Gov't wins appeal, Paula Llewellyn cleared to resume work as DPP

The Court of Appeal has overturned a Constitutional Court's decision, clearing the way for Paula Llewellyn to resume duties as Director of Public Prosecutions (DPP).

The court ruled in favour of the Government on Friday, stating that the lower court was wrong to rule that one of the constitutional changes rushed through Parliament last year regarding retirement ages did not apply to Llewellyn.

Llewellyn is entitled to benefit from an increase in the retirement age, said Justice Jennifer Straw in handing down the highly-anticipated decision. 

In April, the Constitutional Court 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.

That aspect was called Section 2(1). 

However, the court struck down Section 2(2) of the amendment, which it said gave Llewellyn the power to elect to remain on the job. It declared the provision “unconstitutional”. 

The appeal court agreed with the lower court that the law was not passed for an "improper purpose" and that it was a valid amendment of the Constitution. 

But the court said Justices Sonya Wint-Blair, Simone Wolfe-Reece, and Justice Tricia Hutchinson Shelly "fell into error" in ruling that Section 2 (2) did not apply to Llewellyn because it allegedly gave her powers she did not have, that she had already benefited from an extension and that the approach to changing the law violated the consultation process between the prime minister and the opposition leader. 

The court said that the test used by the lower court was "problematic" and "appeared to be a misunderstanding of the law". 

"Section 2 (2) is a transitional provision concerning the incumbent DPP and the words 'elect to retire ' should be construed to mean to elect to apply for early retirement. That is, before attaining the new retirement age of 65 years," read Justice Straw, one of appeal court's most senior judges.

"Upon promulgation of the amending Act, the incumbent DPP automatically benefitted from the increased retirement age by virtue of Section 2 (1) . Section 2(2) did not add to that benefit and is, therefore, not unconstitutional or inconsistent with 2(1)."

Following the April 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.

The Attorney General's Chambers issued a brief statement advising that Llewellyn was stepping away from her duties because of ambiguity and uncertainty from the court's ruling. 

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

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

She had indicated her interest in another extension in 2023, but in May that year the Office of the Services Commission advised that Holness had denied the request after taking legal advice. 

However, two months later and without public notice, the Government tabled and approved the changes in Parliament on the same day. The change took effect before Llewellyn reached the expiration of the extension, on her 63rd birthday in September 2023. 

Lawyers for Opposition lawmakers Phillip Paulwell and Peter Bunting challenged the amendment in court.

They lost their counter appeal that the amendment should be struck down as it was done for an improper purpose, that it breached the separation of power principle and circumvented the constitutionally mandated process.

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

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

Lead judge Straw, along with  Justices Kissock Laing and Vivene Harris, heard the appeal. 

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