[UPDATED] CJ guilty for collapse of criminal justice system – DPP

DIRECTOR of Public Prosecutions Roger Gaspard, SC, has rubbished the insinuation that his office was partly to blame for the criminal justice system being on the verge of collapse.

Gaspard said on Saturday that Chief Justice Ivor Archie's contention that the criminal justice system was brought to “near collapse” because the Office of the DPP had filed only 12 indictments in a year was “spectacularly disingenuous and misleading.”

In an eight-page statement, he said his office remained committed to improving the criminal justice system, adding, “this independent office remains resolute and unbowed.”

Gaspard said, at this time, stakeholders could not afford to concern themselves “with plumage preening, self-congratulatory postures, or with becoming too enamoured with foggy statistics and cloudy ‘clearance ratios.'”

He said the condition of the criminal justice system was the result of many factors which had been allowed to fester for some time –and threw the ball back in the Judiciary’s court over the reneging on an agreement to file indictments during the covid19 pandemic with bound hard-copy files, the non-appointment of criminal judges to serve in the ten assizes, and the inability to deal with hundreds of pending cases, some over ten years old.

But Gaspard also commended the Judiciary for its initiatives to propel the justice system forward, particularly in these “unseasonable times,” and said he shared the CJ's desire to improve the system.

He also called for co-operation.

“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 integrated 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.”

Gaspard said he felt constrained to comment on the CJ’s address on October 7, since, he said, “text without context may tend to raise legitimate issues of pretext.

“The improvement of the criminal justice system must assume paramountcy and, on this score, the Office of the DPP 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,” he said.

Open to private discussions

Earlier this month, during his virtual address at the ceremonial opening of the 2020/2021 law term, the CJ warned that the criminal justice system was on the verge of collapse, and it wasn’t because of covid19, nor the fault of the Judiciary.

Archie said while the Judiciary was able to dispose of 97 indictable cases, despite limitations caused by the pandemic, only 12 indictments had been filed by the Office of the DPP over the past year.

Archie said: "We can take no comfort in the statistics of a clearance rate of 800 per cent."

"It hides a distressing truth which is the criminal justice system is near collapse owing to factors beyond the Judiciary's control."

Gaspard confirmed only 12 indictments were filed in the last law term and took full responsibility for that but accused the Judiciary of having a significant role in the unusual scenario.

“I apologise to all citizens and other stakeholders, unreservedly,” he said, adding that the situation arose because of staff shortages in his office and institutional and systemic adjustments brought on by the pandemic.

On Saturday, Gaspard said he had a “deep-seated desire” to protect and prevent any further “disfigurement of the visage of the Judiciary or criminal justice system.”

While admitting he preferred mature, candid private consultations on certain issues “if only to reduce the prospect of institutional degradation and reputational damage in the court of public opinion,” the DPP said he had to respond because of the public ringing of alarm bells that could not be addressed privately.

Gaspard also said the Judiciary reneged, in May, on an arrangement to accept filings of 450 committals and related indictments and other documents related to cases by traditional means, and not electronically.

He said the filing of 12 indictments by his office was an aberration and not a trend since, over the last decade, some 150-300 indictments were filed annually.

Also, to suggest "even obliquely" that the small number had contributed significantly to the criminal justice system being brought to a state of "near collapse," he charged, "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 used the CJ’s own data, from his 2018/2019 annual report, in which Archie said there were 1,706 matters filed at the assizes which remained pending at July 2019. Gaspard said that number alone, though alarming, was overtaken by the fact that 960 of them were more than ten years old. Those 960 matters, he said, represented 53 per cent of the matters still waiting to be tried.

Gaspard also said there was nothing stopping trial judges from reducing the backlog already in the system.

He said it was “perplexing” that the CJ would question why only 12 indictments were filed, but reminded that filing indictments – in the summary courts – “was a veritable non-issue” in the trial of cases in the High Courts, as it was not required.

More criminal judges needed

In his address earlier this month, Archie admitted to a shortage of judges, promotions to the Appeal Court and a halt on jury trials because of the pandemic.

There are only five judges in the criminal courts, as three others – Gillian Lucky, Maria Wilson and Malcolm Holdip – were elevated to the Court of Appeal earlier this year.

Gaspard said this elevation of judges by the Judicial and Legal Service Commission (JLSC), which the CJ heads, was done without a full complement being appointed to replace them, effectively reducing the number of judges in the High Court.

He said when this was added to the backlog of cases – numbered in the high hundreds – it was difficult to comprehend how preventing and rectifying it could have been “beyond the Judiciary’s control.”

