Tue | Oct 17, 2017

A lesson in law for Gordon Robinson

Published:Friday | May 22, 2015 | 12:00 AM
Llewellyn

I note the article by columnist Gordon Robinson ('If DPP could only understand herself', Sunday Gleaner, May 17), outlining commentary and dissection of the media release prepared by my office in respect of a referral from the Office of the Contractor General (OCG) concerning Shernet Haughton, former mayor of Lucea and chairman of the Hanover Parish Council.

For clarity, the public deserves to read the entire media release of April 23, 2015 rather than the subjective interpretation of pieces of it by Mr Robinson, who, though he may have attained a certain level of distinction as a civil law practitioner, to my certain knowledge, is not possessed of any significant prosecutorial experience. (See entire media release at www.dpp.gov.jm.)

It was, therefore, unfortunate that Mr Robinson seemed unable to make a clear distinction between the dictionary definition of corruption and its legal definition as an offence with ingredients that have to be proved beyond a reasonable doubt as a matter of law.

The tenor of his comments would suggest that the DPP should have relied on speculation in the absence of any evidence of Ms Haughton receiving any benefit from her recommendation of awards of contracts to her relatives (after all, that evidence would have to come from statements given by her relatives and there was no such material).

Furthermore, there was no evidence that these awards, when granted by the parish council, were not properly executed by these awardees. In law, speculation cannot be a substitute for any hard evidentiary material and cannot be the basis of a viable prosecution. The court will not allow it, and it is unethical for a prosecutor to proceed to mount a case where there is insufficient evidentiary material to prove the charge.

It is even more unethical for a prosecutor to mount a case where the offence does not exist in law. One cannot confuse a subjective feeling about the conduct of a suspect with the objective assessment of the matter based on law.

I will always be humbled by the awesome responsibility of my remit as DPP provided by Section 94 of the Constitution and I understand that with an objective appreciation of the law, legal issues and the available evidentiary material must never be coloured by ego, sympathy, prejudice or an indulgence in personalities, theatrics or narrow interests.

The execution of my functions at all times must be governed by an objective, legally informed assessment of the issues and a need to respond to the public clamour for accountability and transparency, which is why I always seek to give reasons for my rulings, where appropriate. If anyone disagrees with that ruling/opinion/recommendation, including the referring entity (in this case the OCG), it is always open for that entity to prefer a private prosecution.

But if that matter comes before the court pursuant to a private prosecution and the defence is able to rubbish the charge because there is no such offence or the legal elements are not satisfied given the circumstances of the case, it will leave the person bringing the prosecution open to being successfully sued for malicious prosecution once the court has thrown out the matter.

 

an uninformed opinion?

 

I will always respect the right of any member of the public to their opinion, be it informed or uninformed, but I would hope that anyone interested in fairness and presenting a balanced view in the discussion of these issues would be persuaded that the public would benefit from perusing my media release in its entirety.

After an examination of the circumstances of the matter when juxtaposed with possible offences, such as breach of the Corruption Prevention Act, misconduct in public office and conspiracy to defraud, though I concluded that the ingredients of these offences were not made out given the available material, I nonetheless found as outlined in my media release that:

"In the present scenario involving Ms Haughton's conduct and her recommendation for the award of these contracts to 11 family members and other connected persons, this was nepotism of its most egregious given the fact that she was serving in high public office. However, be that as it may, there is no law which criminalises nepotism of this kind and character without more (meaning any other evidence which, along with the nepotism, points to an offence known to the criminal law)."

Thereafter, I recommended an increase in the fine of $1,000 for any award whether under or over $500,000 that is in breach of the Public Sector Procurement Regulations and for the structures in the parish council pertaining to the award of contracts to be made more transparent and accountable and endorsed the recommendations of the OCG to this end.

- Paula Llewellyn, QC, is director of public prosecutions. Email feedback to columns@gleanerjm.com.