Cresswell J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO. 528 of 2008 BETWEEN: THE QUEEN AND: (1) MARTIN BRIDGER (2) RICHARD COY (3) ACTING COMMISSIONER OF THE ROYAL CAYMAN ISLANDS POLICE SERVICE Respondents Ex parte The Hon. Justice Alexander Henderson Applicant AND: IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO. 464 of 2008 BETWEEN: THE QUEEN AND: CARSON K. EBANKS, MBE J.P. Respondent Ex parte The Hon. Justice Alexander Henderson Applicant AND: THE ACTING COMMISSIONER OF THE ROYAL CAYMAN ISLANDS POLICE SERVICE Additional Party JUDGMENT delivered by The Honourable Sir Peter Cresswell, on the 23rd day of December 2008. APPEARANCES: Mr. R. Alberga, QC for the Applicant Mr. S. McCann Ms. K. Houghton Ms. C. Richards, SG for the Respondents Mr. D. Schofield, ASG REPORTED BY: Carol A. Rouse, Court Reporter. JUDGMENT The Honourable Justice Sir Peter Cresswell I have been appointed by the Governor to be a judge of the Grand Court of the Cayman Islands for a period of three months to the end of February 2009 for completion of the consolidated Causes 464 and 528 of 2008. Introduction This judgment follows my judgment of the 29th of October in Cause 464, to which I refer. Cause 528 of 2008 is the second set of proceedings for judicial review brought by the Applicant. In Cause 528 the Applicant seeks declarations that the decision to arrest him and his arrest were unlawful. The Applicant is a justice of the Grand Court and has held that office since 2003. On the 24th of September 2008, at about 7:06 a.m., the Applicant was arrested by Mr. Richard Coy, the Second Respondent, in the car park outside his home. It was alleged that there were reasonable grounds to suspect that he had committed the offence of misconduct in public office, contrary to Common Law. The Applicant refused to consent to a search of his home. The Applicant was then taken to the police station in George Town. At about 9:03 a.m., Mr. Stephen Worthington and Mr. Timothy Thorne, special constables of the RCIPS, attended the Applicant's home with a search warrant which had been issued by the Respondent to Cause 464 at about 8:45 that morning. Mr. McCann, on behalf of the Applicant, repeated the Applicant's instructions that he did not consent to the search, but the constables, and others who arrived later, entered the premises and searched them, seizing certain items. At about 3:02 p.m., Mr. Worthington and Mr. Thorne, accompanied by three other men, all of whom were said to be special constables of the RCIPS, attended the Applicant's personal offices at fourth floor Kirk House, George Town, with a search warrant relating to the Applicant's offices which had been issued by the Respondent to Cause 464, again at about 8:45 a.m. that morning. Ms. Houghton, on behalf of the Applicant, told Mr. Worthington that the Applicant objected to the search and asked that his objection be recorded. Thereafter, the constables searched the office and the Applicant's robing room and seized items including the Applicant's judicial computer. The Chief Justice was present when the warrant was presented and following the search. He objected to the removal of the Applicant's judicial computer from the custody of the court. The bail form in respect of the Applicant records, among other matters, that the conditions to be complied with after release on bail included not to contact direct/indirectly/interfere with certain persons, including the Chief Justice. That form is dated the 24th of September. Press Statements A statement by the Governor, dated the 24th of September, read: "As you are aware, the Cayman Islands have been undergoing an unprecedented investigation involving some members of the Royal Cayman Islands Police Service. It saddens me to add that this investigation has now led to the arrest today of Justice Alexander Henderson. "I wish to assure you first of all that this matter has nothing to do with any judgments delivered by Justice Henderson in court. As this follows short on the heels of the action against Justice Priya Levers, I want to assure the community that the courts will continue to function. These actions will not impede court operations and the community will continue to have access to justice.... "... this latest action is again a demonstration that the investigation is entirely independent of both the Government and my office. It will continue unimpeded to its full conclusion. "I am regularly briefed by Mr. Bridger [the First Respondent to Cause 528] as matters develop, and I have confidence in his team.... "This is a difficult time for everyone - particularly those under investigation. Government continues to support the investigating team so they can move forward. "That said, it is important to know that