Steadroy C. O. Benjamin Appellant v [1] The Commissoner of Police [2] Attorney General of Antigua and Barbuda Respondents [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | BAPTISTE, J.A.,EDWARDS, J.A.,PEREIRA J.A,Janice Pereira,Davidson Kelvin Baptiste,Justice of Appeal,Ola Mae Edwards |
| Judgment Date | 19 September 2011 |
| Judgment citation (vLex) | [2011] ECSC J0919-2 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Docket Number | HCVAP 2009/023 |
| Date | 19 September 2011 |
IN THE COURT OF APPEAL
The Hon. Mde. Ola Mae Edwards Justice of Appeal
The Hon. Mde. Janice Pereira (formerly George-Creque) Justice of Appeal
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
HCVAP 2009/023
Mr. Anthony Astaphan, SC, and Mr. Hugh Marshall Jr. for the Appellant
Mr. Douglas L. Mendes, SC, and Mr. Kendrickson Kentish for the Respondent
Civil appeal — Leave to apply for Judicial Review — Interpretation of section 88 of the Antigua and Barbuda Constitution Order 1981 — The Police Act, Cap. 330, Revised Laws of Antigua and Barbuda 1992 — Whether the Director of Public Prosecutions is empowered to direct or instruct the police not to lay a criminal charge against an individual — Whether the decision to charge the appellant was influenced by political considerations
The appellant, Steadroy Benjamin, is an attorney-at-law and was, at the material time, the Leader of Her Majesty's Opposition in the Parliament of Antigua and Barbuda. On 7th August 2008, he was charged with a summary offence relating to an endorsement on an application form for an Antigua and Barbuda passport. The Director of Public Prosecutions had however, previously instructed the police not to institute a criminal charge against the appellant; the police ignored the instruction and charged him.
The appellant sought leave to apply for judicial review of the decision of the Commissioner of Police to charge him, on the ground that he was charged by the police in defiance of a direction given by the Director of Public Prosecutions and the decision to charge was at the direction or under the control or influence of the Attorney General and the Minister of Justice and Public Safety. The respondents, the Commissioner of Police and the Attorney General of Antigua and Barbuda, opposed the appellant's application for leave to apply for judicial review. The learned judge refused the application for leave, holding that the power to direct others not to prosecute is an entirely different power to that given to the Director of Public Prosecutions under section 88 of the Antigua and Barbuda Constitution Order 1981; it is not an incidental power to those set out in section 88, but an intrusive power. The appellant appealed the entire decision of the learned judge. More specifically, he appealed the orders dismissing the application for leave to apply for judicial review and directing that he pay the respondents' costs.
Held: allowing the appeal (Baptiste J.A. and Edwards J.A. a majority, with Pereira J.A. dissenting), setting aside the orders made by the learned judge, quashing the charge preferred against the appellant, and ordering that the parties make written submissions on costs within 14 days of delivery of this judgment, that:
1. When one considers the full amplitude of the powers conferred upon the Director of Public Prosecutions, it would take an overly austere reading of the Constitution to hold that notwithstanding the power to discontinue proceedings brought by police, the Director of Public Prosecutions lacks the power – a power which arises by necessary implication – to instruct the police not to institute criminal proceedings against an individual. The nature of a constitution requires that a broad, generous and purposive approach be adopted to ensure that its interpretation reflects the deeper inspiration and aspiration of the basic concepts on which it is founded. A construction of the Constitution which leads to the police disregarding instructions of the Director of Public Prosecutions not to prosecute by relying on their power to institute proceedings under the Police Act, would be narrow, ungenerous and not purposive.
Attorney General of Grenada v The Grenada Bar Association Grenada Civil Appeal No. 8 of 1999 (delivered 21st February 2000) followed; Reyes v The Queen [2002] UKPC 11 applied.
2. The Director of Public Prosecutions may exercise his power to institute and undertake (or not to institute and undertake) criminal proceedings in person, or through other persons acting under or in accordance with his general or special instructions. While the Constitution does not state who these "other persons" are, there is nothing to suggest that the police do not fall within this category. In fact, the very nature of their prosecutorial work compels the conclusion that they do. In this regard, the persons envisaged by section 88(4) of the Constitution would include the police. (per Baptiste J.A. and Edwards J.A.).
