A police search warrant issued against a local woman last year was judged to be unlawful by a Cayman Islands Grand Court justice on Tuesday after Crown prosecutors said the matter should be dropped due to a “fatal defect”.
Essentially, the warrant was issued against Sandra Catron’s home and vehicle by a justice of the peace, who neither recorded what police said to him during the warrant application process or obtained an oath of truthfulness prior to the warrant application from the officers.
Justice Alex Henderson, hearing the case on Tuesday, said failing to record the statements of police was not a good practice and that applying for a warrant before a “judicial figure” without swearing an oath was a blatant violation of the Criminal Procedure Code.
“It sounds to me like [the police officer] dropped in, chatted with [the justice of the peace] a few minutes and got him to sign the warrant,” Mr. Justice Henderson said during a judicial review hearing on the case.
After consulting with Royal Cayman Islands Police Service Commissioner David Baines about the issue, Senior Crown Counsel Suzanne Bothwell stated that the oath-taking from the police officer was a “statutory precondition” under the criminal code.
“That has not been satisfied … in this case,” Ms Bothwell said. “The warrant must be held to be invalid on this particular ground.”
Justice Henderson scolded the Crown counsel during the Grand Court hearing, stating it was “blindingly obvious” that a warrant application given to a justice of the peace by a police officer must be done under oath.
“That’s the rule in every western democracy,” Mr. Henderson said.
The Grand Court judge also noted that there were other deficiencies in the warrant application process that would probably lead to a damages claim against the government by Ms Catron. Justice Henderson said he would like to the see the justice of the peace involved in this case, Louis M. Ebanks, absolved of any personal liability if that proved to be the case.
“The justice of the peace must have a clear understanding of the elements of the offence,” Mr. Henderson said Tuesday. “He must ask himself whether each element of that offence is present. It is not enough that a police officer subjectively believes an offence has been committed.”
Mr. Ebanks’ testimony in Grand Court last Friday indicated that he signed a search warrant that alleged Ms Catron had been involved in misuse of ICT network offences even though he did not appear to understand the offence described in the warrant.
About a month after approving the search warrant, the justice of the peace signed a notarised affidavit in which he stated police officers seeking the warrant provided him with absolutely no evidence regarding the offence Ms Catron had allegedly committed.
According to the affidavit from Mr. Ebanks: “… police never provide me with any evidence when having a warrant signed”.
Ms Catron said she was weighing whether to file a lawsuit against the government over the warrant issue, but said she hoped the matter could be settled amicably out of court.
Justice Henderson noted during the review of the search warrant process: “These failures were not deliberate. They were the result of, as Mr. Ebanks said, long-standing custom. Had the attorney general taken a real considered look the day after he received [the judicial review application on the search warrants], they probably would have given up at that stage.”
After the court hearing, Ms Catron said she thought there were “other issues” raised by this police investigation that needed to be addressed by the criminal justice system. She pointed out that in 2009, a search and arrest warrant was issued against Justice Henderson in connection with the Operation Tempura investigation that raised many of the same issues. Mr. Henderson’s arrest was determined to be unlawful and he received a $1.275 million settlement from the Cayman Islands government.
“No significant changes have been made since then,” she said. “These [search warrant applications] should go before the courts. The courts are there to put a buffer between the citizens of this country and the police.”