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Lawyers try to keep lid on FOI court case
(CNS): The battle between the governor’s office and the Information Commissioner's Office (ICO) over the publication of a report regarding the ill-fated internal police investigation, Operation Tempura, moves into the courts today but lawyers are fighting to keep the public away. The legal team representing the governor will apply for the judicial review of Information Commissioner Jennifer Dilbert’s decision, which ordered the office to release the report, to be behind closed doors. The costly ongoing battle, triggered by the refusal by former governor Duncan Taylor to release the contentious document, is being continued by Helen Kilpatrick, the new governor, who hopes the court will help the UK keep a lid on what is believed to be an embarrassing record of what happened surrounding the bungled police probe.
This is also the first legal challenge that Dilbert has faced regarding any of her decisions. While other authorities have contemplated pursuing their legal right to have the commissioner’s decisions reviewed by a judge, the governor’s officer, ironically given its position on good governance and transparency, is the first to go all the way to the courtroom.
The document in question is the report of an investigation which was carried out into the entire police operation after the lead investigator, Martin Bridger, filed a complaint about how the probe was handled.
The ongoing saga of Operation Tempura, which had a terrible impact on the morale of the RCIPS, was built on the alleged mistaken belief of two reporters at a local media house, Cayman Net News, that RCIPS Deputy Commissioner Anthony Ennis was leaking vital police information to the paper’s publisher, the late Desmond Seales.
The twists and turns of the investigation, which found within weeks that Ennis was not leaking information, went off on a tangent that led tothe downfall of senior police officers and saw a high court judge unlawfully arrested and awarded significant damages from the public purse. The result was a catalogue of failed criminal cases relating to the probe and a number of law suits, some of which resulted in costly settlements. Others are ongoing and civil suits between Bridger and the Cayman authorities and former police commissioner Stuart Kernohan continue to drain the already cash strapped public purse some six years after the original covert operation first began.
While most of the details, allegations, counter allegations and other issues relating to the bungled investigation have found their way into the public domain, the governor’s office, at what appears to be the request of the Foreign Office in London, is continuing its bid to try and keep a lid on this document as it could be embarrassing.
Allegations regarding the probe now focus on both former governor Stuart Jack, who held the post at the time and ordered the probe, Attorney General Samuel Bulgin and the UK’s overseas territories security advisor, Larry Covington, and exactly how much they knew about Kernohan’s plans to use the newspaper’s reporters to get into Seales’ office to look for evidence of the suspected leaks.
Kernohan has always insisted that all three of his superiors knew and were fully briefed on his plans, a point that none of the men saw fit to tell Bridger, who embarked on an enquiry based on the false premise that Kernohan and one of his senior police officers, John Jones, had organized and authorized an unlawful entry into the Net News offices.
Operation Tempura has already cost the public purse millions of dollars and caused embarrassment to many people who were sucked into the probe. Efforts by Duncan Taylor and now Kilpatrick to keep a lid on more potential embarrassment continues to be a costly exercise that, given how muchof the report has been leaked, appears to be increasingly futile.
The hearing is set for two days in Court 5. Arguments to keep the case closed were scheduled to begin at 10am Wednesday.
FOI appeal set for trial
(CNS): According to court documents, the battle between Information Commissioner Jennifer Dilbert and the governor’s office over an FOI request has been listed for trial on 30 October. The current governor, Duncan Taylor, initiated the appeal against a decision by Dilbert ordering the release of records relating to the controversial internal RCIPS probe, Operation Tempura, but because he will be leaving the Cayman Islands in September, Helen Kilpatrick, who was announced as the country’s new governor in June, will pick up the case. If the case does go to trial later this year, as is expected, it will be the first courtroom challenge to a decision by Dilbert.
Sir Justice Alan Moses, who is currently handling the case, has said that John Evans, the person who made the original FOI request for the documents but who dropped his request following Dilbert’s ruling, has ceased to be directly affected by the case.
The issue surrounds a report on the results of a complaint made by Martin Bridger, the lead investigator on the ill-fated operation into alleged police corruption in Cayman that began in 2007. The FOI request made by Evans, a former reporter with Cayman Net News who was involved in the original investigation, was denied by the governor's office but following the FOI appeal process, the information commissioner ordered the report’s release.
Shortly afterwards, Evans withdrew his FOI application but by that time the governor had filed a court action to appeal the decision and, given the public interest in the document, the commissioner has nevertheless pressed on, hoping that the courts will back her order for release in line with the law.
The document is believed to reveal a number of embarrassing issues for the governor’s office over the handling of the entire bungled operation. It is also understood to detail the allegations by Bridger thatthe governor at the time, Stuart Jack, and Attorney General Sam Bulgin were both aware of an alleged illegal late night entry into the offices of Cayman Net News by John Evans and Lyndon Martin, who were employees of the newspaper looking for evidence of RCIPS corruption.
Although the real ins and outs and motivations for Operation Tempura remain a mystery, Bridger has implied that the entire affair, which lasted some two years, was based on the fact that the commissioner of police at the time, Stuart Kernohan, and senior police officer, John Jones, had unlawfully authorized the two reporters to ‘break-in’ to Net News and look for incriminating emails between their boss, the late Desmond Seales, and Deputy Commissioner Anthony Ennis, allegations which were very quickly discovered to be unfounded.
