- NOTHING UNUSUAL
1.1 A duly authorised constitutional functionary, whether a Director of Public Prosecutions (“DPP”) or an Attorney-General (“A-G”), entering a standard discontinuance of criminal proceedings instituted by a person other then that functionary is nothing unusual.
2.0 DISCONTNUANCE ENTERED IN GRENADA
2.1 On 22 Aug 2022, the Grenada DPP, Mr Christopher Nelson KC, discontinued summary criminal proceedings brought by private complainants, charging two defendants with offences of harm; assault; obscene, abusive and insulting language.
2.2 Those proceedings arose out of an incident aboard a post-carnival boat cruise earlier that month. On that incident, the COP had brought summary criminal proceedings against one of the complainants and the two defendants, to which that one complainant pleaded guilty.
Grenada discontinuance provisions
2.3 The DPP discontinued the proceedings on the Grenada Constitution s 71(2)(c). This, on discontinuance, says the DPP “shall have power in any case in which he considers it desirable so to do…(c) to discontinue at any stage before judgment is delivered any…criminal proceedings instituted or undertaken by himself or any other person or authority”.
2.4 Similarly, by s 71(2)(b), on continuance, the DPP has power to “take over and continue any…criminal proceedings…instituted or undertaken by any other person or authority”. Also, by s 71 (2)(a), on prosecution, the DPP has power to “institute and undertake criminal proceedings against any person”.
Wholly untenable
2.5 A former Grenada A-G, who was advising the complainants, publicly called on Grenada Prime Minister to mount an investigation into the DPP discontinuing the proceedings, not the kind of investigation provided for by the Constitution to have a DPP removed from office, but rather one not known to the Constitution.
2.6 I, advising the lawyer on record for the defendants, publicly denounced that call by the former A-G as wholly untenable. For that call was inconsistent with provisions of the Constitution vesting the DPP with very wide discontinuance; tolerating as the only investigation regarding the DPP that for removal from office; and ordaining that, in exercising his functions, the DPP shall not be subject to the direction or control of any other person or authority. Nothing more was heard of that call by the former A-G.
3.0 DISCONTINUANCE ENTERED IN ANGUILLA
3.1 August just gone, the Anguilla A-G, Dwight Horsford, discontinued summary criminal proceedings brought by the COP against two persons. The proceedings were brought regarding words used by those two against each another, and the lifting of a chair by one between those two, in an incident at a restaurant downtown The Valley.
3.2 The exchange of words began when one of those two, a male person, hurriedly approached (“approacher”) two female and one male government ministers who were at the restaurant relaxing themselves (“ministers”). Nobody else, apart from a barmaid, was present.
3.3 The COP charged the approacher with the offences of assault on one of the three ministers, assault on another of the ministers and disorderly conduct. The COP charged one of the two female ministers with assault on the approacher and disorderly conduct.
Anguilla discontinuance provisions
3.4 The A-G discontinued the proceedings by virtue of the Anguilla Constitution s 34 (1)( c). This is in practically identical terms with the Grenada Constitution s 71(2) (c), quoted in para 2.3 above, except only that, while Grenada vests the power in the DPP, Anguilla reposes it in the A-G. The Anguilla Constitution s 34 (1)(b) is similarly identical with Grenada s 71 (2)(b) on continuance, quoted in para 2.4 above. Anguilla s 34 (1)(a) is similarly identical with Grenada s 71(2)(a) on prosecution, quoted in para 2.4 above.
4.0 PRACTICALLY COMMON FORM
4.1 Practically common form across the Commonwealth are provisions on discontinuance, continuance, and prosecution, whoever might be the relevant functionary, whether A-G or DPP, as regards criminal offences within their purview.
4.2 The Constitutions spell out that the power over discontinuance and continuance “shall be vested in him to the exclusion of any other person or authority”: Anguilla s 34(3); Grenada s 71 (4); Trinidad & Tobago s 90(4).In the exercise of those powers, the functionary “shall not be subject to the direction or control of any other person or authority”: Antigua & Barbuda Constitution s 88(5).
5.0 EXTREME RELUCTANCE
5.1 An avernment that a power granted by the Constitution is absolute is a contradiction in terms, as the Constitution is enwebbed with the rule of law, which rejects arbitrariness. Both Grenada Aug 2022 and Anguilla Aug 2023 were light years away from anything even remotely approaching arbitrariness on discontinuance.
5.2 The Constitution expects that the DPP or A-G, in deciding on discontinuance, continuance or prosecution, would have regard to a whole range of sensitive and delicate factors. UKPC, in the leading case Sharma v Browne-Antione {2006} UKPC 57, at para 14, identified factors which account for the “extreme reluctance” of the courts to grant judicial review of the exercise of prosecutorial discretion. These include “the great width” of the discretion and its “polycentric character” involving “policy and public interest considerations which are not susceptible of judicial review”.
5.3 Also, one might add, criticism or comment on discontinuance may be driven by a multiplicity of motives, too many and disparate to catalogue.
6.0 VERY STRIKING
6.1 There is something very striking about Anguilla Aug 2023. The intervention by the A-G benefits both the approacher and the minister; indeed the approacher more, as the approacher was slapped with three charges, while the minister faced two.
6.2 This means the Anguilla discontinuance by A-G Horsford is absolutely comfortably within the very large latitude which Sharma affords prosecutorial discretion. Any suggestion to the contrary would be rather absurd.
Dr Francis Alexis KC