Judge forbids comment on FOI court decision

Correction

In this article in Monday’s Compass, our reporter incorrectly reported that the “Operation Tempura investigation led … to allegations of official misconduct” on the part of Chief Justice Anthony Smellie and Attorney General Sam Bulgin. No such allegations were ever made with respect to the chief justice or the attorney general in the Operation Tempura investigation at any time.


In a late-Friday end to last week’s two-day Freedom of Information judicial review in Grand Court, Lord Justice Moses delivered his verdict in chambers, then forbade either side to discuss it. 

 

Denying it was a “gag order,” Office of the Governor Staff Officer Tom Hines declined to discuss the judgment, saying “I can’t say anything,” offering only that Justice Moses “did not say it’s public yet. It’s not a gag order. You’ll understand when you see it.” 

After partially opening the hearing on Wednesday’s opening day for arguments about potential defamation, the visiting Lord Justice of England and Wales barred the public all day on Thursday and Friday, fearing “publication” of certain allegations to a general audience prior to his decision. He instructed the legal teams for both sides to remain mute on his verdict, delivered in a 90-minute reading. 

Neither Information Commissioner Jennifer Dilbert nor Deputy Information Commissioner Jan Liebaers would comment on Friday, citing Justice Moses’ proscription, although acknowledging the irony of the prohibition on disclosing the information. 

“The judge has given his judgment in camera. There are concerns that some of it might be confidential, so we have to play by the rules,” Mr. Liebaers said. 

After delivering his verdict, Lord Justice Moses left the courtroom, rushing for an evening London-bound flight, thwarting efforts by both legal teams to gain post-courtroom instructions. 

A transcript of the proceedings will be forwarded to London for the Lord Justice’s review, and is scheduled for public release locally in the near future, although no date has been set. 

The judgment is expected to be complicated, dealing with questions of interpretation of the Freedom of Information Law, specifically its sections 54 and 20, regarding defamation and public security. 

The hearing itself, the first challenge to Ms Dilbert and a test case for the 2007 law, was triggered by a Jan. 7 Grand Court application by former Governor Duncan Taylor for a judicial review, challenging an order by the Information Commissioner for release of hundreds of pages of documents comprising complaints, evaluations and official reports regarding the $10 million 2007-2009 Operation Tempura probe. Ultimately discredited and described in one document as “out of control,” the Tempura investigation – by a team of former Metropolitan Police officers led by Senior Investigating Officer Martin Bridger and advised by U.K. lawyer Martin Polaine – led, among other things, to allegations of corruption in the police service and official misconduct on the part of Grand Court Justice Alexander Henderson. 

None of the allegations were ever upheld, although Mr. Bridger arrested Justice Henderson in his home and searched his chambers in late 2008. The judge was quickly released, however, subsequently winning $1.275 million in a February 2009 wrongful arrest lawsuit. 

Under the Freedom of Information Law, Ms Dilbert ordered Governor Taylor to release documents relating to Mr. Bridger and Mr. Polaine, the allegations against top administration officials and a 185-page evaluation of those materials by Benjamin Aina, legal counsel to former Governor Stuart Jack – who launched Operation Tempura – and commissioned by Governor Taylor, Mr. Jack’s successor. 

However, deeming the allegations and complaints “without merit,” citing their potentially defamatory contents and fearing the materials could “prejudice the effective conduct of public affairs,” Governor Taylor denied Ms Dilbert’s order. 

In his Jan. 7 filing, the governor asked the court to send Ms Dilbert’s decision back to her office “to be reconsidered and decided in accordance with the findings of the court,” citing 10 “errors in law” in regard to Section 54 defamation clauses and another three in respect of Section 20’s restrictions citing “public affairs.” 

