R v Ebanks, ex p Henderson

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

Grand Court

(Cresswell, Ag. J.)

R.

and

EBANKS, EX PARTE HENDERSON

R.D. Alberga, Q.C., S.T. McCann and Ms. K. Houghton for the applicant;

C. Russell for the respondent;

N. Purnell, Q.C. and S. Barrie for the Royal Cayman Islands Police Service.

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 CILR 189, referred to.

(10) Ghani v. Jones, [1970] 1 Q.B. 693; [1969] 3 W.L.R. 1158; [1969] 3 All E.R. 1700; (1969), 142 Sol. Jo. (L.B.) 98, referred to.

(11) Hope v. EveredELR(1886), L.R. 17 Q.B.D. 338, referred to.

(12) Jennings v. CPS, [2006] 1 W.L.R. 182; [2005] 4 All E.R. 391; [2005] EWCA Civ 746, considered.

(13) Memory Corp. Plc. v. Sidhu (No. 2), [2000] 1 W.L.R. 1443; [2000] C.P.L.R. 171; [2000] F.S.R. 921, considered.

(14) Operation Tempura, In re, Grand Ct., February 22nd, 2008, unreported; further proceedings, 2008 CILR 111, applied.

(15) Oxford v. MossUNK(1978), 68 Cr. App. R. 183; [1979] Crim. L.R. 119, referred to.

(16) R. v. Gray, [1900] 2 Q.B. 36, referred to.

(17) R. v. Kensington Income Tax Commrs., ex p. de Polignac (Princess), [1917] 1 K.B. 486, dicta of Warrington, L.J. applied.

(18) R. (Energy Fin. Team Ltd.) v. Bow St. Mags.” Ct., [2006] 1 W.L.R. 1316; [2005] 4 All E.R. 285; [2006] A.C.D. 8; [2005] EWHC 1626 (Admin), dicta of Kennedy, L.J. applied.

(19) R. (R. Cruickshank Ltd.) v. Kent Chief Const., [2001] EWHC 123 (Admin); [2001] Crim. L.R. 990, referred to.

(20) R. (Redknapp) v. City of London Police Commr., [2009] 1 W.L.R. 2091; [2008] 1 All E.R. 229; [2008] EWHC 1177 (Admin), referred to.

(21) Rea v. Gibbs, 1994–95 CILR 553, applied.

(22) Schmitten v. FaulkesUNK, [1893] W.N. 64; sub nom. Schmetten v. Faulkes(1893), 37 Sol. Jo. 389, referred to.

Legislation construed:

Criminal Procedure Code (2006 Revision), s.26: The relevant terms of this section are set out at para. 83.

Grand Court Law (2008 Revision), s.27: The relevant terms of this section are set out at para. 119.

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

The applicant sought judicial review of the respondent”s decision to issue search warrants in respect of the applicant”s home and offices.

The applicant, a Grand Court judge, was arrested and charged with misconduct in public office contrary to common law regarding his involvement in an alleged illegal search of the offices of the Cayman Net News. Over a period of months, the newspaper had published letters substantially criticizing the judiciary on inter alia aspects of sentencing, transparency in appointments and administration. The applicant had had several conversations about the letters with an employee of the newspaper, Mr. Evans, informing him that he was considering whether the letters amounted to contempt of court. He had asked Mr. Evans to identify the source of the letters and their authenticity but had been unaware of the circumstances in which Mr. Evans attempted to do so.

Mr. Evans and a colleague had separately been requested by three senior members of the Royal Cayman Islands Police Service (‘RCIPS’) to retrieve documents concerning alleged communications between the proprietor of the newspaper and the Deputy Commissioner of Police. No information was discovered and independent police investigators applied to the court for search warrants in respect of those senior officers. The Grand Court (Smellie, C.J.) refused to issue warrants in respect of two of them but issued a warrant in respect of the third (In re Operation Tempura, reported at 2008 CILR 111).

Subsequently, investigating officers applied ex parte to the respondent, a Justice of the Peace, for search warrants in respect of the applicant”s

home and offices. The respondent was asked to attend at the police station to issue the warrants. Under s.26 of the Criminal Procedure Code (2006 Revision), a court or Justice of the Peace could issue a search warrant if satisfied by information on oath that in fact or according to reasonable suspicion anything necessary to the conduct of an investigation into an offence was contained in a particular place. The warrants permitted the removal of several items that were alleged to be ‘essential’ to the investigation into the alleged misconduct in public office, including the applicant”s personal and work computers. The respondent was informed that it was a matter of which the Governor was aware.

In the information given to the respondent it was alleged inter alia that, contrary to what he had said to Mr. Evans, the applicant had known or had reason to believe that the published letters could not have constituted contempt of court; he had improperly used his influence and position as a judge; and he had asked Mr. Evans to ascertain information which he had known or had reason to believe would amount to a breach of trust and/or breach of contract by Mr. Evans as an employee of Cayman Net News and risked his being charged with burglary. The respondent had also been informed that the applicant had refused on several occasions to be interviewed by the investigating officers.

The respondent, who had no legal training or independent legal advice, was not given an accurate summary of the ingredients of the offence of misconduct in public office contrary to common law, or informed of the offence under s.27 of the Grand Court Law (2008 Revision) of scandalising the court. He was not informed that, although the applicant had refused a witness interview, he had offered to answer questions in writing. He was not informed of or provided with a copy of the Chief Justice”s recent rulings in In re Operation Tempura, which the investigating officers considered to be irrelevant and with which they did not wholly agree. The respondent was also not provided with witness statements by Mr. Evans that militated against the suggestion that the applicant had committed the offence of misconduct in public office, or informed that at least one of the offending letters had not been written by the purported author.

The respondent issued the search warrants, being satisfied on the information provided that there was a reasonable suspicion that the applicant had committed the offence of misconduct in public office contrary to common law and that the items listed in the warrants appeared to be essential to the investigation into that offence. The searches took place and items, including the applicant”s judicial computer containing highly confidential information, were seized. The police examined certain confidential files to determine whether or not they were relevant to the investigation. The applicant applied for judicial review of the respondent”s decision to issue the warrants, seeking orders of certiorari; declarations that the entry and searches were unlawful; delivery up of all items seized; and damages.

The applicant submitted inter alia that (a) the warrants should be quashed because the investigating officers had failed to make full and

frank disclosure of relevant legal principles and material facts and documents; (b) it had been Wednesbury unreasonable for the respondent, on the information provided to him, to have been satisfied or reasonably suspected that the applicant had committed the offence of misconduct in public office contrary to common law; and (c) it had been Wednesbury unreasonable for the respondent, on the information provided, to have been satisfied or reasonably suspected that recovery of the objects described in the search warrants was necessary to the conduct of the investigation.

The RCIPS submitted that (a) although the statement in the information that the letters could not amount to contempt of court was incorrect and the applicant”s repeated offers to answer questions in writing should have been disclosed, the warrants should not be quashed for non-disclosure; (b) it had not been necessary for the respondent to have been aware of the ingredients of the offence of misconduct in public office contrary to common law and it was sufficient if he had understood that it was a criminal offence under Cayman law; (c) when issuing the warrants pursuant to s.26 of the Criminal Procedure Code, the respondent had merely to have been satisfied that the officers applying for the warrants had a reasonable suspicion that the applicant had committed the offence charged; and (d) they had not been obliged to draw the respondent”s attention to the fact that the warrants extended to highly confidential information.

Held,...