Prakash Boolell v The State

Prakash Boolell

Appellant

v.

The State

Respondent

FROM

THE COURT OF APPEAL OF

MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 16th October 2006

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Carswell

Lord Brown of Eaton-under-Heywood

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Delivered by Lord Carswell]

The appellant Prakash Boolell was on 24 March 2003 convicted by the Intermediate Court of Mauritius (Magistrates Mr David Chan Kam Cheong and Mrs D Beesoondayal) on an information containing one count of swindling, sentenced to six months’ imprisonment and ordered to pay Rs 500 costs. His appeal to the Supreme Court of Mauritius (KP Matadeen and Peeroo JJ) was dismissed on 26 May 2004. He has appealed as of right, under section 81(1)(a) of the Constitution of Mauritius, to the Judicial Committee of the Privy Council against the judgment of the Supreme Court.

The charge arose out of a transaction entered into by the appellant, a Mauritius barrister, with Hong Kong Smooth Garments Ltd (“HKSG”) on 12 September 1990. His co-accused Harris Ramphul had on 11 August 1990 purchased fabrics from HKSG, tendering a cheque for Rs 132,000 (“the first cheque”) in payment, but the cheque was dishonoured. On 12 September the appellant went to the offices of HKSG and gave them another cheque for Rs 132,000 (“the second cheque”), drawn on the South East Asian Bank to the order of HKSG and signed by Balram Seewoodin, and a written undertaking to the effect that Harris Ramphul would pay the sum due by 14 September. At the appellant’s request Mr Tony Soo Lan Wah Yang Shing of HKSG gave the dishonoured first cheque to him on receipt of the second cheque. On 14 September 1990 HKSG paid the second cheque into its account, but it was returned because the drawer’s account had earlier been closed.

The prosecution case was that the appellant knew quite well that the bank account on which the second cheque was drawn had been closed and that the cheque was a dud, but nevertheless took this and another cheque, signed by Balram Seewoodin but otherwise blank, and used the second cheque in order to obtain the return of the first cheque which had been dishonoured. The case for the appellant was that the second cheque had been given to him by Harris Ranphul, who represented that it was a genuine cheque. The appellant denied that the first cheque was returned to him at his request when he gave the second cheque to HKSG and claimed that it was sent to Ramphul.

The Intermediate Court rejected the defence case and accepted the prosecution version as being a true account of events. The court held that the appellant was fully aware that Balram Seewoodin had already closed his bank account and that the second cheque would not be honoured, yet told Tony Soo that the second cheque was a valid instrument which could be cashed. The appellant also asked him to return the first cheque, which he did. The court rejected the suggestion that the appellant was merely acting under the instructions of his client Harris Ramphul and held that he was on the contrary masterminding events. The appellant succeeded in obtaining the return of the first cheque by giving the second cheque to HKSG.

The appellant appealed to the Supreme Court on a number of grounds, on all of which the court found against him. Before the Board the appellant relied only on one ground, that of breach of his constitutional rights to a fair trial within a reasonable time, as guaranteed by section 10(1) of the Constitution. The appeal was founded on the very long delay which took place between the date when the first statement under caution was taken from the appellant and the eventual disposition of the case by the finding of guilt by the Intermediate Court. It was conceded by counsel for the prosecution that the lapse of time, some twelve years, would without more give rise to a breach of the constitutional provision, but he submitted that the delay was largely the fault of the appellant and that he could not in the circumstances take advantage of it to claim a breach of his constitutional rights.

The complex and long drawn-out history of the prosecution has been fully set out in the judgment of the Supreme Court, and the Board is accordingly able to set out that history in this judgment in reasonably summary form. The offence was reported by Mr Tony Soo by a minor petition dated 26 November 1990. A police inquiry ensued and the appellant made three statements under caution on 19 February 1991. It was accepted by counsel before the Board that for the purposes of reckoning delay the time should start to run from that date.

The police inquiry was completed on 22 October 1991, but the Director of Public Prosecutions did not direct a prosecution until 11 December 1992. An information was laid before the Intermediate Court on 30 December 1992. Ramphul was charged on count 1 with issuing the first cheque in bad faith. The appellant was charged on count 2 with swindling HKSG out of the first cheque by his tender of the second cheque. On count 3 he was charged with embezzlement of the sum of Rs 10,000 delivered to him for the purpose of having Harris Ramphul released on bail.

Preliminary hearings commenced in early March 1993 and at a hearing on 22 March 1993 pleas were taken from the accused. Ramphul pleaded not guilty to count 1. It is clear that the appellant pleaded not guilty to count 3, but there was a dispute at a later stage whether he pleaded at all to count 2. It would be remarkable if he did not, but he subsequently claimed that the court record showed no entry of a plea to count 2 and that in consequence he could not properly be tried on it.

The trial was fixed for 28 October 1993; the prosecution stated, and the Supreme Court accepted, that this date was arranged to suit the appellant’s counsel, but before the Board counsel appearing for the appellant did not accept this. There was a long series of adjournments before evidence was first taken on 9 May 1996. The trial was adjourned to 28 March 1994 because of the illness of Ramphul’s counsel and the congestion of the court lists. There then followed the first of a series of moves by the appellant described by the Supreme Court as devices which constituted an abuse of the proceedings. On 28 March 1994 Ramphul’s counsel moved to withdraw from the case, while the appellant moved for a stay on the ground of abuse of process and delay, without having given notice of his intention to the prosecution or even to his own counsel. The sequence of events which followed is fairly typical of those which took place on later occasions. The prosecution wished to have time to prepare a reply to the appellant’s motion, and the matter was adjourned until 13 June 1994. On that date counsel presented submissions as to the procedure, which the prosecution suggested could be done partly on affidavit and partly by viva voce evidence. The appellant’s counsel said that he wished to cross-examine a police officer named Palawan, and it was arranged that he would be made available on 17 June. The appellant put in an affidavit, which he communicated to the prosecution late on 16 June, with the result that a further adjournment was sought and given to enable it to be considered. On 23 June the prosecution produced an affidavit from Palawan. Submissions were made on the motion, during which the appellant’s counsel stated that he did not now require to cross-examine Palawan. The court gave a ruling on 12 July 1994 dismissing the motion.

A recognisably similar pattern may be seen from the history of the case over the next three and a half years. The appellant made a number of applications, of which two major ones were brought without prior notice to the prosecution or the court. The first, brought on 11 November 1994, was an application for a separate trial. This was not resolved until a ruling dismissing the application was given on 14 February 1995, on which date the trial was relisted for 24 May. In the second application the appellant moved on 2 November 1995 to stay the prosecution on the ground that as he had been acting in a professional capacity in the transaction in question, the matter was one for a professional disciplinary body and the court had no jurisdiction. On 6 December 1995 the appellant’s counsel decided not to proceed with the jurisdiction motion, but on 4 September 1996 counsel then appearing for him revived the application, which the court on 30 September rejected as misconceived. On three occasions Ramphul’s counsel obtained leave to withdraw from the case, for varying reasons, necessitating the appointment of new counsel. On four occasions, 1 September 1995, 9 May 1996, 9 October 1997 and 14 January 1998, the appellant’s counsel withdrew, once because the appellant discharged him and on the other three occasions because they stated to the court that they could not accept the instructions which the appellant had given them.

On 9 May 1996 the hearing of the prosecution evidence at last commenced. After the first witness had given evidence Ramphul changed his plea on count 1 to guilty. The court subsequently imposed a fine on him of Rs 3000, with costs of Rs 300.