investigations of this nature inevitably take time and money. I do believe it is of national importance to pursue this specific investigation to its full conclusion, and I again ask for your support. I know there is speculation about the cost of this investigation; however, the price of doing nothing is far greater in regards to the long term credibility and reputation of the Cayman Islands as a safe and economically viable jurisdiction. "Also, in fairness to the community and everyone involved, it is necessary to legitimately prove [sic] or disprove any allegations against anyone involved before putting the issue to rest. I ask again that people refrain from prejudging the outcome of the investigation. "Ensuring good governance is a collective responsibility and requires clear and sustained leadership. It is only by working together that we will achieve the positive change this country deserves." As part of the same press statement there was a statement by Senior Investigating Officer Martin Bridger which read: "First, let me say that I am grateful for the continued support from HE the Governor, the Cayman Islands Government and the wider community. "As you have just heard from HE the Governor, Justice Alexander Henderson was arrested this morning in connection with the independent police investigation. "I do not underestimate the impact of this action on the individual concerned, and the local and international communities. I assure you that in respect of Justice Henderson, I only took the action today after careful consideration of the evidence available at this time and the benefit of independent legal advice. "I want to make it clear that this is part of the original investigation which commenced with the allegations made against Deputy Commissioner Anthony Ennis and Cayman Net News Editor in Chief Desmond Seales.... "I acknowledge that these are difficult times and the latest development will generate much public debate. That said, I ask the community and the media in particular not to prejudge the guilt or innocence of any individual involved in this investigation.... "As I have said on many occasions before, it is about the search for the truth. And I conclude by stating again: My team is committed and will meticulously follow the facts - and only the facts." The arrest of the Applicant led to publicity in many countries throughout the world. On about 9 October Mr. Bridger issued a further press statement entitled "Update on Independent Investigation". It read: "In my recent statement of 24 September, 2008 I acknowledged that these were difficult times, and that the latest development concerning the independent investigation would generate much public debate. I also asked the community and the media in particular, not to prejudge the guilt or innocence of any individual involved in this investigation, nor to speculate, or indulge in rumour.... Justice Alexander Henderson: "... the decision to arrest Justice Alexander Henderson was not based on his refusal to give me a statement. Moreover, it was not made lightly. I took that decision only after careful consideration of the available evidence and information in consultation with independent legal counsel and Assistant Commissioner John Yates of the Metropolitan Police Service. Whilst I recognize the effects of his arrest on Justice Henderson and more broadly on the jurisdiction, I must and will treat everyone involved in an equal manner, following the same process. "As to the challenge to the legality of the search warrants, I am entirely satisfied that these were properly obtained. "An application for a search warrant is an application to the court, or a justice of the peace, to seek the use of an investigative power. The purpose of that power is to search for evidence. By its very nature, such an application is made without the need for the totality of the case being put before that court or Justice of the Peace. "Indeed, in most cases, as here, a great deal more investigation and evidence gathering is to be carried out after any search warrants have been obtained. A search is just one part of an investigation. "It follows, then, that no court can hope to make a meaningful evaluation of guilt, or innocence or, the strength, or otherwise, of a case at the time of such an application. In fact, it would be entirely inappropriate and fruitless to attempt such an exercise. "As an investigator I do not pre-judge. I am sure that everyone concerned in the criminal justice process is similarly anxious to avoid arriving at premature conclusions. It should be borne in mind that the threshold for granting a search warrant is reasonable suspicion, not a Judgment -- Cresswell, J. prima facie case, or a realistic prospect of conviction. "Let