The DPP's Statement on Citadel Radio License Case
Office of the Director of Public Prosecutions
March 1, 2013
Mr. Ken Gordon
4th Floor, UTC Financial Centre
No. 82 Independence Square
PORT OF SPAIN
Re: Sufficiency of Evidence of Misbehaviour in Public Office, Citadel Licence:
Former Prime Minister, Mr. Patrick Manning and Former Minister, Mr. Hedwidge Bereaux
1. I refer to a letter sent by the Integrity Commission enclosing a Report of its investigators, dated February 27, 2008; and subsequent correspondence ending with a letter and enclosures dates December 15, 2010, in which the Commission referred to me, the matter of whether an offence of misconduct in public office had been committed by Mr. Patrick Manning and Mr. HedwidgeBereaux, pursuant to section 34 of the Integrity in Public Life Act which requires the Director to “take such action” as he thinks “appropriate”.
2. Having considered the matter carefully I have formed the view that on an assessment of the strength of all the material available to me, including the evidence against the possible defendants as well as the likely defences and how these may be employed, there is insufficient evidence to charge anyone for any criminal offence; and it is not in the public interest so to do.
3. Although there is evidence of inequality of treatment in the granting of a licence to Citadel Ltd, which is a breach of a constitutional right, this evidence does not meet the higher standard of proof required for proof of a criminal offence, which is proof beyond a reasonable doubt; nor is the evidence sufficient to prove all the different elements of the offence of misconduct/misbehavior in public office. It has been said that equality provisions of the Constitution are aimed at striking down “curry favour”:see Central Broadcasting Services Ltd el al v AG of Trinidad and Tobago (No 3), Civil Appeal No 16 of 2004, judgment of Mendonca JA at Para 42. A criminal offence is infinitely more serious in scope.
4. The evidence also discloses no breach of the Integrity in Public Life Act which could constitute an offence under that Act.
5. While as Director I am not bound to give further elaboration on this (see Leonie Marshall v the DPP 70 WIR 193, a decision of the Privy Council, at paragraph 15), in the interest of fairness and given that this matter has generated much public interest over the years, I provide the following reasons for this conclusion.
6. The material provided to me consists of interviews and statements taken by the Intelysis investigators acting on behalf of the Integrity Commission, who interviewed various persons and recorded statements in some form. Interview Noteswere made of some 13 of those interviews: most of these were from personnel employed at Trinidad and Tobago Telecommunications Division. Four persons gave written statements including the Permanent Secretary Emmanuel George, Elizabeth Camps, the legal advisor to the Division and Ms Mala Guinness, the Deputy Director and later Director of the Division.
7. The interviews of Mr. Bereaux; then Prime Minister Manning; Mr Louis Lee Sing; and Mr Jerry Narace were taped recorded and the contents reduced to a transcript form [not attested to be anyone]. Prepared statements were given to Inspector Edwards of the Anti-Corruption Bureau by six persons: DrRoodalMoonilal, PS Emmauel George, Louis Lee Sing, Rene John Sandy, Elizabeth Camps and Mala Guinness. For consideration are also three affidavits from members of the [then] Telecommunications Division and one each from Mr Sat Maharaj and MrBereaux.
8. The following is a summary of relevant evidence of the following witnesses:
• Hilson Phillips: He and Rene John Sandy formed a company, Tobago Broadcast Systems Ltd [TBSL], which was granted a broadcast licence in 1995 under the Wireless Telegraphy Ordinance for 92.5FM frequency. Phillips only found out in 2001 that Sandy had leased this frequency to Louis Lee Sing without his consent. He subsequently communicated with the Telecommunications Division in 2002.
• Emmanuel George (then Permanent Secretary and now Minister under the current Government): He stated that the Citadel application entered the system after Louis Lee Sing sent a letter dated June 12th 2002 enclosing a copy of an application for a license that he claimed to have sent before. This letter came about after Mr Lee Sing had called George to enquire about the status if the application. On August 7th, 2002 (then) Minister Bereaux told George that the (then) Prime Minister wanted a Note brought to Cabinet recommending that Louis Lee Sing be granted a radio broadcast licence. The Division’s policy was that Applications for licences were to be treated on a first come first serve basis. A Draft Cabinet Note on the Grant of a special licence to Citadel was prepared by George, Mala Guinness and Elizabeth Camps highlighting a number of concerns since the possible process would be outside of the usual procedure.
