clr/1983/1983_2_194.pdf

(1983)1983 May 24 [TRIANTAFYLLIDES, P., HADJIANASTASSIOU, MALACHTOS, DEMETRIADES, LORIS, STYLIANIDES, PIKIS, JJ.] POLICE, V. STEPHANOS ATHiENITIS, Accused. (Question of Law Reserved No. 191) Criminal Procedure—Criminal case—Discontinuance—AttorneyGeneral can, in the exercise of his powers under Article 113.2 of the Constitution, discontinue a case without affording any reasons and without filing a nolle prosequi under section 154

(1)of the Criminal Procedure Law, Cap. 155—He can exercise 5 this power in person or by officers subordinate to him. On 20th December 1982 the District Court of Larnaca, while dealing with criminal case No. 6143/82, reserved for the opinion of the Supreme Court, under section 148 of the Criminal Procedure Law, Cap.155, the following two questions of law: 10 " 1 . Can the Attorney-General discontinue a criminal case under the provisions of Article 113.2 of the Constitution without filing a nolle prosequi in accordance with the provisions of s.154

(1)of Cap. 155? 2. If the answer is in the affirmative, can the Attorney- 15 General discontinue a case without affording any reasons as to the due exercise of such a power? Held, Hadjianastassiou and Pikis, JJ. dissenting:

(1)That the Attorney-General can, in the exercise of his powers under Article 113.2 of the Constitution, discontinue a criminal case without filing a nolle prosequi, in accordance with the provisions of section 154

(1)of the Criminal Procedure Law, Cap.155. 194 20 2C.L.R. Police*.Athienitis

(2)That the Attorney-General can discontinue a case without affording any reasons for doing so; and he can exercisethis power in person or by officers subordinate to him. Order accordingly. 5 Cases referred to: R. v. The Comptroller-General of Patents, Designs and Trade Marks [1899] 1 Q.B.909 at p.914; Police v. Ekdotiki Eteria

(1982)2 C.L.R.63; Georghiou v. The Attorney-General

(1982)2 C.L.R.938; 10 Police v, Georghiades

(1982)2 C.L.R.33 at p.48; Gouriet v. Union of Post Office Workers [1977] 3 All E.R.70 at p.88; [1978] A.C.435; Georghadji and Another v. Republic,

(1971)2 C.L.R.229; Rodosthenous and Another v. 77ie Police, 1961 C.L.R.48; 15 Attorney-General v. Pauris and Others

(1979)2C.L.R.15; Raymond v. Attorney-General [1982] 2 All E.R.487 at p.491; Xenophontos v. Republic, 2 R.S.C.C.89; R. v. Gateshead Justices [1981] 1 All E.R.I027 at p.1033; R. v. Rowlands, 17 O.B.67I; 20 Republic v. Zacharia, 2 R.S.C.C.l; Police v. Hondrou, 3 R.S.C.C.82; Papaphilipou v. Republic, 1 R.S.C.C.62; Hinds v. Queen [1976] 1 All E.R.353; R. v. Meruyn Broad [1979] 68 Cr. App. R.281; 25 R- v. Bedwellty Justices ex P. Munday [1970] Crim. L.R. 601; Soanes [1948] 32 Cr. App. R. 136; R. v. Philips [1953] 1 All E.R.968; 195 Police \. Athienitis

(1983)R. v. Nishbet [1971] 3 All E.R.307 at pp. 312,313: Policev. Ttcrla

(1973)1J.S.C. 109(a judgment of the District Court of Famagusta); Isaias v. Police [1966] 2 C.L.R.43; A', r. Sang [1979] 2 All E.R. 46 (C.A.): [1979] 2 All E.R.1222 (H.L.). 5 Questions of Law Reserved. Questions of law reserved by the District Court of Larnaca (Eliades, D.J.) for the opinion of the Supreme Court under section 148 of the Criminal Procedure Law, Cap. 155 relative to 10 a ruling of the said District Court made in the course of the hearing of Criminal Case No. 6143/82 preferred by the Police against Stefanos Athienitis who was charged for theft. A. M. Angelides, Senior Counsel of the Republic with M. Plwtiou, for the Attorney-General of the Re- 15 public. 67. Xenos, for the accused. Cur.adv. vult. TRIANTAFYLLIDES P.: This Court is, by majority, of the opinion that the answer to both the questions of law which were 20 reserved, under section 148 of the Criminal Procedure Law, Cap. 155, should be in the affirmative; and in the light of this opinion this case is remitted to the District Court of Larnaca for any further proceedings. Each one of us willgivehis reasons for agreeing or disagreeing 25 with the opinion of the Court. T»IANTAFYLLIDES P.: On 20th December 1982 the District Court of Larnaca, while dealing with criminal case No. 6143/82, reserved for the opinion of the Supreme Court, under section 148 of the Criminal Procedure Law, Cap. 155,the following two 30 questions of law: "I. Can the Attorney-General discontinue a criminal case under the provisions of Article 113.2 of the Constitution without filing a nolle prosequi in accordance with the provisions of s.154

(1)of Cap. 155? 196 35 1 C.L.R.

IV.Iicc\. Athienitis TriantafyHides P. If the answer is in the affirmative, can the AttorneyGeneral discontinue a case without affording any reasons as to the due exercise of such a power'.'" The circumstances in which the above two questions were 5 reserved for the opinion of the Supreme Court are stated as follows by the District Court of Larnaca: 10 15 20 25 30 35 "On the 10th September 1982, when this case was fixed for plea,theprosecution asked for an adjournment asthe matter was reconsidered by the Attorney-General. The Court accepted the application and the case was adjourned to 9th October 1982, for plea. As on that date the Prosecution stated that they were not ready to proceed (due to the fact that the file was still at the office of the AttorneyGeneral), the Court adjourned the case for a second time to the 18th of October 1982, for plea. On the 18th October 1982, the Prosecuting Officer stated to the Court that he had instructions from the Attorney-General to withdraw the case on the basis of Art.113.2 of the Constitution. After a short break, the Court delivered its ruling, by which the application was dismissed. The accused was thereupon charged and pleaded not guilty to the charge preferred against him and the case was accordingly fixed for hearing on the 4th ' December
On that date the Prosecution submitted that they did not wish to offer any evidence and the Court asked the Prosecuting Officer to respect the previous ruling of the Court on the matter. An adjournment was later asked by the Prosecuting Officer in order to get further instructions and on the 18th December 1982, when the case was fixed for hearing, the Prosecution informed the Court that the Attorney-General, acting on the strength of Art. 113of the Constitution, 'discontinues the conduct of the present proceedings* ". Paragraph 2 of Article 113 of the Constitution reads as follows: "
The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to in197 TriantafylUdes P. Policev.Athienitis

(1983)stitute, conduct; take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions." Subsection

(1)of section 154ofCap.155,as modified by virtue of Article 188.3(a) of the Constitution, reads as follows: "154.

(1)In any criminal proceedings and at any stage thereof before judgment the Attorney-General may enter a nolle prosequi, either by stating in Court or informing the 10 Court in writing that the Republic intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered." Before proceeding 1 should observe that in my view the 15 Supreme Court when exercising its jurisdiction under section 148of Cap. 155isonly empowered to answer, with due reasoning, the questions of law reserved under such section for its opinion and cannot proceed to lay down in a binding manner what the law is in any other respect. 20 The first question which has been reserved, as above, by the District Court of Larnaca clearly raises the issue whether the power given to the Attorney -General under Article 1132 of the Constitution to "discontinue any proceedings for an offence against any person in theRepublic"can only beexercised 25 in accordance with the provisions of section 154

(1)of Cap. 155; in other words, whether the said constitutional power of the Attorney-General is limited, as regards the manner of its exercise, by the provisions of a statute, such as Cap. 155, which existed before the coming into operation of the Constitution on 30 16th August 1960. It is, in my opinion, beyond dispute that a constitutional provision cannot be applied or construed on the strength of a statutory provision, whether such provision has existed before the coming into operation of the Constitution or has been 35 enacted afterwards, because the Constitution is the supreme law of the country and it prevails over any statutory provision; and, as a result, statutory provisions have to be construed and applied in a manner consistent with the Constitution. 198 5 2C.I..R. Po'icc\. Athienitis Triarfafj HidesP. In applying nowadays section 154

(1)of Cap. 155,in the light of Article 113.2 of the Constitution, it is pertinent to quote paragraphs 1,4and 5of Article 188of the Constitution, which read as follows:5 10 "

Subject to theprovisions of this Constitution and to the following provisions of this Article, all laws inforce on the dateofthecomingintooperationof thisConstitution shall, until amended, whether by way of variation, addition or repeal, by any law or communal law, as the case may be, made under this Constitution, continue inforce on or after that date, and shall, as from that date be construed and applied with such modification as may be necessary to bring them into conformity with this Constitution. I I 15 20
Any court in the Republic applying the provisions of any suchlaw whichcontinues inforce under paragraph 1 of this Article, shall apply it in relation to any such period, with suchmodification asmay benecessary to bring it into accord with the provisions of this Constitution including the Transitional Provisions thereof.
In this Article - 25 law' includes any publicinstrument made before the date of the coming into operation of this Constitution byvirtue of such law; 'modification' includes amendment, adaptation and repeal." Ttis,also,clearfrom thewordingofsection 154

(1)ofCap.155 that entering a nolle prosequi is a modeofinforming a Court which isdealing with a criminal casethat "the Republic intends that the, proceedings shall not continue." 30 In the light of the foregoing 1 am of the opinion that the answertothefirst questionwhichhasbeenreserved,asaforesaid, under section 148of Cap. 155,isthat theAttorney-General can, in the exercise of his powers under Article 113.2 of the Constitution, discontinue a criminal case in any manner sufficient, 35 for purposes of Court record, to inform the Court concerned ofhis decision to discontinue such case;and thiscan bedone, also, by any person or officer subordinate to him "acting under and in accordance with his instructions". Accordingly, it was 199 Triantaf)Hides P. Police*.Athienitis (1983; sufficient in the present instance to inform, through the police officer conducting the prosecution, the District Court of Larnaca "that the Attorney-General, acting on the strength of Article 113 of the Constitution, 'discontinues the conduct of the present proceedings"*. As regards the answer to the second question, which has been reserved under section 148of Cap. 155,as above, my opinion is that the power of the Attorney-General to enter a nolle prosequi is not subject to the control of the Courts(see,inter alia, in this respect, Halsbury's Laws of England, 4th ed., vol.11, p.137, 10 para. 222, and R. v. The Comptroller-Generalof Patents, Designs and Trade Marks, [1899] 1 Q.B. 909,914). Thus, the power of the Attorney-General under Article 113.2of the Constitution to discontinue a criminal proceeding is, likewise, not subject to the control of the Courts and, therefore, he need not give 15 any reasons, in this respect, to the District Court of Larnaca. In the light of the above the answer to both questions which have been reserved for our opinion should be in the affirmative. HADJIANASTASSIOU J.: On the 20th December, 1982, the District Court of Larnaca reserved for the opinion of the Supre- 20 me Court, under section 148 of the Criminal Procedure Law, Cap. 155, the following questions of law: 1. Can the Attorney-General discontinue a criminal case under the provisions of Article 113.2of the Constitution without filing a nolle prosequi in accordance with the provisions of 25 section 154

(1)of Cap. 155?

