Red Thread, through its legal counsel, is still pressing the Director of Public Prosecutions for an explanation into the discontinuance of the rape matter brought against a government minister by a 16-year-old girl in June 2023.
A release from Red Thread yesterday disclosed that on August 22, 2023, Andrew Pilgrim SC, of Pilgrim & Asso-ciates (Barbados), acting on behalf of the NGO, sent a letter to Director of Public Prosecutions, Shalimar Ali-Hack SC.
The missive noted that much of what was reported publicly contradicts the letter and spirit of the procedural reforms instituted by the Sexual Offences Act, the 2018 Code for Prosecutors and international best practice. As such it sought clarification from the DPP regarding the decision-making process in this case, specifically asking for disclosure of her reasons for not proceeding with the complaint.
Further, the letter underlined that considering the high incidence of rape and sexual assault in Guyana, it was of “great concern” that the public nature of this complaint, the powerful political status of the suspect, the discontinuance of the matter at an early stage, and the “haste” with which this investigation was ended, will reinforce the perception of impunity, and inevitably discourage other victims of sexual violence from coming forward.
According to the release, on August 24, 2023, Red Thread received a brief response to its letter from the DPP, indicating that no legal authority was identified as authorising Pilgrim, acting on behalf of Red Thread, to seek disclosure and reasons for a decision of the DPP. It went on to state that “Notwithstanding that public disclosure is generally prohibited to protect the complainant in sexual offence cases,” the DPP sought to reassure Red Thread (and presumably the public) that her decision “was exercised lawfully by reviewing all the evidence and applying legal principles, the laws of Guyana and the Code of Prosecutors…that no charge ought to be instituted unless there is sufficient evidence to provide a realistic prospect of conviction, consideration of the evidence raised by the defence and how it is likely to affect the prospects of conviction.”
On October 17, 2023, Pilgrim penned a response on behalf of Red Thread to Ali-Hack, contending that the DPP’s response of August 24 was “devoid of transparency”, concerning the speed with which prosecution against Dharamlall was discontinued, and the continued refusal to disclose the decision-making process.
As to the question of the authority upon which Red Thread and Pilgrim are authorised to seek disclosure and reasons for a decision, it was also pointed out that the office of the DPP is a public one and as such does not wield unrestricted power. The letter also noted that in the exercise of the DPP’s functions and discretion, it is accountable to both the public and subject to review by the Courts, and there is case law that decisively makes this clear. Thus, as a civil society organisation whose members serve the general interest of the public, Red Thread has the right to seek the accountability of public officials for the performance of their constitutional duties.
“Our letter of 17th October also noted the inadequacy of the DPP’s justification for discontinuance in prosecuting the matter against Mr. Dharamlall, referring to case law (Re Henry Greene, 12/2012, decision dd 29 March 2012) that emphasised that “it behooves prosecutorial authorities, such as the D.P.P to perform their function in such decision-making carefully and consistently with rationality and legality (and with procedural fairness).
Critical obligations
The letter also addressed the fact that the failure to prosecute without adequate justification stands in direct contravention of the prosecutorial code, a number of statutory and constitutional principles, as well as numerous international best practices. These include a number of critical obligations/duties in the administration of justice where a child alleges sexual violence, including: the positive obligation to investigate and prosecute cases of sexual abuse with due diligence; a duty to protect the personal integrity of the complainant during proceedings concerning sexual abuse; and a duty to ensure that the best interest of the child, is always the prime consideration.
Such duties, it explained, arise locally from justiciable Title 1 Rights under the Guyana Constitution; and from human rights treaties incorporated into the Guyana Constitution (Convention on the Elimination of All Forms of Discrimina-tion against Women, CEDAW), the Convention on the Rights of the Child (CRC), and the Inter-American Conven-tion on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem do Para).
“Crucially, while we do not dispute that public disclosure is limited in sexual offence cases, we pointed out that such confidentiality is exercised in order to protect the identity and reputation of the victim. It cannot reasonably be said that the confidentiality extends to the processes and accountability of the DPP. Neither the nature of the state’s obligation nor the complainant’s right to privacy precludes asking if the DPP exercised due diligence in determining not to prosecute.”
The release said that Pilgrim repeated the request for disclosure from the DPP, this time specifying eight questions: 1) whether your request for further investigations in this matter involved an instruction for the victim to be questioned further, and if so, to what end? 2) If no further questioning of the victim was required, kindly elaborate on the nature of the further investigation that was required by you at that stage. 3) Why did you not proceed with the complaint? 4) Would you be amenable to reconsider your decision not to prosecute? If not, why not? 5) Prior to the investigation, whether an appropriate risk assessment was made, given the position of power of the alleged perpetrator? 6) Were adequate measures of protection taken to ensure that you did not face pressure to discontinue prosecution? 7) On learning of the recantation, did you seek a statement from the complainant explaining her reasons for recanting and whether she did so under any duress, coercion or force? 8) Did you consider pursuing prosecution for any other possible charges that may arise on the evidence, including sexual grooming?
Red Thread disclosed that its decision to make this letter public was based on the lack of response from DPP.
“It is now five months since we dispatched that letter. As of March 7, 2024, there has been no response. We have taken the decision to issue this press release, because (1) this is a public matter, not a Red Thread matter and (2) it may prompt the DPP to respond to our query without having to submit a request for official documents pursuant to s. 16 of the Access to Information Act 2011,” the release added.
