Wed | Aug 23, 2017

Christie raps DPP

Published:Wednesday | June 7, 2017 | 6:47 AM

Former Contractor General Greg Christie has responded to accusations from Director of Public Prosecutions (DPP) Paula Llewellyn that he and other critics have 'mischaracterised' the several cases that were referred to her office during his tenure.

Controversy has been raging in recent weeks over criticisms that the country's chief prosecutor has been ‘weak’ on the prosecution of corruption cases and ones involving high-profile members of society.

Christie, in response to Llewellyn's statement last week, said the DPP, anti-corruption campaigner Professor Trevor Munroe and think tank Caribbean Policy Research Institute's head Dr Damien King have misrepresented reports he did while in office.

It’s the latest instalment in the acrimonious relationship between Christie and Llewellyn. Christie stepped down as Contractor General in 2012.

 

THE FULL STATEMENT:

June 2, 2017

I write with reference to your article which appears in today’s edition of the Jamaica Observer newspaper entitled: ‘Stop misleading the public, DPP tells critics – Llewellyn says 40-odd cases referred to her office are not corruption matters’.

I did not want to become embroiled in the ongoing public dispute between Capri and the Learned DPP, concerning the public claim of Capri’s Ms. Desiree Phillips that “over 40 corruption cases” have been referred to the DPP by the OCG, to date, and that none has been prosecuted’.

However, having heard Dr. Damien King of Capri on a June 1 NationWide Radio  programme attributing the statement to the OCG, and deflecting responsibility for same from Capri and Capri’s Ms. Desiree Phillips, I am compelled to set the record straight.

The Learned DPP, Ms. Paula Llewellyn, in your article, and on NationWide Radio, has also publicly accused me of mischaracterising the ‘40 referrals’ to her Office as “corruption” matters. According to her, they are “administrative” matters.

The Learned DPP, Capri, and Capri’s two representatives have been misguided. Their statements are inaccurate and misleading, and should be publicly corrected.

The pertinent facts of the matter are as follows:

1. What did the OCG say?

The OCG, in its 2009 Annual Report to the Parliament of Jamaica, reported on “over 30 formal criminal offence Referrals” that were made to the ODPP between March 8, 2008 (the date on which DPP Paula Llewellyn was appointed into office), and December 31, 2009. Contrary to the DPP’s and Capri’s claims, nowhere were these matters classified as “corruption” cases.

The verbatim extract from the OCG’s Report, which appears on page 13 of the OCG’s Report, reads as follows:

“The incumbent Director of Public Prosecutions, Ms. Paula Llewellyn, CD, QC, who succeeded Mr. Kent Pantry, was appointed into office on March 5, 2008. Since then, and up to December 31, 2009, the OCG has made over 30 formal criminal offence Referrals to the ODPP. However, as far as the OCG is aware, none of these Referrals, as at December 31, 2009, has given rise, whether directly or indirectly, to a criminal charge, arrest or prosecution.”

Please note that, contrary to Capri’s, Ms. Phillips’, Dr. King’s and the DPP’s claims, there is no reference to “40” cases, nor is there any reference to those “over 40” cases being “corruption” matters. The reference is simply to “over 30 formal criminal offence Referrals”, which they are.

On pages 14 and 15 of the Report, a breakdown of some of the ‘30 formal criminal offence Referrals’ are given.

On page 14 of the OCG’s Report, reference is made to referrals that were made by the OCG, to the DPP’, in 5 matters. These referrals followed the conclusion of formal and extensive major investigations that were undertaken by the OCG.

The 5 matters are the JUTC Investigation (Nov 2008), the Caymanas Track Limited Investigation (January 2009), the GOTEL Investigation (March 2009), the Air Jamaica London Heathrow Slots Investigation (March 2009), and the Mabey and Johnson Bridge Building Corruption Allegations Investigation (October 2009).

