DIRECTOR of Public Prosecutions (DPP) Roger Gaspard, SC, will not apply to the Court of Appeal to have King’s Counsel Vincent Nelson’s conviction and sentence set aside.
This is because Gaspard believes the grounds set out by Nelson were not justified or factually well founded.
In fact, the DPP says he was not previously aware of much of what Nelson’s attorneys laid out in their letter of March 15, in which they made the request in the “interest of justice.”
Gaspard’s attorney Elaine Green articulated his position in a written response to Nelson’s attorneys on May 4.
Nelson’s attorneys, in a 36-page letter, had called on the DPP to have his conviction and sentence set aside, “in the interest of justice.” To do this, he wanted the DPP to use the power of his office to appeal his conviction.
Attorneys for the Jamaican-born Nelson said the DPP had a duty to disclose to the court the specific terms of the indemnity agreement between Nelson and the Government.
Its disclosure by Gaspard, the attorneys also said, would have inevitably led to Justice Malcolm Holdip rejecting the plea agreement in 2019, because of the promises former attorney general Faris Al-Rawi made to Nelson for the Government.
Nelson relied on the Criminal Procedure (Plea Discussion and Plea Agreement) Act, in particular section 31(2), and the DPP’s powers under the Constitution to make his case.
In May 2019, Nelson, 62, a tax attorney who lives in the UK, was indicted on three charges of conspiring to commit money laundering, misbehaviour in public office and conspiracy to commit an act of corruption relating to a legal-fee kickback conspiracy.
Nelson entered a plea deal with the Office of the DPP which included an agreement that he would testify against former attorney general Anand Ramlogan, SC, and ex-UNC senator Gerald Ramdeen.
Nelson was convicted on June 4, 2019, sentenced on March 2, 2020, and ordered to pay $2.25 million in fines, which he wants the State to pay.
Those fines become due on July 31. Holdip ordered Nelson to pay the fine in monthly instalments over the course of ten months, beginning at the end of April 2019, or face five years’ imprisonment.
Nelson has benefited from the Judiciary’s deferring the payment of the fines several times.
Green’s letter contained a caveat urging Nelson to be “circumspect” in disseminating the DPP’s position since, she said, its contents and Gaspard’s concerns had the prospect of causing severe and unnecessary prejudice to him and any retrial of the two former politicians.
Green began her letter by pointing out that Nelson had already been convicted and sentenced. As a result, she advised that the DPP “cannot” exercise any power under section 90 of the Constitution in relation to him.
“The request is therefore a very delayed invitation to the director to apply to the Appeal Court for leave to appeal in the public interest and in the interest of the administration of justice.”
Green’s letter dealt with Nelson’s claims involving the indemnity from the government and the promises he said had been made to him, itemising each claim in the 12-page reply.
The indemnity and notarised statement
Green said it was “common ground” that in November 2017, Nelson entered the indemnity with former AG Faris Al-Rawi on behalf of the government and before this, he also gave a notarised statement. The latter was the catalyst for his criminal prosecution and his alleged co-conspirators.
The letter said the DPP had received copies of the two documents from Al-Rawi in December 2018. However, Green said the DPP had “no independent knowledge” of the circumstances behind the statement’s being made or the negotiation of the terms of the indemnity except for what Nelson disclosed, in his indemnity claim against the State for an alleged breach of that agreement.
She wrote: “It should be appreciated on basic principles of the law of contract that as the director is not a party to the indemnity, he is not bound by its terms.”
She said since it included an undertaking by the former AG to recommend to the DPP that no criminal proceedings against Nelson should commence in TT, all the parties acknowledged that the DPP “could not,” in any event, be bound by any such recommendation.
On the terms of the indemnity, Green said it was clear Nelson wanted to avoid prosecution in the UK and accepted the probability of facing criminal charges in TT.
On October 10, 2022, the DPP announced he was stopping the case against Ramlogan and Ramdeen because Nelson was unwilling to testify until his civil claim against the State had ended.
Nelson’s letter said he had consistently said he would not give evidence until the government fulfilled its commitment under the indemnity agreement and gave him the promised pardon – which was supposed to happen a month after he was sentenced in 2020.
In 2021, Gaspard told Newsday the only discussion or agreement he had had with Nelson was the plea deal that was in place. He said he would not have been privy to any discussions which had taken place before the criminal investigations.
Asked about the indemnity, Gaspard referred Newsday to the then Attorney General, again saying he was not “privy to any discussions.”
“Those may relate to civil matters since the AG has no purview with criminal matters,” he said then.
Nelson’s March letter claimed the DPP’s position in the Ramlogan and Ramdeen case came as a surprise to him, since Gaspard would have known about the inducements since 2018/2019. Nelson also claimed Gaspard would have been aware of the payments to him or his attorney after he pleaded guilty and before he was sentenced, and the DPP’s excuse for discontinuing the case was “disingenuous and convenient.”
Instead, Nelson’s letter suggested the real reason the DPP did not want to proceed with the case against the former politicians was that Gaspard believed the “inducements” to Nelson would present difficulties at Ramlogan and Ramdeen’s trial.