On three further days, 12 May, 15 October and 4 November 1997, evidence was taken by the court. On 12 May the appellant raised an issue about the sufficiency of the court record, from which the page relating to 22 March 1993, the date on which the pleas of the accused were taken, was found to be missing. The original page was never forthcoming, but two documents purporting to be photocopies of that page were produced to the court. One version contained the words “Accused No 2 [the appellant] pleads not guilty to count 3”, whereas the second, which is in all other respects identical to the first, reads “Accused No 2 pleads not guilty to count 2, 3”. It cannot be ascertained which version represented the original, or how two versions came into existence. It seems probable, however, that the first version was a copy of the original entry in the court record and that some person, seeking to cover up an error either in the proceedings or in the record of what had taken place on 22 March 1993, made an altered photocopy of the material page. It was accepted by Mr Cox QC, who appeared for the prosecution before the Board, that whatever irregularity may have occurred was not to be attributed to the appellant. The court proposed on 7 October 1997 that the appellant’s plea be recorded anew, but he refused to do so and contended thereafter that he had not pleaded to count 2 and so could not properly be tried on it.

On 19 January 1998 the prosecution decided to enter a nolle prosequi “in view of the problems encountered in the court record”. On the same day a new charge of swindling was filed against the appellant, the content being the same as the former count 2, and a fresh trial was commenced on that single count. The second trial proved to be just as long drawn-out as the first. The matter came into the court list on over 90 occasions (as against some 50 on the aborted first trial). It ended with the appellant’s conviction and sentence on 24 March 2003.

The taking of evidence did not commence until 5 May 1999, largely because of time taken to dispose of the appellant’s motions, first for a stay on the ground of delay and, secondly, for dismissal of the prosecution because it disclosed no offence in law (both brought with little or no notice). Prosecution evidence was taken on 17 August and 2 September 1999. On 16 November 1999 the appellant’s counsel yet again withdrew because he could not comply with his client’s instructions. On 16 December 1999 the appellant moved for a stay, but the motion was rejected. He then objected (without prior notice) to the participation in the trial of one of the magistrates on the ground of bias. This motion was rejected on 18 February 2000, whereupon on 21 March 2000 the appellant objected to the other magistrate on a similar ground. Prosecution evidence continued on that date and on 30 March, 24 May and 4 July 2000, when the prosecution closed its case.

Submissions of no case to answer followed, which were finally rejected on 31 August 2000. The appellant then on 10 November 2000 sought (again without giving notice) to challenge the validity of the trial, in reliance on the recent decision of the Board in Darmalingum v The State [2000] 1 WLR 2303, to which their Lordships will refer in more detail later in this judgment. This application was finally rejected on 16 January 2001 and after disposition of a further defence application the defence eventually opened on 2 March 2001.

Evidence was given by and on behalf of the appellant over some twelve court days, which because of adjournments stretched until 21 January 2002. On no occasion during either trial was evidence taken on successive days, and on the only two occasions when the case was listed on successive days during the second trial the proceedings were merely mentions. The Board was informed that the Intermediate Court in Mauritius was not geared to hearing a case of any length in a series of continuous sitting days, and that special arrangements would have had to be made to achieve this. The lengthening of the trial was exacerbated by the actions of the appellant in such matters as seeking adjournments to call witnesses whom he subsequently declared he did not require, all of which is set out in detail in the judgment of the Supreme Court. Be that as it may, the taking of evidence was allowed to occupy an inordinately long period of time.

The court was plainly becoming impatient with the appellant’s conduct of his case by 21 January 2002, when it dismissed his requests for further time to call witnesses and prepare submissions and closed his case for him. In the record of that day’s proceedings the statement appears:

“In view of the attitude of the accused and of his latest statement that he needs time to consider all his options and even consider filing a new list of witnesses in spite of our ruling refusing him a postponement in the absence of the witnesses, we are of the view that accused is making an abuse of the process of the court. We have no alternative than to close the case for the defence, which we do.”

The court on 15 March 2002 rejected a motion by the appellant that he should be permitted to reopen his case.

Further submissions were made over the next three months, then there followed a series of adjournments caused by claims on behalf of the appellant that he was incapacitated by illness from attending and pursuing his case. Medical certificates were submitted, but the court did not until 26 December 2002 require the attendance of a medical examiner to testify as to the appellant’s condition and his ability to deal with the case, nor was he examined by any doctor on behalf of the prosecution. The appellant made lengthy and extensive submissions on the facts and law relating to the case on four occasions between 12 June and 21 October 2002, but although he claimed on the last date to have almost completed them he did not attend the next day and telephoned to say that he was not feeling well. On 24 October he was again absent and the court issued a warrant for his arrest, on the ground that “accused is deliberately using dilatory tactics to prevent the present case from being over.” The case was fixed for judgment, but further adjournments took place over issues relating to the health of the appellant. On 21 January 2003 the court recorded its opinion that “accused is deliberately evading to appear in court for judgment.” A warrant for his arrest had been issued on 15 January, but he was not traced by police until March, when he was arrested and brought to the court, which remanded him in custody. Judgment was then given on 24 March 2003 and sentence was passed the same day.

The appellant appealed to the Supreme Court on a variety of grounds, all of which were rejected by the court. Since the appellant has relied before the Board on only one of these grounds, that of delay, their Lordships need not consider the others. The Supreme Court considered the issue with care in its written judgment given on 26 May 2004. It expressed the view that the appellant contributed to a large extent to the delay which occurred up to the time when the nolle prosequi was entered, and held that that delay by itself could not be said to amount to a breach of the constitutional guarantee of a hearing within a reasonable time. It then went on to consider the delay in completing the second trial and concluded (Record, p 528):

“If anything, the appellant was the cause, not the victim, of the delay. The history of the case shows that he has made an abuse of the proceedings, giving to counsel instructions which they found unable to execute, withdrawing instructions from counsel, changing counsel according to his whims and fancies, making a number of motions similar in content though not in form, absenting himself from court on several occasions, summoning new witnesses at every sitting. Indeed, the appellant has made use of every possible device to secure an adjournment and prevent the case from being heard within a reasonable time. We also note that the trial court has been unduly lenient despite the deliberately obstructive attitude on the part of the appellant.”

On the appeal to the Board the appellant’s appeal against conviction was founded solely on the issue of delay. He also raised a ground of appeal which had not been advanced before the Supreme Court, that he was deprived of an opportunity to address the Intermediate Court in mitigation before sentence was passed. In view of the conclusions which their Lordships have reached on the issue of delay, they do not propose to deal with the latter ground.

Section 10(1) of the Constitution of Mauritius contains a guarantee in familiar terms, that where a person is charged with a criminal offence “the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”. As Lord Steyn pointed out in Darmalingum v The State [2000] 1 WLR 2303, 2307, section 10(1) contains three separate guarantees, namely (1) a right to a fair hearing (2) within a reasonable time (3) by an independent and impartial court established by law. The application of these requirements in the decided cases has not been entirely consistent. Lord Bingham of Cornhill observed in Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 394, para 29, that it may be questioned whether the reasoning of the preceding decisions can be fully reconciled. The academic commentators have been more forthright in pointing to an inconsistency between the decisions: see, eg, Ashworth, [2001] Crim LR 855, 860.

The point on which any difference between these cases turns is whether there is a breach of section 10(1) only if there is a sufficient element of prejudice or unfairness, or whether there is a breach if unreasonable delay without more has been established, notwithstanding that the trial itself may be regarded as having been fair.

