This is gonna be a very, very long post. It’s gonna have lots of quotes from cases and books and journals and British parliamentary debates. If you just want the punchline, you can skip to the end. If you’ve already made up your mind that Ralph is a modern-day dictator who is taking away your “rights” one by one, you can skip this article all together. OK? But the hate mail I got after the letter I wrote to Searchlight last week has radicalised me. Instead of writing less, I’m writing more. Instead of just telling you what I think, I’m giving you quotes from Very Important People. You can’t mess with quotes from Very Important People. So here goes: I’m not a lawyer. . . but I did stay at a Holiday Inn Express last night, so I feel like I can say something about the raging debate over private criminal complaints in SVG. This week, sometime after the budget debate, the ULP Gov’t is gonna bring legislation to change the procedure that’s used to bring a private criminal cases. Depending on who you’re listening to, this is either no big deal, or it’s the end of democracy as we know it in SVG. Give me the next hour and a half of your day, and I’ll explain my thoughts on this issue.
Let’s start by framing the debate using the words of Richard Blakeley of The Cambridge Law Journal:
On one view, the right of an individual to bring a private prosecution is something of an anachronism in modern Britain. The notion that a private person might invoke the state’s punitive machinery, including the possibility that the state may, notwithstanding that the DPP may not have seen fit to take over the prosecution, ultimately incarcerate the accused, seems out of place in a system that possesses a fully functioning, adequately equipped, non-corrupt police force, and an independent prosecuting body. Alternatively, others view the right as a constitutional fundamental, and an essential part of the deterrent weaponry used to protect those who serve amongst the public, such as transport workers and postal employees. (To The Fullest Extent Of The Law? Jones v. Whalley And The Right To Private Prosecution. The Cambridge Law Journal, 2007)
So, straight off the bat, we see that there are two views on this matter. View #1 says that it’s “an anachronism” and View #2 says its “a constitutional fundamental.” You are not an ignorant idiot if you take view #2, nor are you a ruthless, rights-trampling dictator if you take view #1. This has been a legal/constitutional debate since at least the end of the 19th Century. There is no right answer or perfect answer. But when you take the logic that others have used for either keeping it or abolishing it, and apply that logic in the Vincy context, it points you in a certain direction, I think.
Having framed the debate, let’s go through this thing step by step, shall we? I’m schizophrenic, so I’ll ask myself the relevant questions:
HEY, VP, WHAT’S A PRIVATE CRIMINAL PROSECUTION?
First thing we need to establish is that a private criminal prosecution is a CRIMINAL prosecution. CRIMINAL as opposed to CIVIL.
In a criminal trial, your liberty/freedom is at stake. The punishment is usually jail. If you get off with a fine, you pay that fine to the State (SVG) not some person.
In a civil trial, only your money is at stake. Or maybe some property. You did somebody wrong, and they sue you. They want their money back, or their reputation back, or they want you to do what you promised you’d do (in a contract).
So, a private criminal complaint is a CRIMINAL case, brought by a private individual. In its simplest terms, some private person is walking in to court and asking the court to lock you up for a crime.
HOLD ON, I THOUGHT ONLY THE DPP OR POLICE BROUGHT CRIMINAL ACTIONS?
Ah, now we’re getting to the meat of the matter. Individuals don’t normally bring criminal actions. The State normally brings criminal actions. A crime is a breach of the peace. It injures society. So society (in the form of the DPP) brings the case against the criminal (on behalf of “the Queen,” whose peace was breached). In SVG, the DPP/Police bring 99.999% of criminal actions.
Let me make this clear: the ULP government’s amendment does not affect an individual’s ability to bring a CIVIL case in ANY WAY. In my recent rum shop tours (and worse, on facebook), people are bringing up hypothetical cases of people on your property who refuse to pay rent; people who are owed money or salary; people getting injured by hospital negligence, etc. THESE ARE CIVIL MATTERS. When these things happen, you sue someone for damages. No one is touching your right to sue anyone for damages, ok? Ok. This is about your right to ask the court to send someone to jail.
