DPP...Cannot recall..Bloody incompetent

[Sir X]

They Could Not Recall
Published: Thursday | December 15, 20112 Comments

DPP Paula Llewellyn, QC. - File
Barbara Gayle, Staff Reporter
THE MOTION involving the Cuban light-bulb trial continued yesterday with Jacqueline Samuels Brown, QC, telling the court that the director of public prosecutions (DPP) and other persons who were present at the interview with businessman Rodney Chin cannot recall what took place.

She emphasised during her submissions how important it was for the DPP to make sure that certain guidelines were not breached so as to ensure fairness. She also cited authorities to show that pretrial interviews should be recorded.

Samuels-Brown said it came out almost unwittingly during the trial in the Corporate Area Resident Magistrate's Court that DPP Paula Llewellyn, QC, met with Chin in the presence of his lawyers and interviewed him when he was an accused.

Samuels-Brown pointed out that the DPP said she could not recall what took place at the interview and was also saying she had no duty to reveal any notes.

http://jamaica-gleaner.com/gleaner/2...ews/news1.html


This is the nut who is at war with the OCG .

[Sir X]

Gamma, seems to be a regular thing , How yuh rate this lady ?

[Rudi]

This is too funny and too easy. I wonder what the usual defense crew has to say?

[Sir X]

Its not as if she is tribal because she has been effing up investigations involving both JLP & PNP , a wonda if she a tek money under di table from both sides.

[Willi]

TenQ sah...she just look for fit fi primetime.

[Sir X]

Do they vet these appointments , how is it done ,something is constitutionally wrong with the process and the position ?

Gamma...hehe...

[Sir X]

Jamaica At Risk Of Losing War Against Corruption
Published: Sunday | October 30, 201110 Comments

Golding
1 2 3 >
Blames DPP failings for cold cases

Low penalties make mockery of laws

Below is an excerpted presentation delivered by Contractor General Greg Christie as part of the Caribbean International Network Lecture Series in New York on October 26.

If it is accepted that the Contractor General Act has fallen short of its mark, why has the State not taken the requisite steps to remedy the act's deficiencies so that its purported objectives, of ensuring integrity, transparency and accountability in government contract awards, can be fulfilled?

Such a question will necessarily invite a discussion on the subject of the lack of political will. This is something that I have already suggested is lying at the root of several problems.

Political will is about the demonstrated desire, sincerity and actions of the government of the day not only to fight, but also to win, the battle against corruption.

Political will requires that the State, led by the incumbent adminis-tration, must take all requisite steps to put in place a comprehensive and independent anti-corruption institutional framework which is backed by:

(a) adequate resources;

(b) effective laws;

(c) tough criminal custodial and pecuniary sanctions for breaches of those laws; and

(d) anti-corruption institutional leaders who are prepared to dispassionately discharge their respective mandates and to forthrightly enforce those laws.

Political will is, therefore, about walking the talk, not talking the talk. It is about action, not words.

In particular, it demands that a prime minister must hold his Cabinet ministers and senior public officials fully accountable for their deviant conduct, or breach of trust, irrespective of the sacrifices that must be made, or the penalties that must be paid.

It is also important to recognise that the lack of political will can manifest itself in the deliberate creation of state anti-corruption structures, mechanisms and institutions, which are intended by the political directorate to appease the desire of its domestic and international stakeholders, but which are, in effect, mere facades.

Such structures are easily identifiable. While on paper they may look good, upon closer examination they will be found, either to be ineffective, weak, structurally deficient, lacking in teeth, lacking in critical resources, and/or led by political implants that are there to do the bidding of the political directorate.

Once this happens, the effectiveness of the State's anti-corruption institutional framework will be undermined,and the institution or the mechanism in question will be rendered literally useless.

major failing

A major failing of the Contractor General Act is that a contractor general has no power to prosecute corruption or other criminal offences which are associated with breaches of the Government's procurement, contracting and licensing laws, whether in his own right, or via a broad fiat which is issued by the director of public prosecutions (DPP).

Instead, a contractor general is required by law to refer matters to the appropriate state authorities, whether it be the Jamaica Constabulary Force (JCF), the DPP or the attorney general, for the appropriate action to be taken against offending public officials.

Coupled with the fact that a contractor general's remedial recommendations can be lawfully ignored by the Government, the inability of a contractor general to initiate his own prosecutions raises even more worrying questions as to whether the Parliament, in promulgating the Contractor General Act, had intended for it to be truly effective.

