Court of Appeal to rule in DPP constitutional case in next court term

The Court of Appeal has promised to deliver the highly-anticipated judgment in the Government's appeal against the Constitutional Court's decision which resulted in Paula Llewellyn stepping aside as Director of public Prosecutions (DPP) in the next court term, which begins in September.

Lead judge Justice Jennifer Straw, who presided over the five-day hearing with Justices Kissock Laing and Vivene Harris, said given the sensitivity and urgency of the matter, the decision will be handed down as early as possible in the next court term.

The Michaelmas court term runs from September to December.

The Full Court, in April, ruled that the amendment in the Constitution in July last year to raise the age of retirement for the DPP and the Auditor General from 60 to 65 was valid.

However, the court struck down section  (2) of the amendment which it says gave Llewellyn the power to elect to remain on the job.

It declared the provision “unconstitutional”.

Following the ruling, attorneys representing People's National Party lawmakers, who had initiated the challenge, said the ruling meant that Llewellyn would have to leave office immediately.

However, other parties, including the Attorney General's Chambers and Minister of Justice Delroy Chuck, were of the view that no such order had been made.

The attorney general consequently advised that after careful consideration and in the interest of the public, he would be appealing the ruling to have the issues resolved and determined by the Court of Appeal.

Shortly after, the Attorney General's Chambers issued a brief statement advising that Llewellyn was stepping away from her duties.

It said that due to ambiguity and uncertainty from the court's ruling, the DPP had advised that she was “unable to carry out the functions of her office at this time”.

Senior Deputy DPP Claudette Thompson was then appointed to act in the post.

A panel of judges comprising Justices Sonya Wint-Blair, Simone Wolfe-Reece, and Justice Tricia Hutchinson Shelly ruled that “the incumbent DPP has already reached the extended retirement age, [which] means that the application of Section 2(2) cannot lead to another extension by way of an election on the part of the incumbent DPP as this is unlawful”.

The DPP reached the age of retirement in 2020 but got a three-year extension, which ended in September 2023.

The judges further ruled that the only lawful way to extend Llewellyn's current tenure is by agreement between the Prime Minister and the Leader of the Opposition.

However, lawyers for the DPP who had joined the appeal along with lawyers for the State have argued that section 2 was to secure the DPP and the auditor general right to an early retirement.

They submitted that there was no provision giving both public servants that right.

Lawyers for Opposition lawmakers Phillip Paulwell and Peter Bunting who had initiated the challenge to the amendment to the Constitution however argued that there was no right to early retirement and that there were provisions available through which the DPP could apply for early retirement.

They also argued that the amended was not retrospective and would not have benefitted Llewellyn.

The respondents also brought a counter appeal in which they maintain that the amendment should be struck down as it was done for an improper purposed, that it breached the separation of power principle and circumvented the constitutionally mandated process.

They claim the amendment was done to keep the DPP in office.

Michael Hylton KC, and Kevin Powell represented the opposition legislators, King's Counsels Allan Wood and Ransford Braham represented the attorney general, while King's Counsel Douglas Leys appeared for the DPP.

- Tanesha Mundle

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