Director of Public Prosecutions (DPP) Paula Llewellyn has pointed to a number of factors, including long-standing resource constraints, that are affecting the completion of lottery scamming cases.

Llewellyn gave the explanation in a news release on Wednesday following that day’s Jamaica Observer lead story reporting a revelation by Chief Justice Bryan Sykes on Tuesday that more than 30 lottery scamming cases had to be disposed since the start of the Trelawny Circuit Court last month due to long wait times for reports on electronic devices from the constabulary’s Communication Forensic and Cyber Crime Division (CFCD).

Justice Sykes was chiding the police after hearing from the attorney representing murder accused Javan Garwood, that it was only on Monday this week that she had received from the prosecution, information regarding two phones with relevant evidence in the case stemming from the callous murder of Garwood’s stepmother two years ago.

The prosecutor had told the court that the explanation she received from CFCD was “the volume of work they have there versus the shortage of personnel”.

However, Sykes was not impressed by the explanation.

“I don’t care about the volume of work. The court has a time standard; two years of point of entry to disposition. I don’t tell police how to do their work, and police can’t tell me how to do mine. So I don’t care about their volume of work. Their job is to get the work done within the time frame established by the courts,” he said before moving the start of the trial to next week Monday.

Further checks by the Observer after the court adjourned on Tuesday revealed that at least 50 individuals who had been charged with lottery scamming have walked free since the session of the Trelawny Circuit Court commenced on June 5 this year because of outstanding CFCD reports, some going as far back as six years.

On Wednesday, the DPP said she needed to add clarity to the issues raised in the report.

She said that at the commencement of the sitting, the prosecution, represented by a deputy director of public prosecution and Crown counsel, had indicated that there were 161 matters listed.

“At the end of the first four weeks of the sitting, the prosecution disposed of 71 cases from the list; 52 of this number were disposed of by the prosecution offering no evidence. These matters were offences charging possession of identity information or what is colloquially referred to as ‘lottery scamming’. Thereafter, all the accused in the 52 matters were acquitted by the chief justice and discharged,” the DPP said.

She pointed out that the CFCD is comprised of hard-working and committed individuals, but it cannot be ignored that there is only one unit in the police force’s technical services architecture offering this specialised service.

“There have been longstanding resource constraints which have spawned a number of issues for which fellow stakeholders in the system have become increasingly impatient. This stems from the inability of the CFCD to produce reports in lottery scam cases in a timely manner,” Llewellyn said.

According to the DPP, there were a number of cases on the Trelawny Circuit list dating from as far back as 2014 in which the only item outstanding on the file was the CFCD report.

She said that enquiries made by her office found that some of these cases had not even had an analyst within the department assigned to them. “This meant that the process of extracting the information had not even commenced, and very often when the prosecutor enquired, in order to convey the information to the court, we were informed that there was no foreseeable timeline, which would cause embarrassment generally to the prosecution. Usually, we would be informed by CFCD that due to the exigencies, the extremely high workload, and limited resources they themselves at CFCD, notwithstanding their greatest efforts, were placed in an embarrassing position.”

Llewellyn said the Office of the Director of Public Prosecutions (ODPP) and the CFCD have been in constant discourse over the years and interacting with different levels of the police force hierarchy to determine the best way forward. However, it is obvious that notwithstanding the best efforts of the police, “there are longstanding and entrenched issues that undermine their timely provision of reports in the lottery scam matters”.

She said the critical factors, as the ODPP understands them informally, are:

a. High attrition rate of analysts at the CFCD who, by virtue of being highly trained and experienced, are able to attract higher remuneration locally and internationally.

b. Perceived lack of internal promotion prospects.

c. The number of analysts is not commensurate with the very high case load in the department.

d. The prioritisation of some/other matters because of work exigencies within the Jamaica constabulary Force.

e. The extremely high demand for reports on extractions on a high volume of devices being submitted islandwide.

Llewellyn also said that because of the lapse of time, “no evidentiary material can be retrieved or extracted from some of these devices since the effluxion of time that has elapsed from the moment the devices first come into the possession of the investigator to the time when they are handed over to CFCD, and thereafter the passage of time up to when there has been an assignment of analysts and the extraction of the material from the devices”.

She said that given the particular remit as prosecutors, they must be aware that the overriding objective is fairness to the accused. “We thus have to be cognisant that delay, as a matter of law, without more or without a reasonable excuse can be fatal in the eyes of the court, to the delivery of due process and fairness to the accused,” the DPP pointed out.

Llewellyn said that while her office seeks to give the investigator the best opportunity to make available, material to mount the prosecution, in instances when the CFCD reports are not forthcoming, even after months and years, “then an evaluation of the justice of the situation by the prosecutor may oblige us to offer no evidence. This is because the delay has overwhelmed fairness to the accused who has a constitutional right to have due process in a reasonable time”.

However, she sought to assure the public that where there is existing evidence coming from devices and supported by the CFCD or other evidence that grounds a viable prosecution, the ODPP has proceeded to secure guilty pleas from accused individuals or convictions in trials of possession of identity information cases islandwide.

Additionally, Llewellyn said that in the Trelawny Circuit Court, she has been advised by the deputy DPP that matters that are viable and could not be accommodated in this term have been “traversed by the chief justice to the next sitting of the Trelawny Circuit in the Michaelmas term”.