Criminal Practice and Procedure - Role and Function of the DPP

Main prosecuting authority

The DPP (Director of Public Prosecutions).

DPP prosecution powers

Can take over or discontinue a prosecution.

Creation of DPP post

Created by the Constitution in most territories.

High Court indictments

Filed by the DPP's office.

DPP fresh charges after discharge

The DPP may instruct police to lay fresh charges following a preliminary inquiry discharge.

DPP action after discharge of committal proceedings

The DPP may also act where there is a discharge at the end of committal proceedings.

Voluntary bill of indictment

Used in certain territories to procure the accused's committal for trial.

Offences requiring DPP consent

Specified by statute; required before proceedings can be initiated.

DPP duty regarding pre-trial publicity

Ensuring an accused person is not unfairly prejudiced so they can get a fair trial, achieved by his power to prosecute for contempt.

DPP duty to act fairly

The DPP has a duty to act fairly in deciding whether or not to prosecute.

Police prosecution

Allowed by statute in some jurisdictions for police officers to prosecute criminal cases.

Private prosecution

Allowed by statute for persons to privately file and prosecute criminal cases, including cross charges.

Summary courts assistance

Complainants or defendants may be assisted by a relative (spouse, parent, son, daughter) or employer in some jurisdictions.

Prosecution of serious and High Court cases

Conducted by State Attorneys or Crown Counsel from the DPP's department.

DPP role in High Court indictments

The DPP plays a crucial role in High Court proceedings by preferring the indictment.

DPP powers in Guyana, Jamaica, and Trinidad and Tobago

They appear almost free from external control.

Trinidad and Tobago AG responsibility for legal affairs

Does not refer to interference with the prosecution of criminal matters.

AG of Fiji v DPP [1983] ruling

Constitutional functions and powers granted to the DPP are non-assignable unless specifically stated otherwise.

Permissible areas of AG control over DPP's department

Matters of funding, accountability, accommodation, facilities, and reviewing staff establishment.

Head of State assignment of DPP functions to AG

Permissible for the Head of State to assign to the AG functions of the DPP not required by the Constitution or law to be exercised exclusively by the DPP.

The State v Seeromanie Maraj-Naraynsingh et al Cr App No 5 of 2006

Trinidad and Tobago Court of Appeal ruling confirming the DPP is under no obligation to obey instructions from the Attorney General , followed Ag of Fiji v DPP

DPP independence in Trinidad and Tobago

Confirmed by a five-judge panel that the DPP is under no obligation to follow AG instructions regarding prosecutorial powers.

DPP advice to police

DPP may advise police before charges are laid, especially in public interest, murder, and complex cases.

Police obligation regarding DPP advice

Police must follow DPP advice because the DPP can take over criminal proceedings at any time.

DPP power to direct charges

The DPP may direct police to institute charges against any person before any court except a court-martial.

DPP power to discontinue proceedings

The DPP may discontinue criminal proceedings at any stage before judgment.

Delegation of DPP powers

The DPP may delegate powers to specified persons, usually legal officers in the DPP's office, who remain subject to the DPP's instructions.

Benjamin v Commissioner of Police [2014] UKPC 8

Privy Council ruled the DPP's constitutional power to institute proceedings does not include the power to prevent police from initiating them.

DPP power to instruct police not to charge in Benjamin v Commissioner of Police [2014] UKPC 8

The Privy Council held that the DPP cannot legally instruct the police not to institute criminal proceedings.

DPP requests to police regarding charges in Benjamin v Commissioner of Police [2014] UKPC 8

Although the DPP cannot instruct the police not to institute proceedings, they can make such a request, which the police should act cautiously before rejecting.

Section 88(1)(c) and police proceedings of the consitution of Antigua and Barbuda in Benjamin v Commissioner of Police [2014] UKPC 8

The Privy Council rejected the view that the DPP's power to discontinue proceedings implies a power to prevent police from instituting proceedings.

DPP consent ('fiat')

Required by statute for certain offences before proceedings begin; without it, proceedings are null and void.

Offences requiring DPP fiat

Typically include corruption and certain types of perjury.

Purpose of DPP consent rule

Protects persons in high office from being subjected to unfounded or 'willy-nilly' accusations by third parties.

Tappin v Lucas (1973) 20 WIR 229

A Guyana Court of Appeal ruling that a letter signed by the DPP is sufficient to discontinue proceedings or indicate necessary consent.

Timing of DPP consent

Consent does not need to be given before arrest or being charged, and can be validly obtained up to the time the defendant appears in court.

Court practice regarding DPP consent

Courts should not entertain the laying of a charge unless the necessary consent of the DPP has been granted and is indicated.

Angel [1968] 2 All ER 607

Held that criminal proceedings initiated without mandatory DPP consent are a complete nullity, and any resulting conviction must be quashed.

