High Court upholds DPP decision to discontinue PPP private criminal charges

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Attempts to quash the decision of the Director of Public Prosecutions (DPP) to discontinue the criminal proceedings brought against Public Health Minister, Volda Lawrence and Minister of Social Cohesion, Dr. George Norton by the People’s Progressive Party failed on Friday when the High Court dismissed the applications.

People’s Progressive Party (PPP) Members of Parliament, Juan Edghill and Vickram Bharrat, in separate applications had sought writs of certiorari to quash the decision of the DPP to discontinue the private criminal charges against Ministers Lawrence and Norton respectively but High Court Judge, Fidela Corbin Lincoln, refused the applications on Friday.
“I am not persuaded that any of the reasons proferred by Mr. Bharrat provides a basis for the court to use its sparingly exercised power to review and quash the decision of the DPP to discontinue the criminal proceedings brought by him against Dr. George Norton. The application for a writ of certiorari is therefore refused,” Justice Corbin-Lincoln said in handing down her decision. A similar decision was handed down in the case Juan Anthony Edghill vs the DPP in the matter involving Minister Lawrence.

Last April, Edghill had filed a private criminal charge of Misconduct in Public Office, contrary to the common law, against Minister Lawrence for abusing public trust without reasonable excuse when she authorised or caused the unapproved single sourcing and purchasing of drugs and medical supplies for the Georgetown Public Hospital Corporation (GPHC) from Ansa McAl to the tune of $605.6M.

However, days after the charge was filed, the DPP discontinued it under Article 187 (1) of the Constitution of Guyana. “These charges concern a grave issue under the criminal law in relation to two serving Ministers. In the interest of good governance in the State of Guyana such allegations ought first to have been reported to the Guyana Police Force for an investigation to be launched and the advice of the DPP sought,” the Office of the DPP had explained in a statement issued to the press.

But Edghill was of the view that the decision of the DPP was capricious and whimsical, and such filed a Fixed Date Application at the High Court to quash the decision. He was represented by former Attorney General and Attorney-at-Law, Anil Nandlall.

The DPP was represented by the Attorney General Chambers. In its submission presented by Solicitor General, Kim Kyte Thomas, while alluding to Article 187 of the Constitution, pointed out that the DPP has the power to institute and undertake criminal proceedings against any person before any court of law, as well as to discontinue at any stage criminal proceedings at the level of the court. “…it is clear and without question that the Director of Public Prosecutions has the constitutional authority to discontinue private criminal complaints instituted in the Magistrate’s Court, in this case, Magisterial case jacket No.

5376/18 and filed by the applicant on the April 19, 2018 at the Georgetown Magistrates’ Court,” the Solicitor General told the court. Maintaining that the DPP had the constitutional authority to discontinue the charge against Minister Lawrence, the DPP questioned under what set of circumstances should the court grant leave for judicial review. To prove her case, the Solicitor General cited several cases.

“In Sharma v Browen-Antonie (2006) 69 WIR 379, the Chief Magistrate alleged that the Chief Justice of Trinidad had tried to influence a case involving the former Prime Minister, Basdoe Panday.”

“Facing imminent prosecution on a charge of attempting to pervert the course of public justice, the Chief Justice obtained leave to seek judicial review of an alleged decision to prosecute him by the Deputy DPP. Later the Judge made similar orders against the Assistant Commissioner of Police, retaining all of the respondents from taking steps to prosecute the Chief Justice. The judge refused an application by the respondents set aside the leave, whereupon they appealed successfully to the Court of Appeal.”

“A further appeal by the Chief Justice to the Privy Council was dismissed. The Privy Council, in two separate opinions, emphasised the exceptional nature of judicial review of a DPP’s decision to prosecute,” the Solicitor General explained.

A similar line of argument was put forward by the Solicitor General in the matter involving Dr. Norton, who was accused of abusing public trust without justification when he authorised or caused the rental of a known property at Sussex Street, Albouystown from Linden Holdings Incorporated to the sum of $12.5M per month. Throughout her submissions, Kyte maintained that the DPP properly exercised discretion, stressing that there is no evidence of bad faith.