Review evidence not being shared

A 48-paragraph affidavit has been submitted to Justice Peter Cresswell in the ongoing Judicial Review of the decision to issue search warrants for the home and office of Justice Alex Henderson last month.

The affidavit is from Senior Investigating Officer Martin Bridger who, as a special constable in Royal Cayman Islands Police Service, heads a team of officers here from the UK Metropolitan Police.

On Tuesday, Justice Henderson’s attorney, Ramon Alberga QC, told the court that the copy he received of Mr. Bridger’s affidavit contained only 29 paragraphs.

Nicholas Purnell QC, who is instructed by local attorney Steven Barrie on behalf of the police, explained the difference in the affidavits.

He said he was applying for public interest immunity regarding the information given to the court but not to Mr. Alberga and his client.

The application was to be argued on Wednesday.

During an adjournment on Tuesday, Mr. Alberga explained public interest immunity to reporters. PII means that, in the interest of the public, certain evidence should be suppressed and not disclosed to the other side.

In court, Justice Cresswell wondered if he was being asked to take into account evidence Mr. Purnell said should not be made available to Mr. Alberga and reach findings of fact on the basis of that material. Mr. Purnell said yes.

‘That’s very unusual,’ the judge commented.

‘The whole case is very unusual,’ Mr. Purnell replied.

Justice Cresswell at one point hoped the PII application could be heard on Tuesday. He asked if there would be objection if he sought the assistance of the attorney General. Senior Crown Counsel Vicki Ellis advised that Attorney General Samuel Bulgin was in Cabinet and Solicitor General Cheryll Richards was off-island.

Mr. Purnell suggested Mr. Bulgin have a special counsel instead of appearing himself because he was a potential witness in the case that would result if the investigation Mr. Bridger referred turned out a certain way. Mr. Purnell said he would object if the Attorney General saw the material in question, but he would not object if his counsel saw it.

Before court adjourned for the day, Justice Cresswell again referred to the unusual situation of Mr. Alberga being told there were 19 paragraphs he could not see in circumstances as sensitive as this. He asked parties to consider if there were some other way of solving the problem.

Other matters touched on during Tuesday’s session included, again, written material pertaining to the duties of Justices of the Peace in Cayman.

Justice Henderson has asked that the search warrant issued against him should be set aside, in part because the JP issuing them, Mr. Carson K. Ebanks, was not given sufficient information to be satisfied there were reasonable grounds to suspect the commission of the offence of Misconduct in Public Office.

‘It is perfectly plain that the respondent [Mr. Ebanks] knew nothing about the relevant offence in terms of legal ingredients,’ Justice Cresswell observed at one point.

‘That’s right,’ Mr. Purnell agreed.

Acting Commissioner of Police David George came to court on Tuesday afternoon at the request of the judge, who asked if Mr. Bridger reported to Mr. George.

Mr. George explained that Mr. Bridger is a special constable and, under the Police Law, reports to the Commissioner.

Justice Cresswell referred to a statement in Mr. Bridger’s affidavit – that in conducting this investigation he initially reported to Commissioner Stuart Kernohan, but laterally to the Governor and his Strategic Oversight Group.

Mr. George indicated that was the situation before he came to act while Mr. Kernohan is on required leave. Now, Mr. George said, Mr. Bridger does inform him on a regular basis what he is doing, while there are constitutional issues Mr. Bridger would be discussing with the Governor.

Asked who was asserting public interest in the PII application, Mr. George said he clearly had titular responsibility; he wouldn’t necessarily be involved with the particulars. The actual process would be left to the investigating officer.

Justice Cresswell asked again who was in a position to assert PII. Mr. Purnell said that was his role.

Asked to explain the Strategic Oversight Group, Mr. George said it allowed Mr. Bridger to get a local perspective, consider the impact of some of the decisions he was making and gave him an opportunity to explain financing, since the team was not in the police budget. The Strategic Oversight group included the Chief Secretary and/or his deputy.

Also on Tuesday, Mr. Purnell asked for amendments to the four issues previously identified for argument. A major amendment was to the question: Should the search warrants be set aside because of a failure by the officers applying for the warrants to disclose all material facts?

Mr. Purnell said this question should be divided in three: Was there a failure by the officers applying for the warrants to disclose all the material facts? Was the failure in bad faith? If there was a failure, should the warrants be set aside?

Justice Cresswell agreed with Mr. Alberga’s suggestion that the second question should be – Was the failure in bad faith, or deliberate?

Attorney Christopher Russell, who represents Mr. Ebanks, did not take part in any of the above discussions. At one stage, he wondered whether he should ask to be released. He said it seemed the battle lines had been clearly drawn between Mr. Alberga and Mr. Purnell, and he was sitting in No Man’s Land while barrages flew overhead.

But Justice Cresswell observed that he had two versions of a statement by Mr. Ebanks. Both were signed, but there were differences between them. He asked Mr. Russell to clarify the matter and did not release him.

Attorney Kristen Hougton, who is assisting Mr. Alberga, queried the presence of other attorneys in court who were not sworn in but who seemed to be giving advice.

Mr. Barrie said the London firm of Peters and Peters was instructing him and two individuals from that firm had temporary work permits with his firm. He said they were not providing any legal service regarding Cayman law, but were advising on English law.

Mr. Martin Polaine was acting as a special advisor to the investigating team. He was not on work permit, but was employed by the police or the Governor.