Judge allows legal action against Judiciary

The content originally appeared on: Trinidad and Tobago Newsday


Justice Robin Mohammed. –

A HIGH COURT judge has given permission to a non-profit organisation to commence judicial review proceedings against the Judiciary for failing to provide information relating to cases that were dismissed because police failed to appear in court.

On Monday, Justice Robin Mohammed granted leave to the High Tide project which sought the information under the Freedom of Information Act. The organisation is represented by attorneys Randall Hector and Larry Boyer while the Judiciary is represented by Tinuke Gibbons-Glenn.

Justice Mohammed said, “In this country, freedom of information is now a well-established and respected right that is consistently upheld and developed by the court.

“There is a duty on public authorities to act within the confines of the law.”

The judicial review claim will come up for hearing on March 17.

Since February 2021, the non-profit requested the information but was only provided statistics for the San Fernando and Scarborough courts. It said those were the only courts that were computerised and the information from the other courts “cannot be easily gathered”.

The information for Tobago contained 32 cases with dismissal dates from 5 January 2016 to 15 October 2021. The San Fernando information contained 81 cases with dismissal dates from 6 January 2016 to November 2019.

The High Tide project wrote back to the Judiciary indicating that the information provided did not contain the names of the police officers as it related to each dismissed charge. It also asked for the process used to generate the information provided.

In response, the Judiciary said the information was obtained by “keyword” search and cases with values connected to “dismissed for want of prosecution” were listed and that was the information forwarded to the organisation.

The Judiciary also said that it did not have the query capability programmed into its system to obtain the names of the police complainants and could not provide that information.

Not satisfied, the organisation sent a pre-action protocol letter to the Judiciary, which was not responded to, and then filed its application for judicial review.

At the trial, the non-profit’s lawyers argued its claim had a reasonable prospect of success to which the judge agreed.

In his analysis, the judge said by repeating that it could not provide the information because of difficulty in accessing it and the broad nature of the request, the Judiciary failed to convince the court that leave should not be granted.

In its reply to the application, the Judiciary said the group could have requested the information it wanted from each of the district courts in Trinidad and Tobago.

“No evidence was provided by the respondent as to how exactly the applicant can do this.

“Taking into consideration the respondent has stated that the other district courts are not computerised, one is left to wonder whether an over-the-counter approach at each district court would prove successful.

“If unsuccessful, would the applicant then have to file freedom of information requests to obtain the information at each district court? This seems highly untenable as the magistracy undoubtedly falls under the umbrella of the Judiciary,” the judge pointed out.

He also said the Supreme Court of Judicature Act imposed a duty on the Judiciary to keep records and only the magistracy had the power to dismiss actions before it.

“The magistracy is a creature of statute and this is a non-delegable duty provided for by said statute.

“The respondent has not denied this and has not denied that the records are in its possession.”

He said by having provided some of the information, the Judiciary never said directly if it was refusing the request nor did it provide reasons or justifications for not providing it as provided for under the FOIA.

“The applicant is entitled to have a clear response and be advised by the respondent public authority accordingly.”

In a press statement, the organisation said its aims were to increase transparency and accountability in the police service.

It has previously sought disclosures from the police service which revealed there were more than 2,800 police officers against whom disciplinary proceedings were instituted for failure to appear in court. In those proceedings more than 1,000 resulted in “no action”.

The statement said the disclosures also revealed the existence of several repeat offenders – “officers who habitually fail to attend their matters leading to their dismissal.

“Even in cases where officers are found guilty of disciplinary offences arising out of failure to appear in court, punishments are limited to deduction of a few days pay,” it further noted.

The project said this has led to a culture which “normalises the laying of false charges and shoddy investigative work, since many officers feel no real obligation to bring evidence to court to support the charges laid.”