AG wants law amended to give DPP powers to re-arrest, retry persons discharged by Magistrate

Jun 19, 2022 News

Kaieteur News – Attorney General and Minister of Legal Affairs, Anil Nandlall is proffering a legislative amendment that would empower the Director of Public Prosecutions (DPP) to apply to the High Court for a person to be arrested and committed to stand trial in the certain circumstances where a Magistrate discharges an accused person.

Attorney General and Minister of Legal Affairs, Anil Nandlall

The amendments being brought by Nandlall, according to its Explanatory Memorandum, seeks to remove the “repugnance” of a section of the Criminal law (Procedure) Act and the Constitution of Guyana, as was highlighted by the Caribbean Court of Justice during its determination of a case earlier this year between the DPP and Marcus Bisram.
According to the Explanatory Memorandum of the Bill, with the amendment, the DPP, “if aggrieved by the decision of a Magistrate at the end of a preliminary inquiry to discharge an accused person, may now make an ex parte application to a Judge of the High Court for a warrant to arrest and commit the discharged person for trial.”
It was noted that “the Judge may only grant that application if he is of the view, from the evidence as was placed before the Magistrate who discharged the accused person, that such a course of action is required.”
Nandlall in announcing the proposed amendments drew reference to the fact that on Wednesday last, the CCJ delivered its decision on the Bisram matter where the murder accused, was discharged by the Magistrate who heard the evidence at the Preliminary Inquiry (PI) into his murder charge.

DPP Shalimar Ali-Hack, SC

The DPP subsequently directed the Magistrate to reopen the PI and later to commit Bisram for trial, which the Magistrate did but Bisram contended that the directives were unlawful and that section 72 of the Criminal Law (Procedure) Act, “which empowers the DPP to so direct, is incompatible with the Constitution of the Co-operative Republic of Guyana.”
As a result, he approached the CCJ, which held that “a law that renders the Magistrate’s professional decision-making subject to the dictates of another official cuts straight through article 122A and must be declared void to the extent of its inconsistency with that article.”
122A (1) provides:
“122A (1) All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control.”
The Court had also suggested ways in which the inconsistencies with the Constitution may be removed without leaving a substantial gap in the criminal procedure including the National Assembly removing the inconsistencies.

Marcus Bisram

As such, Nandlall has since indicated that with due regard to the doctrine of separation of powers, the Government of Guyana intends to table a Bill in the National Assembly seeking to amend Section 72 of the Act in the manner and form recommended by the CCJ in (b) above.
It was noted too that pursuant of the Government’s policy of consulting with important stakeholders on matters of national importance, the Attorney General has since solicited the comments of the DPP, Shalimar Ali-Hack, SC, Senior Police Legal Advisor, Sonia Joseph; President of the Bar Association of Guyana, Pauline Chase; and President of the Berbice Bar Association, Horatio Edmonson.
Bisram was accused of the 2016 brutal slaying of 26-year-old Berbice carpenter, Faiyaz Narinedatt.