me repeat that a decision of whether [sic] a criminal offence has been committed cannot reasonably be based on the information supplied for the application of a search warrant.... Chief Justice Ruling in Public Domain: "I am extremely concerned that a ruling made in a private hearing in chambers, following an ex parte application, appears to have found its way into the public domain on the 3rd of October. Just as transparency is a pre-requisite in any well governed society, so confidentiality has an equally valuable place in very limited, but well-defined circumstances. Such circumstances exist in relation to this aspect of the on-going investigation.... "I have now been informed that the judgements concerning Mr. Kernohan and Mr. Jones were released the day after the arrest of Justice Henderson on the 24th September i.e. released on the authority of the Chief Justice on the 25th September 2008. [I interpose that any implied criticism of the Chief Justice was, in my opinion, wholly unfounded]. Keeping the Community Informed: "Beginning today, unless events require a more immediate report, a media update will be issued every two weeks. Media questions presented in writing will be answered as fully as I can. "The community will be updated in a series of local district meetings to be scheduled over the coming weeks and months ... I want to meet with you and encourage you to invite me to attend your community, association, or congregational event so that you can learn the facts directly from the investigative team. "The independence of my team is critical to establishing the facts. My team is committed to following the facts, but in so doing we will carefully consider issues of fairness and proportionality of our actions. Furthermore, any action taken is in accordance with the Laws of the Cayman Islands and I can expect thorough scrutiny.... "Assistant Commissioner John Yates of the Metropolitan Police Service to whom I am accountable continues to oversee the investigation and provide guidance. Additionally the investigation team has an experienced independent legal counsel, an established and very experienced legal practitioner in addressing issues of misconduct in public office. "In addition, I have the support of a small group of local persons to provide me with advice on the local context and assist me with administrative matters.... As will be seen below, Mr. Bridger's actions were not in accordance with the laws of the Cayman Islands. The Letter of 13th October and Subsequent Correspondence On 13th October, Campbells, solicitors for the Applicant, wrote to the solicitors acting for the Acting Commissioner of the RCIPS asserting that the arrest of the Applicant was unlawful because misconduct in public office is not an arrestable offence in the Cayman Islands. The letter stated: "We understand that you are instructed by the Acting Commissioner of Police Service in relation to Cause 464 of 2008, and we will correspond with you concerning that matter separately. "However, we feel that we should raise with you at this early stage that it seems likely that your client's arrest, by his special constable Mr. Stephen Coy, on 24th September 2008, Tuesday, December 23, 2008 (c.a.r.) Schedule, and accordingly, the Offence is not an arrestable one, since the Schedule provides that, in the case of a non-scheduled offence, it is only arrestable if the maximum penalty imposed by law is 6 years or more. "In the circumstances, it appears to us that the Judge's arrest without warrant was unlawful, and your client and his officers acted ultra vires. "Furthermore, the Judge was interviewed unlawfully and without his consent, and his bail and the conditions thereof, are also unlawful and of no effect". On 22nd October, Mr. Richard Oliver, Investigating Officer, Operation Tempura, wrote to Campbells on behalf of the Applicant: Tuesday, December 23, 2008 (c.a.r.) was unlawful.... "Powers of arrest without warrant are defined by the terms of the Police Law (2006 Revision), sections 24(4) and 36(a), and both powers are defined by reference to 'arrestable' offences, as defined by the First Schedule of the Criminal Procedure Code (2006 Revision) ("the Schedule") (per s.2 of the Police Law). "The Offence is not defined in the Penal Code (2007 Revision), but is, in effect, preserved by it (s.2(a)). No penalty is defined by the Penal Code for the Offence, and accordingly, the provisions of s.38(1) of the Penal Code apply, imposing a penalty of a maximum of 4 years' imprisonment and a fine. The Offence is not listed in the Tuesday, December 23, 2008 (c.a.r.) "Due to the protracted nature of the investigation and the necessity for undertaking numerous further enquiries, it will not be possible to complete