R v Ebanks, ex p Henderson

• Jurisdiction: Cayman Islands
• Court: Grand Court (Cayman Islands)
• Judge: (Cresswell, Ag. J.)
• Judgment Date: 29 October 2008
• Date: 29 October 2008

R.

and

EBANKS, EX PARTE HENDERSON

(Cresswell, Ag. J.)

Grand Court

Police-entry, search and seizure-search warrants-full and frank disclosure required on ex parte application-quashed if failure and unjust in circumstances to allow to stand-applicant to disclose all material facts (e.g. elements of alleged offence and earlier relevant judgments on same matter) including any opposing matters-experience of tribunal relevant to scope of duty, e.g. greater disclosure to J.P. than to court

Police-entry, search and seizure-search warrants-independence of court/J.P. issuing warrant important-application to J.P. out of court hours to be made at home or offices-warrant not to be issued at police station without legal advice, as independence compromised and contrary to good practice

Held, granting the relief sought:

(1) The investigating officers applying for the search warrants had failed to disclose and had misrepresented legal principles and material facts to the respondent. Given all the circumstances, it was not just that the warrants should stand and the relief sought would therefore be granted, including an inquiry as to damages. On an ex parte application for a search warrant, a police officer had a duty (analogous to the duty on applicants for civil ex parte orders in the courts) to give the fullest assistance to the court or Justice of the Peace by disclosing all material facts and drawing attention to anything militating against the issue of the warrant. The experience of the tribunal and the circumstances in which an application was made were relevant to the extent of the duty to give full assistance, e.g. it might be necessary to disclose to a Justice of the Peace a material matter which a Grand Court judge would be expected to know. The misrepresentation and non-disclosure in the present case included:

(a) the statement that the applicant knew or had reason to believe that the published letters could not amount to contempt of court, which was incorrect and misleading as the investigating officers were apparently unaware of the offence under s.27 of the Grand Court Law (2008 Revision) of scandalising the court;

(b) the statement that the applicant had repeatedly refused a witness interview, implying that he had simply refused to divulge information, which was incomplete and misleading. Correspondence including his offer to answer questions in writing should also have been disclosed;

(c) the failure to provide an accurate summary of the ingredients of the offence of misconduct in public office contrary to common law-i.e. a public officer acting as such wilfully neglecting to perform his duty and/or wilfully misconducting himself to such a degree as to amount to an abuse of the public”s trust without reasonable excuse or justification. The respondent had to know the ingredients of the offence in question and it would not have been sufficient merely for him to know that it was a criminal offence in the Cayman Islands;

(d) the failure to provide a copy or summary of the Chief Justice”s rulings in In re Operation Tempura on related applications for search warrants, which were relevant to the present case and included statements of the legal principles regarding the role of a tribunal to which an application for a search warrant was made and the conditions precedent for the issue of a warrant. The fact that a police officer (or any other person) disagreed with a judicial decision would not justify its non-disclosure if it were relevant;

(e) the failure to disclose certain of Mr. Evans”s witness statements (or the information therein), which militated against the suggestion that the applicant had committed the offence of misconduct in public office; and

(f) the overall context of the applicant”s communications with that employee should have been more fully disclosed, including the fact that at least one of the published letters had not been written by the purported author (paras. 90–97; para. 102; paras. 121–147).

(2) It was also not just for the search warrants to stand because the respondent had been asked to issue them at the police station, which had compromised his independence and was contrary to good practice. If it had been necessary to apply for the warrants outside court hours, the applications should have been made at the respondent”s home or office. Furthermore, the respondent should not have been advised that the search warrants concerned a matter of which the Governor was aware, since Justices of the Peace were appointed by the Governor. The purpose of the requirement that a search warrant should be issued by a court or Justice of the Peace was to interpose a judicial decision between the citizen and the power of the state. The law relied on the independent scrutiny of the judiciary to protect the citizen against the excesses that would inevitably flow from allowing a police officer to decide for himself whether the conditions under which he was permitted to enter private property and search and seize personal possessions had been met (para. 81; paras. 114–115).

