Good governance and the Cayman Islands prosecution service

| 10/05/2021 | 59 Comments

Aristophanes Duckpond writes: The recently announced departure of the current director of public prosecutions (DPP) and the imminent appointment of a new DPP both highlight the need for transformative positive change within the Office of the Director of Public Prosecution (ODPP) and creates an opportunity for such change. The struggles and apparent deficiencies within the ODPP have been highlighted by media reports for years. I am not aware of any remediation efforts in that regard apart from one external review years ago. I am aware, as a result of a bit of research over the past few days, that easily implemented remedies exist.   

At the core of those proven remedies are: 1) appropriate constraints, 2) clear standards including an obligation to consider the interests of the community and the victims of crime, 3) transparency and oversight, as well as 4. strict accountability.

Appropriate Constraints:

Most developed Commonwealth countries have implemented prescriptive standards, accountability metrics and functional democratic oversight in order to ensure transparency and accountability with respect to the use of power by those entrusted with it. For the most part, we have those protective elements built into our Constitution, Cayman Islands legislation, and the common law. However, there is one notable exception.

Our Constitution grants essentially unfettered discretionary power to one public sector employee, specifically the DPP. That power is functionally unique, not only in the context of the Cayman Islands, but also in the context of developed Commonwealth countries.  

Section 57(6) of the Cayman Islands Constitution provides: “In the exercise of the powers conferred on him or her by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.”

It is entirely appropriate that our Constitution aims to ensure that prosecutorial decisions taken by the ODPP are insulated from corrupting interference, both internal and external. However, it cannot have been intended that such insulation would obviate transparency and place the ODPP beyond any level of democratic oversight and accountability that is consistent with good governance and the rule of law. There are other appropriate constraints that ought to delineate the relationship between the people of Cayman and the ODPP.

Unlike the prosecution services in Commonwealth countries such as Australia, Canada, New Zealand and the United Kingdom, there is no formal prosecutor’s code of conduct or set of published prescriptive prosecutorial standards on which the people of Cayman can rely.

Here is an example of the type of Code of Conduct that ought to bind the ODPP: The Code for Crown Prosecutors (UK)

Unlike the judges who administer justice in Cayman Islands courts, neither the Oaths Law nor the Constitution require the DPP or any prosecutor to swear an oath or affirm that she or he will “do right to all manner of people according to the law without fear or favour, affection or ill-will”.

Obligation to consider community and the victims of crime:

There is no codified obligation for the ODPP to consider what is best for the people of Cayman. The ODPP is permitted to decide to prosecute or not on the basis of what is desirable from the perspective of the prosecutor. 

There is, at present, no statutory obligation for the ODPP to consider the impact of crimes on the victims of such crimes, no obligation to even communicate with victims of crimes, and no obligation to seek to obtain or produce victim impact statements to the courts. Here are examples of the type of victim related standards that ought to bind the ODPP:

Transparency and Oversight

There are a number of elements contributing to the current lack of transparency and effective oversight. Unlike virtually every other public servant in Cayman acting in an administrative, judicial or quasi-judicial capacity, in practice prosecutors in the ODPP are not required by any statute or code to record any reasons for any prosecutorial decisions taken, or to provide that reasoning for purposes of any form of independent quality control or professional standards monitoring. That provides a perfect environment for arbitrary decisions.

Here is an example of a Commonwealth jurisdiction’s requirement for recorded reasons for prosecutorial decisions: Public Prosecution Service of Canada: Decision to prosecute

Unlike other prosecution services in developed Commonwealth countries, our prosecution service publishes no meaningful statistics relating to the cases they handle, no statistics on the efficacy of case management, no statistics on how many people are charged with offences, no statistics on how many convictions are secured, no statistics on how many cases are dropped after charge and before trial, and no statistics on how many criminals are permitted to plead to lesser offences because of resource constraints, or in order to avoid the tedium of actually taking a criminal prosecution to trial, or for any other reason.

