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.

Louis Joseph Marie Gérard Tyack v The State

Louis Joseph Marie Gerard Tyack

Appellant

v.

The State

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 29th March 2006

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Present at the hearing:-

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

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[Majority judgment delivered by Lord Carswell]

Air Mauritius plays an important part in the economic life of the state of Mauritius. It is a large public limited company, in which members of the public have shareholdings. Its success has been linked with the development of tourism in Mauritius, which is of considerable importance to the island. When it became known that very substantial defalcations had taken place within the company, and it was alleged that very senior members of the management were involved, it gave rise to a large scandal and the public concern was equally great.

The appellant was at the centre of the misfeasance, as general manager in charge of finance and company secretary, playing a part which their Lordships will describe later in more detail. When rumours of irregularities were spreading and an internal inquiry had been commissioned, he admitted his part, provided detailed information to the police and expressed willingness to give evidence against the other participants. He was charged on two counts of conspiracy to defraud, which carried a maximum penalty of five years’ penal servitude. The subject matter of the charges represented only a small fraction of the sums wrongly received by the appellant on his own admission, and an even smaller fraction of the company’s overall loss. He pleaded guilty at the Intermediate Court and the Presiding Magistrate sentenced him to three years’ penal servitude on each count, which are to run concurrently. His appeal to the Supreme Court of Mauritius was dismissed and he has appealed by special leave to the Privy Council, on the ground that the sentence imposed was wrong in principle and manifestly excessive.

Before turning to the facts in more detail their Lordships would observe that although the Board has power to consider appeals against sentence, it is an area in which they are particularly slow to intervene, paying considerable deference to the views of the local court. In Chinien v The State [1993] 1 WLR 329, also an appeal from the Supreme Court of Mauritius, Lord Jauncey of Tullichettle, giving the judgment of the Board, said at p 335:

“It is very unusual for this Board to intervene or even to entertain argument in relation to sentences passed by a court of competent jurisdiction.”

It was prepared to do so in that case because questions of principle were involved. In the present case it is claimed that the Intermediate Court and the Supreme Court made a serious error of principle, in that they regarded it as legitimate that the appellant should be sentenced as if the charges laid represented the whole period and total amount of the fraudulent transactions. This involves consideration of the topic of charges in cases of multiple offending and the way in which they should be dealt with, one which their Lordships consider to be of some consequence.

It was common case, and accepted as correct by the Supreme Court in its judgment, that the Mauritian courts will be guided in sentencing by the principles and guidelines applying in England and Wales, so that the leading English authorities are generally apposite in sentencing matters. In the course of their judgment, however, the Supreme Court remarked (Record, pp 115-6) that while they have been inspired in their sentencing principles by the English decisions, the local social context is very different from that obtaining in the United Kingdom and that they must not blindly follow what obtains there. They also pointed out (Record, p 114) that in view of the local context they have “been less lenient in respect of certain crime”.

The appellant, who is now 65 years of age, joined Air Mauritius in 1977 as General Manager – Finance and Administration, being also appointed Company Secretary in 1985. In or about 1981 a special fund was set up, which on the appellant’s case was done on the instructions of the then Chairman, Mr HK (later Sir Harry) Tirvengadum, to enable payments to be made for the funding of political parties and for other purposes. In his unsworn statement made from the dock in the Intermediate Court the appellant described the Chairman as “un homme d’une forte personalité, qui avait la confiance de tous, a tous les niveaux” – a man of strong personality, who had the trust of everyone at all levels. The money was “laundered” through trusted associates, Rogers & Co Ltd, sales agents to Air Mauritius. They were paid sums by cheque which were described as a special commission, then remitted the amounts by open cheques to the appellant, who cashed them and kept the proceeds in his private safe or in bank accounts other than the Air Mauritius account, paying them over as he was instructed. This practice went on until 1999.

