Sun | Sep 24, 2017

Matondo Mukulu: DPP – time for a rethink?

Published:Sunday | March 20, 2016 | 3:00 AM
DPP Paula Llewellyn (right) has a tete-a-tete with Public Defender Arlene Harrison Henry on January 16, 2015.
Matondo Mukulu
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The Constitutional post of the director of public prosecutions (DPP) has been placed in the media most recently because of a decision that the DPP took to withdraw a prosecution, before the defence could make a no-case submission.

This decision has caused many to call into question the nature of that role as constituted under Section 94 of the Jamaican Constitution.

At times, I am forced to ponder whether the attacks made are aimed at the present occupant as opposed to being influenced by a genuine desire to alter, for the good of the nation, the original construction, to reflect some of the lessons that we have learned since 1962. While the recently publicised decision offers us a suitable context, we should stay clear of personal attacks. The powers conferred on the DPP within our constitutional construct is set out at Section 94(3) and it is be noted that Section 94(6) does make it clear that in the exercise of the conferred powers, the DPP shall not be subject to the control and/or direction of any other person. Such a provision does insulate, within a politically divisive society such as Jamaica, a most crucial office from the changing objectives of politicians and I have never had the privilege of speaking to a single person who does not agree with the rationale behind such insulation.

The second manner in which the Constitution insulates the officer holder is to be found at Section 96 where the DPP is given complete tenure until she attains the age of 60. This is subject to the provisions at Section 96, which sets out a governor general-led mechanism that can be utilised to remove the DPP on the basis of an inability to perform the function, or misbehaviour. The process of removing the office holder is quite similar to that which can be used to remove the public defender, the contractor general and the political ombudsman. I am not surprised by this elaborate system, as the issue of removing the DPP must never be left to be decided upon by politicians, as their objectives (which are rarely not political) are seldom at one with those of an officer holder, who does not have to please a constituency (national or local).

We turn our attention to the most recent decision by the DPP to withdraw a prosecution at what some would call the eleventh hour. In that, a decision might have been taken to initiate a prosecution but the decision to continue must be influenced, as any able prosecutor knows, by other factors, one of which is whether a witness’ proposed evidence still remains credible. If the circumstance does change, the DPP is obliged to allow that to influence her decision at the earliest opportunity having regard to the public’s interest, which must include the costs of continuing with a prosecution.

The power of discontinuation/withdrawal is conferred by Section 4 of the Criminal Justice (Administration) Act, which, in effect, serves to augment the provisions of Section 94 of the Constitution. We had a discontinuation in the Bicknell trial (charged under the Prevention of Corruption Act), but in the most recent case that caught the public’s attention, defence-minded counsel have maintained that the DPP’s act (which is legal) was done in a manner that robbed the defence during the trial of making a nocase submission to the court, which, had it been accepted by the court, would have produced a direction to the jury that it must acquit the defendant.

By withdrawing its case before the defence had the opportunity to make a no-case submission, the DPP can, in effect, restart the process/prosecution, as the court did not make a final decision. This, the defence says, though not unlawful, is an abuse of the DPP’s constitutional power, as the double jeopardy rule has been avoided.

EXERCISING POWER

The exercise of power conferred on any public body or individual must be done in a manner that is fair and rational. In the context of the provisions of our Constitution, the only way that one can, or will, know the factors that influenced the DPP’s decision is if a decision is taken by the DPP to furnish the public with her reasons.

The furnishing of reasons/explanation is something that the current DPP (breaking with the former practice of her predecessors) has done previously, but still remains a matter on which she has exclusive autonomy in accordance with Section 94. In essence, no one can compel her to furnish a reason for a decision. This is where, in my view, there needs to be change.

In that, the only challenge that a person can bring to a decision of the DPP is that of a judicialreview application in the Supreme Court. However, with the absence of an obligation to furnish reasons, a challenge is almost bound to fail, as you cannot critique what you have not seen or heard explained. There are those who say that it should remain that way, as it ensures that the DPP is free to make a decision without consideration of how her decision affects a specific group.

AMEND 

The first response to such an argument is that the business of decision making by public officers has experienced a revolution. Second, the current DPP, mindful of the changing expectations, has produced reasons in the past, and one suspects that she feels fortified in her decision making, as she is guided by a published prosecutorial protocol against which her decisions can be assessed.

Though it might be tempting to call for a radical proposal making it mandatory for the DPP to furnish reasons in all cases where there is a decision to withdraw a prosecution, I think that would be undermining to the intent of the framers of the Constitution. Beyond that, it would be increasing the workload of the prosecutors in a department that is notorious for its staff shortages.

However, what I would suggest is that there should be an amendment to Section 4 of the Criminal Justice (Administration) Act requiring the DPP to furnish written reasons when a decision is taken to withdraw a prosecution, if the defendant makes a written request for reasons, having identified in his/her request whether a preliminary view has been formed that the decision was an irrational one.

The administrative costs associated with furnishing the reasons should be borne by the requesting party, with a statutory obligation placed on the DPP to make the reasons available within 21 days of the request. The second statutory instance when reasons should be given is a case in which there is significant public (not popular) interest, and one in which a serious constitutional right is engaged, with a written request being made by the defendant and the public defender.

This raises issues as to whether we will be placing fetters on the powers of the DPP, but that is an anaemic argument, as requesting reasons in no way preclude the DPP from using her power and it adds transparency to the exercise of a power that has the potential to impact on the liberty of any Jamaican who comes into contact with its use.

TENURE

Finally, there is the question of tenure to be considered, as there are those of us who have formed the view that there is a need to rethink this ‘job for life’ that has been conferred by the Constitution on the DPP. The Contractor General Act, at Section 6, offers us a useful template, as our contractor general is appointed for an initial period of seven years, with renewal subject to the decision of the governor general, that renewal limited to a period of five years, though this can continue until the person attains the age of 70.

This method of striking a balance between insulation from the vagaries of a change of political administration and the need to ensure that non-performers are removed is worth applying to the Office of the DPP, as in 2016 and beyond, the idea of having a single person serving as DPP for periods of more than 12 years runs contrary to our modern-day idea of institutional renewal.

It is time for a rethink, and who better to lead that process than the first female DPP?

- Matondo K. Mukulu is a practising public law barrister and attorney, and is a former acting public defender. Email feedback to columns@gleanerjm.com and matondo_mukulu @yahoo.co.uk.