WHAT’S THE HISTORY OF PRIVATE PROSECUTIONS? We inherited the right to private criminal actions from the British. Way, way back in the day, before the first enslaved African landed on our shores, or before Columbus and his boatloads of criminals stumbled onto our region, the British had private criminal actions. Why did they have private criminal actions? Because “the Crown” didn’t have the means, the reach, or the interest, in punishing commoners when they were robbing and killing each other in feudal England. Somebody stab you? Go tell the court yourself, and the court would lock them up. Maybe. Here is the first of many quotes to describe the situation as it was then:
Necessary for an understanding of the legislative contest is the picture . . . of the prosecutorial system as it existed in England at the time our tale begins, circa 1850. In the background, one should note a most inadequate constabulary, largely nonprofessional, sometimes corrupt, usually uneducated, often incompetent, a long way, indeed, from the very efficient English police which we know today; both legal professions – the barristers as well as the solicitors – fallen from grace; the upper levels of the judiciary made up in large measure of faithful politicos; [and] committing magistrates with no knowledge of the law, almost entirely dependent on their clerks for instructions on the subject. (Public Prosecutions in England, 1854-79: An Essay in English Legislative History, Duke Law Journal 1959)
Great. Sounds like a wonderful time to be a criminal eh? Bad cops, dumb judges, and a chance that you won’t get prosecuted at all! Because of this, the responsibility to bring a criminal case against a criminal fell to the individual victim of the crime. If you (the victim) didn’t charge someone with a crime, chances are, he was getting off Scott free! Here’s how an old British journal described the situation in the year 1858:
It would be difficult to make an intelligent foreigner believe that in ordinary cases it is left very much to chance to determine, not only who the prosecutor shall be, but whether there shall be any prosecution at all. Except in cases of high treason or sedition, it is no part of the official duty of the Attorney-General to institute a prosecution, although it frequently happens that he does so when a crime of more than usual magnitude has been committed, or when the offense is one in which the public takes an unusual degree of interest . . .
But in all other cases it is left to the committing magistrate to determine who the prosecutor shall be. Sometimes it is the party injured, or, if he be dead, his friends or representatives. Sometimes it is the policeman who has been employed to get up, as it is called, the evidence. And often the prosecution is dropped altogether because nobody feels sufficient interest to go on with it. It must also be borne in mind that although the Crown is always nominally the prosecutor, and the two parties on trial are the Queen and the prisoner, yet in reality where there is a private prosecutor, the conduct of the case is left entirely to him, and he employs his own attorney to prepare the evidence and retain counsel.
Moreover there is no settled rule applicable in all places alike; and in consequence there is no uniformity of system throughout England. . .
Surely such a state of things as this is discreditable to English jurisprudence. (Criminal Procedure in Scotland and England, Edinburgh Review, 1858).
Clearly, this wasn’t the best state of affairs. As far back as in the 1790s, Brits started to make noise and call for a “public prosecutor.” By the early 1800s, they were demanding legislation “to cure some of the abundant evils of private prosecutions.” (Works of Jeremy Bentham, 1842). The idea of a DPP (then called a “public accuser”) was raised in 1816, and rejected in 1818.
Calls for reform grew louder and louder. In 1854, a bill was introduced in parliament. It’s purpose?:
To simplify and facilitate the course of public justice which had been hitherto in a most discreditable state. Under the present neglected state of our law, after the proceedings before the magistrate are closed, it was left open to the ability or zeal of a private prosecutor whether the greatest criminal should be brought to justice, or whether he should, as was too frequently the case, escape with impunity. There was little doubt that if the Bill became law, the country would be relieved from great and unnecessary expenses under the present state of things, frivolous prosecutions were of frequent occurrence, by which expenses were multiplied exceedingly. (British Hansard, 1854).
Woah. Frivolous private prosecutions? Gotta stop that. Gotta stop that right away!
