Visiting judge Sir Peter Cresswell began a Judicial Review on Friday to determine whether the decision of a Justice of the Peace was lawful when he granted an application for search warrants for the home of Justice Alex Henderson on 24 September.
Proceedings, scheduled to continue tomorrow (Tuesday), are being held in open court.
Justice Henderson, who was arrested on suspicion of misconduct in public office but not charged, did not attend the review. He is represented by Ramon Alberga QC, instructed by Attorney Shaun McCann.
Carson K. Ebanks, the JP who issued the search warrants, was not present either. He is represented by Attorney Christopher Russell.
Mr. Russell told the court that Mr. Ebanks ‘did nothing other than act with complete propriety based on information put before him.’
That information is what is at issue. Mr. Alberga is arguing that the search warrants should be set aside because of a failure by the applicants to disclose all material facts.
Those facts, he said, should have included a ruling by Chief Justice Anthony Smellie in April, when he refused to issue warrants against Police Commissioner Stuart Kernohan and Chief Supt. John Jones, but did issue one against Deputy Commissioner Rudolph Dixon.
Attorney Steve Barrie appeared on behalf of the police. The search warrants were issued by Mr. Ebanks at the request of Mr. Martin Bridger, special constable, Royal Cayman Islands Police. Mr. Bridger, referred to as Senior Investigating Officer, has been in Cayman since September 2007 and heads a team from the UK Metropolitan Police.
A member of the team, Officer Gus Smith, was in court on Friday. Sitting with him was Mr. Polaine, special legal advisor to the inquiry team. Mr. Barrie described the advisor as a barrister of England and Wales, but not a Cayman Islands attorney.
Mr. Barrie said one of the officers involved in the matter had left Cayman on 15 October because his contract had come to an end. The attorney added that his clients were in contact with the officer, who was aware he would have to sign an affidavit.
Mr. Barrie conceded that the Chief Justice’s ruling was not brought to the attention of Mr. Ebanks, but he said the ruling was not relevant because it pertained to a different investigation. ‘We say we did make full disclosure.’
Justice Cresswell asked why the officers did not apply to the Chief Justice for the search warrants. Mr. Barrie said that matter, along with others, would be addressed by way of an affidavit.
‘That affidavit should have been available by today,’ the judge replied.
He then asked if the Attorney General knew that the application for search warrants would be made – was he consulted? Mr. Barrie said he was advised the Attorney General was not consulted ‘and that was for operational reasons.’
Justice Cresswell spent much of Friday morning determining the chronology of events and asking questions. He especially wanted to know about the training of JPs and what guidance there was about the issuing of search warrants. He pointed out that the Chief Justice’s 51-page ruling in April ruling set out the law as it stands pertaining to search warrants and the role of any tribunal approached for a search warrant.
He specifically asked about the experience of Mr. Ebanks, who had issued the search warrants in this matter. After the lunch adjournment, Mr. Russell supplied the answers. He said Mr. Ebanks had held his appointment for ten years and had issued five warrants. In his experience, the police came to him for warrants. This matter was the first time he was asked to go to police premises.
Also after lunch, Mr. Barrie, who has been in the matter only since 13 October, advised the court that his clients wished to instruct senior counsel from London.