Judge, not governor, 
should oversee wiretapping

Your editorial in the issue of the Compass of Oct. 24, 2013, headed “Protecting our priceless right of privacy” was both timely and appropriate and especially so since this question of tapping telephones, hacking into computers, and intercepting post and e-mails is now giving rise to international disputes, discord and problems between nations and is therefore very topical. 

Her Excellency the Governor, Mrs. Helen Kilpatrick, in a statement also published in the issue of the Compass dated Oct. 24, 2013, expressed her desire to quell public concern about police wiretaps and stated that she was “comfortable with the systems that were in place” and would be put in place to protect any unwarranted interference with the priceless and constitutional right of individuals to have their private life, their home and their correspondence respected by the government. Let me say at the outset that I recognize and fully accept that in certain cases it is obviously necessary and appropriate for there to be interception of private communications and for privacy to be invaded but I have always thought and still think that there would be greater public trust in the procedure to be instituted to achieve this if the original authorization to do so and to proceed with these very intrusive methods was given to a completely independent person such as a member of our Judiciary. 

In considering this matter and in reaching my conclusion on the question of by whom it would be best for the initial authorization to be given for these intrusions to be made by the security services such as the police, when it is necessary for this to be done I have entirely disregarded the question of the personalities that may be involved and approached this issue as a matter of principle only. 

The person who happens to hold the Office of Governor of the Cayman Islands is given the special responsibility under section 55 of our Constitution to be in sole charge of our police force and of the appointment of the holder of the Office of Police Commissioner. 

By virtue of being given these special responsibilities the governor ought to develop a very close personal relationship with the commissioner of police at the material time and in fact always does so. A short time ago our present Prime Minister the Hon. Alden McLaughlin, whilst he was Leader of the Opposition labeled the relationship between these two office holders as “a very cozy relationship” and the description was an absolutely appropriate one. He was not being critical of the relationship but only describing what was in fact its nature. The fact of the matter is that ultimate responsibility for the police rests with the governor and we see this often being manifested in the governor having to account for strengths and failings of the police in the fight against crime. Being so closely involved, the natural perception is that the governor will be all too ready to grant requests for invasive measures. 

In view of this, the question that arises for consideration is this. Should permission to intercept information of a private individual and to invade his privacy be originally initiated by the holder of the Office of Governor on an application coming to him from the holder of the Office of the Commissioner of Police? And should the process allow the issue of a warrant by the governor to the commissioner of police who would then be able to tell a police service employee to execute it? My answer to these questions is in the negative. 

It does not seem to me to be right or appropriate in view of the very close relationship that is likely to exist between the governor and the police commissioner at the material time for the governor to be the person to initiate this very invasive action. 

Giving the governor the right to do so will not engender as much confidence and public trust as would be the case if the process was initiated by a member of the judiciary who is completely independent and not so closely connected with the police as is the governor. Furthermore, the proposed appointment of an “oversight committee” by the governor and chaired by a justice of the peace to oversee the execution of a warrant issued by the governor at the request of the police commissioner is not likely to generate much public confidence in the process. It is likely to give rise to apprehension and perception that the oversight is tainted by collusion and will be something of a farce and as ineffective as was the blue ribbon oversight committee appointed by Governor Jack to oversee matters in connection with Operation Tempura of which both he and Mr. Martin Bridger were together in control. Operation Tempura was a great fiasco and cost the Cayman Islands millions of dollars. 

In conclusion and in connection with both the initiation of the process and the oversight thereof, I should like to refer to two items that recently appeared in the U.K. news media. One in the Daily Telegraph Newspaper of Sep. 30, 2013, and the other in the Times Newspaper of Oct. 2, 2013. The first publication is a commentary on an address given By Dame Stella Rimington, the former experienced head of MIS at the Henley Literary Festival where she said inter alia: 

“the main issue which needs to be addressed is the question of intrusion by our security services into everybody’s lives which the likes of Assange and Snowden, two self seeking twerps, use as an excuse to share secrets. It is very important for our intelligence services to have a kind of oversight which people have confidence in, so that we can be quite sure that in giving them these powers we know that they are being properly supervised in the way they are using them. It may be that it is now time again to look at the oversight as it may be that we need something more complex to convince the nation that our intelligence services are actually acting on their behalf and not against them” 

The other publication in the Times Newspaper is even more pointed in support of the position I have been advocating in this letter. It is a letter from Mr. David Rickford, a former Legal Director of the UK Intelligence Agencies. He says, inter alia, in his letter to the Times Newspaper as follows: 

“Dame Stella Rimington is right that the covert intrusive powers of the U.K. intelligence agencies and law enforcement agencies require greater oversight. 

However the problem also lies in the executive’s responsibility for approving these agencies’ eavesdropping, electric surveillance and informant operations. As long as ministers control these operations, the public will believe that there is an unhealthy, seamless relationship between those ministries and the agencies they supervise. 

The executive must leave the authorization of these highly intrusive methods to the Judiciary. This means that application must be made direct to the Judiciary for authority to eavesdrop, and intercept telephone electronic communications. Judicial supervision reduces the risk or perception of collusion and it also limits the room for accusations of political interference. The concept of judicial authority for intrusive covert surveillance is not new. Many jurisdictions have it and appoint judges for the task. 

I have worked under the system, and I was relieved not only to have these balances ascertained judicially but also at trial. It is a system I would wish to see in all the U.K. agencies’ covert targeted operations.” 

These are the views of an experienced former legal director of intelligence and I commend them to Her Excellency and to our lawmakers. They should arrange for the initial authorization of these highly intrusive methods to be left to the judiciary instead of to the governor. To do so will help to quell public concern and create public confidence and trust. 

Her Excellency has recently stated most graciously that our judiciary has a great reputation internationally and this reputation is another good reason why the initial authorization for intrus
ion and interception should be given to a member of our judiciary and not to our governor. 

 

Ramon D. Alberga Q.C. 

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