If the answer isin the affirmative, can the Attorney-General discontinue a case without affording any reasons as to the due exercise of such a power? The circumstances under which the two questions were re- 30 served for the opinion of the Supreme Court appear in the relevant ruling of the said Judge which was delivered on 20th December, 1982, in Case No. 6143/82, and reads as follows: "On the 10thSeptember, 1982,when this case was fixed for plea, the prosecution asked for an adjournment as the 35 matter was reconsidered by the Attorney-General. The 200 5 2 C.L.K. 5 10 15 20 Police \. Athienitis Hadjianastassiou .1, Court accepted the application and the case was adjoumcu to 9th October, 1982, for plea. As on that date the Prosecution stated that they were not ready to proceed (due to the fact that the file wasstill at the office of the AttorneyGeneral), the Court adjourned the case for a second time to the 18th of October 1982, for plea. On the 18th October 1982, the Prosecuting Officer stated to the Court that he had instructions from the AttorneyGeneral to withdraw the case on the basis of Art.113.2 of the Constitution. After a short break, the Court delivered its ruling, by which the application was dismissed. The accused wasthereupon charged andpleaded not guilty to the charge preferred against him and the case was accordingly fixed for hearing on the 4th December,
On that date the Prosecution submitted that they did not wish to offer any evidence and the Court asked the Prosecuting Officer to respect the previous ruling of the Court on the matter. An adjournment was later asked by the Prosecuting Officer in order to get further instructions and on the 18th December, 1982, when the case was fixed for hearing, the Prosecution informed the Court that the Attorney-General, acting on the strength of Art. 113of the Constitution, 'discontinued the conduct of the present proceedings' ". Then the Court faced with that submission, viz., the discontinuance by the Attorney-General delivered its ruling indicating itsreasons for the course taken by it and in doing so it relied on English and Cyprus precedents. In effect the cases quoted lend support to the proposition that the only way in which the 30 Attorney-General may discontinue criminal proceedings without the leave of the Court is by filing a nolle prosequi. As 1said earlier when the ruling of the Court was delivered the Police Sergeant informed the Court that his instructions were not to offer any evidence. In the light of that statement a ** newdate wasgiven and the casewasfixed once again for hearing on the 18th December,
Once again the Prosecuting Officer informed the Court that he had instructions from the Attorney-General not to proceed with the case, indeed, the Attorney-General's instructions were that he wished to dis201 Hadjianastassiou J. Police\. Athienitis

(1983)continue the proceedings relying onArticle 113of the Constitution. Faced with that problem the learned Judge reserved the two questions and sought our guidanceon thetwodistinct subjects. (a) The power if any of the Attorney-General to discontinue proceedings in a way other than that envisaged under section 154

(1)of Cap. 155,and (b) the control that a Court of law may exercise over a decision of the Attorney-General to withdraw criminal proceedings. 5 Thefirst question requiresmetodecidewhethersection 154

(1)of Cap. 155is in any way inconsistent to or incompatible with 10 Article 113.2ofthe Constitution sofar asitdefines thepowerof the Attorney-General to discontinue or withdraw criminal proceedings. There is no doubt that laws enacted prior to independence were saved by Article 188.1 of the Constitution subject to the 15 requirement that they may be applied with the necessary qualifications, if anyone, isneeded inorder toconform with theprovisionsof.the Constitution. Article 188.1ofour Constitutionis in these terms: "Subject to the provisions of this Constitution and to the 20 following provisions of thisArticle, all lawsinforce on the date ofthecomingintooperation ofthisConstitution shall, until amended, whether by way of variation, addition or repeal, by any law or communal law, as the case may be, made under this Constitution, continue inforce on or after 25 that date, and shall, as from that date be construed and applied with suchmodification asmaybenecessary tobring them into conformity with this Constitution." With that inmind counsel on behalf of the Attorney-General argued with regard to question

(1)and urged upon us to hold 30 that (a)Article 113of the Constitution confers onthe AttorneyGeneral unfettered power todiscontinue the proceedings and to that extent this power is not limited by section 154

(1)of Cap. 155 that must or should be disregarded, (b) The AttorneyGeneral is entitled and can stop any prosecution by offering no 35 evidenceor indeed bywithdrawingthecharges without theleave oftheCourt,notwithstandingtheprovisionsofsection91 ofCap. 155, or any other enactment. 202 2C.L.R. Policev.Athienitis Hadj'anastasslou J. Indeed counsel for the prosecution went even further and argued that the Attorney-General can bring proceedings to an end by offering no evidence after a plea, without the leaveof the Court resulting in a verdict of not guilty, that is a verdict on the 5 merits of the case. Having considered very carefully the argumentfortheprosecution Ishalldomybesttoanswerthe question raised under No. 1 of the proceedings. Article 179 of the Constitution reads as follows: 10 15 " 1 . This Constitution shall be the supreme law of the Republic. 2. No law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ, authority or person in the Republic exercising executive power or any administrative function shall in any wayrepugnant to,or inconsistent with, any of the provisions of this Constitution." With this in mind and subject to the doctrine of necessity asjudicially defined its provisions must be given effect to without any qualifications whatever. Indeed the recent decisions 20 of our Supreme Court emphasize that no law can abridge or modify constitutional rights. ' See Police v. Ekdotiki Eteria

(1982)2 C.L.R. 63; Georghiou v. The Attorney-General

(1982)2 C.L.R. 938, and Police v. Georgiades

(1982)2 C.L.R. 33,48. The first question in the present case is whether section 154

(1)25 of Cap. 155 abridges or in any way restricts the rights vested in the Attorney-General by Article 113.2 of the Constitution to discontinue proceedings. Section 154.1 is a procedural enactment designed to regulate comprehensively every facet of-criminal proceedings. This section deals with the general 30 powers of the Attorney-General in criminal proceedings and sub-section

(1)reads as follows: 35 "In any criminal proceedings and at any stage thereof before judgment the Attorney-General may enter a nolle prosequi, either by stating in Court or informing the Court in writing that the Republic intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered". 203 Hartjianastassiou J . Police v. Athienitis

(1983)There is no doubt that this section read earlier provides that if the Attorney-General appears in person before the Court he can discontinue proceedings by making a statement to that effect and, in every other case by informing the Court in writing that the State intends that proceedings shall not continue. 5 In the words of Lord Dilhome in Gouriet v. U.P.W. [1978] A.C. 435, all the Attorney-General has to do is to sign a piece of paper suspending the prosecution. What section 154

(1)aims to achieve on a preview of its plain provisions, is to provide for the manner in which this right should be exercised prescrib- 10 ing the barest formality conceivable, to sign, 1repeat, a piece of paper. The further question 1 pause for a moment is in the light of what has been said earlier can it be validly asserted that this formality can constitute a restriction of his rights under Article 113.2 of the Constitution and an inroad or inter- 15 Terence into his powers? With respect in my judgment section 154

(1)neither abridges nor restricts the rights of the AttorneyGeneral under Article 113.2. It merely lays down that the powers should be exercised subject to a simple procedure designed if- nothing else to ensure that no one other than the 20 Attorney-General can assume his rights under Article 113.2 of the Constitution. Indeed, in my view far from restricting his power under Article 113.2 and section 154

(1)of Cap. 155, it reinforces them in a manner perfectly compatible with the dictates of the Constitution. But there is a further question 25 and there is no doubt that section 154

(1)of Cap. 155 is to point out or indicate the repercussions arising from the entry of a nolle prosequi. According to these proceedings the accused is discharged but not acquitted. Once again, in my view, there is no derogation from Article 113.2 and the word "discontinue" 30 confers no more power than to interrupt the proceedings and it brings the criminal process to a halt but not a conclusive end. Having considered the submission of counsel for the prosecution that section 154

(1)of Cap. 155 interferes with the rights of the Attorney-General under Article 113.2 of the Constitution 35 unfortunately overlooks the object of a precedural enactment such as the Criminal Procedure Law which is to regulate and co-ordinate the exercise of legal rights. Furthermore, criminal procedure aims to gain the necessary certainty in the legal process, and procedural rules according to legal theory 40 are consequential as to the rights the exercise of which they 204 2 C.L.R. Police \. Athienitis Hadjiaiinstussiou .1. 25 regulate. 1 would repeat, once again, procedural safeguards provide the spring-board for the valid exercise of rights gi\en by law. If authority is needed in Fotini Polycarpou Georgluulj and Another v. The Republic

(1971)2 C.L.R. 229 the Com ι repeated that there is no inconsistency or conflict between theprovisions of section 25

(2)of the Courts of Justice Lav.' 14/W and those of Article 155.1 of the Constitution, vesting in the Supreme Court exclusive appellate-jurisdiction. See Lejkio* Rodosthenousand Another v. The Police. 1961 C.L.R. 48 ami Attorney-General v. Pouris and Others

(1979)2 C.L.R. 15. In the light of the authorities and because section 154

(1)ut Cap. 155. in my view, all that section 154

(1)of Cap. 155 pur ports to accomplish, is to establish the mode in which the right of the Attorney-General to discontinue proceedings nui> be exercised. Having given the matter my full consideration 1 have reached the conclusion that the provisions of section 154

(1)of Cap. 155 are in no conflict wnii those of Article 113.2 of the Constitution.. With respect to the Attorney-General he may at any time orally if personally present or by filing a nolle prosequi under his hand on any other occasion discontinue proceedings. Not only the criminal procedure leases unfettered the right of the Attorney-General, and quite rightly so. to discontinue criminal proceedings at his discretion, but als<. establishes by section 156 of Cap. 155 the procedural framework for the deligation of his powers. 30 As regards to the second question which has been resened 1 had had theadvantage of reading indraft thejudgment of Mr. Justice Pikis. I am in respectful agreement with it. Therefore 1 concur in holding that the two questions shall be answered a*» suggested in his judgment. , 5 10 15 20 35 MALACHTOS J.: The present proceeding arose out of a summary trial before a District Judge of the District Court of Larnaca in Criminal Case No, 6142/82, where the accused was charged that on the 19th day of April, 1982, at Lefkara in die District of Larnaca, stole an old coffee mill valued at £10.property of Costas Demetriou of Kato Lefkara, now of Nicosia. According to therecord of proceedings, on the 10th September. 1982, theaccused appeared in person before the District Courtof 205 Malarhtes J. Police\. Athienitis

(1983)Larnaca and before hewascharged the Police Sergeant whowas conducting the prosecution, applied for an adjournment as the case was under consideration by the Attorney-General. The trialJudge then adjourned the case to the 9th October, 1982, for plea and releasedtheaccused on bait in the sum of £100.- 5 •o appear before the Court on the above date. On the 9th October, 1982, the accused appeared before the Court, this time represented by advocate,but the prosecuting officer applied for a further adjournment as the file of the case was still with the office of the Attorney-General. The case 10 was then adjourned to the 18th October, 1982, and the accused was released on the same bail. On the 18th October, 1982, the accused appeared before the Court but before he was called upon to plead the prosecuting officer stated to the Court that he had instructions from the 15 Attorney-General to withdraw thecase, basinghisaplication on Article 113 of the Constitution. This Article is as follows: "

