A letter by the Attorney General hinted at it and a communiqué between attorneys agreed to it, but no statement was made publicly until Monday that the arrest of Justice Alex Henderson on 24 September was unlawful.
In open court, Mr. Henderson’s attorney, Ramon Alberga QC, announced that, in correspondence with the Legal Department, there was agreement that the arrest was illegal.
Sir Peter Cresswell, back as visiting Grand Court judge, asked when the unlawfulness of the arrest was acknowledged publicly.
Solicitor General Cheryll Richards referred to a letter written by Attorney General Samuel Bulgin on 12 November in which he said the investigation into an allegation against Justice Henderson of misconduct in public office had been discontinued and was at an end (Caymanian Compass, 14, 17 November).
In another letter on 24 November, Mr. Bulgin’s office said the claim that the arrest was unlawful would not be contested.
Ms Richards agreed that the unlawfulness of the arrest should have been made abundantly clear.
Justice Cresswell said the police in this country had arrested a serving judge for an offence that was not an arrestable offence – surely there should be a public statement with an apology.
The parties were back in court because, as Mr. Alberga explained, he had to apply for judicial review of the decision to arrest Justice Henderson because he could not get the issue dealt with any other way.
Assistant Solicitor General Douglas Schofield, from the Legal Department, was representing Special Constable Martin Bridger, senior officer of the investigating team from the UK Metropolitan Police; Special Constable Richard Coy, who arrested Mr. Henderson on instruction from Mr. Bridger; and the Acting Commissioner of the Royal Cayman Islands Police, now James Smith. At the time of the judge’s arrest, the Acting Commissioner was David George.
The matter was before Justice Cresswell, the same judge who ruled in October that search warrants obtained for Mr. Henderson’s home and office were not valid (Compass, 30 October).
On Monday, Justice Cresswell pointed out that the legality of the arrest had not been raised when he was hearing arguments about the search warrants.
If Mr. Henderson was arrested for a non-arrestable offence, it should have been brought to the attention of the court and of the Justice of the Peace who was asked to issue the warrants, Justice Cresswell said.
‘We went through a long a difficult hearing without the police acknowledging that a fundamental mistake had been made.’
Justice Cresswell said neither the Attorney General’s letter of 12 November nor a statement by the Governor on 4 December acknowledged that the arrest was unlawful.
The statement from Governor Stuart Jack was about the independent investigation headed by Mr. Bridger. Justice Cresswell pointed out it did not indicate Mr. Henderson had been arrested for a non-arrestable offence.
Mr. Jack had said the setting aside of the search warrants ‘does not negate the fact that a considerable amount of exemplary investigative work has been carried out over the past year by the investigative team.’
Mr. Alberga told the court he had been shocked by that statement. ‘What he was doing was patting Mr. Bridger on the back and saying ‘Well done, my blue-eyed boy.”
Justice Cresswell observed that arresting someone for a non-arrestable offence was hardly exemplary.
Mr. Alberga said so far there had been no apology from the Governor to Justice Henderson.
Mr. Schofield advised that Acting Commissioner David Smith had been waiting all day to apologise.
Justice Cresswell said the normal practice is for the judge to see the apology before it is read into the record. He was shown a copy and said it did not acknowledge the arrest was unlawful.
Mr. Schofield said he had already acknowledged that on behalf of the police. The judge gave him another opportunity to take instructions from Mr. Bridger and Mr. Smith. After consulting with the officers, Mr. Schofield said he found himself in a conflict with his clients. He thought they needed to have their own advice on this point
The judge said the officers could make their positions clear in the morning.
At the judicial review of the search warrants, the police officers had been represented by a private law firm.
Justice Cresswell indicated several times on Monday that a number of points had to be determined before he could assess damages to be paid to Justice Henderson for injury to his reputation and good name.
Mr. Schofield referred to factors such as the adverse publicity in Canada – Justice Henderson’s home jurisdiction – and the impact on his future earnings.
Other agreed considerations included the issue of false arrest, false imprisonment, trespass to the person, trespass to his goods and to his home.
Not agreed was the issue of misfeasance by the officers. Mr. Schofield said there was no evidence Mr. Bridger recklessly or deliberately tried to harm Mr. Henderson. He had acted on advice from counsel from England,. Martin Polaine, whom he regarded as an expert.
Justice Cresswell said Mr. Polaine was not an expert on the law of the Cayman Islands; Mr. Bridger should have taken local advice.
The judge asked both sides to make every effort to come to an agreement about damages. The next issue would be a timetable so that the matter could be settled by the end of January.
Mr. Alberga said he would be happy to go along with that date. Appearing with him is Attorney Shaun McCann, assisted by Attorney Kristen Houghton.
What is an arrestable offence?
An arrestable offence is one for which a person may be arrested without a warrant. There are approximately 187 such offences contained in Schedule 1 of the Criminal Procedure Code – ranging from murder and rape to theft and disorderly conduct.
If an offence is not named in the Schedule, then it is arrestable without a warrant if punishable by more than six years imprisonment.
Misconduct in Public Office is not listed in the Schedule and it is punishable by no more than four years imprisonment and a fine. Therefore it is not an arrestable offence.