Presentation on theme: "1 The Role of the Prosecutor in the Preparation of Corruption Matters To provide guidance to the investigators To make a determination as to charges."— Presentation transcript:
The Role of the Prosecutor in the Preparation of Corruption Matters To provide guidance to the investigators To make a determination as to charges to be preferred To prosecute matters (for breach of the Corruption Prevention Act, breach of the Contractor General Act, Parliament (Integrity of Members) Act. To seek forfeiture of property - the proceeds of criminal activity derived from act of corruption (Proceeds of Crime Act (POCA) – civil and criminal forfeiture) 2
The Role of the Prosecutor in the Preparation of Corruption Matters Providing Governmental Expert Reports in the follow-up and review mechanism on Jamaica’s compliance and/or adoption of the framework existing as a state party to the United Nations Convention Against Corruption (UNCAC) and other international obligations/conventions e.g.. Inter-American Convention Against Corruption. Jamaica has signed and ratified UNCAC 3
INTERNATIONAL COOPERATION UNCAC CHAPTER IV International cooperation Countries agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders...
Scope of Convention UNCAC The Convention obliges states parties to “enhance their cooperation at various levels with developing countries, with a view to strengthening the capacity of the latter to prevent and combat corruption”. Conveniently, the UNCAC itself provides an internationally-agreed framework for organizing such efforts. A framework, however, should not be confused with a blueprint. There is no single model of reform; instead, leadership in each country must determine priorities and the appropriate sequencing of steps towards implementation-Source –UNCAC website. 19.8.09 6
Goals as we seek to apply and implement UNCAC and UNTOC- UNCAC- United Nations Convention Against Corruption and its protocols thereto.-ratified and entered into force 4.4.08 and instrument of ratification deposited 5.3.08 UNTOC-United Nations Convention Against Transnational Organised Crime and the protocols thereto – Signed 2001 ratified 2003-Protocol Trafficking signed 2002 rat.2003.Smuggling of Migrants signed 2002 rat. 2003. Firearms protocol signed 2001 rat. 2003 Assistance/Cooperation/exchange and training and technical assistance as it relates to the implementation guidelines for countries and organisations- 7
8 The Framework Chapter II Article 5 Preventive anti corruption policies and practices Article 11 Measures relating to Judiciary and Prosecution Services Article 39 Cooperation between National Authorities and the Private Sector
The Framework Chapter IV International Cooperation Article 43 International Cooperation Article 44 Extradition Article 47 Transfer of Criminal Proceedings Article 48 Law Enforcement Cooperation 9`
10 UNCAC ARTICLES 48-50. Article 48 Law enforcement cooperation 1. States Parties shall cooperate closely with one another, consistent with Their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offences covered by this Convention. States Parties shall, in particular, take effective measures: (a) To enhance and, where necessary, to establish channels of communication between their competent authorities, agencies and services in order to facilitate the secure and rapid exchange of information concerning all aspects of the offences covered by this Convention, including, if the States Parties concerned deem it appropriate, links with other criminal activities; (b) To cooperate with other States Parties in conducting inquiries with respect to offences covered by this Convention concerning: (I) The identity, whereabouts and activities of persons suspected of involvement in such offences or the location of other persons concerned; (ii) The movement of proceeds of crime or property derived from the commission of such offences; (iii) The movement of property, equipment or other instrumentalities used or intended for use in the commission of such offences; 30 (c) To provide, where appropriate, necessary items or quantities of substances for analytical or investigative purposes; (d) To exchange, where appropriate, information with other States Parties concerning specific means and methods used to commit offences covered by this Convention, including the use of false identities, forged, altered or false documents and other means of concealing activities; (e) To facilitate effective coordination between their competent authorities, agencies and services and to promote the exchange of personnel and other experts, including, subject to bilateral agreements or arrangements between the States Parties concerned, the posting of liaison officers; (f) To exchange information and coordinate administrative and other measures taken as appropriate for the purpose of early identification of the offences covered by this Convention. 2. With a view to giving effect to this Convention, States Parties shall consider entering into bilateral or multilateral agreements or arrangements on direct cooperation between their law enforcement agencies and, where such agreements or arrangements already exist, amending them. In the absence of such agreements or arrangements between the States Parties concerned, the States Parties may consider this Convention to be the basis for mutual law enforcement cooperation in respect of the offences covered by this Convention. Whenever appropriate, States Parties shall make full use of agreements or arrangements, including international or regional organizations, to enhance the cooperation between their law enforcement agencies. 3. States Parties shall Endeavour to cooperate within their means to respond to offences covered by this Convention committed through the use of modern technology.
