The Supreme Court has overturned a decision by a magistrate to strike out a sex offence case over a legal technicality.

Magistrate Craig Attridge discharged the case against the defendant, who cannot be identified for legal reasons, because the sheet which approved the charges was not signed by Cindy Clarke, the Director of Public Prosecutions.

However, Puisne Judge Alan Richards set aside the decision on the basis that the Deputy Director of Public Prosecutions was acting on her behalf.

According to a Supreme Court judgment dated April 24, the 34-year-old defendant was charged in Magistrates’ Court in 2023 with intruding on the privacy of someone under the age of 18.

In January, Mr Attridge ruled that the court had no choice but to discharge the defendant because the documents had been signed by Carrington Mahoney, the Deputy Director of Public Prosecutions, for the DPP, rather than the DPP herself.

Mr Attridge said that there was no evidence before the court that Ms Clarke had consented to the proceedings or that Mr Mahoney was acting director when he signed the document.

As such, he ruled that the proceedings were invalid.

The Department of Public Prosecutions, however, launched an appeal in the Supreme Court against the decision.

Adley Duncan, for the Crown, said the question at the heart of the appeal was if the DPP could delegate consent to start proceedings.

On that point, Mr Justice Richards said the Bermuda Constitution did not appear to support the Crown’s interpretation.

“The constitution does not give the DPP the power to consent to prosecutions brought by others, but it does give her the power to take over and discontinue any prosecution of which she disapproves,” he wrote.

“That power is conferred upon her alone. I am unable to agree with the appellant, therefore, that when a statute says that proceedings may only be brought with the consent of the DPP that a subordinate of the DPP may give that consent.”

However, the judge continued that the proper question was not if the power to consent to proceedings was delegable — but if, when it was clear that the DPP instituted proceedings, she must also separately signify that consent.

“It my judgment, it would be absurd to require her to do so,” Mr Justice Richards said.

Mr Justice Richards said that the second question was whether, when it was clear that a subordinate of the DPP had started proceedings, the DPP must again separately signify consent.

He said that subordinates of the DPP do not need more than her “general instructions” to act validly in her stead.

“If the DPP does not need separately to signify her consent to proceedings which she personally institutes, it seems to me that those who are entitled to do so on her behalf do not need her to do so either,” he added.

He said that while Mr Mahoney did not have delegated powers to consent to a prosecution, he was entitled to exercise the DPP’s powers to institute proceedings and that her consent to them could and should have been inferred.

“The magistrate also had before him the court record, which indicated that on the numerous intervening occasions that the matter was heard in court, a subordinate of the DPP appeared to prosecute the matter and on one occasion, she did so herself,” Mr Justice Richards said.

“I therefore conclude that, if the magistrate has asked himself whether the proceedings had been instituted by or on behalf of the DPP, he would have been bound to conclude that they had.”

In the circumstances, Mr Justice Richards ordered the matter be sent back to the magistrate with a direction to proceed with the case.

• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers