THE mission statement of the Office of the Director of Public Prosecutions (ODPP) is to provide the people of Jamaica with an independent and effective criminal prosecution service which is both fair and just. The ODPP is staffed with 44 attorneys, 43 of whom act on the DPP’s behalf as her agents, and  34 administrative members of staff.

Consistent with the Constitution of Jamaica, the DPP initiates, takes over and terminates prosecutions in all courts of Jamaica. It should be noted that due to an anomaly, the DPP has no administrative control over the clerk of courts who prosecute in the Resident Magistrate’s Courts. The clerks are supervised by the Resident Magistrates and the Chief Justice. However, prosecutors at the ODPP provide assistance to the clerks, when so requested, by giving guidance on areas of the law and how to deal with some complex matters.

The ODPP may take over or intervene in matters of high public interest in the Resident Magistrate’s Courts, which has occurred in approximately one per cent of those matters. However, the primary arena of operations for prosecutors at the ODPP is in the Circuit Courts, Court of Appeal and the Privy Council. In addition, the DPP conducts all appellate work flowing from prosecutions, and is directly tasked with responsibilities under the Coroners Act, Proceeds of Crime Act, the Extradition Act and the Mutual Assistance (Criminal Matters) Act.

Assistance is also widely provided to ministries, government departments, statutory bodies, and the public, offering legal opinions on criminal matters. Presentations are made to various law enforcement and other agencies by the DPP and other prosecutors in the ODPP. The ODPP is a prosecutorial entity and not an investigative body.

According to section 94 (6) of the Constitution: “In the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.”

Following are edited excerpts of the preamble to a report on the work of the ODPP from January 2015 to July 2015, as released by Llewellyn who is Jamaica’s first woman DPP:

“Whilst giving due respect to different opinions from referring entities, members of the media, other stakeholders, civil society and the court, we are obligated to make our own independent assessment of all legal matters within our remit. All investigative bodies are subjected to the guidance and directions of the prosecutors who have conduct of the prosecution of any case as the legal authorities mandate that the prosecutor and the prosecution will suffer for the malfeasance of any investigator or state agency (See Harry Daley v R; RMCA 28/10, delivered March 8, 2013). It is on the prosecutor that the court imposes a burden in respect of the integrity, fairness and preparedness of the prosecution in any matter before the Court.

Administrative oversight of the DPP

The DPP is independent in the exercise of her judgment in respect of legal matters as provided for in the Constitution. However, the Ministry of Justice has administrative oversight of the ODPP through the permanent secretary who is the accountable officer.

It is the Ministry of Justice/permanent secretary who approves and dispenses monies for the purchase of goods and services to be used by the ODPP. This oversight continues in respect of personnel audits and approval for travel by any member of the ODPP while on official business. The ODPP also prepares an annual report outlining all business done for a one-year period for tabling in Parliament by the Minister of Justice.

Annual reports

An annual report is presented by the DPP, outlining the objectives of the ODPP as well as the activities for the year and presents its performance over the period of review which spans a time frame of one year, that is, from April of a given year to March of the subsequent year.

The DPP is mandated to provide annual reports pertaining to the business conducted by the ODPP as it pertains to its core remit, that is, prosecutions in the Circuit Courts, rulings completed, work undertaken in the areas of the Mutual Legal Assistance Treaty (MLAT) and extradition inter alia, as well as the number and types of seminars that have seen the participation of Crown Counsel both locally and abroad.

These annual reports and other submissions to include the proposed annual budget, corporate plans and operation plans are sent to the Ministry of Justice for the relevant approvals and processing. The last two annual reports for the periods 2012-2013 and 2013-2014 were prepared by the ODPP and sent to the Ministry of Justice from last year in 2014. However, I have been advised that these reports have not yet been laid in Parliament by the Honourable Minister of Justice (Mark Golding) who would then respond on behalf of the ODPP to any queries that will arise from Parliamentarians after having perused the reports. This accords with the practice in some other Commonwealth jurisdictions with a similar scheme as it relates to the ODPP.