Here is an example of a Commonwealth jurisdiction that publishes readily accessible prosecution statistics: Prosecution and Conviction Statistics (Northern Ireland)

Equally important, there is no system of regular independent professional standards audits of the ODPP conducted by outside experts to determine whether or not the ODPP conforms to the highest standards and best practices for prosecution services. 

Accountability:

In the absence of performance data, prescriptive standards and effective audits of professional prosecutorial performance, neither Parliament nor the public has any way of telling whether either prosecutorial excellence or prosecutorial malpractice occurs once per decade, once per year, once per day, or never.

Cayman does not even have a statutory, or code of conduct based, complaints process with respect to perceived irregularities in the operation of the ODPP.

Judges may from time to time observe and comment when unwarranted and otherwise botched prosecutions are brought to trial, but I suspect that neither Parliament nor the public are aware of the extent of such problems.

There are also potential issues regarding criminal cases that ought to be prosecuted, but are not. These cases are not seen by our judiciary or anyone outside the ODPP, with the possible exception of the police. Specifically, the ODPP makes prosecute/do not prosecute decisions on the case files presented to them by the police. However, there are no publicly available records in this regard. Neither is there any auditable trail of why cases do not go forward for prosecution. The absence of both public information and independent audits inevitably fosters distrust and assumptions of bias in the prosecution process.

Public trust is also undermined by the absence of any system of regular independent professional standards audits capable of 1) exposing problems as well area areas of excellence in our prosecution service, and 2) acknowledging excellence and recommending improvements where required. 

Further, the Cayman Islands prosecution service is essentially un-auditable on a ‘value for money’ basis. There is no information published by the ODPP or any other entity that might permit our auditor general, Parliament or the public to assess whether the public gets value for money from the ODPP.

Australia is an example of a jurisdiction that has an effective formal performance audit process in relation to its prosecution service: Case Management by the Office of the Commonwealth Director of Public Prosecutions

Particularly troubling to me is the apparent absence of effective Parliamentary oversight of how our money is spent by the ODPP. With each new budget, our legislators are presented with a significant budget request detached from historical ‘value for money’ information and devoid of any meaningful performance metrics related to the requested funds. (To see an example of what appears to be ineffectual legislative scrutiny in action in relation to our ODPP, one need only watch the questioning of the DPP recorded on the CIGTV YouTube channel for 22 November 2019.)

Who is best placed to implement the required change?

As a first step, His Excellency the Governor and the Judicial and Legal Services Commission ought to establish, as a condition of appointment, that candidates for the role of DPP must commit to: 1) publishing a formal code of prosecutorial standards and performance metrics, 2) ensuring transparency, independent professional audits and accountability within the ODPP, and 3) ensuring that the victims of crime are considered in, and made aware of, all prosecutorial decisions.

As a second step, there are a number of things that whoever is appointed as the new DPP ought to do to rectify the current lack of standards, transparency, oversight and accountability. These include: 

  1. Creating, publishing and enforcing a formal code of practice for prosecutors. Ideally, the creation of this would be delegated to a completely independent outside expert familiar with the design and implementation of such codes of practice in Commonwealth jurisdictions that have the highest prosecutorial standards.
  2. Requiring all attorneys working within the ODPP to formally record the reasoning underlying all prosecutorial and administrative decisions taken. These decisions should be recorded in an appropriately designed format and database so as to provide a basis for efficient internal and external audit, and a basis for ensuring accountability.
  3. Establishing a system of biennial external professional standards audits conducted by qualified and experienced examiners from Commonwealth jurisdictions with exemplary prosecution systems. These recurrent audits should be: i) designed to assess the quality of all prosecutorial and expenditure decisions made within the ODPP, ii) tasked with making recommendations for improvements, and iii) required to assess and record the ODPP’s implementation of required improvements identified in previous audits. Each audit’s findings should be made available to our Parliament, our auditor general and the public within 90 days of completion.
  4. Establishing a system of publicly available semi-annual internal work-flow and decision-making audits and reports setting out statistical information that would allow the DPP, Parliament and the public to adequately assess the workings of the ODPP, the value for money achieved by the ODPP, and the rectification of problems identified by previous internal and external audits.