In Bell v Director of Public Prosecutions [1985] AC 937, a Jamaican appeal, the Board inclined towards the former proposition. A period of some five years had elapsed, for various reasons, between the charging of the applicant with firearms and other offences in 1977 and the order of the court for a retrial in 1982. The applicant applied for a declaration of breach of his rights under section 20(1) of the Jamaican Constitution, which was in all material respects identical to section 10(1) of the Constitution of Mauritius. He was unsuccessful before the Supreme Court and the Court of Appeal, but the Board allowed his appeal against the refusal of the declaration. It is apparent that in considering the issue the Board did not approach the requirement of a hearing within a reasonable time as a freestanding constitutional guarantee. At pages 950-1 Lord Templeman, giving the advice of the Board, said:

“Their Lordships agree with the respondents that the three elements of section 20, namely a fair hearing within a reasonable time by an independent and impartial court established by law, form part of one embracing form of protection afforded to the individual. The longer the delay in any particular case the less likely it is that the accused can still be afforded a fair trial. But the court may nevertheless be satisfied that the rights of the accused provided by section 20(1) have been infringed although he is unable to point to any specific prejudice.”

At several other places in the judgment Lord Templeman referred to the requirements of fairness and at page 953 considered the problems of lack of judicial resources in that jurisdiction:

“Their Lordships accept the submission of the respondents that, in giving effect to the rights granted by sections 13 and 20 of the Constitution of Jamaica, the courts must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Jamaica.”

Such considerations may of course be material in determining the reasonableness of the time taken to bring a case to hearing, but it is apparent from Lord Templeman’s remarks at page 954-5 that the requirement of fairness was prominent in his reasoning, a conclusion which is supported by his observations at page 954:

“The courts seek to prevent exploitation of the rights conferred by the Constitution and to weigh the rights of the accused to be tried against the public interest in ensuring that the trial should only take place when the guilt or innocence of the accused can fairly be established by all the relevant evidence. The Board will therefore be reluctant to disagree with the considered view of the Court of Appeal of Jamaica that the right of an accused to a fair hearing within a reasonable time has not been infringed.”

The Board also relied heavily on the judgments of the Supreme Court of the United States in Barker v Wingo (1972) 407 US 514, in which considerable emphasis was placed on the existence of prejudice to the accused.

A similar approach was adopted by the Board in Flowers v The Queen [2000] 1 WLR 2396, also an appeal from Jamaica. Almost six years had elapsed between the charging of the accused with capital murder and his conviction on a retrial. The Board had regard to those factors identified in Barker v Wingo and relied upon in Bell v Director of Public Prosecutions. Lord Hutton, giving the advice of the Board, pointed to the prevalence in Jamaica of murder in the course of robbery, which posed a serious threat to the lives of innocent persons, and the importance in the public interest that persons proved guilty of such crimes should be convicted. The Board specifically decided not to follow the dictum of Lord Steyn in Darmalingum v The State [2000] 1 WLR 2303, to which their Lordships have earlier referred, concerning the separate nature of the constitutional guarantees contained in section 10(1). Lord Hutton stated at pages 2414-5:

“The judgment of the Board [in Darmalingum] does not refer to the passage in the judgment of the Board in Bell v Director of Public Prosecutions [1985] AC 937 which recognises that the right given by section 20 of the Constitution of Jamaica must be balanced against the public interest in the attainment of justice or to the passage which states that the right to a trial within a reasonable time is not a separate guarantee but, rather, that the three elements of section 20(1) form part of one embracing form of protection afforded to the individual.”

One should at this point go back to the judgment of the Board in Darmalingum, which was decided before Flowers. The appellant was arrested in 1985 on provisional charges of forgery. After his being interviewed in custody at that time, the appellant heard nothing further about the matter until he was charged in 1992 and then convicted at a trial held in 1993. He appealed to the Supreme Court, which did not reach a final decision rejecting his appeal until July 1998. The Board held that the overall delay, much of which was unexplained, was a flagrant breach of section 10(1) and that the only disposal which would properly vindicate the constitutional rights of the appellant would be the quashing of the convictions.

Lord Steyn, giving the judgment of the Board, described the content of section 10(1) as being three separate guarantees and continued at pages 2307-8:

“Hence, if a defendant is convicted after a fair hearing by a proper court, this is no answer to a complaint that there was a breach of the guarantee of a disposal within a reasonable time. And, even if his guilt is manifest, this factor cannot justify or excuse a breach of the guarantee of a disposal within a reasonable time. Moreover, the independence of the ‘reasonable time’ guarantee is relevant to its reach. It may, of course, be applicable where by reason of inordinate delay a defendant is prejudiced in the deployment of his defence. But its reach is wider. It may be applicable in any case where the delay has been inordinate and oppressive. Furthermore, the position must be distinguished from cases where there is no such constitutional guarantee but the question arises whether under the ordinary law a prosecution should be stayed on the grounds of inordinate delay. It is a matter of fundamental importance that the rights contained in section 10(1,) were considered important enough by the people of Mauritius, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality is an indication of the higher normative force which is attached to the relevant rights: see Mohammed v. The State [1999] 2 AC 111, 123H.”

The inconsistencies between these cases were considered by the Privy Council in the Scottish devolution case of Dyer v Watson [2002] UKPC D1 [2004] 1 AC 379. It had to consider complaints of delay in two cases in the light of the application of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which contains a provision virtually identical to that set out in section 10(1) of the Constitution of Mauritius. In the course of reaching their conclusions the members of the Board considered the Commonwealth cases of Bell, Darmalingum and Flowers. Lord Bingham of Cornhill pointed to the difficulty of reconciling the reasoning in those cases, but preferred to leave resolution of that question until it fell for authoritative decision.

Lord Hope of Craighead was, however, prepared to commit himself to supporting the views expressed by Lord Steyn in Darmalingum rather than those which prevailed in Bell and Flowers. He also agreed (para 73) with Lord Steyn’s opinion that section 10(1) contains three separate guarantees, adding (para 94):

“So the fact that a defendant was convicted after a fair hearing by a proper court could not justify or excuse a breach of his guarantee of a disposal within a reasonable time.”

Lord Hutton in paragraphs 120-1 of his judgment considered that Darmalingum and Flowers could be distinguished on their respective facts and pointed to the fact that the European Court of Human Rights had held in a number of decisions that a conviction after unreasonable delay in breach of article 6(1) does not necessarily have to be quashed. Lord Millett and Lord Rodger of Earlsferry also reserved their opinions on the question left open by Lord Bingham, though they regarded the rights guaranteed by article 6(1) as being distinct and independent.

The resolution of these issues is to be found in the decision of the House of Lords in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72. In that case the defendants were charged with offences arising out of prison riots in 1998. When they came to trial in early 2001 the judge stayed the indictment on the ground that there had been a breach of their right under article 6(1) of the Convention to have the charges heard within a reasonable time. The Attorney General referred to the Court of Appeal two questions, one of which was whether criminal proceedings could be stayed on the ground that there had been a violation of the reasonable time requirements in article 6(1) in circumstances where the accused could not demonstrate any prejudice arising from the delay. Having given its opinion the Court of Appeal referred the same questions for determination by the House of Lords.

The House sat in an Appellate Committee of nine members and decided by a majority that although through the lapse of time in itself there was a breach of article 6(1), the appropriate remedy would not necessarily be a stay but would depend on all the circumstances of the case. Lord Bingham of Cornhill, who gave the leading opinion for the majority, set out as two of the fundamental first principles applying to article 6(1), that (a) the core right guaranteed by the article is to a fair trial (para 10) and (b) the article creates rights which though related are separate and distinct (para 12). It does not follow that the consequences of a breach of each of these rights is necessarily the same. He quoted with approval the aphorism of Hardie Boys J in the New Zealand case of Martin v Tauranga District Court [1995] 2 NZLR 419, 432:

“The right is to trial without undue delay; it is not a right not to be tried after undue delay.”

