After conducting a Judicial Review into the lawfulness or otherwise of warrants to search Justice Alex Henderson’s home and office last month, Sir Peter Cresswell said in a judgment issued Wednesday he had no hesitation in granting the relief sought by Mr. Henderson’s application to the court.
In the 124-page judgment, Justice Cresswell commented on the consequences of actions taken by Metropolitan Police Officers in obtaining warrants to search Mr. Henderson’s office and home.
‘The failures and misrepresentations individually and collectively evidenced and reflected the gravest abuse of process,’ he stated.
The officers did not give Justice of the Peace Carson K. Ebanks all the information he should have had to be satisfied that in fact or according to reasonable suspicion Justice Henderson had committed the offence of Misconduct in Public Office. Then, in explaining why the recovery of items was necessary to the investigation, the officers failed to provide sufficient details.
The JP’s attention should have been drawn to the fact that a judge’s computer would have highly confidential information that could not possibly pertain to their investigation, Justice Cresswell pointed out. One officer said a computer file would be reviewed only to make sure it was not relevant. This approach was ‘back to front’, Justice Cresswell said, and it amounted to a fishing expedition in waters the police ‘should on any view never been allowed to enter.’
Justice Cresswell set out a chronology of events, with details revealed in affidavits. Most of this material was not publicly known until his judgment was released.
On Monday, 22 September, Senior Investigating Officer Martin Bridger informed Governor Stuart Jack of the proposed arrest of Justice Henderson. Mr. Bridger heads the team of officers from the UK Metropolitan Police and they are all Special Constables in the Royal Cayman Islands Police Service.
On Wednesday, 24 September, at 7.06am, Justice Henderson was arrested in the car park outside his home. A charge of Misconduct in Public Office contrary to common law was read out. Justice Henderson refused to consent to a search of his home and office.
It was his right to refuse, Justice Cresswell said. That led to the application for search warrants.
Mr. Bridger, in his affidavit, said he did not have sufficient confidence in the judges of Cayman’s Grand Court, so he spoke to ‘the Oversight Group’ about this and Deputy Chief Secretary Donovan Ebanks suggested a list of three justices of the peace who would be suitable.
Carson K. Ebanks JP put into writing his recollection of events. He said he received a phone call at home around 7.30-7.45am. He said Mr. [Donovan] Ebanks asked him to attend the offices of the ‘Metropolitan Police’ or ‘the Inquiry Team’. In response, he went to the offices, upstairs from Fort Street Market, arriving about 8.15am. He was aware he would be asked to issue a search warrant, but did not know for whose premises.
Mr. Ebanks noted he has been a JP for 10 years and has issued search warrants about five times per year. This was the first and only time he was asked to attended police offices for the purpose.
Justice Creswell said the JP should not have been asked to attend police premises because it undermined the independence that he should maintain at all times. He was troubled by the fact that Mr. [Donovan] Ebanks advised the JP that it was a matter of which the Governor was aware: ‘What effect was such a statement likely to have on [Carson Ebanks’] approach to the application? In my view the statement should not have been made.’
Resuming Carson Ebanks’ narrative, he said at the Met officer Mr. Bridger told him that Judge Henderson had been arrested and had refused permission for a search. He said he was told the search was required as part of an ongoing investigation, as they had reason to believe the judge had information or evidence relevant to a charge of misconduct by him in public office.
From what Mr. Bridger told him, Mr. Ebanks understood that Judge Henderson had interfered in the investigation by refusing the search and he had used his position as a judge and his relationship with an employee of Cayman Net News, which had contributed to the employee going into CNN offices without authority
Mr. Ebanks said he then went into another room with Special Constable deBurgh-Thomas and a lawyer he did not know. That lawyer was later identified as Martin Polaine, advisor to the Met team on English law. Mr. deBurgh-Thomas took a Bible in his hand and swore an oath as to the accuracy of the information that formed the basis for the warrant application.
Mr. Ebanks said he then read the information; he did not recall the details, but the information basically reflected what Mr. Bridger had already told him. He asked a few questions and then read the warrants he was asked to sign. He did not recall any other information or material being put before him.
The information included an assertion that Justice Henderson had refused to submit to a ‘witness interview’ on five occasions. But it did not disclose that he had suggested an alternative course of replying to questions in writing.
He also should have been referred to Chief Justice Anthony Smellie ruling of 4 April which set out guidelines for issuing search warrants. Mr. Ebanks had said he was quite certain no mention was made of it and he had not been aware of it.
After reading the information and relying on what he was told by Mr. Bridger and the lawyer, he was satisfied the items listed on the search warrants appeared to be essential to the inquiry into the offence. On that basis, he signed.
By that time, it was about 8.45am.
Meanwhile, Justice Henderson had been taken to the George Town Police Station. Chief Justice Smellie attended for a few minutes. At 9.05am Mr. Bridger and the Governor addressed the Chief Justice and court staff at the Court House about the arrest.
Almost simultaneously, investigators returned to Justice Henderson’s home with a search warrant. Attorney Shaun McCann attended and repeated Justice Henderson’s instructions that he did not consent, but they commenced their search, which lasted until 2.25pm.
A search of the judge’s chambers went from 3.02 – 4.10pm. Attorney Kirsten Houghton attended and asked that the judge’s objections be recorded. The Chief Justice was present and objected to the judicial computer being removed from the custody of the court.
Justice Henderson was released at 5.50pm, having been fingerprinted, photographed and had a DNA sample taken. An interview lasted a little less than two hours, continuing another three hours the following day.
On 7 October, Justice Lennox Campbell granted leave to apply for Judicial Review of the decision to grant the search warrants. Mr. Ebanks as JP was the first named respondent, with the Acting Commissioner of Police as an additional party.
Justice Cresswell was appointed Acting Judge of the Grand Court and on 16 October, he ordered the police to hand over to Justice Henderson’s attorneys the Information on Oath used to obtain the warrants. Until then, Justice Henderson had seen only the first page and part of the second.
The public hearing began the next day. Attorney Christopher Russell represented Mr. Ebanks, but legal arguments were primarily between Ramon Alberga QC, on behalf of Justice Henderson, and Nicholas Purnell QC, on behalf of the police.
Mr. Alberga argued that the JP to whom an application is made for a search warrant must be satisfied there is reasonable suspicion an offence has been committed.
Mr. Purnell disagreed. He said it was the officer making the application who has to have the reasonable suspicion.
Justice Cresswell quoted extensively from the Chief Justice’s ruling of 4 April; he did not consider the Chief Justice was wrong in his analysis of conditions precedent to the grant of a warrant.
He also quoted from the Adult Court Bench Book which deals with search warrants in the UK. Justice Cresswell said he did so because Mr. Bridger had said he had experience of applications for approximately 1,000 warrants.
The judge said it would have been obvious to any fair-minded police officer that the JP in this case was out of his depth. He did not have independent legal advice available. The JP could not be expected to have any knowledge of the ingredients of the offence, the judge said, adding he was troubled by the selection of a particular JP as ‘suitable’.
What is Misconduct in Public Office?
There are four elements to the offence:
a) a public officer acting as such
b) Wilfully neglects to perform his duty and/or wilfully misconducts himself
c) to such a degree as to amount to an abuse of the public’s trust in the office holder
d) without reasonable excuse of justification.
Cayman’s most senior attorney, Ramon Alberga QC, said he did not know of any other case in which someone had been charged with this offence, which is part of common law. He noted that Cayman’s Penal Code includes an offence known as abuse of office.