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Battle of the Triumvirates - COP - DPP - AG

Battle of the Triumvirates The recent developments between two of the nation’s most senior “…Legal Officers,” spoke to such chaotic and confusing situation over the exercise of “…Constitutional and Legal Powers.”  

The nation’s “...Principal Prosecutor” Anthony Armstrong, acting in the capacity of Director of Public Prosecutions (DPP) had reportedly exercised powers that “...Principal Legal Adviser to government, and member of the Executive,” felt had neither resided with him, nor in his office.Likened to two raging bulls, corralled to pitted their strength, there were verbal ramblings over “...instructions reportedly handed down to Law enforcement to “...hold on for a while,” before institution of criminal proceedings against attorney-at-law Steadroy ‘Cutie’ Benjamin” [July 29, 2009]. The DPP had reportedly refuted such claim. The defendant, Steadroy ‘Cutie’ Benjamin, reportedly “...acting in good faith,” notarizing and/or certifying passport application, was found to be untrue. He argued that he had been deceptively led down a “...slippery prosecutorial slope,” by representations reportedly made to him by persons known. Since, that time two persons had been “...arrested, tried, convicted and sentenced to imprisonment for two years.”


BATTLE ARMAGEDDON

The Scriptures speak to the “...Battle of Armageddon.” This has been interpreted as “...a site where armies will gather to do battle at the end of time.” Frightening and horrifying things were prophesied to occur. It was revealed that there will be “...Lightening; ...howling noise and cracking thunder as never before experienced. This will be followed by a “...powerful earthquake” [Revelation 16: 16 & 17]. Since that men’s heart will fail them for fear, not sure what may happen to those gathered for battle [Luke 21:26]. Seemed that the events of “...Armageddon” might be more “...horrific and destructive” than that of Haiti [January 12, 2010]. Thus, armies or not; “...consuming piazza or drinking milkshake or not,” everyone is likely to be terror-stricken.

GEE WHIZ

Like the rest of the citizens, if WE survived that long, former Prime Minister Honourable Lester Bird; ...Agriculture Minister Honourable Hilson ‘Brother B’ Baptiste and Attorney General Honourable Justin L. Simon QC, may have their final fainting spells. The Honourable Prime Minister Dr. Baldwin Spencer may not be able to access the “...Cooks Pond” to ensure the “...correct balance of hydrational fluid.” There may not even be time for anyone to say “...Gee whiz! ...It’s Christmas” [Carla Thomas: 1963], or to place a hand across the chest and say “...Elizabeth I am coming” [Redd Foxx: Sanford and Son: 1972-1977].

BATTLE OF THE TRIUMVIRATES

While we wait for the “...Armageddon,” when the nation’s legal history will have been written, scholars will have read of the “...Battle of the Triumvirates- Police; ...Director of Public Prosecutions and the Attorney General.” Thus, it will have been learnt that Minister of Legal Affairs, Attorney General Honourable Justin L. Simon QC, had “...flexed muscles,” though dissimilar to that of “...Iron Mike Tyson,” the notorious boxer, who “...Fights and Bites.”  Rarely within the same administration, had an Attorney General sought to reverse “...Prosecutorial Decisions” professionally taken by a Director of Public Prosecutions (DPP). Rarely had an accused person found himself “...sandwiched” between a “...Commissioner of Police (COP); ...a Director of Public Prosecutions (DPP) and an Attorney General (AG).” However, likened to the anticipated “...Armageddon,” for its “...Rarity of Occurrences,” the Honourable Attorney General had not only done the un-imaginable, but had exercised “...Ministerial powers,” reasonably suspected to have been instigated by influential members of his administration. This has been the “...expressed opinion” of Member of Parliament Honourable Steadroy ‘Cutie’ Benjamin.