our preparation for [6 November 2008]. "It will therefore be necessary to request a further extension of bail on 6th November 2008." On 27th October, Campbells wrote to Nelson & Co., the solicitors acting for the Acting Commissioner of the RCIPS: "We refer to our 13th October 2008 [letter] concerning the judge's arrest (copy attached).... "Our client remains concerned that his arrest (and consequently his bail) is unlawful. However, without prejudice to that contention, and without waiving any rights he may have to challenge his arrest and bail, he would be willing to be bound by undertakings to the Court in place of his 'bail'. "The current terms of his 'bail' are onerous and unnecessary. "Our client's passport has been seized by the custody sergeant. The passport was taken unlawfully during the search of our client's home (even if the search was lawful, which is obviously denied), and could not possibly have been of any evidential value. The bail sheet (copy attached) does not refer to any 'flight risk' and we request the return of the judge's passport. He is prepared to undertake that he will not leave the jurisdiction without the permission of the Court. "The other conditions of our client's 'bail' refer to a suggestion that our client is likely to interfere with witnesses. There is no possible ground for this suggestion. However, our client is prepared to undertake, again without prejudice or waiver, that he will not make any attempt to contact etc with Evans, Ennis, Needham, Kernohan or Jones and that he will not contact etc. Richards, Smellie or Bulgin save in respect of his duties as a judge...." On 27th October, Mr. Barrie, of Nelson & Co., sent on email to Ms. Houghton of Campbells as follows: "Thanks for your letter in connection with Judge Henderson's bail conditions. We have passed a copy of your letter on to our clients for their consideration. We would however ask you to note that we act on behalf of the Acting Commissioner of Police in respect of the proceedings for Judicial Review only; we do not act generally for the investigation team in respect of the investigation itself. We are ... advised that Mr. Bridger will respond to you direct on these issues." 29 October 2008 On 29 October 2008 I gave judgment in Cause 464. It should be noted that as at the 29th of October: (1) the legality of the arrest had been raised in Campbells' letter of the 13th of October; (2) the point was not considered in the first judicial review hearing; (3) the additional party to the first application for judicial review, the Acting Commissioner for the RCIPS, should, after 13 October, have acknowledged that the arrest was unlawful; (4) Mr. Schofield, to whom I am indebted for his assistance, rightly conceded that the legality of the arrest was highly material to the first judicial review hearing. The RCIPS should have accepted in the course of the first judicial review hearing that the arrest was unlawful. In the event, the earliest indication that the RCIPS accepted that the arrest was unlawful was in the letter of the 24th of November (see below). The Letters of 30th October 2008 and Subsequent Correspondence On 30 October, Campbells wrote to the Solicitor General -- and I acknowledge again my gratitude to the Solicitor General for her assistance in this matter -- in these terms: "We understand the Hon. Attorney-General is currently out of the country and in the circumstances we enclose herewith our letter to him dated 30 October 2008, with enclosures which we ask you to bring to his attention immediately upon his return." Enclosed with that letter was a letter to the Acting Commissioner in these terms: "We act for the Hon. Mr. Justice Henderson and enclose copies of the following: ... "We have been informed by Nelson & Co. that it does not act for you generally and that, in particular, it does not act for you in connection with the arrest of our client, or his bail. "As you will see from the materials enclosed, the offence with thus far in order to avoid further controversy. "We strongly urge you to obtain advice from competent Cayman Islands attorneys, and perhaps you should contact the Attorney General's Chambers." On 31st October, David George, Acting Commissioner of Police, replied: "I acknowledge service of the documents in the above-referenced matter, the contents of which I have noted. "I will seek legal advice and revert to you as soon as practicable." On 3rd November, the Solicitor General wrote to Campbells: "On behalf of the Hon. Attorney General, we acknowledge receipt of your letter dated of Misconduct in Public Office contrary to common law is not an arrestable offence under the provisions of the Police Law. In the circumstances, our client's arrest was unlawful, and it