ODPP internal fallout

Director of Public Prosecutions (DPP) Paula Llewellyn is facing legal action from one of her own senior prosecutors following her decision to remove the government attorney from active legal duties for six months. The development comes on the heels of a Court of Appeal ruling that upheld the prosecutor’s suspension from practising law.

Assistant Director of Public Prosecutions Sophia Thomas has filed a judicial review claim in the Supreme Court, arguing that Llewellyn acted outside her constitutional authority. Thomas contends that the DPP’s action amounts to an illegal suspension, a power she says is reserved for the governor general, acting on the advice of the Public Service Commission.

The DPP, who learned of the legal action when contacted by The Sunday Gleaner for comment, described the situation as “very sad and unfortunate”. She denied suspending Thomas, clarifying that she does not possess that power.

“I have not suspended her; she comes to work every day because she is on the establishment. I have not suspended her. What I have done is withdraw her agency – her ability to represent me in legal matters for six months. That’s what I notified her about,” Llewellyn explained, noting that Section 94(4) of the Constitution grants her the power to appoint agents to act on her behalf.

“As an officer of the court, I am obliged to obey the court’s orders. Therefore, given the judgment, … I have, for the next six months, withdrawn her ability to represent me,” Llewellyn reiterated.

DISCIPLINARY CASE

Thomas’ removal follows a March ruling by the Court of Appeal, which upheld a six-month suspension imposed by the General Legal Council (GLC) in 2022. The disciplinary action stemmed from a 2017 fraud case in which Thomas tendered a witness statement that turned out not to be the original document. The witness later admitted it was signed the day before trial at the instruction of another Crown witness.

Thomas, who has worked at the Office of the Director of Public Prosecutions (ODPP) since 2012, admitted to asking the Crown witness to reprint the statement but claimed she did not realise it was not a proper copy. She maintained there was no intent to mislead the court and that the changes to the statement were only editorial and not authorised by her.

Despite this, DPP Llewellyn intervened during the trial and offered no evidence against the accused, former NCB branch manager Lowell Spence – effectively ending the case.

However, in her affidavit, Thomas said she was shocked when the DPP attended the trial and offered no evidence, as there was no basis in law, in her estimation, for her to do so.

“The applicant felt it was a travesty of justice of which the DPP had done, and it was only done to make the applicant look bad,” the affidavit said.

The GLC found Thomas guilty of professional misconduct in September 2022.

She was reassigned to administrative duties from November 2022 to August 2023. She questioned whether this period should count as time served under her suspension but was told by the DPP that it did not.

Following last month’s Court of Appeal ruling, Llewellyn, in a meeting on March 31 – and later via letter on the same day – moved to officially pull Thomas from active prosecutorial duties for the duration of her suspension – a decision Thomas is now challenging in court.

Thomas stated that Llewellyn insisted during the meeting that she was not suspending her, but was merely acting on the Court of Appeal’s decision.

In a court claim filed by attorney Hugh Wildman on April 7, Thomas is seeking several declarations, including that the nation’s chief prosecutor has no constitutional authority to suspend her from her job; the withdrawal of her prosecutorial duties is null, void, irrational, and unlawful; only the governor general, with advice from the Public Service Commission, can initiate disciplinary actions against her; and that the DPP’s actions breached her right to due process.

Thomas is also seeking an order of certiorari to quash Llewellyn’s decision.

GLC’S AUTHORITY QUESTIONED

Meanwhile, Thomas also contends that she is a public officer, not merely an attorney-at-law practising under the GLC’s authority. She highlighted that her employment by the Government as an attorney is not dependent on holding a practising certificate from the GLC, even though she was called to the Bar.

“The applicant’s entitlement to practise is based on Section 7 of the Legal Profession Act, which makes the applicant an ex officio member of the Bar, who is not subject to the disciplinary body of the GLC,” her affidavit stated.

She also emphasised that she was never in possession of a practising certificate issued by the GLC, which would have granted her the right to practise as an attorney, and therefore, she is not under the GLC’s jurisdiction.

“The applicant is subject to the public rules and provisions made by the Constitution, as the applicant is deemed to be a public officer under Section 125 of the Constitution,” the affidavit further stated.

In the meantime, the DPP, who had just returned from an overseas engagement, told The Sunday Gleaner that she was uncertain whether she had been served with the claim. She indicated that she would refer the matter to the attorney general, who would represent her once she is served.

“I am duty-bound to uphold the integrity of the system unless there is another court ruling that obliges me to act otherwise,” Llewellyn said.

Given the “novelty of the situation”, Llewellyn added, she had sought guidance from the justice ministry’s permanent secretary, the solicitor general, and the chief personnel officer at the Services Commission on how to proceed following the appellate court’s ruling.

“So I’m awaiting their guidance and advice,” Llewellyn concluded.

tanesha.mundle@gleanerjm.com