COLLECTIVE RESPONSIBILITY

Irrespective of “...surmiseable motive,” had the appeal reflected an executive decision, then as “...Principal Legal adviser to the government, legally, morally, ethically or even acrimoniously,” “...Collective Responsibility,” dictates that the AG was bound to discharge his official duties [CO.1981: Section 82]. Whether or not prompted by “ ...instigation or normalcy of investigation; ...with or without favor or affection; ...malice or ill-will,” through the Judgment delivered by the Judicial Committee of the Privy Council (JCPC) on April 16, 2014 (JCP), Corporal Cordell O’ Garro’s name had been firmly etched in the annals of Judicial history [UKPC 8: No.0083 of 2011].

DIRECTION/CONTROL

This may be seen from “...Section 88 (5)” that states without ambiguity that “…The Director of Public prosecutions shall not be subject to the directions or control of any other person or authority.” In other words, the DPP shall discharge his legal duties in an environment “…dictation and/or coercion-FREE,” as well as in an atmosphere that is “...free of hindrances, influences and/or impediments,” be it private, public or official. Thus, the Constitutional provisions impose no duty on a DPP to report to anyone or “…in offering explanations.” Consequent upon the appellate course of action initiated by the Honorable Attorney General, observers opined that it may affect future working relations.

POWERS/RESPONSIBILITIES

The three most often misunderstood features of law enforcement were usually its “…Functions, Responsibilities and Powers.” These are specified in the Police Act [Chapter 330: Sections 22 &23].In lending an understanding to the powers and responsibilities, one may refer to that which defines the authority of a Commissioner of Police and in which “...administrative, operational and functional powers reside.” For instance, Section 6 (1) (a) of the Police Act, Chapter 330 of the Laws of Antigua and Barbuda 1992, states “…The Force shall consist of a Commissioner of Police, who, subject to the provisions of this Act shall have the Command and Superintendence of the Force.”

LAW ENFORCEMENT OBSERVATIONS

In the eyes of Law enforcement, it was apparent that several of the past Attorneys General had enjoyed immeasurable success and satisfaction in their tenure. However, while some may have enjoyed lengthy productive tenure, some had appeared pregnant with frustration and dissatisfaction. Then there were some that had experienced “...twisted faith as they fell from grace; …some rocky and wobbly; …some jolty and disappointingly short, appearing not to have lasted “…as long as a hot cup of coffee.” Frequently, and as it affects law enforcement, arrest and prosecution of certain offences, citizens appear uncertain as to who was “...BOSS” and by whom certain powers were exercisable.

COMMISSIONER OF POLICE

It is to be made clear that within this jurisdiction, a “...Commissioner of Police was not subordinate to the Director of Public Prosecutions.” Therefore, he was not subject to “…orders, instructions, directions or commands or unsolicited advice” from a person holding such office. Both the Commissioner of Police (COP) and the Director of Public Prosecutions (DPP) operate under different authority and perform separate and distinct functions. The Police operate under specific Statutory Provisions, while the Director of Public Prosecutions functions under authority contained in the Constitution Order of Antigua and Barbuda.

FUNCTIONAL PRINCIPLE

Apart from his administrative duties, the Commissioner’s functions, his primary rolehave always been that of “...Enforcement of law; ...Arrest/Detention; ...Initiating criminal proceedings against criminals; ...preparation of Case files and making REFERRALS to the office of the DPP.” Such referrals were usually for “...professional advice or guidance, particularly, on ...sensitive and complex cases,” and whether such matters were of “...Public interest or Public policy.” Conversely, the primary role of the Director of Public Prosecutions (DPP) was that of –Public Prosecutions. Hence, there had been no reasons or attempts in “…rebuffing suggestions or …rejecting professionally considered advice, or deliberately or to contemptuously ignore or circumvent reasonable directions given in good faith.” However, where “...no formal referrals” had been made for advice, a DPP was never at liberty to demand submission of “...Case Files,” at the “...preliminary and/or advanced stages of investigation.” This was a fundamental “...Functional Principle,” recognized by the Magistracy.

