Commissioner of Police and another v Steadroy C. O. Benjamin
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 16 April 2014 |
| Neutral Citation | [2014] UKPC 8 |
| Date | 16 April 2014 |
| Docket Number | Appeal No 0083 of 2011 |
| Court | Privy Council |
[2014] UKPC 8
Privy Council
Lady Hale
Lord Kerr
Lord Wilson
Lord Hughes
Lord Toulson
Appeal No 0083 of 2011
Appellants
Douglas Mendes SC
(Instructed by Charles Russell LLP)
Respondent
Alan Newman QC Sylvester Carrott Thalia Maragh
(Instructed by Youngs Solicitors)
Heard on 26 February 2014
Does the Director of Public Prosecutions ("the Director") have a general power to prevent the police from instituting criminal proceedings?
The Commissioner of Police ("the Commissioner") and the Attorney General appeal against an order made by the Court of Appeal of the Eastern Caribbean Supreme Court on 19 September 2011. By a majority (Edwards JA and Baptiste JA, Pereira JA dissenting), the Court of Appeal answered "yes" to the question set out in para 1. It allowed an appeal from an order made by Harris J in the High Court of Justice of the Supreme Court on 31 July 2009. His answer had been "no".
The respondent to the present appeal is Steadroy Benjamin. He is an Attorney-at-Law in practice in Antigua and in July 2008 he was Leader of the Opposition in the Parliament of Antigua and Barbuda.
On 24 July 2008 Corporal O'Garro of the Royal Police Force began to investigate the issue in June 2008 of a false Antigua passport. The passport had been found in the possession of Shane Allen, a citizen of Jamaica, and the photograph in it was a likeness of him. But the passport was in the name of Tyrel Dusty Brann, a citizen of Antigua who had died several months earlier. On 25 July 2008 Corporal O'Garro inspected the application form for the issue of the passport. He noted that Mr Benjamin had countersigned it. He had certified that the photograph of Mr Allen was a photograph of Mr Brann and that he had known Mr Brann for two years.
On 26 July 2008 Corporal O'Garro interviewed Mr Benjamin. At the end the corporal invited Mr Benjamin to provide him with a witness statement. Mr Benjamin disputes the corporal's apparent assertion that he cautioned him. Mr Benjamin alleges that the corporal gave him to understand that his only role in court proceedings would be as a witness on behalf of any prosecution which might be brought against those who had secured issue of the passport.
In the statement, dated the same day, which he provided to Corporal O'Garro, Mr Benjamin explained that he had made the statements on the application form at the request of Ms Brann, the mother of Mr Brann; that he had learned only on that day that Mr Brann was deceased; that he knew Ms Brann well and trusted her; and that she had represented to him, and he had believed, that the statements which he made at her request were true. Mr Benjamin has always insisted that he believed that his statements were true and that he had no intention thereby to deceive.
Corporal O'Garro reported the results of his investigation to Assistant Commissioner Scott, who instructed him to charge Mr Benjamin.
Mr Armstrong, the Director, came to hear of the intention of the police to charge Mr Benjamin. At the Director's request, Corporal O'Garro showed him the police file. On 29 July 2008 he told the corporal to "hold on for a while" and not to lay any charge against Mr Benjamin until further notice. The Director told the corporal that, in his view, guilty knowledge could not be established against Mr Benjamin and that what had happened to him could have happened to anyone. On 4 August the office of the Director confirmed in writing to the corporal that the Director had instructed him not to charge Mr Benjamin.
Although fully aware of the Director's purported instruction, the police resolved to proceed with the proposed charge of Mr Benjamin. Corporal O'Garro asked counsel in the Director's office to draft the charge but learnt that the Director had instructed members of his office not to assist the proposed prosecution in any way.
