Judicial Review Issues, evidence clarified

Attorneys have agreed on basic issues that need to be explored in the Judicial Review of a decision to grant search warrants for the home and office of Justice Alex Henderson. The Grand Court judge was arrested on 24 September on suspicion of misconduct in public office, but he has not been charged.

One argument put forward by Justice Henderson’s attorney, Ramon Alberga QC, is that the warrants were wrongly obtained because officers applying for them did not give Justice of the Peace Carson K. Ebanks sufficient or correct information.

On Friday, when visiting judge Sir Peter Cresswell began proceedings in open court, Mr. Alberga presented a statement of four issues to be addressed.

They were accepted by Attorney Christopher Russell, who appears for Mr. Ebanks, and Attorney Steven Barrie, who represents the police.

Also on Friday, Justice Cresswell asked attorneys to assist in determining the chronology of events, including the time of Justice Henderson’s arrest and when the Governor, Mr. Stuart Jack, knew about it. He gave instructions as to what material needed to be submitted by 4pm on Monday and adjourned court until Tuesday.

However, matters arose that prompted the judge to go back into open court on Monday.

Mr. Barrie advised the court of the evidence he intended to bring to show that the police did make full disclosure when applying for the search warrants.

The evidence will be in the form of affidavits. One is from Mr. Martin Bridger, special constable, Royal Cayman Islands Police, and Senior Investigating Officer of a team from the UK Metropolitan Police.

Mr. Barrie said he was also trying to get an affidavit from the officer who swore the information to Mr. Ebanks to get the warrants. A member of the special team, he left the island on 16 October because his contract was up. The officer was said to be at some remote lake lodge and there were practical difficulties in getting his affidavit.

Another affidavit would probably come from a senior RCIP officer, who would give evidence on the usual practice in applying for warrants, Mr. Barrie said. He advised he was also endeavouring to get an affidavit from a JP on the island to speak to the normal practice because there are no local textbooks on the subject.

Another affidavit will be from Deputy Chief Secretary Donovan Ebanks. Mr. Barrie described him as a member of the strategic oversight group appointed by the Governor to oversee ‘Operation Tempura’ – the name given to the investigation by Mr. Bridger’s team.

The final affidavit would come from the Governor, but Mr. Barrie said Mr. Jack was taking advice from the Foreign and Commonwealth Office before the affidavit was sworn.

Mr. Barrie also advised that senior counsel from London, Nicholas Purnell QC, was expected to arrive Monday evening.

Justice Cresswell, who has called the Judicial Review matter urgent and extremely serious, urged the attorneys to finalise the issues to be argued.

As set out by Mr. Alberga they are in the form of questions.

Do the evidence and arguments placed before the Justice of the Peace demonstrate on an objective assessment that in fact or according to reasonable suspicion Justice Henderson has committed the common law offence of Misconduct in Public Office as particularised on the information on oath given to the JP?

Do the evidence and argument placed before the JP demonstrate an objective assessment that in fact or according to reasonable suspicion that recovery of the objects described in the search warrants is necessary to the conduct of the investigation then taking place?

In any event, should the search warrants be set aside because of a failure by the applicants for the warrants to disclose all material facts?

In any event, should the warrants be set aside because they do not comply with the Criminal Procedure Code and purport to have been issued by the Court rather than by the JP?