Lord Bingham stated in paragraph 22 that the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. He went on to summarise his conclusions at paragraphs 24 and 25:

“24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.

25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right”.

Their Lordships accordingly consider that the following propositions should be regarded as correct in the law of Mauritius:

(i) If a criminal case is not heard and completed within a reasonable time, that will of itself constitute a breach of section 10(1) of the Constitution, whether or not the defendant has been prejudiced by the delay.

(ii) An appropriate remedy should be afforded for such breach, but the hearing should not be stayed or a conviction quashed on account of delay alone, unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all.

In Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 403-3, paras 52-5 Lord Bingham of Cornhill set out a series of propositions material to determining the reasonableness of the time taken to complete the hearing of a criminal case, in terms which their Lordships would adopt as relevant to cases such as the present:

“52. In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive.

53. The court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognised, realistically enough, that the more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.

54. The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively. The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increased by a sudden and unforeseen surge of business. There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under section 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted ‘with all due diligence and expedition.’ But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities make clear that while, for purposes of the reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter.”

While conceding that but for the appellant’s contribution to the delay there would be a breach of the reasonable time in section 10(1) of the Constitution, Mr Cox QC submitted on behalf of the State that the Supreme Court was quite justified in holding that that contribution was such as to prevent a breach from occurring. Mr Guthrie QC for the appellant, on the other hand, contended that (a) the delays were basically the fault of the prosecution and the court system and in particular the decision of the Director of Public Prosecutions to enter a nolle prosequi (b) most, if not all, of the applications made by the appellant during the course of the proceedings were justifiably made and it was wrong to stigmatise them as devices (c) the trial of the appellant was unfair.

In their Lordships’ opinion it is undeniable that the delay in completing the trial was caused to a considerable extent by the actions of the appellant. It is quite apparent from consideration of the history of the proceedings that he deliberately made numerous attempts to exploit and abuse the legal system, making inappropriate use of his legal knowledge and experience. In that respect the observations of the Supreme Court at page 528 of the Record were fully justified. It is objected on the appellant’s behalf that some at least of the applications were justifiably made, even if they were rejected. But this is not a sufficient answer. If a defendant makes a large number of applications which hold up the completion of a trial, even if all were made in good faith and based on sufficient grounds to be justifiable, he cannot properly complain that there was unreasonable delay, provided that there was has been due expedition on the part of the prosecution and the court.

It is plain, however, from the propositions set out by Lord Bingham of Cornhill in Dyer v Watson at paragraphs 52-4 that it is necessary to consider an amalgam of factors before reaching a conclusion on the reasonableness of the time taken to complete a trial. The defendant’s contribution to the delay may be an important factor, but before dismissing his complaint of delay as a breach of his constitutional rights the appellate tribunal is obliged to look at the whole picture.

It is not in dispute that the time taken overall, between February 1991 and March 2003, gives grounds for real concern and is prima facie unreasonable, even setting the threshold at the appropriate height. There has been no material before the Board which would suggest that the case was unusually complex for a prosecution of this type, which is confirmed by the relatively small number of witnesses called for the prosecution and the fairly limited nature of the issue which the Intermediate Court had to decide. The conduct of the defendant was altogether reprehensible and contributed very largely to the lapse of time. The Board is willing to accept that the court lists in Mauritius were congested and that it was not easy or straightforward to arrange speedy trial of such a case before the Intermediate Court. Their Lordships consider, however, that when it became clear that time was dragging on and that the appellant was bent on dislocating the course of the trial and prolonging the proceedings by every means within his power, it was incumbent on the court to take such steps as it could to expedite matters and reach a conclusion. This should have led to the injection of an element of urgency after the nolle prosequi was entered and the trial had to begin afresh. Certainly from that point onwards, the court should have explored more effectively ways of conducting the trial without gaps between sitting days and of moving it quickly on after the disposal of attempts by the appellant to delay it. Their Lordships are impelled to the view that much more could have been done to hasten matters between the commencement of the second trial in March 1998 and its completion in March 2003. They accordingly cannot escape the conclusion that, however reprehensible the conduct of the appellant, the trial was not completed within a reasonable time and that there was in that respect a breach of section 10(1) of the Constitution.

There remains the question of the remedy which should be afforded to the appellant. Mr Guthrie submitted that the trial was unfair in a number of respects. These included the length of the protracted trial and the intermittent nature of the hearings, together with such matters as the magistrates’ treatment of the appellant’s illness in the latter stages of the trial, the reference of matters to the judge in chambers, the closing down of the appellant’s defence, disclosure and the degree of bias evidenced by the magistrate Mr Chan’s statement to the police. The Supreme Court dealt with a number of these complaints in its judgment, and in those respects their Lordships consider that their decision was correct. They do not consider that the several matters on which the appellant relies, taken either singly or cumulatively, satisfy the test laid down by Lord Bingham of Cornhill in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, 90, para 25. They accordingly did not give rise to sufficient prejudice to him to justify a conclusion that the trial was unfair.

The Board must therefore determine the remedy which is to be afforded to the appellant. In the light of its finding that the trial was not unfair, the Board does not consider that the conviction should be set aside. On the other hand, their Lordships would not regard it as acceptable that the prison sentence imposed by the Intermediate Court should be put into operation some 15 years after the commission of the offence unless the public interest affirmatively required a custodial sentence, even at this stage. This is not such a case, and their Lordships will set aside the prison sentence and substitute for it a fine of Rs 10,000.

The Board will accordingly allow the appeal and make a declaration that the appellant’s rights under section 10(1) of the Constitution of Mauritius to a trial within a reasonable time have been infringed. A fine of Rs 10,000 will be substituted for the sentence of imprisonment. The order for costs made against the appellant by the Intermediate Court will stand. There will be no order as to the parties’ costs in the Privy Council proceedings.

Abdul Raouf Jauffur v The Commissioner of Income Tax

Abdul Raouf Jauffur

Appellant

v.

The Commissioner of Income Tax

Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 21st June 2006

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hutton

Lord Walker of Gestingthorpe

Lord Mance

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[Delivered by Lord Walker of Gestingthorpe]

Many countries have found that the complexity of their social organisation and legislation calls for the establishment of specialised tribunals to serve as the first port of call for citizens who wish to contest official decisions on such matters as taxation, social security, and planning permission. Such specialised tribunals (which are not courts) perform the function of ascertaining and evaluating the facts relevant to a matter within their special expertise. There is almost invariably a right of appeal from a specialised tribunal to a court, but often the appeal is restricted to questions of law.

This appeal is concerned with the Tax Appeal Tribunal established by the Tax Tribunal Act 1984 (since repealed, but in force during the relevant period). By section 3 of that Act the tribunal was to comprise (as Chairman and Vice-Chairman) two barristers of at least ten years’ standing appointed by the Public Service Commission and (subsection (1)(c)) ‘such other members as may be appointed by the Minister’. Section 6(3) provided that, subject to section 8, a determination of the tribunal should be final and binding on the parties.

Section 8 provided as follows:

“(1) Any party who is dissatisfied with the determination of the tribunal as being erroneous in point of law may, within 28 days of the date of determination, appeal to the Supreme Court.

(2) An appeal under this section shall be prosecuted in the manner provided by rules made by the Supreme Court.”