In all 5 matters, multiple criminal offence referrals, some including referrals that were anchored under the Perjury Act and/or the Corruption Prevention Act, were made to the DPP. Instructively, and contrary to the claims of the Learned DPP, none of the multiple criminal referrals in any of these 5 matters had anything to do with a failure by anyone to submit a quarterly contract award report to the OCG.

On page 15 of the report, reference is made to a listing of 22 OCG referrals that were made to the DPP for criminal breaches of the Contractor General Act, namely for a failure to comply with a lawful requisition of a Contractor General.

2. The DPP’s mischaracterisation of a serious criminal offence as an ‘administrative breach’

The 22 OCG referrals, noted above, are matters that were related to a failure by certain Jamaica Public Bodies to submit a quarterly contract award report to the OCG. It should be noted, however, that such a failure is a criminal offence that is punishable, under Section 29 of the Contractor General Act, by “a fine not exceeding $5,000, or to imprisonment for a term not exceeding 12 months, or to both such fine and imprisonment”.

The DPP misstates the law when she says that these are “administrative breaches”. They are, in point of fact, serious criminal offences, as they amount to a failure to comply with a lawful requisition of a State Judicial Anti-Corruption Authority that is exercising a criminal investigative function, and is en-clothed with the powers of a Judge of the Supreme Court of Jamaica.

The Parliament of Jamaica has seen it fit to classify any such failure, on the part of any person, as a criminal offence. The Learned DPP, with respect, is therefore unable to supplant the supreme authority of the Parliament of Jamaica by characterising the offence as something else.

The casual dismissal, by the DPP, regarding the criminal offence of failing to comply with a lawful requisition to provide material Government contract award information to a Judicial Authority that is exercising anti-corruption monitoring and investigative functions, is not only troubling, but it betrays the DPP’s lack of understanding of how corruption is investigated, combated and prevented.

3. What did Capri say in its paper?

I was asked by Capri to review its paper, prior to publication. I was also invited to attend the launch of the paper, as a panellist, but I was unable to do so. The following is a verbatim extract which is taken from page 12 of the Capri paper:

“In the 2009 Contractor General report, it was stated that over 30 referrals for criminal offences had been made to the DPP between the date March 05, 2008 and December 31, 2009, of which none gave rise to any criminal charge, arrest or prosecution”.

You will note that Capri’s statement, in its paper, is consistent with what was stated in the OCG’s 2009 Report to Parliament. No reference is made to “corruption” cases.

4. What did Capri say verbally?

The verbal claims that were, however, made by Capri’s Ms. Desiree Phillips and by Dr. King, and also by the Learned DPP, do not refer to “30 referrals for criminal offences”, as was stated in writing by the OCG, but to something that is entirely different – i.e. “40 corruption cases”.

It is, therefore, clear that the OCG and I have been publicly maligned. The parties concerned should be asked to provide the bases for their assertions, as those assertions are not the OCG’s, nor are they mine.

5. The context of my response 

Kindly note that my response in the forgoing regard is confined solely to the referrals that were made by the OCG to the DPP between March 8, 2008 and December 31, 2009. This is the period that is referenced in the OCG’s 2009 Report, and it is also the same period that is referenced in Capri’s Paper, a copy of which I hold.

It stands to reason that as time goes by, and as further referrals are made by the OCG to the DPP, the stated number of referrals will obviously change.

On February 17, 2011, I made the following statement in Parliament:

"Regrettably, however, and except for certain OCG criminal Referral matters which were initiated, in early 2008, before the Half Way Tree Resident Magistrates Court, by former Director of Public Prosecutions, Mr. Kent Pantry, QC, to date (i.e. February 17, 2011) of the roughly 40 OCG criminal Referrals which have since been made to the ODPP, none has been brought before the courts, by the incumbent DPP, to test its judicial efficacy."

Please note the following:

1. The statement covers a wider period (i.e. March 2008 to February 17, 2011) than the March 2008 to December 31, 2009 that was referenced in the OCG's 2009 Annual Report to Parliament, and also in the Capri Paper.

