Judge dismisses challenge to DPP's decision to continue firearms charges against 2 minors

Justice Kevin Ramcharan -

A HIGH COURT JUDGE has dismissed a judicial review claim challenging the decision of the Director of Public Prosecutions (DPP) to continue firearms charges against two men who were minors at the time of the alleged offence.

The matter arose from an incident on August 6, 2015, when the claimants – then aged 13 and 11 – were at a property in which an incident occurred resulting in the death of another minor. The claimants, who are half-brothers, were subsequently charged along with an adult co-accused with manslaughter and possession of a firearm.

The manslaughter charges against the claimants were later dismissed by a Master in the Children’s Court. However, the DPP indicated an intention to proceed with the firearms charges, which prompted the judicial review proceedings.

The adult co-accused was shot in 2023, and the DPP subsequently discontinued the proceedings against him due to his medical condition.

In their challenge, the claimants argued that the continued prosecution was unlawful, unreasonable, and an abuse of power. They contended that there was insufficient evidence to rebut the presumption of doli incapax – the legal presumption that children below a certain age are incapable of criminal intent – and that it was no longer in the public interest to prosecute, given their ages at the time, the circumstances of possession, the likely nominal sentences, and the delay in bringing the matter to trial.

They relied heavily on a 2024 Privy Council’s 2024 ruling on the DPP’s prosecutorial discretion and judicial review challenges, arguing that the DPP’s decision could not satisfy the evidential and public interest stages of the prosecutorial code.

In defence of the claim, the DPP countered that the claimants had an effective alternative remedy available to them of advancing an application before the presiding magistrate to stay the proceedings. The DPP also relied on established case law cautioning judicial review courts against assessing the sufficiency of evidence or encroaching on prosecutorial discretion.

In deciding the case, Justice Kevin Ramcharan agreed that the appropriate forum to assess whether the presumption of doli incapax (that children of certain ages are presumed in law to be incapable of criminal intent) had been rebutted was the magistrates’ court, where the evidence would properly be tested. He noted that while another court had previously dismissed related manslaughter charges, it was for the court seized of the firearms matter to make its own determination.

Although the judge criticised the DPP for repeated delays in filing evidence and applications for extensions of time – describing the lack of communication as “completely unacceptable” – he held that the DPP was under no legal obligation to provide reasons or evidence justifying the continuation of a prosecution.

Ramcharan found that it could not conclude that the DPP’s decision was unreasonable or unfair. He also noted that considerations such as the prevalence of illegal firearms could legitimately justify continuing the case. Issues of delay and fairness, the judge added, could also be raised before the presiding magistrate.

In dismissing the claim, Justice Ramcharan made no order as to costs.

John Heath, SC, Lee Merry, SC, Joash Huggins and Larry Boyer represented the half-brothers while Stephan Jaikaran, Che Richards, Adana Hosang and Dianna Singh represented the DPP.