Court strikes down law allowing State to spy on prisoner-lawyer calls

DEREK ACHONG

Se­nior Re­porter

[email protected]

An amend­ment to the In­ter­cep­tion of Com­mu­ni­ca­tions Act, giv­ing law en­force­ment of­fi­cers the au­thor­i­ty to lis­ten in, record and utilise tele­phone com­mu­ni­ca­tions be­tween pris­on­ers and their lawyers, has been de­clared un­con­sti­tu­tion­al.

On Fri­day, High Court Judge Robin Mo­hammed struck down the 2020 amend­ment as he up­held a le­gal chal­lenge from Lyn­don Charles, one of two men await­ing re­tri­al for the mur­der of busi­ness­woman Vin­dra Naipaul-Cool­man.

In the law­suit, Charles’ lawyers, led by Se­nior Coun­sel Anand Ram­lo­gan, of Free­dom Law Cham­bers, con­tend­ed that the leg­is­la­tion, which on­ly ap­plies le­gal pro­fes­sion­al priv­i­lege to con­ver­sa­tions us­ing ap­proved com­mu­ni­ca­tion de­vices and at des­ig­nat­ed ar­eas with­in the coun­try’s pris­ons, was un­law­ful.

Charles’ lawyers point­ed out that the ex­cep­tions were not pro­vid­ed for as there was no of­fi­cial des­ig­na­tion af­ter the leg­is­la­tion was pro­claimed.

In his judg­ment, Jus­tice Mo­hammed re­ject­ed ar­gu­ments from the State that le­gal pro­fes­sion­al priv­i­lege could not ex­tend to con­ver­sa­tions which pris­on­ers un­law­ful­ly con­duct us­ing pro­hib­it­ed cell­phones.

“While this Court agrees that le­gal pro­fes­sion­al priv­i­lege can­not be used as a shield to pro­tect crim­i­nal con­duct, the De­fen­dant’s propo­si­tion that the Claimant can­not rea­son­ably ex­pect to at­tach priv­i­lege to con­ver­sa­tions fa­cil­i­tat­ed by il­le­gal cel­lu­lar phones is un­sus­tain­able,” Jus­tice Mo­hammed said.

How­ev­er, he not­ed that priv­i­lege would cease to ap­ply to such con­ver­sa­tions if crim­i­nal con­duct or plans are dis­cussed.

“The Claimant has quite clear­ly as­sert­ed in both his plead­ings and his sub­mis­sions that his case is not on the ba­sis that in­mates should have un­lim­it­ed and un­de­terred re­course to cell phones, nor is it his case that there should not be de­ci­sive ac­tion tak­en to put an end to in­mates’ ‘putting out hits’ on prison of­fi­cers,” he said.

Rul­ing that the leg­isla­tive pro­vi­sions breached pris­on­ers’ con­sti­tu­tion­al right to re­tain and com­mu­ni­cate with an at­tor­ney of their choos­ing, Jus­tice Mo­hammed said that it (the leg­is­la­tion) clear­ly dis­in­cen­tivised can­did com­mu­ni­ca­tion be­tween them and their lawyers.

He said that a safe space is in­te­gral to fos­ter open di­a­logue be­tween at­tor­neys and their clients, and such could not be achieved with all com­mu­ni­ca­tion be­ing mon­i­tored.

“Pris­on­ers of­ten wish to speak to their at­tor­neys on high­ly sen­si­tive mat­ters in­clud­ing in­ter alia the cir­cum­stances of their ar­rest and de­ten­tion, pos­si­ble mis­treat­ment and breach­es of their rights by prison of­fi­cers, and the re­ceipt of any threats,” he said.

“It can­not rea­son­ably be said that pris­on­ers would gen­er­al­ly demon­strate forth­right­ness in dis­clos­ing any im­pli­cat­ing con­duct of prison of­fi­cers, where their com­mu­ni­ca­tions re­main sub­ject to the con­trol of the State,” he added.

Jus­tice Mo­hammed al­so found that the leg­is­la­tion breached Charles’ con­sti­tu­tion­al rights to re­spect to pri­vate and fam­i­ly life, to a fair hear­ing, and pro­tec­tion of the law.

He found that the in­fringe­ments of the leg­is­la­tion on pris­on­ers’ rights were not rea­son­ably jus­ti­fi­able in a so­ci­ety that has prop­er re­spect for the rights and free­dom of the in­di­vid­ual.

While he found that the leg­is­la­tion had a le­git­i­mate aim in pre­vent­ing bur­geon­ing crim­i­nal­i­ty with­in the coun­try’s pris­ons, Jus­tice Mo­hammed sug­gest­ed that a less in­tru­sive mea­sure could have been used, such as al­low­ing in­de­pen­dent coun­sel to de­ter­mine whether le­gal priv­i­lege ap­plied to in­ter­cept­ed com­mu­ni­ca­tions be­fore dis­clos­ing such.

Jus­tice Mo­hammed al­so found that the leg­is­la­tion was not prop­er­ly passed by Par­lia­ment as it re­quired a three-fifths ma­jor­i­ty in both hous­es but on­ly re­ceived such in the Sen­ate.