follows that his detention, subsequent two day questioning and bail were and are also unlawful and a further grave abuse of process. "The Judge wishes to return to his Court duties as soon as possible. We invite you to release him from his bail and its conditions immediately. Your special constables have shown no possible grounds for imposing bail or any conditions on it, and our client is effectively precluded from returning to his duties by the terms of his bail which, whilst unenforceable, he has complied 30th October, 2008 with enclosures.... "Please be advised that we are presently reviewing the matter and will respond to you on or before Wednesday, 5th November 2008." According to an internal email of Campbells, dated 5th November, on that date the Acting Commissioner telephoned the Campbells' switchboard and spoke to Mr. McCann. "He advised (1) that he had just finished meeting with the [Attorney General] re [the Applicant's] bail (2) due to lateness in day no letter today but will be forthcoming to confirm that (a) Judge Henderson does not need to attend at the CPS at 10 am on [6 November] (b) released from bail immediately (c) bail conditions no longer apply. "I thanked him for telephoning me. I then informed him that I wished to raise a bigger picture issue namely that of the judge being unable to return to his duties as a judge whilst he appears to remain under investigation in Operation Tempura. I told him it remained a very live issue and that it needed to be sorted out. He replied that he was aware of the issue and told me that he would get me an answer on it sooner rather than later as a matter of practicability. "I asked him to confirm that the judge therefore did not need to go to the police station tomorrow. He answered yes there was no need. I told him I looked forward to receiving his letter tomorrow ...." On 6th November, Campbells wrote to Mr. David George, Acting Commissioner of the RCIPS: "Thank you for your courteous telephone call to the writer at 4:55 p.m. Wednesday 5 November ... in which you confirmed as follows:
Mr. Justice Henderson was no longer under arrest;
There was no longer any necessity for him to be on bail;
He was consequently released from his bail conditions; and
He did not need to attend the Central Police Station ... Thursday 6 November 2008.... "We understand from Lead Counsel, Mr. Ramon Alberga QC, that The Hon. Attorney General had spoken to him by telephone on Tuesday 4 November 2008 and promised to contact Mr. Alberga following a meeting with yourself in connection with our letter to you dated 30 October 2008. The Solicitor General also confirmed to the writer by telephone on 5 November 2008 that Mr. Alberga could expect at least a verbal response to our letter from the Attorney General following a meeting, which we understand he scheduled with you for 3:30 p.m. Wednesday 5 November 2008. Despite these indications, we were most disappointed to note that nothing whatsoever was heard from the Attorney General and that it was left to you to contact us. Had it not been for your call, the Judge and his legal advisors would have attended the Central Police Station at 10 a.m. this morning. We again repeat our gratitude for the courtesy of your telephone call. "It is now clear from the content of your telephone call yesterday that you accept that Mr. Henderson's arrest was illegal; that the Special Constables who were tasked to do so by Mr. Bridger acted unlawfully; and that his two day interview following his arrest and his grant of bail and conditions attached thereto were also unlawful and of no effect. "Are we now to assume that the investigation in relation to Justice Henderson is now at an end and that Mr. Bridger and other members of the Special Police Investigation Team ... will not be dreaming up any new offences to throw at Justice Henderson? "We very much regret that you will be held vicariously responsible for the acts, failures, and misrepresentations of the SPIT members in the procuring and execution of the two search warrants and the unlawful arrest of the Judge on 24 September 2008...." On 11 November, Nelson & Co. wrote to Campbells to advise on behalf of the Acting Commissioner of Police that no appeal was to be "taken" in respect of the judgment of the 29th of October. On 6th November, Mr. George wrote to Campbells: "This letter serves as written confirmation of our telephone conversation of yesterday evening, wherein I identified that ... Justice Henderson's the judge's bail status, particularly with the fear that any members of SPIT may take it upon themselves to arrest the Judge if they consider that he has, since and despite our telephone conversation yesterday, breached the original bail conditions. It is unacceptable that