The appellant stated that these sums were initially used to finance political parties, but that “some years later” Sir Harry Tirvengadum asked him to effect various payments from the fund, including additional salaries for Sir Harry himself, for the appellant and for other colleagues, since “il avait la haute main” – he had the upper hand. It was common case that the total sum involved in the fraud was some 85 million rupees, roughly equivalent to £1.5 million sterling, and the amount which the appellant received came to some Rs 27.5 million, equivalent to £513,000 approximately.

About the beginning of September 2001 rumours began to spread about fraud at Air Mauritius and the company’s administration decided at some stage to institute an internal inquiry. The appellant asked for and was granted leave as from 10 September 2001 in order to facilitate the inquiry. He wrote a letter on 13 September to the President of the Republic asking him to institute a commission of inquiry at Air Mauritius, stating that he would tell all the truth about the matter. He then handed to the police a “cash book” in which he had noted all the entries and withdrawals in relation to the special fund. He followed this up by giving a series of statements under caution, commencing on 22 September 2001, in which he described in detail the course of the fraudulent conduct, the methods used and his own part in it. He produced a number of original documents setting out the payment of the special commissions and payments made out of the fund and identified a number of cheques relating to the transactions. From his records he accounted for the total of Rs 27,508,833.08 received by himself and paid this whole sum over to the police in October 2001. The appellant has at all times indicated his willingness to give evidence in proceedings against the other persons involved in the fraud and criminal proceedings are at present in train against them or some of them. The appellant has at various times from the beginning of the inquiry expressed his contrition and presented his apologies to the court.

The appellant was charged on two counts of conspiracy to defraud, contrary to section 109 of the Criminal Code (Supplementary) Act, an offence which carries a maximum penalty of five years’ penal servitude. The charges related to two specific transactions in April and June 1996 and the amounts concerned were Rs 489,718 and Rs 499,539 respectively, the equivalent in total of approximately £18,500. Their Lordships were not informed of the reasons for prosecuting the appellant on two charges only, but in view of the amount of evidence available incriminating him the inference appears clear that it was a deliberate decision by the prosecuting authorities. As no other charges were contained in the indictment or formulated and taken into consideration, one must conclude that restricting the prosecution to them was intended to reflect the very considerable and probably indispensable co-operation afforded to the police by the appellant.

The appellant pleaded guilty to these charges at the Intermediate Court on 9 December 2002. At a hearing on 27 February 2003 the Presiding Magistrate Mrs Mungly-Gulbul heard evidence from four police witnesses to prove the statements made by the appellant. He made an unsworn statement from the dock, his counsel made submissions on his behalf and in a brief reply prosecuting counsel merely stated that the principles of sentencing were to serve justice. There was no suggestion that other charges were being taken into consideration, nor was any mention of specimen or sample counts made at any stage of the proceedings. The course and scale of the whole fraud were, however, evident from the statements and the submissions presented by his counsel, who did not seek any restriction of the factual matters (which would have been wholly artificial and made the matter very difficult to comprehend). It was confirmed that the appellant had no previous criminal record.

The magistrate adjourned sentencing until 6 March 2003, when she gave a written decision setting out her reasons. She recited the course of the fraudulent conduct over 18 years and the appellant’s part in it, stating that notwithstanding his knowledge of the matter he had chosen not to report it to anyone until “the scandal came out in the open”. She said that

“the accused’s involvement in such a fraud, in breach of his position of trust and causing prejudice, not only to his employer, but also the company shareholders, cannot be condoned or viewed lightly.”

She emphasised (Record, p 19) that

“in this context of rampant white collar crime, were the Court were to be unduly lenient to the accused, it would be sending the wrong signals to those professionals in positions similar to the accused, who would have the impression that they can engage into illegal activities and frauds with impunity and get away subsequently merely by refunding the amount due and showing their contrition and regrets over what has taken place.”

She concluded (Record, p 20) as follows:

“Bearing in mind all the mitigating factors in favour of accused and highlighted during the proceedings, I am of the view that the maximum custodial sentence provided under s 109 of the Criminal Code Supplementary Act, namely 5 years penal servitude, is not warranted in the present case. A lesser sentence will meet the ends of justice and I sentence accused to undergo 3 years penal servitude under each count.”

