A judge has granted Doctors Express permission to apply for a judicial review into the Director of Public Prosecutions’ decision not to prosecute former Chief Medical Officer Dr. John Lee and others after Customs carried out an unlawful raid and seizure of medical cannabis products at its premises in 2019.
Doctors Express applied for leave to bring a judicial review into the DPP’s failure to bring charges against Lee and Customs Officer Holly Schneider for “perjury, attempting to pervert the course of justice, misfeasance in public office or other offences”, in relation to testimony they gave at an earlier judicial review into the legality of the search of the medical facility.
They also asked for leave to review the DPP’s decision not to prosecute unnamed senior Customs officers who had instructed Schneider, as well as the DPP’s refusal to give reasons why no prosecutions were made in the case.
The applicants argued that criminal proceedings should have been brought against the individuals following evidence and testimonies that had been part of a judicial review Doctors Express brought in 2020 in relation to the search and a cease and desist order, issued by Lee, into the sale of medical cannabinoids and vapes at the urgent care facility.
Doctors Express was legally licensed to import cannabis for medical use and there was no reason to suspect it had broken any law when Customs officers, accompanied by police, raided the premises in September 2019, Justice Robin McMillan stated in his ruling on that 2020 judicial review.
McMillan found that Lee had acted improperly and outside of his powers when he issued the cease notice banning vapourisable cannabis, and questioned his sworn testimony that he had acted out of concern for public health when he issued the notice banning medical cannabis vapes.
This evidence was contradicted by an email, presented to the court, in which Lee suggested to senior public health officials that he did not believe the vapes being advertised by Doctors Express posed a specific risk to public health.
“The CMO knew that in relation to the applicants there was no health risk to justify issuing the cease notice. Therefore, other than to target the applicants, there was no reason to issue the cease notice,” McMillan stated in his ruling.
Lee maintained during the court proceedings that he had acted out of legitimate concern for public health.
‘Arguable case’
Justice Cheryll Richards, in a written ruling dated 16 Feb. on the more recent application for a judicial review, determined that the applicants – Cayman Islands Urgent Care Ltd. (operating as Doctors Express), Kaiser Day Cannaceuticals Ltd., and Kaiser Day Pharmaceuticals Ltd. – had an “arguable case”.
Richards referred to McMillan’s judgment, saying he had found that the cease and desist notice and the search of Doctors Express were unlawful.
She noted, “The Court found that the Cease Notice had not been issued because of the serious health risks of vaporisable cannabinoid products and that the search warrant had been sought and obtained for an improper purpose. The learned Judge made findings of fact as to inconsistencies in the evidence of the witnesses, Dr. Lee and CO Schneider and ultimately as to their veracity and motives.”
Following McMillan’s ruling, Doctors Express complained to the Anti-Corruption Commission about possible criminal conduct by individuals in relation to the search, Richards said. The commission carried out an investigation and submitted a file to the Office of the Director of Public Prosecutions. On 28 Feb. 2022, the commission advised the applicants that, following a review of the evidence, the DPP had recommended that no charges be brought against any person in respect of the complaint made.
She stressed that her ruling did not mean that the assertions made in the judicial review application were true. “They may or may not be,” she said.
She also noted that her ruling was not a decision on whether a judicial review should be granted, nor whether anyone ought to be prosecuted.
“This is a decision as to whether on the face of the papers presented there is an arguable case on any ground, such that leave to apply for judicial review ought to be granted,” the judge said.
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