Bridger has since stated that what seemed to be a bungled burglary was authorized by Larry Covington, the FCO’s regional security advisor, and that both the former governor and the attorney general knew that Kernohan had decided to take this course of action before calling in an outside police team to see if they could get to the bottom of the accusations that a senior RCIPS officer was feeding police operational information to the newspaper.
As the FOI challenge by the governor, which was filed in January with the courts, moves slowly through the judicial system, Bridger is also fighting for the right to use the report and related complaint as well as other documents he has in his possession in his own legal battled with Kernohan, who has filed an unlawful dismissal suit and civil action against the CIG and the Tempura boss.
Although Bridger has seen the report, which cost the public purse around $300,000 to produce, he has been bound by a confidentiality order not to release the content.
But some of the document’s content was reported in the UK press and the former Scotland Yard cop's main gripe was that his investigation was prematurely ended by the authorities in Cayman in what he claims amounted to an orchestrated cover-up of errors and bad decisions by the powers that be.
Given the costly efforts that the governor’s office continues to make to keep the content of the report secret, it is unlikely that trial will be open to the public. However, if the court upholds Dilbert’s decision or if Bridger wins his battled to use all of the document’s in the Kernohan case, then the Cayman public, which footed what is believed to be the $10 million bill for the investigation, Bridger may eventually be able to put the Operation Tempura pieces together.
See court order below.
Related article on CNS:
Bridger defends allegation
(CNS): The former Scotland Yard cop who headed up the Royal Cayman Islands Police Service corruption investigation, which took place in Cayman between 2007 and 2009, has defended the allegations that he has made to the British police regarding Cayman Islands Attorney General Samuel Bulgin. In response to Bulgin’s accusations that Martin Bridger’s allegations are "scurrilous", the ex-senior police officer noted that it was the UK police, not him, that had decided the evidence against Bulgin, former Cayman Islands governor Stuart Jack and Larry Covington, the FCO’s security official for the overseas territories, warranted an enquiry .
Following an article on CNS, which stated that a Scotland Yard review has concluded, based partly on documented interviews that Bridger had given the UK police, that Jack, Bulgin and Covington could face a criminal inquiry for allegedly lying to officers during the investigation, Bulgin launched an attack on Bridger. In a statement delivered to the local press Monday, he said that there was not a shred of “independent or contemporaneous evidence” to support the allegations that Bridger has made.
However, the leader of the ill-fated "Operation Tempura" investigation said that the evidence he had presented was supported by witness statements from former RCIPS commissioner Stuart Kernohan and his deputy, John Jones, and as far as the London police were concerned, the evidence had reached the threshold to warrant investigation
“As with all criminal allegations, made either in the UK or the Cayman Islands, it is for the police to decide whether or not there is 'reasonable grounds to suspect' that a criminal offence may have been committed and whether or not an investigation should be commenced,” Bridger noted. “The Metropolitan Police have decided that this threshold has been reached and that the allegations warrant investigation.”
The Met is conflicted in this case, however, because at the start of Tempura the London-based police force had oversight of the Tempura investigation and was, therefore, Bridger’s employer.
Whoever investigates what really happened during the bungled internal enquiry and whatever the outcome, Bridger pointed out that the start of the investigation will not point to anyone's certain guilt or innocence.
“Once the investigation is complete, the police will submit a file to the prosecuting authorities for them to make a decision as to whether to charge the people concerned or not. If the decision is made to charge, then it is for the courts to decide on guilt or innocence,” Bridger added, making it clear that he has merely given his evidence to the police that a crime might have occurred, and in turn, the UK police have decided that there is enough to suspect criminal behaviour.
“I have read, with care, the statement made by the Attorney General, Samuel Bulgin, in response to this criminal allegation,” Bridger stated Tuesday evening. “He would be familiar with the above procedures. What he has said is a matter for him. I do not intend to get involved in a debate with the AG or anyone else concerning these matters whilst they are still under consideration by the governor, Duncan Taylor. If an investigation is sought by the governor I will support that investigation in whatever way I can.”
Bridger added that he had not instructed legal counsel in this matter.
However, the former police investigator is currently in a number of legal battles with the attorney general to clear the way for him to use documents relating to the Tempura enquiry to defend himself in a civil action brought by Stuart Kernohan regarding his ousting from the police commissioner’s post in 2008, following a chain of events triggered by Bridger’s Tempura probe.
Meanwhile, the governor, Duncan Taylor, who has received a letter about the allegations and the position of the Met that an investigatoin is required, has not yet made a decision on whether to launch such an enquiry. The UK's representative, however, is currently fighting an order by the information commissioner in the local courts to release what is believed to be a damning documents related to the Tempura enquiry.
