R v Ebanks, ex p Henderson

• Jurisdiction: Cayman Islands
• Judge: (Campbell, Ag. J.)
• Judgment Date: 07 October 2008
• Court: Grand Court (Cayman Islands)
• Date: 07 October 2008

Grand Court

(Campbell, Ag. J.)

R.

and

EBANKS, EX PARTE HENDERSON

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

Cases cited:

(1) Bazie v. Att.-Gen. (Trinidad & Tobago)UNK(1971), 18 W.I.R. 113, referred to.

(2) Beecham Group Plc. v. Gist-brocades NV, [1986] 1 W.L.R. 51, distinguished.

(3) O”Reilly v. Mackman, [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, dicta of Lord Diplock applied.

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

(5) R. v. Aston Univ. Senate, ex p. Roffey, [1969] 2 Q.B. 538; [1969] 2 W.L.R. 1418; [1969] 2 All E.R. 964, referred to.

(6) R. v. Dairy Produce Quota Tribunal, ex p. Caswell, [1990] 2 A.C. 738; [1990] 2 W.L.R. 1320; [1990] 2 All E.R. 434; [1990] C.O.D. 243, referred to.

(7) R. v. Home Secy., ex p. Begum, [1990] C.O.D. 107; [1990] Imm. A.R. 1, considered.

(8) R. v. Inland Rev. Commrs., ex p. National Fedn. of Self-Employed & Small Businesses Ltd., [1982] A.C. 617; [1981] 2 W.L.R. 722; [1981] 2 All E.R. 93; [1981] S.T.C. 260, dicta of Lord Diplock applied.

(9) R. v. South W. Mags.” Ct., ex p. Cofie, [1997] 1 W.L.R. 885; (1996), 161 J.P. 69, considered.

(10) R. v. Warwickshire Chief Const., ex p. Fitzpatrick, [1999] 1 W.L.R. 564; [1998] 1 All E.R. 65; [1998] Crim. L.R. 290, considered.

(11) Smith v. Commr. of Police, 1980–83 CILR 126, applied.

Legislation construed:

Grand Court Rules 1995, O.53, r.1: The relevant terms of this rule are set out at para. 4.

O.53, r.3: The relevant terms of this rule are set out at para. 6.

O.53, r.4: The relevant terms of this rule are set out at para. 13.

Administrative Law-judicial review-leave to apply-applicant to have sufficient interest and sufficiently arguable case; and to apply promptly-subject of search warrants has sufficient interest on application to quash-case sufficiently arguable if not frivolous, vexatious or hopeless-administrative decisions to be promptly reviewed-even application within 3-month period in Grand Court Rules, O.53, r.4 may sometimes be too late

The applicant sought leave to apply for 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. Police officers subsequently 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, who had no legal training or independent legal advice, was not given an accurate summary of the relevant legal principles or provided with certain evidence that militated against the suggestion that the applicant had committed an offence. He was also not informed of or provided with a copy of the Grand Court”s recent rulings in In re Operation Tempura, in which Smellie, C.J. had refused to issue search warrants in related proceedings (reported at 2008 CILR 111).

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 applicant made the present application for leave to apply for judicial review eight days after the warrants were issued, seeking inter alia orders of certiorari quashing the warrants; declarations that the entry and searches were unlawful; delivery up of all items seized; and damages. Order 53, r.3(2) of the Grand Court Rules 1995 provided that an application for leave must be made ex parte and r.4(1) provided that it must be made promptly and in any event within three months of the date when the grounds for the application arose.

The applicant submitted that (a) his application should be granted because (i) he had a sufficient interest in the matter, as he was the subject of the search warrants and had been embarrassed and humiliated by having his home and offices searched; and (ii) his case was sufficiently arguable inter alia because the evidence did not support a reasonable suspicion that he had committed the common law offence of misconduct in public office and the respondent had not been properly informed of the relevant law or procedure; (b) the respondent had no right to appear because, under O.53, r.3(2), applications for leave were ex parte; and (c) it was irrelevant to the availability of judicial review that the warrants had been executed.

Held, granting leave to apply:

(1) The applicant would be granted leave to apply for judicial review of the respondent”s decision to issue the search warrants. First, he had a sufficient interest in the matter. As the subject of the search warrants, he had a direct, personal interest in the relief sought. Secondly, his case was sufficiently arguable to merit investigation in a substantive hearing, which was a low threshold intended to eliminate frivolous, vexatious or hopeless cases. Thirdly, the application would not be refused on the ground of delay, as he had applied promptly, eight days after the warrants had been issued. The need for certainty in public decision-making required the prompt review of administrative decisions and, in certain circumstances, an application might not be sufficiently prompt even if...