The appellant appealed to the Supreme Court of Mauritius on the grounds that (a) the sentence was wrong in principle and was manifestly excessive in the circumstances of the case (b) the magistrate had erred in taking into consideration extraneous and irrelevant matters which went beyond the charges preferred (c) a non-custodial or suspended sentence should have been imposed.

The appeal was heard on 11 May 2004 by the Supreme Court (Lam Shang Leen and Peeroo JJ) and a reserved written judgment was given on 10 June 2004 dismissing the appeal. In a skeleton argument submitted on behalf of the appellant and in oral argument his counsel contended that the magistrate had taken the wrong starting point. Since the charges were not specimen charges, this should be the figure appropriate for a fraud involving under Rs 1 million, which would be of the order of two to three years. It was wrong for the magistrate to have regard to the whole extent of the fraudulent scheme as it was operated over 18 years and to start from the maximum, as she apparently did. He should then receive substantial credit for his early plea of guilty and the mitigating factor of his very considerable co-operation with the police.

Counsel appearing on behalf of the prosecution, Principal State Counsel Mrs G Manna, submitted that a custodial sentence was correct in principle, but that the sentence imposed by the magistrate was on the high side, in view of the mitigating factors, in particular the assistance which the appellant gave to the police. At the conclusion of its judgment the Supreme Court criticised counsel for the prosecution for making these submissions, but in the light of the matters which they will discuss in this judgment their Lordships consider that the criticism was rather misplaced.

In its judgment the Supreme Court discussed a number of English and Mauritian authorities on sentencing, but it is significant that at no point did it advert to the fact that the appellant had been charged on only two counts and had not asked for any others to be taken into consideration. It had regard to the whole period of the conspiracy to defraud Air Mauritius, and not merely for the purpose of setting the charged offences in context or rebutting any suggestion that those were isolated offences. This appears clearly from a passage at Record p 124-5:

“It was also submitted that the learned magistrate had taken into account 15 matters which were extraneous to the counts of conspiracy. We do not share that view. On the contrary, the learned magistrate was alive to the counts with which the appellant stood charge and only took into consideration the evidence placed before her for the purpose of passing the sentence. Apart from those factors which went towards mitigation which she bore in mind, there were, indeed, facts showing the aggravation of the offences for which the appellant was charged and which the learned magistrate was perfectly entitled to take into account. She rightly considered the fact that (a) the scheme to strip off the public company lasted for some 18 years; (b) the appellant had benefited from that fraud and had remitted apparently what remained of the bounty, the sum of some Rs27m and (c) had actively participated in the scheme despite his allegation that he was acting under the instruction of the then almighty chairman. The learned magistrate, en passant, mentioned that the appellant, also in his capacity as the Company Secretary, failed to report the matter to the Board of Directors. Furthermore, despite the fact that the “almighty” was not in office at some stage, the fraud continued until the scandal was let off the bag by others. In the light of what had been said in R v J. Barrick (supra), we consider that the relevant considerations were taken into account by the learned magistrate before deciding the fate of the appellant.

There remains lastly the qualm of the appellant that he was not given sufficient discount in the light of all the mitigating factors in his favour. True it is that the learned magistrate did not say what would have been the appropriate sentence had the case gone for trial. We consider that in the light of the breach of trust, the ripping of fund during a long period through a scheme designed by those in the top management of a public company and the huge amount involved, a sentence of 5 years would not have been unreasonable. As a cold comfort to the submission of learned counsel for the appellant in a case of extreme seriousness, the trial court would be entitled to order the sentences to run consecutively to reflect the very serious nature of the offence and the disapproval of the society to which the court owes a duty as well.”

Again, at p 127 the court referred to “the huge amount involved as admitted by the appellant”.

