Has the 'silver thread' of the criminal law lost its lustre?: the modern prosecutor as a Minister of Justice

Abstract

The notion of the prosecuting lawyer as the impartial non-partisan ‘minister of justice’ is entrenched in both England and Australia as the ‘silver thread’ of the criminal law. However, this article suggests that this acceptance overlooks a number of fundamental questions as to the continued application of the minister of justice role. Sir Patrick Devlin in 1956 warned that a too literal application of this role risked undermining the rationale and operation of the adversarial criminal trial. Devlin’s concern remains pertinent today. The adversarial criminal trial remains the method by which common law criminal justice systems ‘do justice’. The rationale of the adversarial criminal trial is that both prosecution and defence should discharge their respective roles with vigour and to the best of their ability to ensure that a trial has the greatest chance of being fair for all parties and that justice is done. The original rationale for the minister of justice role in the early 19th century was to compensate for the unequal playing field that typically existed between prosecution and defence in this period. However, the role, born from necessity and good intention, has in latter times not only lost relevance but has, in some respects, overly constrained the prosecutor and risks undermining the modern adversarial criminal trial. The role, created to promote justice, may actually serve to deny justice by rendering prosecutors unable to effectively discharge their functions. Devlin was correct in his analysis of the flaws in the minister of justice role and literal application of this role may prevent the modern prosecutor from acting as an active advocate within an adversarial system. It is contended that ultimately there is an irreconcilable tension between the notion of the prosecution as both zealous advocate and minister of justice and that more than a glib slogan is necessary to define the modern prosecutorial role.