Author: Christopher Craigie SC, Date: 22/03/2012 Venue: 11th Heads of Prosecuting Agencies Conference, Singapore
I approach this topic with some hesitation, being aware that I am addressing an audience whom one knows will be committed to sound ethical practices at every level of the agencies in which you work or over which you preside. Nonetheless, it is a topic that may be of interest, particularly for those whose task is to mentor, but also as a general approach and foundation in identifying and dealing with ethical issues. Of course, the easiest ethical issues to discuss are other peoples’, but for a senior lawyer or an agency head such issues can become a fully-fledged and institutionally damaging problem that might have been otherwise for want of ethical awareness that there was an issue in the first place. I would like today to spend some time discussing the importance of an ethical awareness as a valuable mindset to foster in a prosecuting agency. I will also have something to say in conclusion as to the inseparable relationship between an ethical approach and effective prosecuting as fundamental to the role of a prosecutor. My reflections are, I must immediately concede, those of someone coming from a particular perspective. Necessarily I am drawing on my experience, over now more than thirty years, as an advocate. As a barrister for nearly all that period, my “life of crime” has been almost evenly split between private practice and working as a statutory appointee, formerly as a Public Defender and now as Commonwealth DPP. It might be said that I am the classic “poacher to gamekeeper”, but I should hasten to add that at the private bar in the mid to late 1980’s I was fortunate enough to occasionally prosecute. This experience was enough for me to learn even then that prosecuting is never as easy as it can look from the other side. Prosecutors face ethical issues and need to do so. My purpose today in speaking with you as the heads of prosecuting agencies is to outline the approach that I have suggested to lawyers in relation to ethics. Note that I do not speak about “answers”, as unfortunately it is never as easy as that. My experience is that when ethical questions do arise, they are usually difficult, case specific and not assisted by rote answers. Indeed, sometimes, there is no precise “right” or “wrong” answer but often there is only a right approach that will at least result in a response that is armored by good faith and a clear conscience that one did one’s best. Instead of pretending any capacity to impart a counsel of perfection, my aim when discussing this subject with our own lawyers has been to encourage the development of a personal resource that may help in determining what at least is the right approach (if not the complete answer) to a given situation – namely what I will for convenience call the approach of “ethical awareness”. Put simply, one must be aware when there is an issue, and an ethical awareness is vital to ensuring that issues are identified. To develop ethical awareness in a given situation, one of course first needs to understand general ethical obligations.
General ethical obligations
It is vital if one is to develop an ethical awareness that we know what our general, over-arching ethical obligations are. As public prosecutors we have:
- professional obligations and
- public service obligations
First, as to professional obligations: Wherever one happens to be working, the profession of law is our vocation. It is what we are and never simply what we do. We embody a profession, and an honourable one at that. Despite any public cynicism to the contrary about lawyers, what comes with professional status is an ethical dimension that is an ever-present element of our daily work. In fact, this aspect of ethical awareness is the essential tool that should always be at the fore-front of a professional approach and consciousness. So even before we get to the vital matter of specific rules and codes that guide and govern conduct there has to be an essential grasp of what our profession is about. I can never think of a more apt statement of this than a motto, that happens to be that of the NSW Bar, “Servants of all, yet of none”. All lawyers, whether in the public or private sectors, are bound by the ethical letter and spirit of the legal professional rules of the various governing professional bodies. These, in turn are underpinned by common law principles as to duties that are owed by a lawyer to an individual client or, if prosecuting, to the community, courts and to justice itself. As lawyers admitted or accredited by virtue of public office, we are sometimes referred to as officers of the court, indicating that we owe an ethical duty to the court and thereby to justice in the work that we do. The duty to justice, is in fact the paramount duty. It is not in conflict with other duties, the nature and limits of which are illuminated by the fact that as lawyers we primarily serve the interests of justice. The nature of a lawyer’s duty to the Court and its relationship with one’s duty to a client, was distilled in the following terms by Mason CJ in Giannarelli v Wraith.1
“The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground of appeal. It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary…”.
Public Service obligations
These are the obligations and ethical responsibilities that come from our roles as public servants or, in the case of all Australian Directors of Public Prosecutions, statutory appointees. The “servants of all, yet of none” motto that I embraced earlier is also a notion that sits comfortably with the role of a lawyer as a public servant or statutory appointee; that is because we serve the community, as embodied by the state, but we do not serve the individual interests of those elected officials who from time to time are vested with high office. As a public servant, one will also find a number of obligations spelled out in Public Service codes of conduct. I note that in the Australian Public Service Code of Conduct, one finds a number of ethical responsibilities which build the framework of our ethical awareness, for example duties to maintain confidentiality and to disclose and avoid conflicts of interest, and to behave honestly and with integrity and to act with care and diligence.
