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.
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.
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.
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.
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.”