Nolle prosequi

"to be unwilling to pursue". It is a formal entry or notice on the court record by a prosecutor or plaintiff stating that they will no longer prosecute a criminal case or civil lawsuit.

Trinidad and Tobago Criminal Procedure Act Chap 12:02, s 11

Gives the DPP the power 'not to further prosecute' only if the evidence is deemed 'insufficient'.

Marginal note vs. general concept of nolle prosequi

Although the marginal note describes s 11 as a nolle prosequi, the restriction to insufficient evidence is not in keeping with the general concept.

Timing of s 11 power exercise

The power 'not to further prosecute' under s 11 of the Trinidad and Tobago Criminal Procedure Act is only exercised after a preliminary inquiry.

Richards (Lloydell) v R (1992) 41 WIR 263, PC

Illustrated the use of nolle prosequi in its widest sense, allowing the DPP to stop proceedings after a manslaughter plea and restart with a murder charge.

Autrefois convict and nolle prosequi in Richards v R

The Privy Council held that there is no conviction if there has been no sentence, causing a plea of autrefois convict to fail.

Relationship between discontinuance and nolle prosequi

The power of discontinuance includes the power of nolle prosequi, making it unnecessary for a DPP to resort to the latter to stop criminal proceedings.

Boodram v AG of Trinidad and Tobago (1996)

Privy Council case addressing whether prejudicial pre-trial publicity violates the right to a fair trial.

Privy Council ruling on pre-trial publicity in Boodram

Prejudicial pre-trial publicity was held not to be a proper ground for complaint under the Constitution.

Privy Council on DPP inaction in Boodram

The Board found it surprising that the DPP did nothing to alleviate prejudicial press reports suggesting accused involvement in crimes.

DPP's responsibility to keep justice undefiled

The DPP has a heavy responsibility towards the court, defendants, and community to play their part in keeping 'the springs of justice undefiled'.

DPP duty regarding trial by media

The DPP must guard against trial by media by directing media to desist from prejudicial reports or bringing contempt proceedings.

DPP action on prejudicial reports

In cases of prejudicial media reports on criminal proceedings, the DPP must direct media to desist and/or bring contempt of court proceedings.

Reviewability of DPP decision not to prosecute

Historically thought unchallengeable (R v Comptroller of Patents), but now reviewable on grounds of unreasonableness (R v General Council of the Bar ex p Percival).

Marshall v DPP (2007)

Emphasised that while the power to review a decision of the DPP not to prosecute is available in principle, it is to be sparingly exercised.

Abuse of process in trial courts

Trial courts will consider an application to stay unfair proceedings on the ground of abuse of process if it amounts to delay or manipulation of the court's process.

DPP duty to give reasons

The DPP is not under a general duty to give reasons for a decision not to prosecute (R v DPP ex p Manning).

Exception to DPP duty to give reasons

Reasons are expected to be given when a person dies in state custody and a coroner concludes at an inquest that the killing was unlawful.

R (on application of F) v DPP [2013] EWHC 945 (Admin)

An English Divisional Court case considering judicial review of a decision not to prosecute in a rape case.

Ground for review in R (on application of F) v DPP

The decision was flawed due to an error in law regarding how 'choice' could influence 'consent' in rape.

Court order in R (on application of F) v DPP

Judicial review was granted, ordering the decision not to prosecute to be reviewed based on legal principles of consent explained in the judgment.

Significance of R (on application of F) v DPP

A rare instance of a review being granted for a decision not to prosecute, involving principles of conditional consent.

Satnarine Sharma v Carla Brown-Antoine (2006)

Privy Council held that challenging a decision to prosecute via judicial review should only occur in rare and exceptional cases.

Historical origin of police prosecution

A common law practice where police officers prosecute 'police cases' in magistrates' courts due to an insufficiency of lawyers and the minor nature of the matters.

Control of police prosecutors

Subject to the overall control and direction of the DPP in the prosecution of a case.

DPP magistrates' court prosecutions

The Office of the DPP prosecutes complex or capital matters and those of high public interest, depending on staff availability.

Recommendation to abolish police prosecutors

It has been recommended that police prosecutors be abolished and replaced by trained lawyers from the Office of the DPP.

Condition for replacing police prosecutors

Depends on the availability of resources to expand the establishment of the Office of the DPP.

McKenzie v McKenzie [1970] 3 All ER 1034

English Court of Appeal ruling confirming that an unrepresented litigant may be assisted in court by a non-practitioner assistant or "friend".

Collier v Hicks (1831) principle

Any person may attend court as a friend of a party, take notes, and give advice, but cannot demand to act as an advocate against the court's rules.

Scope of assistance by a McKenzie friend

A friend may sit with a complainant or defendant in civil or criminal cases to prompt and give advice, and may appear as an advocate unless court rules forbid it.