Two arguments have been advanced to support the setting up of a Prosecution Commission.
The first was to make a supposedly unaccountable DPP accountable, and that we were told had been on the agenda since 2003. Then lawyers came forward to explain that the position in law had changed in 2006 with the judgment of the Privy Council in Mohit v DPP, which made it clear that the DPP was necessarily accountable to the courts. A second trumping argument was then made – the ‘ti-dimoun’ argument.
It is proposed to briefly consider both arguments in turn, starting with the latter one.
The ‘ti-dimoun’ argument runs as follows. Whilst the DPP is indeed accountable to the courts, access to the courts is costly and time-consuming for ‘ti-dimoun’ (it would be for anyone). The difficulty with this argument is that the problem then is one of ‘limited’ access to the courts, which is the case for anyone wishing to contest the decisions of any public body. Thus, the ‘ti-dimoun’ argument really has nothing to do with the DPP’s independence and security of tenure. Yet, it is those very sacrosanct principles that are under challenge.
It is also useful to consider the ‘ti-dimoun’ argument by making a distinction between the DPP’s decision to prosecute, on the one side, and the DPP’s decision to discontinue prosecution or not to prosecute at all.
Suppose the DPP decides to initiate a prosecution, then it necessarily becomes for the independent and impartial criminal court to fairly determine the case within a reasonable time. This is so whether the accused wishes to defend himself in person, or is defended by a lawyer of his choice or provided through legal aid. Thus, the argument of ‘limited’ access to the court for ‘ti-dimoun’ simply does not add up, as the criminal court is necessarily seized of the matter.
Suppose the DPP decides to discontinue a prosecution or not to prosecute at all. Of course, it would be for a potential complainant or (alleged) victim to disagree with the DPP. It is legitimate to ask why should it be for the dissatisfied complainant or (alleged) victim, a ‘ti-dimoun’, to then seize the court (at his or her expense) to ask for the court’s review of the DPP’s decision. But then, it would also be legitimate to ask why the relevant investigative body (who would have initiated and undertaken the investigation on which the DPP would have based its decision, and probably provisionally charge a suspect along the way) does not itself apply for a review of the DPP’s decision if it disagrees therewith.
That is certainly already a possible course for the investigative body. After all, apart from the DPP, it is the investigative body alone that will know what evidence is on file to mount any credible challenge of the DPP’s decision. The complainant or (alleged) victim would simply have no knowledge of the evidence, except for his or her own declarations. Also, the investigative authority would have all the resources to do so. Indeed, isn’t it now becoming commonplace for investigative bodies, such as the Police or ICAC, to have resort to private lawyers to argue their case?
It is thus clear is that the ‘ti-dimoun’ argument is fallacious. It has nothing to do with the DPP’s sacrosanct independence and security of tenure. But it is also not a Trump card. Otherwise, the argument could be made about anything and everything – one could ask for instance why should anyone, let alone a ‘ti-dimoun’, spend time and money in a court of law, and not simply have summary ‘justice’ within 21 days before some commission of some sort?
Turning to the argument of accountability. Aside from that of the DPP (which was settled in Mohit v DPP), it is crucial to also consider and ensure the accountability of the proposed commission. Yet, the proposal discloses the creation of what is really a ‘constitutional monster’.
The proposal is as follows: First the commission and its commissioners would have both civil and criminal immunity. Second, there is no requirement that the commission holds a hearing. In fact, deliberations are confidential and subject to legal privilege. Third, the commission has no obligation to give reasons to the DPP or anyone else. Fourth, the decision is simply to be taken on a majority vote between the commissioners. Fifth, the grounds on which the commission can review the decision are limitless, well beyond what the Privy Council established in Mohit v DPP. Seventh, the only possible course for review is by the courts (that is back to square one), except that the lack of transparency coupled with its basic method of decision-making, without clear standards, would render any such court action very difficult. Eighth, the commissioners may be political nominees.
Thus, in a bid to address concerns about the non-political DPP’s accountability, the proposal is to create an unaccountable commission that can with immunity review summarily the decisions of an already accountable DPP – a true constitutional monster.
All institutions are prone to human error. Even the courts are not infallible. In actual fact, looking at the three arms of the criminal justice system, the Police, the DPP and the Courts, there are certainly far more grievances about the Police, and even possibility the courts, than there are about the DPP. Indeed, the elephant in the room is the Police, who are not often subject to rebuke by the courts, but have been publicly criticised by Ministers and other members of Government. Yet, the DPP is the target.