Llewellyn: Judges are not ‘automatons’

Director of Public Prosecutions (DPP) Paula Llewellyn has strongly rejected the judiciary’s response to her criticism of the handling of the Trade Winds Citrus pollution case, insisting that judges are not powerless observers in the courtroom.

Llewellyn was responding to a statement issued by the judiciary, which distanced a St Catherine Parish Court judge from the controversial outcome of the case. The fallout stems from a secret non-disclosure agreement (NDA) between the Government and Trade Winds, following a 2023 oil spill into the Rio Cobre. The agreement led to the case being dropped and the company acquitted.

The judiciary argued that judges have no authority to interfere once prosecutors decide to discontinue a case. However, Llewellyn pushed back, calling this a “misapprehension” by the judiciary about the authority granted under a fiat issued by her office to the National Environment and Planning Agency and the role of clerks of the court.

She argued that the judiciary’s statement, issued through the Court Administration Division, failed to address the core concerns, including the controversial use of an NDA in a criminal case.

“In my 40 years, I have never heard of a non-disclosure agreement in criminal practice. That is a civil scenario,” Llewellyn declared in an interview on Radio Jamaica’s ‘Beyond the Headlines’ on Monday. “I was listening to hear mention of this in the judiciary’s statement.”

TRANSPARENCY

While acknowledging that a judge cannot override a decision to end a case, Llewellyn emphasised that judges still have a duty to ask questions in the interest of transparency. She said judges regularly ask Crown counsel to consult with the DPP’s office when needed.

“The court cannot sit there like an automaton,” she said, noting that the court must uphold the open-justice principle, which she contended would be compromised by the use of the non-disclosure agreement, especially in the criminal matter.

Llewellyn acknowledged that while a judge cannot stop a prosecutor from ending a case, the judge can make enquiries on transparency grounds “if a judge sees something clearly [wrong]”.

“Time and time again, we have seen judges say to Crown counsel, perhaps, especially junior Crown counsel, in an involved matter, ‘Would you like some time to go and discuss the matter with the DPP or one of your seniors?’” the DPP said.

A key dispute lies in the interpretation of the fiat issued by the DPP to the National Environment and Planning Agency (NEPA), authorising it to act in prosecutions. The judiciary claimed that the fiat gave full prosecutorial discretion to NEPA’s external counsel. Llewellyn disagreed, stating that the fiat only allowed the NEPA to assist, not lead, the prosecution.

But the DPP has insisted that the view is incorrect.

“No fiat was given authorising the exclusive capability of the external counsel to prosecute,” Llewellyn explained. “The fiat only says that you can associate with the prosecution. That fiat does not give the external counsel the right to be the prosecutor in the matter.”

CONFUSION IN THE SYSTEM

She said that based on her office’s investigation, the clerk of the court “was not aware that he still would exercise supervisory control over the prosecution, not the external counsel”.

Llewellyn also highlighted confusion in the court system, where clerks of the court – who typically lead prosecutions in parish courts – report to the chief justice, not to her office. She said that the clerk in this case appeared unaware of his continuing supervisory role over the prosecution.

“We have heard that some judges, perhaps in error, or because maybe they are not aware, will send clerk of court to go elsewhere to do other things with the external counsel alone. That really should not happen,” said Llewellyn. “Nobody is perfect. And I have always believed that humility is the underbelly of success. But then, I am not just a humble prosecutor, but one who holds, what I would say, equal constitutional authority.”

Asked to whom she was referring, Llewellyn said, “I can only speak about myself, but suffice it to say that I am moved to issue a protocol to the clerk of court.”

Despite the judiciary’s stance, Llewellyn maintains her position.

“No, it changes nothing. ... This is an opinion in terms of how they see it,” she said, adding that she intends to issue a protocol to clarify the role of clerks in future prosecutions.

editorial@gleanerjm.com