NOTORIETY OR PROMINENCE

Within the region’s “...Legal Affairs Fraternity,” many, who had passed through their nation’s Halls of Justice, had stood out, either with “...notoriety or prominence.” Others had simply operated under “...political pressure and/or directions,” thereby compromising their professional integrity. There were several names that stood out with some degree of prominence. One of which was Trinidad and Tobago’s Karl Hudson-Phillips [1969-1973]. He appeared fearless and decisive in the exercise of his legal duties, but only to the extent of those outside the membership of the administration. Social commentator Dr. Hollis Liverpool, ‘Chalkdust,’ was apparently observing their “...ministerial behavior and sudden acquisition of wealth.” When the social commentator sang, he most often highlighted issues that had affected the populace and the nation.

ADMINISTRATIVE FLAWS

When the social commentator chose to highlight “...Administrative Flaws” of then Trinidad and Tobago Prime Minister Dr. Eric Williams [1962-1981], he had provoked a grossly insulting response “...Let the Jackass bray” [Express: November 29, 2011]. Seemingly, unperturbed, he had guided himself away from the “...Sedition Act,” singing that seen through his eyes, as affected the nation’s “...socio-economic conditions and political situation; ...corruption among public officials, and more importantly, an apparent lack of “...transparency, accountability; ...integrity in public life and good governance.” Skillfully, Chalkdust sang of public officials who used to live like rodents. He said “...Two used to live like rats; ...Now they building flats; ...Another used to sell coconuts; ...Now he buy out the whole Queen Street Lot.” Invariably, those who “...once lived like rats” were seemingly left to nibble without a “...Rodent’s Trap.”

WAIL AND JAIL

Chalkdust was also afraid of Jail if “...Me sing ‘bout that.” Aware that “...Karl” could spitefully make him “...Bawl,” he sang “...Ah ‘fraid of Karl; ...Ah ’fraid the Sedition Act.” In emphasizing the point of “…selectivity for investigations,” regional people had often expressed concerns over that which appeared to have been “...Lack of official Referrals” to Law enforcement agencies for investigative purposes. For Director of Public Prosecutions (DPP) Anthony Armstrong, though not of relief,he may have been forced into a “...Sigh through a Man named Justin.” For Steadroy ‘Cutie’ Benjamin, former attorney general, seasonal commentator on Calypso, practicing attorney, Member of Parliament and politician, there is very much at stake. Thus, like others, the JCPC’s ruling could make him “...Wail, Ah ’fraid Jail.”

CONSTITUTIONAL AUTHORITY

Accused of committing classified misdemeanors, the well-spoken and obliging Member of Parliament, have been precariously positioned in circumstances (i) “...partially due to his Legal practice; (ii) ...partially due to the intervention of Director of Public Prosecutions (DPP) Anthony Armstrong; (iii) ...apparent scant regard by the Police to professional advice reportedly solicited and (iv) ...Egregious appellate interventions by Attorney General Honourable Justin L, Simon QC. This was designed to challenge the “...Functional Powers of the DPP.” It is to be understood that likened to the Commissioner of Police, both office holders function under separate and distinct “...Constitutional and/or Statutory Authority.” Thus, there are definitive job-descriptions. The Commissioner of Police functions under (i) ...the Police Act Chapter 330; (ii) ...Attorney General Section 82; while (iii) ...the Director of Public Prosecutions functions under Section 88 of the Constitution Order 1981.

EXERCISE OF POWERS

The particular criminal offences against the Member of Parliament were “...still pending trial before the Magistracy” and may require further adjournments to accommodate “...Removal of Stay of Prosecution Order” that initially facilitated the appellate proceedings. This may now prompt a fundamental question, “…What if the DPP decides to exercise his Powers under Section 88 (1) (c) of the Constitution? This Section empowers a DPP “...if he considers it proper to do so” …To discontinue at any stage before judgment is delivered, any such criminal proceedings instituted?” Such clause provides “...an unchallengeable discretionary power” to the office holder acting professionally and prudently in the capacity of Director of Public Prosecutions. Notwithstanding, a DPP shall also be mindful of “...public perceptions and public interest in the administration of justice.”

