Floyd Green, others could still be charged – Wildman

Reinstated government minister Floyd Green and other public officials cleared by the director of public prosecutions (DPP) could still be charged at common law as aiders and abettors, if it can be proved that they participated in the commission of an offence.

That is the view of noted attorney-at-law Hugh Wildman, who emphasised that Green and others could be held accountable beyond the Disaster Risk Management Act (DRMA), which governs coronavirus safety and health protocols.

DPP Paula Llewellyn recommended in January that there should be no charges against Green, Mona division Councillor Andrew Bellamy or other no-movement day partygoers at the R Hotel in St Andrew in September.

An August 11, 2021, amendment to a DRMA order removed the requirement for exempted people like government officials to only move on lockdown days in the course of their duties.

Llewellyn said that prosecution may be initiated against the hotel.

Wildman, however, disagrees with the DPP’s conclusions.

“The notion that has been articulated by the Office of the Director of Public Prosecutions that because a statute says that a person cannot be charged with an offence, or prohibits persons in certain categories from being charged with an offence, does not affect the operation of the common law and which has been codified by Section 34 of the Criminal Justice Administration Act,” Wildman told The Gleaner.

Section 34 states that whosoever shall become an accessory before the fact to any felony, whether at common law or by virtue of statute, may be indicted, tried, and convicted.

“A classic example is that, at common law, a woman cannot be charged with committing rape. However, if a woman aids and abets a man to commit the offence of rape, she can be charged, tried, and convicted as an aider and abettor, and can likely be punished as the man who committed the rape,” the attorney said.

Wildman pointed out that that principle was borne out in the 1975 England case of Cogan and Leak v the Crown. He said, in that case, Leak, the husband, encouraged his friend, Cogan, to have sexual intercourse with his wife in his presence.

Cogan was convicted of rape while Leak was convicted of aiding and abetting rape.

On appeal, Cogan was freed but Leak’s conviction was upheld.

Wildman said the appellate court found that the judge did not properly direct the jury on mens rea of rape in relation to Cogan that he honestly believed that Mrs Leak was consenting, based on what Leak had said to him.

“The point is that, although Leak could not be charged with raping his wife because of the common law at the time, he was, however, convicted of aiding and abetting the rape of his wife,” Wildman argued.

He said that same principle has been captured under Section 34 of the Criminal Justice Administration Act.

“It, therefore, follows that it is inaccurate and misleading for the Office of the Director of Public Prosecutions to say to the public that, because someone cannot be charged as a principal for an offence under a statute, then that was the end of the matter,” Wildman said.

Barbara Gayle