Who Controls Public Prosecutions?

Recently, the question who controls public prosecutions came out in the open. The Director of Public Prosecutions (D.P.P.) had discontinued a case before the High Court in which two police officers were charged with the murder of a citizen. The reasons cited for the discontinuation was that the case had come before the Court on a number of occasions, but on none of these occasions had witnesses appeared for the Prosecution. To continue to seek prosecution in these circumstances would be merely a waste of the Court's time. Following announcement of the discontinuance, it was reported that the Attorney General (A.G.) requested of the D.P.P. information as to the discontinuance. The media was then bombarded with layman interpretations as to which of the two offices has jurisdiction to control the prosecution of criminal proceedings, in general, and to discontinue such proceedings, in particular.

This question is not new. It was raised in the context of Trinidad and Tobago in the years following that country's acquisition of Independence in 1962. The original 1962 Independence Constitution placed power to prosecute any person before any court in respect of any crime in the hands of the Attorney General. Further, the A.G. was empowered to take over and continue any such proceedings already instituted by any other person or authority. He or she was empowered to discontinue, at any time before judgement was given, any criminal case commenced by whomsoever. And the Constitution laid down the now much-reported provision that no one else whatsoever could control the A.G. in the exercise of his or her duties.

The Constitution went even further. It specifically stipulated that the A.G. had to be a Minister of Government. Of course, this provision made the A.G. subject to appointment and dismissal directly by the Prime Minister. Thus, he or she was a politician at the service of the Party in power. And, at the same time, he or she was the Chief Officer charged, so to speak, with dispensing justice to all citizens, even at the expense of members of the ruling Party and the narrow interests of Government. Clearly, such an officer would have the greatest difficulty in carrying out functions without fear or favour, as the office required them to be done. Little wonder the Wooding Commission reported in 1974 that such an arrangement "may put an intolerable strain on the Attorney General, and tends in any event to leave his impartiality always open to question." Translated in less diplomatic layman language, the report was warning that the Attorney General would almost certainly be confronted in his work by a conflict of interest. Or, better yet, his or her decisions might be tainted by the possibility of bias. The Commission, then, went on to recommend that the possibility of such conflict or bias might be avoided by vesting control over public prosecutions in an Attorney-General who is a public officer, as distinct from one who is a politician.

The framers of the twin-state's 1976 Constitution listened. They opted for a Republican form of Government, in preference to the Monarchical form adopted on Independence in 1962. The Constitution was changed to place public prosecutions under the control of a D.P.P. And it made the position a public office. The intention was to give the D.P.P. the necessary independence to discharge the functions of his or her office.

By contrast, Barbados followed an opposite course. The island's 1966 Independence Constitution gave the D.P.P. unfettered command over the commencement, continuance and discontinuance of criminal proceedings. And it made the position a public office. But, in 1974, the apple cart was upset. Constitutional amendments gave the Attorney General power to direct or control the D.P.P. in certain situations. These situations included charges pertaining to sedition, treason, disclosure of official secrets, unlawful oaths, dealing in slaves, treachery and publications aimed at interfering with the peaceful relations of Barbados with foreign countries.

Save that the office of D.P.P. may or may not be a Public Office, our country has largely embraced the 1976 sister Republican two-island Trinidad and Tobago model. As in Trinidad and Tobago, the D.P.P. is invested with power to commence as well as to take over and continue, and discontinue criminal proceedings as, wherever, and whenever he or she wishes to. Section 72(2), written in almost the same words as its Trinidad equivalent, is worth quotation at length: "The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do –

(a) To institute and undertake criminal proceedings against any person before any court of law (other than a court-martial) in respect of any offence alleged to have been committed by that person;

(b) To take over and continue any such proceedings that have been instituted or undertaken by any other person or authority; and

(c) To discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority." This jurisdiction is not restricted to proceedings capable of prosecution or in process of prosecution at first instance, that is to say, in a Magistrate's Court or the High Court. It extends to certain cases on appeal to a higher court. Further, at first glance, the Constitution provides for exercise of these powers without hindrance. In terms of the discretion to take over and continue a case or to discontinue it, at Section 72(4), this is vested in the D.P.P. "to the exclusion of any other person or authority." And, as to the exercise of these powers and, also, the power to initiate and undertake cases of his or her own accord, it is provided for at Section 72(b) that such exercise "shall not be subject to the direction or control of any other person or authority." It should be noted that the D.P.P. is entitled to exercise these powers whether in person or by delegation to other persons "acting under and in accordance with his general or special directions."

