Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) Roger Gas­pard, SC, has fi­nal­ly re­spond­ed to Chief Jus­tice Ivor Archie's ap­par­ent crit­i­cism of his of­fice's role in chron­ic de­lays in the crim­i­nal jus­tice sys­tem.

In an eight-page press re­lease is­sued on Sat­ur­day, Gas­pard not­ed that his de­layed re­sponse to Archie's crit­i­cism in his an­nu­al ad­dress at the open­ing of the 2020/2021 Law Term, last week, was due to his "deep-seat­ed de­sire to pro­tect any fur­ther dis­fig­ure­ment of the vis­age of the Ju­di­cia­ry on the Crim­i­nal Jus­tice Sys­tem."

First­ly, Gas­pard apol­o­gised to cit­i­zens over the fact that his of­fice on­ly filed 12 in­dict­ments over the past term and sought to give a de­tailed ex­pla­na­tion. He claimed that it was due to sev­er­al fac­tors in­clud­ing peren­ni­al short staffing, lim­it­ed of­fice space, in­sti­tu­tion­al and sys­temic ad­just­ments due to the COVID-19 pan­dem­ic and the Ju­di­cia­ry's uni­lat­er­al de­ci­sion to re­ly sole­ly on elec­tron­ic fil­ing.

He sug­gest­ed that Archie's claims that the fil­ings rate was di­rect­ly re­spon­si­ble for the near-col­lapse of the crim­i­nal jus­tice sys­tem was spec­tac­u­lar­ly disin­gen­u­ous and mis­lead­ing as his of­fice has filed be­tween 150 and 300 in­dict­ments an­nu­al over the past decade.

"Ad­di­tion­al­ly to sug­gest even oblique­ly, that the small num­ber of in­dict­ments filed is a sig­nif­i­cant con­trib­u­tor to the crim­i­nal jus­tice sys­tem be­ing brought to a state of "near col­lapse," is to de­lib­er­ate­ly close one's eyes to the blind­ing light of the sta­tis­tics on mat­ters still await­ing tri­al," Gas­pard said.

Gas­pard not­ed that in his 2018/2019 an­nu­al ad­dress Archie ad­mit­ted that, at that time, 1706 filed in­dict­ments were await­ing tri­al. Of those mat­ters, 960 or 56.3 per cent were filed over a decade ago.

He al­so dis­missed Archie's state­ment that the Ju­di­cia­ry was able to dis­pose of 97 in­dict­ments with a clear­ance rate (ra­tio of cas­es filed to those dis­posed of) of 800 per cent.

"As­sum­ing that vic­tims of crime and per­sons await­ing tri­al, can even de­mys­ti­fy this "clear­ance ra­tio", that ra­tio I sus­pect is un­like­ly to of­fer them much com­fort," Gas­pard said.

He al­so ques­tioned Archie's state­ment that the dis­po­si­tion rate was af­fect­ed by lim­it­ed crim­i­nal judges due to pro­mo­tions to the Court of Ap­peal.

"Re­spect­ful­ly, I sub­mit that it is dif­fi­cult to com­pre­hend how this mat­ter, its pre­ven­tion and rec­ti­fi­ca­tion could have been 'be­yond the Ju­di­cia­ry's con­trol'" Gas­pard said.

Root cause of the de­lay

Turn­ing to the root cause of the de­lay in fil­ing in­dict­ments, Gas­pard point­ed to­wards the fact that there was be­tween a three and sev­en-year de­lay in the trans­mis­sion of doc­u­ments of com­plet­ed pre­lim­i­nary in­quiries from Mag­is­trates' Courts, which are re­quired to file in­dict­ments.

He stat­ed that in April 2019, the Ju­di­cia­ry had giv­en his of­fice the doc­u­ments re­lat­ed to over 450 cas­es. He said that the doc­u­ments were pa­per-based and the Ju­di­cia­ry agreed to ac­cept them be­ing filed in the tra­di­tion­al hard copy method.

How­ev­er, Gas­pard not­ed that since May this year the Ju­di­cia­ry has re­ject­ed its at­tempts to file the pa­per-based in­dict­ments in favour of elec­tron­ic fil­ings.

