Mohit v. The Director of Public Prosecutions of Mauritius (Mauritius)  UKPC 20 (25 April 2006)
Privy Council Appeal No 31 of 2005
Jeewan Mohit Appellant
The Director of Public Prosecutions of Mauritius Respondent
THE SUPREME COURT OF MAURITIUS
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 25th April 2006
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Bingham of Cornhill]
"(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.
"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  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 the Government of Mauritius". By section 93 the DPP may be removed from office before reaching retirement age "only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with this section". The section requires that a tribunal appointed by the President shall have recommended removal. Finally, reference should be made to the saving for the jurisdiction of the courts contained in section 119 of the Constitution, which has reference to section 72(6) already quoted:
"No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question, whether that person or authority has performed those functions in accordance with this Constitution or any other law or should not perform those functions."
The Supreme Court judgment of 30 September 2003
"Section 119 is not a substantive provision of the Constitution which confers, or rather creates, jurisdiction upon or for the courts. It is, in our judgment, a clause inserted ex abundanti cautela to spell out that the various provisions of the Constitution which protect various public officers and authorities from other kinds of interference should not be taken to mean that the Courts are thereby precluded from exercising such jurisdiction as is or may be conferred on them by the Constitution or any other law."
With this observation the Board respectfully and wholly agrees, and it was accepted by the parties. The court then continued, at pp 200-201:
"There is no doubt that the Director's decision to institute and undertake or take over criminal proceedings against any suspect, to discontinue any such proceedings by way of a nolle prosequi or indeed not to institute proceedings in any matter is an administrative decision and as such could be liable to be reviewed by the Courts. However, these administrative decisions fall broadly in two categories and the control exercisable by the Courts will differ depending on which category of decision is in issue.
The first category of the Director's decisions concerns those cases where the decision is to file a nolle prosequi where a prosecution is already in process or where the decision is not to prosecute. The Courts will undoubtedly not interfere with such decisions for two main reasons. First, the complainant always has a remedy against the suspected tortfeasor and there is no fundamental right to see somebody else prosecuted and, in most cases, the complainant may additionally enter a prosecution himself though, even here, the Director can stop the prosecution except on appeal by the convicted person. Secondly, the Courts would find it inappropriate to substitute what would be their own administrative decision to prosecute, at the risk of jeopardising their inherent role to hear and try a case once it comes before them.
The second category of decision is where the Director decides to prosecute. By its very nature and in contradistinction from other administrative decisions, the matter automatically falls under the control of the Courts by virtue of sections 10, 76 and 82 of the Constitution."
With the concluding paragraph of this passage the Board again, respectfully, agrees: where proceedings initiated by the DPP are before the courts, they must ensure that the proceedings are fair and that a defendant enjoys the protection of the law even if that involves interference with the DPP's discretion as prosecutor. But the Board is not persuaded by the court's reasons for holding that the DPP's decisions to file a nolle prosequi or not to prosecute are not amenable to judicial review. The complainant may, as in this case, have no remedy against any suspected tortfeasor. The alternative course of resort to private prosecution is not an available option where it is a private prosecution which the DPP has intervened to stop. Recognition of a right to challenge the DPP's decision does not involve the courts in substituting their own administrative decision for his: where grounds for challenging the DPP's decision are made out, it involves the courts in requiring the decision to be made again in (as the case may be) a lawful, proper or rational manner.
"The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts."
Unless reviewed or modified in the light of the later decision of the House in the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service  AC 374), this remains a binding statement of English law on cases covered by it. It must, however, be borne in mind that the power in question was a non-statutory power deriving from the royal prerogative. It was moreover a power exercised by a minister answerable to Parliament, a matter recognised as of significance by Lord Edmund-Davies (p 512) and Lord Fraser of Tullybelton (p 524), as it had been by Cockburn CJ in the leading case of R v Allen (1862) 1 B & S 850, 855, when he spoke of the Attorney General as "responsible for his acts before the great tribunal of this country, the High Court of Parliament". Where the Attorney General's power derives from a statutory source, as in giving his consent to prosecutions requiring such consent, Professor Edwards has noted (The Attorney-General, Politics and the Public Interest (1984), p 29), and the Law Commission has tacitly accepted (LCCP 149 Criminal Law: Consents to Prosecution, September 1997, p 29), that "[s]ince the source of the discretionary power [to grant or refuse consent] rests in statute law there are no inherent constitutional objections to the jurisdiction of the courts being invoked". Much more closely analogous to the position of the Mauritian DPP than the English Attorney General is the English DPP, and his prosecuting decisions have not been held to be immune from review, as mentioned below.