This notwithstanding, there are three provisos, that is to say, conditions, under which these powers are to be exercised. One is that a person or authority who has commenced criminal proceedings, or someone acting on behalf of that person, is at liberty, with leave of the Court, to withdraw those proceedings. In that event, the D.P.P. does not, in our view, have power to re-list, take over and continue the case. Another proviso is stipulated at Section 72(b). It is that, in exercising his or her power to discontinue proceedings the D.P.P. must do so in accordance with "such general or special directions (if any)" as the A.G. "may" give.

Now, what is the effect of the Section 72(b) proviso? Does it mean that the D.P.P. is not authorized to discontinue a case unless the A.G. gives him general or special directions to do so? Alternatively, does the proviso mean that the D.P.P. has a duty to seek general or specific directions from the A.G. before a determination to discontinue proceedings is made? Or, stretching the proviso to its limits, does it mean that a discontinuance by the D.P.P. in the absence of a direction from the A.G. is to be held unlawful, null and void and of no effect, by which the case is to be treated as live proceedings before the Court?

We answer the foregoing questions in the negative. And we propose this interpretation. The use of the words "if any" and "may" suggests that the A.G. is under no obligation to offer any directions whatsoever to the D.P.P. The D.P.P. is, therefore, under no obligation either is to seek such directions from the A.G. or to await such directions, before making a determination to discontinue. Properly construed, what the proviso means is that if the A.G. proposes general or specific directions on the question of discontinuance to the D.P.P., when that is done, the D.P.P. is under an obligation to act in accordance with such directions. So, if the A.G. directs that the matter be not discontinued, then, the D.P.P. has no authority to ignore that direction, and go ahead and discontinue. By the same token, if the A.G. instructs the D.P.P. to discontinue proceedings, the D.P.P. is under an obligation to do so. And, where the A.G. has not offered directions, the D.P.P. has full authority, on his or her own volition, to discontinue.

Applied to the recent case of discontinuance, referred to above, it is our opinion that the D.P.P was standing on unshakeable ground when he told the Court of his decision to discontinue. It is equally our opinion that, in the wake of such discontinuance, the A.G. was entitled to seek information concerning the discontinuance. And we firmly believe that at that stage of the proceedings the A.G. would have had no jurisdiction to seek to declare the D.P.P's decision as unlawful, null and void and of no effect.

Nonetheless, this Section 72(b) proviso is of critical importance to the dispensation of justice in our country. Formally, it gives the Attorney General power to discontinue any criminal proceedings instituted at any time by any person or authority, including, in our view, the D.P.P. In fact, however, the A.G's power to discontinue in reality lies in the hands of the Prime Minister, albeit indirectly. It lies there because of the control over the appointment and removal of the Attorney General which the Constitution vests in the Prime Minister. As was discussed in an earlier YOU AND THE LAW, where the Attorney General is a Minister such control is direct. And where he or she represents a public office, the hand of the Prime Minister is exercised through control over the appointment and dismissal of members of the Public Service Commission.

Essentially, then, the D.P.P. has authority to independently institute and take over and continue public prosecutions. But, as to discontinuing such proceedings, this independence is circumscribed by the parallel and superior power vested in the A.G. Take a hypothetical case, where the D.P.P. uses his powers as a public officer and institutes criminal proceedings against our country's Prime Minister. The Proviso at Section 72(b) of our Constitution may be interpreted to mean that the A.G. is empowered at his discretion to advise the D.P.P. to discontinue such proceedings. We ask what is the likelihood of the Proviso being used in that way. Ask yourself this: Who appoints the A.G? The Prime Minister! Who fires the A.G? The Prime Minister! Needless to say, such a facility in the hands of the A.G. may be used to protect wrong-doing on the part of Government and ruling Party colleagues and other favoured persons. For the sake of justice, we hope that this interpretation of the Proviso is misguided.

(c) William Para Riviere, December 2012