(3) Before granting the search warrants under s.26 of the Criminal Procedure Code (2006 Revision), the respondent had to satisfy himself that the prescribed circumstances existed-i.e. based on the information on oath, that in fact or according to reasonable suspicion the applicant had committed the offence of misconduct in public office contrary to common law and, according to reasonable suspicion, material necessary to the conduct of the investigation into that offence was in the applicant”s home

and offices. The investigating officers” reasonable suspicion that the offence had been committed did not suffice. Further, the respondent had to be satisfied that it was appropriate and proportionate in all the circumstances to authorize the search warrants in the terms sought. A Justice of the Peace was entitled to seek independent legal advice from the court staff and unusual applications and applications about which he was in any doubt should be referred to a magistrate or to the Grand Court. The present, extraordinary and complex applications should certainly have been made to the Grand Court rather than to the respondent. It would have been obvious to any fair-minded police officer that the respondent was out of his depth, as he did not have independent legal advice and could not have been expected to have any knowledge of the ingredients of the offence of misconduct in public office contrary to common law or the law of contempt (para. 82; paras. 86–89; paras. 106–112; para. 116).

(4) Assuming the respondent had an accurate understanding of the relevant law (although he had not actually been informed of the relevant legal principles and could not have been expected to know them), it had been Wednesbury unreasonable for him to have been satisfied or reasonably suspected that the applicant had committed the offence of misconduct in public office contrary to common law. That offence would be committed if a public officer acting as such wilfully neglected to perform his duty and/or wilfully misconducted himself to such a degree as to amount to an abuse of the public”s trust without reasonable excuse or justification. Regardless of the other requirements of the offence, it could not be said that there could be a reasonable suspicion that the applicant had acted without excuse or justification. In order to maintain a fair and effective administration of justice, the judiciary must, as an integral part of its judicial function, have the power to enforce its orders and to protect the administration of justice against contempts calculated to undermine it. There was no suggestion in the information that the applicant had asked Mr. Evans to act unlawfully and the letters in question included at least one that had not been written by the purported author (paras. 149–152).

(5) Furthermore, it had also been Wednesbury unreasonable for the respondent to have been satisfied or reasonably suspected that recovery of the objects described in the search warrants had been necessary to the conduct of the investigation. The proper ambit of the search warrants should have been decided by the respondent before they were granted, not afterwards by the police. The latter”s approach in the present case had been back to front and wrong. In applying for the warrants they should have provided the respondent with sufficient particulars to explain why he had a reasonable suspicion that the seizure of the objects was necessary, which they had failed to do. The respondent”s attention should have been drawn to the fact that the applicant”s judicial computer would almost certainly contain highly confidential information, e.g. concerning past and future cases, which could not possibly have been relevant to the investigation and to which the police should not have been permitted access. In the

absence of sufficient particulars, this had been a fishing expedition, in part in waters that the police should never have been allowed to enter (paras. 156–159).

Cases cited:

(1) Ahnee v. D.P.P., [1999] 2 A.C. 294; [1999] 2 W.L.R. 1305, applied.

(2) Amanuel v. Alexandros Shipping Co., [1986] Q.B. 464; [1986] 2 W.L.R. 962; [1986] 1 All E.R. 278; [1985] 2 Lloyd”s Rep. 90, referred to.

(3) Att.-Gen. (Jamaica) v. Williams, [1998] A.C. 351; [1997] 3 W.L.R. 389, applied.

(4) Att. Gen.”s Ref. (No. 3 of 2003), [2005] Q.B. 73; [2004] 3 W.L.R. 451; [2005] 4 All E.R. 303; [2004] 2 Cr. App. R. 23; [2004] EWCA Crim 868, applied.

(5) Badry v. D.P.P., [1983] 2 A.C. 297; [1983] 2 W.L.R. 161; [1982] 3 All E.R. 973, referred to.

(6) Bank Mellat v. Nikpour, [1985] F.S.R. 87; [1982] Com. L.R. 158, dicta of Donaldson J. applied.

(7) Bank of Credit & Commerce Intl. (Overseas) Ltd., In re, 1994–95 CILR 56, considered.

(8) Brink”s Mat Ltd. v. Elcombe, [1988] 1 W.L.R. 1350; [1988] 3 All E.R. 188; [1989] 1 F.S.R. 211, followed.

(9) C Corp. v. P, 1994–95...