DPP had better watch her mouth

Donovan Walker, Guest Columnist

The comments attributed to Paula Llewellyn, the director of public prosecutions (DPP), as reported in the editorial of The Gleaner dated March 26, 2014 and captioned 'Resisting temptation', if, in fact, those reports are accurate, are quite unfortunate.

Coming on the heels of the decision of Resident Magistrate (RM) Judith Pusey that Kern Spencer and Coleen Wright have no case to answer and dismissing the case against them, the DPP is reported as making several and repeated public comments that there was an "abundance of evidence" against Spencer and Wright and in the circumstances, "justice was not served". Further, after the ruling the DPP, while stating that her office respects the ruling of RM Pusey, goes on to remark that she disagrees with that ruling.

Under Section 94(3) of the Constitution of Jamaica, the DPP is vested with the power (inter alia) "... to institute and undertake criminal proceedings against any person before any court other than a court-martial in respect of any offence against the law of Jamaica ...". Further, the rule of law presumes that an accused person is innocent unless and until proven guilty. Where guilt has not been proven, that person cannot be retried for the same offence and the prosecution enjoys no right of appeal in Jamaica.

OVERZEALOUS DPP?

While the DPP is constitutionally charged to undertake such public prosecutions, and we expect in the discharge of such duty the DPP will be robust, thorough and fair, she must be mindful of her own conduct and remarks lest she appear to become overzealous, unduly prejudicial, and lacking in objectivity, and it be presumed that she is bringing the justice system into disrepute.

In other words, it is to be expected that the DPP will exercise her powers responsibly, dispassionately and in a circumspect manner.

PROSECUTE, NOT PERSECUTE

We certainly agree with the Gleaner editorial that as regards the media and the public there is an "... absolute right of individuals to disagree with the decisions of the courts and to question the application of the law by the judiciary, once such debates are not contemptuous of the court ...". However, we cannot agree that in the public discharge of that office the DPP should make utterances and remarks that, while not reaching to a standard that can be regarded as contemptuous, may serve to or have the ultimate effect of undermining the justice system and rule of law. We must comment adversely on the DPP's post-acquittal remarks (particularly in the absence of any allegation of an irregular or perverse ruling from the bench). We remind the DPP that the office must be seen to prosecute, not persecute.

When the immense power and resources of the state brings criminal charges against a citizen (as in this case, is the DPP's constitutional right) and once our system of justice has spoken, in this case with the upholding of a no-case submission by the learned resident magistrate, the case is at an end. The citizen has a right to be released and get on with his or her life.

STERN REMINDER

When the DPP continues, after the ruling to 'free' a citizen, to comment publicly and consistently, we are compelled to remind the DPP of her constitutional charge set out in Section 94, as well as the Standards of Professional Responsibility and statement of the essential duties and rights of prosecutors as published by the International Association of Prosecutors, where, at Section 3, it is stated that "... Prosecutors shall perform their duties without fear, favour or prejudice. In particular, they shall carry out their functions impartially, remain unaffected by individual or sectional interests and public or media pressures, and shall have regard only to the public interest ...".

We find her post-acquittal pronouncements to be unfortunate, requiring clarification.

As always, the Jamaican Bar Association is prepared to work with the DPP and all stakeholders in the justice system to examine and implement urgently needed reforms at all levels to improve the timely delivery of justice, to include, if necessary, changes in the DPP's office and functions (whether legislative, administrative and systemic), and we remain ever committed to such tasks.

Donovan Walker is president of the Jamaican Bar Association. Email feedback to columns@gleanerjm.com and dcwalker@hmf.com.jm.