2. The statement also speaks specifically of "roughly 40 OCG criminal Referrals", as at February 17, 2011. Again, there is no reference to "40 corruption cases", as was erroneously claimed by Capri, Dr. Damien King, Ms. Desiree Phillips, and by the DPP in their public statements on NationWide Radio, and in the DPP’s statements in your article.

6. Other OCG Referrals to the DPP

Several other criminal-offence matters have been referred to the DPP, by the OCG, since December 2009. Many have included referrals for breaches of criminal laws other than Section 29 of the Contractor General Act.

At least 2 of these matters have resulted in successful criminal prosecutions and convictions – both for breaches of Section 29 of the Contractor General Act, the same breaches, incidentally, that the Learned DPP has characterised as ‘administrative breaches’ in your article.

They are (a) the matter involving the former CEO of the National Works Agency, Mr. Patrick Wong, and (b) the matter involving the former Commissioner of Customs, the Hon. Danville Walker. Both matters were referred by the OCG during my tenure as Contractor General.

7. Major matters referred by the OCG to the DPP between March 8, 2008 and December 31, 2009 whose disposition is today not publicly clear

A least one matter that was referred to the DPP by the OCG, during the period that is under consideration, and in respect of which the DPP had, in turn, formally referred same to the Commissioner of Police, appears to remain outstanding.

In March 2009, more than 8 years ago, the OCG cited Dr. Omar Davies, MP, the former Finance and Planning Minister, for improperly interfering with the sale of Air Jamaica's London Heathrow Slots.

Dr, Davies was referred to DPP Paula Llewellyn for, among other things, attempting to mislead a Contractor General in the execution of his functions, contrary to Section 29 of the Contractor General Act.

On October 30, 2009, the DPP publicly ruled that "the public interest would mandate that the matter be referred to the Commissioner of Police for further investigation in relation to the possible breach of section 29 (a) of the Contractor General Act by Dr. Davies”.

Although formal statements were taken by the Police from the OCG regarding the matter, as at when I demitted office on November 30, 2012 the outcome of the investigation was unknown. Perhaps the Learned DPP might be in a position to advise the Jamaican public as to the current status of this matter.

8. Compliance of Jamaica Public Bodies in fulfilling the Requisitions of the OCG

The Learned DPP has alluded to the high level of compliance that is currently being enjoyed by the OCG, in the form of Jamaica Public Bodies submitting their quarterly contract award (QCA) reports to the OCG.

The DPP’s allusion is ironic as the requirement on the part of Jamaica Public Bodies to submit QCA reports to the OCG was introduced by me, effective July 2006. At the outset, the compliance rate among the country’s then almost 200 Public Bodies was a mere 13%.

In an effort to secure a 100% compliance rate in the submission of the QCA reports by Public Bodies, I met, in late 2006, with the then DPP, Mr. Kent Pantry, CD, QC.

I advised DPP Pantry that I would be introducing a Zero Tolerance Policy which would see the automatic referral to him, for criminal prosecution, of the head of any Jamaica Public Body that failed to file its QCA report on time, effective with the QCA reports that were due for the last quarter of 2006. DPP Pantry, un-hesitantly, committed his full support to me and my Office.

The result of this measure, which was fully backed by DPP Pantry, brought about a dramatic change in Public Body compliance in Jamaica, such that when I demitted office in November 2012, the OCG had enjoyed 13 consecutive quarters of 100% compliance from the country’s ~200 Public Bodies, up from a rate of 13% in 2006.

The following statement, which appears on page 13 of the OCG’s 2009 Annual Report to the Jamaica Parliament, speaks instructively to the matter:

“The following are verbatim comments which are taken from an official OCG Media Release, which was issued on February 8, 2010. The Release was issued after the OCG’s rigidly enforced Zero Tolerance Policy produced an unprecedented and record 100% compliance rate for the four consecutive quarters of 2009 in respect of the submission of QCA Reports, to the OCG, by the country‟s 190+ Public Bodies.