Statutory obligations and policy frameworks
A number of us, me included, are subject to specific statutory obligations; such as reporting requirements, the maintenance of conduct requirements or the adherence to particular decision making processes. It is vital to understand exactly what our statutory obligations are and thus to build our ethical awareness as it relates to our position. In the approach that I am suggesting, we also need to look to our agency’s internal policies and procedures to build comprehensive ethical awareness. By way of example, I refer you to the role that the Prosecution Policy of the Commonwealth has in relation to my office. The latest iteration of the Prosecution Policy was approved by the Attorney General in 2009 coinciding with the 25th Anniversary of my Office. Prosecution Policy of the Commonwealth The Policy constitutes a public document. You will find it on our website and it tends to be well known to many of those with whom we work across government and in the investigating agencies that refer briefs to us. The document constitutes, in effect, a statement of core values providing a consistent ethical approach to the essential functions of prosecuting. The Policy is the principal guide to lawyers within the CDPP as they advise, instruct, or appear in courts to prosecute in the name of the Director. The Policy remains the essential ethical anchor for me and my Office when it comes to implementing the central prosecution function and all the processes supporting that function. To have such a defining document is a valuable thing, as is its status as a public document – both as something to which we can refer and, where it is appropriate to explain, how a particular decision was arrived at and against which we welcome assessment and judgement by others. The Prosecution Policy also reflects that it is important not to lose sight of the fact that prosecutors discharge their responsibilities in an adversarial context and seek to have the prosecution case sustained. Accordingly, while that case must at all times be presented to the court fairly and justly, the community is entitled to expect that it will be presented fearlessly, vigorously and skillfully. An ethical awareness is vital to ensuring that cases are indeed assessed and presented to the court fairly and justly. Disclosure It is at this point that it is important to recognise the significance of prosecution disclosure and the need for knowledge of applicable legislation or policies in this regard. “Disclosure” refers to informing the defendant of:
- the prosecution’s case against him/her;
- any information in relation to the credibility or reliability of the prosecution witnesses; and
- any unused material.
Disclosure requirements continue throughout a prosecution. Being ethically aware requires a sound understanding of disclosure frameworks and the significance of disclosure in prosecuting fairly. IAP Standards In an increasingly interconnected world it is not surprising to find that there are now broadly accepted international professional rules that relate particularly to one’s work or agency and its functions. The International Association of Prosecutors has adopted its Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors. The Standards cover a range of areas, such as disclosure, prosecution decision and treatment of victims. I have formally and publicly endorsed these standards on behalf of my office. The IAP standards formally constitute part of the ethical framework for me and for my office. You may well find that there are other international professional rules, codes or standards that relate particularly to your area of work or agency.
Personal attributes that assist one in being ethically aware
Ultimately developing an ethical awareness is an individual responsibility – but it does not involve operating in isolation. An ethical awareness may sometimes be demonstrated simply by that troubled feeling you may get over a given situation. I encourage people to listen to themselves in that moment and ask why it is that they are troubled. The “what will I do” question often flows from this, more of which I will discuss later. One situation that I find more troubling is the lack of question or a troubled feeling that it is either ignored as inconvenient or obscured by hubris, ambition or some other self-focused motive. By this I refer to the lawyer who inwardly asserts “I don’t have any ethical issues”. Now, that statement may reflect the truth of the matter. Alternatively, it may indicate that the lawyer has not reflected on ethical obligations and has not established an ethical awareness; with the result that potential ethical issues are bubbling about but the lawyer’s fate may come to resemble that of the content but doomed frog in increasingly warm water.