Gaspard also questioned Archie’s account of the clearance ratio of “800 per cent” – or 97 matters being disposed of in the last term.

“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,” he said.

The DPP also reminded that his office cannot file indictments before the Judiciary delivers committal proceedings to his office, which, he said, takes as long as three to seven years from some magisterial districts “although the delivery of those proceedings may be considered a simple administrative act.”

He mentioned past discussions on delivering committal proceedings electronically, and said it was agreed that his office would accept 451 committal bundles from the lower courts in the old format, since they were neither scanned nor copied, and file them in the same way.

By September last year, after it had received 402 committal hard-copy bundles from Trinidad and 65 from Tobago, the Judiciary had refused his office’s attempts since May to file indictments because they were not in electronic format, the DPP said.

“This obviously flies in the face of the earlier agreement since the relevant documents were not received electronically,” Gaspard said.

Gaspard said he wrote to the Registrar of the Supreme Court about this, but in October his office was told the previous arrangement was no longer in effect.

He said the Judiciary’s decision, taken unilaterally and without any prior warning or timely communication, to go back on the agreement, which was arrived at in good faith and which sought to maintain equity and fairness between the two key stakeholders in the criminal justice system, “defied logic, injured trust and compromised effectiveness.”

Gaspard said this unexpected change by the Judiciary had the effect of completely wasting his department's finite resources to prepare the indictments and committal bundles, and made for “an uneasy institutional conscience, especially at this time, when the country’s resources are parlous.”

He spoke of stakeholders’ meetings with the CJ, the Registrar and the Court Executive Administrator at which the lack of resources and depleted manpower at the DPP’s office were the sole subjects of discussion.

Gaspard also said the CJ failed to address the issue of the numerical extent of the backlog of pending cases in the magistrates’ courts – some languishing for eight to ten years – despite Archie’s assertion that the Judiciary had “completely cleared up the transcription backlog in the summary courts.”

Make more use of plea-bargaining

In response to the CJ’s urging of the use of maximum sentence indications (MSIs) and plea bargaining, Gaspard said his office was not averse to participating in the initiatives, but they required the input of the defence and the willingness of accused people. He said he was not aware of any state attorney refusing to participate in those 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 DPP cannot coerce any accused person or attorney to travel there.”

He said perhaps the measure would be utilised more if the courts were inclined to comply with the legislation on plea bargaining, in particular section 12 of the Criminal Procedure (Plea Discussion and Plea Agreement) Act, which allows the court to advise the accused of their right to enter such discussions when they first appear before a judge.

Gaspard said from his discussions with criminal defence attorneys, the mandatory statutory requirement was highlighted more in its breach than in its observance. He said should the situation change, one could reasonably expect a higher volume of people considering plea agreements.

He said once a request for a plea agreement can be fairly and justly married to the public interest and interest of justice, his office will be keen to walk down that aisle, “especially since it is unreasonable to expect full trials of all matters.”

Newsday sent questions to the Judiciary's protocol and information officer Carl Francis, as well as to Douglas Mendes, the president of the Law Association, but did not receive answers.

This story was originally published with the title "DPP knocks Chief Justice over 'disingenuous, misleading' claims" and has been adjusted to include additional details. See original post below.

DIRECTOR of Public Prosecutions Roger Gaspard, SC, has come out in defence of his office, describing the Chief Justice's criticism as “spectacularly disingenuous and misleading.”

Gaspard  took the unusual step on Saturday of responding to the Chief Justice Ivor Archie publicly because of the public ringing of alarm bells that could not be addressed privately.

Earlier this month, in his virtual address for the ceremonial opening of the 2020/2021 law term, the Chief Justice warned that the criminal justice system was on the verge of collapse, and it wasn’t because of covid19.

Archie said while the Judiciary was able to dispose of 97 indictable cases, despite limitations due to the pandemic, only 12 indictments for cases had been filed by the Office of the DPP over the past year.

Archie said: "We can take no comfort in the statistics of a clearance rate of 800 per cent.

"It hides a distressing truth which is the criminal justice system is near collapse owing to factors beyond the Judiciary's control."

Archie admitted to a shortage of justices, promotions to the Appeal Court and a halt to jury trials because of the pandemic, but he said, “It can’t be that.”

On Saturday, this was Gaspard’s response: “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 or the criminal justice system.”

However, he said his preference was for mature, candid private consultations on certain issues “if only to reduce the prospect of institutional degradation and reputational damage in the court of public opinion.”

Read more of the DPP’s statement in the Sunday Newsday.