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Prosecutions / POLICY

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11. NON PROSECUTION POLICY.pdf 11 9/23/2022 1:43:12 PM

12. NON PROSECUTION POLICY.pdf 12 9/23/2022 1:43:12 PM

2. This document was prepared with the assistance of the UK Sierra Leone Pro Bono Network and Akin Gump Strauss Hauer & Feld LLP, with support from the British High Commission Freetown. NON PROSECUTION POLICY.pdf 2 9/23/2022 1:43:12 PM

10. Anti-Corr uption Commission October 2022 NON PROSECUTION POLICY.pdf 10 9/23/2022 1:43:12 PM 10


6. The recommendation of the duty prosecutor is subject to review by the Commissioner. 2.2. Discr etion and Authority of the Commissioner The Commissioner has discretion and overriding authority with regard to decisions to initiate or decline prosecution as provided for by the ACA, as amended. 2.3. Initiating or Declining Prosecution In order to initiate prosecution, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each offender on each element of each prospective charge. A realistic prospect of conviction means an objective, impartial and reasonable cour t hearing a case, properly directed and acting in accordance with the law, is more likely than not to convict the accused. The prosecutor must consider key evidence contained within the inv estigator's report and whether that evidence establishes: first, elements for each offence and second, person or persons to be charged who committed the offence. If the prosecutor concludes that the prosecutorial threshold is met, they should consider whether to: (A)Request or conduct further investigation; (B)Recommend prosecution; (C)Decline prosecution and recommend alternative disposition; (D)Decline prosecution without taking other action. 2.4. Gr ounds for Commencing or Declining Prosecution Th e prosecutor should consider the following grounds for commencing or declining prosecution. 2.4.1. Str ength of evidence to secure conviction Even if the prosecutorial threshold is met, the prosecutor should consider the strength of the admissible evidence and the likelihood of securing a conviction. 2.4.2. Public interest When assessing whether prosecution is in the public interest, the prosecutor should consider each of the factors set out below. The factors are not exhaustive and may not all be relevant in every case. The weight to be attached to each of the factors will also vary according to the facts and merits of each case. As always, written assessments of relevant factors must be recorded in the prosecutor's opinion. In deter mining public interest, the prosecutor should consider the seriousness of the offence. The more serious, the more likely it is that a prosecution is required. When assessing seriousness, consider the NON PROSECUTION POLICY.pdf 6 9/23/2022 1:43:12 PM 6

5. “Recommendation” or “Opinion” means the opinion regarding the decision to c harge and alternatives to prosecution prepared by the duty prosecutor, for review by the Commissioner. “Restitution” means financial reimbursement by the offender for loss or damage to any public property as a result of misappropriation of public or donor funds or from any similar source, and shall include any interest charges the g overnment institution accrued. 1.3. Non-Exhaustive This P olicy is not exhaustive and must be read together with applicable existing law , regulations, policies and other relevant guidelines, as may be necessary and applicable, including, but not limited to: the Constitution, the ACA; the Criminal Procedure Act; and the Public Procurement Act. 1.4. Non-Litigable This P olicy is intended solely for the guidance of prosecutors working with or under the auspices of the Commission. The Policy is not intended to create a substantive or procedural right or benefit, enforceable at la w, and may not be relied upon by defence counsel or any other party to litigation or inquiry before any tribunal or other such inquisitorial bodies established by any law or authority in Sierra Leone or outside of Sierra Leone. 1.5. Application In carr ying out their responsibilities, each prosecuting lawyer should be gui ded by these principles, and the Commissioner, Deputy Commissioner, and Director of Prosecutions should ensure that such principles are comm unicated to the lawyers who guide the Commission by w ay of opinions to exercise prosecutorial discretion within their office or under their direction or supervision. Failure to adhere to the guidelines may lead to administrative inquiry and disciplinary process of the Commission that may lead to warning, termination, or, in serious circumstances, dismissal. Where the circumstances warrant, in addition to internal disciplinary action, criminal prosecution may be pursued. The Commission and the prosecutors hav e the discretion to apply the Policy to any offence under the ACA for which an offender is culpable, whether or not the evidence available meets the prosecutorial threshold and there is a reasonable prospect of conviction. 2.1. General Principles Alternativ es to prosecution should be applied at the earliest opportunity. The duty prosecutor assigned to the case shall make the initial recommendation and identify the alternative to be applied with reasons in his prosecutorial opinion, prepared and submitted for review to the Commissioner. 2. NON-PROSECUTION GUIDELINES NON PROSECUTION POLICY.pdf 5 9/23/2022 1:43:12 PM 5