Not so, Green said.
She maintained the reason for discontinuing the case was Nelson’s unwillingness to testify against the two until his indemnity claim came to an end, which his attorneys relayed to the police complainant in the case.
Green detailed the promises that Nelson alleged were made to him in April 2019, days before he entered the plea-deal discussions, and in November that year, after his conviction.
These promises included payment for his “lost years” because he had lost his tenancy at the prestigious 39 Essex Chambers when his statement was disclosed to the UK’s National Crime Agency (NCA); and agreements to pay damages; to ask the NCA to cede jurisdiction to TT; and an assurance that if he gave further statements, he would only be prosecuted in TT, not the UK, and face no jail time here.
Other alleged promises included assurances no confiscation order would be made against him; a presidential pardon a month after he was sentenced; and full monetary compensation arising from the disclosure of the statement to the NCA in breach of the indemnity.
Al-Rawi had made these promises, Nelson claimed, and Green pointed out:
“It is plain that the director did not make any of the promises to Mr Nelson.”
Her letter said since the DPP had no knowledge of any of these alleged promises, he could not bring them to the attention of the court at the plea-deal and sentencing hearings.
Instead, she said it was for Nelson to explain why he did not disclose them to the DPP or the court.
Green said the Anti-Corruption Investigations Bureau (ACIB) only began its probe into Nelson’s claims when Gaspard gave it the notarised statement and indemnity, and when investigators interviewed him, it was under caution, so he must have known he was a suspect against whom prosecution was intended.
Plea agreement and trial process
Green also pointed out that Nelson’s plea deal with the DPP never provided he would not be jailed, but rather, that the DPP would recommend a non-custodial sentence.
She pointed out that throughout the process, Nelson had his own legal counsel, UK attorneys Thomas Allen, KC, and Shula de Jersey – the letter referred to them as “specialists” in the field of business crime, fraud, bribery, corruption and money laundering – and Nelson himself was a “highly sophisticated client,” with his own professional expertise in financial crime and fraud.
Green again pointed out that Nelson’s legal advisers did not disclose the alleged promises to the DPP, and that while the existence of the indemnity was common ground during the plea discussions, it could not have been a bar to the criminal proceedings.
She said Nelson also knew the DPP would not give him immunity.
Green noted that as part of the plea-deal hearing, Nelson and Allen gave statements that Nelson had not been given any no promises, agreements, understanding or inducements.
“Plainly, therefore, Mr Nelson was not relying on the indemnity and antecedent promises as being relevant to the plea discussions or the terms of the plea agreement.
“The director could not disclose to the High Court what he did not know given the former AG and Mr Nelson’s failure to disclose the antecedent promises to him at any time during the plea discussions or when Mr Nelson’s matter came up for the plea and sentencing hearings in 2019 and 2020.”
She said the alleged promises were made after the plea-agreement discussions and Nelson’s guilty plea on June 9, 2019.
Since the DPP could not disclose what he did not know, Green said with Nelson’s full disclosure of the alleged promises, it was now open to the DPP to have the plea agreement set aside. This would mean Nelson would have to face a full trial.
It is also Gaspard’s position that at the plea-deal hearing before Holdip, the facts presented to the court were those agreed to by Nelson’s attorneys.
Green also pointed out that before he pleaded, the sentencing judge questioned Nelson on inducements.
“Mr Nelson had sufficient information at that stage to disclose the antecedent promises to His Lordship prior to entering his plea.
“He has not provided any explanation for why he failed to raise the issue at the plea hearing or prior to sentencing and why it has taken… almost three years since sentence for him to raise the issue with the Director.
“The only possible explanation offered by Mr Nelson is that he received incorrect advice from his unnamed UK lawyer about whether he could withdraw his guilty plea. Absent a waiver of privilege and a statement from Mr Nelson’s unnamed UK lawyer as to his or her advice to Mr Nelson on that matter, the Director cannot rely on that explanation as justifying the failure to raise the issue at the plea and sentencing hearings.”
It is also the DPP’s position that since some of the promises were made after Nelson was convicted, they would not have had an impact on the plea discussions or agreement.
‘Request not well grounded’
In her letter, Green argued the factual bases for Nelson’s request to the DPP were not well founded.
“The Director cannot ground an application to the Court of Appeal for leave to appeal on the non-disclosure of matters which were unknown to him at any time relevant to the plea agreement with Mr Nelson, and Mr Nelson’s conviction and sentence under the terms thereof.
“It would equally be absurd for the Director to maintain that even though those matters were known to Mr Nelson and were undisclosed by him to the Director at any relevant time, it is in the interest of justice that the plea agreement and Mr Nelson’s conviction and sentence should be set aside.”
She described as “legal fiction” Nelson’s claim that the former AG and the DPP could not be separated in Nelson’s prosecution, so the DPP was bound by the “promises.” Green pointed out that in TT, the DPP cannot be directed by the AG, the latter was not responsible for prosecuting criminal offences, and in TT the two officials “do not constitute one indivisible entity for the purposes of criminal prosecutions.” Several pages of the letter outlined the law to support the DPP’s position.