DPP's independence strengthened by Privy Council ruling in T&T case

A recent Privy Council ruling in a Trinidad and Tobago case has affirmed that courts need extremely strong reasons to interfere with decisions made by a director of public prosecutions (DPP) to initiate criminal proceedings.

The United Kingdom-based court is the final court for Jamaica and the twin-island republic. The decision will carry significant weight on local issues.

The appeal was against a majority decision of the Trinidad and Tobago Court of Appeal which upheld a Supreme Court's judgment that a civil court was correct in stopping the prosecution of three men who were accused of committing a triple murder.

“In the present case, there was unwarranted interference by a civil court of concurrent jurisdiction with ongoing proceedings in a criminal court," a panel of five Privy Council judges ruled, noting that the complaint by the men could have been dealt with at the trial.

“It is important for the courts to guard against of unjustified collateral attacks on prosecutorial decisions. As the authorities confirm, occasions when it is appropriate to judicially review a prosecutorial decision whether to (continue to) prosecute are extremely rare,” it said, adding that "judicial interference by a civil court with ongoing proceedings in a court of criminal (concurrent) jurisdiction is not a step to be taken lightly."

Senior Jamaican criminal defence attorney Bert Samuels said today that there was a legal principle that Privy Council decisions from Jamaica were binding on the country.

But he said further that the court's decisions in cases from other countries were highly persuasive and should be followed if the applicable law and the facts were similar.

"However, going forward, it is by way of consensus, the view that there needs to be a constitutional amendment, permitting the courts to review the decisions of the DPP, particularly where those decisions breach the constitutional rights of the citizens."

“There is an inherent danger in giving unlimited power to public officials,” Samuels warned.

ADMITTED TO LYING

The main witness in the Trinidadian case said at a preliminary hearing that he saw the men with guns at the time of the incident in April 2009. However, shortly before the trial was to start in 2019, he admitted to prosecutors that he had lied about seeing the accused. 

The DPP proceeded with the case but the men applied for a judicial review, a means by which a court determines whether processes used by public authorities to make a decision are fair. The Supreme Court ruled that the DPP was unfair and unreasonable and freed the men. 

DPP Roger Gaspard took the matter to the Privy Council, which overturned the lower courts' decision and sided with a judge of the Court of Appeal who had dissented.

The Privy Council sharply criticised the appeal court for basing its judgment on "a series of hypothetical scenarios" and agreed with the DPP that there were safeguards available within the criminal proceedings to prevent abuse and unfairness. 

"Leave to apply for judicial review should not have been sought or granted at all, let alone in the absence of the DPP. The criminal trial was due to re-start within days and provided an adequate and effective alternative remedy for the respondents," the Privy Council said in its judgment handed down on July 18. 

The court lectured the Trinidadian judges that: "On a challenge, the established principles of judicial review will apply, but always paying proper regard to the great width of the DPP's discretion and the polycentric character of official decision-making in such matters, including policy and public interest considerations."

The Privy Council said while aggrieved citizens must not be deprived of a judicial review as a remedy, its "highly restrictive approach" towards a DPP's decision ensures that, among other things, the "need to avoid undermining prosecutorial effectiveness by subjecting the prosecutor's motive and decision-making to outside inquiry". 

"Although a decision to prosecute (or to continue to prosecute) is in principle susceptible to judicial review, such relief will in practice be granted only extremely rarely. It is a 'highly exceptional remedy'," it said. 

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