“While the OCG wishes to recognize the demonstrated efforts of the country‟s senior Public Officials to comply with the OCG’s lawful Requisitions, the OCG nevertheless believes that there are important lessons to be learnt from the success of its Zero Tolerance Policy. The following are the comments of Contractor General, Greg Christie, regarding the matter:”

“It is an incontrovertible fact that the criminal laws of Jamaica will continue to be broken, wantonly and with impunity, unless and until those who are responsible for enforcing the law do just that”.

“The OCG’s experience also demonstrates that there is no such thing as 100% voluntary compliance with any law. There will always be transgressors who must be forced into compliance. And the way to do that is to send a strong, unequivocal and unmistakable signal that no matter who you are, what your station in life is, or how minor your transgressions may be, if you violate the criminal laws of our country, you will pay. That was the signal which was sent by the OCG’s Zero Tolerance Policy”.

“It is for this reason that the OCG wishes to place upon record its gratitude to the former DPP, Mr. Kent Pantry, CD, QC and Mr. Dirk Harrison, the then Acting Deputy DPP, without whose courage and fearlessness, the OCG‟s Zero Tolerance Policy would not have been successful”.

“It was Mr. Pantry, in February 2008, just before he demitted office, who took the unprecedented step to initiate criminal prosecution proceedings against the Accounting or Senior Accountable Officers of 17 of the Public Bodies that had failed to comply with the lawful Requisitions of the OCG. (The OCG was advised of Mr. Pantry’s decision by way of letter which was dated February 14, 2008).”

“The prosecutions were eventually marshalled in the Half Way Tree Resident Magistrate’s Court by Mr. Harrison after the incumbent DPP, Ms. Paula Llewellyn, QC, had assumed office”.

The incumbent Director of Public Prosecutions, Ms. Paula Llewellyn, CD, QC, who succeeded Mr. Kent Pantry, was appointed into office on March 5, 2008.”

9. Closing Observations

With deep respect, and solely in the public interest, I would ask Jamaica’s Learned DPP, Ms. Paula Llewellyn, to take note of the foregoing comments, and to consider the independent assessments that have been made of her Office’s performance by eminent and independent third-party external agencies. I will make reference to only two of the referenced agencies, and their comments.

In the U.S. State Department’s 2017 International Narcotics Control Strategy Report (INCSR), the following verbatim assessment of Jamaica’s corruption problem, and the performance of Jamaica’s Office of the Director of Public Prosecutions, under the leadership of DPP Paula Llewellyn, was made:

“Corruption (in Jamaica) remains entrenched, widespread, and compounded by a judicial system that has a poor record of successfully prosecuting corruption cases against high-level law enforcement and government officials”.

Interestingly, almost identical language has also been utilized by the United States Government to describe the perception of Jamaica’s corruption problem, and the performance of the ODPP, in its 2011, 2012, 2013, 2014, 2015, and 2016 INCSRs.

Finally, the Organization of American States, in its 2014 Mechanism for the Implementation of the Inter-American Convention against Corruption (MESICIC) Report on Jamaica, expressed the following concerns about Jamaica’s DPP:

“All these government bodies rely exclusively upon the DPP to carry out prosecutions of corruption and corruption-related offences. Their effectiveness can only go so far if prosecutions are not being carried out. The Committee observes that the country under review (i.e. Jamaica) should consider addressing the lack of prosecutions or actions undertaken by the Office of the DPP”.

It is instructive to note that the OAS’ assessment of Jamaica’s Office of the DPP was settled by a team of professionals from other countries, inclusive of eminent lawyers, after a thorough and independent review of the OCG’s referrals to the DPP, among others.

Very respectfully,

Greg Christie

Former Jamaica Contractor General