The Supreme Court referred to the guidelines laid down by Lord Lane CJ in R v Barrick (1985) 81 Cr App R 78; 7 Cr App R (S) 142 concerning the proper level of sentencing in fraud cases, under which a case involving sums of between about £10,000 and £50,000 would merit a term of about two to three years’ imprisonment, subject to other factors which might operate by way of aggravation or mitigation. It went on to point out quite legitimately, however (Record pp 125-6)

“… we must not forget that the incomes which obtain in England and in Mauritius are incomparable. Furthermore, Rs 489,718 and Rs 499,539 might not appear to be a lot of money in England, but it is equivalent to 20 months’ salary of a magistrate or 10 years’ salary of a factory worker.”

The court expressed the view that a custodial sentence was not wrong in principle and set out its conclusion at Record pp 127-8:

“Considering what had been said in R v Barrick (supra) and Dimsey (supra), the huge amount involved as admitted by the appellant, the more so that this is a very serious fraud by a person in a position of trust which must be checked especially that the State deemed it necessary to pass laws to curb down white-collar crimes which are legion, we have not been shown in what way the learned magistrate had erred in applying the sentencing principles which she had elaborated and which were inspired from the decisions in the United Kingdom. We find that the sentence passed was neither wrong in principle nor manifestly harsh and excessive having regard to all the circumstances of this case.”

In his printed case Mr Thornton QC advanced six submissions on behalf of the appellant in support of his case that the Supreme Court had been in error (1) the appellant was sentenced for offences to which he did not plead guilty (2) it wrongly took the maximum sentence of five years as the appropriate starting point (3) a discount of 40 per cent from the starting figure was insufficient in the circumstances (4) the court reduced the discount because of the nature of the crime (5) the court departed from the English authorities (6) the court wrongly applied the guidelines in R v Barrick. These submissions overlap to some extent and depend essentially on the correctness of the first argument. Mr Dixon for the State did not adopt the same approach as Mrs Manna had before the Supreme Court, but maintained that the Intermediate Court had been correct in law and justified in looking at the entire course of the appellant’s conduct when sentencing him, that it was accordingly reasonable to start from the maximum sentence and that the discount allowed had been sufficient.

Their Lordships are in agreement with the conclusion of the Supreme Court that a custodial sentence was required and that it was not appropriate in a case of this type to suspend it or to restrict it to a short sentence on the “clang of the prison gates” principle. They feel that it is necessary, however, to examine further the question of the basis of sentencing on the two charges, the starting point in determining the length of sentence and the discount or discounts which should be allowed.

There was a good deal of discussion in argument before the Board of the use of specimen or sample counts in criminal prosecutions. Their proper function may not always have been properly understood, but the severe limits upon recourse to them need to be more clearly appreciated than ever. In the words of the Law Commission, the “pragmatic arrangement” thitherto adopted of charging offences which were to be regarded as examples of a wider range of offending was “thrown into disarray” by the decision of the Court of Appeal in R v Canavan [1998] 1 Cr App R 79; sub nom R v Kidd [1998] 1 WLR 604 (Report of the Law Commission “Effective Prosecution of Multiple Offending (2002) Law Com No 277, CM 5609, para 2.3). In that case Lord Bingham of Cornhill CJ stated at page 81:

“For very many years prosecuting authorities have framed indictments including a small number of specimen or sample counts said to be representative of other criminal offences of a like kind committed by the defendant. This may, for example, be done where a defendant is said to have sexually abused a child victim frequently over a period, but the child is unable to particularise any specific occasions on which abuse occurred. Two or three counts, perhaps, may be included in the indictment; the prosecutor will make plain that they are specimen counts; and the victim will give evidence of the frequency with which the abuse occurred. The practice may also be adopted where, for example, a defendant is said to have obtained money by deception on numerous occasions: instead of burdening the indictment with numerous counts charging all the instances relied on, a few counts only may be included, and it will be made plain to the court and the jury that they are relied on as representative of a more extensive course of similar conduct. If, in a situation such as this, the jury convicts the defendant on one or more specimen counts, the practice of the court has been to pass a sentence which takes account not simply of the isolated instances specified in the counts but also of the conduct of which, on the evidence adduced by the prosecution, those counts are representative. This is undoubtedly a convenient and economical way of proceeding in cases of this kind, and when appeals have reached this Court against sentences passed on sample or specimen counts no objection has been raised to the practice. It is, however, submitted for the appellants that the practice is contrary to fundamental principle and inconsistent with recent statutory provisions.

