Henderson arrest unlawful

| 23/12/2008

(CNS): From the opening moments in Justice Alex Henderson’s hearing Monday, 22 December, Sir Peter Cresswell condemned the actions of the Senior Investigating Officer, Martin Bridger, and his team over the arrest of the judge on 24 September for Misconduct in a Public Office, which Cresswell made clear was unlawful. He described Bridger’s decision as an elementary error in arresting someone for a non-arrestable offence and then taking too long acknowledging the fact.

Cresswell was originally scheduled to return to hear a judicial review seeking to overturn the arrest of Henderson. However, a recent admission by the Attorney General’s office that they agreed the arrest was unlawful allowed Sir Peter to move to the issue of managing the timetable for the damages and the torts on which they would be claimed instead.

Henderson was represented by Ramon Alberga QC and Shaun McCann, while the Acting Police Commissioner, Bridger and Richard Coy, who made the arrest, were this time represented by the SolicitorGeneral Cheryll Richards and Douglas Schofield, representing the Attorney General’s office. Alberga explained the acknowledgement that the arrest was unlawful had been received by Henderson’s legal team and that negotiations had started regarding the damages and settlements.

From the very start Cresswell made it known he wanted to move the proceedings along as quickly as possible as he said it was unacceptable for a serving judge to have outstanding litigation issues. “This has serious implications for the judge and the judiciary of this country and we need to resolve this as quickly possible,” he said.

He also said that he considered the actions of Bridger and the police questionable and was very concerned there was still not proper acknowledgement of the error and unlawfulness of the arrest, and what acknowledgement there had been was very slow to come.

“It’s one thing to get it wrong and another not to accept it before the court,” said Cresswell. “It is elementary that no one should be arrested for an offence that’s not an arrestable offence.” He said he was concerned that the police had not openly and frankly acknowledged that the arrest was unlawful following the first judicial review regarding the warrants. “We went through the last long and difficult hearing, and then there was no acknowledgment that they had made a fundamental mistake.”

He added that if the police were to operate properly in a jurisdiction it was essential that they knew the law and it was very serious that any citizen, never mind a serving judge, could be arrested by officers for an offence that was simply not an arrestable offence.

During the discussions Cresswell instructed Henderson’s legal team to come up with the list of torts on which they would base Henderson’s claim for damages. Cresswell also agreed to the request to consolidate the damages claims from the overturning of the arrest and the quashing of the warrants into one hearing. He described the actions of Bridger as “gross incompetence” and queried why the Cayman Islands tax payer should pay for his mistakes.

He also wanted to know if Henderson’s legal team would be seeking damages from each of the people involved (such as Bridger, Coy, the Acting Police Commissioner) or whether they would accept one payment and indicated that the individuals were liable. Alberga explained that the two parties were in discussions and there was some hope that a settlement could be reached without the need for a court hearing.

If agreement is not reached, the parties will be forced into an enquiry where the claim for damages would be based on six main torts, as listed by Alberga in a letter put before the court. 1 False arrest; 2 false imprisonment ; 3 trespass to person/assault; 4 trespass to goods; 5 trespass to real property; and 6 misfeasance in  public office.

During his explanation, Alberga related the chain of events since the last judicial review. He also referred to the governor’s recent statement that acknowledged some mistakes had been made regarding the Henderson arrest, but had failed to offer an apology, and that the blame was being pushed on to the legal advice Bridger had received from UK lawyer Martin Polaine.

Alberga told the court that the governor had patted Bridger on the back and called him “my blue eyed boy” when he described Bridger’s actions as exemplary.

Cresswell then said that it washardly exemplary behaviour to arrest someone for a non-arrestable offence. “Fair dealing would have required an acknowledgement of an unlawful arrest promptly,” Cresswell added.

In his statement David Schofield acknowledged that the Solicitor General’s office at least accepted that the first five torts were arguable and he would accept them as the basis for an enquiry into damages, but he contested the last one as he said that his client, Bridger, at the time of the arrest genuinely believed it to be an arrestable offence based on advice given to him by legal experts and had not acted in bad faith.

Cresswell, however, seemed to think that as Bridger had not sought local legal advice about Cayman Islands Law and had chosen to take advice from a UK legal expert his intentions were debatable. “It is elementary that a police officer before arresting any citizen should satisfy himself that the suspected offence is an arrestable offence,” Cresswell noted. “A police officer unfamiliar with the law of the Cayman Islands should, before arresting a citizen of the Cayman Islands, take advice from a lawyer qualified in the law of the Cayman Islands as to whether it is an arrestable offence under the law of the Cayman Islands.”

Unimpressed by Bridger’s choice of legal adviser at the time, the presiding judge asked Schofield to state on behalf of the police if they now accepted it was wrong and that Bridger had made a mistake. Bridger and the Acting Commissioner would not completely admit that Bridger did make the wrong decisions at the time of the arrest as they insisted he was given what he believed was sound legal advice.

While they were willing to say that now they see it as an error, they did not think he was wrong at the time. Cresswell then queried whether in fact a full acknowledgment had been made that the arrest was unlawful and asked to see the written statement of apology that was supposed to be read to the court.

After reading it, Cresswell declared that it still did not fully acknowledge that the arrest was unlawful and the apology was not read aloud. After short consultation with Bridger and the Acting Commissioner, Schofield declared that there was a conflict of interest with the AG’s office and Bridger et al over the issue of acknowledging exactly what they had done wrong.

“There is a conflict between our client and the Attorney General’s office. Tthey have asked to seek other legal advice,” Schofield explained to Cresswell. “It seems that the Acting Commissioner and Mr Bridger may need to get their own council on this issue.”

Despite the various disagreements between the AG’s legal team and their client, Schofield acknowledged that the AG’s office saw the arrest was unlawful and that they wanted to settle the matter and there was good faith on their part.

Cresswell is expected to give an official judgment this morning regarding the issue of the arrest and set a timetable for the damages claim to be addressed.



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