A Crown counsel has told the Grand Court that Customs and Border Control officers cannot be held legally liable for executing a search warrant that resulted in a raid on Doctors Express to seize medical cannabinoid and vape products.
Instead, attorney Nigel Gayle stated that the warrant contained “defects” and Justice of the Peace Catherine O’Neil, who issued the warrant, should be solely liable in the judicial review before the court.
“There are defects with the warrant but the point here is that any additional duties or responsibilities that have been invoked on the warrant by the JP, which power she did not have, cannot bind the persons who executed it,” said Gayle.
He was responding to questions from Justice Robin McMillan, who is presiding over the judicial review hearing.
Gayle directed the judge to section 28 of the Criminal Procedure Code (2019 Revision), which requires that officers who recover items during a search take possession of the items in question and produce them in court. “There is no evidence that this was complied with,” he said, as the seized products were not directly taken to court.
He told the judge that O’Neil was within her legal jurisdiction to issue the warrant, but had caused it to become defective by failing to strike out the part of the warrant dealing with the section 28 requirements.
Gayle represents the director of Customs and Border Control, the commissioner of police, and the chief medical officer, who have all been named as respondents in the civil proceedings which have been brought by Doctors Express Limited.
The proceedings stem from a 2019 raid of the company’s premises, during which officers confiscated an undisclosed quantity of medicinal cannabinoid and vapes, which had been imported by Doctors Express in accordance with their licence and with prior approval from Customs and Border Control.
“Even though the warrant may have had defects, it was not unlawful,” said Gayle. “By executing the warrant as a Crown servant, the officers, [my clients] cannot be held liable, instead it would be a matter for whoever issued the warrant.”
When asked by McMillan if he understood that by advancing such an argument he was implying that all Justices of the Peace who sign warrants are liable, Gayle responded, “My Lord, I concur with you that they might be apprehensive, but at the end of the day … they applied to become a JP, and JP comes with … responsibilities.”
Attorney James Austin-Smith, who represents Doctors Express, earlier had told the court that O’Neil was “duped” into signing the warrant, which was requested by a senior CBC officer. He said the customs officers omitted several crucial details, such as the fact that the day before the warrant was issued, Doctors Express officials had voluntarily invited CBC officers to attend their facility and inspect the products.
“The case of Doctors Express is that customs officers deliberately and maliciously misled Ms. O’Neil into authorising the search warrant by withholding information, with the sole purpose of the procurement of the medical cannabinoid products which were properly obtained by my clients,” said Austin-Smith.
O’Neil is also named as a respondent in the proceedings for having signed off on the warrant as a JP. She is represented by Amelia Fosuhene, who has openly objected to Gayle’s argument. She is expected to make her representations Thursday when the matter resumes.
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