Case: R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118
Outcome: cited
R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 at 136, Lord Denning MR said that: "Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter . He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide" (emphasis added). Her Honour quoted with approval the observations of Lord Denning MR in Blackburn . She held (at 320) that: "I accept that, where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law, if: (1) he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and (2) he or she acts appropriately upon the view which he or she has formed". If the police officer acts consistently with these requirements and declines to investigate a complaint, it follows, as her Honour held, that no duty is imposed on the officer to consider instigating a prosecution against any alleged miscreant. When the applicants attended to make their complaint to the AFP they were received by Federal agents Mr Nicolas Read and Mr Wade Howell. The group met for approximately half an hour during which time the applicants made various allegations of conduct that they alleged constituted criminal offences under Australian law. On the following day two Federal agents were assigned by Mr Read to consider the allegations. The speed with which the allegations were examined was unusual. Federal agent Read considered that the assessment of the allegations should be accorded a high priority because of the seriousness of the offences which had, allegedly, been committed. After a detailed consideration by his officers, Federal agent Read concluded that the allegations and materials provided by the applicants did not disclose any Commonwealth offence. In those circumstances he determined that no further action should be taken and the applicants were so advised. The applicants, however, seek to turn the expedition with which the matters raised by them were considered to their advantage. They submit, without evidence, that the allegations could not properly have been considered in a little over a day. It is to be remembered that all that was considered during that time by the two officers was whether it appeared that offences might have been committed against Australian law. This judgment fell to be made on the basis of the information supplied by the applicants. There is no reason to doubt that the officers gave proper consideration to the question of whether an initial inquiry should be instituted into the complaints made by the applicants. A bone fide view was formed that no further action should be taken. In these circumstances no further duty, enforceable by a writ of mandamus, arose. There is another obstacle in the path of the applicants. The offences of genocide and crimes against humanity are provided for in Division 268 of Chapter 8 of the Criminal Code Act 1995 (Cth) ("the Code"). Section 268.121 of the Code provides that proceedings for an offence under Division 268 must not be commenced without the written consent of the Attorney-General. Thus, even if the AFP, on completion of a full investigation, decided that there was evidence that one or both of these offences had been committed, it could not institute criminal proceedings against anybody in the absence of the Attorney-General's consent. A writ of mandamus could not compel the AFP to do so. The applicants draw attention to the provisions of s 268.121(3) which permit a person to be arrested and charged with an offence under the Division before the necessary consent has been given. The applicants contend that AFP officers could be ordered by the Court to arrest and charge the alleged offenders without waiting for the Attorney-General's written consent. That is a doubtful proposition but one which need not be further considered. On the material before them, the Federal agents were in no position to arrest or charge anybody and could not be compelled to do so. In any event an arrest or the act of laying charges is not the same thing as commencing criminal proceedings. In the context of s 268.121, a distinction is drawn between arrest and charging on the one hand and the commencement of criminal proceedings on the other. The latter step involves the initiation of the curial processes which lead to a trial. It can be taken only with the consent of the Attorney-General. The application seeks the issue of a writ of mandamus requiring the AFP to begin such proceedings, not requiring the charging or the arrest of alleged offenders.