SQUABBLE AND BATTLE

The legal “...Squabble and Battle” that had ensued speaks to “...Functional Powers” of Director of Public Prosecutions “...Anthony Armstrong.” First challenged by attorney-at-law Steadroy ‘Cutie’ Benjamin after His Lordship Justice David C. Harris’ ruling that “...No powers- constitutional, legal, functional or otherwise,” resided with the DPP in instructing the Police not to institute criminal charges against him” [Para. 14: July 31, 2009]. After a sojourn with the Eastern Caribbean Supreme Court (ECSC) (Appellate Body), in their individual learning, collective deliberations, they concluded that such powers resided with the DPP. Avoiding “...contemptuous dissent,” a dissatisfied Attorney General subsequently referred the “...Contentious Ruling” to the Judicial Committee of the Privy Council (JCPC).He had in effect subjected “...Their Lordships powers of reasoning and/or sense of logic and rationality under the microscopic lenses” of the London Privy Council.

COLLECTIVE DECISION

In effect, the JCPC appeal, reflected a direct challenge against the “...Collective Decision” of a three-member panel of Judges on the Eastern Caribbean Supreme Court (ECSC). It was evident that the distinguished Judges may have harbored “...Erroneous Beliefs,” respecting powers of Director of Public Prosecutions Anthony Armstrong, that were not inherent in those vested in him under “...Section 88 and 89” of the Constitution Order 1981.When the JCPC delivered its judgment on the ‘ECSC Appellate Court earlier decision in the “...Steadroy ‘Cutie’ Benjamin matter, history was made. It marked the very first time, within the nation’s Judicial history that an Attorney General had “...challenged the powers of a Director of Public Prosecutions (DPP)” [April 16, 2014]. This may also have been seen when heavily armed Law enforcement personnel were reportedly directed and improperly used in “...preventing landing of electric generation equipment” at the APCL’s power generating facility at Crabbs” [December 1, 2007].

SARDONIC IRONY

The Privy Council had seen the APCL’s issue as a purely “...Contractual matter” in which there was no criminal jurisdiction.The Law Lords had attributed the unnecessary Police intervention to “...bad legal advice” [PCA: No. 0063 of2013: Para 52]. In spite of the historic ruling, many Police Commissioners, appeared not to have reflected their knowledge of the Judgment by courses of action that were seen either suggestive of “...docility or appeasement.” In the instant case, seemingly “...Misdirecting themselves,” the Eastern Caribbean Supreme Court (ECSC) panel of eminent Judges had “...ruled that powers resided with DPP Anthony Armstrong” in instructing the Police ‘NOT’ to prosecute “...attorney-at-law, politician and Member of Parliament Steadroy ‘Cutie’ Benjamin on Forgery Charges” [September 19, 2011]. Making very light work for themselves and with some degree of “...Sardonic Irony,” they had, yet again, exposed the “...professional judgment” of the Eastern Caribbean Supreme Court Justices. Conversely, they may have made His Lordship Justice David C. Harris removed aim from a position on the apparent ill-fated “...Caribbean Court of Justice (CCJ).

MINISTER OF THE CROWN

From time immemorial, an administrative practice had been established, whereby the Heads of the office of the DPP and Law Enforcement operate their respective departments. This was done with former Commissioners, including the highly respected Wright Fitzgerald George QPM LVO CPM [1974-1991]. Such interactions were done in an environment that augured well for “...Inter-Agency Cooperation; mutual respect and good working relations.” In reality, this was realizable only in an environment that was not influenced by “...environmental pressures” such as official and/or unofficial manipulation and/or exploitation. Most had steered clear of the “...Executive,” including the Attorney General, who was not only a Member of Cabinet, but also a member of the “...Legislature.” In such capacity, the Attorney General was a “...Minister of the Crown.” Thus, his role as (i) “...Principal Legal Adviser; (ii) ...Policy maker and (iii) ...Law-maker,” placed him far away from the offices of the “...Commissioner and the DPP.” The former “...investigates, arrest and institute charges;” while the latter “...indicts and prosecutes on behalf of the public.”

