Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago)  UKPC 57 (30 November 2006)
Privy Council Appeal No 75 of 2006
The Honourable Satnarine Sharma Appellant
(1) Carla Browne Antoine
Deputy Director of Public Prosecutions
(2) Wellington Virgil
Assistant Commissioner of Police
(3) Trevor Paul
Commissioner of Police Respondents
THE COURT OF APPEAL OF
THE REPUBLIC OF TRINIDAD AND TOBAGO
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 30th November 2006
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
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[Judgment by Lord Bingham of Cornhill
and Lord Walker of Gestingthorpe]
(1) The rule of law requires that, subject to any immunity or exemption provided by law, the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of state, but nor can the holding of such an office excuse conduct which would lead to the prosecution of one not holding such an office. The maintenance of public confidence in the administration of justice requires that it be, and be seen to be, even-handed.
(2) It is the duty of police officers and prosecutors engaged in the investigation of alleged offences and the initiation of prosecutions to exercise an independent, objective, professional judgment on the facts of each case. It not infrequently happens that there is strong political and public feeling that a particular suspect or class of suspect should be prosecuted and convicted. Those suspected of terrorism, hijacking or child abuse are obvious examples. This is inevitable, and not in itself harmful so long as those professionally charged with the investigation of offences and the institution of prosecutions do not allow their awareness of political or public opinion to sway their professional judgment. It is a grave violation of their professional and legal duty to allow their judgment to be swayed by extraneous considerations such as political pressure.
(3) Under section 5(1) of the Judicial Review Act 2000 judicial review lies against a person acting in the exercise of a public duty or function. Section 5(3) lists a number of familiar grounds, which include an improper exercise of discretion, taking account of irrelevant considerations and acting on instructions from an unauthorised person. Leave to apply for judicial review must be obtained: section 6. The court may not, save in exceptional circumstances, grant leave for judicial review of a decision where any other written law provides an alternative procedure to question, review or appeal the decision: section 9.
(4) The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R(N) v Mental Health Review Tribunal (Northern Region)  EWCA Civ 1605,  QB 468, para 62, in a passage applicable mutatis mutandis to arguability:
"… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."
It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to "justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen": Matalulu v Director of Public Prosecutions  4 LRC 712, 733.
(5) It is well-established that a decision to prosecute is ordinarily susceptible to judicial review, and surrender of what should be an independent prosecutorial discretion to political instruction (or, we would add, persuasion or pressure) is a recognised ground of review: Matalulu, above, pp 735-736; Mohit v Director of Public Prosecutions of Mauritius  UKPC 20, paras 17, 21. It is also well-established that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy. The language of the cases shows a uniform approach: "rare in the extreme" (R v Inland Revenue Commissioners, Ex p Mead  1 All ER 772, 782); "sparingly exercised" (R v Director of Public Prosecutions, Ex p C  1 Cr App R 136, 140); "very hesitant" (Kostuch v Attorney General of Alberta (1995) 128 DLR (4th) 440, 449); "very rare indeed" (R (Pepushi) v Crown Prosecution Service  EWHC 798 (Admin),  Imm AR 549, para 49); "very rarely" (R (Bermingham) v Director of the Serious Fraud Office  EWHC 200 (Admin),  3 All ER 239, para 63. In R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 371, Lord Steyn said:
"My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review."
With that ruling, other members of the House expressly or generally agreed: pp 362, 372, 376. We are not aware of any English case in which leave to challenge a decision to prosecute has been granted. Decisions have been successfully challenged where the decision is not to prosecute (see Mohit, para 18): in such a case the aggrieved person cannot raise his or her complaint in the criminal trial or on appeal, and judicial review affords the only possible remedy: R (Pretty) v Director of Public Prosecutions  UKHL 61,  1 AC 800, para 67; Matalulu, above, p 736. In Wayte v United States (1985) 470 US 598, 607, Powell J described the decision to prosecute as "particularly ill-suited to judicial review."
The courts have given a number of reasons for their extreme reluctance to disturb decisions to prosecute by way of judicial review. They include:
(i) "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" (Matalulu, above, p 735, cited in Mohit, above, para 17);
(ii) "the wide range of factors relating to available evidence, the public interest and perhaps other matters which [the prosecutor] may properly take into account" (counsel's argument in Mohit, above, para 18, accepting that the threshold of a successful challenge is "a high one");
(iii) the delay inevitably caused to the criminal trial if it proceeds (Kebilene, above, p 371; Pretty, above, para 77);
(iv) "the desirability of all challenges taking place in the criminal trial or on appeal" (Kebilene, above, p 371; and see Pepushi, above, para 49). In addition to the safeguards afforded to the defendant in a criminal trial, the court has a well-established power to restrain proceedings which are an abuse of its process, even where such abuse does not compromise the fairness of the trial itself (R v Horseferry Road Magistrates' Court, Ex p Bennett  1 AC 42). But, as Lord Lane CJ pointed out with reference to abuse applications in Attorney-General's Reference (No 1 of 1990)  QB 630, 642,
"We should like to add to that statement of principle by stressing a point which is somewhat overlooked, namely, that the trial process itself is equipped to deal with the bulk of complaints which have in recent Divisional Court cases founded applications for a stay."
