Baines: Gov’s report ‘contradicts’ Tempura rulings

In a statement objecting to the public release of a lengthy evaluation involving the Operation Tempura police corruption investigation commissioned by the governor’s office, Royal Cayman Islands Police Commissioner David Baines noted that evaluation seems “contradictory” to earlier legal decisions made in the Tempura case.

The comments made by Mr. Baines form part of a 52-page judgment released Monday by visiting Grand Court Judge Timothy Owen. The ruling served to block – at least for the present – the release of a 2010 complaint made by Operation Tempura’s former senior investigating officer, Martin Bridger, and the 185-page evaluation of that complaint completed in 2011 by U.K.-based Constitutional Silk Ben Aina, QC.

It was revealed in court records that Mr. Baines, who as RCIPS commissioner was placed in charge of the remnants of the Operation Tempura investigation when he arrived in Cayman in mid-2009, had reviewed the evaluation, which was commissioned by then-Governor Duncan Taylor at a cost of some $335,000 to the Cayman Islands.

The “Aina report” – as Mr. Baines refers to it – was done at the request of Governor Taylor to “assist him in the discharge of his constitutional duty to determine whether [Mr. Bridger’s] complaint of misbehavior against a member of the judiciary should be referred to the Judicial and Legal Services Commission.”

According to Mr. Justice Owen’s ruling, Mr. Baines, having read the full report, made the following observations:

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“… I can state that the publication of the Aina report would interfere with any investigation that [was] launched, not least as its contents cover some of the issues [which are the] subject of controversy, in addition to being contradictory in their position to the earlier legal decisions pronounced by the Director of Public Prosecutions, Chief Justice and others.

“The release would, I consider, be contrary to the rule of natural justice as it would enable one version of events relating to the subject matter and deny those subject of and named in the report an opportunity to counter the version of events and defend themselves. It should be noted that some named persons have been privy to the contents of the report, the majority of individuals subject to comment have not been canvassed or made aware of the contents.”

Tempura decisions

The specific “decisions” made by the Director of Public Prosecutions – an office that was constitutionally created only toward the very end of Operation Tempura’s existence as an active investigation – and by Cayman Islands Chief Justice Anthony Smellie, which may have been contradicted in the Aina report, were not discussed in the court documents.

However, a number of questions have been raised over the years in various court settings related to judgments made in the Operation Tempura case.

Admitting in 2011 during an open court hearing that he was “bewildered” by all the twists and turns Tempura had taken, former U.K. High Court Judge Sir Alan Moses raised some questions about what had occurred during the 2007-2009 corruption investigation.

Justice Moses, for instance, questioned why an April 4, 2008 ruling by Chief Justice Smellie, which quashed requests for search warrants against two senior RCIPS commanders, was kept a secret from both men for nearly five months.

In February 2008, Mr. Bridger, as Tempura’s senior investigating officer, applied for search warrants against former RCIPS Superintendent John Jones and former RCIPS Commissioner Stuart Kernohan in relation to Tempura’s investigation of a Sept. 3, 2007 police-authorized search at the offices of the Cayman Net News newspaper. Those search warrant 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 March 13 and March 20, 2008. On March 27, 2008, Mr. Kernohan, Mr. Jones and then-Deputy RCIPS Commissioner Rudolph Dixon were placed on required leave to facilitate investigations in the matter.

A week later, Justice Smellie’s ruling said there was not enough evidence against Messrs Jones and Kernohan to proceed with a search warrant, much less a criminal prosecution over the Net News search.

Why the government or the Operation Tempura investigative team never challenged the chief justice’s April 4, 2008 decision on the search warrants application has never been made clear.

Justice Moses said during the 2011 court proceedings that there may have been two separate grounds to challenge the chief justice’s decision: 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 initial applications for search warrants. Mr. Bridger’s attorney during the 2011 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.

The burglar’

In a separate court ruling by Cayman Islands Grand Court Justice Richard Williams relative to a separate matter in the Operation Tempura case in November 2013, further issues about the Sept. 3, 2007 Net News office entry were raised.

In his ruling, Justice Williams stated: “On Sept. 3, 2007 [former Cayman Net News journalist John] Evans unsuccessfully searched the office of the Cayman Net News [publisher] for a box file which he thought contained [documents]. [The Cayman Islands attorney general] contends that the initial focus of the operation was the investigation of an allegedly corrupt relationship between [RCIPS] Deputy Commissioner [Anthony] Ennis and [Net News publisher Desmond] Seales.

“Mr. Bridger contends that, following his appointment as the senior investigating officer, he was greatly concerned with investigating the legality of the entry into and search of these business premises, which he says was organized by Mr. Kernohan, Chief Superintendent Jones and others.

“Mr. Bridger is of the view that, if police reporting procedures had been properly followed, it would have been clear that the suspicions which led to the search were baseless. Mr. Bridger states the view that the search of such journalistic business premises in England would be regarded as being plainly unlawful as a matter of public law and tortious.”

The subsequent investigation into the Net News office entry and the actions of Mr. Kernohan and Mr. Jones in authorizing the search formed the basis of what became known as Operation Tempura.

However, neither police commander nor the man involved in what was described by Mr. Bridger as the “unlawful search,” Mr. Evans, were ever arrested or charged with a crime.

“If Bridger believed [the entry was unlawful] he should have charged me, not retained me as a witness,” Mr. Evans said in response to the statements contained in the Justice Williams judgment of 2013.

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  1. The most disturbing part of this is the statement, It should be noted that some named persons have been privy to the contents of the report, the majority of individuals subject to comment have not been canvassed or made aware of the contents.

    I’ve been arguing for over two years that the main reason the FCO want this kept quiet is because the investigation breached ECHR article 6 (right to fair trial) in that people were investigated without ever being informed they were under scrutiny. I’d say this comment confirms that was the case.

    In fact Commissioner Baines seems to concede it in the first part of that statement when he refers to denying, those subject of and named in the report an opportunity to counter the version of events and defend themselves. Isn’t that exactly what letting Aina investigate the Polaine/Bridger complaint behind their backs did?

    It’s clearly now getting to the point where this mess has moved beyond simple FOI issues. I believe that, following Commissioner Baines’ comments, everyone who was named in both the original complaint and the Aina report is entitled to be told exactly what they were accused of and what the outcome of the investigation was.