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EDITORIAL - Refine protocol for private prosecutions

Published:Friday | June 6, 2014 | 12:00 AM

Paula Llewellyn is given to asserting her commitment to the doctrine of fairness and the prevention of prosecutorial overreach in the conduct of her job as the country's chief criminal prosecutor.

But Ms Llewellyn has not only verbalised these ideas; she has committed them to a protocol for use by the Office of the Director of Public Prosecutions (ODPP) in determining whether a case should be brought, or sustained, before the courts.

That document says: "When considering the institution of criminal proceeding, the first question to be determined is the sufficiency of the evidence. A prosecution should not commence unless there is admissible, sustainable and reliable evidence that a criminal offence ... has been committed by an identifiable person. This decision requires evaluation of how strong the case is likely to be when presented at trial.

"Prosecutors must ensure they do not allow a prosecution to commence or continue if to do so would be seen ... as oppressive or unfair so as to amount to an abuse of the process of the court as a matter of law."

Against that backdrop, Ms Llewellyn will likely find no offence, but rather welcome the debate that has emerged in the aftermath of the ATL pension fund case over how she awards fiats for the private prosecution of cases and what ought to be the role of the DPP during the progress of such cases.

In that case, three persons of previously impeccable reputations were arrested and accused of fraud and forgery. This week, after three years, a magistrate held that the prosecution had not produced evidence of quality to cause the accused persons to mount a defence. She upheld a no-case submission.

This, of itself, does not call into question the potential efficacy of private prosecutions or vindicate the suggestion of Frank Phipps, one of the defence lawyers in the case, that the prosecution was wanton and malicious and that, perhaps, the system is broken. But he, and others, have raised sufficiently compelling arguments for us to support the call for an investigation of alleged procedural abuse and a review of how the system operates.


For instance, there is the claim that the complainant in the case, who paid for the prosecuting attorneys, also funded a trip abroad by police investigators to gather evidence from a forensic expert also contracted by the complainant. There were allegations, too, that the manner of the search of the homes and the arrest of accused persons was irregular, as was the broader investigation of the case.

The implication, therefore, is that the prosecution of the accused persons was unfair and oppressive, representing an abuse of the process of the court and the compromising of law enforcement.

Notwithstanding Ms Llewellyn's argument of the right of the defence lawyers "to bring anything to my attention", her office appeared to pay no attention to the case once it started. If that was indeed so, the DPP would have been in no position, at any point, to determine the integrity of proceedings and should, therefore, halt the case.

It is worth noting that section of the prosecutor's protocol dealing with private prosecutions is the least substantial or substantive of the document. In the face of recent events, it may be worth a revisit. After all, yielding prosecutorial fiat imposes a greater burden of responsibility, oversight, and cogency of evidence.

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