The Attorney-General of the Republicassisted bythe Deputy Attorney-General of the Republic shall bethe legal adviser of the Republic and of the President and of the 20 Vice-President of the Republic and of the Council of Ministers and of the Ministers and shall exercise all such other powersand shallperform allsuchotherfunctions and duties as are conferred or imposed on him by this Constitution or by law. 25
The Attorney-General of the Republic shall have power, exercisable at hisdiscretion in thepublicinterest, to institute,conduct,takeover.andcontinueordiscontinueany proceedings for an offence against any person in Republic. Suchpowermaybeexercisedbyhiminpersonor by officers 30 subordinate tohim actingunder andinaccordance withhis instructions", The trial Judge then, after a short break, made the following ruling: "Before accused was asked to plead to a charge of stealing 35 an old coffee mill, of the value of £10.- the prosecution informed the Court that they had instructions from the office of the Attorney-General to withdraw the case in accordance with Article 113.2 of Constitution. 206 2 C.L.R. Police v. Athienitis Malachtos ,
Theright towithdrawordiscontinue acriminal charge pending before a Court of Law, may arise in the following ways: (a) Withdrawal Section 91 of the Criminal Procedure Law, Cap.
5 provides that - 10 'If a prosecutor in any summary trial, at any time before a final order is passed, satisfies the Court that there are sufficient grounds for permittinghim to withdraw the charge. the Court may permit him to withdraw the same and shall. thereupon, acquit the accused. Provided that, if the charge is so withdrawn before the accused had pleaded to it, the accused shall be discharged but such discharge shall not operate as an acquittal'. This section puts down in a statutory from the inherent power* 1? of the Court to regulate the proceedings before it. It takes the form of a discretionary power which must beexercised judicial!) in the interests of justice and cannot be made the subjectmatter of a bargain between the Prosecution and the Defence. Whenthe Prosecution and theDefence had come toan agreement 20 as to the withdrawal of one of the charges preferred against accused, the latter undertaking to plead guilty to the remaining charge, it was held that the Court was not bound by such an agreement without inquiring into the relevant facts. (See R. v. Bedwellty Justices, Ex Parte Munday, [1970], Crim. L.R. 25 p.601). The withdrawal of the charge may be allowed where there is no evidence to support the charge as well as in the case where leave isapplied to withdraw a charge so as to avoid any element of oppression that may result because of the large number of 30 charges which have been simultaneously preferred against accused as for example in Akritas v.Regina (20 C.L.R. p.110), where the Supreme Court observed that 20 different offences on two counts of falsification of accountsandembezzlement was an undesirable way of proceeding against appellant. 35 The Court will exercise favourably its discretion when the evidence as has been adduced in the course of trial , does not support one of two alternative counts in which case leave will be granted for the withdrawal of one of the alternative counts. 207 Mnlachtos J. Police \.Athienitis

(1983)Where thehearing of thecasehas started and evidence has been heard, on an application for leave to withdraw, the main consideration upon which the Court will exercise its discretion will be whether the evidence already adduced is so unreliable that it cannot support thecharge; otherwise, the Court will be 5 turning a blind eye to illegality. The Court will not pause and evaluated the evidence for the prosecution before the case for ιheprosecution is closed but there are cases where the evidence is so unreliable or so discredited that the Court can say with certainty the evidence cannot possibly support the charge. 10 The discretion of the Court, as wide as may be, it is not unfettered and cannot be exercised at will, the paramount consideration being always the protection of the interests of justice. In deciding whether to prosecute or not a particular case, the Attorney-General may have to have regard to a variety J5 of considerations, all of them leading to the final question: Would a prosecution be in the public interest, including in that phrase of course,intheinterestsofjustice? (seeNinaPonomareva, ["956] Crim. L.R..725. Discontinuance - 20 By virtue of s. 154

(1)of the Criminal Procedure Law, Cap. 155 the Attorney-General of the Republic has the right in any criminal proceedings and at any stage thereof to enter a nolle prosequi whereupon the accused is discharged at once in respect of the charge or information for which the nolle prosequi is 25 entered. A nolle prosequi is usually entered in cases where the accused person cannotbeproducedinCourttoplead or standtrial dueto mental or physical incapacity which is of a permanentnatureand it can be entered only on thedirections of the Attorney-General. (see R. v. Rowlands, 17 Q.B. 671). 30 A nolle prosequi may be entered at any stage before judment R. v. Dunn, 1 C. and K. 70), but it cannot be entered during appeal proceedings {Isaias v. Police

(1966), 2 C.L.R.

This power of the Attorney-General is not subject to any control by the Courts (/?. v. Comptroller of Patents, [1899] 1 Q,B. 909), but is open to criticism by theLegislature and in 208 35 2 C.L.R. Police v. Athienitis Malachtos .
England its abuse is prevented by the ordinary principle of Ministerial responsibility (Queenv. Allen, 1962, 1 B. and S.850) The filing of a nolle prosequi puts an end to the Prosecution but does not operate as a bar, discharge or an acquittal 5 on the merits, and the party remains liable to the recharged or re-indicted (see Goddard v. Smith, 3 SALK. 245). In England, where by virtue of the provisions of s.4 of the Prosecution of Offences Act 1979, the Director of Public Prosecutions has the right to "undertake the conduct of a 10 prosecution commenced privately", the question arose as to what werethe limits of such a discretion and Mars -Justicehadthis to say in this respect:- 15 20 25 30 'Having regard to the wide powers conferred by the statutes and regulations to which 1 have referred, it is impossible to argue that it was unlawful or uHra vires for the Director of Public Prosecutions to interfere in this private prosecution only for the purpose of offering no evidence. As (counsel for the Director of Public Prosecutions) has pointed out there is nothing novel about such a procedure. The AttorneyGeneral could always enter a nolle prosequi in criminal proceedings before Courts of record, and the Courts have never sought to interfere in the exercise of that power*. {Turner v. D.P.P. [1978] Cr. App. R. 70). Concerning the powers of the Attorney-General, Viscount Dilhorne observed in Gouriet v. Union of Post Office Workers [1977], 3 All E.R. 70 at p. 88*The Attorney-General has many powers and duries. He may stop any prosecution or indictment by entering a nolle prosequi he need not give any reasons. He can direct the institution of a prosecution and direct the Director of PublicProsecutions totake over the conduct of any criminal proceedings and he may tell him to offer no evidence'. 35 It was later decided that the word 'conduct' appears to be wider than the phrase 'carry on' and suggests that when the Director of Public Prosecutions intervenes in a privately instituted prosecution he may not limit himself to the right of pursuing it by carrying it on, but he may also abort it in 40 the meaningthat he may conduct the proceeding in whatever 209 Mi!jchtos J- Police v.Athienitis

(1983)manner it may appear expedient in the public interest. It follows that the Director of Public Prosecutions will intervene where the knowledge and the resources of his office should bebrought into play to bear in order to ensure that proceedings are properly conducted from the prosecution point of 5 view (see Raymond v. Attorney-General [1982], 2 All E.R. 487). In order to safeguard against the Director of Public Prosecutions exercising his power under s.4 of the 1979 Act to abort private prosecutions unnecessarily and gratuitously, by s.2 oftheAct, his duties are exercised under the superintendence of 10 theAttorney-General who,ishisturn,isanswerableto Parliament. It may appear that the provisions of Article 113.2 of the Constitution are wide enough so as to confer power on the Attorney-General to withdraw a case in any manner he chooses either in writing or orally. Therefore it may be submitted that 15 the provisions of s. 154of the Criminal Procedure Law,Cap. 155 should be construed accordingly in the light of Article 188.1 of the Constitution requiring modification of pre-1960 laws to bring them into accord with the Constitution. I am unable to uphold this submission. There is nothing 20 inconsistent or repugnant with the Legislature regulating the manner in which the undisputed right of the Attorney-General may beexercised. In fact there are sound reasonsfor its exercise inthemanner prescribed bys.154oftheCriminalProcedure Law, Cap.155. Most so as the right of the Attorney-General under 25 Article113-2of theConstitution extendstoboth private and public prosecutions. Section 154 of the Criminal Procedure Law Cap. 155in no way limits the right of the Attorney-General to terminate proceedings. It simply regulates the way in which it may be exercised. 30 Inmyjudgment intheabsenceofanolleprosequiinaccordance with s.154 of the Criminal Procedure Law, Cap. 155, all prosecutors applying for leave to withdraw are in the same position and it matters not that an application for withdrawal under s.91 of the Criminal Procedure Law, Cap.155 has, in addition, the 35 oral approval of the Attorney-General. In this particular case no explanations were offered as to the reasons which prompted the prosecution to apply for the withdrawal of the case. Without going into merits of the case it may be said that if oneAttorney-General after another follows 40 210 2C.I..R. Policev.Athienitis Malachtos J. the sameprocedve, ifeachinhis turn declines toprosecute,for no reasonthose who break the law, then the laws becomes a dead letter. Of course the Attorney-General has the power to file a nolle 5 prosequi, in which case the Courts will not dispute the exercise ofsucharight. ButwhentheAttorney-General comesandsays tothe Court that hewishesto withdraw acriminal case,hemust afford goodreasonswhythisshouldbedone, for hehasnoright to suspend or dispense with the laws of the land. If he 10 withdraws acase without reasonable justihcation, in the interestsofjustice, then any member of the public at large may comeand ask why thelawisnotproperlyenforced. TheCourts are not prejudiced. They have.only one prejudice and that is their duty to uphold indiscriminately the law. 15 Inasmuch as noreasons were afforded why the application should bewithdrawn, Idimisstheapplication. Theproceedings shall continue". The accused was then charge and pleaded not guilty and the trialJudgefixed thecasefor hearingonthe4thDecember, 1982, 20 ordering at the same time, the accused to appear on the same bail. On the 4th December, 1982, the prosecuting officer, in the presenceoftheaccusedandhisadvocate,statedtotheCourtthat hehad placed before the Attorney-General of the Republic the 25 ruling of theCourt, who instructed him tooffer noevidencein thecase. The trial judge then reminded the prosecuting officer that he had to comply with the ruling of the Court of the 18th October, 1982, to proceed with the hearing of the case. The 30 prosecuting officer then applied for an adjournment of the case in order to obtain new instructions as he was facing a big dilemma to comply with the instructions of his superiors or the Order of the Court. Then the trial judge made hissecond ruling in the case, which reads as follows: 35 40 "Before the commencent of the hearing of this case, Mr. Koulendis, who appears on behalf of the prosecuting authority, stated tothe Court thathe had instructions not tooffer any evidence against accused. The Court asked Mr. Koulendis to honour the previous ruling of the Court, dated the 18.10.1982 by which an application to 211 Mnlachtos J. Police v. Athienitis (IV83) withdraw the case wasdismissed and he was further asked to proceed with the hearing of the case. Mr. Koulendis asked for an adjournment to reconsider his position, in view of the very serious repercussions which would ensue following his decisions to comply with the 5 order of the Court. He submitted that ifhe complies with the order of the Court he may be facing disciplinary measures by the police authorities and if he refuses to comply with the order he will be committing the offence of contempt of Court, in which case he may be facing a 10 sentence of instant imprisonment. No doubt the prosecuting officer is placed in a very difficult dilemma and his decision may have far reaching consequences,both in his personal capacity aswellas inhis capacity asa member ofthepoliceforceand asa prosecuting 15 officer. Without interfering in any way with the manner the prosecuting officer approaches the whole issue, it may be useful to refer to the dicta of Lord Denning in the case of R. v. Metropolitan Police Commissiomer ex Parte Black 20 Burn,[1968] 2 Q.B.I 18, where the Commissioner of the Metropolitan Police failed to take proceedings against clubs for breach of the gaming laws in accordance with instructions issued by his superiors: *Ihold itto bethedutyof theCommissioner of Police,as 25 it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected;and that honest citizensmay go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution 30 or see that it is brought; but in all these things he isnot the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observationon thisplaceorthat;orthathemust,ormust not, prosecute this man or that one. Nor can any police autho- 35 rity tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. That appears sufficiently from Fisher v. Oldham Corpn [1930]All E.R. Reprint96,the Privy Council case of A. -G. 212 ΖC.L.R. Police v. Athienitis Malaehtos J. for New South Wales v. Perpetual Trustee Co. (Ltd) [I955j I All E.R. D. 846'. The Courts have a discretionary power to adjourn the hearing of a criminal case from time to time,as they may think fit (s. 48 5 of Cap. 155) . The principles which must be taken into account by the Court have been discussed in various cases (sec A.-G. v. Enimerotis