Slowly, from the mid-1850s onward, England established a public prosecutor system, and then a DPP. Coming along with that was a bigger police force, which could deal with more crimes, and a more educated and professional force to boot. In the 1840s, 9 out of every 10 criminal prosecutions were private criminal actions. Twenty years later, it was roughly 50-50. The number of private criminal complaints continued to decline.
Here’s what The International and Comparative Law Quarterly said about it all in 1973:
The first principle of prosecution at common law is that all proceedings are at the suit of the Crown, since "all offences are either against the King's peace, or his crown and dignity," and from the earliest times the courts have recognised that any person can instigate proceedings in the Crown's interest. In 1313 the Court of King's Bench said it "would willingly receive the humblest man of the people" acting on behalf of the King, and in principle the right of private prosecution survives today. Historically private initiative was taken in discharge of communal duties, and heavy fines were imposable upon hundreds not presenting their offenders to appointed officers, but by the fifteenth century the system of communal responsibility had decayed and individuals prosecuting as such tended to be common informers, seeking a conviction to gain the rewards it had become common for Parliament, corporations and other undertakings to offer as an inducement. With the development of the modern locally organised police service from 1829 reliance upon private initiative declined, and today private prosecution is unusual. It is found, however, regarding shop-lifting offences, and has been institutionalised through such private organisations as the National Society for the Prevention of Cruelty to Children . . . and the Royal Society for the Prevention of Cruelty to Animals. (Control of Prosecutions in the United Kingdom, 1973)
So, summing up our history lesson for those of you whose eyes glazed over in the quotes: We got this from England. It was a product of their ancient legal system from the 1300s to the 1800s. When England got itself a DPP, private prosecutions dwindled away, and today its basically used in shoplifting cases. Got it? Good. Let’s move on. WHAT DO THOSE IN FAVOUR OF IT SAY? AND THOSE OPPOSED? In 1998, the British Law Commission published something called “Consents to Prosecution (lc255).” You can Google the .pdf. Take a look at pages 27-30 or so, where they list the arguments for and against private prosecutions. I’ll summarise for you: * REASONS FOR PRIVATE PROSECUTIONS - It’s hard to bring a private prosecution, so if you bring one, it must be important. Or maybe you and the DPP don’t get along. Or both: “in view of the difficulty in bringing a private prosecution, resort to that measure is likely to happen only after there has been some disagreement between the individual and the prosecuting authorities.”
- It’s a fundamental right that we’ve had forever, based on the “fundamental constitutional principle of individual liberty based on the rule of law.” It is a constitutional safeguard against wrongful failure by authorities to prosecute.
- (there was another argument, not made in the Law Commission document, but made in the House of Lords: The argument, basically is this: ‘sure, some people are gonna abuse the right maliciously and spitefully. It’s the nature of people to abuse their rights sometime. But that’s not a reason to ABOLISH the right altogether. If I falsely accuse you of rape, for example, you wouldn’t abolish the crime of rape, right?)
* REASONS AGAINST PRIVATE PROSECUTIONS
- “entrusting the conduct of the prosecution to a private individual opens a wide door to bribery, collusion and illegal compromises.” Private prosecutions are often “based on personal spite, on revenge, on financial gain, on blackmail, on fanaticism.”
- A blue-ribbon panel of British jurists “made proposals which would have, in effect, abolished the right to bring a private prosecution, replacing it with a system of publicly financed “private” prosecutions subject to the leave of the court.”
- The “right” to private prosecution is not constitutionally protected, and, indeed, in some cases you already need DPP consent. Plus they can be stayed by the Attorney General or “terminated by the DPP who has the power to take over and discontinue proceedings”
- “Furthermore, there are the practical constraints on the right of private prosecution: the cost of bringing a prosecution, the private prosecutor’s lack of investigative resources and the risk a prosecutor runs of being sued in the civil courts for malicious prosecution or false imprisonment.”
OK, SO WHAT’S THE ARGUMENT FOR THE REFORM/REPEAL OF PRIVATE PROSECUTIONS?
