Director of Public Prosecutions v Chris Durham also called Bouye (deceased) and 2 others (Trinidad and Tobago)

Judicial review of a decision to bring or continue criminal proceedings is available in principle, but it is a highly exceptional remedy. Leave should ordinarily be refused where the criminal process provides a convenient and effective alternative remedy, including an application for a stay for abuse of process, a submission of no case to answer, directions to the jury and an appeal.

A civil court should not determine disputed witness credibility or decide which of conflicting accounts is true. Those are matters for the criminal trial, ordinarily for the jury. A witness’s recantation or apparent inconsistency will not, without more, make continued prosecution irrational or abusive.

The Director of Public Prosecutions of Trinidad and Tobago charged three respondents with the murders of three men. The prosecution case depended on an eyewitness who had given detailed incriminating evidence in 2009. Shortly before trial in 2019, he told prosecuting attorneys that his earlier account was untrue, but said that he would repeat it at trial and declined to sign a statement confirming the alleged retraction.

The respondents sought urgent judicial review of the DPP’s failure to discontinue the prosecution. The High Court granted relief and quashed the indictment. By a majority, the Court of Appeal affirmed, holding that continuation was unreasonable, unfair and an abuse of process. The Privy Council considered whether judicial review was appropriate despite the criminal proceedings, and whether the circumstances established irrationality or abuse of process.

1. Appeal allowed. The criminal proceedings supplied a convenient and effective alternative remedy. The respondents could have applied promptly to the trial judge for a stay for abuse of process. The trial judge was better placed than a civil court to assess the evidence as it unfolded and to address fairness and abuse.
2. The availability of an alternative remedy is a discretionary bar under section 9 of the Judicial Review Act. It is not necessary that the alternative remedy be identical to judicial review. In the context of prosecutorial discretion, the criminal process will usually be adequate. The statutory right to judicial review does not alter that principle.
3. Even if judicial review had been appropriate, the Court of Appeal majority erred in treating the eyewitness’s alleged statements to prosecuting attorneys as establishing that his original sworn evidence was false. The civil courts were not entitled to determine which account was true or to find that he had committed perjury. That was an impermissible usurpation of the jury’s fact-finding function.
4. The witness’s alleged recantation was a variation of the ordinary problem of a witness whose credibility is challenged. The criminal process provided safeguards, including disclosure, examination of the prosecuting attorneys if appropriate, proof and use of inconsistent statements under sections 5, 6 and 15H of the Evidence Act, a submission of no case, closing submissions, jury directions and an appeal.
5. Abuse of process has two distinct categories. Category 1 concerns whether a fair trial is possible. Category 2 concerns misconduct making it offensive to try the defendant or undermining public confidence in criminal justice. Category 2 requires first identifying prosecutorial misconduct and then deciding whether it justifies a stay. Neither category was established.
6. There was no bad faith or relevant prosecutorial misconduct. Section 27 of the Legal Profession Act was not engaged because perjury, false evidence and the requisite knowledge had not been established. The circumstances did not meet the high threshold of exceptionality required to quash the indictment or the DPP’s decision. The DPP was left to decide any appropriate next steps.

• Privy Council: The appeal from the Court of Appeal of the Republic of Trinidad and Tobago was allowed. The Board held that leave for judicial review should not have been granted and that the indictment should not have been quashed.
• Court of Appeal of the Republic of Trinidad and Tobago: In June 2022, Archie CJ and Rajkumar JA, by a majority, affirmed the High Court’s decision that the DPP’s failure to discontinue was unreasonable, unfair and an abuse of process. Bereaux JA dissented, describing the decisions below as palpably wrong.
• High Court: Quinlan-Williams J granted leave for judicial review and, after a full hearing in June 2019, declared the DPP’s failure to discontinue unreasonable, improper and unfair, quashed the indictment and declared it of no effect.