Director of Public Prosecutions (DPP) Roger Gaspard, SC, has raised concerns over the ability of his office to process a little over 1,200 bail applications from remand prisoners, who benefit from a recent landmark judgment from the Court of Appeal over judges being able to consider bail for murder.
Gaspard raised his concerns in an affidavit filed in relation to an application from the Office of the Attorney General to suspend the judgment pending a final appeal to the United Kingdom-based Privy Council.
In the document, obtained by Guardian Media, Gaspard said there is a grave risk of injustice if the ongoing temporary stay granted by the Appeal Court is not extended when it considers the issue on March 3.
Gaspard suggested that his office’s ability to resist such applications would be hampered by the ongoing inability to host jury trials during the COVID-19 pandemic.
“Even though I am aware from news reports that Barbados, Guyana, and Belize have all restarted jury trials, prosecutors, though they may be ready to present their cases, cannot reliably advance to the Judge or Master hearing the application for bail, a firm trial date for any murder accused opting for a jury trial,” Gaspard said.
Gaspard referred to Chief Justice Ivor Archie’s annual speech at the opening of the 2021/2022 Law Term, last November, when he (Archie) admitted that only 30 judge-alone trials, eight of which were murder, were completed during the previous law term.
“I aver that it is difficult to see how the “mass exodus” from remand which the court in the judgment did not think likely, at paragraph 91, could be prevented in the absence of the immediate resumption of jury trials,” Gaspard said.
Referring to staff shortages at his office, Gaspard noted that while Cabinet approved a new organisational structure with a complement of 137 attorneys in May 2013, his office currently has 50 attorneys.
He stated that of the current staff, two attorneys resigned recently with two others being unable to be deployed to court hearings due to medical issues.
“I am aware of steps being made to fill vacancies at the Office of the DPP, however at this time, where it is almost three times under its Cabinet-sanctioned strength, the DPP’s Office will struggle to meet the tide of applications which will flow from the judgment, with a clear risk of injustice in treating with them appropriately as follows inevitably from the law of diminished returns,” he said.
Gaspard explained that for his prosecutors to properly and robustly resist bail applications, they would have to provide the court with detailed reports on whether the accused poses a threat to witnesses, whether witness protection is required, and the accused person’s propensity to re offend whilst on bail.
“All these matters require extensive preparations and cannot be completed within a short timeframe,” Gaspard said, as he noted that the assistance of police officers from the Court and Process Branch would be required.
Gaspard also raised concerns over the ability of the Electronic Monitoring Unit of the Ministry of National Security to provide electronic monitoring to accused persons who may be granted bail.
He noted that his office would request such monitoring for all such murder accused as they should be considered flight risks because they still face the possibility of the death penalty if eventually convicted.
“I aver that this again creates a risk of injustice where persons admitted to bail for the most serious offence known to law would be unable to be appropriately supervised and consequently, potentially guilty persons may be able to abscond,” he said.
Also attached to the suspension application was an affidavit from acting Permanent Secretary in the National Security Ministry Gary Joseph, who sought to detail the current shortcomings in electronic monitoring.
He noted that the unit began its operations in April 2020, with the first offender being placed in the programme one year later.
He stated that it was envisaged that the programme would not have been extended to “high priority” offenders in its initial stages due to staff shortages within the department.
Joseph also claimed that the unit does not have the equipment to provide safe and effective monitoring of high risk offenders.
“The monitoring devices acquired and currently in use for the programme do not meet the criteria that is required for such offenders and are suited for a lower threshold of accused/offenders,” Joseph said, as he noted that it would cost approximately $10,000 for each unit of the devices capable of such monitoring.
Joseph pointed out that the Probation Services Division of the ministry would also have to assist in preparing reports and monitoring progress.
He also suggested that the judgment would put a strain on the T&T Forensic Science Centre as it would be required to prepare its analysis reports quicker so that they would be available to be considered in bail applications.
“In the expected event that there is an avalanche of applications, this will put additional strain on the existing staff and financial resources which were not budgeted for in our draft estimates 2022 and in our mid-year review,” Joseph said.
In her affidavit, Director of the Legal Unit of the Attorney General’s Secretariat Tenille Ramkissoon raised concerns over Solicitor General’s and the Chief State Solicitor’s Department being potentially inundated with hundreds of civil lawsuits over breaches of constitutional rights if the judgment is not suspended.
“In my opinion, it will take time and additional financial and personnel resources to be able to deal with additional workloads in all these departments,” she said.
Delivering a written judgment during a virtual hearing last Thursday, Archie and Appellate Judges Mira Dean-Armorer and Malcolm Holdip upheld the case brought by former murder accused Akilli Charles as they ruled that Section 5(1) of the Bail Act of 1994, which precluded the grant of bail for persons accused of murder, is inconsistent with the Constitution and should be struck down.
The appeal panel ruled that the segment of the legislation was not reasonably justifiable in a society that is concerned about the rights and freedoms of the individual.
“The unanimous view of this panel is that, by removing the jurisdiction of High Court Judges to grant bail to persons charged with murder, section 5 has trespassed on a core judicial function,” Archie, who wrote the judgment, said.