You mean, beyond what’s listed above?
OK, a little more history. Recent history this time. You may even have been alive.
In the 1800s, Brits began making noise to reduce the role of private prosecutions. Almost 200 years later, in the 1980s, they started to make noise to abolish it altogether. Sir Cyril Philips headed Britain’s “Royal Commission on Criminal Procedure,” whose job was to reform the “fairness, openness and workability” of the criminal justice system. The report was pretty controversial, and made a number of recommendations, some that were adopted and some that weren’t. One of the recommendations of the Royal Commission was to put a stop to unrestricted private prosecutions. First, you’d have to get permission to bring a private prosecution. If you didn’t get permission, you could challenge that to a court. If the court said you shouldn’t have been denied the right to proceed, they’d pay for you to go ahead with the case. In other words:
The importance of the private prosecution will be much diminished. The primary responsibility to prosecute will be placed upon the public. If a Crown prosecutor did not wish to proceed, a victim could, on application to a magistrate, contend that the decision was wrong and this, if accepted, would enable him to prosecute privately at public expense. The Director of Public Prosecutions would not be called upon so often to advise on cases. (The Royal Commission on Criminal Procedure, The Modern Law Review, 1981)
(Wait, you mean this idea about limiting private prosecution wasn’t some evil plan hatched up in Ralph Gonsalves’ devious little mind? You mean British knights and nobles were discussing this 30 years ago? And they weren’t doing it to stop Nicole Sylvester and Kay Bacchus? Say it aint so!)
Law journals began getting into the act, and most of them (that I could find with Google) were in favour of this particular proposal of the Royal Commission.
The British House of Lords chewed this idea over in 1985 (they ended up keeping the right to private criminal complaints). One of the Lords, Lord Hutchinson of Lullington (I love these names, lol) had this to say:
The mischief of continuing private prosecutions is that the motivation of those who bring private prosecutions may well not be the good of society but may be based on personal spite, on revenge, on financial gain, on blackmail, on fanaticism – all sorts of motivations. If this private prosecution procedure is going to be allowed to continue, then I would submit that it is absolutely essential that the Director or the Crown prosecutor should know in every case that a private prosecution has in fact been launched so that he can look at it and decide whether he ought, in the public interest, to take over the prosecution rather than allow it to go on, either in order to stop it or to prosecute it on behalf of society and not for some personal reason.
Now Lord Hutchinson of Lullington aint no ordinary Lord, no sir. He’s a Q.C., “a distinguished criminal silk.” And he spoke out over and over again on this issue, calling for reform. If you wouldn’t abolish this “anachronism,” this “nuisance,” he said, at least you should follow the Royal Commission:
“Furthermore, the Royal Commission said that if it was not abolished, then there should have to be an application to the public prosecutor—and if he turned it down, an application to the magistrates.”
Clearly, this Lord Hutchinson dude was a Ralph-ite, communist, Labour dawg. No doubt about it.
So let’s ignore Lord Hutchinson. I got more Lords for you. I’m gonna give you Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance, and Lord Brown of Eaton-under-Heywood! Yes, ladies and gentlemen, the opinion of the Lords of Appeal in the world famous 2006 British case of Jones v. Whalley! If you wanna see objective judges chatting about private prosecutions, Google this case and read it.
In Jones v. Whalley, Whalley kicked Jones’ ass in a fight. The police came, and after hearing what happened, he decided to let bad boy Whalley off with a warning. Jones was like, ‘wtf?! Do you see my black eye?!?’ So Jones brought a private criminal prosecution against Whalley for assault, even though the cops had already told Whalley he wasn’t gonna be prosecuted if he kept his nose clean and stayed out of any more trouble.
The court remembered some nice stuff it said about private prosecutions back in the 1970s. It said, for example, that “the right to bring a private prosecution [is] “a valuable constitutional safeguard against inertia or partiality on the part of authority.” Going further, it also said, back in 1978, that “private prosecutions as “a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law”. They also acknowledged “the traditional English view that the right to institute a private prosecution is an important right and safeguard possessed by any aggrieved citizen.”
