A report titled Observations on Criminal Prosecutions in Jamaica was tabled in Parliament towards the end of January. This report was presented as a result of efforts in support of justice reform in Jamaica on the part of the International Legal Programmes Section of the Department of Justice of Canada.
The Legal Programmes Section, the report states, provides specialised advice in support of an integrated approach to advancing Canada's objectives in foreign policy and development assistance. Through a variety of initiatives, the section contributes to justice reform and improved governance in countries whose needs in these areas have been identified as priorities by the Government of Canada.
In early 2006, the Government of Jamaica, through the Canadian International Development Agency, asked that a preliminary assessment of Jamaica's justice system be carried out with a view to designing a longer-term programme for justice reform. Since that time, the International Legal Programmes Section has been working on the conception of a proposed initiative known as Justice Undertakings for Social Transformation (JUST).
The report further states that, as part of the development of the JUST programme, Jamaican authorities requested that the Legal Programmes Section conduct a detailed analysis of the organisation and operation of the Office of the Director of Public Prosecutions (DPP) and the observations represent the outcome of that analysis.
Cooperation
Patterson and Pantry
The efforts in support of justice reform in Jamaica reflect Canada's willingness and commitment to provide expertise in complex areas where real, practical and lasting progress can only be made through direct government-to-government cooperation. In this regard, the Government of Canada has, for quite sometime, continued to render signal assistance to the Government and people of Jamaica.
It would be instructive to contemplate two of the issues that the report addresses, namely, accountability and the framework of plea bargaining.
The report encourages us to conduct a reflection on the notion of the independence of the DPP. It notes that criminal prosecutors wield extraordinary power in that they can exert significant influence on the freedom and even the life of their fellow citizens. It is therefore essential that the prosecuting authority - both collectively and at the level of the individual prosecutor - be, and be seen to be, independent in the performance of its duties.
In that perspective, many Commonwealth states, including Jamaica, have created an independent prosecution entity in order to safeguard the prosecution function against inappropriate political influence.
Accountability
That said, independence is not to be confused with unaccountability, the report warns. In a democracy, accountability is in many respects the obverse side of the concept of independence and so, the report observes that prosecutors should expect neither to be exempt from public scrutiny nor shielded from public accountability.
The constitutional provision, at Section 94(6), that "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", has perhaps caused Jamaica to have taken a very uncompromising view of prosecutorial independence. As a result, the report records, the accountability aspect has been neglected.
This strained view of prosecutorial independence was dramatically highlighted in 2004, when the simple fact that the prime minister requested the DPP to submit an annual report to Parliament on the activities of his office was seen by some as a direct attempt to undermine his independence.
The Gleaner of Saturday, May 1, 2004, published a news item titled 'DPP to present report to House'. It stated that in a rather surprising, if not unprecedented, move, Prime Minister P. J. Patterson sent a letter to Kent Pantry QC, director of public prosecutions, demanding (sic) that he pre-sent before Parliament information concerning activities of his office."
Public reactions
Pantry did not appear to have any problem with the request made by the prime minister for his first public reaction was that he made reports to the ministry of justice and had no difficulty with those reports being shared with Parliament.
Not so fast, the Advocates Association of Jamaica challenged. According to a statement through its president, colleague attorney George Soutar, it was a breach of the Constitution of Jamaica for the DPP to be ordered (sic) by the Government to make periodic reports to Parliament, since it could erode the independence accorded the office in how it carries out its prosecutorial functions.
That view is not supported by the observations of the Canadian team, noting, as they do, that it could be argued that the current intransigent conception of independence to the exclusion of accountability has the effect of undermining trust in the institution and reducing its efficiency.
They also point out that our own national security strategy recognises "the need to ensure accountability in the various components of the criminal justice system, as it demonstrates fairness in the way people are treated. The application of the law should be without fear or favour, requiring that all persons, regardless of their role in society, comply with the law and deal justly with others".
The report recommends that, in the interest of the good functioning of Jamaican institutions, it would therefore be useful to conduct a reflection on the whole matter of the proper balance between the independence and accountability of the DPP. It maintains that, while there were questions regarding the constitutional enforceability of the former prime minister's request, it answered public wishes for a more open prosecutorial system in the pursuit of the just society.
The second issue - plea bargaining or plea agreements - in certain circumstances contemplates an accused agreeing to provide information to the authorities or to give evidence against his co-accused. The framework of plea bargaining as it is practised in Canada and the United States is, of course, much wider, but in all such agreements, the benefactor must enter a guilty plea with the expectation that he will receive a more lenient sentence.
Plea bargaining regim
The report states that a Canadian expert has noted that: "Freedom to enter into negotiations with defence counsel and to accept pleas to lesser charges, to reduce charges and to withdraw charges, is a major aspect of the key position that the prosecutor plays in the administration of criminal justice".
It is clear, however, that a decision on the part of the prosecutor to withdraw a charge or decide not to prosecute, without the benefactor being required to enter a plea of guilty, does not fall within the boundaries of plea bargaining. And this includes when the benefactor agrees to give evidence against his co-accused.
Further, whether within or outside of the plea bargaining regime, the proper administration of criminal justice turns its face against any inducement, or even the faintest trace of inducement, to be given, or appear to be given, to a benefactor before or after he agrees to give evidence against his co-accused.
The Canadian team observed that there have also been additional recommendations for the DPP to be required to give written reasons for a decision not to prosecute and, I apprehend, when a decision is taken to withdraw a charge. Those who make this suggestion call for that requirement "especially in instances of the use of deadly force by the police".
It would, perhaps be helpful to discover whether the Advocates Association has a view concerning this recommendation and whether the parameters of such a requirement should extend beyond cases against the police. Should they extend, for example, to instances where such decisions may be influenced by such considerations as media or political interest in a particular case or the social class of the accused or complainant?
A .J. Nicholson is Opposition spokesman on justice. Feedback may be sent to column@leanerjm.com.