See related stories on CNS:
AG denies Bridger allegations
(CNS): Cayman’s Attorney General has vehemently denied allegations made against him that he did not tell the truth in connection with the discredited Operation Tempura corruption investigation into the RCIPS. Samuel Bulgin released a statement Monday not only rejecting what he said were ‘scurrilous’ allegations by Martin Bridger but expressing his surprise that they have been found worthy of possible investigation by British authorities. In the wake of the news that the UK’s Scotland Yard has recommended an investigation into what happened during the bungled police investigation, over which it had oversight, Bulgin said there was not a shred of “independent or contemporaneous evidence” that he had not been truthful to the investigators.
In the statement posted in full below, the Cayman Islands attorney general suggests that the allegations contained in the latest reports about the internal police investigation, which took place in Cayman between 2007 and 2009, were another “scandalous move” in Bridger’s on-going campaign, which now also involves the former police commissioner, Stuart Kernohan.
Bulgin stated that the two men had already cost the Cayman Islands millions of dollars and were seeking to cause the country further financial and reputationaldamage to the country.
“Not only do I strongly deny but also resent any assertions of my being untruthful to the Tempura investigators,” Bulgin said. “There is not a shred of independent or contemporaneous evidence to support such a scurrilous claim and, to the contrary, the documents from that time demonstrate conclusively that the allegation is not true. It is remarkable that Mr Bridger's one-sided and inaccurate account of events, which are to his own entire discredit, should have been thought worthy of further investigation,” he added.
Bulgin insisted that once the documents were examined, Bridger’s account would not stand scrutiny as he suggested that Bridger was discredited as a result of the bungled investigation. He added that he was considering defamation action against those whom, he said, were pursuing personal agendas with the “disgraceful and unfounded attack”.
At this point, however, the Metropolitan Police has indicated that it believes an investigation should be launched, based partly on evidence that was presented by Bridger in his continuing complaints to the UK authorities about the truth behind the now infamous investigation.
Allan Gibson the head of New Scotland Yard has reportedly written to the current governor, Duncan Taylor, stating that the claims against the officials involved amounted to possible "misconduct in public office, attempting to pervert the course of justice and possibly wasting police time,” as he told the governor he believed that the allegations did “contain sufficient detail” to warrant a criminal investigation.
Meanwhile, the governor's office has confirmed that Duncan Taylor has received the Met letter suggesting an investigation.
"I can confirm that the Governor has received a letter from the Metropolitan Police and is considering it carefully. Before the Governor can respond, he needs to take independent legal advice. This advice has been sought and is awaited," a spokesperson for the office stated.
See Bulgin’s statement in full below and related story on CNS:
Retired cop adds to evidence against ex-governor
(CNS): Former RCIPS chief superintendent John Jones, who retired fromthe local police service last year, has added his voice to the growing evidence against the previous Cayman Islands governor, Stuart Jack (left). Jones has suggested that Jack deliberately concealed his part in an internal cop probe that led to Jones' suspension from office in 2008 and a costly discredited UK police probe into alledged corruption within the RCIPS. In the latest instalment in the ongoing Operation Tempura saga, Jones has given a statement to Scotland Yard about the former governor, who is being accused of criminality by the lead investigator of the bungled probe, Martin Bridger.
In a statement in which Jones recounts the early events that led to the Operation Temupra investigation, he corroborates evidence given by the former RCIPS commissioner, Stuart Kernohan, that Jack knew all about efforts to try and locate evidence of a corrupt relationship between Deputy Commissioner Anthony Ennis and newspaper boss, the late Desmond Seales.
He states that Jack was fully briefed about the covert but supervised entry of Net News staff into the newspaper offices to look for the sensitive police information that it was believed at the time had been leaked to Seales, in preparation for obtaining a warrant.
Jones' statement was given to the British police in connection with allegations now made by Martin Bridger that Jack had denied any knowledge of the Net News entry and, as a result, caused the $10 million probe.
Although Jones was eventually reinstated and given an apology, he states that it has still had a long term impact on him and has detrimentally affected his employment opportunities since he retired from what had been a long and distinguished career in the police, both here and in the UK.
In the statement Jones reveals that he and Kernohan had met with Stuart Jack, who was the governor at the time, and discussed the plans to try and recover the alleged incrementing documents in the Net News offices that would or would not prove a high security leak in the RCIPS.
“We specifically discussed the option of an entry into the CNN office. The Governor was made very clear about what was planned to take place with the entry into CNN office and was definitely fully aware of all the circumstances. He did not raise any objections, concerns or opposition to the planned entry,” Jones writes in the statement, adding that he had always had doubts about the veracity of the claims that were being made.
“Following the arrival of Mr Bridger and his team in the Cayman Islands I assisted them in various ways, including providing him with a tape-recorded comprehensive verbal briefing concerning the covert entry into the CNN office,” he recalls in the statement, but it became evident that Bridger viewed the entry into CNN as a crime.
“I met to discuss Operation Tempura with the COP on several occasions. Neither of us could understand the reason for the Governor not coming forward to advise the investigation of his approval and knowledge of the entry into CNN, which was being described by the investigation team as a burglary. It appeared that the Governor, for whatever reason, was content to deliberately conceal his involvement in the process to the absolute detriment of the COP and I,” Jones tells the Metropolitan Police.