He called her Nov. 22 order “Wednesbury unreasonable,” a reference to a 1948 British case declaring a decision “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” 

In court, however, Ms Dilbert cited additional Section 54 clauses protecting her from defamation charges arising from documents released under the law. The clauses similarly protect any third party supplying those documents to Ms Dilbert. Speaking before Friday’s verdict, Ms Dilbert said she welcomed the hearing, clarifying lingering ambiguities and the role of the agency. 

“We welcome the hearing because it clears up certain issues with parts of the law, with what a Judicial Review means and how it is conducted,” she said, “It was bound to happen sooner or later, and we hope it will help. 

0
0

4 COMMENTS

  1. So much for Freedom of Information (FOI). The truth is that the FOI laws were only intended to provide access to information that does not show specific segments of our community in a negative light.

    * Thumbs-up if you think the public will get access to the full truth about Operation Tempura.

    * Thumbs-down if you think the verdict was a foregone conclusion and that the full truth will never be available to the public.

    0

    0
  2. Mack, sadly I suspect you are right on the second point. However, Lord Justice Moses is not someone who would have been easily swayed by political pressure so I could be wrong.

    Because the documents apparently reveal the extent to which Tempura strayed from not only their original remit but also the normal legal constraints on the RCIPS the decision to supress release of both the original complaint and the Aina report appears to have come from a very high level, way above Duncan Taylor.

    Release of both documents would also illustrate the extent to which records of Tempura were removed from the Cayman Islands and out of the accepted chain of custody. Again not something several high-ranking civil servants in the UK want in the public domain.

    Having said that I also think the ICO are at fault by trying to use this Judicial Review to get the FOI Law changed. That was a needless distraction.

    Before that ICO decision the issues were fairly simple –

    1. The material was not defamatory. Critical maybe but not libellous because if it was the writer had, under Cayman Islands Law, potentially committed a criminal offence and the Governor should have handed that matter over to RCIPS.

    2. Because of intense speculation about the contents it was absolutely in the public interest to release the documents to set the record straight. In that I am backed at a fairly high level in the UK but not high enough to overcome the objections.

    3. That the true reason for citing Section 20 was that the documents would reveal embarrassing lapses in oversight and control that could serve to discredit any future use of outside police resources.

    What we need to remember here is that what started out in September 2007 as a simple probe into an alleged leak within RCIPS has turned into a CI25million fiasco that is, six years on and without ever achieving any tangible results, still wasting resources.

    That waste is compounded by extent of the current cover up, which almost beggers belief. Even the Auditor General has refused to complete the 2009 audit on Tempura and Cealt despite clear evidence that crucial material was either altered or withheld from his predecessor.

    Thankfully, in a free society you cannot keep a lid on something like this for ever. One former member of the Tempura team has already revealed details of their activities to the UK press and I am sure others will follow.

    0

    0
  3. One the great mysteries has always been why Duncan Taylor splashed out all that money and commissioned the Aina report in the first place. It must have been obvious from day one that the complaint was not only malicious but based on material the authors had no lawful access to. In fact I am sure John Evans has made that point in the past.

    0

    0
  4. David, as I understand it the complaint was originally rejected by the FCO but they then had to give in to pressure from a rather well-connected British MP and investigate it. You could argue that it cost the people of the Cayman Islands a third-of-million dollars to satisfy his ego. Whatever, he has refused to talk to me about it.

    But was it malicious? Misguided or just plain daft might be better descriptions because it revealed that two former members of Tempura still had access to a lot of very confidential material long after their involvement in the investigation had been terminated. Why this revelation failed to sound alarm bells at the FCO or why Benjamin Aina never dumped the complaint at the start because of that fact are valid questions that remain unanswered.

    Realistically, in 2010 it was never the complaint that should have been investigated but the source (or sources) of the material that was used to compile it. Nearly four years down the road we now know (thanks to some of my other FOI applications) that a substantial amount of the Tempura documentation was removed from the Cayman Islands and attempts are finally being made to recover it. Best guess is that is was used to draft the complaint but why were no questions asked about this before?

    0

    0

Comments are closed.