Power to institute and undertake criminal proceedings (Cont'd)

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Further, Lord Woolf in the course of his judgment said:

“The DPP is not a part of government or a government official.  If he wishes to bring proceedings inevitably there must come a stage when the manner in which he undertakes those proceedings is subject to control by the court….The only difference which would result from the DPP initiating the proceedings himself, without going to a judge, is that the control by the court would be exercised at a later stage of the proceedings.”[1]

The DPP also cannot be forced to initiate prosecutions into cases where he believes that there is insufficient reliable evidence to justify a prosecution. Furthermore, he does not have to give reasons to justify this exercise of his jurisdiction.

This power, that is, the decision not to prosecute, attracted controversy in the matter of the killing of one Patrick Genius on December 13, 1999 by the police, in the case of Leonie Marshall and the Director of Public Prosecutions, Privy Council Appeal No. 2 of 2006.  The mother of the deceased Leonie Marshall, the appellant in the appeal, brought an application for judicial review of the DPP’s decision, arguing that he was to give reasons for his decision not to prosecute.  The Jamaican courts refused her application and she appealed with the leave of the Court of Appeal to the Privy Council.

Their Lordships[2]  dismissed the appeal finding that self defence was a live issue and that the possibility of mounting a successful prosecution by disproving self defence beyond a reasonable doubt was minimal and the DPP was justified in deciding not to bring such a prosecution. The Privy Council decided the following issues:-

1. Significantly it refused to make a ruling as to whether or not the DPP is required in law to give reasons. They did suggest that it might be a good practice to do so.

2. Judicial review over the powers and functions of the DPP is an exceptional remedy and ought to be exercised sparingly and with great restraint.[3] The prosecutor may have to consider a range of factors including policy considerations and the public interest. In addition, where the decision not to prosecute is based on an assessment of the sufficiency of the evidence and the prospects of securing a conviction the Court will accord great respect and weight to the judgment of experienced prosecutors.   

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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
• (c) The power to discontinue criminal proceedings.

The Courts in Jamaica[4]  and elsewhere have held that a decision to review the exercise of the Director’s decision not to prosecute should be based on one or more of the following grounds:-

1. That the DPP in performing his functions did not act in accordance with the Constitution or any other law;

2. That the DPP failed to act in accordance with settled policy;

3. That the decision of the DPP was perverse and unreasonable and was one at which no reasonable prosecutor could have arrived.

The DPP’s office in the 21^st century, though independent and “not subject to the direction or control of any other person or authority”, must be answerable to the public of Jamaica.  With independence and great power come the consequence and the obligation to accept responsibility and to be transparent and accountable, this is our goal.