BY THE DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS
Through various reports in the electronic and print media, it has become obvious that certain correspondence from the United States Department of Justice, sent to the Police Investigative team through the Central Authority, has found its way into the hands of parties who are not members of the Investigative or advising Prosecutorial teams. While the articles are numerous, the following excerpts are instructive:
At page A3 of the Trinidad and Tobago Guardian of Saturday May 9th 2015, Richard Lord reports that the Honourable Prime Minister Mrs. Kamla Persad-Bissessar said that she:
“had a duty to myself and the members of my Government to have that record cleared in the Parliament, because now is when we got the evidence from independent sources. “We got the evidence through court processes from Google, the Integrity Commission and the US Justice Department. “[emphasis mine]
In another report at page 4 of the Daily Express of Thursday May 7th, 2015 Ms. Ria Taitt reported as follows:
“Moonilal cited the number of authorities which said the e-mails were false. These included a report from an IT. Specialist in the Attorney General’s department, Mr. Roger Sealy; a report from John Berryhill, which called the document a ‘poorly constructed fraud; Jack Rousseau, of the Computer Law Group, in the case of the Integrity Commission versus Google; and the Report of the Justice Department to the head of Central Authority….”
Further, the following is an excerpt from a. page 3 report in the Trinidad and Tobago Newsday of Monday April 27, 2015 by writer Andre Bagoo who reported in reference to the Honourable Prime Minister,
“She said the latest disclosures of records to the Integrity Commission concurred with a report by John Berryhill — a former officer in the US Air Force Reserve Office of Special Investigations. They also concurred with disclosures to the Police Service done through the U.S Justice Department.”
Mr. Bagoo ascribed the following words to the Honourable Prime Minister Mrs. Kamla Persad-Bissessar:
“Three sources have now showed us there is no substance, no truth to the fake emails”
In the Daily Express of Friday 8th May, 2015 at page 5 reporter Anna Ramdass recited the full text of a letter dated January 29 2015, from the Acting Director of the United States Department of Justice to Mr. Netram Kowlessar, Head of the Central Authority. This letter and its annexures, the product of a warrant obtained by the United States Department of Justice, were sent to the Police Investigative Team.
It is apparent from the contents of this letter that it should not have found its way into the public domain, since information garnered by way of compliance with, requests for Mutual Legal Assistance, must be used by the receiving State, only in the investigation and prosecution of persons and offences for which assistance has been requested and granted. It is standard practice as it is universally accepted, that in those matters to use this information otherwise is only permissible with the express approval or authorisation of the United States Department of Justice.
I am seized of information which clearly indicates that no such approval of authorisation from the United States Department of Justice was sought by the Central Authority or approved by the United States Department of Justice. It should be noted that the Central Authority is the only body legally authorised to make such a request.
Therefore, the use of this information in the public arena, without the permission of one’s international partner is especially disturbing and dangerous, since such action violates what is to be expected by way of international cooperation and more particularly, it attracts question marks as to our ability to honour our international legal obligations, thus potentially influencing, negatively, the outcome of future requests by Trinidad and Tobago for Mutual Legal Assistance.
Against this backdrop, the public interest demands that I place into the public domain my deep concern over these occurrences and urge those concerned, who should obviously know better, to act in a manner consonant with a greater sense of responsibility.
It is also my view that this is an appropriate juncture to update the public on certain matters arising out of the police investigation, now commonly referred to as the “Emailgate Investigation”.
As you may be aware, this investigation relates not only to whether the emails were in fact sent in September 2012 but also to whether there may have been acts by particular persons which amount to Misconduct in Public Office. The investigation necessarily includes an examination of events outside of the four corners of the purported email correspondence, since these may have the potential to confirm or refute the disputed email communications.
The Investigative Team commenced investigations after .the purported emails were forwarded by the Honourable Prime Minister under cover of a letter dated May 20, 2013 to the acting Commissioner of Police, for investigation.
Having acquired evidence, which in my view attained the appropriate evidentiary threshold, the investigators approached the Central Authority under cover of a letter dated 4th November 2014, for an application to be made for Mutual Legal Assistance.
The United States Department of Justice, being of the view that the application was supported by evidence which met the required level of ‘probable cause’, applied for and received a warrant in the United States of America.
This warrant was to be served on certain service providers, among them Google Inc. A response from the Department of Justice was received through the Central Authority by Deputy Commissioner of Police, Glen. Hackett on February 6th, 2015.
Against this backdrop I wish to make the following observations:
(i) While it is true, that after receipt of the information from the Department of Justice, the police team, led, by Superintendent Baldeo Nanan did send a report to Deputy Commissioner of Police Glen Hackett, it is not true that such report cleared Mr. Anand Ramlogan and Mrs. Kamla Persad-Bissessar in respect of this investigation. This is contrary to a report given by Nalini Seelal in the Trinidad and Tobago Newsday dated April 28th, 2015 at page 5.
(ii) The United States Department of Justice’s response did not treat with all of the matters requested by the Investigative Team and further, the United States Department of Justice is yet to relay any information related to the Hotmail accounts “firstname.lastname@example.org” and “email@example.com”. They have indicated that such information will be sent as soon as possible. Quite properly, there was absolutely no finding made by the United States Department of Justice nor was any disclosed in written correspondence. The United States Department of Justice was concerned only with relaying the data or information that was received by virtue of the above-mentioned warrant. This is its legal remit.
(iii) At this time the police investigation has not yet resulted in any finding, whether through the Mutual. Legal Assistance channels or otherwise, that the emails were or were not sent. To give the impression that there has been some finality in this regard is misleading.
(iv) Any parallel investigation by interested parties and the public airing of the supposed results are palpably self-serving and bring to mind the need for the legal maxim, “no man should be a judge in his own cause”. This is a bedrock principle of natural justice, the rule of law and due process. It exists to ensure impartiality by the disqualification of potentially biased or interested parties in the investigations. Further, notwithstanding the fact that the Trinidad and Tobago Police Service has the institutional strength and history to withstand pressure from whatever source, the publication of this information derived from private sources, has the potential to interfere with the investigations being conducted by independent and impartial bodies, such as, the Integrity Commission and the Trinidad and Tobago Police Service. Moreover, it has the potential to interfere with the public perception of the soundness of these investigations.
Finally, I feel compelled to indicate that given the status and standing of those persons whose names are raised in this investigation and the national attention that it has obviously generated, it is my view that a comprehensive and speedy resolution is warranted. However, the investigation can only proceed as quickly as evidence is gathered whether by way of mutual legal assistance or otherwise.
Accordingly, it is my view that the police investigative team requires additional time to conclude their investigation. I note with interest that it has been reported in the media that the acting Police Commissioner and the Integrity Commission also share the view that more time is needed.
I am ever mindful that public confidence in the certainty of the eventual findings, whatever the outcome, should be given primacy over expediency. It is therefore with the interest of the Trinidad and Tobago public foremost in mind that I urge all concerned whether directly or indirectly, to allow the police investigators the time and space to complete their investigations without fear, favour, malice, ill-will or hindrance.
Deputy Director of Public Prosecutions
May 13, 2015