That’s the good stuff.
The judges’ modern outlook wasn’t so favourable. The nicest thing anyone had to say in 2006 was when Lord Carswell said “the right to bring a private prosecution retains a residual value, although in modern circumstances I would not wish to overstate its importance.”
Ouch. That’s called damning with faint praise.
The bigger licks came from Lord Bingham:
A crime is an offence against the good order of the state. It is for the state by its appropriate agencies to investigate alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing the law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value, and can be exercised in a way damaging to the public interest.
Oh no he didn’t! Damn! “Of questionable value”?? “Exercised in a way damaging to the public interest”?? What’s wrong with this guy? I bet he voted “Yes” in the referendum too! ULP boot licker!
My bredrin Lord Rodger of Earlsferry(!) brought it home:
Nowadays public prosecutions are the rule. So, usually, the court will be concerned to prevent its process being misused by a public prosecutor. But, in times gone by, when private prosecutions were the rule, the court must have had the power to guard against the corresponding danger of its process being misused by a private prosecutor.
So, wait, the British courts recognise that in the modern context, private prosecutors can misuse the courts? And that we should guard against that misuse? What will they think of next? Next thing you know, they are joining ALBA and chewing coca with Hugo Chavez and Evo Morales! OK, SMARTYPANTS, THEN WHY HAVE PRIVATE CRIMINAL PROSECUTIONS SURVIVED IN ENGLAND? Well, it has and it hasn’t. The “right” has been severely constrained and curtailed. There are many instances where private criminal complaints are not available to Brits. In other types of crimes, permission is required first. In fact, one of the reasons the Royal Commission was attacking private prosecutions was the “haphazard” way in which the British parliament was saying ‘you can bring a private action for THIS type of crime, but not THAT type of crime.’ So yeah, the right has survived – kinda – up to this point. But if you defrosted a British commoner from 1850 and put him in court, he wouldn’t recognise what is currently called the “right” to private prosecution. Anyway, you asked why it has survived. There are two answers: Sacred Cows, and Harrods. Lemme explain. In the its analysis of the Royal Commission recommendation on limiting the ability to file private criminal actions, the Modern Law Review says “I conclude that the Royal Commission's proposals are not only defensible, but, given present circumstances, right.” Why didn’t it pass? According to the author, it didn’t pass because the Royal Commission did not “appreciate both the veneration accorded to sacred cows and the stringency with which they are sometimes defended.” In other words, it’s not that private criminal prosecutions are a good idea, its that they have been around so long that people defend them just for the sake of defending them. Its history! It worked so well for 500 years! It aint hurtin’ anybody! Lets keep it! But sacred cows aint the real reason. We all know politicians aint that sacred. No sir. The real reason is Harrods. And Marks & Spencer. Huh? I’ll let Lord Elystan-Morgan of the House of Lords explain for me:
May I make one point in relation to private prosecutions? I believe with my noble and learned friend Lord Elwyn-Jones in his second thoughts on the matter, that there is a justification for maintaining ordinary private prosecutions. As we have heard, they represent about only 1 per cent of the totality of prosecutions. They are confined almost to two exclusive categories: those shops and stores which for some reason wish to bring their own prosecutions for shoplifting rather than have the police do it; and quarrels between neighbours where it is felt that it would not be right for a public service to bring the prosecution.
Ah ha! Now we’re getting somewhere! “Those shops and stores which for some reason wish to bring their own prosecutions for shoplifting” like private criminal complaints!
See, when you walk into Marks & Spencer, or Harrods in London, and you steal that pair of panties for £10, you’re not getting off. No sir. They are watching you on a closed circuit camera. They security guard will come and grab you when you try to leave the store. They will take your picture in a back room and get all your personal info. Then they will turn the matter over to the Marks & Spencer legal department. There, the in-house lawyers for Marks & Spencer will file a private criminal complaint against you for theft/shoplifting/larceny/whatever.