(1966), 2 C.L.R.25 and Improvement Board ofKaimakli v. Sevastides

(1967)2 C.L.R. 117). The tenor from the above decisions is that a piecemeal litigation must be avoided 10 and an adjournment will only be granted if and when the inte rests of justice so require, e.g. where a key witness is unable to attend. (See Kefalas v. Police

(1969)2 C.L.R. 90). Ί have examined very carefully the application by the prosecution and considering the seriousness of the reper15 cussions of the stand which will be taken by the prosecution and the novelty of the issue, I consider the application a> justified. The case is adjourned to 18.12.1982, for hearing. Accused to appear on same bail." 20 25 30 35 On the 18th December, 1982, the prosecuting officer again, in the presence of the accused and his advocate, made the following statement: "Your Honour, 1wish to inform you on behalf of the Ho nourable Attorney-General of the Republic, that the Ho nourable Attorney-General of the Republic, exercising his powers, inaccordance with Article 113.2 of theConstitution. discontinues any further proceedings in this case. 1 was also instructed to inform you that neither section 154 of the Criminal Procedure Law, Cap. 155, is applicable. We are concerned with a case for which theCriminalProcedure Law could not provide as it was enacted many years before the Constitution." The trial judge then adjourned to case for the 20th December. 1982, when again, in the presence of the accused and his advo cate, made his third ruling, where after summarising the facts of his two previous rulings, continues: " N o doubt, a casemay be withdrawn if the Court is satisfied that there are sufficient grounds for allowing such with drawal (see s.91, of the Criminal Procedure Law, Cap.155). Such a power is a discretionary one being exercised judicia!213 Matachtos J. Policev.Athienitis

(1983)ly in the interests of justice and cannot form the subject matter of a bargain between theprosecution and the defence. (/?. v. Bedwellty Justices Ex Parte Munday, 1970, Cr. Law Review, p.601). The discretion of the Court cannot be exercised at will, the paramount consideration being always 5 the protection of the interests of justice. In deciding whether to prosecute or not a particular case, the AttorneyGeneral may have regard to a variety of considerations, all of them leading to thefinal question: Would a prosecution bein the public interest including, in that phrase of course, 10 'in the interests of justice*? (Nina Ponomareva, [1956] Crim. L.R., 725). By virtue of s.154

(1)of the Criminal Procedure Law, Cap.155,the Attorney-General of the Republic has the right in any criminal proceedings and at any stage thereof toenter 15 anolleprosequiwhereupon the accused isdischarged at once in respect of the charge or information for which the nolle prosequi is filed. A nolle prosequi is usually entered in cases where the accused person cannot be produced to Court to plead or 20 stand trial due to mental or physical incapacity, which is of a permanent nature, and which can be entered only on the directions of the Attorney-General. (See R. v. Rowlands, 17 Q.B. 671). A nolle prosequi may be entered at any stage before 25 judgment (R. v. Dunn, 1 CN.K.730), but it cannot be entered during appeal proceedings. (Isaias v. Police

(1966), 2 C.R.L. 43). This power of the Attorney-General is not subject to any control by the Courts (R. v.Comptrollerof Patents [1899]1 30 Q.B. 909), Turner v. D.P.P. [1978], 68 Cr. App.R., 70 and Gouriet v. Unionof Post Office Workers [1977], 3 All E.R. p.70, but is open to criticism by the legislature and in England its abuse is prevented by the ordinary principle of Ministerial responsibility (Queen v. Allen

(1962)1 B. & S. 35 850). The filing of a nolle prosequi puts an end to the prosecution but does not operate as a bar, discharge or an acquittal on the merits and the party remains liable to be re-charged or re-indicted (Goddardv. Smith, 3 Salk. p.245). 214 C.L. 5 10 15 20 Policev.Athienitis Malachtos J. In this particular case the Attorney-General, by relying on Article 113.2 of the Constitution and by informing the Court that he discontinues the present proceedings, he submits, in reality, that he has the right to bring criminal proceedings at an end without the necessity of filing a nolle prosequi. Inasmuch as the question was more or less disposed by this Court in its ruling of the 18th October 1982, on an application for the withdrawal of the case based on Article ι 113.2 of the Constitution,I consider it pertinent to examine whether I can have the question reserved for the opinion of the Supreme Court, under s.148

(1)of Cap.155. By virtue of s. 148

(1)of Cap.155, 'Any Court exercising criminal jurisdiction may, and upon application by the Attorney-General, shall, at any stage of the proceedings, reserve a question of law arising during the trial of any person for the opinion of the Supreme Court'. Concerning the construction of the above section it was said by TriantafyHides Justice in Re Charalambous

(1974)2 C.L.R. p.37 that 'In our view a question of law arising during trial means only a question of law arising during the trial at a stage at which it has to be decided in order to enable the trial to proceed further in accordance with the law and rules of practice relating to criminal procedure*. 25 The words 'criminal proceedings' include proceedings instituted before any Court against any person to obtain punishment of such person for any offence against any enactment. (See s.2 of the Criminal Procedure Law, Cap.155). 30 The trial Court may reserve a question of law under s.148

(1)without stating its own opinion on the matter. (See Queen v. Herodotou, 19 C.L.R. p.144 and Republic v. Liasis

(1973), 2 C.L.R. p.283.) However, it was indicated in Re Charalambous(supra) that it is desirable for the trial Court to express its own opinion on the matter before exercising its discretionary powers as the parties may re consider their position in view of the reasoning contained in such decision. 35 215 M.itachtos J . Police\. Athienitis

(1983)As itwassaid byA. Loizou, in Republicv. Sampson

(1977), 2 C.L.R. p.l *lfanything, it would only beproper that such a question should be reserved after the ruling of a trial Court is given, so that its reasoning, if persuasive enough, may render unnecessary an application for such a reservation or reveal their thinking in case they eventually refuse to reserve*. 5 Considering the legal principles involved and that similar applications were dismissed by the Court on several occasions in the recent past and no appeals were filed against 10 such rulings, the tenor from the recent decision in Raymond v. Attorney-General [1982] 2 Ali E.R. p.487), that the Attorney-General must see that proceedings are properly conducted from the prosecution point of view, and taking into account the detrimental consequences which a ruling 15 against the accused may have as well as the undesirable embarrassment which will ensue between two main agencies of the Law, 1 find that 1 can and Ihereby have the following questions reserved for the opinion of the Supreme Court: 1. Can the Attorney-General discontinue a criminal case 20 under the provisions of Article 113.2 of the Constitution without filing a nolle prosequi in accordance with the provisions of s.154

(1)of Cap. 155? 2. If the answer is in the affirmative, can the AttorneyGeneral discontinue a case without affording any 25 reasons as to the due exercise of such a power?" Before Iexpress my opinion on the above questions 1 consider it pertinent to examine the powers of theAttorney-General under sections 91 and 154

(1)of the Criminal Procedure Law, Cap.155 and Article 113.2 of the Constitution. Section 91 reads as 30 follows: "91. Subject to the provisions of section 154of this Law, if a prosecutor in any summary trial, at any time before a final order is passed, satisfies the Court that there are sufficient grounds for permitting him to withdraw thecharge, 35 the Court may permit him to withdraw the same and shall thereupon acquit the accused: 216 2 Γ.Ι..ΙΪ. Police ΐ. Athienitis Malachtos J. Provided that, if the charge is so withdrawn before the accused had pleaded to it, the accused shall be discharged but such discharge shall not operate as an acquittal." It follows from the above section that the Attornex5 General himself and any officer subordinate to him. like any other prosecutor, in any summary trial may withdraw a charge with the permission of the Court if he satisfies the Court that there arc sufficient grounds to do so. This section, as stated therein, is subject to the provisions of 30 section 154 of Cap.155, which is as follows: '15 20 25 30 35 "154

(1)In any criminal proceedings and at any stage thereof before judgment the Attorney-General may enter a nolle prosequi, either by stating in Court or informing the Court in writing that the Crown (now the Republic)intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered.

(2)When a nolle prosequi is entered, if the accused lias been committed toprison, he shall be released, or if on bail the bail bond shall be discharged, and, where the accused is not before the Court when such nolle prosequi is entered. the Registrar or other proper officer of the Court shall, if theaccused is incustody, causenoticeinwriting of theentry of such nolle prosequi to be given forthwith to the person having custody of the accused and such notice shall be sufficient authority todischarge theaccused in respect of the charge or information for which thenolle prosequi isentered or, if the accused is not in custody, shall cause such notice in writing to be given forthwith to the accused and his sureties, if any, and shall, in every case, cause a similar notice in writing to be given to any witnesses bound over to appear.

(3)Where a nolle prosequi is entered in accordance with the provisions of this section, the discharge of an accused person shall not operate as a bar to any subsequent pro ceedings against him for the same offence or on account of the same facts." 217 Λlalachtus J . Polite v. Athicnilis (19H3) It is clear from the above.legislative provision that a nolle prosequi may be entered by the Attorney-General both in a summary trial and a trial by information instituted on his behalf or by any other person, either orally by appearing in Court or if he does not so appear he may inform the Court 5 in writing that the • Republic intends that the proceedings shall not continue. Thereupon the Court shall discharge the accused but this discharge however, does not operate as a bar to any subsequent proceedings. This power of the Attorney-General cannot be exercised by any other officer, 10 except the Deputy Attorney-General, or a Counsel of the Republic in accordance with the provisions of section 156 of Cap. 155 which reads as follows: "With the exception of the power to appeal from anyjudg ment of acquittal by any District Court under the provisions of section 137 of this Law, the Attorney-General may by writing under his hand or by notice in the Gazette, delegate all or any of the powers vested inhim under this Law to the Solicitor-General (now the Deputy Attomey-Geireral) or a Crown Counsel (now Counsel of the Republic)and the exercise of any such powers by the Solicitor-General or a Crown Counsel shall then operate as if such powers have been exercised by the Attorney-Genral." Under Article 113.2 of the Constitution,quoted earlier in this judgment, the Attorney-General has power exercisable at his 25 discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic, it is immaterial whether the proceedings have been instituted by him or anybody else. These powers may be exercised by him by appearing inCourt in 30 person or by officers subordinate to him acting under and in accordance with his instructions. It is clear from a mere glance at this Article and at section 154

(1)of the Criminal Procedure Law, that the power of the Attorney-General of the Republic to discontinue criminal pro- 35 ceedings is wider after the coming into operation of our Con stitution. 2IS 15 2d 2C.L.R. Policev.Athienitis Malachtos J. 1entirely disagree with the view taken by the trialJudge that section 154of the Criminal.Procedure Law regulates the way in which the right to discontinue a case by the Attorney-General is exercised. The power given to the Attorney-General to dis5 continue criminal proceedings by virtue of Article 113.2 of the Constitution, isquite independent from the power given to him under section 154

(1)of the Criminal Procedure Law. In the case in hand, the trialJudgel quite unnecessarily in my view, went into so many pains and made reference, to a con10 siderable number of judgments of the English Courts and converted a simple case into a very complicated one. To my mind. the duty of the trial judge was to apply a constitutional provision i.e. Article 113.2,which isclear and unambiguous. There are no conditions or restrictions imposed by this Article on the 15 Attorney-General as to how he will discontinue criminal proceedings. In the present case," as soon as the prosecuting officer had informed the trialCourt that he had instructions from theAttorney-General to discontinue the proceedings by virtue of Article 20 113.2 of the Constitution, all the trial Judge had to do was to record down this statement, dismiss the case and discharge the accused. 1 am, therefore, of the view that:25 30 . I. The Attorney-General can discontinue a criminal case under the provisions of Article 113.2 of the Constitution. without filing a nolle prosequi in accordance with the provisions of section 154