“Following my suspension from the RCIPS, I found it inconceivable that such action was warranted as in my view I had carried out a legal and legitimate policing operation surrounding the entry into the CNN office. Furthermore, such entry had been authorised directly and with the full knowledge of the Governor.”
The entire investigation, which lasted for some two years, cost the local tax payer at least ten million dollars. It saw a high court judge unlawfully arrested and then compensated, two criminal trials that led nowhere, and Stuart Kernohan lost his job and his reputation. It caused untold damage to the morale in the RCIPS and led to speculation and distrust in the local community about the real reasons for the probe.
Despite the current situation and the mounting evidence that the entire fiasco was the result of the former governor keeping quiet about his knowledge of the Net News entry, the governor’s office here in Cayman and the FCO in London are still trying to keep other related documents under wraps.
A report on a complaint made by Bridger about the investigation, which was dismissed by the current governor, Duncan Taylor, is now the subject of a judicial review in the local court system. The document in question was ordered to be released by the information commissioner following an appeal by an applicant, who made a request under the Freedom of information law for thereport. The governor is fighting to keep the report secret as it is understood it could prove embarrassing for both UK and local authorities.
Meanwhile, Bridger is also fighting to use and expose other documents he has relating to the probe in his own defence following a legal action filed by Kernohan against him and the local authorities after he was sacked during the Temupra fiasco.
All of legal action in the fallout from the bungled probe continues to be paid for by the local tax payers, who remain as much in the dark about the investigation some six years after it started than they did on the day then governor announced the suspension of most of the then RCIPS management and introduced Bridger and his team to Cayman.
Taylor files FOI legal appeal
(CNS): In an ironic twist, the Governor’s Office has become the first public authority to turn to the courts in an effort to overturn a decision by the Cayman Islands Information Commissioner's Office (ICO) and prevent the release of documents into the public domain. Governor Duncan Taylor has filed an appeal for judicial review to reverse a decision by the commisssioner, Jennifer Dilbert, that his office should release a report regarding a complaint made by the former UK cop who headed up the controversial police corruption investigation, Operation Tempura. Dilbert has completed 26 hearings since the law came into force some three years ago but no one has previously challenged any of her decisions in the courts.
In this first appeal to the courts for judicial review, the governor, in an attempt to keep information secret, is requesting a hearing in order to quash Dilbert’s 24th decision, in which she concludes that the report be released. Claiming the commissioner has erred in law in the grounds he presented, Governor Taylor says she jumped to irrelevant and unjustified conclusions about an area of ambiguity in the local freedom of information law and was mistaken with regard to other elements of the legislation which she applied in her decision.
The legal document, which was filed at the eleventh hour following the 45 days the office had to release the documents in connection with the results of Dilbert’s hearing, the governor claims that the commissioner misinterpreted the law regarding potentially defamatory material, which the UK’s representative has claimed as one of the reasons for withholding the document.
The report, which was requested by John Evans, a former reporter with Cayman Net News, which was at the heart of the Operation Tempura investigation, centres on complaints made by Martin Bridger, who headed up the costly controversial investigation. He accused the authorities of cutting short his corruption probe, pointing the finger at the role played by the powers that be and in particular members of the judiciary. The complaint by Bridger was dismissed by the governor and the report requested by Evans outlines the reasons why.
Bridger was given a copy of the report but only on the basis that he kept the document secret, a position that Bridger has maintained, despite wanting the report released. Speaking to CNS Monday, he stated categorically that he would be doing what he could to join the legal action as an interested party defending the commissioner’s decision as he believes the document should be in the public domain.
Aside from attacking Dilbert’s findings regarding the defamatory issues, the governor has also strongly disputed her decision regarding the position of the Governor 's Office that the release of the documents would impact the effective conduct of public affairs. Dilbert found the report would not be damaging, while the governor said she had not considered the need to preserve the independence of the judiciary and the “sensitivity of dealing with complaints against the judiciary”.
It is not yet clear if it will be a judge who grants the judicial review, which is very likely, when the hearing will take place and more importantly if the case would be public given the content of the material that is in dispute. Questions also remain, as a result of the subject matter relating heavily to the local judiciary, as to which judge could hear the case without appearing to be conflicted.
Since Bridger was ejected from Cayman, which he has persistently claimed was before his investigation was complete, the fallout from the internal police and judicial probe has continued to rack up costs for the public purse as the authorities, and in particular the Governor’s Office and the FCO, continue to fight to keep as much of the detail of the discredited enquiry under wraps as possible.
Many questions about the investigation remain unanswered, despite a bill that is now estimated to exceed some $8 million but failed to deliver a singleconviction for corruption.
The fact that Bridger was believed to have his sights not just on Justice Alex Henderson, who was found to have been unlawfully arrested and awarded damages of over $1.2 million following a judicial review, but the chief justice as well has made the investigation particularly sensitive and controversial.
Despite the findings of the senior judiciary over Bridger’s actions, he has always insisted he acted lawfully throughout the investigation based on advice given to him by local legal advisors employed by the Governor’s Office, the Attorney General’s Chambers, as well as that given by Martin Polaine, an independent lawyer and business associate of Bridger who was eventually struck off as an attorney after he was found to have advised the senior former Scotland Yard cop in Cayman despite not being qualified to practice local law.
