Sunday, December 17, 2017

Gaspard gives his reasons

The likelihood that the Commission will not conclude for at least another year.

The report by the Commissioner, at best, could only recommend a prosecution.

There will still need to be a criminal investigation as the quality of the evidence before the Commission is unlikely to meet the threshold required for a criminal prosecution.

The continuation of the enquiry can only serve to delay a prosecution and jeopardise the police investigation. The relevant evidence (including documents) of all witnesses who have already appeared before you will need to be re-taken in a properly admissible form for any credible prosecution to be mounted.

Other substantial evidence not before the enquiry will be required, for example foreign witnesses.

There would be a greater sense of outrage if the continuation of the enquiry were to result in a potentially strong and credible prosecution being stayed as an abuse of process than there would be if the enquiry into any criminal conduct were adjourned until the conclusion of the criminal investigation and proceedings.

The substance of the criminal allegations that are being investigated has already being determined. There is no good reason why the Commission should be concerned with the making of recommendation on what is already known.

The continuation of the Commission and the publicity surrounding it and any subsequent report may well ground an application to stay any subsequent trial as an abuse of process.

It would be impossible for the enquiry to continue without examining who did what to whom without prejudicing the police investigation any subsequent criminal proceedings.

The duty of the DPP to the public to take steps to ensure due process by preventing prejudice, whether by way of pre-trial publicity or otherwise, and whether or not any potential defendant were to take that point.

The duty to guard against a defendant exploiting pre-trial publicity with a view of derailing a subsequent trial.

Pre-trial publicity cannot only prejudice criminal proceedings but also the antecedent criminal investigation.

Potential defendants may suffer prejudice merely by having to claim that privilege against self-incrimination or by having to answer questions which are incriminating.