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Private citizens can initiate criminal prosecutions without fiat from DPP - AG's Chambers

Published:Monday | November 30, 2015 | 12:00 AMEdmond Campbell

THE ATTORNEY General's Chambers has seemingly sided with Commissioner of the Independent Commission of Investigations (INDECOM) Terrence Williams in concluding that a private citizen has the right to institute criminal proceedings without a fiat from the director of public prosecutions (DPP).

"The proffering of an indictment is the sole prerogative of the prosecuting authorities, and persons who undertake private prosecutions must get the consent of the DPP. This is usually done by the DPP issuing a fiat, which allows such person to actively associate himself or herself with the prosecution. The ODPP will then determine the degree of association," read a statement on the website of the Office of the Director of Public Prosecutions (ODPP).

During recent deliberations of a parliamentary committee on reports from the Commissions of Parliament, including the Independent Commission of Investigations, committee member Gregory Mair said that in light of the attorney general's opinion, the statement on the website of the ODPP was "misleading. So the Office of the Director of Public Prosecutions must correct what they put on their website," Mair charged.

Legislative counsel Camika Facey said the attorney general's opinion, which was sought by the committee, indicated that a private citizen could initiate criminal proceedings without getting the go-ahead from the DPP.


A law-reform matter


In its legal advice to the committee, the Attorney General's Chambers said the concerns raised by the commissioner of INDECOM regarding the fettering of the power of the individual to initiate a criminal prosecution underscored the point that this is a law-reform matter that needs to be addressed very carefully.

"It is apparent that notwithstanding the clear dictates of the Constitution as well as that of the justice of the peace jurisdiction and the Criminal Justice Administration Act, there are concerns regarding the processes that are involved to ensure that a private individual can initiate a criminal proceeding with little difficulty," the AG's Chambers stated.

In its report to Parliament into the fatal shooting of Robert Hill, otherwise known as 'Kentucky Kid', Commissioner of INDECOM Terrence Williams submitted as one of his recommendations that the "private right to institute and conduct criminal proceedings independent of the DPP, but subject to the DPP's constitutional right to intervene, be fully recognised in statute".

Members of the committee suggested that the Attorney General's Chambers and the Ministry of Justice encourage the ODPP to adjust the statement on its website.

However, the legislative counsel said that the Attorney General's Chambers and the Ministry of Justice could not dictate to the ODPP to amend the information on its website.

"I don't think that the Ministry of Justice or the AG's Chambers can tell the DPP to do that," said Facey, noting that "the DPP is a constitutional creature and is very independent".


Information should be corrected


However, committee member Senator Wensworth Skeffery argued that notwithstanding the independence of the DPP, the information should be corrected.

"The Parliament is supreme, and this is a committee of Parliament, so we are recommending that the information be clarified to reflect the accuracy as it ought to be in law," Skeffery said.

Facey acknowledged that a private citizen had the right to initiate criminal prosecutions, adding that the usual way of doing this is to ask for a fiat from the DPP. However, it appears that this is not necessary.

Describing the current situation as a conundrum, committee member Fitz Jackson said that on the one hand, private individuals have the right to initiate criminal proceedings while, on the other hand, the DPP has the constitutional provision to terminate such proceedings. This, he said, would deny the right that the private citizen has.

"That is what we should be acknowledging in the report and put it to the House for further consideration and exploration to resolve that in a definitive way."