UK judge ‘bewildered’ by Operation Tempura

Justice questions decisions in case

A number of decisions made over the course of the ill-fated
Operation Tempura corruption investigation were questioned by visiting United
Kingdom Justice Sir Alan Moses during an open court hearing last week.

Mr. Justice Moses was brought in from the UK specifically to
hear arguments in a wrongful dismissal lawsuit filed by former Royal Cayman
Islands Police Commissioner Stuart Kernohan. The hearing was set to decide who
should be sued and for what amounts, if the lawsuit was to proceed.

The cause of action in the case was Mr. Kernohan’s
suspension in March 2008 and subsequent firing in November of that year. The
former top cop’s attorneys argued these actions were in breach of contract and
amounted to “misfeasance in public office” on the part of certain government
officials.

However, a number of long-debated issues arising out of the
Operation Tempura investigation that were not directly related to the lawsuit
came before Mr. Justice Moses, who admitted to being “generally bewildered” by
the case.

“Some very odd things went on,” Mr. Justice Moses said,
referring to the Tempura probe.

Covert operation

The handling of the initial allegation that led to the
two-year, $10 million probe caused the UK judge concern.

In mid-2007, a former Cayman Net News employee brought to
Mr. Kernohan accusations of a “corrupt relationship” existing between a top
Royal Cayman Islands Police commander and then-newspaper publisher Desmond
Seales.

This accusation was the subject of three internal meetings
with top police officials, as well as then-Cayman Islands Governor Stuart Jack
and Attorney General Sam Bulgin. Those meetings occurred on 27, 28 and 29
August, 2007, court records have revealed.

On 3 September, 2007 – as a result of what was decided in
those meetings – a “covert operation” was staged at the then-offices of the
Cayman Net News at the Alista Towers on North Sound Road.

The operation involved two former Net News employees, John
Evans and Lyndon Martin, entering the building and Mr. Evans entering the publisher’s
office.

“The curious aspect of this [3 September, 2007] entry is
that he [Mr. Evans] appears to have been going on two missions,” Mr. Justice
Moses said.

The first, the judge said, was to retrieve a “box of
documents” said to contain records proving that Mr. Seales had received
confidential police information from Deputy RCIPS Commissioner Anthony Ennis.

The second “mission” – apparently not related to the police
investigation – was a request from a local judge to look for evidence of
someone at the Net News writing disparaging letters about members of the
judiciary. Those letters had been published in the paper earlier in the year.

“Is it the government’s position that the people involved in
the first mission didn’t know anything about the second mission?” Mr. Justice
Moses asked.

Lead counsel for the government in Mr. Kernohan’s lawsuit,
Martin Griffiths, QC, stated that was correct and that government “accepted the
rulings” of the chief justice made earlier in relation to the matter.

No warrant

How Mr. Evans’ search had been authorised came to be the
primary focus of the Operation Tempura probe, once UK officers – led by Martin
Bridger – arrived in Cayman. Mr. Bridger’s team said it quickly disproved the
initial allegations against Mr. Ennis and Mr. Seales.

During last week’s lawsuit hearing, Mr. Justice Moses
wondered aloud why the “covert search” was needed at all.

“You’ve either got enough for a search warrant or you
haven’t,” the judge said. “Yet at the time nobody’s thinking about that.”

It was stated during the lawsuit hearing, as well as in
earlier court documents, that RCIPS commanders were not comfortable with the
level of evidence they had and required more proof before proceeding with a
search warrant.   

“The evidence at the time was not believed to be
sufficient,” said Andrew Hogarth, QC, the lead attorney for Mr. Kernohan in the
lawsuit.

“You can’t have people going in….saying ‘well you’ve got to
go in covertly and find the evidence’,” Mr. Justice Moses said. “If you’ve got
the documents then you don’t need a search warrant.”

Mr. Evans has previously said that it was never his
intention to take anything from Mr. Seales’ office. Rather, he has said he
would photograph any suspicious documents he found and turn those pictures over
to police for further review. As it happened, Mr. Evans’ search turned up
empty.

Mr. Evans was never charged with any crimes and then-RCIPS
Commissioner Kernohan and Chief Superintendent John Jones were exonerated in a
ruling written by Cayman Islands Chief Justice Anthony Smellie.

Judgment kept secret

That 4 April, 2008 ruling by the chief justice was kept a
secret from the two top police commanders as well as the general public until
it was made a public document on 25 September, 2008, the court was told.

Mr. Justice Moses said this was another curious aspect of
the Operation Tempura investigation.

In February 2008, Mr. Bridger as Tempura’s Senior
Investigating Officer, applied for search warrants against Mr. Jones and Mr.
Kernohan in relation to the investigation of the 3 September, 2007 Net News
search.

Those applications were turned down.

