Roberto 'Tico' Harrigan
Photo Credit: Melissa Edwards/BVI Platinum News
The decision by the Director of Public Prosecutions (DPP) to discontinue the domestic charges in relation to the alleged drug ring which spanned 13 years, will be challenged during a judicial review hearing in September. This was part of Justice Vicki Ann Ellis' Friday, July 5 judgment where she granted the wanted men leave to file an application for judicial review in relation to a second extradition request made by the United States (US).
The challenge in relation to the local charges was only put forward by one of the five wanted men, Customs Officer Mr. Roberto 'Tico' Harrigan. The other men wanted are Earl Delville Hodge known as 'Bob Hodge'; Chad Skelton; Carlston Beazer; and Juan Valdez.
Harrigan's lawyer, Patrick Thompson is seeking to review the decision of the DPP to enter a nolle prosequi, filed on October 12, 2012, discontinuing the complaints lodged against him.
Thompson indicated that his client intends to seek certiorari, quashing the nolle prosequi and an order that the matter be reconsidered by the DPP.
He submitted that the DPP's decision was an unreasonable, irrational exercise of powers and subject to review.
Thompson argued that the fact that the local charges were only discontinued after the Order to Proceed was issued on October 11, 2012, leads to the inference that the DPP was influenced by extraneous considerations.
The Attorney at Law also put forward that in wake of the High Court judgment by Justice Albert Redhead, the DPP was obliged to give reasons for his decisions.
On September 12, 2013, Justice Redhead granted the writ of habeas corpus where he ordered that the decision by former Senior Magistrate Valerie Stephens for the men to be extradited be quashed on the basis that it was null and void as it was based on an invalid authority. He had also declared that the appropriate forum for the trial of the applicants' alleged criminality is the BVI.
As part of her July 5 34-page judgment, Justice Ellis said although the habeas corpus application would not have required an extensive analysis of the probative merits of the domestic prosecution, the learned Judge made the following observations in his judgment.
"I pause here to say the same critical question should be asked in the case at bar. In my opinion there is no doubt that the defendants/applicants may have conspired to import cocaine into the BVI. Were they parties to a conspiracy to import cocaine into the United States? This is the critical question," Justice Redhead stated in his September 2012 ruling.
In her July 5 ruling, Justice Ellis said when combined with court's findings on the applicant's constitutional right to a fair trial by a jury of his peers, the court is satisfied that an arguable case has been made out that reasons would have been necessary in order "to meet the reasonable explanation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting, demonstrating that solid grounds exist for what might otherwise appear to be surprising or even inexplicable decision."
She said for the reasons which have already been detailed above, the court is satisfied that this is an arguable ground for review.
Justice Ellis said in considering Harrigan's challenge, it has not escaped the court's notice that the decision to discontinue the criminal proceedings is ostensibly favorable to him.
"In what can only be described as a remarkable twist, the applicant [Harrigan] in the case at bar, is a former accused person who has been fortunate enough to have criminal proceedings discontinued against him. While it is in principle permissible for an accused person to challenge a decision not to prosecute him, the court does find this particular application to be perplexing."
Justice Ellis said it seems to the court that the true concern for the applicant and that which would most likely impact on his right to liberty, is the Governor's decision to issue the Order to Proceed on October 11, 2012.
She stated that in circumstances where the applicant does not allege any collusion on the part of the DPP and the Governor, and where he does not specifically allege bad faith or improper motive on the part of the DPP, the court has some difficulty in discerning the utility of the substantive relief which is claimed.
"Notwithstanding this, the court is satisfied that Mr. Harrigan has demonstrated an arguable case that the DPP was obliged to provide reasons for the discontinuance of the domestic criminal proceedings," she stated.
The hearing takes place on September 30.