A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Director of Public Prosecutions v. Anderson (1978) 67 Cr.App.R. 185, [1978] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. ”

The consequence of this decision, whose logic and correctness in principle the Law Commission said “cannot be faulted”, has been to make the specimen count virtually a dead letter.

It appears to be undeniable that difficulties, greater than the court had foreseen, have arisen out of the decision in Canavan (see R v Tovey and Smith [2005] EWCA Crim 530, [2005] 2 Cr App R (S) 100, para 13, per Lord Woolf CJ; Law Commission Report, paras 2.10 to 2.13) and the problem has been described as “intractable”. The Law Commission made several recommendations in its report of expedients to alleviate these problems, but they have not as yet been the subject of amending legislation. Nor has the suggestion advanced by Dr DA Thomas ([2005] Crim LR 250) been adopted, that the rules about duplicity of indictments should be rethought, so as to allow the prosecution to charge a continuing course of conduct in a single count. In R v Tovey and Smith, supra, the Court of Appeal took the opportunity to review the law and considered whether there were other possible ways of alleviating the problems. It reluctantly came to the conclusion, however, that, subject to what appears to be a fairly limited possibility of issuing a form of indictment approved by the Lord Chief Justice (which would have to comply with the restrictive requirements of section 3 of the Indictments Act 1915), there was no substantive proposal that the court could usefully make.

If the case is contested, accordingly, in the light of Canavan a defendant cannot be sentenced for conduct which has not formed, expressly or by necessary implication, the subject of charges laid against him. It is therefore important that the prosecution should include sufficient counts to reflect the extent of the defendant’s criminal behaviour and the period during which the offending occurred: cf Canavan at page 84; R v Tovey and Smith, para 34; R v M [1999] NI 45 at 56, per McCollum LJ; and see the useful reminder given by Kennedy LJ in R v Twisse [2001] 2 Cr App R (S) 9, para 7. The extent to which this is practicable is, however, limited: see the views expressed by Mantell LJ in R v Evans [2000] 1 Cr App R (S) 144 at 147-8. It cannot be overcome by treating a selection of counts as “stepping stones”: R v Graham and others [2004] EWCA Crim 2755; [2005] 1 Cr App R (S) 115, paras 42,56.

Where the defendant intends to plead guilty to the whole catalogue of offences in a series and they can be sufficiently specified, it is desirable that these other offences should be specified and that he should ask for them to be taken into consideration. This may prove to be impracticable where the other offences are extremely numerous or cannot be precisely specified. In such case there should be clear agreement between the prosecution and defence, which should be stated in open court and preferably recorded in written form, that the judge may sentence on the basis of the whole series of offences: cf Blackstone’s Criminal Practice 2006, para D18.33. Instances may occur from time to time where the practice outlined has not been followed with the proper precision, but the case has been so plainly approached by defence counsel on the basis of accepting the defendant’s guilt of a whole series of offences that it would be wrong to limit sentence to that which would be appropriate in respect of the counts on the indictment: Attorney-General’s Reference (No 82 of 2002) [2003] EWCA Crim 1078; [2003] 2 Cr App R (S) 115 provides an example, approved in Tovey and Smith at para 22. Moreover, the court is not required to blind itself to the obvious. If the defendant claims that the occasion in question was an isolated transaction, that submission can be rejected if the facts and circumstances point with sufficient clarity to the opposite and he can be given the appropriate sentence for a single offence charged without the credit which he would receive if it really were an isolated offence: R v Twisse [2001] 2 Cr App R (S) para 8, per Kennedy LJ. Subject to those qualifications, however, the defendant must be sentenced only for the matters with which he has been charged and in respect of which he has either been convicted or has pleaded guilty.

