Brooks v DPP
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Privy Council |
Jamaica - Crime - Indictment - Resident magistrate dismissing information against applicant after preliminary hearing - Application by Director of Public Prosecutions to judge for voluntary bill of indictment on same evidence - Whether judge having jurisdiction to prefer indictment - Whether applicant entitled to notice - Whether abuse of process -
The applicant was charged on information with carnal abuse of a girl under the age of 12. After a preliminary hearing the resident magistrate dismissed the information holding that no prima facie case had been made out against the applicant. The Director of Public Prosecutions, whose power under section 94(3)(a) of the Constitution of JamaicaF1 was not to be subject to the direction or control of any other person or authority, applied to a judge under section 2(2) of the Criminal Justice Administration ActF2 for a voluntary bill of indictment against the applicant for the same offence without giving him any notice. The judge ordered that a voluntary bill should be preferred and a warrant issued for the arrest of the applicant. A bench warrant for his arrest was signed by the judge and thereafter an indictment charging the applicant was preferred and he was arrested. He applied to the Supreme Court for redress under section 25 of the Constitution for alleged infringements of his constitutional rights. The Full Court of the Supreme Court dismissed his application and his appeal was dismissed by the Court of Appeal of Jamaica.
On the applicant's appeal to the Judicial Committee: —
Held, dismissing the appeal, (1) that although one of the five distinct powers to prefer an indictment prescribed by section 2(2) of the Criminal Justice (Administration) Act was exclusively available to the Director of Public Prosecutions he was entitled, in the exercise of his unfettered discretion, to seek the direction or consent of a judge to the preferment of an indictment; that the primary purpose of section 94(6) of the Constitution was to protect the Director of Public Prosecutions from political interference and it had no application to judicial control of proceedings; that in some situations it might be preferable for the Director of Public Prosecutions not to exercise his own power under section 2(2) of the Act but instead to rely on that of a judge, and in the exceptional circumstances where the Director of Public Prosecutions in the absence of additional evidence was seeking to prefer an indictment after a resident magistrate had decided that no prima facie case had been established against the applicant, it was appropriate to make the application to the judge; that in acting pursuant to section 2(2) the judge was merely taking the procedural step of endorsing the initiation of proceedings and prior notice of the application to the person against whom it was proposed to prefer the indictment was not required by principles of fairness, the common law or the constitution; and that, accordingly, there had been no infringement of the applicant's constitutional rights, and in all the circumstances the judge had properly exercised his discretion (post, pp. 578E–F, 579B, E, H–580B, E–F).
(2) That, although a defendant should only in exceptional circumstances be prosecuted after having been discharged in committal proceedings, there was ample evidence on which the resident magistrate would have been entitled to commit the applicant for trial and her decision had therefore been based on the lack of credibility of the prosecution evidence; that questions of credibility should usually be left for determination at trial, and in all the circumstances it would not be an abuse of the process of the court for the applicant's trial to proceed (post, pp. 581A–C, H, 582B).
(3) That the critical time for deciding the validity of a warrant for arrest was the time of its execution; that the judge, having decided that an indictment could be preferred, had been entitled to sign the warrant for the applicant's arrest, and that once the indictment was preferred the warrant became effective; and that, accordingly, since the indictment had been preferred before the execution of the warrant, the applicant's arrest was lawful (post, pp. 582G–583A).
The following cases are referred to in the judgment of their Lordships:
Barton v. The Queen (
Grant v. Director of Public Prosecutions (
Reg. v. Derby Crown Court, Ex parte Brooks (
Reg. v. Horsham Justices, Ex parte Reeves (Note) (
Reg. v. Inland Revenue Commissioners, Ex parte Rossminster Ltd. [
Reg. v. Raymond [
Rex v. Phillips (
Rex v. Philipps, Lucas and Gibson (
Wiseman v. Borneman [
The following additional cases were cited in argument:
Commonwealth Life Assurance Society Ltd. v. Smith (
Githunguri v. Republic of Kenya [
McBean v. The Queen [
Reg. v. Brentford Justices, Ex parte Wong [
Reg. v. Epping and Harlow Justices, Ex parte Massaro [
Reg. v. Governor of Pentonville Prison, Ex parte Alves [
Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [
Reg. v. Morais [
Reg. v. Spilsbury [
Roberts, In re [
Williams and Salisbury, In re (
Appeal (No. 43 of 1992) with leave of the Court of Appeal of Jamaica by the applicant, Lloyd Brooks, from the judgment of the Court of Appeal of Jamaica (Carey, Wright and Downer JJ.A.) given on 9 April 1992 dismissing his appeal from the judgment of the Full Court of the Supreme Court (Rowe C.J. (Ag.), Clarke J. and James J. (Ag.)) delivered on 16 September 1991 dismissing his motion against the respondents, the Director of Public Prosecutions and the Attorney-General of Jamaica, under section 25 of the Constitution of Jamaica for redress for alleged contraventions of certain provisions of the Constitution.
The facts are stated in the judgment of their Lordships.
Lord Gifford Q.C., Ian Ramsay and Jacqueline Samuels-Brown (both the latter of the Jamaican Bar) for the applicant. The first issue is whether a judge of the Supreme Court has power to make an order, at the instance of the Director of Public Prosecutions, that a voluntary bill of indictment be preferred. It is repugnant to justice for the Director to seek from a judge an order to do that which he can lawfully do without the judge's consent under section 2(2) of the Criminal Justice (Administration) Act. A vital distinction exists between the Director's power to institute proceedings and the court's power to regulate proceedings once they have been instituted: cf. Rex v. Philipps, Lucas and Gibson (
Section 94(6) of the Constitution of Jamaica preserves the independence of the Director of Public Prosecutions in the exercise of his powers and protects him from the direction or control of any person or authority, including the court: see section 1(9). However, once the Director has decided to institute criminal proceedings he is subject to the normal jurisdiction of the court. [Reference was made to Githunguri v. Republic of Kenya [
The history of the means by which criminal proceedings are instituted in Jamaica is set out in the judgment of the Court of Appeal in Grant v. Director of Public Prosecutions (
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