But what is the OCG griping about, you might ask, since there exists these other arms of the State to investigate and to prosecute allegations of criminal offences, inclusive of corruption related offences?

The simple answer is that looks are deceiving, for despite the presence of a JCF and a DPP, the fact is that there is now persuasive evidence that the relative paucity of criminal investigations and prosecutions for offences involving corruption, as well as for other related offences, in Jamaica, has now reached disproportionate if not crisis levels.

One major reason why corruption has been having free rein in Jamaica is that it has historically competed unsuccessfully for the attention of the JCF, the DPP and the judiciary.

unbalanced arrangement

In what has become an alarmingly unbalanced arrangement that is now seriously hurting Jamaica, corruption has repeatedly lost out, for attention, to offences against the person and, in particular, to an average national murder rate which now stands at more than 1,500 per annum for the last 10 years. No one, it seems, is taking the matter seriously and the perceived reasons for this are as troubling as they are varied.

Deepening the problem regarding corruption in Jamaica, it is arguable that neither the JCF nor the Office of the DPP was, in the first place, structured, or adequately resourced, to effectively and efficiently investigate and prosecute sophisticated crimes of corruption, or other potentially complex white-collar crimes which have now come to the fore. Indeed, in the case of the Office of the DPP, even more troubling questions have arisen.

Between December 2010 and February 2011, the Anti-Corruption Branch of the JCF, the OCG and the Jamaica Commission for the Prevention of Corruption have all publicly lamented the fact that several criminal matters which they have separately referred to the DPP had not been prosecuted.

In the case of the JCF, on December 9, 2010, on International Anti-Corruption Day, Assistant Commissioner of Police Justin Felice, who oversees the JCF's Anti-Corruption Branch, while publicly acknowledging the JCF's outstanding successes in laying corruption charges against several low-ranking police officers, raised concerns about referrals regarding senior police officers of the JCF which had been conveyed to the DPP, but which had not resulted in criminal prosecutions.

On February 17, 2011, while appearing before a joint select committee of Parliament, I, myself, tabled before the committee a formal written report of the OCG, in which it was asserted that of the roughly 40 criminal referrals which had been formally sent by the OCG to the incumbent DPP, Ms Paula Llewellyn, in the preceding three-year period, not one had to date been brought before the courts to test its judicial efficacy.

Further, in February 2011, the Commission for the Prevention of Corruption publicly expressed concerns about the failure of the DPP to prosecute literally thousands of matters, involving public officers, which had been referred to it by the commission.

dissatisfied

In particular, the commission lamented the fact that since its establishment 11 years ago, although more than 18,000 persons had been referred to the DPP, only 512 of the matters had been acted upon. The commission also signalled that it was dissatisfied with the number of matters that were thrown out by the DPP, noting that this frustrated the oversight body's efforts at reducing corruption.

But even if the commission of corruption and other related offences were today being effectively and efficiently investigated and prosecuted in Jamaica - a situation which, unfortunately, is not the case - the fact of the matter is that the sanctions that are associated with breaches of the said offences are so low that they cannot possibly serve as a deterrent, but yet nothing is being done about it.

A case in point is the innumerable OCG recommendations which have been made to have the situation remedied as regards the prescribed sanctions for the three anti-corruption offences that are specified under the Contractor General Act. The subject sanctions have remained, for the last 28 years, at the inexplicable low level of a fine not exceeding J$5,000 and/or to imprisonment for a term not exceeding 12 months.

The situation with respect to criminal breaches of the Government's Procurement Rules and Procedures is not dissimilar.

Despite specific public promises that were made by former Prime Minister Golding on September 11, 2007, on the occasion of his official inauguration into office, to impose sanctions for breaches of the rules governing the award of government contracts, and to make it "more difficult, more hazardous with stiff penalties for violations", the sole sanction that was eventually promulgated into law was "a fine not exceeding one thousand dollars or imprisonment for a term not exceeding three months or both".

One thousand Jamaican dollars, at current rates of exchange, is equivalent to less than US$12. This is roughly the price of four loaves of bread in Jamaica. Obviously, then, this has made a total mockery of the commitment that was given by the administration that it was genuinely serious about fighting corruption.

As a matter of urgency and necessity, it is, therefore, crystal clear that the situation in Jamaica is in dire need of critical address. Significantly tougher criminal sanctions must be legislated, and enforced, if corruption in public contracting is to be effectively tackled. These must include mandatory custodial and economic-based penalties, where appropriate.

the incontrovertible fact

Should the Jamaican State fail to act accordingly, then we will all be doomed, for it is an incontrovertible fact that a criminal will always proceed with his criminal conduct if his risk-benefit analysis of the situation always suggests to him that it will be beneficial for him to so proceed.