3. Given the lynchpin role played and the paramountcy occupied by the Director of Public Prosecutions in the conduct of criminal prosecutions, the Court can find no warrant for interpreting the Constitution in a manner limiting or restricting the instructions that the Director of Public Prosecutions can give the police. The Constitution should be interpreted in a manner giving implied or ancillary powers to the Director of Public Prosecutions. In the present case, he acted well within these powers in instructing the police not to institute a criminal charge against the appellant. The police were therefore obligated to follow his instructions.
4. The power of the police to prosecute persons pursuant to section 23(1) of the Police Act does not exist in isolation. It has to be viewed within the matrix established by the Constitution giving overarching power to the Director of Public Prosecutions with respect to criminal proceedings and as such, is subject to his powers under section 88 thereof.
5. Police officers do not enjoy the same security of tenure as the Director of Public Prosecutions, nor would they possess his qualification, training and expertise. Although an officer of the executive branch of Government, the powers of the Director of Public Prosecutions are quasi-judicial in nature and this makes him the final arbiter on decisions to prosecute by the State. In that regard, police officers are subject to the overall control and direction of the Director of Public Prosecutions.
6. Whilst the police should, as a counsel of prudence, adhere to the direction or instruction of the Director of Public Prosecutions 'not to charge' a person, they are not obliged, as a matter of law, to do so. The constitutional powers of the Director of Public Prosecutions as currently framed, do not extend to giving to him a power to instruct or direct the police 'not to charge' or 'to charge' a person. In the present case therefore, the instruction or direction of the Director of Public Prosecutions 'not to charge' the appellant was ultra vires his powers. (per Pereira J.A.).
7. In essence, section 88 of the Constitution gives power to the Director of Public Prosecutions to institute and undertake criminal proceedings. Implicit in that power 'to institute' must be the power to decide 'not to institute or prosecute', but that is as far as the Director of Public Prosecutions is concerned in the exercise of his own constitutional discretion given under section 88. This section does not give the Director of Public Prosecutions a discretion to direct anyone else (including the police) as to what to do or not do in respect of the taking of a decision 'to charge' or 'not to charge' a person. (per Pereira J.A.).
8. Given the very wording of section 88 of the Constitution, which expressly recognises the unfettered right of the citizen and any other authority (which would include the police) to initiate criminal proceedings, it was not intended for all initiation of criminal charges for all practical purposes to first have to obtain the fiat of the Director of Public Prosecutions. Were it that the Director of Public Prosecutions had the unrestricted right to issue such directions in his sole discretion, then he would be empowered to select which offences and for what person or class of persons a criminal charge should be initiated. Such a power would be truly a remarkable power, which one would expect to be expressed in the clearest of terms in the Constitution and not left to be implied. The retention of the right of a private person to bring a criminal prosecution is an important safety net where those vested with the authority to bring and conduct a criminal prosecution decline to do so without just cause. (per Periera J.A.).
Gouriet v Union of Post Office Workers and Others [1978] A.C. 435 applied.
The appellant was charged by the police with a summary offence relating to an endorsement on an application form for an Antigua and Barbuda passport and sought leave to apply for judicial review. The learned judge dismissed the application for leave and ordered costs to the respondents pursuant to Civil Procedure Rules 2000 (" CPR 2000"). The appellant appeals the entire decision of the judge, more specifically, the orders dismissing the application for leave to apply for judicial review and that he pay the respondents' costs.
The appellant is an attorney at law and at the material time was the Leader of Her Majesty's Opposition in the Parliament of Antigua and Barbuda. After reviewing the appellant's file which Corporal Cordel O'Garro had compiled in relation to the subject investigations, the Director of Public Prosecutions instructed the police not to institute a criminal charge against him. The police ignored the instruction and proceeded to charge the appellant on 7th August 2008. On 23rd September 2008, two additional charges were laid against the appellant. The appellant sought leave to apply for judicial review of the decision of the Commissioner of Police to charge him on 7th August 2008. No application was made to challenge the decision to charge in respect of 23rd September 2008. The grounds upon which the appellant...
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