A legal drama that began in 2019 with a police and customs raid on Doctors Express took a new twist this week when a judge ordered the Office of the Director of Public Prosecutions to disclose how it decided not to prosecute individuals who were party to the unlawful raid.
A few days after Doctors Express advertised in 2019 that it was prescribing and selling medical cannabis, for which it had a licence, officers raided its urgent care centre in Godfrey Nixon Road in George Town and seized its products.
A judge in 2021 ruled that the raid was unlawful, that the search warrant that led to the raid should be quashed and that Dr. John Lee, who was chief medical officer at the time, had acted improperly by issuing a “cease notice” banning vaporisable cannabinoid products.
This led Cayman Islands Urgent Care Ltd., trading as Doctors Express, Kaiser Day Cannaceuticals Ltd. and Kaiser Day Pharmaceuticals Ltd. to call for the Office of the Director of Public Prosecutions to lay charges against the individuals whose actions had led to the raid and seizure of Doctors Express’s products.
When the DPP refused to do so, Doctors Express and the other applicants sought leave to bring a judicial review to determine why no prosecutions were made.
During that process, there was a hearing regarding the Office of the Director of Public Prosecutions’ failure to disclose documentation regarding legal advice it was given by external leading counsel on whether to bring a prosecution, as well the instructions asking for that advice.
Justice Jalil Asif, in a 5 Aug. judgment, ruled that this documentation should be disclosed.
Welcoming the ruling, director of Doctors Express Samuel Banks, said in a statement that he was grateful the Grand Court had “rejected the attempts of the Government’s lawyers to suppress the real reasoning behind their decision not to bring charges against those who unlawfully misused the powers of their public offices to target Doctors Express and Kaiser Day”.
He added, “We have had to fight the Government at every stage since the Chief Medical Officer, Customs and the RCIPS targeted our business in 2019. As a medical facility, we take seriously our commitment to act in the best interests of the public we serve and we expect the Government to share that same commitment.”
Banks said, over the last five years, government had “wasted vast sums of money from the public purse attempting to defend the indefensible and illegal actions of their agents”, noting that “at least six Cayman government lawyers and four London lawyers, including three KCs, have been instructed by the Government and the DPP to resist our efforts to obtain justice”.
Call for prosecutions
Doctors Express and the pharmaceutical companies had sought a judicial review against the director of HM Customs, Justice of the Peace Catherine O’Neil, the commissioner of police, and former Chief Medical Officer Lee, all of whom were presumed to have played a role in the lead-up to the raid.
The applicants argued that criminal proceedings should have been brought against the individuals involved, following evidence and testimonies that had been part of the judicial review Doctors Express had brought in 2020. That judicial review addressed the legality of the search of the premises and the cease-and-desist order, issued by Lee, into the sale of medical cannabinoids and vapes at the urgent care facility.
Doctors Express held certificates and licences that allowed it to lawfully import, possess and prescribe medical cannabinoids, the court had heard.
The lead-up to the raid
Shortly after the company launched an advertising campaign in 2019 via text messages, Customs and Border Control officers conducted an inquiry, during which they met with the registrar of the Health Practice Commission. The registrar sent an email to Lee asking him to send a cease notice about medical cannabinoid vapes to all medical practitioners.
The registrar, Asif noted in his summary of the case, also stated that Customs and Border Control had asked the Health Practice Commission board to request that the products in question be seized until a decision had been reached.
Lee prepared a cease notice on 14 Sept. 2019, which noted “serious” concerns over the growth in prescribing cannabinoids in Cayman and the lack of sufficient evidence surrounding safety and efficacy of vaporising cannabinoids. The notice ordered all healthcare practitioners to cease and desist from selling any vaporised cannabinoids.
At the same time, Lee also wrote to the chairperson of the Health Practice Commission, stating that he thought it was “highly likely that vaporising cannabinoids is not more injurious to health than smoking marijuana”, the court had heard.
In that email, Lee had added that “the juxtaposition of the worldwide focus on vaping deaths at the same time as the Doctors Express flagrant use of blanket advertising was unfortunate for Doctors Express and gives us a chance to rein in this widespread use of cannabinoids in the face of guidance to the contrary”.
Justice of the Peace Catherine O’Neil, on the request of Customs and Border Control, issued a search warrant under the Misuse of Drugs Act on 17 Sept., and Doctors Express was raided that day. At some point during the raid, the cease notice was sent to Doctors Express, the court heard.
It was later determined that O’Neil was not told that Doctors Express had a licence to import, possess and prescribe medical cannabinoids or that the text advertisements had pre-dated the cease notice.
Doctors Express’s legal team sought a declaration that the cease notice and the raid were both unlawful, as well as the return of the seized products, and costs and damages. They claimed Lee did not have the power to issue the cease notice, and notwithstanding that, his decision to issue the notice was “unreasonable, unnecessary, disproportionate and procedurally unfair”.
Following a trial, Justice Robin McMillan determined that Lee did not have the power to issue the cease notice, and that there was evidence to show that he, despite what he wrote in the notice, knew there was no health risk to justify the issuing of that notice.
McMillan noted that there were a “significant number of formal errors and deficiencies” in obtaining the search warrant, which he quashed.
Following McMillan’s ruling, Doctors Express, on 10 Feb. 2021, wrote to the DPP to request that criminal charges be brought against the individuals involved. Doctors Express was informed later that month that the DPP did not intend to bring charges, leading to the filing of an application on 4 May for judicial review into the DPP’s decision not to prosecute.
‘Prudent’ legal advice
On that same day, Assistant Director of Public Prosecutions Toyin Salako wrote to Doctors Express’s lawyers to tell them that the then acting DPP had decided it would be “prudent” to obtain leading counsel’s advice on the decision whether to lay charges, noted Asif in his summary of the case. That advice stated that there had not been sufficient evidence and reasonable prospect of conviction to bring criminal charges.
Asif noted, “It is common ground that no separate contemporaneous note or record of the Acting DPP’s decision-making process on or around 10 February 2022 has been disclosed.”
Later in May 2022, the Attorney General’s Chambers, representing the DPP, sent a letter to Doctors Express setting out the materials and questions that the DPP had considered when coming to the decision not to prosecute.
On 5 July 2022, Doctors Express specifically requested a copy of leading counsel’s advice and instructions upon which to the DPP based its decision, and on 12 July the DPP refused to do so, Asif noted.
The judge, in his ruling, noted that no record of the decision-making process within the DPP’s office had been disclosed, and that the closest thing to a disclosure of that process was the 20 May 2022 letter from the Attorney General’s Office, which was written two months after the office of the DPP declared it would not be prosecuting the individuals. That letter did not make it clear whether the decision had been taken by the director of public prosecutions or the acting director at the time.
“The advice of leading counsel and the instructions to leading counsel which are sought patently exist – there is explicit reference to them in the Respondent’s own correspondence and submission,” the judge said.
He added that it would be “difficult, if not impossible” to determine the judicial review claim without that material.
He stated that if there were to be a cross-examination of a witness in the judicial review, it would be “bizarre” that Doctors Express counsel “would be forced to cross-examine the person who was Acting DPP in February 2022 about the advice received from leading counsel and the instructions to leading counsel, whilst being deprived of sight of those documents”.
He therefore ordered the DPP to disclose the advice from leading counsel and the instructions to leading counsel that led to that advice.
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