He point­ed out that while for­mer at­tor­ney gen­er­al Faris Al-Rawi, SC, claimed that the ma­jor­i­ty was not re­quired as the leg­is­la­tion did not in­fringe cit­i­zens’ con­sti­tu­tion­al rights, his rul­ing in the case op­posed such a sug­ges­tion.

“As a re­sult, the In­ter­cep­tion of Com­mu­ni­ca­tions (Amend­ment) Act 2020 is il­le­gal, null, void, and of no ef­fect,” Jus­tice Mo­hammed said.

Jus­tice Mo­hammed is­sued a se­ries of de­c­la­ra­tions over the il­le­gal­i­ty and un­con­sti­tu­tion­al­i­ty of the leg­is­la­tion but did not or­der any mon­e­tary com­pen­sa­tion as such was not sought by Charles’ lawyers in the case.

He or­dered the State to pay Charles’ le­gal costs and grant­ed a 42-day stay to give the State time to con­sid­er and file an ap­peal.

Charles was al­so rep­re­sent­ed by Kent Sam­lal, Renu­ka Ramb­ha­jan, Jayan­ti Lutch­me­di­al, Ganesh Sa­roop, Natasha Bis­ram, and Vishaal Siewsaran.

The Of­fice of the At­tor­ney Gen­er­al was rep­re­sent­ed by Gilbert Pe­ter­son, SC, Rishi Dass, SC, and Rachel Wright.

Charles was joint­ly charged with 11 men from Diego Mar­tin for mur­der­ing Naipaul-Cool­man.

The for­mer Xtra Food chief ex­ec­u­tive was ab­duct­ed from her Ch­agua­nas home on De­cem­ber 19, 2006.

A $122,000 ran­som was paid by her fam­i­ly, but she was not re­leased and her body was nev­er found.

Sher­von and De­von Pe­ters, their broth­er An­tho­ny Gloster, Joel Fras­er, Ronald Arm­strong, broth­ers Kei­da and Jameel Gar­cia, Mar­lon Trim­ming­ham, his broth­er Earl, Charles, Al­lan “Scan­ny” Mar­tin and An­to­nio Charles were even­tu­al­ly charged with the crime

Dur­ing the tri­al be­fore for­mer High Court Judge and cur­rent Ap­pel­late Judge Mal­colm Holdip and a 12-mem­ber ju­ry, State pros­e­cu­tors con­tend­ed that the Naipaul-Cool­man was held cap­tive in a house in Up­per La Puer­ta, Diego Mar­tin, be­fore she was killed and dis­mem­bered.

Through­out the tri­al, de­fence at­tor­neys point­ed out mul­ti­ple in­con­sis­ten­cies in the ev­i­dence.

They ques­tioned the men­tal health of the State’s main wit­ness Keon Gloster, who claimed that he was co­erced by po­lice in­to im­pli­cat­ing the ac­cused men. They al­so con­tend­ed that a gun linked to the kid­nap­ping crime scene was plant­ed in one of the ac­cused men’s homes.

When the tri­al was at an ad­vanced stage, Mar­tin and two fel­low pris­on­ers at the Port-of-Spain State Prison staged a dar­ing es­cape dur­ing which a po­lice of­fi­cer was mur­dered. Mar­tin was shot and killed by po­lice in a shootout at the Port-of-Spain Gen­er­al Hos­pi­tal.

Fras­er was freed be­fore the ju­ry con­sid­ered the case as Jus­tice Holdip up­held a no-case sub­mis­sion al­leg­ing that there was in­suf­fi­cient ev­i­dence link­ing him to the crime.

The tri­al end­ed in 2016 with the ju­ry ac­quit­ting eight of the men and or­der­ing a re­tri­al for Earl Trim­ming­ham and Charles.

In his case be­fore Jus­tice Mo­hammed, Charles claimed that he would oc­ca­sion­al­ly use cell phones pro­vid­ed by un­named prison of­fi­cers to con­tact his lawyers. He claimed that the un­law­ful prac­tice fa­cil­i­tat­ed by the of­fi­cers was es­pe­cial­ly vi­tal dur­ing the COVID-19 pan­dem­ic when face-to-face meet­ings be­tween pris­on­ers and lawyers were not per­mit­ted.

Charles’ for­mer co-ac­cused pur­sued ma­li­cious pros­e­cu­tion claims af­ter be­ing freed and were award­ed over $20 mil­lion in com­pen­sa­tion be­tween them af­ter ob­tain­ing de­fault judg­ments against the State.

The Of­fice of the At­tor­ney Gen­er­al sought to over­turn the out­come as it claimed that the cas­es were not prop­er­ly de­fend­ed be­cause the court fil­ings pur­port­ed­ly “dis­ap­peared” af­ter be­ing served.

The at­tempt was re­ject­ed by both the Court of Ap­peal and the Unit­ed King­dom-based Privy Coun­cil, mean­ing that the men are now set to re­ceive the com­pen­sa­tion.