Mohit v DPP of Mauritius

[Delivered by Lord Bingham of Cornhill]

The issue in this appeal is whether a decision by the Director of Public Prosecutions of Mauritius to discontinue a private prosecution, in exercise of his powers under section 72(3)(c) of the 1968 Constitution, is in principle susceptible to review by the courts. In a judgment given on 30 September 2003 the Supreme Court (YKJ Yeung Sik Yuen and P Lam Shang Leen JJ) held that it was not, and on a repeat application by the appellant this decision was applied by K P Matadeen and P Balgobin JJ on 14 September 2004. The appellant challenges the correctness of these rulings.

The appellant is a private citizen of Mauritius. He has expressed concern at what he has called "the rising tide of crimes and the breakdown in law and order" in Mauritius, and in particular at what he sees as the failure of successive governments to address a rash of violent crimes committed by a gang of criminals in 1996, culminating in a notorious triple murder. Implicated in at least some of these crimes was one Mahmad Bissessur, who was arrested in December 2000 and in that month confessed to committing a number of very serious crimes in April and May 1996. In October 2001 Bissessur was charged with five criminal offences to which, in the following month, he pleaded guilty. He was sentenced to 6 years' penal servitude and a fine of Rs 3,000.

The Hon Paul Berenger was at all material times a very senior political figure in Mauritius, holding office at different times as Deputy Prime Minister and Minister of External Affairs, Leader of the Opposition and Prime Minister and Minister of Finance. In February 2001 Bissessur gave a statement to the police in which he said that Mr Berenger had given him money (cheques for Rs 20,000 and Rs 10,000 and Rs 5,000 in cash) during the first week of August 1997 to buy air tickets from Mauritius to Madagascar; that he had flown with his family to Madagascar on 10 August 1997; that Mr Berenger had sent him more money by bank transfer on 13 August 1997; that he had received a further fax from Mr Berenger on 19 August 1997; that he had returned to Mauritius on 21 December 1997; and that he had met Mr Berenger the following day. In answer to questions put to him by journalists and at public meetings Mr Berenger acknowledged that he had given financial assistance to Bissessur to enable him to leave Mauritius and fly to Madagascar.

On 23 May 2001 the widow of one of the victims of the triple murder mentioned above initiated a private prosecution of Mr Berenger in the District Court of Curepipe, charging him with harbouring a criminal, namely Bissessur, contrary to section 172(1) of the Criminal Code. The case was heard on 7 and 27 June 2001, but on 19 July 2001, the third day of the case, the Director of Public Prosecutions entered a nolle prosequi and brought the proceedings to an end. The DPP gave written reasons for this decision, which were that

"(a) the present case is inextricably linked with the main case: that is the 'Escadron de la Mort' 1996 Gorah Issaac Street Triple Murder Case;

(b) both cases involve as they do one crucial and common element: that is Mahmad Toorab Bissessur;

(c) the main case is in the process of being lodged; and

(d) the continuance of this case will no doubt impede on [sic] the smooth-running of and may prejudicially affect the conduct of the main case."

At this stage, as is apparent from the history summarised above, Bissessur had not yet been brought to trial.

In October 2001 the appellant initiated a private prosecution of Mr Berenger under the same section of the Criminal Code and in reliance on the same facts in the Intermediary Court, but this was set aside for lack of jurisdiction. In June 2002, with another, he again initiated a prosecution of Mr Berenger under the same section in the District Court of Curepipe. This was heard for some days before, on 12 December 2002, the DPP entered a nolle prosequi, giving no reasons.

The appellant tried again. On 27 January 2003 he initiated a further private prosecution of Mr Berenger in the District Court of Curepipe, on a charge of harbouring a criminal, namely Bissessur, this time under section 39 of the Criminal Code. This prosecution was brought to an end on 4 March 2003 when the DPP again entered a nolle prosequi, again giving no reasons. On 7 March 2003 the appellant applied to the Supreme Court for leave to apply for judicial review of the DPP's decision to enter the nolle prosequi entered on 12 December 2002. This application was heard on 10 June 2003 and was dismissed for reasons given in a detailed judgment delivered on 30 September 2003. This is the first, and the substantial, judgment now under appeal.

But the appellant was undeterred. On 11 November 2003, with a brother of one of the victims of the triple murder mentioned above, he initiated a further prosecution of Mr Berenger in the District Court of Curepipe on the same charge as before under section 39 of the Criminal Code. On 13 February 2004 the DPP entered a nolle prosequi, and thereby brought the prosecution to an end, without giving reasons. The appellant applied to the Supreme Court for leave to apply for judicial review of the DPP's decision to enter this nolle prosequi. His application was heard by the Supreme Court on 10 May 2004, but was dismissed as an abuse on 14 September 2004, the Supreme Court having already held the DPP's decision to discontinue the private prosecution of Mr Berenger by the appellant and another to be unreviewable. This is the second judgment now under appeal, but its correctness turns on the correctness of the first.

The Constitution

Before 1964 there was in Mauritius an office of Procureur General which has no precise analogue within the British legal system. Under article XXXVII of Ordinance No 29 (1853) and article 48 of Chapter 169 of the Laws of Mauritius in force in 1945 the Procureur General was expressly empowered to enter a nolle prosequi. With the advent of the 1964 Constitution that office came to an end, and in its place there were created two new offices, that of Attorney-General and Director of Public Prosecutions. This arrangement was retained in the 1968 Constitution, which remains in force. Neither of these Constitutions conferred an express power to enter a nolle prosequi and the power of the Procureur General lapsed with the demise of his office.

By section 69 of the 1968 Constitution there is to be an Attorney-General, who is the principal legal adviser to the Government of Mauritius. His office is not a public office within the meaning of the Constitution, and he is not a public officer. He is, instead, a Minister. He may or may not be a member of the Assembly. But he is not qualified for appointment as Attorney-General if he is not a member of the Assembly and is for any cause disqualified from membership of it, and if he is not a member of the Assembly he may take part in the proceedings of the Assembly and is to be treated as if he were a member of it, save that he may not vote. The Attorney-General may not at the same time hold the office of DPP.

The office of DPP is governed by section 72 of the 1968 Constitution, on which these appeals largely turn. It provides (so far as material):

"72 Director of Public Prosecutions

(1) There shall be a Director of Public Prosecutions whose office shall be a public office and who shall be appointed by the Judicial and Legal Service Commission.

(2) No person shall be qualified to hold or act in the office of Director of Public Prosecutions unless he is qualified for appointment as a Judge of the Supreme Court.

(3) The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do —

• (a) to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law);

• (b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

• (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.

(4) The powers of the Director of Public Prosecutions under subsection (3) may be exercised by him in person or through other persons acting in accordance with his general or specific instructions.

(5) The powers conferred upon the Director of Public Prosecutions by subsection (3)(b) and (c) shall be vested in him to the exclusion of any other person or authority.

Provided that, where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.

(6) In the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority."

Construing the language of subsection (6), found in identical terms in the 1970 Constitution of Fiji, the Board held in Attorney General of Fiji v Director of Public Prosecutions [1983] 2 AC 672, 679, that this amounted to a constitutional guarantee of independence from the direction or control of any person. A "public office" is defined in section 111 of the Constitution, for present purposes, as "an office of emolument in the public service", meaning "the service of the State in a civil capacity in respect of...