“[…] The Judiciary’s decision [concerning the filing of indictments by the Office of the DPP], taken unilaterally and without any prior warning or timely communication, to renege on the agreement which had been arrived at in good faith and which it was sought to maintain equity and fairness in the dealings between two key stakeholders in the Criminal Justice System, defied logic, injured trust and compromised effectiveness.
“[…] In light of this, the Honourable Chief Justice’s question in his address of 7 October 2020 as to why only 12 indictments have been filed is perplexing…”
In the following release, Director of Public Prosecutions (DPP) Roger Gaspard SC responds to criticism from Chief Justice Ivor Archie on 7 October 2020 at the opening of the 2020/21 Law Term of the Supreme Court:
I have perused the aforementioned address by the Honourable Chief Justice of Trinidad and Tobago and I embrace the opportunity to respond publicly to certain matters. I hasten to add, that the elasticity of my response and its timing are in no little way due to my deep-seated desire to protect and prevent any further disfigurement of the visage of the Judiciary of the Criminal Justice System.
However, my compunction is somewhat offset by my recognition of the view, that the public ringing of certain alarm bells cannot be properly addressed privately.
Nonetheless, my preference is still for mature, candid private consultations on certain issues between and among various stakeholders—if only to reduce the prospect of institutional degradation and reputational damage, in the court of public opinion.
It is a fact that only 12 indictments were filed by the Office of the Director of Public Prosecutions during the last Law Term, and for this I take full responsibility. I apologise to all citizens and other stakeholders unreservedly. This situation arose because of several factors including:
- the perennial shortage of legal and support staff;
- institutional and systematic adjustments occasioned by the Covid-19 pandemic and the need to comply with the guidelines provided by the Ministry of Health, the Chief Medical Officer and the Government of Trinidad and Tobago;
- the reneging by the Judiciary on an arrangement to accept, otherwise than by electronic means, the traditional filing of approximately 450 committals and related indictments, together with transcripts. This reneging was first telegraphed to the Office of the Director of Public Prosecutions in May 2020; and
- spatial limitations which jeopardise the safe accommodation of staff and equipment which are necessary in any process, involving the electronic filing of bulk documents.
It is my view that the Honourable Chief Justice’s address carries with it, whether wittingly or unwittingly, the implication or insinuation, that the Criminal Justice System has been brought to ‘near collapse’ owing, inter alia, to the filing of only 12 indictments by the Office of the Director of Public Prosecutions.
Respectfully, I submit, that such a contention is spectacularly disingenuous and misleading.
The extant condition of the Criminal Justice System is the result of a multiplicity of factors, which have been allowed to fester for quite a long time.
Moreover, the filing of that small number of 12 indictments in the last law Term, by my Office, represented an aberration and not a trend—bearing in mind that over the last decade between approximately 150 to 300 indictments had been filed annually.
Additionally, to suggest even obliquely that the small number of indictments filed is a significant contributor to the Criminal Justice System being brought to a state of ‘near collapse’ is to deliberately close one’s eyes to the blinding light of the statistics on matters still awaiting trial and for which indictments have already been filed.
In the report entitled ‘Transformation for Enhanced Delivery’ which was presented by the Honourable Chief Justice at the beginning of the 2018/2019 Law Term, the Honourable Chief Justice presented the data on the number of matters yet to be tried as of 31 July 2019.
The Honourable Chief Justice at page 163 of that report stated, inter alia: ‘There were 1,706 matters filed at the Criminal High Court, whose status remained pending as at 31 July 2019’.
That number of matters alone, though alarming, is overtaken by another statistic which was also cited then. Namely that of the 1,706 matters awaiting trial, 960 of them were aged 10 years or more.
The 960 matters represented 56.3% of the matters still waiting to be tried.
Therefore in the face of those statistics as presented by the Honourable Chief Justice as of 31 July 2019, the atypically small number of indictments filed during the last Law Term did not in any way prevent trial judges from getting on with the business of conducting trials in those matters pending and for which indictments have already been filed.
Importantly, in his address on 7 October 2020, the Honourable Chief Justice had this to say: ‘Yes it is true that some of the judges have been elevated to the Court of Appeal’.
It must be pointed out that the elevation of these judges, who were formerly presiding in the Criminal High Courts, by the Judicial and Legal Service Commission (JLSC) of which the Honourable Chief Justice is the chairman, left the Criminal High Courts without the full complement of judges being appointed to replace them. This effectively reduced the number of judges presiding over criminal matters in the High Court.
This development occurring notwithstanding the fact that the criminal matters for which indictments have already been filed and which make up the ‘backlog’ in the High Court, currently number in the high hundreds.
Respectfully, I submit that it is difficult to comprehend how this matter, its prevention and rectification could have been ‘beyond the Judiciary’s control’.
Added to this, the Honourable Chief Justice has stated that 97 matters were disposed of during the last Law Term and he curiously equated this with a ‘clearance ratio’ of 800%. Assuming that victims of crime and persons awaiting trials can even demystify this ‘clearance ratio’, that ratio, I suspect, is unlikely to offer them much comfort.
Instructively, except in very limited circumstances, the law does not allow the Office of the Director of Public Prosecutions to file an indictment before the committal proceedings are delivered by the Judiciary to this Office.
It should be noted that the filing of an indictment is generally contingent upon, if not contiguous to, a perusal of the committal proceedings. I have observed that there are very lengthy periods between the completion of Committal Proceedings and the delivery by the Judiciary of those proceedings to the Office of the Director of Public Prosecutions.
Those periods may be as long as three to seven years from some magisterial districts. Although the delivery of those proceedings may be considered a simple administrative act.
