The DPP had no other option

May 26, 2022 Features / Columnists, Peeping Tom

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Kaieteur News – It would amount to a dereliction of duty and a miscarriage of justice for the Office of the Director of Public Prosecutions to permit a charge to proceed when that charge has no basis in fact and/or law.
A group of persons has joined ranks in criticising the decision of the DPP to withdraw private charges, which were filed against a lawyer. The charges were that he excited hostility and ill-will, against a security guard, on the grounds of race, and that he willfully spat on the alleged victim.
In justifying the DPP’s decision, the Office of the DPP had indicated that there were inconsistencies with the alleged victim’s statement on the spitting issue. On the charge of exciting racial hostility and ill-will, the DPP rightly pointed out that the elements of the charge could not be established.
This column had previously dealt with the charge of exciting racial hostility and ill-will. A reading of the relevant law would leave little doubt that this charge relates to acts, which take place in a public place to which, at the time of the incident, the public had access or are allowed access. A reading of the law would also suggest that for the alleged offending words to be illegal, it would have had to have the possibility of causing others to show ill-will or hostility to the victim. In effect, an offence of exciting racial hostility and ill-will occurs when it can be established that words were used in a public place or were transmitted by electronic means, and would arouse others to act in a certain way towards the alleged victim.
The alleged racial abuse was said to have occurred at a private residence which in the circumstances alleged, does not constitute a public place within the meaning of the Racial Hostility Act. Also, the Office of the DPP would have to satisfy itself that these statements were not communicated to the public in a manner to have caused ill-will and hostility on the grounds of race.
Racial abuse by one person against another does not, in itself, constitute the exciting of racial hostility and ill-will. The statements or act must have the effect of or likely to result in others being hostile to or showing ill-will towards the victim.
It is an established principle in law that even though words spoken may have been insulting or abusive does not necessarily mean that they are likely to excite racial hostility or ill-will. It is also understood that it is not the words itself which make them unlawful but their potential to cause others to react in a certain way towards the victim.
Thus, it is not sufficient to merely establish that certain words were spoken in a public place or reproduced electronically. It is necessary to establish that those words would have had the effect of exciting others towards racial hostility and ill-will to the victim.
In Wall v Fairfax New Zealand Ltd [2017] NZHRRT, the tribunal referenced Professor Hushcroft in an essay entitled, ‘Defamation, Racial Disharmony, and Freedom of Expression wherein the point was made that’ : “Not all written matter or words likely to cause hostility or contempt are unlawful, only those that are threatening, abusive or insulting that may lead to hostility.”
Guyana’s Racial Hostility Act makes only unlawful those words, which are intended to excite racial hostility or ill-will.
Professor Hushcroft went on to observe that the purpose of the law is to render words unlawful when they have a negative effect on others – not those who are the subject of the words. “The provision is directed at those who may read or hear the words and subsequently form racist opinions as a result. In other words, the harm at which the legislation is directed is not the expression itself, but the presumed effect of that expression on the mind of third parties.”
“As to the requirement that the written material or words be considered “likely” to excite hostility or cause contempt, determination of this issue would seem to depend on the extent to which others are racist, or are considered capable of being influenced by racist expression.”
It is respectfully submitted that in the local case which the DPP withdrew the charges, the public is unaware of the exact words which were allegedly spoken. It is therefore inconceivable that words which third parties did not and are yet to hear or read about, cannot by any stretch of the imagination excite racial hostility and ill-will.
The DPP was within her rights to withdraw the charge. The Office of the DPP is legally bound to withdraw a charge if it is of the opinion that there is little prospect of securing a conviction, either because the elements of the case could not be proven or because the evidence would not stand up. To not withdraw in such circumstances would amount to a dereliction of duty.
None of the individuals that is contending that the DPP should not have withdrawn the charge would enjoy being at the end of private charges that are bad in law and/or unsubstantiated by the evidence. However, don’t tell that to the usual suspects!
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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