There are also things that may need to be done by our Parliament, including legislating to rectify the problems set out in the paragraphs above, if the next DPP is unwilling or unable to implement them in a very timely manner. In some Commonwealth countries this has been achieved by the passage of a ‘Director of Public Prosecutions Act’ or similarly named legislation. Such legislation ought to mandate the implementation of a code of conduct, require the prosecution service to act and decide in the interests of the community and without unfairness or bias, mandate transparency, oversight and accountability, and oblige the prosecution service to listen to and give voice on behalf of the victims of crime.

Here is an example of such legislation: Director of Public Prosecutions Act (Canada)

It is time for change.


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Category: Crime, Viewpoint

Comments (59)

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  1. Anonymous says:

    How good is the part of government that does civil litigation do with transparency and accountability these days? Once the ODPP is sorted maybe somebody should look at that as well?

  2. Anonymous says:

    It seems that very few if any people commenting here have much or any faith in the ODPP as it is currently organised and operating. It would be interesting to see if the entire population had the same level of confidence or lack there of.

  3. Anonymous says:

    Question – does anybody believe that anyone currently employed within the ODPP is competent to be interim DPP, even for a few months?

    • Anonymous says:

      I don’t. Hopefully the search for a competent person has already begun.

      • Anonymous says:

        Unfortunately the last search took months (a year?) and several rounds of recruitment and even then Cayman didn’t attract the calibre of person that is needed.

  4. Anonymous says:

    It will be interesting to see whether this government will understand the long term threat posed by a mediocre prosecution service – let alone an incompetent one.

  5. Anonymous says:

    If the intention is to restore public confidence and bring the ODPP somewhere close to the 21st century then we should look at adding a formal complaints process of the type that other Commonwealth countries have. As a first suggestion the link to the UK complaints process which includes an independent complaints inspector is here –

    https://www.cps.gov.uk/feedback-and-complaints-guidance-how-give-feedback-or-make-complaint-crown-prosecution-service

  6. Anonymous says:

    People should be aware that the purpose of the Crown Prosecution Service Inspectorate is not only to audit prosecution professionals and offices, it is also to improve public confidence in the prosecution service. Both are needed in Cayman. Anyone interested can read about the Inspectorate here –

    https://www.justiceinspectorates.gov.uk/hmcpsi/

  7. Anonymous says:

    I do not know if the Governor and the new Premier read CNS, but if they do may I suggest that both of them act now to prevent future embarrassment. The need for transparency, professional oversight and accountability in the ODPP has been obvious since its creation.

    First step for the Governor in consultation with the Premier would be to bring in expert professional standards auditors from the Crown Prosecution Service Inspectorate to do a very detailed and very broad audit of the strengths and weaknesses of the ODPP at this stage and make recommendations for improvements. At the same time Mr. Premier please request the policy and drafting people to design new legislation based on Commonwealth examples so that we have world class domestic standards to hold the ODPP accountable to. Without standards, audits and accountability the ODPP will not improve.

    If nothing is done we are simply asking for embarrassing problems in the future. The choice is yours.

  8. Anonymous says:

    Bring in Harvey Spector.

  9. Anonymous says:

    I agree with Mr. Duckpond on the need for significant change in the ODPP. That change should begin with the job description that will be advertised when someone new is recruited. The current JD does not set out what Cayman needs.

    For anyone interested, the current job description for the position of DPP can be found on the government website –

    http://www.judicialandlegalservicescommission.ky/upimages/ckeditor/JD_DPP_28%2008%2019.pdf

    The current JD does not require everything that is listed by Mr. Duckpond but it does have some of it including a requirement that the DPP was supposed to have created and implemented a Code of practice for prosecutors, ensured high professional standards within the ODPP etc.

    Going forward we need a JD to include the things listed by Mr. Duckpond and we need far better oversight of how the job of DPP is performed. External audits are a good place to start.

    • Anonymous says:

      I agree that the current job description is not fit for purpose. If we use it to hire the next DPP we will get more of the same old same old. That may be what some in the ODPP want but it is not what we need.

