(c) The power to discontinue criminal proceedings

In exercising his power to discontinue proceedings, the DPP enters what is called a nolle prosequi. This power arises under Section 94 (3) (c) of the Constitution and Section 4 of the Criminal Justice (Administration) Act.

Section 4 of the Criminal Justice (Administration) Act prescribes that at any stage before the court renders judgment the DPP may discontinue criminal proceedings in any Court by entering a nolle prosequi. He may do so by stating in open Court where the proceedings are pending or by informing the Clerk of the Courts in writing that the Crown does not intend to continue such proceedings.  Thereupon the proceedings shall be at an end and on receipt of such notice the Accused person shall at once be discharged in respect of the charge for which the nolle prosequi is entered.

The entering of a nolle prosequi by the DPP is not an acquittal on the charges being tried and the DPP has the power to bring back or re-indict the matter.[1] A nolle prosequi can be entered even though the Accused person has pleaded guilty to a lesser charge on the indictment for example pleading guilty to manslaughter instead of murder, as long as the court has not yet passed sentence.

Such a situation happened in 1983 in the case of R v Lloydell Richards.[2]  On appeal to the Court of Appeal the only ground pursued was that the prosecution on the second indictment was in contravention of Section 20 (8) of the Constitution of Jamaica which provides so far as relevant:

“No person who shows that he has been tried by a competent Court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course if appeal proceedings relating to the conviction or acquittal.”

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• Powers of the Director of Public Prosecution
• (a) The power to institute and undertake criminal proceedings
• (b) The power to take over criminal proceedings instituted by others

The Court of Appeal dismissed the appeal and found:

1. That the DPP may exercise his powers of discontinuance up to the point before sentence is passed. In a criminal case, the judicial determination comes at the point where the person is either acquitted and discharged or convicted and sentenced. The nolle prosequi was properly entered by the DPP, it having been entered before the judge passed sentence.
2. That a plea of guilty not followed by a sentence of the court does not constitute a conviction. The plea of guilty is no more than a solemn confession of the ingredients of the crime alleged. The nolle prosequi was properly entered and the DPP needed no further authorisation to indict the accused man and commence proceedings de novo.[3]

On appeal to the Privy Council, the Board, in dismissing the appeal, accepted as correct that:

“Section 20 (8) of the Constitution of Jamaica is simply intended to embody the common law doctrines of autrefois convict and autrefois acquit.  The central issue raised by the appeal is whether a plea of autrefois convict can be sustained by anything less than evidence that the offence with which the defendant stands charged has already been the subject of complete adjudication against him by a court of competent jurisdiction comprising both the decision establishing his guilt (whether it be the decision of the court of the jury or the entry of his own plea) and the final disposal of the case by the court by passing sentence or making some order such as an order of absolute discharge…”