Archive for October 25th, 2008

Ruling will have serious implications for Cayman

Ruling will have serious implications for Cayman

| 25/10/2008 | 7 Comments

(CNS): Following the completion of submissions and arguments by both sides in Justice Alex Henderson’s Judicial Review, Sir Peter Cresswell, the presiding judge brought from the UK to decide the case, has said he aims to make his ruling on Wednesday of next week. In a complex and highly charged case both sides suggested there would be serious implications for the Cayman Islands regardless of which way the judge decides.

In his closing submission Ramon Alberga, QC, representing Henderson, said that if the ruling was in favour of the special investigation team, represented by Nicholas Purnell, QC,  allowing the warrants to stand, there could be by serious repercussions for the Cayman Islands. “If what Mr Purnell says is ruled as true the implications for this jurisdiction are very serious,” said Alberga. “It will remove safeguards for the abuse of power by the police.”

Purnell had argued that the special investigation officers conducting Operation Tempura, who requested a search warrant from a Justice of the Peace (JP) as appose to a magistrate, were not bound to show that JP all of the case evidence but that the oath sworn by the requesting officer was sufficient. Alberga, however, pointed out that the omission of so much information at the time of the arrest warrant was significant, and that had the JP — in this case the Chief Officer in the Ministry of Public Works, Carson Ebanks — had full and frank disclosure he would not have signed the warrants.

Alberga’s legal team demonstrated that for the police to be able to search the home and offices of a High Court judge and seize his computer without full and frank disclosure or explaining the supposed crime of misconduct to an inexperienced lay JP went to the very heart of the principles of freedom and protecting people from the potential abuse of power.

However, Purnell insisted that in almost any situation all that is required of the police to get a warrant is reasonable suspicion on their part and that there is no need for them to prove a crime has been committed or for the JP or magistrate to understand the ingredients that constitute a particular crime.

“It is outside common experience to give the legal ingredients to the magistrate,” said Purnell  who added that the question that any JP had to ask to satisfy himself was whether or not the police officer had reasonable suspicion of an offence and nothing more. Purnell said the JP did not have to ask if the police officer had evidence or not as the search warrant was merely part of an investigation to find evidence to turn suspicion into belief. “A warrant is an investigative tool,” said Purnell.

However, in the case of Operation Tempura, the Chief Justice Anthony Smellie had ruled earlier in the year that the tool was more akin to a fishing rod when he refused the Senior Investigating Officer, Martin Bridger, warrants to search the homes of Police Commissioner Stuart Kernohan and Chief Superintendent John Jones, accusing Bridger of wanting to go on a fishing trip.

Speaking after the hearing, one member of the special investigation team indicated that if the Judge ruled in favour of quashing the warrants because full details of the case or ingredients of the crime were not given to the JP, he said there would also be serious implications for the jurisdiction.

“If the ruling goes that way then just about every warrant ever issued in Cayman for the last ten years would probably be in question,” he said.

The decision, however, resting with Cresswell, an experienced and well respected legal mind who recently retired from the Commercial and Admiralty Courts, is likely to be influenced by the fact that an unrestricted search was ordered of a judge’s computer, as well as the comprehensive arguments submitted by both sides. Throughout the hearing, Cresswell expressed his concerns that the police were able to take away the entire computer that was used by a high court judge, which was very likely to contain sensitive information about other cases. Referring to it as a "nuclear effect" and that the JP may not have understood the implications of that, it was evident that Cresswell was disturbed by the move.

The judge also made it clear he needed to consider legal precedent in the Cayman Islands which would include the recentrulings of the Chief Justice regarding the previous refusal of a warrant to Bridger and the reasons why. Purnell objected strongly to the judge considering Smellie, as he said his ruling was wrong and regardless of that it was also an ex parte hearing rather than an inter partes hearing which would make it irrelevant. Alberga disagreed and argued that it was a very important authority going to the heart of the current matter.

The subtext of this particular case regarding the mysterious elements of Operation Tempura and the obvious widening of the investigation from the police to the judiciary had a significant influence on the five-day hearing. And while the judge was brought to rule simply on Henderson’s application for judicial review, which essentially stated that the search warrants were unlawful, the back drop to the review made it highly charged.

Over the five days it emerged that there were potentially other members of the judiciary in Bridger’s sights and possibly others acting as witnesses. The reasons for Henderson’s arrest were also discussed during the hearing and in particular Bridger’s assertions in the arrest warrant that Henderson knew the letters to the editor of Cayman Net News (which were highly critical of the judiciary) could not amount to contempt. One of the main pillars of Bridger’s accusation is that Henderson encouraged the former Net News sports reporter, John Evans, to find out the author of the letters, as he told Evans they could be in contempt because of their scurrilous nature even though, Bridger suggests, Henderson knew that was not true.

Alberga however, managed to demonstrate very clearly that indeed the letters could have amounted to contempt and Henderson had a genuine right to be concerned especially as they were not actually written by the people who had purportedly signed them. After Alberga had demonstrated the existence of the offence of scandalizing the court, Purnell eventually conceded that point.

The risky move by the special investigation team to place a longer affidavit written by Bridger with the judge but not the rest of the court and request Public Interest Immunity almost backfired. However, some legal gymnastics headed by Purnell and eventually agreed to by Alberga, saw some 20 paragraphs of the affidavit, which was believed to contain important and sensitive details of the investigation, sealed.

There were many occasions when, questioned by the judge about why specific things had occurred, Purnell refused to answer citing the fact that it would compromise the ongoing investigation, which although connected to the case was not directly linked to Henderson’s arrest.

It also emerged between the lines that Bridger et al could have been seeking evidence against someone else when they sought the warrant for Henderson’s office and computer.

The court adjourned on Friday afternoon and Cresswell said he hoped to give his ruling by Wednesday 29 October, but the complexities may mean he would need longer.

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