(1)of the Criminal Procedure Law, Cap.155: and 2. He can also discontinue a case without affording any reasons as to the due exercise of such power. Before concluding my judgment, I must state that 1 lea\e entirely open to be decided when it arises, the question as to whether the dismissal of a criminal case and the discharge of the accused under Article 113.2 of the Constitution, operates as an 35 acquittal or not. DEMETRIADES J.: On the 20th December. 1982, the District Court of Larnaca, having been informed by the Police Prose- 219 l)fim.iriadc.N J. Police \. Athienitis (1983* cuting Officer that the Attorney-General of the Republic, acting or the strength of Article 113of the Constitution, had instructed him to discontinue the conduct of Criminal Case No. 6143/82, in wliich the accused was prosecuted for stealing, reserved for the opinion ofthis Court thefollowing questions of law: 5 "I. Can the Attorney-General discontinue a criminal case under the provisions of Article 113.2 of the Constitution without filing a nolle prosequi in accordance with the provisions of s.154

(1)of Cap. 155? 2. If the answer is in the affirmative; can the Attorney- 10 General discontinue a case without affording any reasons as to the due exercise of such a power"/" I feel that I need not go into the facts and history of the proceedings before the District Court of Larnaca. because they appear in detail in the judgments just delivered by itiy brother 15 Judges and which I have had the advantage of reading before. Having read these judgments, I must say that 1fully agree v\ith the reasoning and the result reached by my brother Judge Trianiafyllidcs, P. However, I would like to add the following: Before the establishment of the Republic, the Attorney- 20 General, by virtue of section 154of theCriminal Procedure Law. Cap. 155, had the absolute right to discontinue proceedings by appearing before the Court and stating the intention of the "Crown" to do so, or by informing the Court in writing, i.e. by filing what is known as a nolle prosequi, that the "proceedings 25 shall not continue". With the establishment of the Republic and the coming into force of the Constitution, the position has, in my view, radically changed in that by para. 2 of Article 113, the Attorney-General of the Republic was vested with a much wider power to discontinue proceedings "in the public interest" 30 for offences committed in the Republic by informing theCourt of the intention of the Republic to do so. By this Article of the Constitution the Attorney-General of the Republic is placed in a different position than that of the Attorney-Generals in other countries where this post exists, in 35 220 2 C.L.R. Police \. Aliiicnitis Utiuclriadi'a J. that whilst in Cyprus the office of the Attorney-General is an independent oflicc of the Republic, in other countries it is a Ministerial post and the decisions of the Attorney-Generals may be made the subject of Parliamentary control. 5 In the light of the clear and unambiguous words of para.2 of Article 113of the Constitution, it is my view that the AttorneyGeneral of the Republic can discontinue any proceedings for offences committed in the Republic without having tofile a nolle prosequi. ](i However, it is my opinion that the prosecuting officer appearing in a criminal case should inform theCourt of the intention of the Republic, conveyed to him through the written instructions of the Attorney-General, to discontinue the proceedings and such information given to the Court or statement made by the 15 prosecuting ofliccr should be recorded in the minutes of the case kept by the trial judge in clear and unambiguous words. In the light of the above, the case should be remitted to the District Court of Larnaca and bedealt with accordingly. LORIS J.: On the 20th December 1982 the District Court of 2o Larnaca reserved for the opinion of the Supreme Court, under s.148

(1)of the Criminal Procedure Law, Cap. 155,the following questions of law: 25 " 1 . Can the Attorney-General discontinue a criminal case under the provisions of Article 113.2 of the Constitution without filing a nolle prosequi in accordance with the provisions of s.l54

(1)of Cap. 155? 2. If the answer is in the affirmative, can the AttorneyGeneral discontinue a case without affording any reasons as to the due exercise of such power?'* 30 The above two questions of law were reserved for the opinion of the Supreme Court under the circumstances which appear in the relevant ruling of the District Court of Larnaca in the criminal proceedings in case 6143/82; the relevant part reads as follows: 221 l-wk J- IVicc\. Alhienilb

(1983)"On the 10th September 1982, when this case was fixed for plea, the prosecution asked for an adjournment as the matter was reconsidered by the Attorney-General. The Court accepted the application and the case was adjourned to 9th October 1982, for plea. As on that date the Pro- 5 secution stated that they were not ready to proceed (due to the fact that the file was still at the office of the AttorneyGeneral) the Court adjourned the case for a second time to the 18th of October 1982, for plea. On the 18th October 1982, the Prosecuting Officer stated 10 to the Court that he had instructions from the AttorneyGeneral to withdrawthecaseonthebasisof Art. 113.2 ofthe Constitution. After a short break, the Court delivered its ruling, by which the application was dismissed. The accused was thereupon charged and pleaded not guilty to 15 the charge preferred against him and the case was accordingly fixed for hearing on the 4th December 1982. On that date the Prosecution submitted that they did not wish to offer any evidence and the Court asked the Prosecuting Officer to respect the previous ruling of the Court 2\) on the matter. An adjournment was later asked by the Prosecuting Officer in order to get further instructions and on the 18th December 1982, when the case was fixed for hearing, the Prosecution informed the Court that the Attorney-General, acting on the strength of Art. 113of the 25 Constitution, 'discontinues the conduct of the present proceedings'". Article 113.2 of the Constitution reads as follows:"2. The Attorney-General of the Republic shall have power, exercisable at hisdiscretion in the public interest to institute, 30 conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may beexercised by him inperson or by officers subordinate to him acting under and in accordance with his instructions." Thus, from the wording of Article 113.2 of our Constitution, it is clear that the Attorney-General of the Republic is 222 35 2C.L.tt. Police v.Athicnitb Loris J. (

a)vested with power to institute, conduct, take over and continue or discontinue criminal proceedings; (
b)he can exercise such power at his discretion in the public interest. 5 In relation to the said powers of the Attorney-General, it is the exclusive right of the Attorney-General to represent the public interest. As stated by Lord Wilberforce in the case of Gouriet v. Union of Post Office Workers, [1977j 3 All E.R. 70. (H.L.) at p. 83, letters B-C "that it is the exclusive right of the 10 Attorney-General to represent the public interest, even where individuals might be interested in a larger view of the matter, is not technical, not procedural, nor fictional. It is constitutional. I agree with Lord Wcstbury L.C. that it is also wise". L And the decisions to be made as to the public interest are en15 tirely within the province of the Attorney-General, an independent officer of the Republic according to our Constitution, and the Courts cannot interfere with such decisions. As Lord Wilberforce stated in the case of Gouriet,supra, at p. 84, letters D-E "the decisions to be made as to the public interest 20 are not such as courts are fitted or equipped to make. The very fact that, as the present case very well shows, decisions are of the type to attract political criticism and controversy, shows that they are outside the range of discretionary problems which the courts can resolve. Judges are equipped to find legal rights 25 and administer, on well-known principles, discretionary remedies. These 'matters are widely outside those areas." In this respect, we have to examine, whether any procedure exists for the implementation of the aforesaid powers of the Attorney-General. As it is natural such procedure is not en30 visaged by the Constitution itself; therefore, we have to resort to the relevant legislation with a view to tracing such a procedure and from what I am aware of the only law which provides for such a procedure is our Criminal Procedure Law, Cap.155, an enactment in force on the day of the coming into operation of 35 our Constitution, which, according to Article 188 thereof, must be construed and applied with such modifications as may be 223 '-«"•i*·J · Police \. Athienitis

(1983)necessary to bring the law in question into conformity with the Constitution. The relevant sections of the Criminal Procedure Law, Cap. 155, which speak directly or indirectly for the discontinuance of criminal proceedings are the following: 5 (A) Section 154

(1)under the sub-heading "General Powers of Attorney-General in criminal proceedings" which reads as follows: "In any criminal proceedings and at any stage thereof before judgment the Attorney-General may enter a nolle 10 prosequi, either by stating in Court or informing the Court in writing that the Republic intends that proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered." Is (B) Section 91 which refers to withdrawal of a charge by a "prosecutor in any summary trial"; it reads: "Subject to the provisions of section 154 of this Law, if a prosecutor in any summary trial, at any time before a final order is passed, satisfies the Court that there are sufficient ->Q grounds for permitting him to withdraw the charge, the Court may permit him to withdraw the same and shall thereupon acquit the accused: Provided that, if the charge is so withdrawn before the accused had pleaded to it, the accused shall be discharged but such discharge shall not operate as an acquittal." 2S (C) Section 3 which provides that "matters of criminal procedure for which there is no special provision in this Law (Cap. 155)or in any other enactment in force for the time being, every Court shall, in criminal proceedings, apply the law and rules of 3Q practice relating to criminal procedure for the time being in force in England." Under this latter section cases are covered, inter alia, where 224 2 C.L.R. Police \. Athienitis Loris J. rulesofpractice in England under thecommon law(and itmust beborne inmind that thecommon lawforms part andparcelof our law) were made applicable to Cyprus in cases of discontinuance of criminal proceedings by any prosecutor in the long 5 established formula of "offering no evidence". 1 do not intend making reference to authorities in order to cover the historical origin or the extent of use of this mode of withdrawingand or discontinuing a criminal proceeding; suffice it to say that such a mode was employed in England prior to 10 1960and is still so employed, as indicated by the dicta of Viscount Dilhorne in Gouriet case (supra) at p. 88 where it isexpressly stated that "he (the A/G) may tell him (the D.P.P.) to offer no evidence" i.e. the Attorney-General may direct orally the Director of Public Prosecutions, an officer subordinate to 15 him, to offer no evidence. As the relevant passage from the opinion of Viscount Dilhorne makes reference to nolle prosequi as well, I consider it very useful to transplant here the whole paragraph: 20 25 30 "The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolleprosequi. Hemerelyhastosignapieceofpapershowingthat hedoes not wishtheprosecution tocontinue. He need not give any reasons. He can direct the institution of a prosectuion and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleaguesor to the control and supervision of the Courts " (P er Viscount Dilhorne in Gourietcase (supra) at p.88 letters g-j). Thedictum ofViscountDilhornewasrecently followed in the case of Raymond v. Attorney-General, [1982] 2 All E.R. 487, whereat p.491,Sir SebagShawdelivering thejudgment of the ^5 Court ofAppeal, quoted verbatim the above referred passage from the opinion of Viscount Dilhorne. Thenexttopicwhich hastobeexamined iswhethertheabove 225 I.orisJ. Policev.Athienitis (J983J referred three modes of withdrawing and/or discontinuing a criminal proceeding, envisaged by our Criminal Procedure Law, Cap. 155, are applicable in the case of intended withdrawal or discontinuance by the Attorney-General of the Republic of a criminal proceeding. 5 I must say straightway tfiat the procedure envisaged under s.9l of Cap. 155 (B-above) although applicable in the case of any other prosecutor is positively inapplicable in the case of the Attorney-General of the Republic for the following reasons: a) It is exclusively within the powers of the Attorney- 10 General to decide whether it is in the public interest to discontinue or withdraw a criminal proceeding; b) The decisions to be made as to the public interest "arc not such as Courts are fitted or equipped to make"; they are definitely outside the province of the Court. 15 In other words neither the Attorney-General of the Republic has a duty to place "sufficient grounds for permitting him to withdraw the charge" before the Court, as he is the sole arbiter of public interest nor the Court can deal with decisions of public interest which in this connection are entirely outside his 20 province. Construing the remaining two modes of discontinuance of criminal proceedings, under (A) and (C) above, in the light of the relevant provisions of the Constitution, I am of the opinion that they are both compatible with the power vested in the 25 Attorney-General of the Republic by virtue of the provisions of Article 113.2; and of course such a power may be exercised by the Attorney-General in person or by officers subordinate to him acting under and in accordance with his instructions. Needless to repeat that when exercising such a power the 30 Attorney-General of the Republic need not give any reasons, as he is the sole arbiter of public interest, nor is he under the supervision and control of the Court. On both these occasions if the Attorney-General is appearing 226 2 C.L.R. Police\. Athienitib LurisJ. personally he can either discontinue under s.154