our client's position, a Judge of the Grand Court of the Cayman Islands, is left in limbo and your immediate response is required to this letter." On the same day, Mr. George replied: "I have just received your letter of 6th November concerning our telephone conversation of 5th November. There is a need for me to clarify the points you make. "I did identify that Justice attendance at George Town Police Station at 10 a.m. on today's date would not be required. "During our conversation you mentioned the correspondence you had sent to me with regards to Justice Henderson's arrest; I believe that the Attorney General's office has indicated, on my behalf, that we should be in a position to respond today". On 6th November, Campbells wrote to Mr. George: "We received your letter dated 6 November 2008 at approximately 12:30 p.m. today. It has crossed with our letter of the same date .... "Given the limited content of your letter, it is imperative that we receive from you an immediate response concerning Henderson did not need to attend the Central Police Station at 10 a.m. on Thursday 6th November 2008. "I did not say that Justice Henderson was no longer under arrest; "I did not say that there was no longer any necessity for him to be on bail; "I did not say he was released from his bail conditions; "As I identified in my recent mail to you, I am currently awaiting advice from the Attorney General's Office and when I have that I will be able to consider all issues." On 11th November, Nelson & Co. sent an email to Campbells: investigation relative to the alleged entry into the Offices of the Cayman Net News on the 3rd September 2007 and other matters continues...." It is to be noted that this press statement did not acknowledge that the arrest was unlawful. The Grant of Leave On 20 November, the Hon. Justice Campbell ordered that the Applicant have leave to apply for judicial review in Cause No. 528 of 2008. I refer to his ruling (DETERMINATION WITHOUT A HEARING PURSUANT TO GCR O.53 r3(3)) for its full terms and effect. Service of the Notice of Motion in Cause 528 By letter, dated 21st November, Campbells wrote to Mr. Bridger, enclosing by way of service the Notice of Motion in Cause 528 and other relevant documents. Service in respect of the other Respondents took place at about the same time. The Letter of the 24th of November and Subsequent Correspondence On 24th November, the Deputy Solicitor General, on behalf of the Attorney General, wrote to Campbells: "Further to the letter dated 12th November ... from the Honourable Attorney General and to the meeting of 19th November 2008 wherein we agreed to confirm our instructions in respect of the matter at caption, we now write on behalf of the Acting Commissioner of Police to advise you that we will not contest the claim in the respect of the unlawful arrest sought on behalf of Justice Henderson. "We are therefore amenable to not to unnecessarily aggravate costs". It should be noted that although the letter said "on behalf of the Acting Commissioner of Police ... we will not contest the claim in respect of the unlawful arrest", it did not in specific terms acknowledge that misconduct in public office is not an arrestable offence in the Cayman Islands. Campbells wrote to the Deputy Solicitor General on 25th November: "We note that the Acting Commissioner ... does not intend to contest the unlawfulness of the arrest .... Please will you confirm that you are also instructed on behalf of Special Constables Bridger and Coy and that they are also bound by the Acting Commissioner's admission? "Your final paragraph contains a misunderstanding. We informed you at our meeting on 19th November 2008 at the Attorney-General's Chambers that our client's application for leave to apply for judicial review had been filed, however we did not state that it would be postponed or withdrawn, or otherwise left in 'abeyance'. In fact, the application was submitted on [12th] November 2008 and was dealt with on paper by Campbell J. in accordance with GCR Order 53 rule 3(3)." Press Statement 4 December On 1st December, Campbells wrote to the Deputy Solicitor General enclosing a draft order for consideration. On 4 December, the Governor issued a press statement in the following terms: "Following the Judicial Review hearing ... it was important to consider carefully the way forward on the basis of However, I would like to remind everyone that [the] Judicial Review and subsequent ruling, setting aside search warrants, does not negate the fact that a considerable amount of exemplary investigative work has been carried [out] over the past year by the Investigative Team. "Senior Investigating Officer Mr. Martin Bridger has assured me that during these investigations he has