With general election fever, or at least its symptoms, slowly but surely gripping the Barbadian populace, we return once again to a contentious situation. We hope it will be addressed whenever either one of the two, three, or however many existing political parties there are, assumes the seat of power in Barbados.
Lord Chief Justice (Gordon) Hewart in 1924 famously noted that it was of fundamental importance that justice should not only be done but should be manifestly and undoubtedly seen to be done. It is a fundamental principle that has been verbally trumpeted since then, but sometimes conveniently eschewed by those with access to the trumpet.
If for no other reason than to make Constitutional reform, it would be ideal for any incoming Government to have a two-thirds majority in the Lower House to allow for changes to be made to the functioning of the Office of the Director of Public Prosecutions. Over the years there have been calls – some public, but most in hushed corners – for reform to this office in order that, as prescribed by the late Viscount in R v Sussex Justices, Ex parte McCarthy, that justice be “manifestly and undoubtedly seen to be done.”
Presently, if a Barbadian Prime Minister and his or her Cabinet conduct the State’s affairs to the displeasure of the electorate, the people have recourse every five years to banish them into the political wilderness. Great power has been given but it can also be taken away. And there are several other functionaries, whether legislative, executive or judicial, who can be held accountable or must at least give explanation for decisions made or actions taken, whether called to account by an Auditor General, a Public Accounts Committee, the Governor General, the Chief Justice, a Commission of Enquiry or the law courts.
But within our current judicial system, the Office of the Director of Prosecutions accounts to no one in terms of decisions he or she makes. And that cannot be the best state of affairs in any democracy if democracy and transparency are to be taken seriously.
Under Section 79 of our 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. He or she may also take over and continue any such criminal proceedings that may have been instituted by any other person or authority. The island’s DPP can also discontinue any criminal case at any juncture before judgment is given. This authority is vested in the DPP to the exclusion of any other person or authority.
This state of affairs is not unique to Barbados, though, as there are other examples of blind faith and non-existent checks and balances in this highly important and very powerful office in other Caribbean jurisdictions. In Jamaica, for example, Section 94 (6) of the Constitution confers on the office of the DPP the power where it is not subject to the direction or control of any other person or authority. But this has raised queries in the Jamaica jurisdiction as well.
Of course, we appreciate the necessity to make the office of the DPP immune to political or any other undisguised influence. And long may this autonomy be protected. But since Jesus Christ was ostensibly the last perfect human being to walk the face of the earth, there should be some mechanism instituted by Constitutional reform that makes it mandatory for a DPP to have available to the public written and/or verbal explanation when he or she discontinues a criminal case.
We will take it for granted that when criminal matters are brought before the law courts in the name of the Commissioner of Police, that this process is undertaken by trained individuals of sound mind. And it is to our knowledge that there are built-in administrative checks and balances with respect to presenting evidence with probative value for consideration by the higher powers-that-be.
Thus, when matters are discontinued without explanation, and without obvious cause to those in the legal profession, as well as to the average, untrained citizen, questions will of necessity be asked. In such circumstances, much disquiet would be averted if the Office of the DPP were duty-bound to give reasons for his or her course of action. This does not presently obtain. There have been cases over the years that have been discontinued without explanation and this is not in keeping with that principle that echoes back to the early part of the 20th century.
And, of course, the victims of crime should be taken into the equation. We can often be extremely blasé about these issues when they do not directly affect us or our immediate kin. But if the sufferer of a rape, robbery or fraud, or the family of a murdered victim, discovers that the perpetrator has been freed as a result of a discontinuation and there has been no trial, true justice within any democracy would suggest that he or she deserves to be at least given an explanation.