Many questions about Operation Tempura remain, as do a number of on-going legal cases, including that of former senior police officer Burman Scott, who was arrested under the same conditions as Justice Henderson and is believed to have been offered a compensation payment.
Questions regarding that issue by CNS to the RCIPS remain unanswered. The former deputy commissioner, Rudy Dixon, who was also arrested and charged under the same offence, which was found to be unlawful in the case of Henderson, was eventually tried and found not guilty by a jury and later given a payoff to depart the RCIPS.
Meanwhile, Stuart Kernohan, the police commissioner at the time of Operation Tempura, continues to pursue a wrongful dismissal claim against the Cayman government over the way he was treated after his suspension from duty because of his association with an alleged unlawful entry into the Net News offices.
Kernohan was suspended over a decision he made to allow employees of the newspaper, including Evans, to hunt for evidence of alleged corruption between the owner, the late Desmond Seales, and Deputy Police Commissioner Anthony Ennis, even though the former top cop had revealed the plans to both the governor at the time, Stuart Jack, and the regional security advisor, Larry Covington.
Although those corruption claims were dismissed very early in the Tempura investigation, Bridger continued to probe and claimed to have discovered other corruption issues relating to the police and the judiciary. While some officers are believed to have resigned or been dismissed as a result of that probe, no details, with the exception of the failed case against Dixon, have ever been revealed to the public, despite the fact that the Cayman tax payer has footed the bill for the entire fiasco.
The release of the documents currently in question and the continued legal fights that the attorney general is pursuing against Bridger to prevent him using other documents in his own legal battles are believed to boil down to an FCO’s desire to avoid embarrassment about the bungled investigation.
Mac attacks officials
(CNS): The governor and the auditor general were once again in the premier’s sights as he launched a full scale attack on senior government officials at a public meeting last night. Not for the first, McKeeva Bush accused the governor of hindering rather than helping with the budget process and Cayman’s economic recovery, assisted, the premier claimed, by his "hit-man" the auditor general. He accused the menof stalling projects and “scaring people off” and telling everyone, himself included, that they were doing something wrong. Bush said the governor had no business interfering with the jobs of elected government members. (Photo Dennie Warren Jr)
Speaking at the West Bay meeting on Wednesday night (1 August), which was billed as being an information session regarding the UDP administration’s plans to introduce a 10% direct tax on work permit holders, the premier used much of the time to slam his opponents and critics, and in particular Governor Duncan Taylor and Auditor General Alastair Swarbrick.
He attacked the men for a number of issues but was particularly angry with Governor Taylor for making an appearance on the morning radio talk show this week, where he had talked about the budget process. Bush said the governor had not told the premier or other Cabinet members he was doing that. Bush said the bloggers should be writing about how the governor is interfering with elected politicians and tell him “to go sun his buns” on the beach. The premier stated that the constitution was clear that the elected arm of government was responsible for the day to day running of the country and the governor had no right to interfere so much.
Bush said there had been many types of governors in Cayman’s history, from “ineffectual ones to those that spent millions on investigations,” referring to the last UK representative, Stuart Jack, who presided overthe controversial and expensive police corruption investigation Operation Tempura.
“Not until now have we had one so disposed to interfere with local affairs,” Bush said, adding that it was not good for him to be on the radio publicly airing their differences. The premier said there were ways for a governor to be active in local government and that was to try to help. “This one has done nothing to help,” he added.
Bush complained that the governor had prevented the UDP administration from divesting the Water Authority and the sewerage system. He also said that the Governor’s Office was behind the blocks facing a committee formed to look into other possible public private partnerships for government. “After nine months there has been no progress,” he said, adding that because the committee was being stalled it had been suspended.
The premier said the sewerage project could have injected millions into the economy and created a thousand jobs but the governor “and his hit-man, the auditor general,” had done everything they could do to stop it.
“Every time a civil servant made a move, the auditor general was there to frighten them,” Bush told the audience as he accused Swarbrick of running to the papers saying something was “radically wrong" every time he tried to do something. “These people are hell bent on destroying this country … that is my opinion. If I’m put in jail, I don't care. It is time for them to stop interfering,” the premier said.
Bush said the governor had failed to help when the government had put forward its budget to the FCO.
“When we put forward the budget in June to the UK, it was strong by usual standards. So why didn't the governor intervene on our behalf and explain we can’t do everything in one year? Why did he not go to bat for us?” he asked. Bush claimed the two month stop-gap period was too short for the government to work out all the financial problems and it was hurricane season as well, but the governor did not support him in his efforts to get a longer time period, the premier lamented.
He accused Taylor of making him look bad with his recent statements as he called on him to stay out of the political affairs. However, Bush did say the governor was the one responsible for the civil service and he was the only one who could cut numbers or pay.
“The governor can't say he’s not responsible. He is responsible not the premier,” Bush stated, adding that none of the other Cabinet members could hire and fire or sign any contracts for civil servants. “That is the governor’s responsibility under the constitution and he himself can explain why the civil service numbers are so high.”