Rule 3 of the Tax Appeal Rules 1984 provided for an appeal under section 8(1) to be by way of case stated. By section 10 of the Act the burden of proof that any assessment is incorrect falls on the taxpayer.

In a country (such as the United Kingdom) which is a party to the European Convention on Human Rights, or in a country (such as Mauritius) which has a written constitution with human rights guarantees based on the European Convention, the existence of specialised tribunals which are not courts, with appeal to courts on questions of law only, can raise questions under article 6 of the Convention, or on the equivalent provisions in the written constitution. In section 10 of the Constitution of Mauritius (provisions to secure protection of law) subsection (8) provides as follows:

“Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.”

The precise content of the expression “civil right or obligation” is open to argument but their Lordships assume in favour of the appellant that his tax appeal involves the determination of his civil rights or obligations.

It is also material to set out part of section 8 of the Constitution (protection from deprivation of property):

“(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where –

(a) [there is a public interest of the specified sort]

(b) [there is reasonable justification for the resulting hardship] and

(c) provision is made by a law applicable to that taking of possession or acquisition –

(i) for the payment of adequate compensation; and

(ii) securing for any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining payment of that compensation.”

Those are the main statutory provisions relevant to this appeal from a judgment given on 15 July 2004 of the Supreme Court, which dismissed the appellant’s appeal from a determination of the Tax Appeal Tribunal made on 26 February 2002. The appellant had appealed against assessments for no fewer than 13 consecutive years of assessment. These assessments were based on estimated assessments of the appellant’s income for the relevant years, apparently because the appellant had failed to make proper tax returns. In those circumstances the practice of tax officials in Mauritius as in the United Kingdom, well known to tax accountants, is to apply standard techniques by which to arrive at a fair estimate of the taxpayer’s unreported taxable income.

His appeal to the Supreme Court set out ten grounds of appeal, some of which, although put forward as points of law, appear to have been in substance an attempt to reopen issues of fact. None of the grounds of appeal raised any constitutional issue. In disposing of the appeal the Supreme Court addressed one preliminary issue (as to a request for production of documents made by the appellant at the start of the hearing) and five other issues, all in substance questions of weighing evidence. The record of the proceedings before the Supreme Court gives no indication of any constitutional issue having been raised.

Before the Board leading counsel for the appellant sought for the first time to raise constitutional issues, including some not even hinted at in the appellant’s printed case. Their Lordships regard this as most regrettable; it is unfair to the respondent and a misuse of the right of appeal for new issues to be raised in the course of oral argument, even if they are issues of law. Their Lordships heard all the arguments put forward on behalf of the appellant, but parties should not assume that they will always, or often, be accorded such indulgence.

The first point taken by leading counsel for the appellant concerned the last-minute application for production of documents. It was pointed out that the application was made much too late; the proper course would have been to ask for any relevant documents to be annexed to the case stated by the Tax Appeal Tribunal. This then led to the argument that the procedure by way of case stated was not authorised by section 8 of the Tax Appeal Tribunal Act 1984. Their Lordships consider that argument to be without substance. An appeal by way of case stated is recognised in many jurisdictions as the most convenient medium for an appeal from an inferior tribunal limited to points of law. The substance of the matter was clearly and correctly covered by the Supreme Court in Mauritius Breweries Ltd v Commissioner of Income Tax [1997] MR 1, 7-9 (the fourth and sixth issues). A further last-minute point taken on behalf of the appellant, as to the independence and impartiality of the tribunal, was also dealt with in the Mauritius Breweries Ltd case at pp8-9 (the fifth issue).

The judgment of the Supreme Court in the Mauritius Breweries Ltd case is, in their Lordships’ respectful opinion, an admirable statement of how fair trial principles apply to the proceedings of specialised inferior tribunals, and to appeals from them. It followed the decision of the European Court of Human Rights in Bryan v United Kingdom (1995) 21 EHRR 342. Since the coming into force of the United Kingdom Human Rights Act 1998 the subject has been revisited by the House of Lords in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 and in Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430. But there is nothing in those decisions to cast doubt on the correctness of the decision in the Mauritius Breweries Ltd case.

On the second limb of his constitutional points, leading counsel referred to Harel Freres Ltd v Minister of Housing, Lands and Town and Country Planning [1986] MR 74. In that case section 8 (1)(c)(ii) of the Constitution was held to entitle the citizen to a full merits hearing in which the burden of justifying the compulsory acquisition fell on the Minister. But the whole point of that case is that the compulsory purchase procedure then in force in Mauritius provided nothing in the way of a specialised tribunal standing between the Minister and the citizen: see at p76. In this case, by contrast, the Tax Appeal Tribunal performed that function. Even if section 8(1) of the Constitution were in point, its requirements would be met by the statutory procedure prescribed by the Tax Appeal Tribunal Act 1984: see the Mauritius Breweries Ltd case at p9 (the sixth ground). But in any event section 8(1) is not in point, since the determination of an assessment to tax is not a deprivation of property.

Their Lordships can see no error in the way in which the Supreme Court dealt with the grounds of appeal relied on before it. These were largely issues of fact, although presented as points of law. It is not necessary for their Lordships to go further into those matters.

For these reasons their Lordships will dismiss the appeal with costs.

Jeewan Mohit v The Director of Public Prosecutions

Jeewan Mohit

Appellant

v.

The Director of Public Prosecutions of Mauritius

Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 25th April 2006

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hope of Craighead

Lord Carswell

Lord Brown of Eaton-under-Heywood

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[Delivered by Lord Bingham of Cornhill]

The issue in this appeal is whether a decision by the Director of Public Prosecutions of Mauritius to discontinue a private prosecution, in exercise of his powers under section 72(3)(c) of the 1968 Constitution, is in principle susceptible to review by the courts. In a judgment given on 30 September 2003 the Supreme Court (YKJ Yeung Sik Yuen and P Lam Shang Leen JJ) held that it was not, and on a repeat application by the appellant this decision was applied by K P Matadeen and P Balgobin JJ on 14 September 2004. The appellant challenges the correctness of these rulings.

The appellant is a private citizen of Mauritius. He has expressed concern at what he has called “the rising tide of crimes and the breakdown in law and order” in Mauritius, and in particular at what he sees as the failure of successive governments to address a rash of violent crimes committed by a gang of criminals in 1996, culminating in a notorious triple murder. Implicated in at least some of these crimes was one Mahmad Bissessur, who was arrested in December 2000 and in that month confessed to committing a number of very serious crimes in April and May 1996. In October 2001 Bissessur was charged with five criminal offences to which, in the following month, he pleaded guilty. He was sentenced to 6 years’ penal servitude and a fine of Rs 3,000.

The Hon Paul Berenger was at all material times a very senior political figure in Mauritius, holding office at different times as Deputy Prime Minister and Minister of External Affairs, Leader of the Opposition and Prime Minister and Minister of Finance. In February 2001 Bissessur gave a statement to the police in which he said that Mr Berenger had given him money (cheques for Rs 20,000 and Rs 10,000 and Rs 5,000 in cash) during the first week of August 1997 to buy air tickets from Mauritius to Madagascar; that he had flown with his family to Madagascar on 10 August 1997; that Mr Berenger had sent him more money by bank transfer on 13 August 1997; that he had received a further fax from Mr Berenger on 19 August 1997; that he had returned to Mauritius on 21 December 1997; and that he had met Mr Berenger the following day. In answer to questions put to him by journalists and at public meetings Mr Berenger acknowledged that he had given financial assistance to Bissessur to enable him to leave Mauritius and fly to Madagascar.

