Ruling will have serious implications for Cayman

| 25/10/2008

(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 recent rulings 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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Comments (7)

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  1. Anonymous says:

    Bridger and this farce are an absolute disgrace!

    It appears the people of the Cayman Islands were initially willing to give the Governor and Bridger’s team the benefit of the doubt when they placed high rankng police officials on leave and under arrest: however, it is becoming increasingly clear that there was nothing of any real substance to the "corruption" investigation which has lead to minor charges, the most substantive of which is a burglary (in which nothing tangible was stolen)!

    More and more people are now calling for an end to this ‘house of cards’.  No sensible explanation has been forthcoming from Bridger or the Governor as to why such a drastic overreaction was necessary for any of this! Except to contiually claim its ‘secret’for their idiocy!

    Bridger clearly wants to play judge, jury and executioner for Henderson, Kernohan, Jones and anyone else is guilty of "corruption" in his limited, warped definition!

    If Dixon erroneously let people off for crimes – 5 years ago – surely that could have been handled more appropriately – and effectively – through an administartive disciplinary process.

    Martin should be charged with lying to the police – not burglary.

    Kernohan and Jones used an informant – normal and legitimate police tactic – to try to get corroboration of Martin’s fables about a police leak to Net News. Nothing more.

    The Cayman community needs to begin vocally speaking out against this Mickey Mouse affair and publicly demand that Bridger stop this ridiculous, pointless "investigation"!

    Bridger is clearly on a fishing expedition – that’s why he wanted to seize Henderson’s computer – to try to find something else to "prosecute" and extend his stay here chasing shadows – and on our dime no less! What a bloody cheek!

    In the meantime, criminals that are preying on our innocent, hardworking Caymanian women and children are not being attended to with the same diligence as people who Bridger has a vendetta against!

    Go home Mr. Bridger – you are worse menace that any allegedly corrupt police we have ever had in Cayman – and you DO NOT mean Cayman any good.

    Shame on you Stuart Jack!

    I am absolutely incensed! Ready to picket, protest, march – whatever – BRIDGER MUST GO!

  2. Knal N. Domp says:

    No, no and again no. Cresswell must prevail. Arguments here at my blog.

  3. Anonymous says:

    Never was the adage of Louis Brandeis, the US justice, more relevant: free men are naturally alert to the wiles of evil-minded rulers but “the greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding”.

  4. eliza strachan says:

    I was a reporter at the Caymanian Compass for 13 years. Many times, friends and acquaintances (including the odd politician) would comment to me about letters written under ‘name withheld by request’ ie anonymously.  Occasionally they asked either directly or indirectly if I knew who had written them. (The answer was no, though I could have found out easily had I wanted to, though that would have involved a breach of trust.) Never did i interpret these comments as suggestions that I should in fact find out who’d written the lettersconcerned, and report back … It just does not sound right to me that Mr. Henderson’s remarks to J Jones about letters written to the Not News, as reported in the local press, have been interpreted by the police as urging Mr. Jones to find out who wrote those letters.  To me, Mr. Henderson’s remarks were pretty typical of remarks made to me many times during my career at the Compass. All reporters have friends, and of course freinds comment to us about the content of the papers we work for.  

     

    • Concerned Caymanian says:

      Eliza, maybe you would like to speak with Bridger then, maybe some of those politicians you mentioned would be of interest to him as well. 

      Just because you have friends in the right places does not mean that you should abuse that privilege by asking them to investigate the true identity of the author of some letter written to the press.  If it was a contempt of court then he should have gone to the police with it not J Jones (oops the police and attorney general already said that it was not a contempt).  As you rightfully said that is a breach of trust and therefore in itself is illegal, a judge of all persons should know that and not encourage others to break the law!!! 

      We have covered up for "buddies" far too long and the friend thing has got to stop around here.  That is all I amgoing to say, except that I hope that this comment will be published because all my other comments do not seem to be.  For what reason I do not know.

       

      • Anonymous says:

        "As you rightfully said that is a breach of trust and therefore in itself is illegal, a judge of all persons should know that and not encourage others to break the law!!!"

        Steady on! ‘Breach of trust" does not necessarily mean commission of a criminal offence. Justice Henderson has denied encouraging Evans to commit any offence. Evans has denied that Henderson encouraged him to commit any offence. There is no other evidence that there was such encouragement.

        However, besides all that the point is that this is a fairly trivial matter and hardly the stuff of a great corruption expose! What you should be concerned about is the disproportionate harm all of this is doing to Cayman – our international reputation and waste of our tax dollars. Bring us some real corruption.     

  5. Anonymous says:

     

    A Comic/Tragic Soap Opera in 3 (at least) Acts

     This soap opera is set in modern times, but is based on traditional activities handed down from generation to generation. In this tradition, privateers, (they were the pirates to whom the ruling folk in Europe gave special ‘stay out of jail cards’ along with their looting instructions), were sent to disrupt and loot the Caribbean. Sometimes the privateers went after bad guys. Other times they just looted for the benefit of themselves and their masters back in Europe. The ruling folk in Europe liked to employ privateers because they cost the rulers virtually nothing but offered the prospect of profit.

     Privateers/pirates, would periodically appear in Cayman. Unfortunately, chasing one batch of pirates away was not the end of them. In fact, privateers seem to be one part of traditional life in Cayman that doesn’t seem to be dying out. Indeed, those ruling folk in Europe keep finding new people who are only too happy to serve as privateers, taking Caymanian’s hard earned money while enjoying some quality sun, sea and sand time. Not only that, but now all those ruling folk have to do is to stick their privateers on a plane with their ‘stay out of jail cards’, and they appear here in Cayman that same day.

     Enough with history….. here is the soap opera.

     Act 1 – set in the recent past

     A venture called “Operation Victory” lands on the shores of Cayman having been dispatched from distant Blighty. There are even some genuine bad guys for the privateers to chase.

     There is a great deal of intrigue and covert activity. Reputations are tarnished. Millions of the Caymanian people’s dollars are spent/wasted. The tension builds. But then someone pulls back the curtain exposing the Great Wizard pulling all the leavers….. No wait. That is a different story in which the wizard was ultimately benevolent. For those who don’t want to wait for movie, there is some material here that might keep you entertained in the mean time.

     http://www.guardian.co.uk/uk/2003/jan/18/military1

     Act 2 – set in the present

     A venture called “Operation Tempura” lands on the shores of Cayman having been dispatched from ……  (Great name by the way – tempura is frequently something fishy that has been covered up)

     Unlike Act 1, it is not clear that there are any serious villains for the privateers to chase. There is great deal of intrigue and covert activity. Reputations are tarnished. Millions of the Caymanian people’s dollars are spent?wasted. The tension builds. But then .. and here there is still a bit of dramatic tension ….(maybe) somebody pulls back the curtain exposing who is pulling all the leavers….. For those who don’t want to wait for the movie or the next exposé in the Guardian…. keep reading Cayman News Service.

     Act 3 – (set in the near future)

     A venture called “Operation Bet We Get Them to Pay for Their Own Destruction This Time” lands on the shores of Cayman having been dispatched from ……

     This time the clever Caymanians (hopefully) will know to look behind the curtain to see who is pulling the levers before agreeing to spend the first cent … because only then will Caymanians have any prospect of living happily ever after.