Director of Public Prosecutions responds to Compass editorial

We refer to the Cayman Compass editorial of Wednesday 2nd July 2014, and a related article, noting with concern the clear implication therein that the prosecuting team in the Cayman Islands and thus the Cayman Islands itself are not serious about prosecuting corruption matters. This implication is wrong and is perhaps made from a misunderstanding as to the role of a public prosecutor’s Office. The Office of the Director of Public Prosecutions (DPP) is not a rubber stamp for the actions or beliefs of the police. It has been deliberately established under the Constitution as an independent office, as is appropriate in a fair and democratic society.

The DPP cannot comment on any specific matters referred to it by the Anti-Corruption Unit. However, our approach to cases submitted to us for ruling is informed by dicta from the Privy Council which requires us to make decisions based on our independent and professional judgment. In particular, we are guided by the observations of Lord Bingham in The Hon. Satnarine Sharma v Carla Brown-Antoine and others [2007] UKPC 57 (at paragraph 14).

“The rule of law requires that, subject to any immunity or exemption provided by law, the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of state, but nor can the holding of such an office excuse conduct which would lead to the prosecution of one not holding such an office. The maintenance of public confidence in the administration of justice requires that it be, and be seen to be, even-handed.

“It is the duty of police officers and prosecutors engaged in the investigation of alleged offences and the initiation of prosecutions to exercise an independent, objective, professional judgment on the facts of each case. It not infrequently happens that there is strong political and public feeling that a particular suspect or class of suspect should be prosecuted and convicted … This is inevitable, and not in itself harmful so long as those professionally charged with the investigation of offences and the institution of prosecutions do not allow their awareness of political or public opinion to sway their professional judgment. It is a grave violation of their professional and legal duty to allow their judgment to be swayed by extraneous considerations such as political pressure.”

However strongly an investigator may feel about the merits of the case he has submitted for ruling, it remains the sole responsibility of this Office to objectively determine whether the material presented passes the evidential test i.e. that there is a realistic prospect of conviction if the evidence is produced to a reasonable tribunal and that the case merits prosecution in the public interest. An investigator’s sentiment about the quality of his investigation is irrelevant. What matters is the evidence that is presented for review and whether that evidence can prove all the legal elements of a particular charge under any law. This is a legal test correctly undertaken by lawyers trained to make such decisions within the independent Office and was applied across the board in respect of the 2,321 cases received from all law enforcement agencies for review during the financial year ending 30th June 2014.

This Office does not refuse to take forward any case where the evidential and public interest tests are met.

Where a determination is made that the evidence in a particular case is insufficient, clear and detailed written reasons are provided to the RCIPS including, where necessary, obtaining a second external opinion. They are generally advised that should new evidence come to light, the matter is to be revisited. This approach is taken for all types of cases including firearms and murders where the evidence is insufficient and the cases require further investigation. It is then a matter for the police to determine whether there are other avenues of investigation which may be utilized to secure the required evidence. In a number of instances where additional investigations have been done based on the recommendations from this Office, the files have been re-submitted and successful prosecutions have resulted.

Within the last 14 months, this Office has successfully prosecuted cases involving four public officials under both the Anti-Corruption Law and the Penal Code. To suggest that this Office is not serious about prosecution of corruption matters because five other cases were found not to have met the evidential test is clearly erroneous.

Further, any implication that the Office should be proceeding with a case because it is an “anti-corruption case,” even where the evidence is simply insufficient to do so, would be patently contrary to the rule of law and inimical to the interests of the innocent, who we also have a duty to protect.

Comments are closed.