The extent of the residual life left in specimen counts was not, however, a central issue in the present case when correctly regarded. If one concludes, as their Lordships consider they must, that the intention of the prosecuting authorities in framing the indictment with only two counts was to recognise and reflect the extent of the appellant’s co-operation, then it was inconsistent with that approach and incorrect in principle for the court to go behind that and sentence him on the basis on the entire course of his wrongdoing. By the same token, if his co-operation has been reflected in the prosecutorial decision, it would be double-counting to apply a further discount for that factor at the time of sentencing.

Their Lordships accordingly consider that the Presiding Magistrate and the Supreme Court were in error in approaching the case, as they manifestly did, as one in which the whole course of the appellant’s wrongdoing should be reflected in the sentence. No doubt a feeling that the approach was incorrect lay behind Mrs Manna’s submissions which were criticised by the Supreme Court. In their Lordships’ view the court should have taken as its starting point the sentence which would have been appropriate if the appellant had been convicted after a contest on those two charges alone. It could have had regard to the nature and extent of the entire fraudulent scheme in the manner to which they have referred in paragraph 21 above, but it is plain from the judgments of the Intermediate Court and the Supreme Court that they went further and imposed a sanction which they thought appropriate for the perpetration of the whole of the fraud.

The range of sentencing propounded in R v Barrick for frauds involving £10,000 to £50,000 was two to three years, which would then be subject to any aggravating or mitigating factors. This is the proper starting point, not the maximum sentence, which was quite inappropriate as a potential sanction for the offences charged. Their Lordships consider it right to bear in mind the difference in the cost of living and the level of salaries between England and Mauritius. They also have regard to the factors of breach of trust and the appellant’s pivotal part in operating the fraudulent scheme. They accordingly regard the present case as being at the top end of the range. If this is taken as the starting point, the appellant is then entitled to a suitable discount for his plea of guilty, but not, for the reasons hereinbefore set out, for his co-operation with the police. The appellant has professed considerable remorse for his actions and has made what is accepted as full restitution. Their Lordships are conscious of the factor to which the magistrate referred at Record p 19, quoted in paragraph 10 above, about the limits which may be placed on the factors of restitution and contrition, a factor which always has to be borne in mind when sentencing in fraud cases. Their conclusion, taking account of all the relevant considerations, is that the proper sentence would have been one of two years’ penal servitude.

Their Lordships will accordingly allow the appeal and substitute a term of two years for that of three years ordered by the magistrate. The appellant will have his costs of the appeal to the Board.

Lord Mance

Save in one area, I agree with the advice of the Board prepared by my noble and learned friend, Lord Carswell. I have the misfortune to disagree with the Board’s refusal to allow any discount for the assistance rendered by the appellant to the police and prosecuting authorities.

The appellant was charged with only two limited offences, each couched in terms of conspiracy and carrying a maximum sentence of five years penal servitude. In the event the sentences passed of three years imprisonment on each count were made concurrent. I agree with the Board that the sentencing judge erred in sentencing the appellant as if he had been charged with a much wider fraud, or had asked for other charges going to make up that fraud to be taken into account. The judge was only entitled to sentence the appellant for the two limited offences charged.

I also agree that, on the basis of those two limited offences, the appropriate starting point for sentencing would have been a total of two to three years on conviction. That is before any discounting for mitigating circumstances such as the appellant’s immediate admission of guilt, remorse and guilty plea and the fact that apart from the aberration of his involvement in fraud on Air Mauritius he appears to have had a blameless and hard-working business and family life.

