Thursday, January 18, 2018

‘Cloud over justice must be cleared up’


serious issues: Senior Counsel Reginald Armour

Mark Fraser

Senior Counsel Reginald Armour says the prison litigation issue could undermine the public’s confidence in the administration of justice. 

He claims the Jamal Sambury case, the wider issues raised in the media of letters written by former solicitor general Eleanor Donaldson-Honeywell, SC and the most recent intervention of Director of Public Prosecutions (DPP) Roger Gaspard “serve to highlight equally, serious issues involved as well as the role and function of critical constitutional and other institutions in this country. Not least among those institutions are the Judiciary, the Office of the Attorney General, the Office of the Director of Public Prosecutions, the Prisons System and, the Law Association of Trinidad and Tobago.”

Armour issued a statement in response to a query from the Sunday Express.

“In light of the concerns already expressed by all the constitutional offices identified and in the public domain on this matter, the erosion of public confidence in the system of the Administration of Justice cannot be underestimated. The public interest and the good health of the system of the Administration of Justice requires proactive leadership. Inactivity is not an option. The public urgently needs to be reassured that institutions of state are not being undermined. As well, attorneys are calling press conferences to clear their names. The cloud existing over the heads of these attorneys and of office holders whom the public might consider (unjustifiably) to be implicated must be addressed and removed, where warranted,” he said.

He noted that by the DPP’s intervention in ordering a police probe, the public can expect to be reassured that there continues to exist institutions of State, and of rectitude, which  are alive to their duty with the focus of attention now narrowing to the Commissioner of Police and the Law Association. 

To this end, he sought to explain and distinguish the roles of the different institutions involved the prison litigation matter and the impact of the administration of justice:

1. The Judiciary 

2. The Office of the Attorney General  

3. Within the office of the Attorney General there exists the Office of the Solicitor General, with responsibility for Civil Litigation and to render advice to the government. 

4. The Office of the Director of Public Prosecutions with responsibility for criminal prosecution and proceedings and, in that regard, may give advice and direction to the police. 

5. The Prisons System is charged with responsibility for the safe incarceration of persons either adjudged by the law to have committed offences carrying prison sentences or, who are on remand awaiting trial. 

6. The Law Association whose purpose, among others, is to promote, maintain and support the administration of Justice and the Rule of Law. Neither the Association nor the Disciplinary Committee have investigative powers.  

Armour methodically explained the sequencing of events which impact on the institutions involved in the justice system.

The first was Donaldson-Honeywell’s August 30, 2013 letter to Prime Minister Kamla Persad-Bissessar. He noted it raised serious concerns with the most important line being the last, which read: “It is my recommendation that the circumstances outlined above should be the subject of investigation by the Inspector of Prisons, the Law Association and the Police Service. Information on each of the three main circumstances outlined above can be provided by Civil Law Department of Attorneys whose names I can supply on request.”

He observed that the Prime Minister in turn referred the Solicitor General’s August letter to Attorney General Anand Ramlogan. 

“It is reported that a meeting occurred between the Solicitor General and the Honourable Attorney General. Following on that the Solicitor General is reported to have written a second letter to the Honourable Prime Minister (dated either the 22nd or the 28th October 2013) in which the Solicitor General  reiterated ‘that there is need for the type of investigation that would include not only interviews with defence attorneys but would also take into account the views of the State attorney and Prison Officers’. The Solicitor General thereafter resigned, for ‘personal reasons’. 

“It remains to be ascertained what if any investigation has been conducted and by whom, subsequent to these two letters of August and October 2013,” he said.

Five months later, Armour explained, in February 2014 the fact emerged in the public domain that Master Patricia Sobion-Awai had delivered a written judgment in a particular Sambury High Court matter. 

“It is well known that most judges tend to be conservative in their language. In explicit terms, Master Sobion-Awai recorded her judicial concern that the conduct of litigation before her was ‘dishonest and an abuse of the process of the court’, she concluded ‘this is a matter for concern. What occurred in this case calls for an investigation of some sort to determine where responsibilities lie and what action can be taken to prevent future abuses of this type’.” 

Armour noted that a Master of the Supreme Court is a member of the Higher Judiciary which are appointed by the Judicial and Legal Service Commission; being judicial officers of high calibre, integrity and legal acumen.

“On the 17th February, 2014, the explicit concerns of Master Sobion-Awai were expressly referred to by the Court of Appeal in that same case, in equally explicit terms in the hearing of an appeal in that matter. In the words of Mr Justice of Appeal Allan Mendonca: ‘we agree ... that this type of conduct raises serious questions and does interfere with the proper administration of Justice...’. The concern expressed by Mendonca was also expressed by the other two judges on the Appeal Panel, Justices of Appeal Gregory Smith and Maureen Rajnauth-Lee. These are three senior and respected members of the Court of Appeal of Trinidad and Tobago,” he said.

He then turned his attention to the Law Association.

“No doubt this summary record of these grave concerns expressed by holders of high constitutional office, concerning the possibility of a perversion of the course of justice, abuse of the process of the court system and breaches of professional ethics by attorneys, will have engaged the attention of the Council of the Law Association. 

“After mature deliberation, the Association issued a call for an investigation into these matters. The Prison Officers Association has also repeatedly called for an investigation. 

“It is reported that certain attorneys have been referred to the Disciplinary Committee, following on a referral by the court under a section of the lawyers legislation. The language of this section is obtuse. The question will have to be resolved whether that referral actually starts any process. Guidance will necessarily have to be sought from the president of the Law Association,” he said.

Enter the DPP.

“In discharge of that constitutional mandate, the DPP announced that he has caused a criminal investigation to commence, in respect of possible offences of criminal conspiracy to defraud the State,” he noted.

“A conspiracy necessarily involves more than one person, named or unnamed. He has been pellucid in his choice of language. Except for ‘ethical considerations’, which he has left, presumably, to the self regulating Law Association and its Disciplinary Committee, ‘there is more than sufficient material … to warrant an investigation into the commission of several criminal offences including Conspiracy to Pervert the Course of Public Justice and Conspiracy to Defraud the State of Trinidad and Tobago’. He gives the assurance that the criminal investigation which he has advised the Commissioner of Police ‘immediately’ to commence ‘ensures that any police investigation is not in any way contaminated’,” Armour said, making reference to Gaspard’s statement.

“Whilst such a criminal investigation proceeds, the law dictates that those persons who might be implicated in this criminal conspiracy are entitled to decline to answer questions of any other enquiry. In carefully scripted terms, including applications to the Supreme Court for protection, the law protects those persons from self incrimination. They are not compellable to answer any questions except to the police investigators acting in furtherance of the DPP’s direction,” he said.