Caribbean Court says unconstitutional for DPP to unilaterally order fresh Preliminary Inquiries

Last Updated on Tuesday, 15 March 2022, 19:52 by Denis Chabrol

The Caribbean Court of Justice (CCJ) on Tuesday ruled that Guyana’s Director of Public Prosecutions (DPP) could not unilaterally order a Magistrate to conduct another preliminary inquiry but must instead ask the High Court to decide.

In a unanimous decision that saw murder-accused Guyana-born American Marcus Bisram being a free man unless there is fresh evidence for the DPP to seek a new preliminary inquiry, the CCJ struck down Section 72 of the Criminal Law Procedure Act as unconstitutional.

The Trinidad-based regional court, instead, said the DPP must ask the High Court to decide whether someone should face another preliminary inquiry to decide whether there is sufficient evidence for a trial by judge and jury. CCJ President Adrian Saunders said that was merely an interim measure until Guyana’s legislature amends Section 72 of the Criminal Law Procedure Act. “Until the National Assembly addresses this matter, Section 72 should be modified to provide the DPP, who is for good reason, dissatisfied with the decision of a magistrate to discharge an accused person, may place before a judge of the Supreme Court the depositions nd other materials that were before the  Magistrate on an ex parte application for the discharged accused to be arrested and committed if the judge is of the view that the material justified such a course of action,” he said. The CCJ judges said they could not simply strike down Section 72 and leave a gap without knowing when it would be closed.

The CCJ agreed with Bisram that Section 27 contravened because s 72 was contrary to Articles 122A, which entrenches the principle of judicial independence),  144 , which secures the right to the protection of the law, and the separation of powers doctrine. He also claimed that, in any event, the DPP did not precisely follow the steps required by the section.

The CCJ frowned on Section 72, prior to Tuesday’s judgement, that allows the DPP to order a magistrate to reopen the Preliminary Inquiry and treat the accused as if there is sufficient evidence to allow the accused to make a statement or call witnesses, and even after that the DPP can direct the magistrate to commit the accused to trial.

In  the specific case involving Bisram, who was accused of the murder of a carpenter in 2016, the CCJ also flayed the DPP for flouting even the procedures laid out in the Act that it found to be constitutionally flawed. “The DPP made up her mind (and worse, expressed that decision in writing) to direct a re-opening of the case with a view to directing a committal before she had received or reviewed the depositions. To this end, she simultaneously dispatched to her assistant, to be passed to the magistrate, two letters already signed by her.

The problem with this is that the carefully prescribed sequential approach to the matters referenced in those letters was not followed. The fact that, as the DPP submitted, she had already been briefed  about the statements the witness had given in the PI before she wrote the letters,  and that she only instructed the assistant DPP to submit the second letter after the  latter had told her that the depositions “were in keeping with the evidence”, does  not meet the required prosecutorial standard of careful deliberation,” the judgement states.

After a lengthy appeal and cross-appeal, the CCJ on Tuesday ruled that Bisram must not be charged again with the offence of murder unless there is fresh evidence. “The Court also found that it would be unjust in all of the circumstances for Bisram to be made to answer any charge of murder in this case on the same evidence that was presented to the magistrate. However, Bisram, at least in terms of the law, was never placed in jeopardy. Nothing prevents the DPP from having him rearrested and charged again if fresh evidence is obtained linking him to the alleged murder,” Justice Saunders said.

The CCJ also ordered that his passport be returned.

Bisram had been extradited to his native Guyana in 2019 to face a charge that he had allegedly hatched the murder of Berbice carpenter, Faiyaz Narinedatt, a guest at a party he had hosted back in late 2016, after the now dead man had refused his sexual advances.