Undisclosed evidence is withdrawn

Nineteen paragraphs of an affidavit by Senior Investigating Officer Martin Bridger have been removed and the contents will not be relied on in the Judicial Review being conducted by visiting judge Sir Peter Cresswell.

The review is to determine the lawfulness or otherwise of search warrants issued in connection with the arrest of Justice Alex Henderson last month.

Arguments were scheduled to begin yesterday, with court sessions since last Friday devoted to preliminary matters such as an agreed chronology of events, legal authorities and evidence to be submitted.

The evidence of Mr. Bridger was initially submitted in two forms – an affidavit of 48 paragraphs, which Justice Cresswell received, and an affidavit of 29 paragraphs, which Ramon Alberga QC received on behalf of his client, Justice Henderson.

On Tuesday, Mr. Alberga wanted to know the contents of the extra paragraphs. Senior Counsel for the police, Nicholas Purnell QC, did not want to disclose it. He said he would make a public interest immunity application to keep the information confidential.

Justice Cresswell asked if Mr. Purnell could not disclose the information to Mr. Alberga on a ‘counsel to counsel basis’.

Mr. Alberga did not agree because he felt he should share the information with his client, Justice Henderson.

The application to keep the information confidential was to be heard on Wednesday. Attorney General Samuel Bulgin was to attend as guardian of the public interest and to advise on procedure.

Mr. Purnell began proceedings by saying he wished to withdraw the 48-paragraph affidavit and offer the 29-paragraphs.

Mr. Alberga did not agree.

Justice Cresswell again suggested that Mr. Alberga be shown the information.

Mr. Purnell did not agree because, he revealed, another person was named in those paragraphs. That person might want the information to be the subject of a public interest inquiry.

He disclosed the name of that person in a written note passed to Justice Cresswell and then to Mr. Alberga and Attorney Christopher Russell, who represents Mr. Carson K. Ebanks, the JP who issued the search warrants.

The name was never spoken or publicly revealed. Another, unnamed, party was also referred to as someone who might want a public interest immunity hearing.

A substantial portion of the day was spent with court taking adjournments of various lengths in an effort to get the two sides to agree.

‘I think we must be absolutely clear on what is happening,’ Justice Cresswell observed at one stage. ‘Many things happening in this matter reflect its sensitivity.’

Later he was asked to have something brought to his attention in the privacy of his chambers. The judge asked on what basis would he sit in chambers – ‘This is an open court.’

Mr. Purnell made it clear that the 19 paragraphs did not go to the primary issue to be argued – whether officers applying for the search warrants failed to disclose all the material facts: if there was failure, was it in bad faith; if there was failure, should the warrants be set aside.

Those are the questions set to be dealt with yesterday.

The PII issue was resolved when, after numerous discussions, Mr. Alberga advised the court that his client agreed the undisclosed material should be withdrawn.

This meant that the 29th paragraph of Mr Bridger’s affidavit would be slightly amended and the final version was to be accepted by everyone before arguments started yesterday.