The guidelines in R v. Barrick (1985) 7 CrAppR(S) 142 (as modified in R v. Clark [1998] 2 CrAppR 137 after the maximum sentence for simple theft in England and Wales was reduced from 10 to 7 years) indicate a sentence of that order on conviction for theft involving dishonest breaches of trust in sums between £17,500 and £100,000. Here the maximum sentence for conspiracy was only 5 years penal servitude, and the total amounts involved in the two offences with which the appellant was charged equated to no more than about £18,500. This is in nominal terms at the bottom of the Barrick/Clark scale, but, as the Court of Appeal pointed out, a straight comparison of the value of money in Mauritius and England is unrealistic. A sum of £18,500 in Mauritius may more appropriately be regarded as near the top of the Barrick/Clark scale of £17,500 to £100,000. Hence a starting point of two to three years on conviction. I would be prepared myself to take three years. The slight difference between the maximum possible sentence of seven years in England and Wales and of five years in Mauritius can, I think, be put on one side.

The Board would apply to this starting point a discount for the appellant’s plea, bringing the actual sentence down to two years. If one assumes that three years would have been the appropriate sentence on conviction, I agree that a one-third discount would be appropriate to take account of the appellant’s voluntary confession and early plea: see R v. Buffey (1993) 14 CrAppR(S) 511, 515. The Board would however refuse any further discount to take account of the appellant’s very substantial co-operation, past and continuing, in revealing and assisting in the prosecution of the wider fraud. It is said that it would be double counting to allow any further discount, since “one must conclude” that his assistance has already been reflected in a prosecutorial decision only to pursue him on two limited counts. This appears to me a speculative path, not explored in the Courts below or in the prosecution case or submissions before the Board until the Board raised it. I am also concerned that it draws an inappropriate line between the prosecutorial and judicial functions and reduces the incentive to assist.

The only presently relevant point that the prosecution made in its written case to the Board was to draw attention to Kennedy LJ’s observation in R v. Twisse [2001] CrAppR(S) 37, paragraphs 7-8 that, where a limited charge is preferred and there is no request to take any other offences into consideration

“... the court is not required to blind itself to the obvious. If he [the defendant] claims that the occasion in question was an isolated transaction, the submission can be rejected. He can be given the appropriate sentence for that one offence without the credit he would receive if he really were an isolated offender.”

In other words, a defendant cannot be heard to say that he was an isolated offender, if it is obvious that he was party to some wider course of offending. He loses the possibility of such mitigation as would have existed if he had committed no more than an isolated slip.

In the present case, the appellant did not portray himself as an isolated offender. On the contrary he pointed out that he was charged with two limited offences, which he had confessed and to which he had pleaded guilty at as early a stage as possible, that he had disclosed much wider offending, that he had made full recompense and that he had assisted and was continuing to assist in the pursuit of others. These included the person who both sides assert was the initiator of the scheme, Sir Harry Tirvengadum, chairman of Air Mauritius and so the appellant’s superior and described by the appellant as an all-powerful and controlling personality. They also included other major alleged participants in the scheme, namely Joseph Rivalland, Louis Yip Tong and Derek Taylor, executive directors of Rogers Co. Ltd, the company which was used to channel the monies extracted from Air Mauritius. Sir Harry and these other alleged participants are due shortly to stand trial, each on a single charge of conspiracy relating to the wider alleged fraud (and so each exposed to a maximum of only five years penal servitude). Lord Carswell has in paragraph 7 described the active steps that the appellant took to bring to the attention of the authorities the full ambit of the wider fraud, by providing detailed information and his own detailed “cash book” documenting it. The police acknowledged at his trial that his evidence was “crucial for the enquiry into Air Mauritius affairs”. It will be correspondingly central to the forthcoming trial involving Sir Harry and others.