LORD DENNING’S DICTA

The ECSC appellate Justices appeared not to have recalled the dicta of Lord Denning, Master of the Roll, in the case “...R v Commissioner of Police of the Metropolis.” Had it been remembered, scarce State financial resources may have remained within one of the ECSC’s Itinerant Jurisdictions. The eminent jurist posited “ ...I hold it to be the duty of the Commissioner of Police of the Metropolis to enforce the Law of the land; ...He must take steps so as to post his men that crimes may be detected; ...and that HONEST citizens may go about their affairs in peace; ...He must DECIDE whether or not suspected persons are to be prosecuted; ...and, if need be, bring the prosecution or see that it is brought; ...But in all these things, he is not a servant of anyone, save of the Law itself; ...No Minister of the Crown can tell him that he must or must not, keep observation on this place or that or must not prosecute  this man or that one; ...NOR can any Police authority tell him so; ...He is answerable to the Law and the Law alone” ” [1968: QB 118: P 136]. This was vividly pointed out in the recent Judgment “...Antigua Power Company Limited (APCL) v Attorney General et al” [UKPC 23: No.0063: 2012].

POWERS- PUBLIC PERCEPTIONS

Guided by “...Sections 88 and 89 of the said Constitution Order 1981,” and irrespective of perceptions, motive and/or beliefs, it appears that no such Powers of arrest or prosecution, “…Real or Imaginary,” were vested in, or reside with an Attorney General (G). Framers of the Constitution appeared to have been very mindful of the three membership positions of an ‘AG’ and therefore, prudently decided that there “…shall be one Director of Public prosecutions,” to interface with the Judiciary in Criminal proceedings and/or matters connected thereto. Hence, a person acting in such capacity ought to be “...independent of both the Legislature and the Executive,” with unfettered right to make official decisions if “…he considers it necessary so to do” [Section 88].

FUNCTIONAL POWERS OF DPP

The Constitution Order 1981 [Sec.88] provides powers to a Director of Public Prosecutions, not available to the Attorney General. Thus, in his official functions, it allows for him, inter alia, to (a) …Institute and undertake criminal proceedings against any person before any Court in respect of any offence against the Law; (b) …Take over and continue any criminal proceedings that may have been instituted; 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.” Given the language used in these provisions, it would appear that such powers may be “...exercisable ONLY when criminal proceedings have been instituted, whether by the Police and/or other public bodies.” Thus, it matters not who may have instituted those proceedings, “...public interest and/or policy,” may prompt a DPP to intervene.”

JUSTICE DAVID C. HARRIS

Therefore, none of the authority provides for “...instructions, orders, directions, instructions or commands to a Commissioner in the execution of his Law enforcement duties.” A Commissioner has responsibility for the superintendence of the law enforcement agency. He also has responsibility to the Minister with responsibility for Public Safety and National Security, limited to “...General directions.” This has been “...Settled law since 1968” and prudently and properly followed by His Lordship David C. Harris. Appointed to the Supreme Court, March 19, 2010, not only appeared to have acquitted himself exceedingly well, but had also showed that he was au fait with established “ ...Judicial principles; Practice Directions and Precedents”, evidenced by his legal prowess and adeptness in adjudication. He may have been aware of the “...Blackburn’s Judgment” Contrastingly, the esteemed Judges on the august Appellate body, appeared to have seen that which the High Court Justice David C. Harris had NOT seen when reviewing the issues at Bar, and “...determined that NO such powers resided with DPP Anthony Armstrong” [July 11, 2009].