Marks & Spencer aren’t turning you over to the DPP. Why? Because the DPP may not want to prosecute every £10 theft in a big country like England. In fact, sometimes, the police decline to prosecute shoplifters in the UK because they say that the store placed the merchandise on a hanger outside their door on the sidewalk – practically begging for it to be stolen!
But Marks & Spencer don’t want you to think that you’ll get off if you steal a £10 panty. So they invest in their own security and their own lawyers and their own prosecutorial system. And they also make healthy campaign contributions to parliamentarians who defend their right to basically have a private police force and prosecutorial system of hundreds of people. And since its only happening in less than 1% of cases, the politicians take the campaign contributions and leave the shopkeepers with their right to prosecute shoplifters.
Simple.
It’s time for another long quote, isn’t it? Let’s take a look at the abstract of “Prosecution by Private Individuals and Retail Stores” from the New Law Journal of 1981:
The records of 12 magistrates' courts in England and Wales, 4 London courts, and 8 provincial courts revealed that retail stores had the fifth highest rate of nonpolice prosecutions, with 10 percent of the total number of defendants in such cases, and that private individuals ranked ninth with 2.4 percent of the defendants. An overwhelming majority of the prosecutions were for shoplifting offenses. A survey of police agencies revealed that all but two treated shoplifting as an ordinary crime to be prosecuted in the ordinary manner. However, the Metropolitan Police maintained a policy of nonprosecution because of the large number of shoplifting offenses within its jurisdiction and because some stores display their wares in such a way as to facilitate theft and should therefore shoulder the cost burden of prosecution. This policy is unjustified since other police forces which did not have a policy of nonprosecution were found to have an equivalent or higher ratio of recorded offenses to actual police strength and because stores pass prosecution costs on to the public in the form of higher prices. Further evidence revealed that some stores prosecute only if the value of stolen goods exceeds a certain figure because of the volume of such cases and because indiscriminate prosectuion was uneconomical. While the police have no statutory duty to prosecute, private citizens have a constitutional right to do so. However, usually only those persons or organizations that have the skill and financial resources available are able to exercise this right. This fact and the belief that the police are better able than private individuals or organizations to decide when prosecution is in the best interests of society lead the authors to conclude that the right of private prosecution should be abolished.
Whhaaaat?? These damn filthy ULP dogs are EVERYWHERE! Even in British academia! Even in 1981! I bet that Ralph wrote that article under a pseudonym back when he was a lawyer in 1981, and he was just biding his time for this very moment to come and take our rights away!! I wouldn’t put it past him! ENOUGH WITH THE SARCASM, VP: ISN’T THE ULP JUST BRINGING THIS AMENDMENT BECAUSE THE NDP KEEPS FILING PRIVATE CRIMINAL CASES AGAINST THEM? Yes. Duh. That’s exactly why the ULP is brining it. Every time Ralph scratches his balls, Kay Bacchus and Nicole Sylvester bring a private criminal complaint. First, he’s a rapist, but the victim won’t provide a written statement or consent to an interview, and the doctor finds no evidence of rape. This time its 4 more cases of seeking jail time for campaign picong. Was their failed Luke Brown case also a private criminal complaint? I forget. Anyway, this thing is getting old: Ralph scratches his balls. Nicole/Kay/NDP bring a criminal complaint against Ralph for felony balls scratching. The DPP looks at the foolishness, sucks his teeth, and discontinues the case. Nicole/Kay/Vynette/Arnhim hold a press conference, allege that Ralph is above the law, that democracy is in peril, that the law is a fiction, that the DPP is a stooge, that the justice system is corrupt, that Vincentians can’t get justice, and that Ralph, the serial balls-scratcher, should step down. Then Ralph picks his nose. And we start all over again. What happens when you keep doing this? Well, the first thing that happens is that the NDP is guaranteed weekly headlines in which they repeat their hysterical lies. And the second thing that happens is that they repeat their lie. Over and over again. Until people start believing that our justice system is crap. If your population starts losing faith in the justice system and the constitutional officers of the justice system, you are one step from anarchy. The government has an obligation to prevent anarchy. Neither anarchy nor letting the NDP manipulate loopholes in the system is in the interest of the ULP government. The NDP has highlighted a loophole that they are exploiting. The ULP is trying to close it. It’s absolutely a response to the NDP’s behaviour. BUT WHY DID THE DPP DISCONTINUE THESE CASES? DIDN’T THEY HAVE ANY MERIT? My hypothetical Mitchell/Anesia/Arnhim gang-rape had more merit than those cases. Do you know what the allegations were? The reasons that they wanted Gonsalves, Slater, Burgin and McKie jailed, fined, and barred from politics for 5 years? Lemme tell you what they alleged, and why they’re bullshit. - They said that Gonsalves said that Vynette went overseas as a girl and came back as a boy. (In his next sentence, Ralph said that he wasn’t trying to cast any aspersions on VinnyVee).
