UK judge ‘bewildered’ by Operation Tempura

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. 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. Moses, who admitted to being “generally bewildered” by the case.  

“Some very odd things went on,” Mr. 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 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 offices of the Cayman Net News, which were at the Alista Towers on North Sound Road at the time.  

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. 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. 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. 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.  

Mr. Moses didn’t agree with the method. 

“You can’t have people going in… saying ‘well you’ve got to go in covertly and find the evidence’,” Mr. 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. 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, Mr. 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. 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. Moses said.  

However, Mr. 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. 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 Mr. Smellie was unclear.  

Mr. 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 

Mr. 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. 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. 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. 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. 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. 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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5 COMMENTS

  1. Any visiting UK judge reviewing this entire situation would be bewildered by this entire set of circumstances, given the clear and unambigious laws that exist in Britain.

    Justice Moses is a well-noted anti-corruption judge in the UK and has seen some notable cases of government corruption brought before him but nothing he would have seen would have prepared him for the facts that have ben revealed to him so far.

    This Caycompass report is the most detailed summary that I have ever read on the circumstances that led to Operation Tempura, the operation itself and the resulting consequences that are still on-going.

    I can now piece together exactly what happened and assuredly, had any of this ever happened in the United Kingdom, the people facing the force of the law would be individuals much higher up the chain of command than either Stuart Kernohan or Martin Bridger.

    It is now abundantly clear to me why the reports on Operation Tempura have remained hidden by both the Commissioner of Police in the Cayman Islands and the FCO.

    There are cetain individuals who are extremely lucky not to be in jail for their actions in this affair and those individuals well know that if any of this had taken place in the United Kingdom, they certainly would be.

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  2. I’m sure this is an accurate record by the Caymanian Compass of what was said during the proceedings but just to put the record straight.

    The 3 September 2007 search was a follow up to an earlier search, conducted by Lyndon Martin on (if my memory serves me right) 30 August. That had to aborted after the office’s alarm was triggered. This earlier search is rarely reported but it resulted in attempts by Operation Tempura to prosecute Lyndon as a trespasser who had entered the office with intent to steal therein, charges that were later dropped.

    My belief is that this earlier search was planned during at least one of the meetings mentioned above that were held over 27-29 August 2007.

    On 3 September I set up the second search with John Jones, originally stating I would enter the office at 1am on 4 September. Because of concerns about who was being told about the search I then changed the plan and entered the building through the back entrance as soon as the last staff had left, just after 9pm. Unfortunately, opening the back door triggered the alarm so I locked up and left the area calling John Jones to tell him what had happened.

    About 20 minutes later I went back to find that the alarm has automatically shut down, I called Lyndon and when he turned up we discussed what had happened before I went back into the building through the front door and conducted the search.

    Next morning I was debriefed at the George Town Police station by John Jones.

    The additional aspect to the search, seeking any copies of a series of letters attacking the judiciary, was conducted on my own initiative – it was not mentioned to anyone prior to the search nor was it requested. However, it was discussed with John Jones the next day and he indicated that the RCIPS had already been asked to investigate the letters but it was felt that the contents were no worse than comments that might appear in the UK press.

    These letters, which were later wrongly attributed to Justice Priya Levers, had been a long-standing problem in the office because it was clear they were coming from a single source, probably within the company, not from genuine members of the public and the contents were defamatory. I believed at the time that their publication was damaging the paper’s reputation and that I knew who the source was, an opinion later accepted by both sides in the Levers’ tribunal. I was very keen to find evidence that might discredit the individual concerned.

    The only direct instructions I received before the search were to look for the box of documents and that request came from the RCIPS.

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  3. And, even under UK law, had those letters been found, they could have and probably would have been used to by-pass the ECHR Article 10 Freedon of Expression statutes by using the exemption against being protected from undermining the integrity and authority of the judiciary.

    That evidence would have been used to prosecute Desmond Seales and Cayman Net News for dafamatory material against the Cayman Islands judiciary, no doubt, had they been found by yourself.

    Its safe to assume that when Stuart Jack and the Attorney General and senior police officers met to plan this authorised search, they were only dealing with a sitaution that threatened national security in the suspicion of a corrupt police/media relationship.

    Under the same Article 10 exemptions, they were clearly in their right to plan this operation using civilian assistance…that is the law in the UK as well.

    It was when Governor Stuart Jack discovered that the authorised search had had another purpose or element introduced into it by yourself, that he called in Operation Tempura; he said so very clearly that the investigation had been called in to protect the freedom of the press in Cayman.

    He had been misled into authorisation of the civilian-assited search under false information; his only option was to call in an independent investigation.

    This much is very clear to me, despite your expected objections and denials.

    So many smokescreens have been created and accusations made against him surrounding this entire incident that it is only to readers like my self who has a personal interest in the matter and have followed it closely, that its all being pieced together now.

    Your detailing of the actual events only add to the knowledge that will now be forthcoming in the upcoming Kernohan case and all the others that will follow it.

    Nothing can remain hidden from here on and for that, I am quite happy.

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  4. Firey,
    The truth is now being told. We all know who the disgraceful culprits are….. wait for the resignations and streams of letters of apologies that maybe forthcoming with a diplomatic genre in attempt to evade any responsibility for their willful actions.

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  5. Dubai

    Judge Moses has noted the testimonies and evidence before him, of that you can be certain.

    He is probably the most notable anti-corruption judge in Britan with a reputation for dealing fairly and not being intimidated or influenced by government or corporate power.

    If he feels it necessary to file a report on this incident with the Privy Council based on his hearing of the Kernohan case, some very important people could find themselves in some very deep trouble.

    I don’t believe that it was a coincidence that this particular judge was chosen to conduct this hearing but that is just my personal opinion.

    In any event, the cat is out of the bag now so they might as well quit covering up the evidence and reports.

    This all had to come out one day and history will prove that Stuart Jack is not the most guilty party in this entire affair as we all should be able to surmise by now.

    As for resignations and apologies, I wouldn’t hold my breath if I were you.

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