Mr. Bridger, assisted by then-special counsel to the
governor Andre Mon Desir, made a second application for search warrants against
the two RCIPS commanders that was heard on 13 March and 20 March, 2008.

On 27 March, 2008, Mr. Kernohan, Mr. Jones and Deputy RCIPS
Commissioner Rudolph Dixon were placed on required leave to “facilitate
investigations” in the matter.

But on 4 April, 2008, Chief Justice Smellie’s ruling said
there was not enough evidence against Messrs Jones and Kernohan to proceed with
a search warrant.

Ex-Governor lied

This ruling was not revealed to the police commanders until
early October, and – during a 27 March, 2008 press conference – then-Governor
Jack intimated that Mr. Kernohan was not under investigation, although he
clearly was at the time.

Mr. Hogarth argued this was damaging to Mr. Kernohan, but
Mr. Justice Moses disagreed.

“It certainly helps your client that the governor and
attorney general said he was not under investigation,” the judge said. “Where’s
the damage?”

“The truth is always better, my lord,” Mr. Hogarth said in
response.

“I’m not sure I buy that in this case,” Mr. Justice Moses
said.   

However, Mr. Justice Moses agreed it was questionable as to
why the authorities had not waited on the chief justice’s 4 April, 2008 ruling
before placing Mr. Kernohan on required leave.

The judge also pointed out that the second application for
the search warrants against Mr. Kernohan and Mr. Jones made a different
accusation – that the two commanders knew the initial allegations against the
Net News publisher and Deputy Commissioner Ennis were false before they pursued
the case.

“It’s a totally new and more serious accusation,” Mr.
Hogarth said. “And it is based on the same evidence.”

The UK judge also wondered why the former commissioner was
not reinstated if the government had decided not to appeal the search warrant
decision.

“Once the chief justice had decided… there was no basis that
[Mr. Kernohan] had committed any criminal offence, then it was incumbent upon
his employers to review again the justification for the investigation,” Mr.
Justice Moses said.

No appeal

Precisely why the government or the Operation Tempura
investigative team did not challenge the 4 April, 2008 decision on the search
warrants made by Chief Justice Smellie was unclear.

Mr. Justice Moses said during the lawsuit proceedings that
there may have been two separate grounds to do so: first, attorneys could claim
that “the decision was wrong” and second, that the chief justice “should never
have heard it anyway”.

Typically, Cayman Islands Grand Court justices do not hear
applications for search warrants.

Mr. Bridger’s attorney during the three-day lawsuit hearing,
Anthony Akiwumi, told the court that rulings of this kind made by the chief
justice were not appealable to the Cayman Islands Court of Appeal.

There was no further discussion of the matter before the
court.

JP not shown ruling

Chief Justice Smellie’s 4 April, 2008 ruling on the search
warrants against Mr. Kernohan and Mr. Jones was also not shown to a local
justice of the peace who later issued a warrant for the arrest of Cayman
Islands Grand Court Justice Alex Henderson.

The arrest warrant in that case alleged that Mr. Justice Henderson
had committed the common law offence of misconduct in a public office by asking
Mr. Evans to look for evidence of disparaging letters written about members of
the judiciary during his 3 September, 2007 search at the Cayman Net News
offices.

Mr. Justice Henderson was never charged with any crime and
it was later determined that he was wrongfully arrested by the Operation
Tempura team.

“There are a whole lot of curious echoes in the failure to
tell [the justice of the peace] about the rulings of the chief justice in
February and April,” Mr. Justice Moses said. “The question of not disclosing
what the chief justice has said about it has an ‘unhappy echo’.”

Who was in charge?

Questions about who was directly in charge of the Operation
Tempura investigation were also bandied about during the lawsuit hearing.

“I don’t know who [Mr.] Bridger was reporting to…it’s just
completely sort of opaque at the moment,” Mr. Justice Moses said.

The question was important in determining who would be sued in
Mr. Kernohan’s claim.

For instance, if former Governor Jack had directed Mr.
Bridger and the Operation Tempura team to do things outside their legal powers
in investigating the case, Mr. Kernohan’s team may indeed have had a claim for
“official misfeasance” against the governor.

The UK judge said the lawsuit offered no specifics on that
claim, however.

Mr. Hogarth, on behalf of Mr. Kernohan, said that both Mr.
Jack and Attorney General Bulgin participated in and knew of discussions about the
Cayman Net News office search prior to it occurring.

“The governor is in charge of the police in the Cayman
Islands,” Mr. Hogarth said.

“Oh, this is hopeless,” the judge responded.

“There is nothing capable of being considered as out with
the powers of the governor,” Mr. Justice Moses said, referring to Mr. Jack’s
actions. “There is everything to be said that his restraint in not interfering
with the investigation was the proper constitutional position.”

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