Placing the DPP in the Hot Seat

I do not envy the Director for Public Prosecutions(DPP) for the Commonwealth of Dominica; especially after the letter from Lennox Lawrence to her office became public. The facts in this case are so well-known that the office is now under intense public scrutiny.

The law regarding treating and other election offenses has been a part of the House of Assembly (Elections) Act for decades. The same is true of the Constitutional authority of the DPP to intervene in any private criminal prosecution "at any time."

The facts alleged in May 2015 in the original complaint were public knowledge at the time that they occurred. A reasonable person can conclude that neither the police nor the Office of the DPP decided that the treating that is now alleged to have taken place by way of two public concerts in the run-up to the 2014 General Elections, was serious enough to warrant a public trial. The Office of the DPP must have been completely taken by surprise when three private citizens lodged criminal complaints against all successful candidates of the victorious Dominica Labour Party.

After the summonses were issued by the magistrate the Director of Public Prosecution must have decided that there was no reason to intervene. Nothing suggests otherwise. It is unlikely that the complainants alleged in their complaint any facts that were unknown to all members of the Dominican public or to the Office of the DPP. For six years this matter ground its way through the legal system - first to the High Court and then to the Court of Appeals, before arriving at the CCJ (Caribbean Court of Justice). At no point during that six-year period did the DPP seem to believe that there was any need to intervene in the matter, nor did the respondents make any such request.

It was only when the matter finally came before the CCJ for a rare jurisdictional hearing, that the members of the Court for the first time raised the issue of the DPP's constitutional authority to intervene in a private criminal prosecution. The Court seemed to be making it clear to all that at no time during the previous six years had anyone associated with the matter suggested that the private prosecution was invalid. No other conclusion should be drawn.

It is in this context that I have attempted to analyse the letter from Mr. Lawrence to the DPP asking that she not only intervene in the matter, but that she should discontinue it. I also considered additional procedural information that was, for some reason, not included in the CCJ opinion. I was surprised to learn that the DPP and the Magistrate were among the respondents when the matter was brought to the High Court for judicial review by the parties that have ended up being the appellants before the CCJ. When all of this is considered, the inference of incompetence at the Office of the DPP - whether intended or not - is strong and clear in Mr. Lawrence's letter. There is no other way to interpret his reminder to the DPP of her Constitutional authority or of the nature of the law. The DPP is not a judge. She does not need to be briefed on a case or be lectured on how she ought to fulfill her Constitutional responsibilities.

How did we find ourselves in this situation? Apparently, a decision was made six years ago not to rely on the DPP. In his letter Lawrence cited two local cases from 2010 in which "the respective Judges rejected the argument that the music concert during an election constituted an offence of treating." However, he was wrong to suggest to the DPP that "these decisions represent the law of the land." It is known that only decisions handed down by the CCJ represent the law of the land. Must we believe that Mr. Lawrence really does not know that trial judges do not establish what the law is?

Is this a deliberate attempt to corruptly influence the DPP? Why is the recent ruling from the CCJ not mentioned in this letter, given Mr. Lawrence's concerns for the law of the land? There is reason to believe that this letter was drafted years ago before the matter came before the CCJ or the High Court.

The letter projects a picture of a legal defense team that is in disarray after having gambled on the High Court and lost, and is now oblivious of its client's pledge to respect the country's institutions.

An attorney must vigorously represent his client but must be careful not to "burn the house down" while doing so. By his own admission, Mr. Lawrence's client is the Prime Minister, who is part of both the Executive and the Legislative branches of Government. His letter places the Prime Minister at odds with both the Judicial and Executive branches. Issues of serious national interest are at play here.

The letter was intended to convince the DPP to discontinue the matter but the question may now be whether the People must be left with the impression that the Office of the DPP had been incompetent during the past six years.