EDITORIAL - Astonishing, Ms Llewellyn
Paula Llewellyn, the director of public prosecutions (DPP), has made a revelation that ought to be of grave concern to Jamaican citizens who believe they enjoy protection from malicious or whimsical prosecution by private interests and from dangers these may pose to their liberty.
It has to with the debate that has emerged, in the aftermath of the ATL pension fund case, over the DPP's granting of consent for the private prosecution in a criminal matter -
In explaining her approach, Ms Llewellyn told this newspaper that her usual procedure on receiving applications for such fiats is to ask for the file of the case, presumably to review the allegations and determine whether the evidence meets the standards that make a credible case in the judicial process.
That bar, at least when applied to prosecutors in Ms Llewellyn's office, is high, judging from their published protocol, which says:
"When considering the institution of criminal proceedings, the first question to be determined is the sufficiency of 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 that they do not allow a prosecution to commence or continue if to do so would be seen ... oppressive or unfair so as to amount to an abuse of the process of the court as a matter of law."
Yet, there is this stunning admission by the DPP, as reported by this newspaper:
"If (the applicant) is an attorney who I know has a history of being a former prosecutor, or a senior attorney, who has the experience to prosecute the matter, although it is a high public-interest matter, and it is a complex matter, then after having the allegation outlined to me by letter, I will grant the fiat."
In other words, there is no requirement for that attorney, in pursuing the interest of a private client, in a matter which the State's law-enforcement agency has investigated, to convince the state prosecutor that the evidence to be adduced is "sustainable and reliable" and the prosecution would not be "oppressive or unfair".
That, to this newspaper, represents a dangerous lowering of the bar, which has been brought to the public's attention, given the allegations of the conduct of the investigation of the ATL pension fund case, in which three persons of previously unimpeachable reputation spent three years before the courts, without the prosecution making a case for them to answer.
It was argued in that trial that the complainant financed the foreign trip of a police investigator to interview a forensic expert witness, whose work was also paid for by the complainant; that the investigator in the case bypassed the specialised fraud division of the constabulary; and that the search and the removal of property from the home of the accused persons was, on the face of it, irregular.
Drawing attention to the fact that one of the defence lawyers on this case may have in the past received a prosecutorial fiat is a red herring. A potential for abuse has now been highlighted. It ought to be addressed.
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