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Sharma v. Deputy Director of Public Prosecutions & Ors (Trinidad and Tobago)
Factual and Procedural Background
The Appellant, the Chief Justice of The State, faced an imminent criminal charge for attempting to pervert the course of justice. On 10 July 2006, Judge Jones granted the Appellant ex-parte leave to seek judicial review of an alleged decision by the Deputy Director of Public Prosecutions (“Deputy Director”) to prosecute him and stayed all consequential steps. Similar orders were issued against the Assistant Commissioner of Police (“Assistant Commissioner”) on 13 July, and the Commissioner of Police (“Commissioner”) was added as a respondent with injunctive relief on 14 July (later varied and partly discharged).
The Deputy Director’s application to set aside leave was dismissed on 17 July. All three Respondents appealed. On 31 July 2006 the Court of Appeal set aside the leave concerning the Deputy Director, discharged the injunctions against the Assistant Commissioner and the Commissioner, and granted the Appellant permission to appeal to the Judicial Committee (“the Board”). Although the Court of Appeal did not formally revoke leave against the Assistant Commissioner and the Commissioner, it was accepted that its decision, if upheld, would lead to that result.
Legal Issues Presented
- Whether the Court of Appeal was correct to set aside Judge Jones’ orders granting leave for judicial review and associated injunctive relief.
- Whether, as a matter of principle, an alleged decision to prosecute the Appellant should be scrutinised by way of judicial review or left to be tested within the ordinary criminal process.
- Whether the evidence disclosed an arguable case that political pressure improperly influenced the prosecutorial decision.
- Whether the exceptional threshold for permitting judicial review of a decision to prosecute was satisfied.
Arguments of the Parties
Appellant’s Arguments
- The chronology and surrounding circumstances—particularly alleged comments by the Prime Minister and Attorney General, leaks to the press, the timing of the Chief Magistrate’s complaint, and a contentious property transaction—created an arguable inference of political pressure on the Deputy Director and the police.
- The conduct of the police (e.g., search of chambers, attempted Friday-evening arrest) was “heavy-handed” and indicative of extraneous influence.
- Given these factors, the Appellant satisfied the threshold of arguability required for leave to seek judicial review.
Respondents’ Arguments
- No evidence showed that the Deputy Director surrendered independent judgment; she had no contact with political figures and acted solely on the evidential file.
- The police possessed an independent statutory power to initiate proceedings; their actions did not derive from the Deputy Director’s advice.
- The criminal process, including abuse-of-process safeguards, was the appropriate forum to ventilate any complaints; judicial review would fragment proceedings and cause delay.
- The Court of Appeal therefore rightly set aside leave and injunctive relief.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623 | Leave for judicial review requires an arguable ground with a realistic prospect of success. | Used to frame the threshold the Appellant had to meet at the leave stage. |
| R (N) v Mental Health Review Tribunal [2006] QB 468 | The more serious the allegation, the stronger the evidence required even on a balance of probabilities; applied mutatis mutandis to “arguability”. | Highlighted that seriousness of allegations against the Chief Justice demanded robust supporting evidence. |
| Matalulu v Director of Public Prosecutions [2003] 4 LRC 712 | Prosecutorial decisions are reviewable only in exceptional cases such as surrender to political instruction. | Both courts analysed whether the Appellant’s case fitted these exceptional categories. |
| Mohit v DPP of Mauritius [2006] UKPC 20 | Affirms availability—but rarity—of judicial review over prosecutorial discretion. | Relied on to emphasise that the remedy is “highly exceptional”. |
| R v IRC, Ex p Mead [1993] 1 All ER 772 | Judicial review of a decision to prosecute is “rare in the extreme.” | Cited to show historic judicial reluctance. |
| R v DPP, Ex p C [1995] 1 Cr App R 136 | Such review should be “sparingly exercised.” | Supported the dismissal of leave. |
| Kostuch v Attorney General of Alberta (1995) 128 DLR (4th) 440 | Court should be “very hesitant” to interfere with prosecutorial discretion. | Bolstered the Respondents’ position. |
| R (Pepushi) v CPS [2004] EWHC 798 | Challenges to prosecution decisions are “very rare indeed.” | Reinforced the exceptional nature of the relief sought. |
