Sanatan Dharma Maha Sabha v the Director of Public Prosecution

• Jurisdiction: Trinidad & Tobago
• Judge: Kokaram, J.
• Judgment Date: 20 June 2013
• Neutral Citation: TT 2013 HC 121
• Docket Number: CV 2358 of 2013
• Court: High Court (Trinidad and Tobago)
• Date: 20 June 2013

High Court

Kokaram, J.

CV 2358 of 2013

Sanatan Dharma Maha Sabha

and

The Director of Public Prosecution

Appearances:

Mr. Jagdeo Singh instructed by Mr. Kiel Taklalsingh for the applicant.

Mr. Ian Benjamin instructed by Mr. Samson Wong and Ms. Nalini Jagnarine for the intended respondent.

Judicial Review - Decision by the Director of Public Prosecutions not to prosecute — Arguable ground for judicial review — Realistic prospect of success — Irrationality — Unreasonableness — Public policy.

Kokaram, J.

INTRODUCTION

1 Our Courts have considered as sacrosanct the constitutional role of the DPP in the criminal justice system whose prosecutorial decision making process is a specialist one. The decision as to the commencement or discontinuance of prosecutions are taken by the DPP in the “advocates' war room”. There the public prosecutor scrupulously sifts the facts and makes the “advocates' call” where strategic decisions are infused by a careful assessment of the evidence keeping finely in the balance the multifarious duties owed to the victim, the accused, the society and to the administration of justice. Forming the bedrock of the criminal justice system is a prosecutor who discharges his or her duties fearlessly, professionally, independently, impartially and transparently through compliance with its Code for Prosecutors regardless of the social pressures or controversies that may swirl around the alleged crime or offender. The “trilemma” of the prosecutor lies not only in discharging a duty to the victims of crime but a duty to the wider community and a duty in ensuring that the prosecutorial process is not abused or wasted by pursuing offences where there is no realistic prospect of a conviction.

2 It is fitting to recite an extract from the DPP's “Code for Prosecutors” as to the special role discharged by him or her:

“The modern prosecutor is expected to have and to display several qualities including good judgment, integrity and a keen sense of fair play. Fearlessness is also an essential quality, for prosecution decisions are often controversial and the prosecutor must have the strength of character to resist criticism from whatever quarter. No matter how strident or painful. The judgment of the prosecutor on a case must never be overborne by political, media or public pressure. The profession of prosecutor is an honourable one but is not for the faint-hearted.

The prosecutor occupies a formidable position in the administration of criminal justice. The decisions taken may profoundly affect the lives of others. In each case, the prosecutor must carefully evaluate the evidence and apply the law and decide if a prosecution is appropriate. The prosecutorial discretion should be exercised in a manner that is consistent, fair and objective. Difficult decisions must be confronted, not be side-stepped, and in deciding the way forward the prosecutor will apply professional judgment, legal competence and practical life experience.”

3 In this context judicial review of a prosecutorial decision of the DPP is rare and is a discretion that is sparingly exercised. There are very few cases in the Commonwealth in which such reviews have been successful. Consistently the language of the cases demonstrates deference to the prosecutorial decision of the DPP and a great reluctance to interfere with it. The underlying philosophy of such a deferential approach is in part a recognition of the DPP's wide discretion in fulfilling his Constitutional mandate. It takes into account: the polycentric nature of such a decision as the advocate of the State, the protector of victims of crime and seeking the interests of the wider community in the prosecution of crimes; the distinct roles of the criminal and the civil courts; the maintenance of a clear demarcation of the separation of powers between the executive function of the prosecutor and the judicial function of the Courts and broadly the inability of a Court to adequately place itself in the robes of the prosecutor to perform the delicate balancing exercise required in making such decisions.

4 Recognizing its place in the criminal justice system therefore, the Courts will review the decision not to prosecute guardedly in very limited circumstances. In our jurisdiction Sharma v Browne Antoine [2006] U.K.P.C. 57 confirmed the narrow window within which a decision of the DPP can be the subject of review. That case not only reaffirmed the test at the leave stage of “arguable grounds with a realistic prospect of success” but also it was a failed attempt to obtain leave to review the DPP's decision to prosecute. It recognized the well established principle that judicial review of a prosecutorial decision although available in principle is “a highly exceptional remedy”.