Ex-governor escapes law suit
(CNS): Full story — Stuart Jack, the former governor of the Cayman Islands, will not be held liable for the claim made by Stuart Kernohan, the former police commissioner whom he sacked, a judge has said. Following two days of legal wrangling by lawyers representing the Attorney General’s Chambers, the former Operation Tempura lead investigator and Kernohan, the judge made the decision that the claim did not demonstrate that the governor had acted illegally and therefore it should be the attorney general that should be left to face the law suit on behalf of the government. He made no decision on Bridger, however, as the former Metropolitan Police cop had not yet had the opportunity to defend his application to have his name taken off the writ.
Although the judge has prevented Kernohan from making a personal claim against Jack by denying his claim of misfeasance, Lord Justice Alan Moses has left room for Kernohan to seek more damages from the Cayman Islands government over and above the claim for loss of earnings if he is successful in winning his unlawful dismissal case and a breach of trust and confidence.
In his full ruling the judge gave some indication of his sympathy for Kernohan’s case and spelt out in detail the reasons for his judgement and his views on how Kernohan was treated.
Reviewing the circumstances of the case, Justice Moses described the incidents surrounding Operation Tempura as a “series of unusual events” that led to Kernohan’s dismissal. He revealed how Kernohan had been told in the first instance that he would be placed on required leave for only one month in March 2008, which would be under constant review. He was told at that point that he was not under investigation, despite the UK investigating team having already tried and failed to get a search warrant for his house. However, in May 2008 the special police investigation team led by Martin Bridger revealed that he was in fact under investigation for misconduct in a public office in connection with the Net News entry.
Bridger’s theory was that Kernohan not only acted improperly by asking the employees to search the newspaper offices but the former police commissioner did so for an ulterior motive against Anthony Ennis, though it was not clear exactly what the motive was.
It was not until September 2008 that Kernohan finally learned, as a result of the hearing regarding Justice Alex Henderson’s unlawful arrest, that the chief justice had already ruled that Kernohan had done nothing wrong when he authorized the employees to try and get copies of information that would indicated that the deputy commissioner was leaking sensitive information to the owner of the newspaper, Desmond Seales.
Kernohan was allegedly sacked for not returning to the island when asked to do so by the governor and for making disparaging remarks about members of Cabinet but was not officially cleared from the Operation Tempura investigation until more than a year after he was placed on required leave in April 2009.
In his claim against the various parties Kernohan claims that the governor acted in bad faith as he knew there was no proper grounds to place him on required leave, but not only did he do it, he allowed it to go on and on without responding to correspondence from Kernohan’s legal team.
The judge disagreed that this was an indication of malfeasance as he said it was not illegal to placeKernohan on suspension, so rather than bad faith it was more a case of “an error of judgement”. The judge also noted that the continuation of Kernohan’s required leave was at the advice of Bridger, who was the investigating officer, and the governor was not in a constitutional position to interfere with the operational details of the investigation and therefore was not himself directly liable, but the judge pointed out that the actions still bolstered Kernohan’s claim against the government in general.
He said the fact that Bridger did not accept the findings of the chief justice and carried on his investigation regardless did not mean the governor was acting in bad faith by not stopping him. He was, the judge stated, “restraining himself” from interfering with a police investigation, as he should.
The judge said the accusations that Kernohan was placed on required leave and kept there because the governor was trying to direct attention from his own involvement in the decision to allow the two Net News employees to enter their boss's office on the hunt for incriminating material made no sense.
He pointed out that if the chief justice had already noted that the entry into the newspaper office was not a crime then the governor had nothing to fear by being part of the decision to either instruct or agree to the decision to try that option before getting a search warrant or calling in the outside officers. “There is no rhyme or reason why the governor would need to distract attention … as his conduct, as already stated by the chief justice, was not considered to have been an offence,” the judge added.
In a ruling that took over two hours to deliver, the UK judge did point out, however, that this did not mean that many of the claims Kernohan was making about his treatment in the narrative of events might be valid. He said the governor did have a responsibility to see Kernohan did not suffer and that there was oversight of Bridger’s investigation.
The judge concluded that the Cayman Islands government in the form of the Attorney General was the correct defendant in Kernohan’s suit as there “was no basis for joining” Stuart Jack in person.
He pointed out that Kernohan had a wrongful dismissal case but more importantly there was room for damages to be claimed because of other issues that could be found to be breaches of trust and confidence but he said he would not allow a claim for aggravated damages in the case.
The judge said he believed that this was a case which “cries out for mediation” and that the parties should try to reach a settlement to save on expenses and to avoid further mistakes. He guessed that there would not be any winners in a long trial but lots of losers. He pointed out that during the investigation the ruling of the chief justice was kept from Kernohan and that he had never been given the chance to make representations about that. He also criticised the fact that despite the CJ’s ruling the Operation Tempura investigation continued without proper review.