On 23 May 2001 the widow of one of the victims of the triple murder mentioned above initiated a private prosecution of Mr Berenger in the District Court of Curepipe, charging him with harbouring a criminal, namely Bissessur, contrary to section 172(1) of the Criminal Code. The case was heard on 7 and 27 June 2001, but on 19 July 2001, the third day of the case, the Director of Public Prosecutions entered a nolle prosequi and brought the proceedings to an end. The DPP gave written reasons for this decision, which were that

“(a) the present case is inextricably linked with the main case: that is the ‘Escadron de la Mort’ 1996 Gorah Issaac Street Triple Murder Case;

(b) both cases involve as they do one crucial and common element: that is Mahmad Toorab Bissessur;

(c) the main case is in the process of being lodged; and

(d) the continuance of this case will no doubt impede on [sic] the smooth-running of and may prejudicially affect the conduct of the main case.”

At this stage, as is apparent from the history summarised above, Bissessur had not yet been brought to trial.

In October 2001 the appellant initiated a private prosecution of Mr Berenger under the same section of the Criminal Code and in reliance on the same facts in the Intermediary Court, but this was set aside for lack of jurisdiction. In June 2002, with another, he again initiated a prosecution of Mr Berenger under the same section in the District Court of Curepipe. This was heard for some days before, on 12 December 2002, the DPP entered a nolle prosequi, giving no reasons.

The appellant tried again. On 27 January 2003 he initiated a further private prosecution of Mr Berenger in the District Court of Curepipe, on a charge of harbouring a criminal, namely Bissessur, this time under section 39 of the Criminal Code. This prosecution was brought to an end on 4 March 2003 when the DPP again entered a nolle prosequi, again giving no reasons. On 7 March 2003 the appellant applied to the Supreme Court for leave to apply for judicial review of the DPP’s decision to enter the nolle prosequi entered on 12 December 2002. This application was heard on 10 June 2003 and was dismissed for reasons given in a detailed judgment delivered on 30 September 2003. This is the first, and the substantial, judgment now under appeal.

But the appellant was undeterred. On 11 November 2003, with a brother of one of the victims of the triple murder mentioned above, he initiated a further prosecution of Mr Berenger in the District Court of Curepipe on the same charge as before under section 39 of the Criminal Code. On 13 February 2004 the DPP entered a nolle prosequi, and thereby brought the prosecution to an end, without giving reasons. The appellant applied to the Supreme Court for leave to apply for judicial review of the DPP’s decision to enter this nolle prosequi. His application was heard by the Supreme Court on 10 May 2004, but was dismissed as an abuse on 14 September 2004, the Supreme Court having already held the DPP’s decision to discontinue the private prosecution of Mr Berenger by the appellant and another to be unreviewable. This is the second judgment now under appeal, but its correctness turns on the correctness of the first.

The Constitution

Before 1964 there was in Mauritius an office of Procureur General which has no precise analogue within the British legal system. Under article XXXVII of Ordinance No 29 (1853) and article 48 of Chapter 169 of the Laws of Mauritius in force in 1945 the Procureur General was expressly empowered to enter a nolle prosequi. With the advent of the 1964 Constitution that office came to an end, and in its place there were created two new offices, that of Attorney-General and Director of Public Prosecutions. This arrangement was retained in the 1968 Constitution, which remains in force. Neither of these Constitutions conferred an express power to enter a nolle prosequi and the power of the Procureur General lapsed with the demise of his office.

By section 69 of the 1968 Constitution there is to be an Attorney-General, who is the principal legal adviser to the Government of Mauritius. His office is not a public office within the meaning of the Constitution, and he is not a public officer. He is, instead, a Minister. He may or may not be a member of the Assembly. But he is not qualified for appointment as Attorney-General if he is not a member of the Assembly and is for any cause disqualified from membership of it, and if he is not a member of the Assembly he may take part in the proceedings of the Assembly and is to be treated as if he were a member of it, save that he may not vote. The Attorney-General may not at the same time hold the office of DPP.

The office of DPP is governed by section 72 of the 1968 Constitution, on which these appeals largely turn. It provides (so far as material):

“72 Director of Public Prosecutions

(1) There shall be a Director of Public Prosecutions whose office shall be a public office and who shall be appointed by the Judicial and Legal Service Commission.

(2) No person shall be qualified to hold or act in the office of Director of Public Prosecutions unless he is qualified for appointment as a Judge of the Supreme Court.

(3) The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do –

(a) to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law);

(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.

(4) The powers of the Director of Public Prosecutions under subsection (3) may be exercised by him in person or through other persons acting in accordance with his general or specific instructions.

(5) The powers conferred upon the Director of Public Prosecutions by subsection (3)(b) and (c) shall be vested in him to the exclusion of any other person or authority.

Provided that, where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.

(6) In the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.”

Construing the language of subsection (6), found in identical terms in the 1970 Constitution of Fiji, the Board held in Attorney General of Fiji v Director of Public Prosecutions [1983] 2 AC 672, 679, that this amounted to a constitutional guarantee of independence from the direction or control of any person. A “public office” is defined in section 111 of the Constitution, for present purposes, as “an office of emolument in the public service”, meaning “the service of the State in a civil capacity in respect of the Government of Mauritius”. By section 93 the DPP may be removed from office before reaching retirement age “only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with this section”. The section requires that a tribunal appointed by the President shall have recommended removal. Finally, reference should be made to the saving for the jurisdiction of the courts contained in section 119 of the Constitution, which has reference to section 72(6) already quoted:

“No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question, whether that person or authority has performed those functions in accordance with this Constitution or any other law or should not perform those functions.”

Provisions to the same or very similar effect as those quoted were included in a number of Constitutions of Commonwealth States. They have been the subject of judicial consideration in Guyana (Tappin v Lucas (1973) 20 WIR 229), Barbados (Re King’s Application (1988) 40 WIR 15), Jamaica (Tapper v Director of Public Prosecutions (Supreme Court of Jamaica in the Constitutional Court, 8 February 1999, unreported)) and Fiji (Matalulu v DPP [2003] 4 LRC 712) as well as in Mauritius. While the reasoning of these judgments varies, in none (save in Mauritius) has the DPP’s statutory power to discontinue proceedings been held to be immune from judicial review.

The Supreme Court judgment of 30 September 2003

In its judgment of 30 September 2003 the Supreme Court conducted a detailed and wide-ranging review of Mauritian and international authority. It considered the position of the Attorney General and the DPP in England and Wales, distinguishing these from the position of the DPP in Mauritius, and echoed warnings in earlier authority (such as Edath-Tally v M J K Glover [1994] MR 200) against over-ready identification of the Mauritian DPP with the English Attorney General. In finally concluding that decisions of the DPP in Mauritius to prosecute or not to prosecute or to stop a prosecution were not subject to judicial review, the Supreme Court based itself in particular on its earlier decision in Lagesse v Director of Public Prosecutions [1990] MR 194, on the House of Lords’ decision in Gouriet v Union of Post Office Workers [1978] AC 435, on observations in the High Court of Australia in Maxwell v R [1996] 1 LRC 299 and on the decision of the Hong Kong Court of Appeal in Keung Siu Wah v Attorney General [1991] LRC (Cons) 744. It did not adopt the decision of the Supreme Court of Fiji in Matalulu, above. Rejecting the appellant’s claim, the Supreme Court noted that a person who considered that his constitutional rights had been, were being or would be likely to be contravened had a right to redress under the Constitution, but that is not a claim which the appellant makes or has ever made. It added that nothing prevented a victim bringing a civil claim for compensation against the wrongdoer, and that the DPP might be removed for inability to discharge the functions of his office.

