DPP has power to withdraw private criminal prosecution, need not give reason
May 11, 2002
Letters on governance
Mr. Gordon Forte in his letter (4/5/02) asked the question: "Can the DPP withdraw criminal proceedings? Your editor's note responded to the question including the information on the Coroners Act and the Director of Public Prosecutions (DPP).
I believe, however, that Mr. Forte would also be interested in a short history of the Department of the DPP and the functions of his office as provided in Article 187 of the Constitution.
In 1879 the office of the DPP was created in the English Legal System to ensure that important criminal legal matters are dealt with consistently and effectively; the department was charged with the responsibility of advising the chief constables about criminal legal matters; this officer had to be a barrister or solicitor with 10 years standing at the English bar; the department was staffed by lawyers to assist him; he also had the authority to retain counsel and solicitor to represent him in court. The DPP not being a politician was under the authority of the Attorney General (AG) and was answerable to him; the AG therefore was charged with the responsibility to report to Parliament for the work of the DPP's office.
The DPP was the officer responsible for representing the Crown in criminal appeals to the Court of Appeal (CA) and the House of Lords (HL); he advises the prosecution in murder cases and in other important and difficult cases, e.g. poison cases.
In the English Legal System, it was the duty of the DPP to institute, undertake or carry on such criminal proceedings and to give advice and assistance to the police, clerk of the Justices of the Peace (JP) which was the original name for Magistrates, and other persons concerned in any criminal proceedings.
In practice the DPP was required to prosecute cases of great gravity and complexity, e.g. murder and crimes of interference with the judicial process, e.g. perjury.
The police in respect of certain offences are required to inform the DPP whenever there appears to be a prima facie case for prosecution. In addition, certain offences created by statute must be prosecuted by the DPP., e.g sexual offences. If the police fail to obtain the consent of the DPP, called a 'Fiat', (meaning let justice be done) any subsequent trial is a nullity - R. v. Angel (1968) 2 ALL E.R. 607.' (1968) 1 WLR 669.
Whenever the DPP wishes to stop any criminal proceedings, whether private or public, all he has to do is to take over the prosecution and offer no evidence. This is one way the DPP can grant immunity from criminal prosecution to a criminal informer, in return for the informer's evidence, in other cases he can and will intervene in any private prosecution e.g. the private criminal prosecution brought by Eusi Kwayana. The Courts have no power to interfere with the exercise of the DPP's decision unless, perhaps, it can be shown that his decision is one that could not honestly and reasonably have been arrived at: see Turner v. Director of Public Prosecutions (1978) 68 Cr. App. Rep. (1988) Raymond v. A. G. (1982) Q.B 839; (1982) 2 All E. R. 487.
In the case of Gladys Tappin v. Francis Lucas, reported in (1973) G.L.R. at p. 384 Tappin's Son was shot by the respondent Lucas who was a policeman, during an incident in which her son and another person was alleged to have committed robbery with violence; the son died as a result of the gun-shot wounds. A coroner's inquest was held and the jury found no one criminally responsible for the son's death. The appellant then filed an information in which she alleged that Lucas had murdered her son. The matter came before a magistrate, the magistrate read a letter in open court purporting to have been signed by the DDP in which it was stated that he had discontinued the proceedings brought by Gladys Tappin by virtue of Article 47 (1) of the Constitution, and discharged Lucas.
Gladys Tappin appealed against the discharge to the Full Court and then to the Court of Appeal. The late S. E. Brotherson was for Gladys Tappin and Dr. Shahabbuddeen, S.C. amicus curiae appeared for the respondent Lucas. The appeal was argued for 3 days; the Court of Appeal comprised Luckhoo, C, Bollers, C.J. and Persaud J. A.
At the hearing Mr. Brotherson made certain submissions, viz:
(1) Whether the letter of the DPP to the magistrate constituted a proper mode of exercising his powers of discontinuance of criminal proceedings under art. 47 of the Constitution of Guyana.
(2) Whether it was not necessary first for the DPP to take over the proceedings himself before purporting to discontinue them.
The Court after giving a history of the creation of the DPP held:
(i) The submission to the magistrate of a letter signed by the DPP was sufficient to comply with the Constitution which empowers him to discontinue any criminal proceedings, and that he need not appear in person to do so;
(ii) The DPP has the power to take over and discontinue criminal proceedings instituted by any person in authority, and to discontinue such proceedings at any stage before judgment is delivered.
The decision of the full court was affirmed.
The court in its decision said:
"...Under the Constitution he is not required to give any reasons for his decision, nor is he required to hear any representations made to him by a person who has instituted a private prosecution...."