5 Recognizing the limited scope of review of the prosecutorial decision is one thing but this falls far short from saying the DPP is immune from review at all. It would be wrong to misconstrue the deferential approach of the Court to the prosecutorial decision as a resurrection of ancient principles that protected the exercise of a prerogative power. Certainly in the case of the decision not to prosecute the standard of review ought not to be set so high so as to create insurmountable hurdles for the aggrieved victims of crime whose desire is to invoke the criminal justice system to ventilate their rights or to protect their dignity. The Court in that case is its only resort to review such a decision. Where a prosecutor decides not to prosecute, the victim may have available two options: vindicating their rights in a civil action, if a civil wrong can be fashioned and second institute a private prosecution. Both are fraught with its own inadequacies in comparison to the vindication of rights in the criminal justice system by the public prosecutor. The latter option of course is susceptible to the DPP continuing the prosecution and entering a nolle prosequi. Where the decision has been to prosecute, the Courts have viewed the apparent “inevitability of full investigation in the course of any criminal proceedings into the background to the decision to prosecute” central to its deferential approach. There the Court will deal with the accuser's concerns of a flawed prosecution. However where the decision has been not to prosecute, the question that equally can be asked is whether the criminal proceedings would be adequate to address the DPP's concerns of an unsuccessful prosecution which led him to abort or decide not to commence proceedings.

6 The approach of the Court in reviewing the decision under the traditional heads of judicial review must carefully weigh in the balance the victim's complaint as against this special nature of the prosecutorial decision. For this reason while it is open to the Court to interfere with the DPP's decision not to prosecute the elements of bad faith and perversity still underlie such a review and complaints such as errors of law and of fact, irrelevant considerations and irrationality without such a taint face a difficult, though not insurmountable challenge.

7 Against this backdrop, the instant application of the Sanatan Dharma Maha Sabha (Maha Sabha) has been made seeking leave to apply for judicial review of the decision of the Director of Public Prosecution (DPP) not to prosecute Mr. Patrick Manning and Mr. Hedwidge Bereaux for alleged criminal offences said to arise from their role in the discriminatory failure to award a radio license to the Applicant's subsidiary. The Applicant relies on the traditional grounds of irrationality and irrelevant considerations without the complaint of bad faith or abuse of power to impugn the decision of the DPP.

8 The grounds of review in this instant application do not fall within the traditional areas where review would be readily granted but they are not excluded. If indeed the DPP has acted on a wrong policy, taken into account irrelevant considerations and acted wholly irrationally at odds with the reasonable prosecutor there is no reason why such a decision not to prosecute is unreviewable. What troubled me at the outset on reading these papers admittedly was the Applicant's concern that the DPP placed emphasis on assumptions made of political partisanship and a deficient consideration of public policy. I was equally concerned that the grounds of irrationality and unreasonableness may not ascribe to the type of standard required to review a DPP's decision. For this reason I ordered that the DPP be served and represented by counsel and entertained an inter-partes hearing.

9 I have considered the submissions of both parties and I am of the opinion that the Maha Sabha's grounds of review fall short of the grounds which are arguable nor is there a realistic prospect of success in the context of the reasons advanced by the DPP not to prosecute. I readily recognize that the grounds of review of the DPP's decision are by no means closed and that in the appropriate case a successful review of the DPP's decision can be made out on the ground that he considered irrelevant consideration and acted irrationality. However I would expect given the nature of the functions performed and the discretion exercised, that the allegation of irrationality would rise to a decision that is perverse and that taking into account irrelevant considerations has so tainted his entire decision to make it wholly unreasonable and unintelligible. In this case whereas one can criticize the DPP's reasoning on his assumptions of political partisanship and public policy it is a narrow view of the entire exercise conducted by the DPP as explained in his detailed reasons and falls far short of painting the entire decision with the brush of illegality or absurdity. The DPP indeed considered the elements to prove the offence of misbehaviour in public office, considered his available evidence, weighed the strengths...