Lawyers say search unlawful

(CNS): On the first day of the Judicial Review regarding the arrest of Justice Alex Henderson and subsequent search of his home and office, his legal team from local law firm Campbells presented the case that the searches and seizure of his possessions, including his computers and cell phones, were all unlawful, since full and frank disclosure was not given to Carson Ebanks, the Justice of the Peace who signed the warrants.

According to a number of people present at the hearing, things did not go well for the special investigation team, led by Senior Investigating Officer Martin Bridger, which had sought the warrants and was described as being poorly prepared during the review.

The case  surrounds an alleged illegal entry into the offices of Cayman Net News in September 2007 by two of its emloyees.

A source connected to Henderson’s legal team said there were a number of fundamental legal problems relating to the search of Henderson’s home and office, given the refusal of Chief Justice Anthony Smellie to sign a warrant for searches regarding other people but in connection to the same case. This fact was not disclosed to Ebanks, it was said. 

“This was a clear case of judge shopping,” another sourceclose to Henderson told CNS, explaining that the special investigation team had sought out a specific person to sign the warrant hoping he would have little knowledge of the case or any rulings previously made by the Chief Justice.

In a March 2008 ruling by the Chief Justice that was recently revealed to the media, he stated that the special investigators had not produced any evidence that Police Commissioner Stuart Kernohan and Chief Superintendent John Jones had committed any crimes and refused Bridger a search warrant for the two men’s homes.

Henderson’s legal team said at the hearing on Friday 17 October that Ebanks was entirely unaware of the fact that Smellie had previously refused to give the special investigators these  warrants in relation to this particular investigation and had described their request as a fishing expedition. The lawyers questioned exactly what evidence had been shown to Ebanks to make him sign the warrant.

Ebanks, the Chief Officer in the Ministry for Public Works, is one of well over one hundred and fifty JPs in the Cayman Islands, many of whom are politicians or members of the civil service.  During the hearing, Sir Peter Cresswell, a retired UK Judge brought to Cayman especially to hear the review, said the special investigating team had to disclose what evidence they had presented to Ebanks to justify the search warrant by 4:00 pm Monday 20 October.

The hearing will resume on Tuesday morning, 21 October, but Henderson’s legal team said it was confident that the review would find the warrants unlawful. Henderson was awarded the review based on a number of points relating to Ebanks’ signature on the warrant.

The Justice’s legal team claims that Ebanks had no information, or insufficient information,  upon which he could be satisfied that there were reasonable grounds to suspect the judge of the offence of ‘misconduct in public office’. Ebanks was not informed of the decision "In the Matter of Operation Tempura” — Smellie’s decision regarding earlier warrants — and therefore  failed to take into account important matters that would have been relevant to his decision. The legal team also claim that Ebanks is not a competent Court of the Cayman Islands. Accordingly, the warrants do not comply with the provisions of the Criminal Procedure Code (2006 Revision).

In a recent statement to the media, however, Bridger claimed that he was entirely satisfied that the warrants were properly obtained. “An application for a search warrant is an application to the court, or a Justice of the Peace, to seek the use of an investigative power.  The purpose of that power is to search for evidence.  By its very nature, such an application is made without the need for the totality of the case being put before that court or Justice of the Peace,” he said.

He said the purpose of the warrant was to investigate and gather evidence and that no court can hope to make a meaningful evaluation of guilt or innocence, or the strength or otherwise, of a case at the time of such an application. “It should be borne in mind that the threshold for granting a search warrant is reasonable suspicion, not a prima facie case, or a realistic prospect of conviction,” he said. Bridger made no mention in his official statement whether or not Ebanks had been informed of Smellie’s earlier refusals. 

Throughout the investigation, Bridger has said he has consulted with and taken advice from independent legal advisors. However, the local legal community is now raising concerns that one of these advisors, a barrister from the UK has not been sworn to the Cayman Bar, and without a work permit has visited Cayman to work with Bridger and his team on at least three occasions.