Spectacularly disingenuous and misleading.
This is how Director of Public Prosecutions (DPP) Roger Gaspard, SC, has described Chief Justice Ivor Archie’s statement that the criminal justice system is on the brink of collapse due to the DPP’s office.
In his virtual public address on October 7 marking the opening of the new law term, Archie said the fact that the DPP’s office had filed only 12 indictments last year “hides a distressing truth that the criminal justice system is near collapse owing to factors beyond the judiciary’s control”.
In an eight-page response yesterday, Gaspard outlined his own “distressing truth” on the state of affairs at the DPP’s office and the impact on justice.
He, however, admitted that only 12 indictments were filed and apologised to citizens and stakeholders, but said this was due to several factors which the CJ and his administration were aware of and did not address despite communications sent to the CJ via the DPP’s office.
Gaspard said after perusing the CJ’s address, he now embraces the opportunity to respond publicly to certain matters, since some matters cannot be addressed privately.
Such matters included statistical misrepresentation of matters disposed of, staff vacancies at the office of the DPP, and the judiciary’s flip-flopping stance when it comes to electronic filing, among other issues.
Gaspard was resolute that his office “remains committed to productive endeavours which can redound to the benefit of the citizens of Trinidad and Tobago”, and he therefore felt “constrained 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”.
He noted that despite the plethora of obstacles his office faces, it is his respectful view that the efforts of the judiciary led by the CJ 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’,” he said.
Gaspard said his preference was 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”.
Old vs new format confusion
In his defence of the DPP’s office, Gaspard said, “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 September 6, 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 September 12, 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.’”
Gaspard noted, “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 into 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 by 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.”
Judiciary playing numbers game
The DPP stated that the “small number” of 12 indictments filed in the last law term by his office, “represented an aberration and not a trend, bearing in mind that over the last decade between approximately 150 to 300 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,” Gaspard said.
Referencing the report entitled “Transformation for Enhanced Delivery”, which was presented by the Chief Justice at the October 7 law term opening, Gaspard said the statistics presented were “the data on the number of matters yet to be tried as of July 31, 2019”.
In that report, Page 163 noted, “There were 1,706 matters filed at the Criminal High Court, whose status remained pending as at July 31, 2019.”
But according to Gaspard, “That number of matters alone, though alarming, is over-taken by another statistic which was also cited then, namely, that of the 1,706 matters awaiting trial, 960 of them were aged ten years or more. The 960 matters represented 56.3 per cent of the matters still waiting to be tried.”
Therefore, in the face of those statistics as presented by Archie, as of July 31, 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, Gaspard said.
Added to this, the DPP said the CJ has stated “...that 97 matters were disposed of during the last law term and he curiously equated this with a ‘clearance ratio’ of 800 per cent”.
Gaspard said, “Assuming that victims of crime and persons awaiting trial can even demystify this ‘clearance ratio’, that ratio, I suspect, is unlikely to offer them much comfort.”
Lack of resources
The DPP said several stakeholder meetings were held and included the CJ, the registrar and the court executive administrator between his office and the AG, in which the “lack of resources and the depleted manpower at this office were the sole subjects of discussion”.
In light of this, he said the CJ’s question in his address of October 7, 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... ‘have completely cleared 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 ten years,” Gaspard said.
The DPP noted the following contributing factors for the 12 indictments filed:
(a) the perennial shortage of legal and support staff;
(b) institutional and systemic 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;
(c) 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 DPP in May 2020; and
(d) spatial limitations which jeopardise the safe accommodation of staff and equipment which are necessary in any process, involving the electronic filing of bulk documents.
The DPP also stated except in very limited circumstances, the law does not allow the Office of the DPP to file an indictment before the committal proceedings are delivered by the Judiciary to this office, as “an indictment is generally contingent upon, if not contiguous to, a perusal of the committal proceedings”.
He said he has 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 DPP, adding that “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”.