(1)of Cap. 155 or "offer no evidence" by making an oral statement to that effect before the Court; in cases though where he chooses to discontinue under s.154

(1)of Cap. 155,and he isnotpresent in 5 Court, he has to inform the Court accordingly m writing as section 154

(1)of Cap. 155 now stands on the Statute Book; wewerenot askedand, therefore, Ido not intend topronounce, whether the writing required under s.l54(I) is in any way restrictive of the powers conferred on the Attorney-General 10 under Article 113.2of the Constitution, although, as at present advised, 1cannot see how the power of the Attorney-General can be eliminated by the mere signing of a piece of paper informing the Court of his intention to discontinue a criminal proceeding, without giving any reasons (as he is perfectly en15 titled not to give) for such discontinuance. "Informing the Court in writing" under the circumstances envisaged by s.l54(I) of Cap. 155, does not arise when the Attorney-Generalchoosesto withdrawordiscontinue acriminal proceedingbymeansofmode(C)above i.e.whenhechooses to 20 "offer no evidence". In such a case hecan tellhis subordinate acting under his instructions to "offer no evidence" (per Viscount Dilhorne in Gourietcase - supra - at p.88). Pausing here for a moment, 1 feel that 1should state that all provisions concerning the withdrawal and/or discontinuance of 25 criminal proceedings should be enacted afresh, in which case the use of language consonant with the provisions of the Constitution would havedissolved any confusion likely to arise and would have rendered proceedings like the present oneunnecessary, thus saving the money of the taxpayer. 30 Inthelightoftheabovethepositionmaybethussummarized: I. The Attorney-General of the Republic is vested with power by virtue of the provisions of Article 113.2 of the Constitution to discontinue criminal proceedings at his discretion, in the public interest. 35 In exercising such a power the Attorney-General need not give any reasons as he is the sole arbiter of public interest, nor is he under the supervision and control of the Court. 227 Loris J. Police*.Athienitis

(1983)Such a power may beexercised by the Attorney-General in person or by officers subordinate to him acting under and in accordance with his instructions. -) The only procedural modes envisaged by our legislation enabling the Attorney-General to exercise his aforesaid power arc those described in (A) and (C) above. On both these occasions ifhe isappearing in person he can either discontinue under s.154

(1)of Cap.155 or "offer no evidence" by making an oral statement to thai effect before the Court. When he is not appearing in person a) if he chooses to inform the Court of his intention to discontinue under s. 154

(1), he has to do soin writing. b) if he chooses to "offer no evidence" he maydirect his subordinate orally to oiler no evidence. In the light of the above theanswer to both questions which have been reserved for our opinion should be inthe affirmative. STYLIANIDES J.: A District Judge, exercising criminal jurisdiction at theDistrict Court of Larnaca, reserved under s.148 (I) of the Criminal Procedure Law,Cap. 155,two questions of law ofconstitutional importance. Thequestions,as formulated. are:- "I. Can the Attorney-General discontinue a criminal case under the provisions of Article 113.2of the Constitution without filing a nolle prosequi in accordance with the provisions of s.J54

(1)of Cap. 155? 2. If the answer is in the affirmative, can the AttorneyGeneral discontinue a case without affording any reasons as to the due exercise of such power?" The formulation of these questions was the culmination of a tug of war between the Judge and the prosecuting officer in a summary trial of a minor criminal offence in which the pro228 2 C.L.R. Police \. Alliicnitis Styliunidcs J. secuting officer, acting on the authority and on the instructions of the Attorney-General of the Republic, tried unsuccessfully to bring to an end the criminal proceedings, as the Judge issued three consecutive rulings, denying to the Attorney-General the 5 right to withdraw a criminal case, to olfer no evidence and to discontinue, under Article 113.2 of the Constitution, a criminal case. On 18.10.82 the prosecuting officer, before the accused was called upon to plead, stated: "I have the instructions of the 10 Attorney-General to ask for the withdrawal of this case. I base my application on Article 113of the Constitution". The Judge ruled that the right to withdraw or discontinue a criminal charge pending before a Court of law may be exercised with the leave of the Court upon good ground shown. The Attorney-General 15 may enter a nolle prosequi in virtue of the provisions of s.154

(1)of the Criminal Procedure Law, Cap. 155,that simply regulates the manner in which the Attorney-General may exercise his power to discontinue proceedings for an offence. On 4.12.82 the prosecuting officer stated before the same 20 Judge that on instructions from theAttorney-General he is not offering evidence in the case. The Judge requested the prosecutor to proceed with the case as no withdrawal is possible except b y the leave of the Court. On 18.12.82 the prosecuting officer signified in unequivocal 25 language that "the Attorney-General, in exercise of his powers under Article 113.2 of the Constitution, discontinues the present proceedings". On 20.12.82 the Judge reiterated his previous ruling that the proceedings can only be discontinued by entering a nolle pro30 sequi by virtue of s.154

(1)of the Criminal Procedure. At the end of the day the learned trial Judge reserved the aforementioned two questions for our opinion. We have a written Constitution which came into operation on the day of the establishment of this Republic of ours. It is the 35 supreme Law of the Republic, and no law made thereafter, repugnant to, or inconsistent with, any of the provisions of the Constitution, is valid - (Article 179). 229 Slylianides J. Police κ Athienitis

(1983)All laws in force on the date of the Constitution, until amen ded, whether by way of variation, addition or repeal, by any law made under the Constitution,continue in force on or after that date, and shall, as from that date, be construed and applied with such modification as may be necessary to bring them into conformity with the Constitution - (Article 188.1). 5 The Constitution differs from ordinary legislation. It must be construed to give effect to the intentions of those who made and agreed to it and those intentions are expressed in or to be deduced from the terms of the Constitution itself and not from 10 any preconceived ideas as to what such a Constitution should or should not contain. It must not be construed as if it was partly written and partly not -(Hinds v. The Queen,[1976] 1 All E.R. 353). Our Constitution deals under separate headings with the legislature, the executive and the judicature. 15 The office of the Attorney-General was known to this country from the days of the colonial administration. The AttorneyGeneral of the Republic, unlike England, is an independent officer. He is appointed by the Head of the State. The qua- 20 lifications for his appointment and the terms and conditions of his office are the same as those of a Judge of this Court; he is not removable from office except on the like grounds and in like manner as a Judge of this Court. The exercice of the authority by the Attorney-General of the Republic is only 25 closely related to judicial proceedings in criminal cases, is not within the ambit of paragraph I of Art. 146 and, therefore, this Court has no jurisdiction over it; it is executive in character (Xenophontos v. The Republic, 2 R.S.C.C. p.89). Paragraph 2 of Article 113 of the Constitution reads as follows:- 30 "TheAttorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to insti tute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Re- 35 public. Such power may be exercised by him in person or by officers subordinate to him acting under and in accor dance with his instructions". 230 2C.L.R. Police \. Athienitis Stjlianides .). No doubt among the drafters of the Constitution there were persons nurtured in the Common Law. Criminal procedure in Cyprus is governed by the relevant law, Cap. 155, that preexisted the Constitution, having been enacted in 1948. The 5 due process is to consider and interpret the Constitution and then consider if the statutory provisions are consistent with the Constitution. The powers vested by the Constitution in any organ thereof cannot in any way be abridged or modified(See Police v. Edkotiki Eteria,

(1982)2 C.L.R. 63; Police v. 10 Georghiades,

(1983)2 C.L.R. 33). The powers of the AttorneyGeneral are in no way fettered; he is paris patriam. The exercise of such a power isa matter of his own discretion. The Attorney-General's discretion is absolute and not reviewable. It is upon him to institute any proceedings for an offence 15 against any person. In our legal system the function of the Courts is to stand idly by until their aid is invoked by someone recognized by law as entitled to claim the remedy injustice that he seeks. Courts of justice cannot compel anyone to invoke their aid who does not choose to do so; nor can they demand 20 of him an explanation for his abstention. The ordinary way of enforcing criminal law is by punishing the offender after he has acted in breach of it. Commission of the crime precedes the invocation of the aid of a Court of criminal jurisdiction by a prosecutor. 25 Criminal proceedings are instituted by a charge preferred before a Court. The charge ispresented to a Judge of the Court who, after perusal, directs that the same shall be filed - (Sections 37 and 43 of the Criminal Procedure Law, Cap. 155). The direction of the Judge for filing or his refusal to give such di30 rection no doubt is a judicial function and not administrative. He has to examine the charge in order to ascertain: (i) that an offence known to law is alleged, (ii) that it is not out of time, (iii) that the Court has jurisdiction, and (iv) that the informant has any necessary authority to prosecute - (See R. v.Gateshead 35 Justices, [1981] 1 All E.R. 1027,per Donaldson, L.J., at p.1033). The functions of the Court·whose aid is then invoked are restricted to (i) determine whether the accused is guilty of the offence that he is charged with having committed, and, (ii), if he is found guilty, decreeing what punishment may be inflicted on 231 Stylianides J. Police v.Athienitis

(1983)him by the executive authority - (Gouriet v. Unionof Post Office Workers, [1977] 3 All E.R. 70, per Lord Diplock at p.97). A private prosecution is always subject to the control of the Attorney-General through his power to take over, continue or discontinue. He has the power to conduct a case both instituted 5 by or on his behalf and a case taken over by him. He has the power to "conduct" proceedings. The word "conduct" appears to us to bewider thanthe phrase "carry on" and suggests to our minds that when the director inten'enes in a prosecution which has been privately instituted he may do so not exclusively for the purpose of pursuing it by carrying it on, but also with the object of aborting it, that is to say,he may "conduct" the proceedings in whatever manner may appear expedient in the public interest - (Raymond v. Attorney General, [1982] 2 All E.R. 487). 10 15 He may discontinue any proceedings. His power to discontinue isalso unfettered. Section 154

(1)of Cap. 155,with the necessary modification, reads:"154. -

(1)In any criminal proceedings and at any stage thereof before judgment the Attorney-General may enter 20 a nolle prosequi, either by stating in Court or informing the Court in writing that the Republic intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered". 25 Byentering a nolle prosequi, inaccordance with the provisions of s. 154