There were a number of applications that preceded Citadel’s and this could expose the Ministry to civil litigation . The Draft Note that was given to Minister Bereaux for his approval. The Minister made certain amendments, the most significant of which was to change the draft to now say that the only one other application pre-dated Citadel’s, a statement which George said he knew to be untrue.
• Mala Guinness, Deputy Director: With respect to Citadel application Ms Guinness recalled the following irregularities:
(a) There was an unofficial moratorium on granting new licences.
(b) The Citadel application itself was incomplete.
(c) On the application itself, there was already an assigned frequency i.e. 92.5
(d) The entire process for the application for a licence was skewed. The usual
process that an application would undergo included a detailed review of the application and if everything was found to be acceptable, then a Cabinet Note would be written. This was not done not done in the case of Citadel.
(e) Ms Guinness referred to the fact that, under former Director of the
Telecommunications Division, Mr WinstonRagbir, she was never involved in the handling and the applications for broadcasting licences. She was not even allowed access to the files.
(f) There was a high level of disorganization within the Division especially
the record keeping and the filing system had been moved from Abercromby Street to St James.
• Elizabeth Camps, Legal Officer: Her evidence was similar to that of Ms Guinness. She identified the objections which the Division had to the Citadel application as follows:
(a) There were other applications which predated it.
(b) The rushing of the application meant that the frequency which had been assigned had not been tested and it was uncertain whether it was clean.
(c) The issues surrounding the licence constituted in effect a business dispute and Ms Camps felt that the Division ought not to have been involved.
(d) Citadel was being treated as if it were an existing licensee which it was not.
• Louis Lee Sing: Louis Lee Sing was the Executive Chairman of Citadel at the time of the application for a broadcast licence. He stated that an application was made by him for a broadcast licence on 13th March 2001 to which he received no reply. On 17th July 2001, he made an arrangement with one Rene John Sandy to manage and operate the frequency 92.5FM. In order to do so, Citadel Ltd was formed. Second and third application for licences followed on 7th December 2001 and 12th June 2001. This dispute between MrHilson Phillips (of TBS) and Citadel led to the former causing interference with the 92.5PM frequency. This caused Mr Lee Sing to write to the Minister (MrBereaux) to plead his case for a licence for Citadel. A licence was subsequently granted on 1st October 2002.
• HedwidgeBereaux: He held the position of Minister of Science,
Technology and Tertiary Education from December 2001 to October 2002. He stated that he never saw the list of pending applications for broadcasting licences which Winston Ragbir (the Director of Telecommunications until April 2002) said he had. In February 2002, he requested a list of all outstanding applications for broadcasting licences and obtained an Interim Draft list on 4th April 2002. He admitted that Louis Lee Sing came to him sometime complaining about his application for a radio broadcasting licence and he told Lee Sing to bring it to him so that he could “make sure it gets where it goes”. Bereaux admitted that he knew that there were issues of improper use and breaches of the licence condition for 92.5FM relating to Mr. Lee Sing. The decision to take the Note (application for the licence) to Cabinet was his but he had discussions with other persons (his colleagues). These were informal discussions. Bereaux ignored (‘discounted’) the recommendation of his staff that Citadel should not be given a licence and instead recommended to Cabinet that it should be given one. His justification for this was that if it were not done many people (estimated 45-50) would otherwise have lost their jobs. The staff had recommended that licence not be granted because the applicant (M. Lee Sing) had inappropriately used a licence .
• Mr Patrick Manning: he was at the critical time in August 2002 Prime Minister of Trinidad and Tobago. He admitted that the Prime Minister’s Office would have had carriage of the Telecommunications portfolio, it would have been handled by a Minister in the Prime Minister’s Office. Mr. Manning said that Citadel was a broadcasting operation and were broadcasting but they had an application for a licence in the pipeline. Citadel fell out with the people under whose licence they were operating. He said that as they were an operating entity he was minded to “take out the licence” for Mr Lee Sing and that is what made him do [what he did]. He further state that “we happen to know Louis Lee Sing, we happen to know them they are members of the PNM”. He became involved when Citadel ran into a problem and they shut down, then someone spoke to him about it. He received a call, he thought it may have been from Lee Sing who indicated that it looked as though there were going to be problems with the licence.
