No bias’ from Mussenden in misconduct case
The Court of Appeal has found that the Director of the Department of Public Prosecutions correctly handled allegations of gross misconduct by one of his deputies.
In a decision handed down on Friday, the court found that Larry Mussenden, the DPP, did not have an apparent bias in the case of allegations made against Cindy Clarke, the Deputy DPP.
Sir Maurice Kay, of the Court of Appeal, said: “It is important to keep in mind where it is now said that the director was not motivated by bad faith or acted pursuant to ulterior motives.
“He was the person with responsibility of maintaining the integrity of his department. He had an important constitutional role.
“It seems to me that his interest is more properly described as institutional or professional, rather than personal.”
The Court of Appeal also ruled that under the statutory framework, the DPP did not have the power to pass on the responsibility to another party, but that the DPP served as a “filter” instead of a “final adjudicator”.
Ms Clarke, who denies any misconduct, alleged in a lawsuit filed in the Supreme Court in April that Mr Mussenden acted with “actual, presumed or apparent bias” and “in breach of natural justice” after making accusations against her.
She said that he investigated the complaint against her himself, but should not have because he was the complainant.
Assistant Justice John Riihiluoma ruled in Ms Clarke’s favour last month, finding that there was an “appearance of bias” on Mr Mussenden’s part.
The DPP challenged that ruling last week, arguing that Mr Justice Riihiluoma had applied the wrong standard, that Mr Mussenden had acted in a professional capacity rather than a personal one.
They also argued the element of “necessity” — that under the existing framework for complaints, the head of the department was specifically required to fulfil certain tasks in relation to the complaint and could not delegate it.
Ben Adamson, for Mr Mussenden, said the DPP was the director of the department, and as such had to write the formal complaint, meet with the subject of the complaint to get both sides of the dispute, and then decide if the complaint should be dismissed or put before the Head of the Civil Service.
The details of the complaints of gross misconduct have not been revealed, with the Court of Appeals focused on issues of procedure and not the details of the complaint.
But Sir Maurice mentioned that the complaint involved nolle prosequi — sometimes called “nollies” — which are formal notices that prosecutions are being abandoned.
The Court of Appeal also explained its decision to lift a ruling which would have kept the names of the parties anonymous.
Sir Maurice said: “Open justice, subject to exceptional circumstances, is a vital check on the way [the courts] exercise their judgment and power.”
He said the island’s small size did not change the need for open justice and Mr Mussenden and Ms Clarke did not deserve anonymity solely because of their posts in the Department of Public Prosecutions.
The judge added: “It is suggested that public confidence in the justice system would be undermined if the public were to learn of this dispute.
“I reject this submission. It essentially seeks an indulgence for legal practitioners and judges which is not extended to other professions or spheres of operation. This cannot be justified.
“The director and the deputy are both senior wielders of state power, and if a dispute about its exercise is litigated between them, the public have a right to know.”
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