      BTW – the salary on the link is out of date. It is now much higher.

  10. Anonymous says:

    Seems to me that we keep hiring DPPs who may be good prosecutors, but who do not have the skill sets and experience required to bring a large prosecution organisation like the ODPP up to the high professional standard that it ought to run at.

    We need to hire someone as DPP who knows how to recruit, manage, train and audit world class prosecutors so that we can maintain a credible prosecution service and so that organisations such as the FATF might start to take us a bit more seriously.

    • Anonymous says:

      We may have to pay that person handsomely but it would be worth it.

      • Anonymous says:

        If we factor in the cost of the million dollar payouts when things are messed up as too often happens, paying people who know what they are doing is very cost effective.

    • Anonymous says:

      But, but, but … then you might not get a Jamaican ?!

    • Anonymous says:

      Correct. It’s not clear to me however if the just need a good manager. Not all Prosecutors are good managers. From all accounts the CJ is a good CJ but a terrible administrator. You really don’t have to be both. Just get a good manager.

  11. Anonymous says:

    Personally I would be happy if Mr. Moran stayed provided that he is given a big new broom and orders to do what it says in this viewpoint. He seemed like a decent person and a good prosecutor.

    • Anonymous says:

      Agreed. I really hope that he resigned due to not wanting to deal with perhaps unfounded allegations and that it doesn’t backfire. These lawyers aren’t beyond suing…

    • Anonymous says:

      But the viewpoint identifies that the DPP cannot be given orders, and Mr Moran didn’t do those things.

      • Anonymous says:

        The Viewpoint also points out that it is possible to use the employment terms of the DPP, and if necessary legislation to change that.

    • Anonymous says:

      Couldn’t agree more!

    • Rick says:

      It would take a lot of evidence to convince me that he is anything like what the rumours are saying; racist and prejudiced. I worked with the man for several years and he is as decent a person as you will ever meet. And very respectful, sensitive and fair. He must not have noticed my black skin and native tone.

  12. Anonymous says:

    The UK has the Crown Prosecution Service Inspectorate to do professional standards audits of prosecutors. We should ask that they send us people for the next few years to help set up a system for ongoing internal professional standards audits of the ODPP. The ODPP does not have the skills to run internal professional standards audits and I am not sure that they have the inclination either.

  13. Anonymous says:

    All seems very sensible. Probably explains why it has not been done up to now.

    Time for the Governor to step up AND time for our new government to step up and sort this out.

    • Anonymous says:

      4.14pm Agreed except the part about the new govt sorting things out. You do know that 50% probably can’t spell Prosecution.

      • Anonymous says:

        Hopefully this would fall somewhere close to Wayne’s portfolio as he no doubt understands the issues and would like to improve things. Otherwise I doubt anything will be improved.

  14. Anonymous says:

    Good points.

    Why is there no complaints process for the DPP?

    There are clear Constitutional complaints processes for judges who are also appointed by the Governor so it seems inappropriate that there is not some similar process for the DPP and attorneys working under the DPP.

  15. Anonymous says:

    If you look on the ODPP website you will find a few statistics – most recent is from 2014 in relation to Grand Court cases. Says a lot.

  16. Anonymous says:

    Like the idea of recording attorney performance data and any new DPP interested in doing the job properly would want that too. Without it it will be impossible to get rid of incompetence.

  17. JTB says:

    It’s ironic that the man who has just been removed was the one most likely to have implemented any of this …

    The biggest problem facing the ODPP right now is chronic underfunding. There are multiple cases being struck out because the prosecution simply don’t have the resources to run them properly – especially as regards disclosure.

    • Anonymous says:

      The ODPP gets a large budget allocation from Parliament, essentially everything that is asked for.

      Under-competence, under-skilled, under-funding and under-many-other things should be subjected to a serious external review ASAP with appropriate fixes also applied ASAP.

  18. Anonymous says:

    If each attorney in the ODOPP can be required to keep records that show their individual performance that would go a long way to providing what is required to get rid of the incompetent ones.

