FEBRUARY 22 — The decision of Attorney General Tan Sri Tommy Thomas to discontinue prosecution proceedings against the 12 persons for alleged links to the Liberation Tigers of Tamil Eelam has been lauded by many.
Bukit Gelugor MP Ramkarpal Singh said the decision was a “sound one”. (c)
According to Thomas himself, “there is no realistic prospect of conviction for any of the 12 accused on any of the 34 charges.”
Accordingly, in the exercise of his discretion pursuant to Article 145(3) of the Federal Constitution, he has decided to discontinue proceedings against them with immediate effect.
But with great respect, his reasons for the decision are rather curious and leave questions that beg to be answered.
In the United Kingdom (UK), whether there is a realistic prospect of a conviction is indeed a guiding principle for prosecution of a criminal offence. “Is there sufficient evidence to provide a realistic prospect of conviction?” is the first question to be considered by crown prosecutors before deciding that a person should be charged with a criminal offence.
“A realistic prospect of conviction” means that an objective, impartial and reasonable judge hearing a case and acting in accordance with the law, is more likely than not to convict the accused of the charge alleged.
If the answer is yes, then the next question is: “Is a prosecution required in the public interest?”
While it has never been the rule that a prosecution will automatically take place once the first question is answered affirmatively, crown prosecutors adopt the position that a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those in favour.
The two questions form what is called the “Full Code Test” which is contained in The Code for Crown Prosecutors which in turn sets out the general principles to be applied by prosecutors when making decisions about whether or not a case should be prosecuted. (https://www.cps.gov.uk/publication/code-crown-prosecutors)
In short, the Full Code Test requires a consideration of both the sufficiency of the evidence and the public interest.
Similar considerations are found in Australia as contained in the Prosecution Policy of the Commonwealth. This sets out the guidelines to be followed in the making of decisions relating to the prosecution of offences. The Policy can be seen here.
According to the Policy, the initial consideration in the exercise of the discretion to prosecute or not prosecute is whether the evidence is sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the alleged offender.
When deciding whether the evidence is sufficient to justify the institution or continuation of a prosecution, the existence of a bare prima facie case is not sufficient to justify the prosecution. Once it is established that there is a prima facie case it is then necessary to give consideration to the prospects of conviction.
A prosecution should not proceed if there is “no reasonable prospect” of a conviction being secured.
Whether there is a reasonable prospect of a conviction requires an evaluation of evidence which must have regards to a list of matters set out in the Policy. The list is not exhaustive but one matter is certain: the prosecutor must consider whether the public interest requires a prosecution to be pursued.
According to the Policy, “while many public interest factors militate against a decision to proceed with a prosecution, there are public interest factors which operate in favour of proceeding with a prosecution (for example, the seriousness of the offence, the need for deterrence). In this regard, generally speaking the more serious the offence the less likely it will be that the public interest will not require that a prosecution be pursued.”
In short, both the UK and Australian prosecution guidelines require a consideration of both the sufficiency of the evidence and the public interest.
Thomas made no reference to the UK prosecution guidelines but no prizes for guessing where his “no realistic prospect of a conviction” might have come from.
He did make a short reference to the Australian Policy. This begs the question: did Thomas consider whether the public interest requires a prosecution to be pursued? As stated above, there are public interest factors which operate in favour of proceeding with a prosecution such as the seriousness of the offence.
Now, it is also significant that both the UK and Australian prosecution guidelines treat discontinuance of a prosecution separately from institution of prosecution. The former is considered as part of a review or reassessment of the decision to prosecute.
The UK’s Code states that “review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. This includes … the extent that charges should be altered or discontinued or the prosecution should not proceed.”
The Australian Policy refers to a reassessment of the prosecution case. It states that events may have occurred that make it no longer appropriate for the prosecution to proceed. Under the law, as is the case in Malaysia and the UK, Australian prosecutors may decline to proceed further in the prosecution of a person after a charge has been laid against him.
But the decision to discontinue follows a reassessment of the prosecution case in view of subsequent events.
Thomas’ reasons for the decision to discontinue proceedings against the 12 men, however, appear to be based on whether to prosecute or not prosecute - the very first stage in the decision to prosecute.
This begs the next question: why were the 12 men charged in the first place? The sufficiency of the evidence to provide for a “realistic prospect of a conviction” is only alluded and raised now.
Why wasn’t it considered before the charges were laid against the 12 men? The Malaysian Bar has rightly asked Thomas to explain the initial decision to charge the 12 men.
If there is no realistic prospect of a conviction now, there shouldn’t have been one before the men were charged.
There are questions that beg to be answered.
** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