- They said that Ces McKie told some guy privately that he thinks Vynette is a lesbian.
- They said that Burgin said in a meeting that this lady told him she met Linton at a store, and Linton told her to stop claiming that he impregnated a 13 year old girl, and that Linton said he would sue her if she didn’t stop, but that she didn’t stop, and Linton hasn’t sued her. (Got that?)
- I forget what Slater was supposed to have done/said. Something against NDP candidate “Nature.”
OK. Now let me tell you why none of them would have worked (even the Slater one, which I don’t remember):
- The case against Slater is dead because Nature won his seat. Under the act they were suing under, you basically have to prove that the false statement caused you to lose the election (I’m oversimplifying). No way you can go to court and say, ‘last election, we didn’t have this seat. We wrested it from the ULP, but this thing Slater said nearly made us lose.’ Sorry. This case is thrown out.
- The case against Ces McKie is out for two reasons. One is that he won by more than one vote, and they only allege that he told this to one guy. No allegation that this “falsehood” about Vynette’s dining choices was spread or broadcast beyond this one dude. The second reason is the date. You have to make your false statement “during the election.” But they alleged Ces said it before nomination day, so it wasn’t during the election. This law for election falsehoods doesn’t work 365 days a year, just during an election. When is “during an election?” between either dissolution of parliament (or nomination day) and the day of the election. This was a statement made before the election, by a guy who was never a candidate, and had not been formally nominated. Fail.
- The cases against Ralph and Burgin are out because, at best, they are innuendo. Sorry, innuendo isn’t criminally actionable. Why? Cuz innuendo is open to interpretation. See, in a criminal case, you gotta prove your allegation beyond a reasonable doubt. You can’t prove innuendo beyond a reasonable doubt. You can say “Ralph was probably calling Vynette a lesbian, and Clayton was probably calling Linton a pedophile,” but “probably” doesn’t get you there in a criminal case. It’s more than enough for a CIVIL case, but they didn’t sue for defamation. They sued to send Gonsalves and Burgin to jail. And innuendo don’t get you in jail. Sorry. (Also, Ralph’s statement was also made too early, and not “during the election.” Double fail).
So, legally, the cases were, as Gonsalves would say, “S-H-dot-dot-dot.” Not a leg to stand on. They were, as the lawyers say “frivolous and vexatious.”
Beyond that, what happens if the DPP allows the cases? I’ll tell you what happens. ULP brings cases against everyone who called Gonsalves a rapist, a child molester, a money launderer, a thief, maybe even a communist (hey, if lesbian is a bad thing, maybe communist is too). What, you say? Almost everyone called Ralph names during the election? The whole NDP would be in court, you say? It doesn’t take into account the nature of Caribbean electioneering, you say? Every piece of campaign picong would land you in court, you say?
Exactly.