8. At any time before the filing of an indictment, an alleged offender may request that the Commission dispose of their case through an alternati ve to prosecution within the framework of this Policy and the applicable la ws. The offender may petition orally or in writing to the Commissioner to be considered for an alternative to prosecution. If done orally , the duty prosecutor must include a summary of the offender's petition in the case files, including the date of the request, and any person(s) present when the offender made the request. If in writing, the offender must present a concise statement detailing the applicable relevant factors and why they should be considered for an alternative to prosecution. T he Commissioner will consider the summary of the oral petition or the statement of the offender in conjunction with the report prepared by the duty prosecutor assigned to the case in determining whether to proceed with an alternative to prosecution. 2.6. Imper missible considerations In ex ercising prosecutorial discretion, the prosecutor is not permitted to consider: · T he offender's race, tribe, colour, creed, place of origin, circumstance of birth, sex, religion, status, ethnic or linguistic association or ties, or opinion; · The prosecutor's own personal feelings concerning the offender or the offender's associates; · The possible effect of the decision on the lawyer's own professional or personal circumstances; · T he failure of the accused to request an alternative to prosecution. 2.7. Organisational Wrongdoings The prosecutor should consider the following factors in reaching a decision as to the proper treatment of an organisational target: · The nature and seriousness of the offence, including the risk of harm to the public, and applicable policies and priorities, if any, governing the prosecution of organisations for particular categories of crime; · The pervasiveness of wrongdoing within the organisation, including the complicity in, or the condoning of, the wrongdoing by organisational management; · The organisation's history of similar misconduct, including prior criminal, ci vil, and regulatory enforcement actions against it; · The organisation's willingness to cooperate, including as to potential wrongdoing b y its employees or agents; · The adequacy and effectiveness of the organisation's compliance programme at the time of the offence, as well as at the time of a charging decision; · T he organisation's timely and voluntary disclosure of wrongdoing; · The organisation's remedial actions, including, but not limited to, any efforts to implement an adequate and effective organisational compliance prog ram or to improve an existing one, to replace NON PROSECUTION POLICY.pdf 8 9/23/2022 1:43:12 PM 8

3. 1.1.Preface This Non-Prosecution Policy is intended to guide the conduct, powers, and duties of prosecutors in making the decision to charge a violation of the Anti-Corruption Act and the factors to consider in the exercise of prosecutorial discretion. This Policy intends to cement and enhance the gro wth of a strong, efficient, and professional anti-corruption prosecutorial framework having made substantial progress since establishment of the Anti-Corruption Commission. It is expected that the consistent use of this Policy will ensure transparency and accountability in the exercise of prosecutorial powers and discretion and, consequently, build public confidence and trust in the Commission and the justice system at large. 1.2. Definitions These guidelines shall be referred to as the “Non-Prosecution P olicy” or the “P olicy”. “Act” or “ACA” means the Anti-Corruption Act of 2008 as amended in 2019, pro viding for the establishment of an independent Anti- Corruption Commission for the prevention, investigation, prosecution and punishment of corruption and corrupt practices. “Alternati ves to prosecution” or “alternativ e disposition” means circumstances where a prosecutor decides not to charge, but instead, refer the offender to other forms of punishment. Examples include but are not limited to: restitution, cooperation agreements, and asset forfeiture. “Cooperation Agr eement” means an agreement between an offender and the Commission wherein the offender agrees to (1) respond truthfully and completely to all questions, whether in interviews, in correspondence, telephone conversations, or at any trial or other court proceeding; (2) attend all meetings, trials, and other proceedings at which the offender's presence is requested by the Commission; (3) produce voluntarily any and all documents, records, or other evidence requested by the Commission; (4) not engage in any criminal activity while cooperating with the Commission; (5) disclose the identity of all conspirators known to the offender; and (6) disclose to the Commission the existence and status of all money, property, or assets, of any kind, derived from or acquired as a result of, or used to facilitate the commission of, the offender's illegal activities or the illegal activities of any conspirators. In exchange for the cooperation of the offender, the Commission may exercise discretion to decline prosecution or to otherwise pursue alter native disposition including civil recovery where applicable. “Commission” means the Anti-Corruption Commission of the Republic of Sierra Leone, authorized under Section 2 of the Anti- Corruption Act. “Co mmissioner” mea ns the Anti-Corruption Commissioner appointed under Section 3 of the Anti-Corruption Act. 1. INTRODUCTION NON PROSECUTION POLICY.pdf 3 9/23/2022 1:43:12 PM 3

7. offender's culpability and the harm caused by considering the factors listed belo w: · Nature of the offence · W hether prosecution is a proportionate response · Culpability of the offender · Offender's willingness to cooperate and acceptance of responsibility · Offender's ability to provide restitution to the public · T he probable sentence or other consequence · Impact on or harm to the public · W hether sources of information require protecting · Deter rence 2.5. Alter natives to Prosecution 2.5.1. General Guidance In deter mining whether there exists an adequate, non-criminal alternati ve to prosecution, the prosecutor should consider all relevant factors, including: · T he reasonableness of the alternative to prosecution; · T he sanctions or other measures available under the alternative means of disposition; · T he likelihood that an effective sanction will be imposed; · T he time frame required to achieve the desired sanction; · T he effect of non-criminal disposition on law enforcement interests; and · T he interests of any victims. 2.5.2. P ermissible Alternatives to Prosecution In accordance with relevant laws, permissible alternatives to prosecution include , but are not limited to: · Ci vil penalties · R estitution, for misappropriation offences · F orfeiture and confiscation of assets · Cooperation agreements · Non-prosecution agreements · Defer red prosecution agreements Any of the above mentioned alternative dispositions may be a means of sanction for the offender, alone or together with others, whether or not included abo ve. 2.5.3. P etition of the Offender NON PROSECUTION POLICY.pdf 7 9/23/2022 1:43:12 PM 7