| R (Bermingham) v Director of Serious Fraud Office [2006] EWHC 200 | Judicial review of prosecution decisions is undertaken only “very rarely.” | Cited in the same context. |
| R v DPP, Ex p Kebilene [2000] 2 AC 326 | Absent dishonesty, mala fides or exceptional circumstances, a decision to prosecute is not amenable to review. | The Board applied this as the governing standard. |
| Wayte v United States 470 US 598 (1985) | U.S. Supreme Court description of prosecutorial decisions as “particularly ill-suited to judicial review.” | Quoted to underscore the common-law consensus. |
| R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 | Criminal courts may stay proceedings that constitute an abuse of process. | Cited to show the availability of remedies within the criminal forum. |
| Attorney-General’s Reference (No 1 of 1990) [1992] QB 630 | The trial process can address most complaints without resort to separate proceedings. | Used to argue that issues should be handled in the criminal court. |
| Director of Public Prosecutions v Humphrys [1977] AC 1 | Maintains separation between prosecutorial and judicial functions. | Supported reluctance to blur roles via judicial review. |
| Imperial Tobacco Ltd v Attorney-General [1981] AC 718 | Similar principle regarding separation of powers. | Referenced in the same discussion. |
| R v Power [1994] 1 SCR 601 | Canadian authority on the distinct roles of prosecutor and court. | Reinforced the conceptual separation. |
| R v Secretary of State, Ex p Chinoy (1991) 4 Admin LR 457 | Court will set aside leave only if it “plainly should not have been granted.” | Provided the standard the Court of Appeal applied in reversing Judge Jones. |
| R v Secretary of State, Ex p Sholola [1992] Imm AR 135 | Affirms the “knock-out blow” test for revoking leave. | Cited in interpreting Chinoy. |
| Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223 | Wednesbury unreasonableness. | Referred to when discussing potential grounds for review. |
| Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 | Judicial duty to give reasons. | Used to criticise Judge Jones for not identifying persuasive evidence. |
| R v Grays Justices, Ex p Low [1990] 1 QB 54; Hui-Ching v The Queen [1992] 1 AC 34; Attorney-General of The State v Phillip [1995] 1 AC 396 | Illustrate the criminal court’s power to stay proceedings where necessary. | Cited by the concurring members of the Board to underline available remedies within the criminal trial. |
Court's Reasoning and Analysis
The Board held that judicial review of a decision to prosecute is a “highly exceptional” remedy and emphasised five policy reasons for reluctance: the breadth of prosecutorial discretion, multi-factorial decision-making, delay to any trial, availability of safeguards within criminal proceedings, and the need to avoid blurring executive and judicial roles.
Assessing Judge Jones’ grant of leave, the Board found three errors:
- She treated the Appellant’s challenge as ordinary rather than “very ambitious,” overlooking how criminal-process safeguards could address his complaints.
- She assumed the Appellant’s factual assertions to be true, effectively accepting that the Chief Magistrate’s statement was false without weighing contradictory evidence.
- She offered no clear reasons identifying which pieces of evidence rendered the claim arguable, contrary to the duty to give intelligible reasons.
The Court of Appeal was entitled to conduct its own evidential analysis. It correctly noted that even if the Prime Minister had referred the complaint, there was no evidence that the Deputy Director’s judgment was compromised: she had sworn to her independence and had no communication with political actors. The Board agreed that speculative hypotheses of bad faith cannot justify restraining a public official.
Concurring members of the Board further observed that any allegation of political interference could be raised before the criminal court, either as an abuse-of-process application or during trial, thereby providing a single, comprehensive forum for all issues.
Holding and Implications
APPEAL DISMISSED.
The Board affirmed the Court of Appeal’s decision, which had set aside leave for judicial review and discharged all injunctions. As a result, any proposed prosecution of the Appellant may now proceed, subject to objections he may raise in the criminal court (including an application to stay for abuse of process). The judgment emphasises that granting judicial review of prosecutorial decisions remains an extraordinary measure and reinforces the principle that alleged political interference can, and ordinarily should, be examined within the criminal proceedings themselves. No new precedent was created; rather, existing doctrines on the exceptional nature of such judicial review were reaffirmed.
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