Look, the DPP isn’t being a stooge when he discontinues bullshit cases, he’s doing his job. It’s his duty to keep silly criminal complaints out of court. It’s his role not to prosecute if there isn’t sufficient evidence to lead to likely conviction. You don’t just take people to court and threaten their liberty on a whim. This is serious stuff. I don’t understand when people say the DPP should leave these things for the court to handle. Do they understand the role of the DPP? If he did that, he wouldn’t be doing his job.
If he did that, I could accuse Son Mitchell, Anesia and Arnhim of gang-raping me on Christmas Eve in Heritage Square at 12:00 noon. And the DPP would, what? Make Son, Anesia and Arnhim come to court, get lawyers, and answer my charges? In the name of letting the court deal with these matters? Don’t make me laugh.
You know what a nice stuffy White British DPP would’ve done? He would’ve discontinued the cases. You wanna know how I know that? Cuz the website of the British Crown Prosecution Service tells you the kind of cases they will take over and discontinue. You wanna know what they discontinue? “cases where it can be said that the prosecution is vexatious. . . or malicious (where the public prosecutor is satisfied that the prosecution is being undertaken on malicious grounds).” You know when else they can stop a case? “in private prosecutions when there is no case to answer, or where the public interest factors against the prosecution clearly outweigh those in favour.” The British DPP has been subverted by ULP dogs! Somebody call the Queen!! OK, OK. WHAT EXACTLY ARE THE AMENDMENTS BEINGS PUSHED BY THE ULP GOV’T? What the key parts say is this:
(2) Before any person institutes a private prosecution he shall obtain a fiat from the Director of Public Prosecutions
(3) Unless the [DPP] grants a fiat referred to in subsection (2), no private prosecution shall be instituted.
(4) The [DPP] may request from the person who intends to institute a private prosecution or his counsel any or all evidence, statements or other material which the [DPP], in his own absolute discretion, considers necessary in the circumstances.
(And no, a Fiat isn’t just a cheap European car. A ‘fiat’ is “a formal authorization or proposition; a decree.”) In other words, before you file your private criminal complaint, you have to go to the DPP, and he has to authorize you to proceed. THAT’S IT? WHAT’S THE BIG EFFIN’ DIFFERENCE? DON’T YOU STILL HAVE “THE RIGHT” TO BRING A PRIVATE CRIMINAL ACTION? Exactly!! Contrary to popular belief, the right to private criminal prosecution HAS NOT been abolished! You can still prosecute someone privately, but you now need DPP clearance first. Your right is preserved, but with a new procedural hoop to jump through. I have the right to drive my car through Kingstown, but I need a driver’s license first. I have the right to hold a political demonstration in Heritage Square, but I need a permit first. I have the right to vote, but I have to register first. Now let me tell you why this is no big deal. Let’s look at the same case in two situations: under the current law and under the amended law: CASE: Vynette brings a private criminal complaint against Ces for telling someone she’s a lesbian. DOES THE CASE MAKE IT TO COURT? Under the old law: No, the DPP takes over the prosecution and discontinues it. Under the new law: No, the DPP does not authorise her to proceed. No difference. CAN SHE CHALLENGE THE DPP’s DECISION Under the old or the new law: Yes, she can challenge his decision in the High Court, but its hard to overturn it unless you can prove bias/malice on the part of the DPP. No difference. DOES THE NDP GET THEIR PRESS CONFERENCE? Under the old law: Yes, they get 2 – they have one to say that they are filing the complaint; and then they get one to claim democracy is in peril when the DPP discontinues it. Under the new law: Yes, they get 2 – they have one to say that they want to file a complaint; and that they are on their way to the DPP’s office, and then they get one to claim that the DPP refused to authorise it, and democracy is in peril. No difference.
WTF?? YOU JUST MADE ME READ 6,000 WORDS TO TELL ME THAT IT AINT A BIG DEAL AND THERE IS NO REAL PRACTICAL DIFFERENCE? Yep. Pretty much. Next time, buy the Searchlight. I said all this last week in 600 words, not 6,000. :)
