How are you Managing your Prosecutions?
It isn't uncommon for companies to be required to give evidence in a criminal case, especially where the company is the party against which the crime was committed. When this happens, it may be useful for companies to have their own legal representation.
There are a few circumstances in which a company will be required to either prosecute a criminal case or get involved in the prosecution of such a case.
- The company is the complainant, that is, the party who suffered because of the crime.
- An officer or an employee of the company is required to be a witness in the criminal proceedings.
- The company has an interest in the outcome of criminal proceedings started by a third party.
A company can engage an attorney-at-law to manage its involvement in a criminal prosecution from the moment the crime was reported to the police to the moment the Judge issues a verdict on the matter. There are two ways in which it may do so.
If a company is the complainant, it can engage an attorney-at-law to lead the company’s criminal prosecution. Permission is required from the Director of Public Prosecutions (DPP), the supreme prosecuting authority in Jamaica, for any attorney-at-law at the private bar to lead a criminal prosecution. The DPP issues what is called a ‘fiat’ to the attorney-at-law to enable him or her to actively associate himself or herself with the prosecution. One must apply to the DPP for a fiat and, it is not issued lightly. The DPP must be satisfied that the attorney-at-law is competent to conduct a criminal prosecution. The DPP is also empowered to intervene and take over any prosecution.
Alternatively, a company may give the attorney-at-law instructions to 'watch' criminal proceedings. An attorney-at-law with a ‘watching brief’ can attend court and observe the criminal proceedings but he is not permitted to lead the criminal prosecution as he would with a fiat. That attorney-at-law can assist the company in its preparation of witnesses and witness statements for those persons, typically directors or employees, who are expected to attend court and give evidence.
If a company is not a complainant, it can be issued with a subpoena or a summons to compel an officer of the company to attend court to give evidence as a witness in a case. In that case, the company may also want to engage its own representative who will act in its interest to guide and guard it and prepare its witnesses.
A company may also want to engage an attorney-at-law to ‘watch proceedings’ when it has an interest in the outcome of a criminal matter but is not directly involved. For example, where an employee is alleged to have committed a criminal act against another employee, the company, although not the complainant or defendant, may want to be kept informed that it can take appropriate actions based on the outcome.
Although there has been a marked improvement in the administration of justice in Jamaica in recent years, our nation is still plagued by the slow pace of justice and a backlog of cases. The criminal prosecutor in most cases relishes the help provided by Counsel with fiat or a watching brief to ease the pressure off their buckling desk of criminal matters to be prosecuted.
Whether a company is the complainant, a witness giving evidence, or has an interest in the outcome of a criminal prosecution, it is always recommended that the company has separate legal representation for its own best interest and protection.
Jahmar Clarke is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Litigation Department. Jahmar may be contacted via Jahmar.Clarke@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.