Lee Sing also told him that in fact they were operating under a licence issued to someone else and they and they were in imminent danger of being shut down. Mr Manning reiterated that it was “not a question of who applied when, but the special circumstances” of Citadel. According to Mr. Manning Citadel was already operating and this distinguished his application form other. Citadel was already faced with a situation that would lead to their having to come off the air. The Cabinet wished to prevent a situation where many people would lose their jobs. In those circumstances he thought they could approve of the grant of the licence.
Analysis of the evidence
9. It should be pointed out that none if the statements or interviews of the persons referred to in paragraph 8 above were obtained under caution. It is settled law that persons charged with the duty of investigating offences should comply with the Judges Rules. Among other things these Rules require that as soon as there are reasonable grounds to suspect that a person had committed an offence he must be cautioned.
10. It is thus unlikely that the statements made by Mr Manning and MrBereaux would be admitted as evidence to ground any culpability since they were made without their being cautioned. They were never informed that they were suspects or read their rights. As such it is likely that should a trial ensue these statements would not be admissible as evidence as being in breach of the Judges Rule, given that Sandy Boucher, the investigator who recorded them, though not a police officer was charged with the duty of investigating. Under Rule VI he is required to comply with the Rules, as far as is practicable. Since both Mr Manning and MrBereaux were effectively suspects following the initial investigations in 2003 they should have been cautioned when interviewed in 2008 and 2007, respectively.
11. It is also unlikely that Mr Lee Sing or Narace would be disposed favourably to the prosecution where member of the political party to which they belong are charged and where they might be said to have involved in the unfair process which lead to the expediting of the grant of the licence to Citadel. The positions might be the same in respect of Mrs Woo Gabriel, Secretary to Cabinet, who would be expected to testify as to interaction with Mr Manning and the Permanent Secretary.
12. The case would therefore largely depend on the evidence of the public servants employed at the Ministry of Science, Technology and Tertiary Education in 2002.
Review of the law as related to matter
13. There is no issue if any commission of any offence under the Integrity in Public Life Act which offences relate to matters such as failure to declare (section 17) or making a false declaration (section 21) and the like.
14. The only possible offence that may arise for consideration in the given fact situation is the common law offence of misbehavior/misconduct in public office. To sustain such a charge all of the public official; (ii) he must be shown to have wilfully neglected to perform a duty or wilfully misconducted himself; (iii) it must be to such a degree as to amount to an abuse of the public’s trust in the office holder; and (iv) it was without reasonable excuse or justification.
15. “Wilful misconduct” has been held to mean deliberately doing something which is wrong either (a) knowing it to be wrong or (b) with reckless indifference as to whether it is wrong. Reckless here is assessed subjectively, meaning the defendant was aware of the risk [of doing something wrong] and in the circumstances known to him it was unreasonable to take it.
16. While in granting a broadcast licence to Citadel in the manner it was done was wrong and it is also arguable that both possible defendants ought to have known what they were doing was wrong, it must be proved that each subjectively considered that what he did was wrong or alternatively that each was recklessly indifferent as to whether it was wrong to grant the licence in the manner it was done.
17. The additional requirement that there must be proof that the misconduct must be “to such a degree as to amount to an abuse of the public’s trust in the office holder” also imposes a heavy burden on the prosecution. There must not only proof of the misconduct itself but it must be to a particularity egregious level. Factors such as the subsequent almost universal granting of radio licence and this being a single incident would militate against proof that the conduct reached the degree to amount to an abuse of the public’s trust in the office holder.
18. In respect of the final element of the offence, the action must be without reasonable excuse or justification.
19. It must be pointed out that Mr Manning did give as his reason fro hastening the grant of the licence the fact that the radio station was an operating entity and he was concerned with the loss of jobs. Even if the radio station has been breaching the terms of a licence granted to TBSL by broadcasting on their assigned 92.5FM frequency, the fact is it was an operating entity with a number of employees and the possible defendants could argue that this was their justification for not following the established procedures for granting radio licences.
20. In this may be found a reasonable excuse or justification for the unfair granting if the licence to Citadel ahead of the other applicants. Even if the prosecution could prove the other three elements of the offence, the justification offered which could be considered reasonable would mean that a conviction would not be secured.
Inequality of Treatment
21. As indicated earlier the fact that the applicant of Citadel was considered ahead of other was the subject of a constitutional motion by Central Broadcasting Services Ltd. While the Court of Appeal in 2005 affirmed that there was enough evidence to conclude that there was a breach of the Applicant’s right to equality of treatment by a public authority it was emphasized that proof in such a case was only on a balance of probabilities and not beyond reasonable doubt.