In April 2019, discussions began between the Judiciary and my Office regarding the delivery of committal proceedings by electronic means. Pursuant to these discussions, it was agreed by the Judiciary and this Office that this Office would accept 451 committal bundles from the Magistrates’ Courts, in the old or traditional format—the said bundles having been neither scanned nor copied.
The Judiciary confirmed by letter dated 6 September 2019 the arrangement with respect to indictments being filed by the Office of the Director of Public Prosecutions, in relation to over 400 matters in Trinidad.
In that letter, signed by the Deputy Court executive administrator, it was stated:
‘I am pleased to report that your Office will be able to file indictments for any of the 402 committals at the various Criminal High Court Registries in the same manner in which you received same’. (sic)
The Judiciary again confirmed that the arrangement remained in relation to the 65 committal proceedings from the Tobago District by letter dated 12 September 2019.
That letter, which was also signed by the Deputy Court executive administrator, stated: ‘For the avoidance of doubt, your Office will be able to file indictments for any of the 65 committals in the same manner as received’.
For the purposes of clarity, the manner in which we received those committal proceedings was in the old or traditional format and not electronically.
From May 2020, multiple attempts to file indictments in Port of Spain and San Fernando, in the manner in which we had received them from the Judiciary, have been refused by the Judiciary, with the Judiciary lately requiring all indictments to be filed electronically. This obviously flies in the face of the earlier agreement, since the relevant documents were not received electronically.
In July 2020, I felt compelled to write to the Registrar to remind her of the Judiciary’s previous commitment to receive indictments in the ‘same manner’ as the committal proceedings were delivered.
Two weeks in the start of the new Law Term enquiries were made of the Judiciary by my Office concerning the filing of indictments and we were informed that the previous arrangement was no longer in effect.
The Judiciary’s decision, taken unilaterally and without any prior warning or timely communication, to renege on the agreement which had been arrived at in good faith and which it was sought to maintain equity and fairness in the dealings between two key stakeholders in the Criminal Justice System, defied logic, injured trust and compromised effectiveness.
The unexpected change by the Judiciary had the effect of creating a complete waste of the finite resources already expended in the preparation of those indictments and their respective committal bundles, which consisted of an original and at least three copies. Such a result, made for an uneasy institutional conscience, especially at this time, when the country’s resources are parlous.
The point assumes even sharper relief when one considers that the Honourable Chief Justice, the Registrar and the Court Executive Administrator had participated in stakeholder meetings held between this Office and the Honourable Attorney General, in which the lack of resources and the depleted manpower at this Office were the sole subjects of discussion.
In light of this, the Honourable Chief Justice’s question in his address of 7 October 2020 as to why only 12 indictments have been filed is perplexing.
Relatedly, the Criminal Justice System contemplates the trial of matters in the High Courts—which require the filing of indictments and trials in the Summary Courts—in which the filing of indictments is a veritable non-issue, as this is not required.
Additionally, the Honourable Chief Justice’s assertion that the Judiciary ‘[has] cleaned up the transcription backlog in the Summary Courts’, while admirable does not at all address the issue of the numerical extent of the backlog of pending cases in the Summary Courts, many of which have been languishing for eight to 10 years.
On the issue of Maximum Sentence Indications (MSI’s), my Office is not averse to participating in such initiatives and state attorneys have participated in many and while they can be utilised more frequently, this requires input from the defence attorneys as well. I am not aware of any state attorney refusing to participate in these hearings.
Further, on the vexed question of plea bargaining, I respectfully submit that this avenue is yet another one that should be more heavily populated; but again, the Office of the Director of Public Prosecutions cannot coerce any accused person or attorney to travel there.
Perhaps this measure would be more heavily utilised if the courts were more inclined to comply with section 12 of the Criminal Procedure (Plea Discussion and Plea Agreement) Act No 12 of 2017, which reads, inter alia:
‘Upon the first appearance of an accused person before a court, whether the accused is represented by an attorney-at-law or not, the court shall advise the accused person —
- of his right to enter into a plea discussion with the prosecutor and to be represented by an attorney-at-law during the plea discussion;’ (emphasis added)
From my discussions with counsel who practice regularly at the Criminal Bar, this mandatory statutory requirement is highlighted more by its breach than by its observation. Accordingly, should that situation change, one can reasonably expect a higher volume of persons considering plea agreements.
Crucially, provided a request for a plea agreement can be fairly and justly married to the public interest and the interest of justice, my Office is always keen to walk down that aisle—especially since it is unreasonable to expect full trials of all matters in the Criminal Justice System.
It is my respectful view that the efforts of the Judiciary, led by the Honourable Chief Justice, to deploy initiatives to propel the Criminal Justice System forward, are deserving of high commendation, particularly in these unseasonable times. I share the Honourable Chief Justice’s desire to improve the system.
Nonetheless, given the sheer volume of work that is yet to be done to further reduce the challenges attendant upon the Criminal Justice System, I believe an integrative and collaborative approach by the various stakeholders is critical. Such an approach can hardly commend itself in an atmosphere characterised by manoeuvres which suggest bullying or intimidation—whether floated privately or publicly.
In that regard and by way of juxtaposition of our current predicament, the stakeholders in the Criminal Justice System cannot afford to concern ourselves with plumage preening, self-congratulatory postures, or with becoming too enamoured with foggy statistics and cloudy ‘clearance ratios’.
In the premises and while my Office remains committed to productive endeavours which can redound to respectfully place in context some of the text from the Chief Justice’s address, since text without context may tend to raise legitimate issues of pretext.
This independent Office remains resolute and unbowed.
The improvement of the Criminal Justice System must assume paramountcy and on this score, the Office of the Director of Public Prosecutions shall spare no effort. I am confident that the other stakeholders will do the same.
The public weal demands nothing less, especially since none of the major stakeholders in the Criminal Justice System is faultless.