I allude to the report of the Bruce Golding-chaired committee (i.e. the Report of the Committee Appointed to Recommend Legislation for the Establishment of the Office of the Contractor General), which was completed and submitted, in March 1982, to then Prime Minister Edward Seaga.

Paragraph 1.3 (ii) of the report reads as follows:

"In launching the work of the committee, the chairman [Mr Golding] indicated that the independence and authority of the contractor general would be guaranteed in the Constitution and this would be done as part of the process of constitutional reform."

However, and despite the fact that 29 years have since passed, the Commission of the Contractor General is still, today, governed by an act of Parliament - an act whose provisions can be arbitrarily interfered with should the government of the day feel, for example, that a sitting contractor general has become too "overzealous" or intrusive.

The OCG continues to remain under the threat of a clear and present danger of political interference.

Grave harm is being caused, and will continue to be caused, to Jamaica by the failure of successive administrations to act decisively, proactively and aggressively to do what is right by Jamaica, versus doing that which is right by the measuring stick of political expedience.

[Sir X]

Is he saying that you can steal a billion dollars of govermental contracts and be fined 4 loafs of bread or 12 us dollars?

[Gamma]

well i had my reservations about her being appointed dpp but i don't do much criminal work so i only really had anecdotal info about her. persons who practice at the criminal bar had expressed their reservations ... i forget now who were the candidates...

[Sir X]

Is it a lifetime appointment ,whats her term limit ?

[Willi]

LoL

[Sir X]