22. The Court also found that there was no evidence that the reason Citadel’s application was considered ahead of others was that Mr Louis Lee Sing was financier and supporter and the ruling party. There was no evidence that this motivated the rapid consideration of the licence.
23. At the time the decision was made by the court there was no statement by Mr Manning as to what prompted the decision of Cabinet under his leadership. His statement in which he justified his decision as being motivated by seeking to avoid loss of jobs and such considerations was given in 2008.
24. Despite the fact therefore that the granting of the licence to Citadel in the circumstances that it was done amounted to inequality of treatment by a public authority this is not indicative of proof of criminal liability for misbehavior/misconduct in public office where separate elements must be proved and proof must be done beyond a reasonable doubt. Protection against inequality of treatment is as the courts have said akin to striking down “curry favour”. Misconduct in public office in contrast is a serious criminal offence, the proof of which requires cogent and compellable evidence.
The Testing in Deciding whether to change
25. When making a decision whether to prosecute, in each case the prosecutor must carefully evaluate the evidence and apply the legal principles to determine is a prosecution is appropriate. The prosecutor must also be guided at all times by the public interest in a measured application of the law.
26. In Marshall v the DPP (above) it was held In relation to a decision not to prosecute a person, that while the threshold for review may be lower than the relation to decision to prosecute, where the prospects of mounting a successful prosecution by disproving the defence likely to be pleaded beyond reasonable doubt were minimal, the Director of Public Prosecutions would be justified in deciding not to bring a prosecution and an application for judicial review of that decision would not be appropriate.
27. The Code for Prosecutors published by the Office of the Director of Public Prosecutions in March 2012, which is based on the similar English Code , emphasized that when considering the institution of proceedings the first question to be determined is the sufficiency of evidence. A prosecutor must be satisfied that there is admissible substantial and reliable evidence that a criminal offence has been committed.
28. The proper test is whether there is a realistic prospect of a conviction and this requires an evaluation of how strong the case is likely to be trial.
29. As stated above it is probable that the statement made by Mr Manning and MrBereaux to the investigator may not be admissible in evidence to ground culpability since they were not under caution. Neither Mr Manning nor MrBereaux was informed that he was a suspect or read his rights.
30. Further, there us every likelihood that if Mr Lee Sing and Mr, Narace are called as witnesses their evidence may turn out to be supportive of the defence.
31. The case would therefore largely depend on the evidence of the public servants and in that regard one of the primary possible witnesses would have to be the then Permanent Secretary, Mr Emmanuel George.
As it stands now, however, he is a Minister in the current Government, the People’s Partnership, the chief partner of which during the years 2002-2010 was the then official Opposition in Parliament. In assessing the weight of the available evidence of Mr George therefore and without casting any aspersions on him it is likely that hi evidence, may be viewed as tainted or at the very least the jury’s considerations of partisanship may colour their assessment of his evidence, much to the detriment of the prosecution’s case. If the possible defendants are charged the Defense at trial could use the suggestion of partisanship to discredit evidence contained in his statements including the following:
• It was the practice that a Note must be submitted to Cabinet three days before Cabinet met but was not done in the this case. Then Minister Bereaux took the Amended Note to Cabinet on Thursday August 8, 2002.
• On the afternoon of August 8, 2002 Mrs Woo Gabriel, Secretary to Cabinet, called George and told him that Cabinet wished some changes made to the Note relating to Citadel’s application. George enquired about “cautions” expressed regarding the award of the licence. Mrs Woo Gabriel did not respond. She then indicated to George the amendments that Cabinet wished. George made notes on the Draft. The amended Note which reflected many deletions including the date of the Citadel’s application was then sent to Cabinet.
• When George next saw the Minister, he asked whether Cabinet gave due consideration to the concerns highlighted in the Draft Note which could lead to legal action being taken against the Minster. The Ministry replied that the Prime Minister had said, “Don’t bother with that, that will take years”.
32. In effect the whole bogey of partisanship could be run as a thread through the trial in which a jury itself could be swayed by such considerations given the past status of Messrs Manning and Bereaux and the current status of Mr George.
33. Further, it must be pointed out that the details of some conversations such as those between Mrs Gabriel and Mr George would probably constitute inadmissible hearsay and might be excluded on that basis thus making some of the rest of the evidence difficult to follow and incomprehensible.
34. In the light of the above the prosecution’s will have to found its case chiefly on the evidence of Ms Camps, the legal officer and Ms Guinness, the then Deputy Director of Telecommunications.
