Police say they’ll appeal
Justice Alex Henderson has won his application for warrants to be set aside that had been issued to search his home and office on 24 September.
Sir Peter Cresswell, sitting as a judge of the Grand Court of the Cayman Islands, gave his decision yesterday. He agreed with most of the arguments raised by Ramon Alberga QC on Justice Henderson’s behalf.
After the decision, Attorney Steven Barrie, who represents the police, said his instructions were to appeal. Justice Cresswell suggested Mr. Barrie’s clients read and consider the judgment first.
Mr. Barrie also asked that the items seized during the search not be returned until the appeal would be heard.
Mr. Alberga replied that the effect of the judgment was that the search warrants were improperly and illegally obtained because of misrepresentations to Justice of the Peace Carson K. Ebanks and ‘massive non-disclosure’ of information he should have been given.
‘What they took was wrongly taken and they have had it for over a month,’ he pointed out. He asked for everything to be returned, but offered a compromise.
Justice Cresswell referred to his judgment and took a view along the lines of Mr. Alberga’s suggestion. He ordered that all items seized in their original form should be returned to Justice Henderson forthwith, including his passport. Copies of items seized, in any form whatsoever, should be placed in a secure vault (The Governor’s was suggested) until 4pm on Friday, 7 November. They should be returned to Justice Henderson thereafter unless the Court of Appeal makes any contrary order in the mean time,
Numerous failures or misrepresentations by the police were referred to by Justice Cresswell in his judgment.
He said Mr. Ebanks should not have been asked to go to the police premises – the offices of Senior Investigating Officer Martin Bridger and his team from the UK Metropolitan Police who are here as Special Constables in the Royal Cayman Islands Police Service.
He said he was troubled that Mr. Ebanks had been told this was a matter of which the Governor was aware. ‘In my opinion, that statement should not have been made.’
Justice Cresswell said Mr. Ebanks should have been told the ingredients of the offence being investigated – Misconduct in Public Office.
The Special Constables had indicated that Justice Henderson was speaking of letters published in Cayman Net News in the context of being in contempt of court but knowing they were not because the contempt was not in the face of the court. In fact, there is an offence of scandalising the court.
Justice Cresswell said Mr. Ebanks should have been given a copy of Chief Justice Anthony Smellie’s April ruling concerning search warrants or extracts from it. If Mr. Ebanks had known about the principles set out in that ruling, there was an overwhelming probability that he would have asked the officers why they did not take their search warrant applications to the Grand Court.
There was significant non-disclosure of important information. Mr. Ebanks had been told that Justice Henderson had refused five times to be interviewed for a witness statement. However, Mr. Ebanks was never told that the judge had offered to reply to questions in writing, which was the course considered appropriate by the Chief Justice and Attorney General.
Other aspects of Justice Cresswell’s judgment will be reported at a later date.
Mr. Alberga was instructed by Attorneys Shaun McCann and Kirsten Houghton of Campbell’s.
Mr. Barrie instructed Nicholas Purnell QC on behalf of the police — specifically the Acting Commissioner of Police.
Attorney Christopher Russell appeared on behalf of Mr. Ebanks.
The Court of Appeal next sits 24 November.