(1), the proceedings are discontinued. Is, however, thisprovision exhaustive of the power to discontinue? Though the provision of this section innot inconsistent with the Constitution. it is not exhaustive. Section 91, which refers to withdrawal of proceedings with the permission of the Court by a prosecutor, in the light of the above should be considered as not applicable in the case of the Attorney-General. The Attorney-General is not bound to procecute in every casewhere thereis sufficient evidence. When 35 a question of public policy or public interest may be involved, the Attorney-General has the duty of deciding whether 232 30 2CLR Police t Athienitis Stylianides J prosectution would be in the public interest Enforcement of the criminal law is.of course, a very important public interest, but it is not theonlyoneand may not always be the predominant one There may be even more important reasons of ^ public policy why such procedure should not be taken at a particular moment and must be proper for theAttorney-General to have regard to them. The above equally apply to his power to bring criminal proceedings to an end. The Attorney-General may discountinue proceedings also by 10 offering noevidenceorbyinforming theCourtofhisintentionto discontinue either orallyor in writingand either inperson or b> officers subordinate to him actingunder and in accordance with his instructions. The learned trial Judge, without disclosing the patermt> 15 used the following expression of Lord Denning in the Gouriet case: 'Tf one Attorney-General after another follows the same procedure,ifeachinhisturn declinestoprosecute for no reason those who break the law, then the law becomes a dead letter". Thisexpressionof the ex-Masterof Rollswas strongly criticized 20 by the House of Lords. Thepowerassigned totheAttorney-General might beabused, just as there is a possibility of any power being abused. Asa generalproposition that istruebut ithasnothingtodowiththis questions. A law, either preexisting the Constitution or enacted 25 thereafter, cannot validly alter or abridge the powers of the Attorney-General conferred onhimbytheConstitution Tosumup,theAttorney-Generalisadirect,independentorgan of the State. His power to discontinue proceedings, either by entering anolle prosequi, as provided in s.154

(1)of Cap. 155. 30 or by offering no evidence or by signifying his such intention to discontinue a case orally either in person or by any person or officer subordinate to him acting under and in accordance with his instructions, isunfettered and s. 154

(1)isnot exhaustive of his such power. It isoutside thejurisdiction or powerof Court 35 to ask or hear the grounds on which such power wasexercised. According to the Constitution, such power isexercisable at the discretion of the Attorney-General and neither a District Judge trying summary cases nor any other Court may inquire or 233 Stvlianides J . Police v. Athienitis

(1933)consider the reason which lead the Attorney-General to follow such a course. He is not subject to judicial control. In the light of-the foregoing my answer to the questions reserved is as follows:Question No. I; 5 The Attorney-General in person or by officers subordinate to him acting under and in accordance with his instructions can, without filing a nolle prosequi, inaccordance with the provisions of s. 154

(1)of Cap. 155,in exercice of hispowers under Article 113.2 of the Constitution, discontinue a criminal case in any 10 manner. It is sufficient to inform the Court either in writing or orally of his such decision. Question No. 2 : The Attorney-General can discontinue a case without affording any reasons as to the due exercice of his powers. 15 PlKIS J-: Questions of law of considerable importance to the administration of justice must be answered in response to a questionnare of District Court of Larnaca, formulated for our opinion under s.148

(1)of the Criminal Procedure Law, Cap. 155. The first question is whether the Attorney-General can 20 discontinue a case, in exercise of the powers vested in him under Article 113.2 of the Constitution, without filing a nolle prosequi, as proveded by s.154

(1)of Cap. 155."I hereby have the following questions reserved for the opinion of the Supreme Court : 1. Can the Attorney-General discontinue a criminal case under the provisions of Article 113.2 of the Constitution without filing a nolle prosequi in accordance with the provisions of s.l54(

l)of Cap.155? 2. If the answer is in the affirmative, can the Attorney 30 -General discontinue a case without affording any reasons as to the due exercise of such a power ? " What preceded the reservationof theaformentioned questionsof law, is worth noting; it illustrates the importance of the issues 234 25 2C.L.R. Policev.Athienitis Pikis J. raised and their implications upon the day-to-day administration of justice. Stefanos Athienitis was charged on a count of theft before the Larnaca DistrictCourt. Thechargewasapproved in accordance 5 with theprovisions of s.43 -Cap.155, by a Judge of the Court on 9/8/82. When the case came up forplea,thepolicesergeantwho conducted the prosecution on behalf of the prosecutor, the Larnaca Divisional PoliceCommander, requestedan adjournment for the reason that the file of the case was with the Office of the 10 Attorney-General "for consideration". On thenext appearance before the Court, the prosecuting sergeant made an application in these terms : 15 "I have the instructions of the Attorney-General to ask for the withdrawal of this case. I base my application on Article 113 of the Constitution". The Judge refused leave, taking the view he had a discretion in a matter of a judicial character. And in the absence of advancement of any reasons for the proposed course, his discretioncould only be exercised in one direction, the one followed. 20 If he had a discretion in the matter, leave was refused for a perfectly legitimate cause-lack of supporting reasons. In a lengthy ruling, the learned Judge indicated his reasons for the course taken, deriving support from English and Cyprus precedent. A number of cases cited therein, lend support to 25 the proposition that theonly way in which the Attorney-General may discontinue criminal proceedings without the leave of the Court, isbyfiling a nolle prosequi, i.e. a notice under his hand signifying his intention to discontinue proceedings. When the rulingoftheCourt wasdelivered,thepolicesergeant informed the 30 Court he did not wishto offer any evidence. Instructions to this purpose were issued, as he stated to the Court, by the Attorney -General, conveyed to the prosecuting officer through the Chief of the Police. In brief, he communicated to the Court, he had instructions from the Attorney-General not to proceed with the 35 charge against the accused. Thereupon, the Judge requested the prosecutor to proceed with the case, a stand consistent with his understanding of the law that no withdrawal is possible in whatever terms it may be couched, except by the leave of the Court. Offering no evidence, is but a species of an application 235 I'ik's J . Police v. Athienitis (19S3) lo withdraw pending proceedings. Thereupon, a new date of trial was given and the case was fixed for hearing on 18/12/82. On that occasion the prosecuting officer signified once again his unwillingness to proceed with the case, on instructions from the Attorney-General. The instuctions of the Attorney-General, 5 passed on to the Court by the prosecuting officer, were that he wished to discontinue the proceedings in exercise of his power under Article 113.2 of the Constitution. In view of the importance of the issues raised and the desirability of avoiding further friction with the office of the Attorney-General, the 10 learned trial Judge sought the guidance of the Supreme Court. reserving the aforementioned two questions for our opinion. Thefirst question sets out, lo my comprehesion, two questions of law and not one. This must have been within the contem plation of the trial Judge as well, having regard to the history 15 of the proceedings elicited above. "Discontinue" is defined in the Concise Oxford Dictionary as primarily connoting "cease from, give up (doing habit etc.) and cease taking . . . ". In my considered opinion on an appreciation of thefirst question posed, we are required to give an opinion on two distinct 20 subjects :(
a)The power, if any, of the Attorney-General to discontinue proceedings in a manner other than that envisaged in s.154{
l)- Cap.155 and, (
b)The control that a Court of law may exercise over a 25 decision of the Attorney-General to withdraw criminal proceedings. The first question requires us to decide whether s.154

(1)is in any way inconsistent to or incompatiblewith Article 113.2, so far as it defines the power of the Attorney-General to discontinue 30 (διακόψει) criminal proceedings. Laws enacted prior to inde pendencewere saved by Article 188.1 of the Constitution, subject to the requirement that they be applied with the necessary modifications if anyoneneeded, to conform with the provisions of the Constitution. 35 Counsel for the Attorney-General subscribed to the above analysis upon Question 1 and invited us to hold that(A) Article 113.2 confers 236 on the Attorney-General 2 C.I..R. Police t . Athienitis Pikis .! unfettered power to discontinue proceedings. To the extent this power is limited by s.l54(l) - Cap.155. it must be disregarded. 5 Ό 15 (B) The Attorney-General can stop any prosecution b\ offering no evidence or by withdrawing the charges without the leave of the Court, notwithstanding the provisions of s.9l - Cap.155, or any other enactment In his submission, the Attorney-General can bring procecings to an end, by offering no evidence after plea, without the leave of the Court, resulting in a verdict of not guilty, i.e. a verdict on the merits of the case. 1shall attempt to,answer the question?. raised in the order above earmarked. (A) Can the Attorney-General discontinue Proceedings except in the Manner specified in Section 154( I) -Cap. 155? The Constitution is the supreme law of the land -Article 179.1 of the Constitution. Subject to the doctrine of necessity, a1judically defined its provisions must be given effect to without any qualihcation whatever. Recent decisions of the Supreme 20 Courtemphasize that no law canabridge or modify constitutional rights. (See, Police v. Ekdotiki Eteria

(1982)2 C.L.R. 63: Georghiou v. The Attorney-Genera!

(1982)2 C.L.R. 93t< and. Police v. Georghiades

(1983)2 C.L.R. 33, 48). The crucial question in this case is whether s.154

(1)- Cap.155. 25 abridges or, in any way restricts the rights vested in the Attorne> -General by Article 113.2 of the Constitution to discontinue proceedings. Section 154

(1)is a procedural anactment forming part of a code designed to regulate comprehensively every facet of criminal proceedings. It is modelled on the way the Attorne) 30 -General in England exercises •his right to discontinue pro ceedings. Parenthetically, it may be notedthat in England anolle prosequi, is in practice entered only when the accused cannot proceed to Court to plead or attend trial due to mental or physical incapacity of a permanent nature, making attendance 35 before the Court unlikely in the foreseeable future. (See. R. v. Rowlands, Π Q.B. 671). Section 154

(1)provides that, if the Attorney-General appears in person before the Court, he can discontinue proceedings by making a statement to that effect and, in every other case, by 237 Pikis J. Policeχ.Athienitis

(1983)informing the Court in writing that the State intends that pro ceedings shall not continue. In the words of Lord Dilhorne, in Gouriet v. U.P.W.[I978]'A.C. 435, all the Attorney-General has to do is to sign a piece of paper suspending theprosecution. What section 154(l)'ai>:is to achieve on a preview of its plain 5 provisions, is to provide for the manner in which the right should be exercised prescribing the barest formality conceiva ble, to sign a piece of paper. Can it then be validly asserted that this formality, if at a!! a formality, constitutes a restriction of his rights under Article 113.2 and an inroad into his powers? 10 In my judgment the question requires only to be asked for the answer to be suggested. Section 154

(1)neither abridges nor restricts the rights of the Attorney-General under Article 113.2. It .iicrely lays down how it should be exercised, providing a simple procedure designed if nothing else to ensure that no one 15 other than the Attorney-General assumes his rights under Article 113.2 of the Constitution. Farfrom restricting his powers under Article 113.2,s.154

(1)-Cap.155, reinforces themin aman ner perfectly compatible with the dictates of the Constitution. The second accomplishment of s.154

(1)- Cap.155, is to in- 20 dicate the repercussions flowing from the entry of a nolle pro sequi. The proceedings are suspended, the accused is discharged but not acquitted. Here, again, there is no derogation from Article 113.2. To discontinue (διακόπτω) confers no more power than lo interrupt the proceedings; it brings the criminal 25 process to a halt but not a conclusive end, The third object of s.154

(1), again compatible with Article 113.2, is to establish the stage at which proceedings may be suspended before judgment. This is consistent with the notion of discontinuance in Article 113.2 for, after judgment there is 30 nothing to discontinue. The legal process has come to an end. The submission that s.154

(1)- Cap.155, is limitative of the rights of the Attorney-General under Article 113.2, overlooks the object of a procedural enactment, such as the Criminal Procedure Law, which is to regulate and co-ordinatethe exercise 35 of legal rights. Procedural rules provide the foundation for the exercise of legal rights. Without them the edifice of the law would be at risk of collapse. The exercise of every right known lo the law, starting from the most fundamental, the right to liberty down to the most trivial ones, is subject to procedural 40 238 2C.L.K. 5 Police \. Athienitis Pikis ,J, regulation in the interests of order and coherence in the legal system. Criminal procedure aims to inject thenecessary certaini) in the legal process. Procedural rules are. as legal history tea ches, as consequential as the rights the exercise of which thc\ regulate. Procedural safeguards provide ihe spring-board Γοι the valid exercise of rights given by law. It has been authoritatively decided-by the Supreme Court, in Photini Polycarpou Georghadji and Another v. The Republii

