In the 1924 judgment of R v Sussex Justices, Ex parte McCarthy, Lord Chief Justice Hewart made a pronouncement that has become a sacred part of judicial practice. He said: “It is not merely of some importance, but of fundamental importance that justice should not only be done, but should be manifestly and undoubtedly seen to be done.”
And when the eminent legal luminary spoke, it was understood that his articulation of the appearance of justice being done had to be patently within the perception of both plaintiff and defendant.
Perhaps the true test of democracy is the recourse to justice that the ordinary citizen has. Much of that democracy surely must rest on the checks and balances that are enshrined in a country’s Constitution and its wider laws. Where laws confer powers on individuals that cannot be reviewed, recalled or referred to another authority, then it is time for our lawmakers to take fresh guard.
In Barbados, we have a situation where if the ordinary citizen is dissatisfied with a decision made at the Magistrates’ Court, review can be sought at the High Court, Court of Appeal, Caribbean Court of Justice, and for some still, the British Privy Council.
There are people in high authority for whom there are checks and balances, if citizens have fault with the service they render. The Police Service Commission has shown evidence of this with the removal of a Commissioner of Police. A former director of the Coastal Zone Management Unit has been removed because the inherent checks and balances in our public administration systems allowed it.
Every five years, if our citizens are dissatisfied with their political directorate, our democracy allows for a peaceful removal of a government from office.
But the recent lamentation of an ordinary citizen, Jacqueline Proverbs, brings into focus another office and the power it possesses without seeming possibility of review –– the office of the Director of Public Prosecutions (DPP).
We cast no aspersions on the integrity of that office or its officers past, present or future, nor do we advocate any removal from office. But within the context of Miss Proverbs’ complaint of having a case dismissed without explanation and, more importantly, within the context of Lord Chief Justice Hewart’s landmark judgment, perhaps it is time for a constitutional review of the powers of the office of the DPP.
Of course, it is critically important, as presently exists, that the office of the DPP remains free of political or other interference. But the independence of the DPP’s office should not only be a testimony to Barbados’ separation of powers; there should be an equal measure of documented accountability to ensure the confidence of all residing in
As presently obtains under Section 79 of The Barbados Constitution, the DPP has the authority to institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offence against the Laws Of Barbados; to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority. These powers are vested in the DPP to the exclusion of any other person or authority.
The Attorney General may, in the case of any offence to which this section applies, give general or special directions to the DPP as to the exercise of the powers conferred upon him or her by Section 79, and the DPP shall act in accordance with those directions. However, at the end of the day, the DPP reaches his or her decisions on the basis of independent judgment.
Though the Privy Council judgment in the case of Jeewan Mohit v DPP 2005 PRV 31, makes the decisions of a DPP reviewable, under Barbados’ laws there is no legal obligation on the DPP to give reasons for the discontinuation of a case. If he or she gives a reason, there are no rules dictating the form or content by which any explanation should be given.
The DPP has full autonomy in deciding whether reasons for his decision should be given and, if they are given, how explanatory they should be. We suggest this is an area of the Constitution that the office of the Attorney General needs to review in the interest of transparency, justice and as part of Lord Chief Justice Hewart’s timeless echo.
Of course, Constitutional amendments cannot be made without a two-thirds Government majority. But discussion on this part of our laws, would be a healthy exercise even at this stage.
We do not advocate a diminution of the powers of the DPP, but as part of the strengthening of our democratic processes, and in the interest of transparency and accountability, we suggest that unilateral decisions by the competent office of the DPP to discontinue prosecution of cases brought by the competent office of the Commissioner of Police, be accompanied by written explanation to the law courts at the time of discontinuation and, through the media, those reasons be made a matter of public record.
We have had questions raised about previous discontinuations, and for the likes of Jacqueline Proverbs, whose matter unlike some others, has only had a gestation period of fewer than nine months, such explanation would give birth to greater trust in our judicial system.