Chief Justice Ivor Archie delivers his address during the Opening of the New Law Term at the Convocation Hall, Hall of Justice, yesterday.

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.