Westray Prosecution Review Released

An independent review of the Nova Scotia Public Prosecution Service provides valuable insights as to why the Westray prosecution team concluded no reasonable chance of conviction existed, a conclusion the reviewers have characterized as "not unreasonable."

The 286-page report, written by Queen's counsels Duncan Beveridge and Patrick Duncan under the direction of retired justice Fred Kaufman, was submitted to Attorney General Michael Baker. It's the result of a review initiated in October of 1998 and includes 16 recommendations aimed at improving the Public Prosecution Service and investigative operations.

"I've been studying the report and am satisfied the review is a fair and balanced one," said Mr. Baker. "I agree with most of its recommendations and I'll work with the Public Prosecution Service and others in the process of implementing those recommendations."

The review was ordered after the Public Prosecution Service decided not to go ahead with prosecuting the operators of the Westray mine. The mine exploded in May of 1992, killing 26 miners. The prosecution encountered a number of problems from the time it was initiated in April of 1993, and the Public Prosecution Service was criticized for its handling of the case. Resourcing issues, allegations of non-disclosure of evidence and undue delays were among the criticisms cited.

"Overall, I think this is an important review because it clearly explains the Crown's role in the criminal justice system, generally, and in the Westray prosecution specifically," said Martin Herschorn, acting director of the Public Prosecution Service. "Sometimes, as in the Westray case, the proper fulfilment of the Crown's role involves not proceeding on charges."

Among key specific findings in the review are:

• the Public Prosecution Service's efforts were initially affected by a lack of adequate resources and by a lack of staff trained in major, complex cases;
• there was no undue delay in coming to the decision to stop the prosecution;
• there was no evidence to support criticisms the Crown was "playing to win or playing to an enraged public" through late or non-disclosure of evidence; and
• the decision to stop the prosecution was based upon a consideration of appropriate factors, application of the appropriate legal test and was "not unreasonable."

Recommendations included a call for:

• the formulation of a clear statement of principle and of guidelines regarding the sufficiency of evidence standard;
• a rotation for interested Crown attorneys through the Special Prosecutions Unit for training in major and complex cases; and
• the development of protocols to address prompt assembly of counsel to provide timely pre-charge advice to police.

"The review carefully looked at every decision, every move in the process," said Mr. Herschorn. "I think the Public Prosecution Service will benefit from the analysis and the recommendations found in the review."