Gas­pard stat­ed that the re­quire­ment has de­plet­ed his of­fice's fi­nite re­sources as staff now have to scan the vo­lu­mi­nous doc­u­ments in or­der to meet the Ju­di­cia­ry's new re­quire­ments.

"The Ju­di­cia­ry's de­ci­sion, tak­en uni­lat­er­al­ly and with­out any prop­er warn­ing or time­ly com­mu­ni­ca­tion, to re­nege on an agree­ment which had been ar­rived at in good faith and by which it was sought to main­tain eq­ui­ty and fair­ness in deal­ings be­tween two key stake­hold­ers in the crim­i­nal jus­tice sys­tem, de­fied log­ic, in­jured trust and com­pro­mised ef­fi­cien­cy," Gas­pard said.

Re­spond­ing to Archie's com­ments on the lim­it­ed use of max­i­mum sen­tence in­di­ca­tions, Gas­pard said that they de­pend on de­fence at­tor­neys ex­plor­ing the pos­si­bil­i­ty of a re­duced sen­tence for a guilty plea and not­ed that his pros­e­cu­tors would not refuse.

Plea bar­gain­ing

Tak­ing aim at plea bar­gain­ing, Gas­pard stat­ed that the leg­is­la­tion al­so re­quires ju­di­cial of­fi­cers ad­vis­ing ac­cused per­sons of such a pos­si­bil­i­ty dur­ing pre­lim­i­nary hear­ings.

"From my dis­cus­sions with coun­sel who prac­tise reg­u­lar­ly at the Crim­i­nal Bar, this manda­to­ry statu­to­ry re­quire­ment is high­light­ed more by its breach than by its ob­ser­va­tion. Ac­cord­ing, should this change one can rea­son­ably ex­pect a high­er vol­ume of per­sons con­sid­er­ing plea agree­ments," Gas­pard said.

In the re­lease, Gas­pard al­so com­mend­ed Archie for mak­ing ef­forts to im­prove the sys­tem un­der his tenure and said that ef­fec­tive stake­hold­er con­sul­ta­tion is need­ed to make fur­ther im­prove­ments.

"I be­lieve an in­te­gra­tive and col­lab­o­ra­tive ap­proach by the var­i­ous stake­hold­ers is crit­i­cal. Such an ap­proach can hard­ly com­mend it­self, in an at­mos­phere char­ac­terised by ma­noeu­vres which sug­gest bul­ly­ing or in­tim­i­da­tion, whether float­ed pri­vate­ly or pub­li­cal­ly," Gas­pard said.

"In that re­gard and by way of jux­ta­po­si­tion of our cur­rent predica­ment, the stake­hold­ers in the crim­i­nal jus­tice sys­tem, can­not af­ford to con­cern our­selves with plumage preen­ing, self-con­grat­u­la­to­ry pos­tures, or with be­com­ing top en­am­oured with fog­gy sta­tis­tics and cloudy 'clear­ance ra­tios'."

While pre­sent­ing sta­tis­tics for the High Court Crim­i­nal Di­vi­sion in his speech, Archie not­ed that while the Ju­di­cia­ry was able to dis­pose of 97 in­dictable cas­es, de­spite lim­i­ta­tions due to the COVID-19 pan­dem­ic, on­ly 12 new in­dict­ments were filed.

Archie said: "We can take no com­fort in the sta­tis­tics of a clear­ance rate (ra­tio of cas­es filed to dis­posed) of 800 per cent."

"It hides a dis­tress­ing truth which is the crim­i­nal jus­tice sys­tem is near col­lapse ow­ing to fac­tors be­yond the Ju­di­cia­ry's con­trol," Archie said.

While Archie ad­mit­ted that the dis­po­si­tion rate was af­fect­ed by dif­fi­cul­ties in safe­ly host­ing ju­ry tri­als dur­ing the pan­dem­ic and by a short­age of judges caused by pro­mo­tions to the Court of Ap­peal, he sug­gest­ed that there was no ex­cuse for the de­lay in fil­ing in­dict­ments, which is the process re­quired to have a case join the long list of cas­es await­ing tri­al in the High Court.