The question of Bridger’s liability also remains unanswered as the judge said he could not rule on the claim against him as he had only just been served the papers directly when the hearing opened because of the situation that had arisen with his defence. Bridger had been represented by the attorney general’s office but as a result of a closed ruling made by Justice Charles Quin some weeks earlier the AG’s chambers had come off record, leaving the former Operation Tempura boss to fend for himself.
Anthony Akiwumi, who had come on record for the former Scotland Yard cop, pointed out at the end of the judge’s ruling that according to the Cayman Islands 1972 constitution, which was in effect at the time of Operation Tempura, the governor did have considerably more responsibilityfor the police, as he sought to define the position of his client who was faced with defending the suit without the protection of the Cayman government.
With the parameters of Kernohan’s claim now defined, unless the parties decide to settle there will be a long process of hearings and document exchange between the lawyers before the case itself comes before a judge to be heard. Setting out a timetable over the coming months, the parties agreed that if there was no mediation they would probably not be ready to set a date for trial until the end of the year and fixed a date for December for all the parties to return to the court.
Ex-top cop seeks at least $2M
(CNS):Former police commissioner Stuart Kernohan is seeking at least CI$2 million if he is successful in his claim for wrongful dismissal. The figure represents what he could have earned as a senior police officer from the pointof his sacking by the then governor Stuart Jack to his retirement at age 60 had his career not been cut short by the chain of events following Operation Tempura. However, if the ex-top cop succeeds in proving that the governor and the senior investigating officer of the failed UK police corruption probe, Martin Bridger, both acted in bad faith, there could be millions more awarded to him in damages. During the second day of the hearing lawyers continued to argue over the claim made by Kernohan as to who could remain on it and why.
During arguments Friday morning Andrew Hogarth QC, who is representing Kernohan in his claim that not only was he wrongfully dismissed but that those involved acted in bad faith, told the Lord Justice Alan Moses that if the governor was not acting maliciously he was “hopelessly incompetent”, which, he said, was the position being advanced by the defence attorney representing the attorney general and governor’s offices.
The AG’s office has applied to have the claim narrowed considerably but Hogarth argued that the claim cannot be edited just because the defendants refuse to believe the facts in the pleading. The attorney said that the judge had to look at the facts that are alleged in Kernohan’s claim but he could not as the AG’s team wanted him to throw out the claim by assuming they were untrue before a trial had taken place.
Hogarth said that during the investigation Bridger had made the deliberate decision to ignore the rulings of the chief justice and plough ahead with the resulting consequences for Kernohan. The senior cop was left suspended for some fifteen months without any action, even when it was known by all the parties that he was not guilty of any wrongdoing.
He also claimed that the AG and the governor had instructed Kernohan to go ahead with the plan to allow two employees to hunt for a file that may have held evidence of police corruption at a newspaper office, but had not told Bridger this when he arrived to begin his undercover investigation. Hogarth said this showed a “malicious intention to distract attention from their own involvement” in the incident regarding Cayman Net News.
The QC continued to advance his position that the governor had acted in bad faith and was guilty of malfeasance in his treatment of Kernohan, not least because he was kept on ‘required leave’ long after he had been exonerated by the chief justice. However, the judge queried the claim of misconduct on the part of the governor suggesting it was more likely to be poor management rather than deliberately malicious.
“You can’t just fling around allegations of misconduct without spelling them out,” the judge noted as he pushed Hogarth to demonstrate the bad faith. Lord Justice Moses observed on a number of occasions that he was not convinced the plaintiff could necessarily argue it was all intentional when it did indeed look more like a “very silly way of running” things. He pointed out that there was a gap in the claim between the governor’s actions being bad faith or just bad management.
However, the judge said it was clear when Martin Bridger persisted with his investigation against Kernohan, despite the ruling of the chief justice, that the governor should at the very least have tried to reign in the senior officer and make him spell out the reasons for going on. He also noted that the CJ's decision had not been appealed.
When Anthony Akiwumi spoke for the first time on behalf of Bridger, he said that there was no avenue in Cayman law for Bridger to have appealed the CJ’s decision not to allow a search warrant for Kernohan’s house. Akiwumi said thatBridger took the claim seriously as it appeared he had become the “sacrificial lamb” as he had been abandoned by the AG’s legal team and left to find his own representation to defend him against Kernohan’s claim.
Akiwumi, who came on record for Bridger when the hearing opened Thursday, argued to strike out the claims against his client. However, the judge pointed out that it was his defendant who had continued to advance the investigation against Kernohan despite the fact that the chief justice had pointed out that he had done nothing wrong and regardless of the consequences for the plaintiff. However, Akiwumi argued that Bridger had advanced his investigation with the blessing of the Cayman authorities, so he too had done nothing in bad faith.
The judge again raised the question over why the government or the FCO were not defending Bridger and why he was not allowed to know what was in the early the ruling that was given by Justice Quin that changed the shape of the claim and left Bridger out on a limb.
The judge will be making his ruling Saturday morning that will decide if the former governor Stuart Jack should remain in the suit and under what circumstances. Once that decision is made it will be up to the two parties to decide if the matter can be settled outside the court or whether the claim will be fought in a fully fledged trial.