(v) the blurring of the executive function of the prosecutor and the judicial function of the court, and of the distinct roles of the criminal and the civil courts: Director of Public Prosecutions v Humphrys  AC 1, 24, 26, 46, 53; Imperial Tobacco Ltd v Attorney-General  AC 718, 733, 742; R v Power  1 SCR 601, 621-623; Kostuch v Attorney General of Alberta, above, pp 449-450; Pretty, above, para 121.
(6) Where leave to move for judicial review has been granted, the court's power to set aside the grant of leave will be exercised very sparingly: R v Secretary of State for the Home Department, Ex p Chinoy (1991) 4 Admin LR 457, 462. But it will do so if satisfied on inter partes argument that the leave is one that plainly should not have been granted: ibid. These passages were cited by Simon Brown J in R v Secretary of State for the Home Department, Ex p Sholola  Imm AR 135 and we do not understand him, in his reference to delivering "a knockout blow" at p 139, to have been propounding a different test.
The judgment of Jones J
"In my opinion the above statement does no more than accept that the exercise of a prosecutorial discretion, in the context of a written constitution, can be subject to review; accepts that the categories identified are not exhaustive and theorises that it would be difficult to conceive of circumstances where unreasonableness, in the Wednesbury sense of the term [Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223], or want of natural justice would be successful."
She then continued:
"What cannot be disputed is that these are unusual circumstances. It is not in dispute that what the [Chief Justice] is required to show at this stage is that an arguable case exists. The purpose for leave is to prevent the time of the Court being wasted by busybodies with misguided or trivial complaints of administrative error. Permission should be granted where a point exists which merits investigation on a full inter parties basis with all the relevant evidence and arguments on the law. In my opinion given the state of the law it is open for the [Chief Justice] to argue that the grounds as framed present a situation in which the exercise of a prosecutorial discretion can be reviewed."
"In examining the evidence therefore I must constantly bear in mind that however attractive the arguments of the [Deputy Director] may be at this stage it is only necessary for the [Chief Justice] to show an arguable case and that since I am not at this stage a fact finder I must for the purpose of ascertaining whether there is an arguable case assume that the facts as raised by the [Chief Justice] are true.
I do not propose here to go into a detailed examination of all the evidence placed before the Court by the [Chief Justice]. The [Deputy Director] submits that there is no evidence to show that the [Deputy Director] was influenced by politicians or that there was any communication between the DPP and the Prime Minister and the Attorney General. In my opinion that part of the statement in the Matalulu case that refers to acting on political instruction is merely used as an example of one of the circumstances in which it could be said that there was a failure to exercise an independent discretion. The question that I have to answer is therefore on the evidence as presented by the [Chief Justice] is it arguable that the [Deputy Director] acted under the control and direction of another person or body and failed to exercise her independent discretion? The [Deputy Director] says that there is absolutely no evidence to support the allegation. The [Chief Justice] submits that on the totality of the evidence placed before the Court there is sufficient evidence for a Court to come to such a conclusion.
In my opinion on the totality of the evidence raised by the [Chief Justice] the [Chief Justice] has presented an arguable case to the Court and by so doing has discharged the burden placed upon him at this stage of the proceedings. In any event, to my mind, the evidence apart, there has been raised important questions of constitutional law that in my opinion demand further consideration and a determination by the Court."
The Court of Appeal judgment
"the obvious inference is that the Prime Minister and the Attorney General had formed the view that the Chief Justice had committed a grave offence (or at least there was credible evidence that he had) and must either face criminal prosecution or demit office. Arguably, someone placed in the Chief Justice's position could have interpreted the words used as threatening. However, what is missing thus far is any evidence to suggest any improper influence or conspiracy between the Chief Magistrate and the Prime Minister or Attorney General. There is also up to this point nothing to suggest that, in deciding to refer the report for criminal investigation the Prime Minister improperly sought to influence its outcome."
Reference was made to the hearsay report of a real property transaction involving the Chief Magistrate, but in the absence of verification no weight could be attached to it. Having considered evidence of the correspondence between the Attorney General, the Director of Public Prosecutions and the Deputy Director (para 10 above), the court concluded that
"there was no reasonable basis for concluding that the Deputy DPP's decision or advice was influenced by political pressure. If the application had been presented and assessed in the way that it should have been, we are confident that leave would not have been granted on that basis."
The court accepted that there was room for the inference that the Deputy Director had been the effective decision-maker and that that issue could have been resolved in judicial review had such a challenge been otherwise appropriate. But for reasons already given the court did not consider judicial review to be appropriate. The court dealt shortly with other complaints raised by the Chief Justice, not pursued in argument before the Board. It allowed the appeals by the Acting Commissioner and the Commissioner, considering the absence of an arguable case against them to be even clearer than in the case of the Deputy Director.
"What he cannot do is seek to influence the process once he refers it for investigation or action. One therefore has to examine [the Prime Minister's] conduct, that of the person exercising the prosecutorial discretion and any other relevant evidence to see whether there is an arguable case that such interference has in fact taken place. That is the proper approach."
Judgment by Baroness Hale of Richmond, Lord Carswell
and Lord Mance
"If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law."