Shervon Peters v The Commissioner of Police

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice R. Rahim
• Judgment Date: 25 July 2022
• Neutral Citation: TT 2022 HC 176
• Docket Number: Claim No.: CV2020- 02106
• Court: High Court (Trinidad and Tobago)
• Year: 2022

Between

Shervon Peters

Claimant

and

The Commissioner of Police

Defendant

Before the Honourable Mr. Justice R. Rahim

Claim No.: CV2020- 02106

IN THE HIGH COURT OF JUSTICE

Appearances:

Claimant: Mr. A. Ramlogan SC and Mr. G. Saroop instructed by Ms. A. Rambaran

Defendant: Ms. V. Gopaul instructed by A. Castagne

JUDGEMENT

Introduction

1 The Freedom of Information Act Chap 22:02 ( FOIA) gives “members of the public a general right (with exceptions) of access to official documents of public authorities”.

2 In Caribbean Information Access Ltd v The Minister of National Security 1, Jamadar J.A. at paragraph 8 stated the interpretation and policy of the FOIA were to create a general right of access to information in the possession of public authorities, ‘limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by public authorities.

3 On September 2, 2020, the Claimant filed his Fixed Date Claim to judicially review the decision of the Defendant. The Claimant is challenging the decision of the Defendant not to provide copies of certain documents in response to the Claimant's request for same under the Freedom of Information Act Chapter 22:02 (“the FOIA”).

4 On November 19, 2019, the Claimant, made a request for disclosure pursuant to Section 13 of the FOIA relating to his charge for murder. On December 10, 2019, the Defendant replied to the Claimant's application denying access to all items requested and relying on the exemptions in Sections 27(1), 28(1) (a), (c) and (e), 30(1) and 32(1) of the FOIA.

5 The Claimant avers that the Defendant did not conduct a balancing exercise pursuant to Section 35 of the FOIA. In addition, the Defendant has illegally failed and/or refused and/or omitted to perform its statutory duties under Section 14 of the FOIA.

Background

6 The Claimant along with ten other accused were charged for the murder of Vindra Naipaul- Coolman. There was a preliminary enquiry at the Port-of-Spain Magistrates' Court following which the Claimant was committed to stand trial at the Port-of-Spain Assizes. On May 30, 2016, at the Port of Spain Assizes, the Claimant and seven of the accused were found not guilty. A retrial was ordered for two of the accused but not for the Claimant. On May 29, 2020, the Claimant and eight others filed a Claim for malicious prosecution one day before the limitation period was due to

expire. Default judgment has since been entered in favour of the Claimant and his matter is before the Master solely on the issue of assessment of damages

7 Before the filing of the Claim, the Claimant submitted a Section 13 application 2 under the FOIA seeking access to the following:

• 1) A list and copy of all the documents which were submitted to the DPP or State Counsel who was assigned by the DPP to advise on whether or not to institute a charge of murder against the Claimant;

• 2) The interim file submitted by the investigator to the DPP and/or State Counsel;

• 3) Copies of the minutes, file notes and/or instructions/advice giving the Complainant instructions to charge;

• 4) Copies of any statements which did not form part of the original set of documents sent to the DPP for advice on laying the charge which came into the Complainant's and/or DPP's possession during the prosecution at the PI and Assizes;

• 5) Copies of all material in the possession of the prosecution which was not used in the PI and High Court trial;

• 6) Copies of all transcripts and/or depositions of all witnesses' Evidence in Chief and/or cross-examination at the PI and High Court trial; and

• 7) A complete copy of the file in the possession of the office of the DPP as a (sic) relates to this matter.

8 The Defendant replied to the Claimant's FOIA application denying access to all items requested 3 and provided several reasons for so doing.

9 The Claimant deposed that a FOIA request was also submitted to the DPP but application was not acknowledged. Proceedings were instituted against the DPP, and leave was granted. However, the

Claimant says, there has been no access decision from the DPP and hence the Claimant is yet to receive the requested information

10 The Claim for malicious prosecution was filed to avoid the matter becoming statute-barred however, the requested information is of critical importance to enable the Claimant to advance his case properly. In any event, the Applicant should not have to wait until the hearing and determination of the retrial of his co-accused to file his Claim for malicious prosecution.