11 Article 49 Joint investigations States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis. The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place is fully respected.
12 Article 50 Special investigative techniques 1. In order to combat corruption effectively, each State Party shall, to the extent permitted by the basic principles of its domestic legal system and in accordance with the conditions prescribed by its domestic law, take such measures as may be necessary, within its means, to allow for the appropriate use by its competent authorities of controlled delivery and, where it deems appropriate, other special investigative techniques, such as electronic or other forms of surveillance 31 and undercover operations, within its territory, and to allow for the admissibility in court of evidence derived therefrom.
OUR LANSCAPE CORRUPTION PREVENTION ACT CONTRACTOR GENERAL ACT PARLIAMENT (INTEGRITY OF MEMBERS ACT) PENDING SPECIAL PROSECUTOR ACT NEED FOR UMBRELLA CORRUPTION LEGISLATION AND FRAMEWORK TO SHARE INFORMATION NEED TO DEFINE PROPERLY CORRUPTION 13
Adherence to UNCAC and the creation of our blueprint Plea Bargaining Act Cyber crime Act- Witness Protection Programme Act- not yet passed or drafted An independent Anti Corruption Prosecuting unit – lagging behind our neighbours. –Does not exist Whistle Blower Legislation-its passage met with challenges, apparent conflict with Secret Oaths Act, re: public servants and the Access to information Act An all encompassing piece of legislation- sharing of information between departments and Local agencies in the pursuance of fighting Corruption and Organised Crime- Way Forward
Prevention 1-800 -Corrupt –Hotline- direct line to the Jamaica Constabulary Force- Off shore answering service to address perceived distrust of speaking directly to local prosecutors. Inspectorate Division of the Ministry of Finance-to address inefficiency, public waste, auditing and accounting malpractices in the public sector Commission for the Prevention of Corruption Integrity Commission- Parliament Integrity of Members Act Office of the Contractor General-Procurement policies NGO- University of the West Indies Center for Leadership and Governance- Post Graduate Studies 16
Criminalisation 18,000 matters/breaches Referrals to be prosecuted for breaches under the Corruption Prevention Act [2003 – Present day] it is recommended that linkage created to reenlistment- or a special statutory court-JP 8 Parliamentarians summoned to court for their failure to file statutory declarations 3 Cases of Illicit Enrichment- Customs Division, others pending 17
INVESTIGATION Good civil servant bad civil servant POLICING THE CIVIL SERVANT THROUGH SURVELLIANCE
Consideration of offences Breach of the Corruption Prevention Act Contravention of the Larceny Act-Section 42 A (1) (a) & (b) Conspiracy to commit an offence Attempt or actually Perverting the Course of Justice 19
The Constitution-GENERALLY Parliament (Integrity of Members) Act Contractor Generals Act POCA Larceny Act- Extortion Common law offence of Bribery Criminal Justice Administration Act OFFENCES/LEGISLATION 20
OFFENCES/LEGISLATION Mutual Assistance (Criminal Matters) Act Access to Information Act Perjury Act Extradition Act Constitution –Section 94- Powers of the DPP 21
OFFENCES/LEGISLATION Jurisdiction is it an issue – Judicature (Resident Magistrates) Act Section 9(1) Criminal Justice Administration Act Section 4 Criminal Justice Administration Act- Power of the DPP Bribery at Common Law 22
IS THE CROWN READY Reading file Interviewing witnesses Proving case
Proof Of The Case Civilian or public servant witnesses Nexus – accused- offence Potential exhibits Issues of law Chain of custody 24
PROOF OF THE CASE PUBLIC OPINION FALLACY- THE INSTITUTION OF A CHARGE + TRIAL FOR CORRUPTION OR CORRUPTION RELATED OFFENCE = CONVICTION AN ALLEGATION OF CORRUPTION= CONVICTION 27
The Prosecution Fallacy- That being charged = conviction and or a failure to obtain a conviction = PROSECUTORIAL WEAKNESSES. Good investigation + Credible witnesses + sound presentation of the case + adequate and sufficient summation by the RM or Judge = CONVICTION Unwritten rule –prosecutor never wins or loses. DPP’s role as facilitator- therefore we play different roles. A systematic approach- all encompassing multi dimensional- but not afraid to cause immediate change.- Challenge- Public awareness
PROOF OF CASE PREPARATION OF THE CASE FILE UTILISATION OF TOOLS OF INVESTIGATION-SURVELLIANCE 29
RECOMMENDATIONS INTERNALLY –CREATION MORE COURT ROOMS REGIONALLY- SHARING OF INFORMATION-BEST PRACTICES SENTENCE BREACH OF THE CPA MUST BE A DETERRENT- TWO (2) YEARS IMPRISONMENT - INADEQUATE 31
32 2009 APEC Anti-Corruption & Transparency Symposium on "Systematic Approach to Building Anti-Corruption Capacity : Diagnosing & Evaluating Corruption and Sharing Best Anti-Corruption Policies" held in Seoul, Korea on 1 6 ' ~- 1 7 ' ~S eptember 2009 Presentation by Mr. Soh Mee Hean Director, Corrupt Practices Investigation Bureau, Singapore Although different countries may have different systems and approaches to fighting corruption, the problem is essentially the same as it is human behaviour that we are talking about. Therefore, by sharing our experience, we can provide useful resources and references with which we can review and refine the systems that we Have.