35. Their testimony alone will not be sufficient to prove all the elements of misbehavior in public office such as, for instance, whether there was “wilful misconduct” on the part of the possible defendant, that is deliberately doing something which is wrong either (a) knowing it to be wrong (b) with reckless indifference as to whether it is wrong. The court/jury would be asked to infer from the fact of the grant of a broadcast licence to Citadel -
(a) During a time when there was said to be a moratorium and
(b) Ahead of Applicants who had applied before.
that the Ministers concerned wilfully misconducted themselves. A court, on a no case submission application, might easily uphold such a submission.
36. In any event, it is submitted that the testimony of Camps and Guinness as to the official moratorium and the status of Citadel Radio would have to be supported by documentary evidence otherwise it might be attacked as being opinion or inadmissible hearsay. Such matters that would require support or proof from documentary sources could include the following assertions.
• There was no established Broadcast Policy at the time and the Permanent Secretary before Mr. George had advised that all existing applicants be deferred until a Broadcast policy was approved by Cabinet. Failing that the applicants were to be treated on a first come first served basis.
• When the Citadel application came to the Division. Guinness said the application was dated 13th March 2001 but within the Telecommunications Division, no record of the application could be found before that date, 8th April 2002. This might be hotly contested issue and the Deputy Director herself stated “there was a high level of disorganization within the Division” especially after the it had been moved from Abercromby Street to St James in terms of the record keeping and the filing system.
• With respect to the Citadel application, Ms Guinness observed that is was incomplete. Ms Guinness also observed an irregularity in that the letterhead of Citadel Ltd in that it contained the logo i92.5FM Tower of Strength.
37. It is also possible that since these civil servants worked closely with Mr George the partisan taint might well affect the reception of their evidence before a jury.
38. In reviewing the evidence and applying the test: (i) can the evidence be used in court; and (ii) is it likely that the evidence will be excluded by the courts, it is evident that the presentation of the cases will be fraught with difficulties. Not only will the statements of the possible defendants be likely excluded but the evidence of the other witnesses might prove insufficient or unsatisfactory for the reasons given above.
39. As such from an objective point of view it might well be considered that there is no realistic prospects of conviction should Messrs Manning and Bereaux be charged for misbehavior in public office.
40. As we stated in R v Director of Public Prosecutions, Ex parte Manning and another (applied in Marshall) “while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial.”
The public interest test
41. The sufficiency of evidence is also not the only consideration. Even if there is sufficient evidence to justify a prosecution a prosecutor must go on to consider whether a prosecution is required in the public interest.
42. This is of importance in the particular circumstances of the instant matter given who the possible defendants are and the factual matrix of the possible charge. A wrongful decision to prosecute could seriously undermine public confidence in the criminal justice system.
43. The decision as to whether a prosecution is required is influenced by other considerations such as whether the loss or harm is minor; whether it was a result if a single incident; or whether the conduct an issue may have been occasioned by a misjudgment. The age of the matter is also a factor to be considered.
44. Given the explanation of Mr. Manning when interviewed (which through it may not from part of the prosecution case, may be used by the Defence) suggesting that he was interested in saving jobs and Citadel was an operating entity, one could conclude that he believed that this was a justification for the unfair expediting of the grant of licence to Citadel. Given also that it was one single incident this should be factored into any determination as to whether it is in the public interest to prosecute the possible defendants.
45. It is an established fact in the public domain that Mr. Manning has recently suffered two strokes having had heart surgery and now lives with a pace maker. He has been absent from Parliament for over 13 months. If a suspect is suffering from significant ill health this is a factor that could influence whether a prosecution should proceed, especially if the offence is not likely to be repeated. In the instant matter there is not complaint nor is there any suggestion or evidence that is was.
46. Although MrBereaux might not be similarly circumstances since he was not the Head of Cabinet, it can be said that he performed a subsidiary role in the entire transaction. As such if it is decided not to be proceed against Mr Manning then it would be impractical and evidentially difficult to proceed against MrBereaux.
47. In the light if the foregoing and in particular the difficulties envisaged in proving the case I have determined a prosecution in this case should not proceed as on an assessment of the strength of all the material available to me including the evidence against the possible defendants as well as the likely defences there is insufficient evidence to charge anyone for any criminal offence.
48. Further and in the alternative it is not in the public interest to bring a prosecution in this matter.
Roger K Gaspard SC
Director of Public Prosecutions