9. responsible manag ement, to discipline or terminate wrongdoers, or to pa y restitution; · Collateral consequences, including whether there is disproportionate harm to shareholders, pension holders, employees, and others not prov en personally culpable, as well as impact on the public arising from the prosecution; · The adequacy of remedies such as civil or regulatory enforcement actions, including remedies resulting from the organisation's cooperation with relevant government agencies; · The adequacy of the prosecution of individuals responsible for the organisation's malfeasance; and · T he interests of the public. The following process should be followed by Commission investigators and prosecutors in making the decision to charge: 1) Commission investigators prepare a report, in which the inv estigators identify the evidence that would support a particular offence in the Anti-Corruption Act and make a recommendation as to what should be charged. 2) The investigator's report is presented to the Commissioner for review. If the Commissioner determines the case should be sent to the prosecutors, the report is transmitted as such. 3) The prosecutors review the investigator's report. In such a review, the prosecutor should consider the case from the perspective of whether a conviction can be secured in court. The prosecutor then should draft a detailed legal opinion that is sent to the Commissioner. 4)T ogether, the Commissioner and prosecutors have a prosecutorial meeting to discuss the case. The Commissioner and lawyers review eac h offence, one by one, and the evidence available to them, then decide whether it should be charged. 5) If the case is indicted, the prosecutors draw the indictment for the Commissioner's review . The Commissioner then, in consultation with the prosecutors, determines whether it should go to court or not as the case progresses. At any of the stages described above, it is possible to decide that prosecution is not maintainable and that an alternative disposition is the pr eferred option. The prosecutor should consider alternative dispositions to trial as early as possible, before or after a charge is brought. The duty prosecutor will prepare an alternative prosecution agreement, whether a Cooperation Agreement, Non-Prosecution Agreement, or a Deferred Prosecution Agreement, which will set forth the conditions of alternati ve prosecution and confirm that the offender accepts responsibility for the offence. The Alternative Prosecution Agreement shall be signed by the offender and the prosecutor, on behalf of the Commissioner. 3. PROCESS FOR DECISION TO CHARGE 4. ALTERNATIVE PROSECUTION AGREEMENT S 5. REGISTER OF NON - PROSECUTION CASES NON PROSECUTION POLICY.pdf 9 9/23/2022 1:43:12 PM 9

4. “Deferred Prosecution Agreement” means an agreement between the Commission and an individual or organisation who has been indicted for a violation of the ACA, for the Commission to defer prosecution of the charge in order to allow the individual or organisation to , for a specified period of time: (i) pay restitution; (ii) agree to forfeit assets; (iii) cooperate with the Commission in relevant investig ations; (iv) admit the relevant facts; or, (v) in the case of organisations, agree to be subject to compliance and remediation commitments to prev ent future illicit behaviour by or on behalf of the organisation. If the individual or organisation meets the conditions of the deferred prosecution agreement by the end of the specified time period, the Commission may decline prosecution. If the individual or organisation reneg es and violates the conditions of the deferred prosecution agreement, the Commission may proceed with the prosecution. “Forfeiture” means to lose the right to property including any property due, o wing or belonging to or held on behalf of the offender, but not limited to any property gained as a result of the illicit activity tied to offence giving rise to the application of the Policy. “Investigator” or “Commission Inv estigator” means an investigator or intelligence officer within the Commission's Investigations, Intelligence, and Prosecutions Department who, upon a tip or complaint made to the Commission's Report Centre or other lawful sources including infor mants and whistle-blowers, about possible corruption, investigates and gathers evidence of the corruption to prepare a report for review by Commission prosecutors and the Commissioner. “Non-Prosecution Ag reement” means an agreement between the Commission and an individual or organisation facing a criminal investig ation or charge for the Commission to forego charging a violation of the ACA in order to allow the individual or organisation to: (i) pay restitution; (ii) agree to forfeit assets; (iii) cooperate with the Commission in relevant inv estigations; (iv) admit the relevant facts; or, (v) in the case of organisations, agree to be subject to compliance and remediation commitments to prevent future illicit behaviour by or on behalf of the organisation. “Prosecutor” or “Duty Prosecutor” means prosecuting lawyers within the Commission, who prosecute suspected persons and organisations in accordance with the Anti-Corruption Act. A duty prosecutor is the prosecutor assigned to a particular case. “Prosecutorial thr eshold” means the standard required in order to initiate prosecution. The requisite standard in making the decision to charge is whether there is a reasonable prospect of conviction. “Reasonable prospect of conviction” means that an objective, impartial, and reasonable court hearing a case, properly directed and acting in accordance with the law, is more likely than not to convict the accused. NON PROSECUTION POLICY.pdf 4 9/23/2022 1:43:12 PM 4


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