Colonial Constitution Undermines DPP's Independence

Published: Sunday | November 27, 20112 Comments

Matondo Mukulu

Matondo Mukulu, Contributor

The recent passing of David Coore, QC, has left the Jamaican and Caribbean legal and political landscape in a state where it is calling out for men and women who are thinkers and shapers of a new and more certain landscape, influenced not so much by our colonial experience, but by the context that says we wish to make our own mark by making institutions relevant to our reality.
Edward Seaga and, perhaps, Richard Hart are the only living and direct links that we have today to those who played a role in the drafting of our Constitution, which is not very Jamaican, for understandable reasons.
While we should not administeri too heavy a critical lashing on the men (for there were no women at the table) who delivered this most colonial document to independent Jamaica, we should administer a modern-day lashing on those among us who fail to see that it needs a serious rethink, as it does not match either regional or international legal changes and challenges. Imagination is required.
Yes, I agree, we have taken steps to amend Chapter III with the enactment of the Charter of Rights, but something tells me that our collective intelligence, imagination and experience demand a reconfiguration of the office and role of the director of public prosecutions (DPP), as outlined in Section 94 of the Jamaica (Constitution) Order in Council 1962.
Colonial Origins
Within the English jurisdiction, the first DPP was appointed in 1880 following a recommendation made by a Law Commission. The driving rationale was to ensure that persons who were the victims of crimes were not saddled with the burden of having to incur the expense and plain burden associated with prosecuting a case in which they were the victim. Immediately prior to Jamaica's Independence in 1962, the DPP was appointed by the attorney general and his or her responsibility expanded significantly in 1964, with the creation of the body with the sole responsibility of conducting all criminal prosecutions - the Crown Prosecution Service. This is a major development within the jurisdiction from which we inherited our present system of public prosecution.
The Power
In Jamaica, Section 94 of the Constitution, in stating that there shall be a person appointed as a DPP, sets in effect only two job specifications. The first is that the person appointed cannot be appointed to the public office if he or she would not have been eligible to be appointed to sit as a judge of the Jamaican Supreme Court. In practical terms, this means that you can only be appointed to the office of DPP if you have been a lawyer for a minimum period of 10 years in any of the following jurisdictions: Jamaica, England, Scotland or Northern Ireland.
Alternatively, if the number of years one has been a resident magistrate and a member of the Bar amounts to no less than 10 years, you will be eligible for appointment as a DPP. The second job requirement for being appointed to the Office of the DPP is that you are under 60 years.
The Constitution, in reflecting the era when it was drafted, while dealing with the prosecutorial powers of the office holder at Section 94 (3), is unashamedly silent on the administrative powers of this office holder, who undoubtedly, as the tenure of both Kent Pantry and the present DPP has shown, has a great deal of non-prosecutorial duties to perform.
Most observers have commented, and rightfully so, on the rather extensive powers granted to the DPP in the performance of the role of the state's chief prosecutor. Of course, there is clear logic in ensuring that the important decisions of which cases should or should not be prosecuted are free from any irrelevant considerations or interference. As such, Section 94 (6) makes the point that in performing the prosecutorial function, the DPP shall not be subject to the control or direction of any individual or authority. This, in effect, gives the DPP what can only be described as absolute power to perform the difficult task.
The Privy Council has set the parameters as to when a successful challenge can be made with respect to the exercise of the powers conferred by Section 94 (6) of the Constitution. By setting limits, undoubtedly the judiciary is saying, from my reading, that the principle of prosecutorial independence demands that, save where a case cries out for judicial intervention (some say Janice Allen is still such a case), it defers to the supremacy of what is contained in the Constitution and, ultimately, the presumed wisdom of the officer holder.
Reform
While agreeing that there must be prosecutorial independence, it is equally imperative that we give consideration to the fact that a public office so shrouded in a veil of secrecy (in its decision-making) can never truly secure the confidence of the people. It is simply not sustainable in modern-day Jamaica for a DPP not to have a set of factors, beyond a purely legal test, which are relevant to the decision to commence, not to commence or discontinue a prosecution.
Just last Wednesday, it was reported that Supreme Court judge, Justice Lennox Campbell, dismissed a matter because it had been on the court's list for the past 11 years, and the case had been unsuccessfully set for trial almost 40 times. The current DPP was not impressed with the court's decision, and she observed that this was a serious matter.
However, I am forced to ask the DPP two questions: What factors convinced you and your officers to continue with this prosecution? Second, were you only motivated by a desire to secure a conviction, despite the significant passage of time and the obvious impact that this could have on the prospects of the defendants having their constitutional right to have a fair trial?
What this most recent case has shown us is that while we must maintain the right of the DPP to perform her prosecutorial functions without control and direction from any person or authority, there also needs to be, to retain public confidence in such a system, a set of clear guideline factors, which the DPP must consider and apply, in arriving at the decision whether or not to prosecute or discontinue a prosecution.
Among the relevant factors, the following would be relevant: (a) whether a case is made out on the facts, and given the circumstances, there is a reasonable prospect of securing a conviction; (b) whether the defendant will have a fair trial; and (c) whether it is in the public interest to initiate, continue or discontinue the prosecution.
With these or any similar guidelines, it would appear to me that a DPP would be forced to consider seriously how he/she goes about not only taking the decision to initiate a prosecution, but, more important, the DPP would be compelled, by fear of a court challenge, to review that said decision as though it might have been correct to commence, it does not always follow that it is in the public interest to continue such a prosecution.
As it stands, we will never know what factors influenced the DPP's decision to continue an 11-year-old murder case, despite the fact we are the ones paying for this luxurious waste. Our current understanding of governance, where we have a right to information under the Access to Information Act, and where we have now accepted that even prisoners have rights, is not a threat to the independence of the DPP.
What I am proposing, in the form of guidelines for the DPP, would actually strengthen that cherished independence.
To demonstrate that point, we should take the concerns raised by Contractor General Greg Christie, and consider whether the public interest is being served by a DPP who rarely initiates prosecution following a recommendation made by the Office of the Contractor General (OCG). I am of the view that this issue raised by the contractor general is a legitimate one, and if we were to table the guidelines being proposed in Parliament, it would give the contractor general or any interested citizen the ability to initiate a judicial-review claim raised by the OCG to ascertain whether the right factors are being considered by the DPP.
This is how you bring about accountability, by having objective factors against which we can assess performance. Certainly, the DPP should be asking for such guidelines, as it will reduce the level of personal critique to which she has been subjected.

Finally, the requirement which sees lawyers from other Caribbean countries being effectively barred from becoming DPP in Jamaica must be adjusted without hesitation, not only because it runs contrary to the aims of CARICOM, but it is reflective of the colonial origins of our laws, as Scottish or English lawyers were not excluded. This is no longer sustainable and it should be dealt with by amending the Judicature (Supreme Court) Act.

Of course, we needed to start somewhere in 1962, but the more I think about the role of the DPP, and the required independence, my conviction is deepened as to the urgency of strengthening that independence, not through further absolute power, but through clear prosecutorial guidelines. Ms Paula Llewellyn, your voice should be the loudest in the call for reformation. The public interest demands it.

Matondo K. Mukulu is a practising barrister. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.