"The power of the Attorney General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as 'the prosecutorial discretion' (see Barton v R (1980) 147 CLR 75 at 91, 94 per Gibbs and Mason JJ, R v McCready (1985) 20 A Crim R 32, R v von Einem (1991) 55 SASR 199 and Chow v DPP (1992) 28 NSWLR 593 at 604-605 per Kirby P). In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts (see Wheeler 'Judicial Review of Prerogative Power in Australia: Issues & Prospects' (1992) 14 Sydney LR 432). That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all states and territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute (see Newby v Moodie (1988) 83 ALR 523; see also R v Toohey, ex p Northern Land Council (1981) 151 CLR 170 at 217, 220 per Mason J) such as that conferred on a prosecutor by s 394A of the Act.
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute (see Connelly v DPP  3 All ER 510 at 519,  AC 1254 at 1277, DPP v Humphrys  2 All ER 497 at 527-528,  AC 1 at 46 and Barton v R (1980) 147 CLR 75 at 94-95, 110), to enter a nolle prosequi (see R v Allen (1862) 1 B & S 850, 121 ER 929 and Barton v R (1980) 147 CLR 75 at 90-91), to proceed ex officio (see Barton v R (1980) 147 CLR 75 at 92-93, 104, 107, 109), whether or not to present evidence (see, for example, R v Apostilides (1984) 154 CLR 563 at 575), and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted (see R v McCready (1985) 20 A Crim R 32 at 39 and Chow v DPP (1992) 28 NSWLR 593 at 604-605). The integrity of the judicial process— particularly, its independence and impartiality and the public perception thereof— would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what (Barton v R (1980) 147 CLR 75 at 94-95, Jago v District Court (NSW) (1989) 168 CLR 23 at 38-39, 54, 77-78 per Brennan J, Gaudron J, Williams v Spautz  2 LRC 659 at 690, (1992) 174 CLR 509 at 548 per Deane J and Ridgeway v R  3 LRC 273 at 320, (1995) 129 ALR 41 at 82 per Gaudron J)."
This, plainly, is authority supportive of the Supreme Court's conclusion, although deriving from two members of the High Court only and relying strongly on Australian precedent.
"It is not necessary for present purposes to explore exhaustively the circumstances in which the occasions for judicial review of a prosecutorial decision may arise. It is sufficient, in our opinion, in cases involving the exercise of prosecutorial discretion to apply established principles of judicial review. These would have proper regard to the great width of the DPP's discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits. This approach subsumes concerns about separation of powers.
The decisions of the DPP challenged in this case were made under powers conferred by the 1990 Constitution. Springing directly from a written constitution they are not to be treated as a modern formulation of ancient prerogative authority. They must be exercised within constitutional limits. It is not necessary for present purpose to explore those limits in full under either the 1990 or 1997 Constitutions. It may be accepted, however, that a purported exercise of power would be reviewable if it were made:
1. In excess of the DPP's constitutional or statutory grants of power— such as an attempt to institute proceedings in a court established by a disciplinary law (see s 96(4)(a)).
2. When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion— if the DPP were to act upon a political instruction the decision could be amenable to review.
3. In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe.
4. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved.
5. Where the DPP has fettered his or her discretion by a rigid policy— eg one that precludes prosecution of a specific class of offences.
There may be other circumstances not precisely covered by the above in which judicial review of a prosecutorial discretion would be available. But contentions that the power has been exercised for improper purposes not amounting to bad faith, by reference to irrelevant considerations or without regard to relevant considerations or otherwise unreasonably, are unlikely to be vindicated because of the width of the considerations to which the DPP may properly have regard in instituting or discontinuing proceedings. Nor is it easy to conceive of situations in which such decisions would be reviewable for want of natural justice."
The court went on to question whether a mistaken view of the law by the DPP could ever found a successful challenge, save perhaps where it had prompted a decision not to prosecute.