Director of Public Prosecutions (DPP) Paula Llewellyn yesterday issued guidelines to her staff relating to the prosecution of cases involving Section 9 of the Cybercrimes Act.

According to the DPP, prosecutors may only commence a prosecution if a case satisfies the requirement of evidential sufficiency and consideration of the public interest, as set out in ‘The Decision to Prosecute: A Jamaican Protocol’.“As far as the evidential stage is concerned, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. This means that an objective, impartial and reasonable jury (or judge sitting alone), properly directed and acting in accordance with the law, is more likely than not to convict. It is an objective test based upon the prosecutor’s assessment of the evidence (including any information that he or she has about the defence),” Llewellyn advised.“A case which does not pass the evidential test must not proceed, regardless of how serious or sensitive it may be. In other words, if the material available on file does not cover the ingredients of the offence, then you cannot ethically proceed. Where the evidential test is achieved, the prosecutor must go on to consider whether a prosecution is required in the public interest,” the DPP added.Llewellyn also stated that in the majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed. “However, there will be cases, occasionally, where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In those cases, prosecutors may decide that the case should not proceed further.”The DPP said her office issued the guidelines – which define the use of a computer for malicious communication, the transmission of data which is considered obscene, and data that is threatening and menacing in nature – following recent public utterances from different quarters weighing in on Section 9 of the Cybercrimes Act, which deals with malicious communications.“It is imperative and most useful that cases involving the sending of communications/data via a computer undergo early consultation between police and prosecutors, and the police are encouraged to contact the prosecution at an early stage of the investigation,” the DPP said, adding that the provisions are similar to what obtains in England.“At common law it has always been recognized that in operational matters involving the investigation of a citizen, the police or law enforcement will have primacy of decision-making,” the DPP said. “The DPP cannot direct the police not to arrest and charge anyone. The DPP can only make recommendations to the police which they can accept or reject. It is after the matter is placed before the Court that the DPP, under the Constitution, can take over, or intervene in or discontinue any matter if the interests of justice make it necessary so to do.”The DPP pointed out that this position was reiterated in the Privy Council case of the

Commissioner of Police of Antigua v Steadroy Benjamin 2014 in which the law lords reaffirmed that the police will always have primacy in investigations, and that a DPP cannot instruct the police who to prosecute or who not to prosecute. Instead, the DPP can only make a recommendation.In addition to issuing the guidelines to prosecutors, the DPP said the requirements will be posted on the Office of the DPP’s website,

http:www.dpp.gov.jm, and will be disseminated to members of the police force, through the commissioner, by any means he deems appropriate.“I have taken note of a recent parliamentarian’s suggestion in his sectoral debate that in the review of the legislation going forward, that the initiation of prosecution should only take place with the consent of the DPP,” Llewellyn said. “That will be a matter for the purview of Parliament.“However, it is our considered view that the sharing of these guidelines with prosecutors and law enforcement, as well as members of the public, may go a far way in assuaging previously stated concerns in the public domain, as well as serve to not only build knowledge and capacity among law enforcement officers and prosecutors, but will also enhance the administration and perception of justice in this area among members of the public.”