I arrived in July 2010, in Barbados, as the Criminal Justice Advisor to the Eastern Caribbean, with a blank canvas and no preconceptions.
I had left my job as a Specialist Prosecutor in the Organised Crime Division of the Crown Prosecution Service in London where I was advising on prosecuting some of the most dangerous criminals in England. I had previously defended for 8 years as a legal aid lawyer and wanted to bring objectivity to a role that would consider the interests of all users of the criminal justice system. My terms of reference were wide ranging with the specific aim of developing more efficient criminal justice systems in seven jurisdictions.
I saw it as very important not to establish myself as the purveyor of “all things are great back in England you should do them here”. It was essential that I engaged with all stakeholders to determine how any changes that I sugggested would continue after I left. This was an opportunity to make the criminal justice system more transparent and fair for the long-term.
Having taken the views of the relevant stakeholders and also having reviewed the criminal justice systems in the region I decided to focus on three key areas:
- Development of the process of whether or not to prosecute through a Code for Prosecutors;
- Protection of suspect rights at the police station through media recording of interviews; and
- Protection of witnesses.
Code for Prosecutors
The prosecutor occupies a formidable position in the administration of criminal justice. The decisions taken may profoundly affect the lives of others. In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, can undermine the confidence of the community in the criminal justice system.
High qualities are expected of the modern prosecutor. Good judgment. Complete integrity. An innate sense of fair play. An instinctive sense of what is right and what is wrong. Fearlessness is also an essential quality, for prosecution decisions are often controversial and the prosecutor must have the strength of character to resist criticism from whatever quarter, no matter how strident or painful. The profession of a prosecutor is an honourable one, but is not for the faint-hearted.
As Daniel Bellemare QC, sometime Vice President of the International Association of Prosecutors, has explained:
“It is not easy to be a prosecutor. It is often a lonely journey. It tests character. It requires inner strength and self-confidence. It requires personal integrity and a solid moral compass. It requires humility and willingness, where appropriate, to recognise mistakes and take appropriate steps to correct them. Prosecutors must be passionate about the issues, but compassionate in their approach, always guided by fairness and common sense.”
The Eastern Caribbean community has a vested interest in the proper conduct of its prosecutions, and the conviction of the guilty is just as much in the public interest as is the acquittal of the innocent.
I studied how prosecutions were conducted around the world in Australia, Ghana, Hong Kong, Canada, Fiji, Belize and New Zealand before I drafted for the region a Code for Prosecutors. The purpose of The Code for Prosecutors is not only to provide a code of conduct for prosecutors and to promote consistent decision making at all stages of the prosecution process, but also to make the community aware of the way in which the system of public prosecutions operates.
Principled criteria are applicable at all times when prosecuting, and the people of the Eastern Caribbean need to be able to see for themselves what exactly these are.
Transparency is essential for a fair and effective criminal justice system. The Code for Prosecutors is one step towards achieving this aim by creating a two stage test.
The first is the “Evidential Stage” where the prosecutor must determine there is sufficient evidence to form a reasonable prospect of conviction. A prosecutor must consider what the defence case may be, and how it is likely to affect the prospects of conviction. When deciding whether there is sufficient evidence to prosecute, prosecutors must consider whether the evidence can be used and whether it is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
The prosecutor must then consider the “Public Interest Stage”. It has never been the position that those suspected of criminal offences must automatically be prosecuted. A charge is only ever appropriate if it is in the public interest to bring it. In deciding where exactly the public interest lies in a particular case the prosecutor must consider the justice of the situation and examine all the factors. These vary from case to case and the application of the prosecution discretion is not an exact science. The prosecutor does not operate as a rubber stamp, and it would not be right to prosecute every case without regard to the interests of justice. In general, the more serious the offence, the more likely is it that the public interest will require a prosecution to proceed.
The prosecutor is guided at all times by the public interest in the measured application of the rule of law. The prosecutor exercises an important discretion on behalf of the public of whether or not to institute a prosecution of a suspect, and how to conduct a prosecution once it has begun. There is a need to maintain public confidence in the administration of criminal justice, and the community has a legie work of its prosecution service.
To date the Code has been implemented in Saint Vincent and the Grenadines, Saint Kitts and Nevis, Dominica and an updated edition published in Saint Lucia.
Suspect media recording of Interviews
The Judges Rules are still applied in the Commonwealth Caribbean with interviews or statements from the suspect being written contemporaneously. This can lead to: inaccurate recording of comments attributed to the suspect, and accusations of false statements. As a result confessions are routinely challenged in the courts.
However this is not an experience only shared in the Commonwealth Caribbean. In 1975 the ‘Guildford Four’ were jailed for life for bombing pubs in Guildford, England. The attacks left five people dead and over 100 injured. The four men spent 15 years in jail before the case was overturned in 1989. The case against them was found to be flawed and the credibility of the notes of interview were undermined as being not written up immediately.