(1971)2 C.L.R. 229 that, there is no inconsistency or confim 10 between the provisions of s.25

(2)of the Courts of Justice La·.· - 14/60 and those of Article 155.1 of the Constitution, vesting in the Supreme Court exclusive appellate jurisdiction. The ratio emerging is that every right or jurisdiction, even if ii emanate** from the Constitution, is subject to reasonable procedural 15 regulation. (See, also, Lefkios Rodosthenous and Anoiln-r i. The Police. 1961 C.L.R. 48 and. Attorney-General v. Pouri* and Others

(1979)2 C.L.R. 15). All that' s.154

(1)- Cap.155 purports to accomplish, is to establish the mode in which the right of the Attorney-General to discontinue proceedings ma\ 20 be exercised. In my judgment it is both reasonable and neces sary. 1 found it hard to comprehend how a provision, requiring ihc Attorney- General to signify his decision lo discontinue pro ceedings, whenever not present in person, in the simplest con25 ceivable manner restricts his rights under Article 113.2. II we were to accede to the submission made on behalf of the Attorney-General, we would have to hold by the same reasoning inapplicable, in the case of theAttorney-General,every provision of the criminal procedure law regulating the institution and con30 ceivably the conduct of criminal proceedings. A series of pro visions of Cap.155 deals with the prerequisites for a valid institution of criminal proceedings applicable to the AttorneyGeneral as well, in accordance with s.109 of the same code (see, sections 39, 40, 41 and 42). Another corollary from the 35 above submission would be that requirements of Cap.155 for a preliminary inquiry in thecase of serious offences would be unconstitutional on grounds of restrictiveness of the right of the Attorney-General to institute proceedings. Here con templation of the implications of the submission made, per40 suadcs one of its unsoundness. Also it is contrary to authority. 239 Pikis J. Police v. Athienitis

(1983)In my judgment, the submission of counsel runs counter to the decision of the Supreme Constitutional Court in theRepublic v, Charalambos Zacharia, 2 R.S.C.C. 1, establishing that the decision of the Attorney-General to prosecute isof an executory character, only procedurally binding upon the Court. It ts not 5 a decision of a judicial character in the strict sense. Judicial power vests in the. Supreme Court and Courts subordinate thereto in virtue of the express provisions of Article 152.) of the Constitution. This isthe reason why the initiation, conduct and trial of judicial proceedings is subject to judicial control as a 10 matter of constitutional order, (See, Police v. Hondrou, 3 R. S.C.C. 82; Papaphilippou v. The Republic, 1 R.S.C.C. 62). The power of the Attorney-General to discontinue proceedings is of a similar nature with his power to initiate proceedings by the same reasoning of executive character, only procedurally 15 binding upon the Court. Therefore, byentering a nolle prosequi, the proceedings are suspended because the decision of the Attorney-General is procedurally binding upon the Court. It results in the discharge of the accused. On the other hand, a verdict on the merits is a purelyjudicial act that cannot emanate 20 from anyone other than the judiciary. In my judgment, the provisions of section 154

(1)- Cap.

are in no conflict with those of Article 113.2 of the Constitution. The Attorney-General may, at any time, orally, if personally present, or by filing a nolle prosequi under his hand 25 on any other occasion, discontinue proceedings. Not only the criminal procedure leaves unfettered the right of the AttorneyGeneral to discontinue criminal proceedings at his discretion, but also establishes by s.156 - Cap.155 the procedural framework for the delegation of his powers signified by an appro- 30 priate notice in the Gazette. (B) Can the Attorney-General withdraw Proceedings by offering no Evidence,orotherwise,withoutthe Leaveof the Court? Counsel for the Attorney-General argued that power vests, in virtue of Article 113.2 of the Constitution, in the Attorney- 35 General to bring proceedings to an end by offering no evidence or by ar act of withdrawal and that such decision is binding upon the Court and should result in a verdict on the merits, i.e. a verdict of not guilty. As already noted, the acknowledgment of such power to the Attorney-General would in effect 40 240 2 C.L.R. Pikis J . Police v. Athienitis entail overriding *he provisions of the Constitution, vesting judicial power exclusively in the hands of the judiciary. The Courts retain control over every aspect of judicial proceedings and, within the sphere of their powers they are sove5 reign. The exercise of their power to control proceedings is procedurally regulated by the provisions of s.91 - Cap.
making the withdrawal of criminal proceedings subject to the leave of the Court. A similar jurisdiction vests in the Courts in trials on information. In Cyprus this is a corollary of the 10 principle of separation of powers, as well as a fundamental rule of the common law, made applicable in Cyprus by virtue of the provisions of s.29(l)(c) of the Courts of Justice Law 14/
In a legal system of separation of powers the exercise of 15 every aspect of judicial power is necessarily the exclusive domain of the Judiciary - Hinds v. Queen [1976] I All E.R. 353 (P.C.). in R. v. Meruyn Broad [1979] 68 Cr. App. R. 281; it was affirmed as a principle admitting no controversy that a Court 20 exercising criminal jurisdiction is not bound by any decision of the prosecuting authority to drop the case or abandon it. In the epigrammatic words of Roskill L.J., as he then was, 25 "The Judge in such circumstances is not a rubber stamp to approve a decision by counsel without further investigation, a decision which may or may not be right and which, in the present case, in the view of each member of this Court, with respect to the experienced counsel concerned, was not one with which this Court agrees." 30 The learned Judge earlier pointed out that the approval of the Court for any course proposed to be taken by the prosecution is no idle formality. The history of the proceedings in the above case demonstrates the wisdom of this rule. The prosecution took the view that the evidence against the accused was insuffi35 cient to support a chargeof handling stolen goods and, informed the Court that they intended to offer no evidence against him. Leave was sought to withdraw the case. On perusal of the material before the trial Court outlining the evidence against the accused, the Judge took a contrary view of the effect of the 241 ( Pikis J. Police ι. Athienitis

(1983)evidence whereupon he refused leave and requested the pro secutor to proceed with the case, a request properly heeded by the prosecution. At the end of the day, the accused was con victed and sentenced to two years* imprisonment. On appeal the Court took the view, unanimously, that the course followed by the trial Judge was impeccable, beyond any criticism. 5 Subject to the entry of a nolle prosequi in the manner envisa ged in s.154

(1)- Cap.155, the prosecution cannot bring criminal proceedings to a conclusion in any manner whatever, except by ihe leave of the Court. (See, also, R. v. Bedweilty Justices ex P. 10 Munday Crim. L.R., [1970] p. 601). The breadth of the discretion of the Court to control pro ceedings before it, is illustrated by the case of Soanes [1948 32 Cr. App. R., 136, where it was held that the Court retains power not only to refuse leave to withdraw, but also power to 15 reject a course agreed upon between prosecution and defence upon a plea of guilty to the remaining counts. (The cases of R. v. Philips [1953] 1 All E.R. 968 and, R. v. Nishbet [1971] 3 All E.R. 307, 312, 313, also furnish a good illustration of the inherent power of the Court to control proceedings before it). 20 In Police v. Tterta

(1973)1 J.S.C. 109 - a decision of the District Court of Famagusta - Ihad occasion to review thepro visions of s.91 -Cap.155 and,examine their origin and compass. It was observed that s.91 reproduces the powers traditionally exercised by criminal Courts under the common law system to 25 control proceedings before them, inevitably requiring the leave of the Court for their withdrawal. (See, also, CriminalProce dure in Cyprus, by Loizou and Pikis, p.69). The Supreme Court in Jsaias v. The Police

(1966)2 C.L.R. 43, rigorously proclaimed that the progress and outcome of 30 judicial proceedings is always subject to judicial control. A Court of law, it was observed, is not bound by the view of the prosecution as to the implications of evidence adduced before the Court, being the sole arbiter of the outcomeof a case on the merits. The abovedecision lends indirectly support,inmy view, 35 to the proposition that s.l54(

l)is not inconsistent with the pro visions of Article 113.2 of the Constitution. A nolle prosequi, 242 2 C.L.R. Policev.Athienitis Pikis J. they noted, can only be entered before judgment, affirming the validity of the provisions of s.154 in this area. From the moment a charge is approved, the fate of judicial proceedings issubject tojudicial control inexercise of thepowers 5 vested in the Judiciary by the Constitution. The very approval of a charge is a matter of judicial discretion. No one can institute proceedings without the approval of the Court, whoever the prosecutor may be (see, s.43(
l)- Cap.155). The approval of a charge is a judicial and not an administrative matter 10 R. v. Gateshead Justices [1981] I All E.R. 1027. 15 20 25 30 35 The power of the Courts to control criminal proceedings must not be confused with the role of the Judge in the judicial process. These are two separate and distinct questions. Under our system of law, the Judge remains aloof of the legal battle that is waged before him and retains throughout the proceedings his distance from the adversaries. He remains throughout theimpartial arbiter of the strengthof thecaseof the adversaries. He isnot expected to interfere with the presentation and conduct of the case for the prosecution, nor is it his function to exercise control over the manner in which evidence is presented.* (See, R. v. Sang [1979] 2 AH E.R. 46(C.A.) and on appeal to the House of Lords, 2 All E.R. 1222). ,In the exercise of his powers to prosecute, the Attorney-General is not subject, either to Ministerial control or control and supervision by the Courts. (See, Gouriet v. P.P.W. [1978] A.C. 435). The distance that a Judge must maintain from the position of the adversaries is in no way inconsistent with the powers vested in the Court to controljudicial proceedings. The power to control proceedings is necessary in order to safeguard the independence of the Judiciary, as well as sustain the faith of the public in thejudicial process. Every decision on the merits colours the quality of justice in the country and is of direct concern to the Judiciary. Abdication from the exercise of control over judicial proceedings would involve abandonment of the constitutional responsibility of the Court as the custodians of thejudicial power of the State. It would also undermine their independence. • However, unlike the positicn adopted in Sang supra, we have it on authority in Cyprus, that a judge should scrutinize the way evidence is collected. its provenance, in order to ensure, at the least, that constitutional provisions are observed in collecting evidence-Police v. Georghhdes

(1983)2C.L.R. 33,48. 243 Pikis .1, Police v. Athienitis

(1983)In my judgment, the Attorney-General cannot withdraw the proceedings, except by leave of the Court. But he can discontinue proceedings in the manner envisaged by s.154

(1)Cap.155, without giving any reasons for the discontinuance, unless he chooses to do so. Supplying the reasons for such a 5 decision, is entirely a matter for the Attorney-General. To my comprehension, making public reasons for the entry of a nolle prosequi, is subject to the existence of compelling reasons justifying a different course, invariably in the public interest. Furnishing reasons for a decision to enter a nolle prosequi, 10 serves best the principle of equality before the law enshrined in Article 28.1 of the Constitution. In the light of the above, my answer to the questions raised is as follows: Answer to Question 1: The Attorney-General can only discon- 15 tinue a criminal proceeding by filing a nolle prosequi. Discontinuance of acase in anyother circumstances, whether by the Attorney-General or any prosecutor, is only possible by the leave of the Court. Answer to Question 2: The Attorney-General need not give 20 reasons for the suspension of a case by the entry of a nolle prosequi. Discontinuance of a case in any other circumstances is subject to the discretion of the Court exercised judicially upon explanation of the reasons justifying discontinuance. Order accordingly, 25 244

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.