Nolle Prosequi in Bermuda

Nolle Prosequi is a Latin phrase and a legal term of art which effectively means ‘the Crown does not intend to continue with the prosecution on this occasion, but you better not do it again, or you won’t be so lucky next time…’.

Section 487 of Bermuda’s Criminal Code Act 1907 provides, in particular, as follows:

“Nolle prosequi

487 (1) The Director of Public Prosecutions may inform the Supreme Court by writing under his hand, that the Crown will not then prefer any indictment, or he may, by writing under his hand or announcement in open court, inform the Supreme Court that the Crown will not then proceed further upon an indictment then pending before the Supreme Court.

(2) When such information is given to the Supreme Court, the Supreme Court shall cause the accused person to be discharged from any further proceedings in respect of the charge or charges upon which the accused person was committed or, where an indictment is pending, which are contained in the indictment; but such discharge shall not operate as a bar to any further proceedings on the same the notice of any sending within twelve months of such sending.”

This is a useful and convenient prosecutorial power, as the recent abandoned prosecution of the ‘Parliamentary pepper spray protestors’ demonstrates (particularly with a General Election pending, and the America’s Cup in full swing). A victory for ‘common sense’, some have said (the Defendants’ lawyer, in particular)…

But its use in this particular case appears somewhat unorthodox, especially if one takes into account the UK’s CPS guidelines with respect to the nolle prosequi power in the UK:

 

“A Nolle Prosequi stops the case and is an indefinite adjournment not an acquittal. This terminates the proceedings, but it does not operate as a bar or discharge or an acquittal on the merits (so the defendant can be indicted again). 

The power is not subject to any control by the courts. The Attorney General is answerable to Parliament for the exercise of the power but takes the decision independently of Government as a guardian of the public interest. 

In practice the power is used sparingly, usually to prevent oppression (for example because the defendant is seriously ill). Traditionally it has also been used to protect a person to whom an undertaking or immunity has been given.”

It is hard to tell from the media reports, but it appears as if the DPP, Larry Mussenden, appears to have formed the view that, notwithstanding CCTV and other compelling evidence of a breach of a fairly clear statutory provision, the trials of the various Defendants would have been extremely time consuming and expensive, involving numerous Defense witnesses and numerous legal arguments: in circumstances where the DPP may have other more pressing priorities to which to apply its precious and limited resources.