In Lagesse, above, the plaintiff claimed damages against the DPP for malicious prosecution and the question arose whether a plaintiff could, through an action in tort or otherwise, in effect ask a court to determine whether the DPP had acted in breach of the Constitution or any other law. Addressing this issue, the court said, with reference to section 119 of the Constitution quoted above, at p 200:

“Section 119 is not a substantive provision of the Constitution which confers, or rather creates, jurisdiction upon or for the courts. It is, in our judgment, a clause inserted ex abundanti cautela to spell out that the various provisions of the Constitution which protect various public officers and authorities from other kinds of interference should not be taken to mean that the Courts are thereby precluded from exercising such jurisdiction as is or may be conferred on them by the Constitution or any other law.”

With this observation the Board respectfully and wholly agrees, and it was accepted by the parties. The court then continued, at pp 200-201:

“There is no doubt that the Director’s decision to institute and undertake or take over criminal proceedings against any suspect, to discontinue any such proceedings by way of a nolle prosequi or indeed not to institute proceedings in any matter is an administrative decision and as such could be liable to be reviewed by the Courts. However, these administrative decisions fall broadly in two categories and the control exercisable by the Courts will differ depending on which category of decision is in issue.

The first category of the Director’s decisions concerns those cases where the decision is to file a nolle prosequi where a prosecution is already in process or where the decision is not to prosecute. The Courts will undoubtedly not interfere with such decisions for two main reasons. First, the complainant always has a remedy against the suspected tortfeasor and there is no fundamental right to see somebody else prosecuted and, in most cases, the complainant may additionally enter a prosecution himself though, even here, the Director can stop the prosecution except on appeal by the convicted person. Secondly, the Courts would find it inappropriate to substitute what would be their own administrative decision to prosecute, at the risk of jeopardising their inherent role to hear and try a case once it comes before them.

The second category of decision is where the Director decides to prosecute. By its very nature and in contradistinction from other administrative decisions, the matter automatically falls under the control of the Courts by virtue of sections 10, 76 and 82 of the Constitution.”

With the concluding paragraph of this passage the Board again, respectfully, agrees: where proceedings initiated by the DPP are before the courts, they must ensure that the proceedings are fair and that a defendant enjoys the protection of the law even if that involves interference with the DPP’s discretion as prosecutor. But the Board is not persuaded by the court’s reasons for holding that the DPP’s decisions to file a nolle prosequi or not to prosecute are not amenable to judicial review. The complainant may, as in this case, have no remedy against any suspected tortfeasor. The alternative course of resort to private prosecution is not an available option where it is a private prosecution which the DPP has intervened to stop. Recognition of a right to challenge the DPP’s decision does not involve the courts in substituting their own administrative decision for his: where grounds for challenging the DPP’s decision are made out, it involves the courts in requiring the decision to be made again in (as the case may be) a lawful, proper or rational manner.

In Gouriet, above, the House of Lords unanimously held that only the Attorney General could sue on behalf of the public in civil proceedings and that his decision to withhold consent to the bringing of proceedings in his name was immune from challenge in the courts. The Supreme Court relied in particular on a strong statement by Viscount Dilhorne at p 487:

“The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts.”

Unless reviewed or modified in the light of the later decision of the House in the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374), this remains a binding statement of English law on cases covered by it. It must, however, be borne in mind that the power in question was a non-statutory power deriving from the royal prerogative. It was moreover a power exercised by a minister answerable to Parliament, a matter recognised as of significance by Lord Edmund-Davies (p 512) and Lord Fraser of Tullybelton (p 524), as it had been by Cockburn CJ in the leading case of R v Allen (1862) 1 B & S 850, 855, when he spoke of the Attorney General as “responsible for his acts before the great tribunal of this country, the High Court of Parliament”. Where the Attorney General’s power derives from a statutory source, as in giving his consent to prosecutions requiring such consent, Professor Edwards has noted (The Attorney-General, Politics and the Public Interest (1984), p 29), and the Law Commission has tacitly accepted (LCCP 149 Criminal Law: Consents to Prosecution, September 1997, p 29), that “[s]ince the source of the discretionary power [to grant or refuse consent] rests in statute law there are no inherent constitutional objections to the jurisdiction of the courts being invoked”. Much more closely analogous to the position of the Mauritian DPP than the English Attorney General is the English DPP, and his prosecuting decisions have not been held to be immune from review, as mentioned below.

In Maxwell v R, above, the central issue was whether, on the facts, the appellant had pleaded guilty and whether the trial judge could reject a plea which the prosecutor had accepted. In a passage quoted by the Supreme Court, Gaudron and Gummow JJ observed obiter, at pp 329-330:

“The power of the Attorney General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as ‘the prosecutorial discretion’ (see Barton v R (1980) 147 CLR 75 at 91, 94 per Gibbs and Mason JJ, R v McCready (1985) 20 A Crim R 32, R v von Einem (1991) 55 SASR 199 and Chow v DPP (1992) 28 NSWLR 593 at 604-605 per Kirby P). In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts (see Wheeler ‘Judicial Review of Prerogative Power in Australia: Issues & Prospects’ (1992) 14 Sydney LR 432). That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all states and territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute (see Newby v Moodie (1988) 83 ALR 523; see also R v Toohey, ex p Northern Land Council (1981) 151 CLR 170 at 217, 220 per Mason J) such as that conferred on a prosecutor by s 394A of the Act.

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute (see Connelly v DPP [1963] 3 All ER 510 at 519, [1964] AC 1254 at 1277, DPP v Humphrys [1976] 2 All ER 497 at 527-528, [1977] AC 1 at 46 and Barton v R (1980) 147 CLR 75 at 94-95, 110), to enter a nolle prosequi (see R v Allen (1862) 1 B & S 850, 121 ER 929 and Barton v R (1980) 147 CLR 75 at 90-91), to proceed ex officio (see Barton v R (1980) 147 CLR 75 at 92-93, 104, 107, 109), whether or not to present evidence (see, for example, R v Apostilides (1984) 154 CLR 563 at 575), and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted (see R v McCready (1985) 20 A Crim R 32 at 39 and Chow v DPP (1992) 28 NSWLR 593 at 604-605). The integrity of the judicial process— particularly, its independence and impartiality and the public perception thereof— would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what (Barton v R (1980) 147 CLR 75 at 94-95, Jago v District Court (NSW) (1989) 168 CLR 23 at 38-39, 54, 77-78 per Brennan J, Gaudron J, Williams v Spautz [1993] 2 LRC 659 at 690, (1992) 174 CLR 509 at 548 per Deane J and Ridgeway v R [1995] 3 LRC 273 at 320, (1995) 129 ALR 41 at 82 per Gaudron J).”

This, plainly, is authority supportive of the Supreme Court’s conclusion, although deriving from two members of the High Court only and relying strongly on Australian precedent.

The decision of the Hong Kong Court of Appeal in Keung Siu Wah v Attorney General, above, is again supportive of the Supreme Court’s conclusion. Penlington JA (p 763) considered the authorities to be “overwhelming that the decision of the Attorney General whether or not to prosecute in any particular case is not subject to judicial review”. The leading judgment of Fuad V-P was to like effect, and both Hunter and Penlington JJA agreed with it.

The decision of the Supreme Court of Fiji in Matalulu v DPP, above, which the Supreme Court chose not to adopt was given by Von Doussa, Keith and French JJ and was made (unlike Maxwell and Keung Siu Wah) with reference to constitutional provisions indistinguishable in substance from those in Mauritius. At pp 735-736 the court said:

“It is not necessary for present purposes to explore exhaustively the circumstances in which the occasions for judicial review of a prosecutorial decision may arise. It is sufficient, in our opinion, in cases involving the exercise of prosecutorial discretion to apply established principles of judicial review. These would have proper regard to 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. This approach subsumes concerns about separation of powers.

