September 22 2018
PPP/C Members of Parliament Juan Edghill and Vickram Bharrat have lost their challenge to the decision of the Director of Public Prosecutions (DPP) to discontinue private criminal charges which they had filed against Ministers Volda Lawrence and George Norton for misconduct in public office.
In a ruling handed down yesterday, Justice Fidela Corbin-Lincoln said among other things that she was not persuaded by the reasons advanced by the applicants to quash the DPP’s decision. She said that the reasons proffered by Edghill and Bharrat did not “provide a basis for the court to use its sparingly exercised power to review and quash the decision of the DPP.” Accordingly, their application for the order was denied.
The PPP/C parliamentarians were also ordered to pay costs to the state in the sum of $200,000.
On April 19th, Edghill and Bharrat, through their attorney Anil Nandlall, had filed charges against the ministers, which stemmed from the controversial procurement of over $600 million in drugs and medical supplies from Trinidadian company ANSA McAL and Norton’s rental of a bond for the storage of medical supplies.
The charge against Lawrence alleged that being and performing the duties of Minister of Public Health of the Government of Guyana, she “between 16th January, 2017 and 16th February, 2017… willfully misconducted herself in a way which amounted to an abuse of public trust without reasonable excuse or justification, when she authorised or caused the unapproved single sourcing and purchase of drugs and medical supplies for the Georgetown Public Hospital Corporation, in the city of Georgetown from ANSA McAL Trading Limited… for the excessive sum of six hundred and five million, nine hundred and sixty-two thousand, two hundred dollars ($605,962,200).”
Meanwhile, the charge against Norton stated that he, while “performing the duties of Minister of Public Health of the Government of Guyana, on 1st June, 2016… willfully misconducted himself in a way which amounted to an abuse of public trust without reasonable excuse or justification, when he authorised or caused the rental of the property known as and situated at 29 Sussex Street, Albouystown, in the city of Georgetown from Linden Holdings Incorporated… for the sum of twelve million five hundred thousand dollars ($12,500,000) exclusive of VAT, per month, by way of a written Agreement of Tenancy at an excessive rate of rental.”
Though a summons had been issued by the Chief Magistrate on the same day the charges were filed for the ministers to appear before her five days later, the applicants said this never materialised as the DPP would later discontinue the charges. This move came on April 23rd.
DPP Shalimar Ali-Hack, in a press statement, had pointed out that the charges were being discontinued in accordance with Article 187 (1) of the Constitution. It states that the DPP has the power “to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other person or authority.”
Her statement had added “these charges concern a grave issue under the criminal law in relation to two serving Ministers. In the interest of good governance in the State of Guyana such allegations ought first to have been reported to the Guyana Police Force for an investigation to be launched and the advice of the DPP sought.”
Ali-Hack had pointed out that the private criminal charges never resulted from a police investigation. She said that this should have been the course taken by the applicants.
The applicants were of the view that the DPP’s decision was, among other things, unlawful, irrational and contrary to the rules of natural justice.
They argued through their attorney that the DPP “has no functional responsibilities whatsoever touching and concerning the interest of good governance in the State of Guyana,” while adding that reporting an allegation of criminal misconduct to the police for investigation was not a prerequisite to instituting any private criminal charge, nor was it a legal requirement.
Legally empowered
For their part, however, Solicitor General Kim Kyte-Thomas and Deputy Solicitor General Deborah Kumar, who defended the DPP’s decision, argued that she was legally empowered to act as she did.
Relying on Article 187, the state attorneys argued that that provision conferred upon the DPP certain powers in the exercise of which her actions cannot be reviewed once the decision was made intra vires. The power can only be reviewed, they contended, if there is evidence in the application that the act of discontinuance was done ultra vires the constitution.
They declared that there was no such latter evidence.
Kyte-Thomas and Kumar went on to assert that while the DPP has no functional responsibility in the government, she is nonetheless obligated in carrying out her constitutional mandate to be concerned about good governance within the criminal justice system in the State of Guyana. They said that the justice system is an integral part of good governance in any state and the criminal justice system is part of the justice system.
Meanwhile, regarding the applicants’ assertions of there being no legal requirement for an allegation of criminal misconduct to first be reported to the police, the two lawyers have advanced that to avoid persons being charged unjustifiably, investigations on the purported allegations must be undertaken as a person ought not to be unjustly charged and consequently deprived of their liberty without justifiable reason.
They also advanced, among other things, that though private citizens can institute criminal charges, this ought not to be done without evidence to support the charge. The institution of a criminal charge is not a whimsical act and there must be strong compelling evidence capable of supporting the charge, they said.
Arguing that the application does not contain any evidence to support the charge instituted against the ministers, the attorneys said that the DPP cannot allow every person to merely institute serious criminal charges at their whims and fancies. “There must be a system so as to avoid abuse of process which will further overburden an already overburdened system,” they asserted.
They also contended that the institution of a serious charge against a minister in the conduct of their functions in public office for an offence, which carries a custodial
sentence, is a grave matter, which, accordingly must require the intervention of the DPP—the authority responsible for criminal prosecutions according to the constitution.