11 The grounds upon which this challenge is based under Section 5 of the Judicial Review Act 2000 include that the decision is:

• a. Unreasonable, irregular or improper exercise of discretion;

• b. Conflicts with the policy of the FOIA;

• c. Unauthorised or contrary to law;

• d. Amounts to an abuse of power and/or the exercise of power in a manner that was so unreasonable that no public authority could have so exercised the power.

12 The fact and circumstances surrounding the trial process must be added to the context of the application. The Claimant would have been through the preliminary inquiry process where the original statements given by witnesses along with unused material may have been disclosed as part of the proceedings. Further, the Claimant would have had the record of the Magistrate's Court depositions as of right after the indictment was filed. Additionally, the Claimant would have been present at the trial and would have been the beneficiary of wide ranging disclosure as exists within the criminal jurisdiction including but not limited to unused material, statements made to the Police by witnesses and other documents. Additionally, the Claimant is entitled to full transcripts of the High Court and Magistrate's Court proceedings on the payment of the appropriate fee. It appears therefore, to be somewhat disingenuous that documents, more likely than not, already disclosed would be included in the application under the FOIA. The inclusion of same makes the request a wider one than is necessary thereby placing additional strain on the resources of the department that must now treat with the application. Be that as it may, the factual premise is that the Claimant benefited from disclosure both at the Magistrate's and High Court. It is to be noted that the Claimant makes no mention whatsoever about this disclosure including any pre-trial disclosure that he may have received prior to his FOIA application.

13 Adita Ramdular is an Attorney attached to the Legal Unit of the Trinidad and Tobago Police Service (“TTPS”). She deposed that items 1 to 3 are internal working documents of the TTPS and disclosure would reveal the opinions of the TTPS and the DPP. In addition, disclosing these documents might have a chilling effect on frank communication between the TTPS and the DPP in the future as the TTPS receives legal advice from the DPP who advises the TTPS from time to time on legal issues arising in criminal investigations.

14 Ramdular further deposed that disclosure of items 4 to 6 would enable the Claimant to ascertain the identity sensitive sources of information on the murder charge against him and his co-accused who are to be retried. The Defendant argues that personal information, such as witnesses' names and addresses, should not be disclosed since this can put them at risk, which may in turn harm the retrial. The sought documents contain sensitive information about the other accused. Disclosure of unused materials may discourage witness cooperation.

15 Ramdular further deposed that she did in fact consider the factors at Section 35 of the FOIA, namely,:

• i. There is no suggestion that any of the officers of the TTPS or the DPP abused their authority or neglected to perform their duties;

• ii. No facts suggested any injustice to the Claimant or any individual. Further, the Claimant did not produce any information to support his allegation of malicious prosecution, although he had the procedural tool of specific disclosure in the civil court;

• iii. No facts showed danger to the health and safety of any individual or the public;

• iv. No evidence was given that public funds were misused;

• v. If the Claimant receives access to the requested items, he will have access to confidential and sensitive information that he might use in his civil action against the TTPS and/or the DPP; and

• vi. Confidential sources can be threatened and intimidated if the materials are disclosed. Redacting sources' and witnesses' personal and confidential information will not eliminate the risk. The nature of the information provided can identify or locate them. Further, disclosure of confidential information will likely impair the ability of the TTPS to secure the cooperation and assistance of confidential informants and witnesses in the future.

Issues

16 The issues to be determined are:

• a. Preliminary issue: Is the Claim merely academic.

• b. Is the decision of the Defendant that the requested documents are exempt under the provisions of the FOIA irrational, unreasonable or made in breach of the provisions of the FOIA.

• c. If the decision was not irrational and unreasonable then did the Defendant properly consider the provisions of section 35 in reaching its decision on whether or not to disclose the documents (the access decision).

• d. If he did not, then what if any is the effect of the failure so to do on the access decision and should the court perform the section 35 consideration or should it remit the matter to the Defendant so to do.

The Law

17 The following principles in relation to the applicable considerations have been laid down in several authorities and are not in dispute. As set out by my sister in the case of Virtech General Contracting Limited v...