The right to private prosecution

“If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected – those, precisely, who need the law’s protection most! – and listens to their testimony.” James Baldwin

This is a true story, with names changed to protect privacy.

Cuthbert Jones is a Jamaican who has lived most of his life in England. Some years ago, he decided to vacation in his homeland. As he tells the story, he was enjoying fried fish and steamed bammy, on a sandy beach when a man – call him Al – rudely and unjustifiably assaulted him. To the police station he went.

Whilst Cuthbert was giving his report at the station, Al traipsed in. It turned out that Al was a police officer. On this discovery, the officer receiving the report advised Cuthbert that: “You cannot bring a case against a police unless DPP say so!” To add insult to impunity, Al caused Cuthbert to be charged with assaulting him! Cuthbert was bailed to attend court.

Cuthbert went to the court’s office intent on having Al charged, but the staff confirmed that Al could not be charged without the Director of Public Prosecutions’ (DPP) permission. He says he was advised to plead guilty and pay a fine so that he could return to the United Kingdom. That is what he did. Cuthbert was gobsmacked; Al was irie.

On the flight home, Cuthbert could not enjoy the inflight entertainment as he pondered on justice in Jamaica. An ordinary person cannot bring a case against the police, but the police are free to bring one against you? Were the police subject to a different law? He knew that in England he could bring a criminal case against a policeman, a pastor, a politician, or a pauper. Was Jamaica so different?

Jamaica is not different

But Jamaica is not different. Jamaica was captured by the English in 1655. In 1662, the second governor, Lord Windsor, brought with him a royal proclamation granting the same rights enjoyed by Englishmen to the free population. In England then, as in England today, all persons have equal rights to bring a charge. Indeed, it is considered a constitutional right. Before there were police and DPPs, there were ordinary citizens seeking justice at the King’s courts by private prosecutions. The creation of police forces and DPPs was not intended to abrogate this right, but merely to bring more efficiency to prosecutions. A great modern judge commented that the right is still quite viable as these public officers may fail to perform their duties.

In this way, ordinary persons brought prosecutions in the Stephen Lawrence case, when it was believed that police racial bias forestalled a public prosecution; and in the Hillsborough disaster, where it was believed that neglect by a senior police officer was being covered up. In both cases, these citizens would be eventually proven right because the “little man” had access to the courts. Justice prevailed!

The law in Jamaica is the same as in England as regards the individual’s right to bring a prosecution. I respectfully contend that this unwritten constitutional right has been misunderstood in Jamaica.

A few years ago, I heard a Clerk of the Courts say that the DPP was in charge of all prosecutions in Jamaica. This is not so. The DPP may take over, or terminate any prosecution in Jamaica, but any person is free to initiate and conduct prosecutions without the DPP’s involvement, or permission. Indeed, the DPP has no knowledge of most prosecutions brought in Jamaica. A few years ago, the Privy Council deprecated an edict from the DPP of Antigua and Barbuda that he was responsible for making all prosecutorial decisions in that state. Their lordships explained that every person can make prosecutorial decisions and make them independent of the DPP. On this point, Antigua and Barbuda’s constitution is the same as Jamaica’s.

The misunderstanding comes from giving greater attention to common practice rather than to the law. I had a conversation with a Commissioner of Police once who contended that only police personnel can bring charges. His misguided conviction came from his experience in only seeing policemen bringing charges. Similarly, most people see only public lawyers conducting prosecutions, so many think only they can.

Misconceptions

Let me deal with two other misconceptions. First, we often hear about the DPP issuing a “ruling”. The DPP has no power to direct the police to charge. The person laying the charge must himself conclude that the charge is justified. Directing others to charge is not one of the DPP’s constitutional powers. It would be better called an “opinion” or “advice”. The DPP may, of course, initiate charges in any court by the DPP’s own hand, but this is rare in the Parish Courts.

Secondly, in private prosecutions not taken over by the DPP, that office has no authority to determine which lawyer conducts the prosecution. That is the procedural right of the person who brought the prosecution. I have always wondered why the Jamaica Bar Association has been quiet on this issue. Where the office of the DPP does not have the power to determine who a prosecutor is permitted to hire, the police, private persons and public authorities who initiate prosecutions, are free to choose their prosecuting counsel.

Again, common practice has misled. Most prosecutions are brought by the police who invariably retain the public bar. If a victim wants to have his/her private counsel conduct such prosecutions, they would face difficulty as they have no standing. The parties to a criminal case are the person who brought it (the prosecutor) and the person charged (the defendant). The victim is not a party unless the victim is the prosecutor. In these cases, the DPP can facilitate the victim’s desire to have private counsel appear by taking over the prosecution and having the private lawyer serve as the DPP’s agent. This is what is, perhaps inaptly, called the “fiat”.

Constitutional right to prosecute not absolute

The constitutional right to prosecute is not absolute. Parliament may take it away or restrict it. What is worrying is that Parliament has not done so as situations like Cuthbert’s are examples of public officers taking away our rights. Cuthbert would need to suffer great expense and delay to approach a superior court to right this wrong. Most would lose interest in formal justice. Wouldn’t it be easier to instruct court staff, police, and public prosecutors to refrain from interfering with our right?

Why is criminal remedy so important? Why not just sue? In most successful suits against public officers, damages are paid from the public purse. Certainly, monetary compensation will satisfy most victims, but others want to see justice done and ensure that there is the deterrence of real punishment as an example to warn against repetition.

Further, another unwritten principle in our constitution – separation of powers – requires the judicial branch to preserve the rule of law by, among other things, reviewing and adjudicating on the conduct of the executive. However, in the execution of this important function, the courts cannot initiate or solicit. The courts must wait upon the approach of persons. Not suffering private prosecutions, therefore, means that the courts have shut off the access for the powerless.

Take another illustration: it is fact-based fiction. Mary goes to the police station to complain that her live-in boyfriend, Fred, has raped her. The police refuse to act. She brings a private prosecution and on appearance at the Parish Court, the judge denies bail. Mary is happy and returns home. Later that night, Fred is knocking on the door. In Jamaica, the drafters of the Civil Procedure Rule permitted appeals of bail to be conducted without notice to the person who brought the prosecution. The English rule provided for notice to the prosecutor and to the DPP. Did the Jamaican drafters forget about private prosecutions?

There are protections against persons who bring misguided prosecutions. The Justice of the Peace may refuse to sign the charge and the prosecutor can be liable for damages for malicious prosecution. Further, the DPP may intervene and continue or terminate the case. Improper exercise of the DPP’s power may be corrected by judicial review.

Access to courts is one way that the weak are protected. Restricting access is inimical to the rule of law. Having significantly different means of access infringes the constitutional right of equal treatment before the law.

Today, the right to private prosecution remains an extinguisher in case of fire. You may never need it, but you will be happy to have it when you do. One of the early actions of the Grenada revolutionaries was to abolish appeals to the Privy Council. There was no replacement second-tier appellate court. Years later, when they were now relatively powerless, they futilely sought to reach out to the very court that they, in their pomp, had closed.