The Tribune

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

IN view of recent high-profile motions for nolle prosequi, former Attorney General Sean McWeeney yesterday criticised the constitutional system that gives such prosecutorial powers to the attorney general.

“We’re one of the few remaining countries of the commonwealth where the powers of criminal prosecutions are still vested in the attorney general,” he said. “In nearly every other case in the Caribbean and elsewhere there’s been a constitutional amendment to vest those powers in an independent Department of Public Prosecutions (DPP).”

Last week, the Office of the Attorney General faced scrutiny after it produced a motion for a nolle prosequi in a case involving the murder of Latore Mackey, a press aide to Prime Minister Perry Christie who was shot in 2014.

That came months after a nolle prosequi was issued in connection with the trial of those accused of the gunpoint robbery of Deputy Prime Minister Philip “Brave” Davis at his home in 2013. Several other cases have attracted the issuance of a nolle prosequi in recent months.

In a statement to The Tribune yesterday, Gavin Gaskins, the director of public prosecutions, said when his department recommends a nolle prosequi, “the only reasons for the recommendation are because of circumstances that affect the state of the evidence (such as where a witness has recanted their statements) or where a constitutional issue has arisen regarding trials not being had within a reasonable time.

“In respect of the entering of a nolle prosequi, the Department of Public Prosecutions makes a recommendation to the attorney general who, under Article 78 of the Constitution of the Bahamas, has full discretion to, among other things, discontinue any criminal matter, at any stage before a judgment is delivered,” Mr Gaskins added.

For his part, Mr McWeeney defended current Attorney General Allyson Maynard-Gibson, insisting that no case has risen for which she could justifiably be criticised for the entry of a nolle prosequi.

“As far as the current attorney general is concerned, I’m not aware of any instance where she could be justifiably criticised for seeking (a nolle). There are lots of safeguards in the system. The attorney general would hardly ever nolle a case on her own. In close to 100 per cent of the cases, it would be on the technical officers, the professional officers who make a recommendation.

“And it’s invariably put in writing. When I was attorney general, that practice was followed in every case I ended up seeking to nolle,” Mr McWeeney said.

Typically, the attorney general does not explain why a nolle is entered even though Mr McWeeney believes there’s no substantial defense for this tendency.

“Historically you don’t give reasons. I don’t know of any country that does but there’s no sophisticated reason not to. The attorney general is executing a power historically reserved for the Queen who wasn’t in the habit of giving reasons, so the decision not to give an explanation comes out of that arrogant construct. It’s like, ‘how dare you ask me to explain my reasoning?’”

As for why motions for nolle prosequi are sometimes entered, Mr McWeeney said it is almost always based on the conclusion that a conviction cannot be achieved.

“When a case is started, there’s very little involvement by the attorney general,” he said. “Police usually make those cases. They get the evidence and they charge the persons. The attorney general doesn’t get involved until you have a preliminary inquiry or are proceeding to trial under the voluntary bill of indictment and that’s when there’s a more technical evaluation of the evidence. Most times the police are non-professional persons. They’re not lawyers and it’s often the case that the evidence will not result in a conviction and it would be an abuse of power to proceed with the case with the liberty of the subject at stake when you are sure that the jury won’t convict the person. In other cases, the chief witnesses are killed or they recant their evidence.”

A constitutional referendum is not required to make the Department of Public Prosecutions independent from the Office of the Attorney General, Mr McWeeney said.

“There are lots of misconceptions around this. It requires a constitutional amendment but not a referendum. The legislation need only be passed by Parliament. It needs to happen, just like we need an independent boundaries commission. The director of public prosecutions should not just be an administratively independent position. It needs to have constitutional guarantees with security of tenure. That could help avoid criticism and suspicion when the certain things are done.”