Way Forward Discussion as to where we are now and where we need to go. Institutional changes a fully resourced DPPS office or department devoted solely to Corruption matters- our blue print An umbrella legislative framework for information sharing -locally, internally to fight corruption and organised crime. Corruption Courts for each parish and or an amendment of the Corruption Prevention Act to remove the Jurisdiction impediment to trying summary matters in the parish the offence was allegedly committed. Similar to the WRGC may utilise regional courts. Need manuals that tell us based on the circumstances of each case what FID, Auditor General, Contractor General, DPP, Integrity Commission etc., are to do and certainly these refer to guidelines because certainly it shall not infringe the constitutional provisions as regards each entity. The DPP’s office needs many manuals. MANDATORY MONITORING FOR ILLEGA ACTIVITY BANK ACCOUNTS OF POLITICIANS AND POLICE OFFICERS-CASES TO DATE OF PUBLIC SERVANTS CONSTITUTE 95% of offenders [SEE SOUTH KOREA MODEL]
ULTIMATE GOAL OF THE MISSION Reactionary or proactive approach-DPP Utilise powers and not initiate matters Different roles FID, Inspectorate Division. ministry of Finance, Auditor General for e.g.., Consequently one arm wishes to have assets frozen and property forfeited to the Crown. Another ensuring compliance with procurement rules and making declarations. Maintaining compliance-OCG-100% compliance. Need for Umbrella organisation-One Goal IMPLEMENTATION, MONITORING
THE NIAF ITS OBJECTIVES ITS ROLE AND EFFECTIVENESS OPINION -IN THE PREVAILING CLIMATE INSIDE AND OUT OF OUR COUNTRY NOTHWITHSTANDING THE IMPROVED RATING BY TI- IT SPEAKS MORE TO THE EFFORTS OF STAKEHOLDERS TO COMBAT CORRUPTION AS AGAINST THE PERCEPTION OF US BEING LESS CORRUPT. THE NIAF HAS PROVIDED THE LEADERSHIP THAT THE PROCESS REQUIRES OTHERWISE WITH OUT THEM IT WOULD APPEAR TO BE ANOTHER TALK SHOP.-THE JURY IS OUT.
INTERNATIONAL COOPERATION IS EFFECTIVE BUT WITH BUREAUCRATS WITH A POLITICAL AGENDA ON BOTH SIDES OF THE POLITICAL DIVIDE THE EFFECT AND UTILITY OF OUR RELATIONSHIP IS LOST IN BOTH HOUSES OF PARLIAMENT. THERFORE IT IS IMPORTANT TO HAVE CHECKS AND BALANCES TO EFFECT THIS COOPERATION, NOT ONLY COULD IAACA AND UNCAC CONSIDER THE ENFORCEMENT OF SANCTIONS. WATCH AND SEE APPROACH NEEDS TO BE SCRUTINISED. YES YOU SHALL NOT DICTATE TO A MEMBER OR NON MEMBER A BLUE PRINT BUT THEIR MUST BE SOME SYSTEMATIC CHECK TO ENSURE THE FRAMEWORK HAS SOME BASICS. UMBRELLA LEGISLATIVE FRAMEWORK MUST BE A PRIORITY- TO FACILITATE INFORMATION SHARING WITH A VIEW TO PRSECUTION AND FORFEITURE OF ASSETS
Training prosecutors and Judges Training law enforcement 37