PERVERTED DECISIONS

Though infrequently, it was the experience that Justices had ignored three critical factors distinguishing the Police Service from other governmental departments. These were to be seen as (i) “...Independence of the Executive; (ii) ...Responsibility to Law and ...Non-interference into Police administration and/or operations.” In the Steadroy ‘Cutie’ Benjamin, Police, DPP and AG’s fiasco, credit may be accorded to His Lordship David C. Harris for adhering to Lord Denning’s dicta as contained in the Blackburn’s judgment. Even though there may have been “...moral and ethical issues,” there were also “...principles and precedents” that necessitated acute judicial considerations. Seemingly, mindful of “...Perverted Decisions,” when addressing matters pertaining to the “...role and functions of regional Law enforcement agencies,” the JCPC, likened to Lord Alfred Thompson ‘Tom’ Denning Master of the Roll [January 23, 1899 - March 5, 1999], appeared to have used the proverbial “...Hawk’s Eye” in guiding their judgments. Thus, the ‘JCPC’ appeared conspicuously mindful in pointing out flaws affecting, inter alia, “...legal interpretations; ...professional reasoning and ...rationale in judgments.” Those delivered within the Organization of the Eastern Caribbean States (OECS), rarely escaped its scrutiny.

AMICABLE RELATIONS

In referring to past working relationships with the several Directors of Public Prosecutions and Law enforcement, there had been “...mutual respect and understanding of the powers exercisable,” and the responsibilities each was obliged to discharge. Law Enforcement had always enjoyed very amicable working relations with the office of the Director of Public Prosecutions and those who were so appointed. This was particularly so, as it was the duty of Law Enforcement to “...martial the facts or evidence in all criminal cases,” and especially those that required “…JURY TRIAL.” Thus, in those cases, the DPP had to be satisfied with the availability of evidence, cogency and credibility of witnesses, most of all there had to be a preponderance of evidence necessary to substantiate the charge to facilitate committal, indictment and ultimately “…Public Prosecutions.”

LADY AND LAW LORDS

In the stunning nine-page Judgment, pronounced by exceptional powers of reasoning, rationality, clarity and brevity, “...Lady Hale and Lords Kerr; ...Wilson; ...Hughes and Toulson,” had simply relied upon the dicta of Lord Denning, Master of the Roll, in the historic case “...R v Commissioner of Police of the Metropolis: Blackburn ex-parte.” The Lady and Law Lords have stressed the importance of “...good, mutually respectful working relations between the Police and the Director of Public Prosecutions (DPP).” The Lady and Law Lords were concerned of the inevitability -bad relations that they had surmised had the potential to “...damage public confidence in the administration of justice” [Paragraph 33], and by extension, the agencies concerned with “...Crime detection and prosecution.” Even though the “...Legal Battle is over,” it may very well be the “...Beginning of another war.”

CONCLUSION

The Judicial Committee of the Privy Council (JCPC) had looked at the “...Legal Squabble” very closely. It also noted from a prepared “...Guide For Prosecutors For Antigua and Barbuda “...It will be recognized that the Director of Public Prosecutions (DPP) remains SOLELY responsible for the taking of all prosecutorial decisions and the Police remain solely responsible for the conduct of investigations” [January 1, 2013]. Clearly not amused, the five member Board concluded that “...At all events, the statement does not, in the opinion of the Board, accurately reflect the Law” [UKPC 8: No. 0083 of 2011: Paragraph 32]. The JCPC and the Honourable Attorney General Justin L. Simon QC had made NO “…allegations” of professional misconduct, indiscretion or impropriety against the DPP.” Neither High Court Justice, His Lordship David C. Harris, nor the OECS Appellate Court had suggested such in its Judgments.” 

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RE: Battle of the Triumvirates - COP - DPP - AG

#1 Just Saying » 2014-04-22 17:54

These guys need Netflix. One needs only watch "Goodfellas" or "Gotti" to understand how to efficently run a criminal enterprise. It's not as easy as it seems.
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