In the event Corporal O'Garro drafted the charge himself. On 7 August 2008, in the name of the Commissioner, the corporal laid a complaint, signed by himself, in the Magistrate's Court in St John's. The complaint was that on 2 June 2008, for the purpose of procuring an Antigua passport, Mr Benjamin had stated that the photograph on the application form was that of Mr Brann when knowing that the statement was untrue, contrary to section 6 of the Forgery Act, which creates a summary offence.
The court accordingly issued a summons against Mr Benjamin, which the corporal served upon him on 9 August 2008. The summons was returnable on 11 August but the hearing was then adjourned until 23 September.
On 22 September 2008 two further complaints against Mr Benjamin of offences under section 6 of the Forgery Act were laid before the Magistrate's Court in the name of the Commissioner. They were signed by a police superintendent. The first related to the photograph attached to the application form and was in much the same terms as the complaint dated 7 August, which in effect it replaced. The second referred to Mr Benjamin's statement on the form that he had known Mr Brann for two years and it alleged, similarly, that Mr Benjamin knew that the statement was untrue. The court accordingly issued two further summonses which were served upon Mr Benjamin on 23 September and were returnable at the adjourned hearing that day. The hearing was further adjourned until 19 November.
On 7 November 2008, in the High Court, Mr Benjamin filed an application for leave to apply for judicial review of the Commissioner's decision to lay complaints against him. He alleged that, in the light of the Director's instruction to him not to do so, the Commissioner's decision was unlawful. He sought an order that the summonses issued against him be quashed. He also alleged that the Commissioner's decision was vitiated by improper political interference on the part of two members of the government, namely the Minister of Justice and the Attorney General, whom he made respondents in addition to the Commissioner.
It was Mr Benjamin's application for leave which was determined by Harris J on 31 July 2009. Having invited full argument on both sides even only in relation to leave, the judge refused to grant it. He ruled that the Director did not have the power to prevent the police from laying the complaints and that the allegation that the Commissioner's decision was vitiated by improper political interference could be the basis of an application to the magistrate's court within the criminal proceedings that they should be stayed as an abuse of process.
The orders of the Court of Appeal on 19 September 2011 were to allow Mr Benjamin's appeal against the orders dated 31 July 2009, to set them aside and to quash the summonses issued against him.
The common law has conferred a power to institute criminal proceedings on every citizen and, when at first they instituted such proceedings, the police exercised that general power: R (Gujra) v Crown Prosecution Service [2012] UKSC 52, [2013] 1 AC 484, paras 11 and 12 (Lord Wilson) and para 88 (Lord Mance). But the power of the police to institute criminal proceedings has been buttressed by statute.
Section 26 of the Magistrate's Code of Procedure Act, which came into force in 1892, qualified, at subsection (1), the right of the private citizen to institute criminal proceedings and confirmed, at subsection (2)(a), the right of the police to do so. It provides:
"(1) It shall be lawful for any person to make a complaint against any person committing an offence punishable on summary conviction unless it appears from the enactment on which the complaint is founded that any complaint for such offence shall be made only by a particular person or class of persons.
"(2) (a) It shall be lawful for any police officer to lay any information or make any complaint in the name of the Commissioner of Police and conduct any such proceedings on his behalf." (Emphasis added)
Section 23 of the Police Act, which came into force in 1952, converted the power of the police into a duty in some circumstances. It provides:
"(1) It shall be the duty of all police officers —
…
(e) to summon before a Magistrate and to prosecute persons… whom they may reasonably suspect of having committed any offence…"
Section 6(1) of the Police Act defines the composition of the Royal Police Force. It is composed (a) of the Commissioner who, subject to the general directions of the responsible Minister, has the command of the force; (b) of one or more Deputy Commissioners; and (c) of such number of superintendents, inspectors, subordinate officers and constables as the Minister may determine. The subsection proceeds to provide that the order of rank and command of the members of the force should be the order in which they are set out within it.
The office of the Director was created by subsection (1) of section 72 of the Constitution of Antigua set out in Schedule 2 to the Antigua Constitution Order 1967 ( SI 1967/225). There is no need to consider the powers conferred on him by other of...
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