Commissioner of Police and another v Steadroy C. O. Benjamin

The Director of Public Prosecutions has no general power to prevent the police, private citizens or other authorities from instituting criminal proceedings. A constitutional power to institute proceedings, and powers to take over, continue or discontinue proceedings already instituted by another, are distinct. The power to discontinue does not imply a prior power of prevention. Constitutional provisions receive a generous interpretation, but that approach cannot displace their plain ordinary meaning or imply a power inconsistent with express provisions. In Antigua and Barbuda, the police retain their common-law and statutory power, and in some circumstances duty, to prosecute. The Director may request that they refrain, but cannot instruct them. A specific statutory requirement for the Director’s consent may produce a different result.

The Commissioner of Police and the Attorney General appealed against the Court of Appeal of the Eastern Caribbean Supreme Court’s order of 19 September 2011. The Court of Appeal, by majority, had allowed Steadroy Benjamin’s appeal from Harris J’s order of 31 July 2009 and quashed summonses issued against him.

The proceedings arose after the police proposed charging Mr Benjamin under section 6 of the Forgery Act. The Director of Public Prosecutions instructed the police not to charge him, but the police proceeded. Harris J held that the Director lacked power to prevent the complaints and refused leave for judicial review. The Court of Appeal majority held that such power was implicit in the Constitution. The central issue was whether the Director had a general power to prevent the police from instituting criminal proceedings.

The Board allowed the appeal. It set aside the orders of the Court of Appeal dated 19 September 2011, restored the orders of Harris J dated 31 July 2009, and ordered the respondent to pay the appellants’ costs of the appeals.

1. Statutory framework. The common law gives every citizen power to institute criminal proceedings. That power was reinforced for the police by section 26(2)(a) of the Magistrate’s Code of Procedure Act, while section 23(1)(e) of the Police Act imposes a prosecutorial duty where officers reasonably suspect an offence. The Director is not part of the police force and has no command over it under section 6 of the Police Act.
2. Constitutional construction. Section 88(1)(a) of the Constitution of Antigua and Barbuda empowers the Director to institute proceedings. Sections 88(1)(b) and (c) expressly recognise proceedings instituted by another person or authority and empower the Director to take them over, continue them or discontinue them. Section 88(2) makes the latter powers exclusive, subject to its proviso, but does not make the power to institute proceedings exclusive. Section 88(4) concerns the manner in which the Director exercises his functions and does not enlarge them.
3. The Constitution requires a generous interpretation, but that principle does not authorise rejection of its plain ordinary meaning. A power to discontinue proceedings after institution cannot logically imply a general power to prevent their institution, particularly because private persons and other authorities may also institute proceedings. Specific statutory consent provisions, such as section 4(1) of the Biological Weapons Act, are different and may permit prevention by withholding consent.
4. Police and Director. The principle stated in R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] QB 118 holds good in Antigua and Barbuda, subject to such specific statutory requirements. The Director may request, but cannot instruct, the police not to institute proceedings. A mutually respectful working relationship remains important, but the Director’s published guidance that he alone makes all prosecutorial decisions did not accurately state the law.

• Privy Council: Allowed the appeal, set aside the Court of Appeal’s orders, restored the High Court’s orders, and ordered the respondent to pay the appellants’ costs.
• Court of Appeal of the Eastern Caribbean Supreme Court: On 19 September 2011, the majority allowed Mr Benjamin’s appeal from the High Court, set aside Harris J’s orders and quashed the summonses. Pereira JA dissented.
• High Court of Justice: On 31 July 2009, Harris J refused leave for judicial review and held that the Director lacked power to prevent the police from laying the complaints. The alleged political interference could be raised before the Magistrate’s Court as an abuse-of-process issue.