    • Anonymous says:

      Lawyers in the civil service do not believe in performance appraisals. They fight against it tooth and nail and have done for the last 20 years at least. “We don’t need it”.

      • Rick says:

        They behave like a law unto themselves. Many of them are slack and lazy. I bet that was what Patrick ran up against? Bad legacy culture clashing with change.

      • Anonymous says:

        If that is the case then we definitely do not need them. Fire them and bring in responsible professionals.

  19. Anonymous says:

    One thing that should be added to the list is to fix the ODPP’s failure to seek deportation orders. As far as I can tell from CNS and other local media for some reason prosecution attorneys are not routinely requesting deportation orders as part of the sentencing of all convicted foreign criminals. That failure has too often permitted foreign criminals and their criminal activities to remain among us. That must end.

  20. Anonymous says:

    Excellent.

    However, I suspect that those who remain after Mr. Moran leaves will oppose all of the changes recommended in this Viewpoint.

  21. Anonymous says:

    All I know is that from an outsider standpoint the ODPP is a hot incompetent mess. Can’t get convictions to save their lives. Charges are often dropped because of mistakes made by the Crown. 1) ODPP should review hiring practices to ensure those who are hired are qualified and experienced and 2) Mr Moran as head of the ODPP had improved nothing.

    • Anonymous says:

      I heard most of them are on work permits too. Anything to stay in Cayman, sadly.

    • anon says:

      !.00pm A lot of the problems lie with the police, the DPP cannot prosecute if the police have lost evidence, do not show up for trial, or fail to take the basic steps in criminal investigations.

      • Anonymous says:

        If that is the case then appropriate audit records should be kept for every single instance. As a next step every six months audit results of police and prosecution screwups should be published for the public to see. That is the only way our criminal justice system will improve.

  22. Anonymous says:

    Mr. Governor you have the right timing to seize a thorough review of the DPP. Those that are in there for too long needs to be transferred to another department. They have established themselves and most likely are the culprits.

    Racism card is hogwash, as the party accused of it has a partner of color. Absolute nonsense.

  23. 10th Generation Caymanian says:

    Cayman does not need any more Canadian overlords with their liberal views plus their own cliques running the Judiciary, DPP’s office or legal affairs. The have taken over construction, accounting and everything else. They show no respect for Caymanians and the culture. Beware of wolves in sheep clothing.

  24. Anonymous says:

    But will we find out the true full reason he resigned??
    Would love to be a fly on the wall during the exit interview (that probably won’t happen).

    • Anonymous says:

      We should be told if not the governor should use this time to make changes with the help from Mr. Moran as we need to clean house too many Jamaicans,and Trinidadians in my opinion this alone is concerning, I hope his job is not past on to a Jamaican but a British person am not a expat-nor do I condom any hate against no nationalities DPP needs urgent addressing by Independent committee, No Jamaicans to investigated. sad.

  25. Caymanians we need to stand up against this Bull$#@% says:

    We all know what this is and those behind this? We know this because it has been done before. Its so sad we have a governor with no balls whatsoever! Jamaicans should never have the type of control over our law enforcement and judicial Branches or any other nationality as a matter fact. I say this We could not do this in there countries. This is the height of disrespect towards Cayman. Give Mr Moran back his job Mr Roper! Caymanians we need to mobilize against this now because if they are allowed to get away with this they will continue with this onslaught against Cayman until we become Mr Moran.

    • Anonymous says:

      Mr Moran was fine until he prosecuted Mac.

    • Anonymous says:

      The reason that Jamaican cops are there is because Caymanians seems ungovernable. I saw a video on Cayman Marl Road where a woman recorded herself and goaded a man until he broke a window in a gym-all people seemed to know each other. I just kept thinking how insane the whole situation was. The situation did not de-escalate until some Jamaican cops showed up. My opinion is that both people in that video should have been charged. If this is the stuff that happens every day over there, Jamaican cops can handle it and you need basic social skills to be taught in schools over there.

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