Cayman Islands Chief Justice Anthony Smellie refused two separate requests for search warrants by UK investigators against Police Commissioner Stuart Kernohan and one of his top lieutenants, based on the judge’s ruling that there were insufficient legal grounds for such searches.
The revelation comes in a judgment signed in April by Chief Justice Smellie which has been obtained by the Caymanian Compass.
‘The issuance of a search warrant, simply in the hope of finding something self-incriminatory against a subject already regarded as having committed an offence, but without any objective basis for thinking that it could exist, would be precisely the sort of oppressive ‘fishing expedition’ so firmly discountenanced by the case law,’ the 4 April judgment read.
‘At the end of the day, Supt. (Martin) Bridger’s ‘quest for truth’ in reality came down to this: The hope or expectation that within the items to be seized (that is: the day-books, cell phones and computers of the subjects) there might be found some inculpatory record of criminal intent to trespass — that crucial element which…is clearly shown not to have existed in the minds of the Commissioner of Police (Mr. Kernohan) and Chief Superintendent (John) Jones.’
In his ruling, the Chief Justice did agree to sign a search warrant regarding Deputy Police Commissioner Rudi Dixon’s property.
The requests for the search warrant were heard in February and March, before Messrs. Kernohan, Dixon and Jones were removed from office by Governor Stuart Jack in order to ‘facilitate’ investigations into misconduct at the Royal Cayman Islands Police Service. The judgment was issued about a week after the three men were removed from office.
The investigation by a team of officers from the UK Metropolitan Police Service, led by Senior Investigating Officer Martin Bridger, has been underway for more than a year in Cayman. Mr. Bridger’s team was asked to investigate allegations that local newspaper publisher Desmond Seales and RCIPS Deputy Police Commissioner Anthony Ennis had exchanged confidential information which might have disrupted police investigations and even placed officers’ lives in danger.
Upon further investigation, Mr. Bridger said those claims…which were allegedly made by former Cayman Net News employee Lyndon Martin…were proved false. Mr. Martin has been charged in connection with making false statements to police and is expected to face trial early next year.
Mr. Martin has also been charged with burglary in connection with an entry made at Mr. Seales’ offices.
However, it was a 3 September, 2007 entry at Mr. Seales’ office made by another former Net News employee, which drew the three top RCIPS commanders into the matter.
Court documents obtained by the Compass reveal that the man involved in that unauthorised entry, John Evans, was in contact with both Mr. Kernohan and Mr. Jones prior to that entry.
According to a statement by Mr. Evans, which is included in the court documents, he discussed specific plans for the entry with Superintendent Jones. He said he also discussed the entry with Commissioner Kernohan, but nothing about the specific plan.
‘I can’t say in all honesty that this was an official request from the police to do it,’ the judgment quotes Mr. Evans as saying. ‘So it wasn’t an official request; it was more akin to being asked to do a favour for somebody.’
Further, the Chief Justice writes in the ruling that Mr. Evans did not consider his entry to be unlawful, even if it was unauthorised in the sense that Mr. Seales would not have consented to it.
‘There was no breaking and entering — through Martin, they had the key and code for entry (into the main building of Cayman Net News). In the second place, their entry was not for any unlawful purpose, but for the lawful (at least from the point of view of Evans, the Commissioner of Police and Chief Superintendent Jones)… (purpose) of seeking to assist in the recovery of evidence of a serious crime.’
The judgment does state that the ‘evidence’ being sought was a box of documents which allegedly contained private communiqués between Mr. Seales and Mr. Ennis. UK Met police have stressed that they never found any evidence these communications actually existed beyond what witnesses informed them.
‘No criminal offence’
The Chief Justice’s ruling regarding the Met team’s application for a search warrant essentially questions what offence Messrs. Kernohan and Jones might have committed.
‘Given the circumstances which presented themselves to the Commissioner of Police and Chief Superintendent Jones at the time when they encouraged or enlisted Martin and/or Evans to enter the newspaper premises, there is no reasonable basis for concluding on careful application of the law, that the Commissioner of Police or Chief Superintendent Jones committed any criminal offence,’ the judgment states.
The ruling goes on to state that both men had a ‘genuine and urgent belief’ that documents proving serious crimes had been committed would be recovered.
Met investigators argued to the contrary during their second search warrant application, but the Chief Justice did not agree with those submissions.
‘The argument raised before me on this second occasion — that that belief was not truly held…lacked objectivity and logic,’ the judgment read. ‘If there was no genuine belief that the incriminatory material really existed, what then would have been the purpose of seeking Martin’s and Evans’ assistance?’
Governor, AG informed
According to the court records, Commissioner Kernohan stated he had meetings with Governor Jack and Attorney General Sam Bulgin to discuss allegations made against Mr. Ennis and Mr. Seales, prior to the arrival of the UK Met officers on island.
‘The Commissioner of Police states that the Governor, the Attorney General and himself discussed ‘the importance of obtaining some documentary proof…” according to the judgment.
In a separate meeting with Mr. Kernohan, court records reveal that the Attorney General, in the presence of the Governor, provided written advice to the Commissioner regarding the matter, including the need for a senior police officer to assess whether there was sufficient evidence to obtain a search warrant for the newspaper offices.
‘There was, however, no reference in the advices to the possibility of Martin (or Evans for that matter)…being enlisted as volunteers,’ the judge’s ruling states.
The court’s ruling is the first public record indicating that both Mr. Jack and the Attorney General were briefed by Commissioner Kernohan regarding the initial investigation, which was started before the UK Met officers arrived in Cayman.
Also, the documents reveal that Mr. Kernohan, as early as mid-August, contacted an overseas law enforcement official seeking advice on how to proceed after receiving Mr. Martin’s claims. The court records state Mr. Kernohan agreed that the law enforcement official would act as an independent overseer on the case. That official was not Mr. Bridger.