Ethics in practice
As I mentioned in my introduction, my encouragement to lawyers, particularly junior lawyers, is to be in the first category – a lawyer who is constantly monitoring their ethical awareness which means, to continue the frog fable, that well before it gets too hot, one has an awareness of the increasing water temperature and has hopped in the right direction. Any discussion of developing an ethical awareness leads to the practical question of how ethical issues are resolved once they are discerned and the need to develop a plan. It is valuable to foster a collegiate spirit and culture, whereby people are confident about raising and discussing ethical questions. I recommend that, initially at least, officers discuss ethical issues with a colleague that they respect and whose judgement they trust. Importantly, no one is too senior not to benefit from asking such questions, as well as experiencing the challenge of formulating responses and answers. Over the later years of my being in chambers, both as a senior junior in private practice, including an interesting five years on a bar ethics committee and as a silk with the NSW Public Defender’s chambers, I would from time to time have other lawyers telephone me or drop in for advice or to simply provide a sounding board whilst an ethical challenge was worked through. I should say in passing that these practices simply reflect a wonderful bar tradition of collegiate support. Although a notable characteristic of the referral bar it is not one over which there is any patent reserved to the bar and I commend it to all advocates and all lawyers. More often than not, in my own experience of a collegiate process of meeting and examining an ethical issue, the challenge was met and resolved by talking about it. Sometimes these discussions were lengthy, sometimes it involved breaking down a series of issues into questions, making a note of them, to be examined and dissected in turn, rather than responding to the asking of one single question. Of course, sometimes the answer to a self-answering and approval seeking question put as “it’s alright if I do this, isn’t it?”, requires little more than gently asking why the question is being put. Such discussions often commence with a scenario situation being outlined (one trusts with accuracy) in terms that conclude with a question; “what do you think I should do about this?” Often the issue is one to which a simple solution may not be possible or indeed necessary, but one where it is for the lawyer seeking guidance to decide whether he or she wants to engage the issue, to correct the situation or remove oneself from the situation. The asking of the inquiring kind of question indicates that the person seeking guidance already starts from a position of advantage. They see that they come to a situation that is usually created by the acts or the status of others and where there is the option and capacity for the lawyer to either become part of a solution or part of a problem. Which outcome emerges largely turns on whether there is initially that robust ethical sense that, even it is annoyingly inconvenient, a problem exists and the task is to determine how it is best approached and resolved. The responses for the lawyer confronted by an ethical problem can range from giving preventative or curative advice to a client or referring agency, to deciding not to adopt a particular process or tactic that will bring on the ethical problem. In an extreme instance, the situation may require that one decides that one cannot act for the particular interest or party if the ethical issue has not been resolved.
A few words about the inseparability of effective prosecuting and ethical prosecuting
Throughout my time in both trial and appellate practice I have seen the occasional rough player at both ends of the bar table, but very few instances of what I would call unambiguously unethical behaviour. Certainly, and this is frequently conceded by their opposite numbers and by judges to whom I have spoken, the most outstanding and effective prosecutors that I have known and continue to see are calm, methodical and overwhelmingly fair lawyers. I am firmly of the opinion that the most devastating weapon of a competent and well briefed prosecutor is to have the perception and reality for the judge and jury that the lawyer is operating ethically and fairly. Operating ethically and fairly is a devastating weapon and developing an ethical awareness vital to achieve this. A reputation in this regard is precious.
It has been my experience that many practitioners, amongst them the elders of the profession and those who come to judicial office, exhibit the kind of approach in awareness that I identify and commend. It is nothing new and was around long before any of us were in practice. Having such awareness does not require a degree of moral superiority over other people or attaining saintly perfection in all of one’s professional judgments. It requires no more and no less than a basis level of awareness of and adherence to sound ethics as a tool of trade. Indeed, it appears to me that without an ethical awareness as I have described lawyers are unlikely to realise that they are facing an ethical issue and perhaps one with significant attendant risks to their cause, standing and possibly their career. My aim today has been to articulate and share the essentials of ethical awareness. I suggest that they require the following:
- Knowing the professional guidelines under which one is working
- Knowing the legal requirements that apply to you
- Knowing the applicable codes of conduct
- Being self-aware
- Making use of such resources concerning ethics that exist and are developed for lawyers by your agency and governing professional bodies
- Not being afraid to discuss an ethical issue with a mentor or colleague whose judgement you trust and embracing a collegiate culture in this regard.
Prosecution Policies provide fundamental guidelines for the making of decisions in the prosecution process. The Prosecution Policy of the Commonwealth states clearly that it does not attempt to cover all questions that may arise in the prosecution process and the role of the prosecutor in their determination, but that most importantly, it is sufficient to state that throughout a prosecution the prosecutor must conduct himself or herself in a manner which will maintain, promote and defend the interests of justice. It states explicitly that in the final analysis the prosecutor is not a servant of government or individuals – he or she is a servant of justice. In order for us to indeed be servants of justice – we must develop an ethical awareness.