Related article: Bridger pursues complaint re-Operation Tempura
Bridger left out on legal limb
(CNS): Full story — As arguments opened in court today between teams of attorneys over claims made by former police commissioner Stuart Kernohan, it was revealed that the Cayman government's legal team was no longer representing the former senior investigating officer of Operation Tempura, Martin Bridger. As Martin Griffiths QC, who is representing the attorney general and the governor, argued to have the former and current governor (who is now cited on the new claim) and other issues struck from the writ, the question of why Bridger was no longer being represented by the AG’s office was said to be part of a closed ruling made some weeks ago by Justice Charles Quin.
Bridger, who is now one of five people listed in the claim, was represented at the hearing by local defense attorney Anthony Akiwumi, who has not yet made submissions in connection with his new client. The judge queried a number of times why he could not know the reason that the attorney general, who is also listed in the claim by Kernohan, was no longer acting for Bridger.
Sir Alan Moses of the UK Court of Appeal, who was brought in especially for this hearing, described the entire case relating to Operation Tempura as “opaque and bewildering” but also questioned why Bridger had been “hung out on a limb”. He said that this gave the appearance of adding fuel to the conspiracy theories alleged by the plaintiff (Kernohan) in his latest statement of claim.
The main focus of the current hearing, which opened in a public court on Thursday morning, is for the judge to rule on exactly who will be named in the claim when the case itself is heard, the circumstance of how far the claim will go and the issue of security of costs in the event that Kernohan was to lose.
The writ filed by Kernohan names the former governor Stuart Jack, the current governor Duncan Taylor, Attorney General Samuel Bulgin, the former acting commissioner James Smith and the actual Operation Tempura senior investigating officer Martin Bridger. In response to the writ the AG's legal team is claiming that the only defendants who should be considered in the actual claim are the Attorney General's Office and Bridger.
Kernohan, who was fired in 2008 when he refused to return to the Cayman Islands during the Tempura investigation, despite the orders of the then governor Stuart Jack, says that the people listed in his claim were all directly involved in his suspension and subsequent sacking and they acted in bad faith.
The former top cop was one of three senior police officers removed from office during the discredited Tempura corruption investigation but he was never charged with any misconduct relating to the investigation or found to have committed any act of wrong doing.
He states that the governor and the attorney general were both party to the decision to allow two Cayman Net News employees to go looking for evidence of a corrupt relationship between the owner of the local newspaper Desmond Seales and Deputy Commissioner of Police Anthony Ennis, so they should never have suspended him for that decision. Kernohan claims that by doing so both men are as liable as Bridger for the subsequent chain of events.
Griffiths argued, however, that if Kernohan has a case at all it is nothing more than a wrongful dismissal and the former governor cannot be personally liable for that. Griffiths claimed that Kernohan was not sacked because of his part in Operation Tempura or the alleged break-in to the newspaper offices by the employees but because he refused to come back to work, as he tried to steer the arguments away from the now notorious UK police investigation.
Answering the allegations by Kernohan of misfeasance in a public office, the AG’s attorney argued that the plaintiff had not offered anything like enough evidence for that to stand up and therefore he should not be allowed to make the claim.
Despite taking most of the day to present his case, Griffiths essentially argued that the suit should be edited down to a wrongful dismissal case against the attorney general and Martin Bridger. He also said that the financial claims made by Kernohan should be limited to the terms of what remained on his employment contract – which would amount to nine months pay and benefits — although he said that Kernohan’s attorneys should, according to the rules of the court, spell out that figure.
The UK based QC representing the AG also asked for costs in security of around $75,000 as he described Kernohan as an “extremely mobile and evasive plaintiff” that would prove difficult to enforce any financial judgment against were his claim to be unsuccessful. Thelawyer said that the legal team had already had to employ a private detective to track Kernohan down as his attorneys had failed to provide an address. Griffiths revealed that the former top cop was now living in Pasadena, California, where he is understood to have been completing his helicopter pilot’s license.
Kernohan’s legal team made a start on arguments of his behalf before the court was adjourned and said they stuck by their claim that this was a case of bad faith and in short the entire episode was outrageous. Andrew Hogarth QC, who is arguing Kernohan’s case, pointed out that the allegations they hoped to prove “were very serious”.
The core of the former police officer’s claim is that as Jack and Bulgin both knew what course of action Kernohan had taken in regards to trying to find evidence of leaks of police information to the owner of Net News, and to allow him to be suspended six months later for that action amounted to misfeasance and essentially an attempt to cover up their own culpability in the decision. Kernohan is also accusing all of the players of bad faith over the fact that a ruling made by the chief justice in refusing a search warrant to Bridger for Kernohan’s home had exonerated him even before he was suspended from office. This ruling however was not revealed until after he had been dismissed.
Hogarth will continue submissions on behalf of Kernohan spelling out why the governor, in particular, needs to remain on the writ and why the claim is much more than a case of wrongful dismissal. Lord Justice Moses said he would sit through Saturday if necessary to give the lawyers chance to thrash out all their arguments while everyone was present in the Cayman Islands in order to clarify exactly what and who will be in Kernohan’s claim when the case itself is eventually heard.