Police took “nuclear option”

(CNS): During an intense day of proceedings in the Judicial Review regarding the arrest of Justice Alex Henderson, and what Sir Peter Cresswell described as a highly charged case, the UK expert presiding judge said the action taken by the special investigating team led by Martin Bridger was the “nuclear option”.He said it was very worrying that an unrestricted search of a serving High Court judge’s computer, likely to contain very sensitive material, had been ordered.

With the Public Interest Immunity issues set aside and Bridger’s full affidavit sealed (see Justice case reveals 3rd party) the day focused on the arguments of the case. This raised numerous concerns for the judge, including the seizure of Henderson’s computer which he said would have contained a wide range of highly sensitive material, none of which would have had any relationship to the special investigation.

“If that gets into a third party’s hands then justice could be compromised,” he said, illustrating some of his concerns about the approach the investigating team took by getting an order for an unrestricted search.

The day’s proceedings began, however, with Ramon Alberga, QC, representing Henderson, placing his essential arguments for the Judicial Review. These focused on a deliberate lack of disclosure of essential information to the Justice of the Peace (JP) Carson Ebanks on the part of the Special Police Investigation Team.

Alberga argued that the JP should have been given the information relating to Chief Justice Anthony Smellie’s rulings previously denying search warrants in the wider investigation known as ‘Operation Tempura’. He also said that neither the material facts of the case nor the legal principals were disclosed to Ebanks. Alberga suggested that there was a deliberate attempt to avoid giving him details, in particular those relating to the rulings of the Chief Justice, who is the highest legal authority in the Cayman Islands.

“It was highly unethical that this authority exists and they did not bring it to the attention of the JP,” said Alberga. “The JP should have been given this information. They can’t sweep it under the carpet just because they don’t like it. Had the JP seen it – it would have caused him to stop dead in his tracks and seek legal assistance.”

He asserted that not only has this alleged offence never been used before in Cayman, as far as anyone could establish, Ebanks admitted that he had never seen any literature about the responsibilities of a JP and although some guidelines do exist, which turned out to be incorrect, he had never seen them anyway.

Alberga argued that the special investigation team presented Ebanks with the idea that Henderson had failed to cooperate with them, which he noted was wholly incorrect, but painted Henderson in Ebanks’ eyes as a bad person. As the JP thought he was doing the right thing by assistingthe police, as would be his natural reaction, he granted the warrants.

Throughout the day Alberga gave sound examples of important details that were not revealed to the JP. These included the existence of letters to Cayman Net News denying authorship of the possibly fabricated letters published in the same paper which criticized the judiciary and which had led Henderson to ask John Evans, a former Net News sports reporter, if he knew who really wrote them. Alberga also demonstrated that Henderson’s concerns that the letters could be in contempt of court, which Bridger et al suggested was dishonest, were in fact valid.

When Nicholas Purnell QC rose to begin his argument in the late afternoon, he based it around one clear and precise principle that the Justice of the Peace did not need to know anything other than the fact that a police officer had sworn an oath that he, the officer, had reasonable suspicion that a crime could have been committed by Henderson.

Purnell cited various case law and set out his team’s position that the JP did not need any other knowledge other than that given to him by an officer. He said that officer had sworn an oath giving details of why the police believed that a crime could have been committed and that there might be evidence of that crime in either his home, office or computer.

Purnell stated that he believed Alberga’s argument was flawed because the JP simply did not need to know anything other than the fact the officer in question was concerned a crime could have been committed. He said the reasonable grounds of suspicion lay with the officer, who states this in his oath, and it was up to the JP to question that if he was not satisfied by the police officer’s submission.

“The JP does not look at the material,” Purnell argued, citing the general idea that any justice signing a warrant regarding reasonable suspicion of any crime submitted by a police officer would not demand to see all of the police evidence or all the material relating to the crime.

However, as forceful and clear as Purnell’s argument was, Cresswell was not convinced and argued extensively with the police team’s counsel. Referring to Purnell’s suggestion that the JP only need be satisfied that the police officers was satisfied a crime had occurred the judge said, “There has got to be more than that surely,” to which Purnell replied, “no there doesn’t.”

Cresswell continued to debate numerous points with Purnell, saying he believed the police had taken the “nuclear option” with the warrants, allowing them unrestricted access to a judge’s computer, which was damaging to the wider public interest to issue such on order.

Purnell countered that no one was above the law whether it was a judge or a porter, and while Cresswell agreed with that point he emphasized that the contents of a judge’s computer were likely to be far more sensitive than that of a porter. The judge himself was not above the law, Cresswell noted, but to have an unrestricted search of his computer was very irregular.

Although Purnell argued that protocols were in place to protect the integrity of the information on the computer not pertinent to the investigation of Operation Tempura, Cresswell appeared to remain unconvinced.

“I am extremely troubled by the unrestricted order to seize and search a judge’s computer,” he said, adding that he had general concerns over some of the special investigation team’s arguments placed before the JP to make him sign the warrantand there were things that should have been disclosed. The proceedings were adjourned until 10:00 am tomorrow.