Such serious allegations against a serving minister, they said, ought to be investigated by an independent body of investigators and receive the attention of the independent prosecutorial authority which is the DPP. It was noted that the police are the recognised persons responsible for conducting independent investigations.
In the DPP’s defence, Kyte-Thomas and Kumar said that allowing private citizens to bring charges without substance and the DPP not discontinuing them would amount to an abdicating of the DPP’s role of ensuring good governance within the criminal justice system.
To this end, they have declared that “the powers conferred upon the DPP were exercised fairly, reasonably and in good faith.”
Wide discretion
Referencing Article 116 of the Constitution, Justice Corbin-Lincoln began by outlining the office and powers of the DPP as also contained in section 187 (1) to (4).
It is in accordance with these pieces of legislation and case law authority which she also cited, that the judge concluded the DPP, being vested with power to take over and continue any criminal proceedings instituted by any other person and to also discontinue any criminal proceedings undertaken by herself or any other person, can do so.
She noted that in other words “the DPP is empowered to regulate access to the criminal justice process.”
Noting that these principles were not in dispute, the judge said it was for her to determine the circumstances under which a court would quash a decision by the DPP to discontinue criminal proceedings.
Referencing the case of Sharma v Brown-Antoine et al, Privy Council No. 75 [2006] UKPC 57 and a host of others, the judge said the court have given a number of reasons for their extreme reluctance to disturb decisions to prosecute by way of judicial review.
These, Justice Corbin-Lincoln noted, include among other things, “the great width of the DPP’s discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations not susceptible to judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits.”
The judge said that the powers conferred on the DPP by Section 187 of the constitution are in very broad terms. Relying on the numerous cases cited, she then went on to explain that the cases establish that the powers are not unfettered, but that a decision to review or as in this case, quash a decision of the DPP to institute or discontinue criminal proceedings is “a highly exceptional remedy,” which is sparingly or rarely exercised.
Noting that the essential reason cited by the applicants for seeking to quash the DPP’s decision was not related to bad faith, dishonesty or that she acted under the direction or control of another person or authority—which would make her powers reviewable – but rather that she had regard to irrelevant considerations, the judge said the quashing order could not be granted.
The judge said that the issues which Edghill and Bharrat contended the DPP took into consideration included the issue of good governance, for which it was contended she has no functional responsibility; and the fact that no report was made to the police for an investigation to be carried out.
Referring to the submission made by the defence, the judge said the DPP had acknowledged no such responsibility in the government, but recognised that in carrying out her constitutional mandate, she is obligated to be concerned about good governance within the framework of the criminal justice system as an integral part of good.
“This cannot, in my view, be disputed,” Justice Corbin-Lincoln said.
In accordance with Sharma v Brown -Antoine et al, the judge said the court recognized the polycentric character of the DPP’s decision-making powers, which include policy and public interest considerations.
It was against this backdrop that Justice Corbin-Lincoln reasoned that the issue of good governance is a public interest matter. To this end, she said that having considered the reasons given by the DPP for her decision, she was of the view that it would be remiss of the DPP not to have regard to the issue of good governance within the criminal justice system in arriving at her decision.
For this reason, the judge said she found that Ali-Hack’s discretion is wide enough to entitle her to take into consideration good governance in the context of the criminal justice system in reaching her decision and for which she declined to interfere on that basis.
Valuable safeguard
Addressing the issue of police report and investigations, Justice Corbin-Lincoln said that there is indeed no legal requirement for the police to investigate a charge before private prosecution can be instituted.
Relying on the case of Gouriet v. United Postal Workers [1978] A C. 477, however, the judge said that such a practice “remains a valuable constitutional safeguard against inertia or partiality on the part of authority…” She added that “it still exists and is a
useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.”
Noting that the right of any private citizens to bring criminal prosecutions is
subject to the control of the DPP, the judge cautioned that it is not an unfettered right. In this case, she said, the DPP had articulated her reasons for taking into consideration the fact that no report was made to the police for an investigation to be carried out. Given the explanations proffered by the DPP, Justice Corbin-Lincoln said she was not persuaded that they amounted to factors which fell outside the wide scope of matters to which the DPP may have regard. “I therefore find that the discretion of the DPP is of “sufficient breadth” to have entitled her to take into account in this case, the failure to make a report to the police force to allow for an investigation to be carried out,” she said.
To this end, the judge denied Edghill and Bharrat the order they were seeking to quash the DPP’s decision, while ordering them to pay court costs to the state in the sum of $100,000 each.
The PPP/C had previously said that the discontinuance by the DPP of the private criminal charges filed against Lawrence and Norton, and her failure to do likewise, in relations to similar charges instituted against former Minister Dr Ashni Singh and Chief Executive Officer (CEO) of the National Industrial and Commercial Investments Ltd Winston Brassington was a clear demonstration that the DPP has buckled under pressure.
The APNU+AFC government had asserted that the private charges were filed in retaliation for the charges that were brought by the state in the previous week against Singh and Brassington, who were charged in absentia with three counts of misconduct in public office over land deals under the Jagdeo administration.
