schedule 1 to the Geneva Conventions Act 1957, conspiracy to murder citizens of the Soviet Union contrary to section 1 (1) of the Criminal Law Act 1977 and so forth.

Those letters were accompanied by a lengthy opinion written by Mr Patrick O'Connor of counsel, advising that in his view there was a prima facie evidence of the commission of those conspiracy offences. Mr O'Connor's opinion was subsequently endorsed by Professor Griffiths, Emeritus Professor of Public Law in the University of London.

On 15th June there was a reply on behalf of the Attorney-General that he did not consent to the institution of proceedings as requested. There was a similar response from the Director of Public Prosecutions. On 14th September the applicants gave notice of an application for leave to apply for judicial review of the Attorney-General's refusal of consent. They ask for an order of mandamus compelling him to consent. I can see no possible grounds on which this court could make such an order .

Mr O'Connor referred us to Professor Edwards's book on the Attorney-General, "Politics and Public Interest", published in 1984, at pages 29 to 32. He says that there is no decision of any court that we cannot review the Attorney-General's decision to refuse his fiat. In my judgment, the law is accurately stated in paragraph 1281 of Volume 8, Halsbury's Laws of England, 4th Edition where in relation to the Attorney-General's fiat it is said:

"The Attorney-General's decision is conclusive so that no mandamus will lie to compel him to grant a fiat except in the event of his refusing to hear an application. However the fiat cannot be arbitrarily withheld."

To the same effect there is a short passage from the speech of Viscount Dilhorne in Gouriet v Union of Post Office Workers [1978] AC 435, [1977] 3 All ER 70, at 88 where Viscount Dilhorne said:

"In the exercise of these powers [the Attorney-General] is not subject to direction by his ministerial colleagues or to the control and supervision of the courts. If the court can review his refusal of consent to the relator action, it is an exception to the general. No authority was cited which supports the conclusion that the courts can do so."

There is another similar passage in the speech of Lord Edmund-Davies in Gouriet v Union of Post Office Workers [1978] AC 435, [1977] 3 All ER 70 at page 104.

Even if this court had power to review the Attorney-General's decision to refuse his fiat this is not a case in which we would exercise that power. The application is accordingly refused. I would only add that, after refusal by the single judge, I am surprised that anyone could have advised that the application should be renewed before this court.

MACPHERSON J: I agree. This application is in my judgment wholly misconceived and should never have been brought. The forum for pressures of this kind to change the system and the law as to the AttorneyGeneral's fiat is in Parliament and not in this court. It is in my judgment an injustice to citizens that they should be advised that there may be any strength in an application of this kind.

Without any hesitation I would dismiss this application.

DISPOSITION:

Application dismissed.

References: National Laws and Regulations
Genocide Act 1969 ;
Geneva Conventions Act 1957 .