What was she thinking?

Gordon Robinson, Contributor

Sometimes, the more we struggle, the tighter the noose is drawn. Or, as the condemned man said to the hangman: "No noose is good noose."

My attempt to deter harebrained plans to make sitting judges/magistrates named defendants/respondents in Supreme Court proceedings (Sunday Gleaner, September 26, headlined 'Judicial Review') included: "Judicial review is a highly specialised, complex and widely misunderstood process developed in England to deal with the proliferation of administrative tribunals exercising delegated governmental authority. It was intended to protect citizens from abuse of this delegated state power. It was never meant to protect the State from citizens nor one state institution from another."

Unless a state official shows that he/she is protecting the rights of a specific member or section of civil society and not just acting based on a general public duty, it is my opinion that no state official belongs, as applicant, in a judicial review court. In particular, the director of public prosecutions (DPP), whose office seems to have given birth to this particular folly, is a constitutional officer who can do nothing, as DPP, unless it is clearly set out in the Constitution. As a creation of the Constitution, that supreme instrument alone prescribes the DPP's scope. The Constitution specifically limits the DPP's powers to instituting, continuing, or discontinuing criminal proceedings. No power to commence any civil proceeding has been conferred on the DPP.

But, putting legalistic argument aside, what exactly was she doing? Did anyone think this through? Who represents the DPP in a civil proceeding brought against a magistrate? Who represents the magistrate? The Office of the DPP can't appear because it has no power to conduct civil proceedings. Don't bother sending a torrent of emails citing tedious UK (or uninformed local) precedent to the contrary, assuming any exists. First, I don't care (remember, we're trying common sense here). Second, England has no written Con-stitution. Jamaica does. So throw away your English textbooks and try thinking instead. I assure you the flexing of independent mental muscle is both healthy and refreshing.

Caught in a quandary

The DPP, a government official, is entitled, in any civil proceeding brought against her, to be represented by the director of state proceedings (DSP). So is the magistrate. If the DSP represents the DPP, (or refuses both), who represents the magistrate? Must the magistrate hire private lawyers at personal expense? Which magistrate contemplated that when signing up for the burden of public service? Is this common sense? And must a magistrate do this as often as some disgruntled lawyer wants to drag him/her into court?

But it gets worse. Let's say the magistrate hires lawyer X and is exonerated after months of Supreme Court proceedings necessitating several attorney/client conferences with a common objective. What happens next, when lawyer X, representing a private client, appears before that same magistrate? Will the magistrate be asked to recuse herself for "apparent" bias towards lawyer X?

Where will it end? Should magistrates feel obliged to keep their views to themselves for fear of allegations of bias? In that situation, who loses? The magistrate? Or the litigant whose lawyer presses on blissfully unaware that the magistrate's thinking is opposed to his/her submissions without any opportunity to address the magistrate's concerns? Both legally and logically, it is arrant nonsense, and I commend Justice Hibbert, himself a former high-class prosecutor, for dealing with it in the dismissive manner it deserved.

I've frequently told all young lawyers unfortunate enough to come within my sphere of influence that there's no such thing as a biased judgment. Judges are people too and will have biases. So? That's irrelevant to their judgment. If bias drives a judge to error, then the appeal process (including a Court of Appeal itself subject to a third tier) usually makes the necessary correction (there is no perfect system) based on "error", not "bias". Even in cases where judicial review may be appropriate (in "Judicial Review", above, I had postulated that different constitutional arrangements might mean that the process isn't transferable from England), it is a fundamental precondition to access that alternative remedies, including available appeals, must first be pursued. The rationale is that resort to Her Majesty's prerogative (Judicial Review's historically fundamental basis) ought to be a final one, and allegations like bias limited to that context.

wait for judgment

Don't tell me prosecutors can't appeal. Momentarily ignoring regrettable recent changes to that, the tipping of justice's scales in favour of accused citizens is the constitutional foundation upon which every criminal justice system is built and not a subject for whinging. So a magistrate's judgment is either right or wrong. Lawyers should wait for the judgment and not run to the Supreme Court every time magistrates' comments might hurt somebody's feelings.

The cardinal principle of the criminal law is that it is better to have 1,000 guilty men set free than to convict one innocent man. So, when the judgment comes, if it is an acquittal, it can't be wrong. If it is a conviction and the defence thinks it is wrong, every lawyer knows where to go.

So, the recent actions of our erstwhile DPP force me to contemplate the profound quest described by Peter Sarstedt's brilliant 1969 lyrics:

"But where do you go to my lovely

When you're alone in your bed.

Tell me the thoughts that surround you

I want to look inside your head, yes I do."

What on God's green earth was she thinking?

Peace and love.

Gordon Robinson is an attorney-at-law. Feedback may be sent to columns@gleanerjm.com.