Review judgment expected this week

After four days of determining issues, submitting affidavits and agreeing on a timeline, attorneys took 10 hours over Thursday and Friday to argue the question for Judicial Review: Were the warrants issued for the search of Justice Alex Henderson’s home and office lawful?

Visiting judge Sir Peter Cresswell, who is sitting as a judge of the Grand Court, thanked attorneys for their assistance and said he would try his best to have his judgment ready by this Wednesday.

On behalf of Justice Henderson, Ramon Alberga QC submitted that the warrants, executed on 24 September, should be set aside because the officers applying for them did not make full and frank disclosure of important facts and legal principles when they asked Justice of the Peace Carson K. Ebanks to sign the warrants.

Replying on behalf of the police, Nicholas Purnell QC said all that was needed was sufficient information to identify the offence being investigated. He said a search warrant is an investigative tool, not a stage of criminal prosecution.

The alleged offence is that Justice Henderson, being the holder of a public office, did a series of acts calculated to injure the public interest.

As previously reported, the matter arises from a series of letters in Cayman Net News newspaper July-August 2007, which were critical of Cayman’s judiciary. Their content was of concern to Justice Henderson and he asked a Net News employee last year to find out what he could about the source of the letters. The judge said he never asked or encouraged the employee to perform any illegal act in the course of finding out that information (Caymanian Compass, 30 September).

Alleged specific acts by Justice Henderson referred to during the judicial review were refusing to be interviewed and refusing to allow officers to search his home and office.

Mr. Alberga said information given by the officers requesting the search warrants included an assertion that Justice Henderson knew or should have known the letters were not capable of amounting to contempt. Even if they did, the contempt was not in the face of the court and so would require investigation by police at the request of the Attorney General.

But neither proposition was correct, Mr. Alberga continued: There is a contempt known as scandalising the court. Justice Henderson had ample reason to believe the letters constituted contempt and if the facts had been disclosed to the JP he might well have agreed.

The JP’s recollection of the request for search warrants included reference to the presence of a ‘lawyer’ whose name he did not remember. This was said to be Mr. Martin Polaine, described as counsel to the investigating team.

From his presence, the JP may have assumed that the search warrant requests had been vetted and approved, Mr. Alberga said. But Mr. Polaine has not been called to the bar in Cayman; he was offering legal services regarding English law.

Arguments put forward by Mr. Alberga and Mr. Purnell have at times been difficult to follow because both men referred to affidavits and other documents that listeners have not been able to see or hear in their totality.

On one point, Mr. Purnell made a concession ‘for the purposes of this hearing only’ because he was not prepared to reveal the nature of the police investigation.

However, the principles being argued were clear. Justice Cresswell remarked that the issue could not be starker. Mr. Alberga’s position was that the Justice of the Peace to whom the application for a search warrant is made must be satisfied there is reasonable suspicion an offence has been committed. Mr. Purnell said no – it is the officer making the application who has to have reasonable suspicion.

Attorney Christopher Russell appeared on behalf of Mr. Ebanks. He did not present any arguments, but Justice Cresswell asked him to be present in case any questions arose for which his help would be needed.

Mr. Alberga said the JP should have had material facts disclosed to him which were not disclosed. He should have been given the overall context in which Justice Henderson made his request to the Net News employee, including the nature of the letters published. He said the JP should have been told that Justice Henderson provided a statement to the team of UK Metropolitan Police headed by Senior Investigating Officer Martin Bridger, including his repeated offers to answer questions in writing.

The information supplied to the JP was that Justice Henderson had been invited to an interview, but declined on five occasions.

Justice Cresswell asked Mr. Purnell to comment. Mr. Purnell said it would have been fair to disclose that Justice Henderson offered to reply in writing – it would have been fair to Mr. Henderson and to the officers.

‘You concede it would have been fair. That’s another way of saying it should have been disclosed,’ Justice Cresswell said.

‘Yes,’ Mr. Purnell replied.

Another matter that should have been disclosed, according to Mr. Alberga, was a decision by Chief Justice Anthony Smellie in April as to why he was refusing to issue search warrants against Commissioner of Police Stuart Kernohan and Chief Superintendent John Jones, but was issuing a warrant against Deputy Commissioner Rudolph Dixon.

This 52-page decision included an analysis of principles relating to the application for and issuance of search warrants. Mr. Alberga said the JP could have been guided by it.

Mr. Purnell said the decision was wrong and irrelevant to the present case.

He emphasised his position for the JP to consider was whether the officer requesting a search warrant had reasonable suspicion of the commission of an offence. The JP takes a deposition on oath and must be satisfied the officer is swearing to tell the truth. The JP doesn’t have to say he would suspect an offence on the basis put before him – the JP has to say it’s reasonable the officer suspects on that basis.