Acting Commissioner of Police James Smith offered an unreserved apology to Justice Alexander Henderson for the distress caused by the judge’s unlawful arrest on 24 September and the unlawful searches of his home and office the same day.
Justice Henderson was not present at the time the apology was made last Tuesday in open court before Sir Peter Cresswell. Sir Peter, the visiting judge who previously ruled on the search warrant issue, returned this month to conduct a Judicial Review into the legality of the arrest.
For the first Judicial Review, in October, the police were represented by a private law firm. This time they were represented by members of the Legal Department, who agreed the judge’s arrest had been unlawful because the alleged offence of misconduct in public office is non-arrestable without a warrant.
In the words of Assistant Solicitor General Douglas Schofield, that agreement led to ‘stage two of this trial’ – how much money will be awarded to Justice Henderson because of the unlawful acts against him.
Solicitor General Cheryll Richards confirmed last Monday that Mr. Henderson will be compensated for his local legal costs.
Justice Cresswell asked when and Mr. Schofield advised that Finance Committee would not meet again until mid-January.
Ramon Alberga QC, who represents Justice Henderson, said he had sent the Legal Department a proposal as to what his client should receive in damages (money awarded to a person who has been injured by the wrongful conduct of another).
Advised that negotiations were underway, Justice Cresswell urged the two sides to reach a settlement. If they do not, he will hold a hearing on the matter, tentatively scheduled for 11 February.
Damages will be for both the unlawful arrest and the unlawful searches of Justice Henderson’s home and chambers.
No specific sum of money has been mentioned by anybody. However, Mr. Schofield at one point did observe, ‘We’re talking about a very large amount of public money’.
Later in proceedings, Justice Cresswell noted that his order will go against different people. He wondered if Mr. Alberga would agree to release Mr. Ebanks – referring to Carson Ebanks, the Justice of the Peace who issued the search warrants.
Mr. Alberga said he understood that Mr. Ebanks has indemnity to a certain amount.
The Acting Commissioner’s apology came after Justice Cresswell took almost 1½ hours to deliver his ruling on the unlawfulness of Justice Henderson’s arrest.
Mr. Smith attended because the court action was filed against Special Constable Martin Bridger, senior officer of the investigating team from the UK Metropolitan Police; Special Constable Richard Coy, who arrested Justice Henderson on instruction from Mr. Bridger; and the Acting Commissioner of Police, who is responsible for the Special Constabulary.
Mr. David George was Acting Commissioner at the time of Justice Henderson’s arrest. He has since left the island.
Mr. Smith alluded to this fact when he thanked Justice Cresswell for the opportunity to apologise. He explained he had been in Cayman three weeks, but within a week of arriving he understood the need for an apology. ‘This has been my first official opportunity to do it,’ he said.
‘As Acting Commissioner of the Royal Cayman Islands Police Service, I wish to offer my heartfelt unreserved apology on behalf of the Royal Cayman Islands Police Service to Justice Henderson for the personal distress, reputational damages and professional embarrassment caused to him and his family as a result of his unlawful arrest and the subsequent unlawful searches of both his home and work place. Martin Bridger and Richard Coy also wish to express sincere apologies to Justice Henderson and his family for the unlawful arrest and searches.’
An attempt to apologise on Monday was not accepted by Justice Cresswell because it did not contain acknowledgement the arrest was unlawful.
On Tuesday, Mr. Alberga said he had nothing to say at this stage about the apology. Proceedings continued so that a timetable could be agreed on for the damages question.
One issue to be taken into account is Justice Henderson’s potential loss of earnings. Mr. Alberga told the court the judge had 2 ½ years left on his contract in Cayman, after which he intended to return to his native Canada and resume practice there.
Another issue is the large amount of adverse publicity and professional embarrassment to Mr. Henderson. In his ruling, Justice Cresswell referred to the several press releases about the matter, but said there had been a most regrettable delay in acknowledging the arrest was unlawful.
Both sides are also to consider the civil wrongs committed by police: the false arrest; false imprisonment; trespass to person, goods and real property.
Mr. Alberga’s team added misfeasance in public office to the list, but Mr. Schofield argued that Mr. Bridger was acting on legal advice, which was wrong, but which he believed at the time of the judge’s arrest.
Justice Creswell said it was elementary that a police officer, before arresting a private citizen, should satisfy himself that the suspected offence is an arrestable offence. A police officer unfamiliar with the law of the Cayman Islands should, before arresting any citizen of the Cayman Islands, take advice from a lawyer qualified in the law of the Cayman Islands as to whether the suspected offence is an arrestable offence under the law of the Cayman Islands.
Mr. Schofield shared an e-mail he had received the previous night from Mr. Martin Polaine in the UK, who said he had advised Mr. Bridger the offence was arrestable. Mr. Polaine said he did not suggest that Mr. Bridger confirm this advice with a local lawyer.