Re Operation Tempura

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 04 April 2008
• Court: Grand Court (Cayman Islands)
• Date: 04 April 2008

Grand Court

(Smellie, C.J.)

IN THE MATTER OF OPERATION TEMPURA

A. Mon Desir, Special Counsel to the Governor, for the applicants.

Cases cited:

(1) Att. Gen. v. Guardian Newspapers Ltd. (No. 2), [1990] 1 A.C. 109; [1988] 3 W.L.R. 776; [1988] 3 All E.R. 545; (1988), 132 Sol. Jo. 566, referred to.

(2) Branzburg v. Hayes, 408 U.S. 665; 92 S. Ct. 2646; 33 L. Ed. 2d 626 (1972), considered.

(3) British Steel Corp. v. Granada Television Ltd., [1981] A.C. 1096;

[1980] 3 W.L.R. 774; [1981] 1 All E.R. 417; (1981), 124 Sol. Jo. 812, considered.

(4) Callis v. Gunn, [1964] 1 Q.B. 495; [1963] 3 W.L.R. 931; [1963] 3 All E.R. 677; (1963), 48 Cr. App. R. 36; 107 Sol. Jo. 831, followed.

(5) Canadian Pacific Wine Co. Ltd. v. Tuley, [1921] 2 A.C. 417, applied.

(6) Chic Fashions (West Wales) Ltd. v. Jones, [1968] Q.B. 299; [1968] 2 W.L.R. 201; [1968] 1 All E.R. 229; (1968), 112 Sol. Jo. 16, referred to.

(7) David v. Lisle, [1936] 2 K.B. 434; [1936] 2 All E.R. 213; (1936), 80 Sol. Jo. 409; 34 L.G.R. 253; 155 L.T. 23, referred to.

(8) Ghani v. Jones, [1969] 1 Q.B. 693; [1969] 3 W.L.R. 1158; [1969] 3 All E.R. 1700; (1969), 113 Sol. Jo. 854, applied.

(9) Gibbs v. Rea, 1998 CILR 16; [1998] A.C. 786; [1998] 3 W.L.R. 72; (1998), 142 Sol. Jo. (L.B.) 98, referred to.

(10) Inland Rev. Commrs. v. Rossminster Ltd., [1980] A.C. 952; [1980] 2 W.L.R. 1; [1980] 1 All E.R. 80; (1980), 70 Cr. App. R. 157; 124 Sol. Jo. 18, referred to.

(11) Jeffrey v. Black, [1978] Q.B. 490; [1977] 3 W.L.R. 895; [1978] 1 All E.R. 555; (1978), 66 Cr. App. R. 81; 121 Sol. Jo. 662, followed.

(12) King v. R., [1969] 1 A.C. 304; [1968] 3 W.L.R. 391; [1968] 2 All E.R. 610; (1968), 52 Cr. App. R. 353; 112 Sol. Jo. 419, followed.

(13) Kuruma, son of Kaniu v. R., [1955] A.C. 197; [1955] 2 W.L.R. 223; [1955] 1 All E.R. 236; (1955), 99 Sol. Jo. 73, followed.

(14) Lawrenson v. HillUNK(1860), 10 I.C.L.R. 177, referred to.

(15) MM v. Netherlands, [2003] ECHR 39339/98; (2003), 39 E.H.R.R. 19, followed.

(16) McDonald v. BulwerUNK(1862), 13 I.C.L.R. 549, referred to.

(17) Police Commr. v. Bermuda Broadcasting Co. Ltd., [2007] UKPC 46, referred to.

(18) R. v. Collins, [1973] Q.B. 100; [1972] 3 W.L.R. 243; [1972] 2 All E.R. 1105; (1972), 56 Cr. App. R. 554; 116 Sol. Jo. 432, considered.

(19) R. v. Hall, [1891] 1 Q.B. 747, followed.

(20) R. v. Sang, [1980] A.C. 402; [1979] 3 W.L.R. 263; [1979] 2 All E.R. 1222; [1979] Crim. L.R. 655; (1979), 69 Cr. App. R. 282, followed.

(21) R. v. TolsonELR(1889), 23 Q.B.D. 168; 16 Cox, C.C. 629; 37 W.R. 716; 66 L.T. 899; 5 T.L.R. 465; 58 L.J.M.C. 97; [1886–90] All E.R. Rep. 26, considered.

(22) R. v. Walkington, [1979] 1 W.L.R. 1169; [1979] 2 All E.R. 716; [1979] Crim. L.R. 526; (1979), 68 Cr. App. R. 427; 123 Sol. Jo. 704, considered.

(23) R. v. Wright, [1994] Crim. L.R. 55, referred to.

(24) Saunders v. Holborn District Bd. of Works, [1895] 1 Q.B. 64, referred to.

(25) Sweet v. Parsley, [1970] A.C. 132; [1969] 2 W.L.R. 470; [1969] 1 All E.R. 347; (1969), 53 Cr. App. R. 221; 113 Sol. Jo. 86, followed.

(26) Williams v. R.UNK(1986), 39 W.I.R. 129, referred to.

Legislation construed:

Criminal Procedure Code (2006 Revision), s.26: The relevant terms of this section are set out at para. 47.

Penal Code (2007 Revision), s.8(1): The relevant terms of this sub-section are set out at para. 70.

s.95: The relevant terms of this section are set out at para. 65.

s.121: The relevant terms of this section are set out at para. 76.