In these circumstances, the question is whether it is right to refuse the appellant any discount for his assistance, past and continuing into the future. The authorities indicate that the combined discount for an early confession and plea coupled with such assistance would commonly be in the range of one-half to two-thirds, although there is no tariff or “hard and fast rule” (R. v. King (1985) 7 CrAppR(S) 227, 230; R v. Sehitoglu and Ozakan [1998] 1 CrAppR(S) 89) and the area has been described as “fraught with difficulties” (R v. Sivan (1988) 10 CrAppR(S) 282, 286). The discount for assistance has been explained on two grounds (R v. X (1994) 15 CrAppR(S) 750), first, as a practical demonstration of acceptance of guilt and remorse, and, second, expediency – to assist in the arrest of others and the prevention of crime. The latter pragmatic consideration has been repeatedly emphasised (cf e.g. R v. Lowe (1978) 66 CrAppR 122, R v. King, above, and R v. Sivan, above). The authorities also stress as one factor that may affect the level of discount the danger that giving such assistance may involve (cf e.g. R v. Sinfield (1981) 3 CrAppR(S) 258, 259-260; R v. King, above at 230). There is no suggestion of any danger as a relevant factor in the present case.

Here, however, the authorities were made aware of the fraud and of its scope by the appellant, and, on the basis on which both sides ask the Board to approach this appeal, his assistance has been and will be crucial to its unveiling and to the pursuit of the alleged ring-leader and other major participants. The two charges laid against the appellant relate to a period prior to Sir Harry’s departure. It is true that the appellant’s assistance relates to a wider fraud involving some Rs. 85 million, equivalent to £1.5 million, which he asserts continued thereafter and out of which the appellant personally received and continued to receive very substantial benefit (totalling Rs. 27.5 million, equivalent to about £513,000). But he also volunteered to return all personal benefit at the same time as he disclosed the fraud and did so within a few days. There is nothing to suggest that he did not do so fully as regards his personal benefit.

It is said that the appellant must already have received a full discount, because the prosecution restricted the charges brought to two involving some £18,500, compared with the total £513,000 which the appellant said that he received and returned as his personal benefit. It is quite possible that the prosecution restricted the charges (laid as early as 29^th November 2001) to only two in order to reflect the appellant’s assistance. But the point was never discussed or shown below, and I do not think that it can be regarded as clear. There may have been other reasons. I have already noted that Sir Harry and his co-defendants have only been charged with single offences exposing each of them to a risk of no more than five years penal servitude.

In my view it is not appropriate to refuse the appellant any discount whatever for his assistance on the suggested ground that it would represent a double discount. First, as I have said, this ground is untested speculation that the reason for limiting the charges brought against him was a wish to limit his punishment. Second, even if there had been clear evidence that that was the motivation, I would be unhappy about a process of reasoning which gives effect in the sentencing process to a prosecutorial decision and motivation. Third, I am unhappy about an approach which comes close to sentencing the appellant for a wider course of offending for which he has never been charged and which he has never asked to be taken into account. If the appellant had confined himself to admitting involvement in two charges, and had made no admissions or had put up a defence (e.g. of duress or ignorance of any wrongful purpose) in relation to any wider fraud, he would still have been entitled to a discount for assistance given implicating an alleged ring-leader and any others in relation to that wider fraud. If the prosecuting authorities chose not to pursue him for the wider fraud, and he did not admit it and ask for it to be taken into account, he could not be denied a discount on the basis that he might have been involved in it. Fourth, the practical implications of refusing a discount for assistance in a situation where it is thought that the prosecution have under-charged are unclear. Suppose that someone in the appellant’s position only admitted, and the police only knew about, two offences when they first charged him, there would be no or very little real incentive for him to disclose any wider fraud, if this would lead either to further charges or, if it did not, to a refusal to allow any discount for his assistance.

Although any difference this may make to the length of the sentence may be small, I consider it wrong for these reasons to refuse all discount for the assistance given. I appreciate that this was for Mauritius a sensational and concerning affair. But it is not infrequently the case that remorse, reparation, an early plea and substantial assistance can lead to a sentence which, without knowledge about these important factors, would appear extraordinarily lenient. I bear in mind, however, that this is not a situation where the appellant appears to have run or be running any physical risk in assisting as he has done and continues to do. So it may not be a case for the maximum discount of two-thirds indicated in the authorities for an early plea and substantial assistance. But it is a case for a total discount of at least one-half. Accordingly, I am unable to agree that it could have been appropriate to pass a sentence of more than, at most, one and a half years (half of three years).