Justice case reveals 3rd party

| 23/10/2008

(CNS): Legal wrangling over the sensitive contents of an affidavit presented to the court at Justice Alex Henderson’s Judicial Review has revealed that the special investigation team could be trying to protect the identity of further key witnesses in the police investigation. When the possibility of limited disclosure to the legal counsel was proposed by the presiding judge, the interests of at least one other mystery party were raised by the legal team.

As proceedings in front of expert UK Judge, Sir Peter Cresswell, regarding the Judicial Review for Henderson (who was not present) reconvened on Wednesday, 22 October, they centred on an extended affidavit by Senior Investigating Officer Martin Bridger. This long version had been presented at the start of this week’s hearing to the judge only, which, the special police investigating team’s legal counsel, Nicholas Purnell, QC, had sought to protect from open court through an application for Public Interest Immunity (PII).

The extended statement, as was later revealed, contained details of another, so far unnamed person involved in the special investigation, who although not directly related to the accusations made against Justice Henderson appeared to have some significance to the overall mystery police investigation into alleged corruption in the RCIPS and possibly the judiciary.

The day began with Purnell’s request to withdraw the extended affidavit and leave only the shorter version which was already in open court. He said that in reality the extended affidavit did not really impact the arguments surrounding the subject of the review and he was happy to set it aside. “If your Lordship, as has been previously suggested, can put this out of his mind then we are happy to proceed without this evidence,” said Purnell.

However, the request to withdraw the evidence, having already been seen by Cresswell, raised concerns both from the judge himself and Ramon Alberga, QC, Justice Henderson’s lead counsel, who was clearly disadvantaged having not had sight of the entire affidavit and unable to asses how relevant this was to his client and the case. “I believe I should be entitled to see it,” Alberga noted.

As a result, Cresswell proposed a counsel to counsel disclosure of the sensitive part of the affidavit to allow Alberga to decide whether or not he was prepared to allow the long affidavit to be withdrawn in the interest of protecting a sensitive police investigation or whether he would like to argue for disclosure.

At that point Purnell announced that if the extended affidavit was to be disclosed to anyone, including just counsel, then another interested party (not in the court or ever disclosed) had to be informed first. Causing an apparent unease among the special investigation team, the potential disclosure just to the applicant’s counsel triggered a flurry of activity from the members of the special investigation team.

Secret notes were then written and passed around the legal teams, including Alberga’s team and the judge, regarding the identity of thisthird and possibly fourth party and why they needed to be informed. Although no details of the person’s identity was given in open court it was clear through Purnell’s requests that at least one other person had a significant interest in keeping the details of Bridger’s affidavit closed, and if the Judge was to suggest even counsel to counsel disclosure it was emphasized that this other party may want to file another PII to stop it.

Throughout the day’s hearing Purnell pushed for the need to keep all of the latter part of Bridger’s affidavit from disclosure to anyone, as it was so sensitive and was concerned with matters unrelated to the Judicial Review but crucial to the integrity of the ongoing police investigation.

In the end, with an interest in moving the case forward, Alberga stated that he would not object to Purnell withdrawing the sensitive paragraphs of Bridger’s statement provided he disclosed any details that may directly affect his client, Henderson. Eventually, all parties agreed to withdraw some 20 paragraphs from Bridger’s original affidavit and get ready to argue the actual case tomorrow at the urging of Creswell, who expressed his desire to hear the matter as quickly as possible. “I want to get on with it,” he said frequently. However, Purnell persistently argued that time could not be allowed to constrain the hearing.

During the day’s proceedings, the Attorney General (AG) Sam Bulgin was also called to the court in case he was needed to assist Creswell in hearing arguments regarding the proposed PII application. However, the possibility of the AG seeing the sensitive elements of Bridger’s affidavit was raised again by Purnell, who noted that although he was happy for the AG to offer advice on the law and the principle of PII in general, he did not want him seeing the full affidavit.

The AG also brought with him literature regarding the role and duties of Justices of the Peace in the Cayman Islands to assist Creswell in his decision regarding Carson Ebanks’ signature on the warrants to both arrest justice Henderson and allow his home and office to be searched, along with the seizure of his computer and cell phones.

Meanwhile, as speculation mounted that the third party and other details in Bridger’s secret affidavit concerned other senior members of the Cayman Islands judiciary as potentially accused and witnesses, it was revealed that Chief Justice Anthony Smellie had left the island. However, Acting Chief Justice Charles Quinn confirmed that Justice Smellie had gone to Miami owing to a serious illness in the family, but was himself in good health and would be returning both to the island and work as soon as the family medical emergency permitted.

The judicial review continues Thursday and is expected to see the parties argue the points submitted by Henderson and the fundamental issue of whether the warrants were actually lawful.

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