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Editorial: The DPP’s call: to prosecute or not

Published:Saturday | March 26, 2016 | 12:00 AM
DPP Paula Llewellyn

Another decision by Director of Public Prosecution (DPP) Paula Llewellyn has fuelled new questions about the prosecutorial discretion of that office.

It has been reported that the Office of the DPP entered a nolle prosequi in the fraud case involving prominent city attorney-at-law Peter Milligen and Dr Dane Levy because Ms Llewellyn apparently had concerns about the fingerprint evidence adduced in their case alleging forgery of a will.

More than that, this action by the DPP amounts to an admission that the investigations were not properly done, or worse, that someone acted improperly in this case.

As we understand it, handwriting evidence is the crux of a forgery case. It means that the prosecution ought to be satisfied with that evidence before charging an individual with forgery. It cannot be justice to arrest first and then go searching for evidence which is believed to be lurking somewhere.

Neither man was said to pose any threat to public safety, so what was the hurry in rushing to make an arrest on shaky evidence? The easy answer maybe that the DPP's task is to prove that every accused person is guilty.



Prosecutors are expected to exercise discretion by assessing the cases that are presented to them by the police and making a call whether or not to prosecute. Sadly, this is not the first of Miss Llewellyn's decisions to cause public examination of the investigative ability and prosecutorial discretion that reside in the DPP's office.

Indeed, public quarrels have broken out between the DPP and her colleagues at INDECOM and the Office of the Contractor General over her prosecutorial judgement in several high-profile cases since her 2008 appointment.

For example, she stoutly resisted the contractor general's suggestion that a local official in Hanover be charged with corruption, only to reverse that decision months later. Was her initial reaction taken to demonstrate that she was not weak, but tough and confident? One will never know the answer, because there is a lack of transparency in some decisions taken by the DPP's office.

The General Legal Council sits in judgment of its members who operate in the private Bar to ensure there is professional integrity and competence; the DPP has no such watchdog, even though all members of the Bar are essentially governed by the same standards. For legal-reform advocates, it is time for our legislators to rethink the enormous power of the DPP that goes largely unchecked.

One of the intriguing aspects of the case involving Mr Milligen and Dr Levy is whether independent handwriting experts had been used to challenge the State's findings. This was not reported. However, if that is what happened, this case could be used to demonstrate a broader truth in the eyes of those who are sceptical about the justice system: money and resources can provide justice.

Persons before the court who have no resources to access expertise may suffer the wrong outcome with devastating results for them and their families. The role of the DPP is to secure the convictions of guilty people, but there is a larger role of this high office to serve the cause of justice in the country.

For good or ill, it is the prosecutor who determines who is charged for an offence. The only good thing in this case is that the trial ended before it started.