The decisions of the DPP challenged in this case were made under powers conferred by the 1990 Constitution. Springing directly from a written constitution they are not to be treated as a modern formulation of ancient prerogative authority. They must be exercised within constitutional limits. It is not necessary for present purpose to explore those limits in full under either the 1990 or 1997 Constitutions. It may be accepted, however, that a purported exercise of power would be reviewable if it were made:

1. In excess of the DPP’s constitutional or statutory grants of power— such as an attempt to institute proceedings in a court established by a disciplinary law (see s 96(4)(a)).

2. When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion— if the DPP were to act upon a political instruction the decision could be amenable to review.

3. In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe.

4. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved.

5. Where the DPP has fettered his or her discretion by a rigid policy— eg one that precludes prosecution of a specific class of offences.

There may be other circumstances not precisely covered by the above in which judicial review of a prosecutorial discretion would be available. But contentions that the power has been exercised for improper purposes not amounting to bad faith, by reference to irrelevant considerations or without regard to relevant considerations or otherwise unreasonably, are unlikely to be vindicated because of the width of the considerations to which the DPP may properly have regard in instituting or discontinuing proceedings. Nor is it easy to conceive of situations in which such decisions would be reviewable for want of natural justice.”

The court went on to question whether a mistaken view of the law by the DPP could ever found a successful challenge, save perhaps where it had prompted a decision not to prosecute.

The argument

The essence of the appellants’ argument is encapsulated in the cited passage of the judgment of the Supreme Court of Fiji in Matalulu. Under the Constitution of Mauritius the DPP is a public officer. He has powers conferred on him by the Constitution and enjoys no powers derived from the royal prerogative. Like any other public officer he must exercise his powers in accordance with the Constitution and other relevant laws, doing so independently of any other person or authority. Again like any other public officer, he must exercise his powers lawfully, properly and rationally, and an exercise of power that does not meet those criteria is open to challenge and review in the courts. The grounds of potential challenge certainly include those listed in Matalulu, but need not necessarily be limited to those listed. But the establishment in the Constitution of the office of DPP and the assignment to him and him alone of the powers listed in section 72(3) of the Constitution; the wide range of factors relating to available evidence, the public interest and perhaps other matters which he may properly take into account; and, in some cases, the difficulty or undesirability of explaining his decisions: these factors necessarily mean that the threshold of a successful challenge is a high one. It is, however, one thing to conclude that the courts must be very sparing in their grant of relief to those seeking to challenge the DPP’s decisions not to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any review at all, as a line of English authority relating to the DPP and other prosecuting authorities has shown: see, for example, R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118; R v General Council of the Bar, Ex p Percival [1991] 1 QB 212, 234; R v Chief Constable of the Kent County Constabulary, Ex p L (a minor) [1993] 1 All ER 756; R v Inland Revenue Commissioners, Ex p Mead [1993] 1 All ER 772; R v Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136; R v Crown Prosecution Service, Ex p Hitchins (Queen’s Bench Divisional Court, 13 June 1997, unreported); R v Director of Public Prosecutions, Ex p Treadaway Queen’s Bench Divisional Court, 31 July 1997, unreported; and R v Director of Public Prosecutions, Ex p Manning [2001] QB 330.

In supporting the decision of the Supreme Court, the DPP relies less on the source of the power to enter a nolle prosequi as a prerogative power not thought to be subject to judicial review than on the nature of the decision to be made when a decision not to prosecute is made or a nolle prosequi entered. He relies on the observation of Lord Scarman in the GCHQ case, above, at p 407, that “Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter”, and refers to authority showing that the power to enter a nolle prosequi cannot be subject to judicial review: see, for example, Barton v The Queen (1980) 32 ALR 449, 455, 457, 458; Hanna v Director of Public Prosecutions of NSW [2005] NSWSC 134, para 56; The State v Ilori [1983] 1 SCNLR 94, 106, 108. The DPP contends that a decision not to prosecute or to discontinue an existing prosecution, private or public, involves the assessment of factors which the courts cannot and should not seek to review.

Conclusion

In R v Panel on Take-overs and Mergers, Ex p Datafin PLC [1987] QB 815, 847, Lloyd LJ observed that “If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review”. It is unnecessary to discuss what exceptions there may be to this rule, which now represents the ordinary if not the invariable rule. Thus the Board should approach the present issue on the assumption that the powers conferred on the DPP by section 72(3) of the Constitution are subject to judicial review, whatever the standard of review may be, unless there is some compelling reason to infer that such an assumption is excluded. What compelling reason is there in a case such as this?

The DPP cannot, in the opinion of the Board, rely on the immunity enjoyed, at any rate in the past, by the English Attorney General when exercising the prerogative power to enter a nolle prosequi since he is not the Attorney General, he is not (like the Attorney General) answerable to Parliament, he has no prerogative power, his power derives from the Constitution and the Constitution does not use the language of nolle prosequi. The power expressly conferred on the Procureur General to enter a nolle prosequi has never, by that name, been conferred on the DPP. (The Attorney General of England and Wales in practice exercises his power very infrequently: twice in the past 5 years, in each case because of the defendant’s ill health). It has been pointed out that the English DPP, unlike his Mauritian counterpart, discharges his functions under the superintendence of the Attorney General (Prosecution of Offences Act 1985, s 3(1)), but this fact, if of any significance, would tend to weigh against rather than for the reviewability of his decisions, as providing a potential safeguard against abuse through the Attorney-General’s answerability to Parliament. Yet it has been common ground for some years that decisions of the English DPP are in principle reviewable, and the same view has been taken, for very much the same reasons, under the Constitution of Ireland: see McCormack v Curran [1987] ILRM 225; H v Director of Public Prosecutions [1994] 2 IR 589; Eviston v Director of Public Prosecutions [2002] IESC 43. It cannot, in the Mauritian context, be accepted that the extreme possibility of removal under section 93 of the Constitution provides an adequate safeguard against unlawfulness, impropriety or irrationality. There is here nothing to displace the ordinary assumption that a public officer exercising statutory functions is amenable to judicial review on grounds such as those listed in Matalulu. The Board would respectfully endorse the cited passage from the Supreme Court of Fiji’s judgment in that case as an accurate and helpful summary of the law as applicable in Mauritius.

It follows from that conclusion that the judgments of the Supreme Court of Mauritius of 30 September 2003 and 14 September 2004 should be set aside and the Supreme Court invited to reconsider the appellant’s applications in the light of this judgment and any evidence there may then be. That evidence will include any reasons the DPP may choose to give. But it is for the DPP to decide whether reasons should be given and, if reasons are given, how full those reasons should be. The English authorities cited above show that there is in the ordinary way no legal obligation on the DPP to give reasons and no legal rule, if reasons are given, governing their form or content. This is a matter for the judgment of the DPP, to be exercised in the light of all relevant circumstances, which may include any reasons already given. The Supreme Court must then decide on all the material before it, drawing such inferences as it considers proper, whether the appellant has established his entitlement to relief.

The appeals will accordingly be allowed and the applications remitted to the Supreme Court. The DPP must pay the costs incurred by the appellant in the Supreme Court and before the Board in relation to his application of 7 March 2003. No order for costs is made in relation to his application of 23 April 2004, save that the order of the Supreme Court shall stand.