Police-entry, search and seizure-search without warrant-no abuse of office or disobedience of lawful duty (Penal Code, ss. 95 and 121) for officers to enlist help of public to search premises without warrant, if officers reasonably and genuinely believe potential evidence illegitimately on premises and recovery would interdict serious crime-if no offence committed, search warrant against officers not available under Criminal Procedure Code, s.26

Police-entry, search and seizure-search without warrant-trespass to land-no offence for officers to commit trespass by search of premises without warrant, if reasonably and genuinely believe potential evidence illegitimately on premises and recovery would interdict serious crime-merely risk civil liability

The applicants, who were members of an independent police team investigating suspected irregularities in the Royal Cayman Islands Police Service, applied for search warrants in respect of three senior officers.

The applicants (‘the investigators’), applied for search warrants in respect of the respondents-Mr. Kernohan, the Commissioner of Police, Deputy Commr. Dixon and Chief Supt. Jones (‘the subjects’)-enabling them to search their homes and/or offices for evidence regarding their involvement with an alleged illegal search of the offices of the Cayman Net News.

An employee of Cayman Net News, Mr. Martin, had approached Deputy Commr. Dixon in August 2007, and alleged that another police officer, Deputy Commr. Ennis, had leaked confidential police information to Mr. Seales, the proprietor of Cayman Net News, which Mr. Seales had then used for the economic advantage of his newspaper and had even disseminated it to certain criminal groups.

The Commissioner and Chief Supt. Jones were informed and the subjects then had several conversations with Mr. Martin and senior executive and legal officials, during which their lack of evidence and the seriousness of the allegations, which posed a threat to individual police officers and the national security of the Cayman Islands, was highlighted. The subjects then decided that while search warrants would be difficult to obtain, it was necessary to retrieve the documentary evidence that Mr. Martin claimed to exist in Mr. Seales”s office. They therefore enlisted the

help of Mr. Martin who himself, after a failed attempt to gain access to the alleged evidence, then enlisted the help of a colleague at Cayman Net News, Mr. Evans, whose search was also fruitless.

The Commissioner then requested that an independent team (the applicants) be recruited from the United Kingdom to investigate the matter. The team concluded that the allegations made by Mr. Martin were unfounded. They raised the issue whether the subjects were aware of this fact, and therefore acted in breach of their duties, as well as the law, by procuring Mr. Martin and Mr. Evans to conduct illegal searches in the absence of proper search warrants. The present applications were made ex parte for search warrants in respect of the Commissioner, Chief Supt. Jones and Deputy Commr. Dixon, under the Criminal Procedure Code (2006 Revision), s.26.

The Grand Court dismissed the applications but with the caveat that the applicants could apply for reconsideration of the decision, which they then did.

The investigators submitted that (a) the subjects had committed an offence under s.95 of the Penal Code (2007 Revision), by arbitrarily and prejudicially directing Mr. Martin and Mr. Evans to commit criminal trespass, in an abuse of the authority of their office; (b) they could not reasonably have believed Mr. Martin”s allegations, as they had been aware of a long-standing animosity between Mr. Seales and Deputy Commr. Ennis, and only acted upon those allegations opportunistically, seeking to undermine Deputy Commr. Ennis as the Commissioner”s only likely successor, which amounted to a wilful disobedience to the law, contrary to s.121 of the Penal Code (2007 Revision); and (c) there was ‘reasonable suspicion’ to believe that evidence of those offences could be found at the respondents” homes and/or offices, as required by the Criminal Procedure Code (2006 Revision), s.26, and therefore search warrants should be issued in respect of them.

The court considered whether (a) the subjects had committed any offence, as was required by the Criminal Procedure Code (2006 Revision), s.26, to justify the issue of a search warrant; (b) they had committed or ordered any ‘arbitrary’ or ‘prejudicial’ acts, in abuse of the authority of their office, contrary to s.95 of the Penal Code (2007 Revision), or whether, by enlisting the help of Mr. Martin and Mr. Evans, they had acted in the reasonable, genuine and urgent belief that they might be able to recover documents which could not have been held for a legitimate journalistic purpose and which would prove that serious crimes had been committed; and (c) either Mr. Martin or Mr. Evans had themselves committed any criminal offence (in particular trespass) if their entering the offices of Cayman Net News was not itself unlawful, or for an unlawful purpose, and whether it could therefore be shown that the subjects had had the intent wilfully to disobey the law by enlisting their help, as required for an offence under s.121 of the Penal Code (2007 Revision).

Held, allowing the application in part:

(1) The Commissioner and Chief Supt. Jones had not committed any criminal offence, as required by s.26 of the Criminal Procedure Code (2006 Revision), and therefore warrants could not be issued in respect of them. They were not guilty of offences under either ss. 95 or 121 of the Penal Code (2007 Revision) because (i) enlisting the help of Mr. Martin and Mr. Evans to recover documents in the absence of a search warrant, which they reasonably, genuinely and urgently believed could not have been held for a legitimate journalistic purpose and which would prove that serious crimes had been committed, was not ‘arbitrary’ or ‘prejudicial,’ nor was it an ‘abuse of the authority of . . . office,’ as required by s.95; (ii) it could not be said that the subjects had committed any s.121 offence, as they did not show the specific intent of wilful disobedience to the law required by that section, because they reasonably believed the allegations made by Mr. Martin, and their enlisting of the help of Mr. Evans did not actually result in the committing of any offence; Mr. Evans”s search of the CNN building was...