Private Prosecution run amok in SVG

21.JAN.11

Editor: Last week, for the first time in living memory, the pot went to court to call the kettle black.

In a series of private criminal prosecutions, candidates of the New Democratic Party – both successful and unsuccessful at the polls – have alleged, essentially, that Unity Labour Party campaigners called them naughty names during the election campaign.{{more}} These private criminal complaints are a remarkably boldfaced act, coming as they do from an opposition movement that has made scurrilous and scandalous name-calling its stock in trade during the lead-up to the 2010 general elections and throughout the campaign itself.

It is doubly galling for the party that accuses Prime Minister Gonsalves of stifling freedom of expression (every time he files a civil defamation suit) to then turn around and bring criminal complaints for what, if proven, would amount to nothing more than campaign picong during the “silly season.”

However, yet another political misstep by a perpetually wrong-footed opposition is hardly news or cause for comment. The greater, and far more dangerous, thrust of their action is to launch an unprovoked attack on the constitutional pillars of our justice system, and the public’s confidence in that system, through the abuse of private criminal complaints.

Once upon a time, in the United Kingdom, almost all “criminal” prosecutions were brought privately by the person who was wronged. In the year 1846, for example, only 3 of the 118 criminal indictments at the Nottinghamshire Quarter Sessions were initiated by police. By 1866, 47 of 95 indictments were police-initiated. Gradually, with the introduction of a Director of Public Prosecutions (DPP) and the expansion and professionalization of the police force, the number of private criminal complaints continued to dwindle. Simply put, the state was now doing the job that once fell, out of necessity, to individual citizens.

By 1981, the Report of the Royal Commission on Criminal Procedure, chaired by Sir Cyril Philips, was recommending the abolition of the right to bring private prosecutions. Although the right survived in England, criticism of it grew louder. In 1985, during debate on the “Prosecution of Offences Bill” in the British House of Lords, Lord Jeremy Hutchinson of Lullington stated:

“The mischief of continuing private prosecutions is that the motivation of those who bring private prosecutions may well not be the good of society but may be based on personal spite, on revenge, on financial gain, on blackmail, on fanaticism-all sorts of motivations. If this private prosecution procedure is going to be allowed to continue, then I would submit that it is absolutely essential that the Director or the Crown prosecutor should know in every case that a private prosecution has in fact been launched so that he can look at it and decide whether he ought, in the public interest, to take over the prosecution rather than allow it to go on, either in order to stop it or to prosecute it on behalf of society and not for some personal reason.”

Lord Hutchinson, a distinguished lawyer and Queens Counsel, further said: “I am sad that under Clause 6 of the Bill the role of the private prosecutor is specifically preserved… Surely the private prosecutor today is an anachronism and, furthermore, a nuisance.”

It is true that the law governing private criminal actions has a built-in safeguard against “nuisance” “revenge” and “spite” complaints. That safeguard is the DPP, who can take over and discontinue silly and baseless private prosecutions. However, while that safeguard is effective against an occasional or random private action, it is insufficient in the face of coordinated and sustained political abuse of the private criminal complaint mechanism.

Simply put: if a single political party continues to bring baseless private prosecutions against government officials, and the DPP continues to discontinue them, at some point the DPP’s perfectly legitimate actions will be attacked to score cheap political points.

The lawyers who filed those private criminal actions last week knew, or should have known, that they would have been discontinued by the DPP. Indeed, the DPP was duty bound to put an end to these frivolous, unsubstantiated, nuisance actions. But for doing his job, the DPP was wrongly savaged by the Opposition. “Ah ha!” they shout. “Every time we bring an action against the Prime Minister or the ULP, the DPP discontinues it! The DPP is biased! The justice system is a farce! Our democracy is in peril!”

Every time this strategy is employed, and every time that the claims of bias are repeated by supposedly reasonable and reputable individuals, public faith in the integrity of our system of justice is further eroded.

Today, in St. Vincent and the Grenadines, the mechanism of private criminal actions has deteriorated to a single purpose: its repeated abuse by a cabal of opposition lawyers whose goal is not justice, but political mischief. Their actions represent nothing more than a cynical assault on one of the key pillars of our constitutional democracy.

Last week, in a Searchlight article on their failure to file the promised election petitions, NDP General Secretary Allan Cruickshank said that “any matters that will be dealt with now are CIVIL matters.” Instead, the party flip-flopped again, and brought criminal complaints. But Cruickshank was right: the actions alleged by Vynette, ‘Nature’ and Linton are civil matters. They can sue for defamation, if they so desire. But in once again abusing the processes of the court and in their predicable attacks on our system of justice, the opposition has highlighted the need to reform this anachronistic loophole.

In a 2006 British case called Jones v. Whalley, the House of Lords had this to say:

“Nowadays public prosecutions are the rule. So, usually, the court will be concerned to prevent its process being misused by a public prosecutor. But, in times gone by, when private prosecutions were the rule, the court must have had the power to guard against the corresponding danger of its process being misused by a private prosecutor.”

Today, in SVG, we are faced with precisely this dilemma: the danger of abuse by private criminal prosecutors and their nakedly political motives.

What is the solution? I turn once again to the words of Britain’s Lord Hutchinson: “Furthermore, the Royal Commission said that if it was not abolished, then there should have to be an application to the public prosecutor-and if he turned it down, an application to the magistrates. I am sad myself that here is another opportunity for proper reform sadly missed.”

Vincy Patriot (vincypatriot@hotmail.com)