Circuit Courts; crime triples; Vybz Kartel case

The Circuit Courts operate in gazetted periods which are called the Hilary Term which is operative from January to early April, Easter Term is from mid April to July and the Michaelmas Term is operative from September through to December. The rural Circuit Courts operate for three to four weeks at a time and are manned by one judge, one or two Crown Counsel and only one courtroom is utilised. Given the tripling of crime over the last 40 years, the system is in need of more judges, prosecutors, courtrooms, court staff and jurors.

Generally speaking, the increased use of criminal case management by all stakeholders means that more cases are being readied in the courts for trial, but on some occasions these cases cannot be reached and have to be traversed to the following Circuit which may only sit for three to four weeks. The same is true of matters before the Home Circuit Court which sits continuously but is still unable to accommodate all the matters.

The cases are now of varying complexity whereby one case can last from one day to several weeks. For example, the R v Adijah Palmer et al (the Vybz Kartel case). The court can only try one case at a time unless an accused person gives a guilty plea.

Rulings

A ruling is a recommendation and/or opinion rendered after an analysis of the fact pattern and the relevant law.

Various entities such as the divisions within the Jamaica Constabulary Force and other investigative entities send files to the ODPP for rulings to be made. Our recommendations are of persuasive force but are usually accepted and acted upon by all referring entities. Of course, the DPP’s decisions are always subject to judicial review.

Please note that the ODPP prepares statistics in respect of rulings at the end of each quarter. Therefore, files that are dealt with at the end of each quarter may have been received in a previous quarter. This time lag is caused by having to await for outstanding material from the investigator or exigencies caused by volume of work for members of staff as every attorney in the ODPP goes to court. These rulings are researched and prepared by all attorneys during our regular court schedule which is constant throughout the term.

Units and their functions

Units such as those which address issues dealing with corruption prevention, extradition, mutual legal assistance and financial crimes (including an anti-lotto scam taskforce), Digital evidence and cyber crimes

as well as human rights, human trafficking, intellectual property and sexual offences have been established in the ODPP to provide advice on matters and to interface with police officers, other stakeholders and members of the public to ensure that the delivery of justice does not fall below the standard that has been set by the ODPP and the courts.

To prosecute or not to prosecute

When considering the institution or continuation of criminal proceedings the first question to be determined is the sufficiency of evidence. A prosecution should not be commenced or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by an identifiable person. The proper test is whether there is a reasonable prospect of a conviction should proceedings be instituted. This decision requires an evaluation of how strong the case is likely to be when presented at trial.” (Page 14: The Decision to Prosecute: A Jamaican Protocol- please see www.dpp.gov.jm)

In making decisions whether or not to prosecute a matter, prosecutors are guided by the Privy Council decision of Marshall v The Director of Public Prosecutions (2007) UKPC 4 (January 24, 2007. Privy Council Appeal No 2 of 2006 which stipulates at paragraph 18:

Where the decision is based on an assessment of the evidence and the prospects of securing a conviction, the courts will still accord great weight to the judgment of experienced prosecutors on whether a jury is likely to convict.’

Additionally, my team and I are fully aware of the public’s clamour for transparency and accountability and we continue to put in place systems which will help to assist in this respect, as we exercise our prosecutorial functions.

In light of recent comments made in the public domain, I am, going forward, providing as a service to the public, a snapshot of what would be contained in our future annual reports, hopefully to enhance and illuminate an understanding of the functions of the ODPP. It will cover number of cases listed, number of convictions, number of acquittals as well as rulings received and completed. For clarity, Home Circuit matters are those prosecuted in relation to Kingston and Saint Andrew. All other matters are prosecuted before the rural Circuit Courts for the remaining parishes.

These tables (which can be found on the DPP’s website) exclude our statistics in relation to Extradition and Mutual Legal Assistance. Suffice it to say, our records, which include the first extradition of a fugitive accused of wire fraud, have been commended by our external partners pertaining to the professionalism and responsiveness of the DPP in processing these requests.

Prosecutor’s job onerous

The job of a prosecutor is a very onerous one and sees that prosecutor operating in a context where one is surrounded by challenges of every description. This job is experience-driven as recognised by the Privy Council in Marshall v The Director of Public Prosecutions (supra) and requires a skill set in respect of the knowledge of the law and the ability to make decisions as well as balancing many variables in respect of evidentiary material and the relevant law. It also carries with it the responsibility to execute one’s functions without fear or favour and one’s constant companion must be courage surrounded by integrity and fairness.”