I refer to the Sunday Express editorial of March 10 headlined “Curious case of T&T’s reluctant prosecutor” in which the writer began by stating as a fact that the Director of Public Prosecutions (DPP) has been gaining a reputation for being reluctant to prosecute. He ends by accusing me and by extension, the independent Office of the Director of Public Prosecutions of “declining to prosecute in all but open and shut cases”.
While I appreciate that anyone who holds a public office must
necessarily and justifiably be subject to public scrutiny and indeed criticism, I feel constrained to respond to the factually inaccurate and sometimes asymmetrical and lopsided innuendos and assumptions as contained in the editorial, since these have the capacity to reduce public confidence in my Office and may ultimately bring into disrepute the administration of justice.
In the first paragraph the writer stated that I ordered the “release without charge of large numbers of suspects detained under the anti-gang legislation”.
Permit me to disclose that the persons who were released on
my recommendation had been charged without, in some cases, any evidence against them or insufficient evidence against them. I did not order the release of anyone else.
The police acting without soliciting advice from my office, in relation to a new piece of legislation, arrested and charged several large groups of men. The files were eventually sent to me for prosecution and it was then discovered by my Office that these cases were evidentially unsustainable. In those circumstances, I was duty bound to have them discontinued and I made this very clear in the courts where the matters
were to be heard.
To have done otherwise, on the basis of expediency of any kind,
would have been tantamount to an abandonment of my duty.
No rational or fair-minded person should have expected me to do
otherwise. It is important to note that these decisions were in keeping
with the advice subsequently tendered to the police by Senior Counsel, separately retained by the police themselves.
With respect to my guiding police officers towards more careful
investigations, please be informed that my Office does so on a daily basis and I have held several meetings with the Anti-Gang Unit of the Trinidad and Tobago Police Service, with a view to my providing assistance so that the provisions of the Anti-Gang Act may be fairly and efficiently effectuated.
I should also indicate that I have had discussions in this regard
with both the Honourable Attorney General and the Honourable Minister of National Security in conjunction with the Commissioner of Police, Deputy Commissioner of Police and the Head of the Anti-Gang Unit, as recently as November 21, 2012.
The assertion that my failure to prosecute Mr Yasin Abu Bakr for failure to obey a summons for attendance at the coup enquiry resulted in a loss of the “irreplaceable testimony of the attempted coup leader himself ”, is illogical, unfair and quite clearly, a nonsequitur.
The statement does not recognise, as I had made crystal clear in my letter to the Commission, that the law gives the Commission the power to act against those who refuse to obey its summonses.
The editorial also omitted wittingly or unwittingly the fact that the advice I gave in this matter was applicable in the limited and peculiar context of another highprofile matter currently before the court. Moreover, it has been in the public domain over the last two weeks that another Commission of Enquiry is proposing itself to take action against persons who do not respond to its summonses.
Thus, it is ludicrous to suggest that I somehow deprived the Commission of the evidence of the coup leader or that I contributed to the loss of his evidence at the enquiry and to “history”.
The third matter that the editorial writer dealt with was the building of the church at Guanapo where he sought to maliciously lambaste me for upholding “without question the police finding of ‘no indication of criminal misconduct’” even though key figures had not been interviewed. The writer obviously had not fully or carefully read what I had to say on this score.
I did not uphold the police finding “without question”. I perused
the available evidence and concluded independently that the evidence was insufficient. The available evidence did not include statements by Juliana Pena or Calder Hart. Since the Office of the Director of Public Prosecutions has no investigative powers, I am in no position myself to obtain that material and can act only on what the police provide.
This may be unsatisfactory but I have no choice since I am again at pains to point out that my Office has no investigative powers or
The other issue the editorial addressed was the granting of the
Citadel licence. The writer conveniently focused on the public interest
considerations that affected my decision not to prosecute but omitted to mention the primary and fundamental reasons itemised in my letter to the Integrity Commission.
Taken globally those reasons suggested that there was insufficient admissible evidence on the material available to me to present the prosecution with any reasonable prospect of a conviction. The issue of Mr Manning’s health and the age of the matter were two secondary factors among a host of others pointing in one direction.
In explaining my reasons not to prosecute I was not capriciously
engaging in any amorphous notion of my “own devil’s advocacy of worst-case scenarios for the prosecution”. Instead I was dutifully following the test referred to in the Code for Prosecutors issued in March 2012 by my Office.
This test is similar to the one which obtains in the UK. In the United Kingdom and other common law jurisdictions the test for deciding whether to prosecute is both universally applied and universally applicable.
In legal circles that test is referred to as the Full Code Test. According to Blackstone’s Criminal Practice 2013, it is a two-stage test
comprising one (1) the evidential stage and two (2) the public interest
stage – “the evidential stage requires the prosecutor …… to be satisfied
that there is sufficient evidence to provide a realistic prospect of conviction in respect of each charge. He must consider what the defence case may be and how it is likely to affect the prosecution case”.
In the last paragraph of the editorial the writer reasoned that the “DPP’s record now shows a pattern and practice of declining to prosecute all but open and shut cases”. Permit me to respectfully advise that many matters engaging the courts’ attention on a daily basis are matters which my Office either prosecutes or has advised in their prosecution.
Given the well-publicised challenges, both institutional and systemic, which confront the Police Service, the Forensic Science Centre, the Office of the Director of Public Prosecutions and other stakeholder bodies in the criminal justice system, the reasonable observer would easily recognise that criminal cases in our jurisdiction can hardly be described as “open and shut’.
It cannot be again said that the level of criminal activity in Trinidad and Tobago is unacceptable but the prosecution of matters still depends on the quality of evidence.
In any democracy the role of the press is paramount and critical scrutiny is desirable, healthy and wholesome and must be encouraged. However, due process must remain inviolable and the fourth estate has a responsibility to be fair and responsible, still.
Roger K Gaspard, SC is Director of Public Prosecutions