The Decision to Prosecute
By Dana Seetahal
This column originally appeared in the Trinidad Express on February 24, 2012, and appears here along with an addendum following Justice Chang’s recent decision, courtesy of Dana Seetahal. Dana Seetahal is currently a Senior Counsel in private practice where she appears for both the defence and State, with a significant Appeal Court portfolio. She is presently also a Senior Lecturer at Hugh Wooding Law School (now part time); author of a criminal practice and procedure textbook used in all Caribbean law schools; former independent senator (for 8 years); and Former Magistrate, Senior State Prosecutor and Assistant Solicitor General.
The courts in Guyana confronted an unusual case where the Director of Public Prosecutions (DPP), Mrs Shalimar Ali-Hack, on February 3, 2012 advised the Acting Commissioner of Police to lay rape charges against the Commissioner of Police. In an unprecedented move the Chief Justice of Guyana quashed the advice of the DPP and ordered her to provide statements made by the alleged victim to the court and to explain why she made the decision to have the Commissioner charged.
The DPP of Guyana like her Trinidad and Tobago counterpart has the power to “institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offence against the law”. This leads to a situation where the DPP may advise the police to initiate a prosecution and the police would do so.
Like the Commissioner of Police in Guyana, in 2006 our then Chief Justice sought to block the laying of charges against him by the police. How that matter eventually panned out is relevant to what may transpire in respect of the potential rape charges against Commissioner Greene. It is also relevant to how the decision to prosecute whether by the DPP or the police is/should be circumscribed. In this day when there are continuous assertions from both sides of the political divide about corruption as well as accusations of political pressure and where reports or calls to investigate are being made to the DPP, it is imperative to understand how the courts have treated with attempts to block prosecution of criminal charges.
In 2006 the then Chief Justice of Trinidad and Tobago sought the intervention of the courts when the Deputy DPP advised that he be charged. After studying the evidence in the police file and considering written representations submitted by the Chief Justice’s lawyers, she concluded that an offence of attempting to pervert the course of justice was made out. On 10 July she recorded these conclusions in writing and forwarded a draft charge to the Commissioner. On the same day lawyers for the Chief Justice went to court and obtained an order that all action or proceedings consequential upon the Deputy Director’s decision to advise the police be stayed.
The case went all the way to the Privy Council (PC) where certain bedrock principles of criminal law were confirmed. The first is that rule of law requires that the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of State but equally the holding of such an office cannot excuse conduct which would lead to the prosecution of one not holding such an office. The administration of justice must be, and be seen to be, even-handed. Further it is the duty of police officers and prosecutors engaged in the investigation of alleged offences and the initiation of prosecutions to exercise an independent, objective, professional judgment on the facts of each case. It would be a grave violation of their professional and legal duty to allow their judgment to be swayed by extraneous considerations such as political pressure.
The PC went on to say that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy: it is considered to be “‘rare in the extreme”. The courts recognised the great width of the Director of Public Prosecutions’ discretion and the character of the official decision-making. These include a wide range of factors relating to available evidence, the public interest and perhaps other matters which [the prosecutor] may properly take into account. These are not susceptible to judicial review because they are not within the constitutional function nor the practical competence of the courts to assess their merits.
In the final analysis the PC advocated that all challenges to a prosecution should take place in the criminal trial or on appeal – rather than seeking to block the laying of a charge itself. The court said that apart from the safeguards afforded to the defendant in a criminal trial, the court has a well-established power to restrain proceedings which are an abuse of its process, even where such abuse does not compromise the fairness of the trial itself.
Very importantly the PC held that there should be a reluctance to blur the executive function of the prosecutor and the judicial function of the court, and that the distinct roles of the criminal and the civil courts must be emphasized. There had to be very compelling reasons to restrain a public officer from doing what she avers to be her public duty. One such circumstance could be the surrender of what should be an independent prosecutorial discretion to political instruction (or persuasion or pressure). Unless there was such evidence, any issues relating to the decision to prosecute should properly be raised in the course of criminal proceedings. A criminal judge would be better placed to manage potential issues, such as whether the decision to charge was politically influenced or whether there is evidence fit to be left to the jury.
On March 29, 2012 the Chief Justice of Guyana granted orders of certiorari and prohibition effectively staying the charge against the Commissioner. After a detailed analysis of the statements of the alleged victim and the Commissioner, more in the line of a defence counsel’s closing address, Mr Chang concluded that the prosecution had no reasonable prospect of success. In his decision he acknowledged the Privy Council decision in Sharma v Brown-Antoine but said there was no absolute fetter or absolute prohibition against judicial review of a decision to prosecute. Although there is no known English case where even leave to challenge a decision to prosecute has been granted the Chief Justice not only granted leave in this case but stayed the prosecution.
The way is now clear for any accused person in Guyana to go to court seeking a stay of any criminal charge. One wonders what the CCJ will say to this – if they get the chance.