The amendment bill was passed on Friday, January 28, 2011, not without a stir, but some people are still not clear about it, and so I will try to shed some light on it.

Section 69

Section 69 of the Criminal Procedure Act (Cap 125) makes provision for private prosecution as opposed to public prosecution. It provides for matters that are brought privately and are criminal in nature. The section states accordingly “any person conducting a private prosecution may do so in person or may be represented by a legal practitioner instructed by him in that behalf”.{{more}}

This is different to the cases that are permitted by the Director of Public Prosecutions (DPP) to go to a judge and jury at the criminal assizes. The DPP determines which matters are heard or not heard by the judge. The matters that are dealt with in the Criminal assizes are given in the form “R v Carpenter”. A private criminal matter is given in the form Smith v Brown or Jones v Whalley.

The Amendment

Several subsections have now been added to Section 29. Private prosecution remains on the statute book, but the subsections now circumscribe it. With the amendment, anyone who wants to pursue a private prosecution must obtain a fiat (permission) from the Director of Public Prosecutions.

Any matter that goes into the Criminal court, whether private or public, must secure the consent of the “gate keeper,” the DPP. There are already many laws on the statute books that specifically give the same power to the DPP and this would now add more to the duties of the DPP. He has the power, also under Section 64 of the constitution, to discontinue matters.

We saw the operation of private criminal prosecution in the recent matters that came before the Chief Magistrate. Two were thrown out, and the others, which remained were eventually discontinued by the DPP. With the amendment, these matters would have gone straight to the DPP for his scrutiny.

Judicial Review

If a person does not get the consent of the DPP the matter does not have to perish. The person can apply for judicial review of the decision of the DPP. This might have the effect of prolonging the litigation process, because the litigants must have this resolved first.

The debate in Parliament

In the debate in parliament, the House of Lord’s case of Jones v Whalley (2006) was highlighted. (I will look at some of the details in a subsequent article). That matter had to do with whether a private prosecution could be undertaken for a defendant who was ‘cautioned’ by the police. The Lords saw the merits in the DPP taking over that particular matter and certain other maters, but they did not see the need to abolish private prosecution. Reference was made to Lord Wilberforce who extolled the value of private prosecution in these words: the right to bring a private prosecution is “a valuable safeguard against inertia or partiality on the part of authority.” Gouriett v Union of Post Office Workers [1978]. In this and the previous case, there appears to be a preference for the intervention of the DPP over the decision of the police.

Argument on both sides in Parliament

One parliamentarian in supporting the amendment said that a newly elected parliamentarian could be removed if a matter succeeds against him and that could bring down the government. The other side claims that this is a right of the people and that it should not be circumscribed. More so they openly claim that they do not trust the DPP and cited cases that were successfully prosecuted against him.

Both sides of the parliament presented hypothetical cases that are diametrically opposed. On one hand, the Opposition showed how the claimant’s rights could be affected, while the Government side showed how the Defendant’ rights could be affected. With this deadlock, impartiality and fairness would be the best antidote.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com