always endeavoured to act in good faith and I have always found him to have acted in a very professional manner. The actions that Mr. Bridger took in regard to the Hon. Mr. Justice Alexander Henderson were taken based partly on advice that he had received from independent legal counsel, which has now been questioned.... authoritative legal advice. Given the Acting Police Commissioner's responsibilities for the investigative team we also had to give the new holder of that post, Mr. Smith, the chance to consider the matter.... "In the meantime we have already concluded that the first part of Operation Tempura [culminating] in the alleged unlawful entry into the Offices of Cayman Net News on the 3rd September 2007 and other related matters ... must be concluded properly and with dispatch. "We have to acknowledge that mistakes were made with respect to the Hon. Justice Henderson and, as already announced, the police decided not to appeal the judgment in the Judicial Review. "I am committed to taking action where there is alleged corruption in the RCIPS. I wish to make it clear to those individuals who have demonstrated the courage in coming forward that the information they have provided will be dealt with in the strictest confidence. "I have asked Mr. Smith to oversee the special investigation...." It is to be noted that this press statement did not knowledge that the Applicant was arrested for an offence which was not an arrestable offence in the Cayman Islands. On 8th December, I sent a note to all parties in the two sets of proceedings for judicial review indicating in advance some of the matters I was likely to raise in the course of this hearing. Unopposed Declarations and Consequential Orders What follows is taken from an Agreed Note helpfully prepared for use by the Court. I make it clear that the analysis referred to below results from the Agreed Note and not any examination of the issues by the Court. The Agreed Note is in the following terms, so far as material: "16. The Respondents in Cause 528 of 2008 accept that the decision to arrest the Applicant made by Mr. Bridger on 22nd September 2008 ("the Decision"), the actual arrest of the Applicant by Mr. Coy on 24th September 2008 ("the Arrest"), and all actions consequent on the Decision and the Arrest were unlawful, for the following, different, reasons: (a) The search warrants in Cause No. 464 of 2008 dated 24th September 2008 were quashed by orders of certiorari made by Hon. Cresswell J. (acting) on 29th October 2008, and he also declared that the entry of police officers into the applicant's home and office and robing room on the same date and the searches conducted at his home, office and robing room were unlawful. (b) Statutory powers of arrest without a warrant are defined in subsections 24(4) and 36(a) of the Police Law (2006 Revision) and subsection 14(7) of the Criminal Procedure Code (2006 Revision). Each of these provisions is concerned with "arrestable" offences. An arrestable offence is defined in the Police Law as "an offence prescribed as such in the First Schedule to the Criminal Procedure Code (2006 Revision)". (c) A person may only be arrested without a warrant if the offence he is suspected of is an "arrestable" offence. (d) The Applicant was arrested on suspicion of having committed the offence of Misconduct in Public Office. This offence is a common law offence. It appears nowhere in the Cayman Islands Penal Code (2006 Revision) and nowhere in the First Schedule to the Criminal Procedure Code. (e) Subsection 2(a) of the Penal Code provides "Nothing in this Law shall affect the liability, trial or punishment of a person for an offence against the common law or any other law in force in the Islands". Therefore, a person may be tried, convicted and sentenced in the Cayman Islands for a common law offence. (f) The common law offence of "Misconduct in Public Office" was and is a misdemeanour and, at common law, no offence of less gravity than a felony may subject an offender to arrest without a warrant, even at the hands of a constable. There is only one exception to this rule: Judgment -- Cresswell, J. a constable may arrest an offender who commits a common law misdemeanour in his presence (that is, within his sight and hearing) a circumstance that manifestly does not apply in this case. (g) In conclusion, the offence of Misconduct in Public Office is not an arrestable offence in these Islands without a warrant, either by statute or by common law. "17. Therefore, the decision to arrest the Applicant, the actual arrest of the Applicant, and all actions consequent thereon, including the detention of the Applicant on the day of the arrest, and on the day following the arrest, the taking of Judgment -- Cresswell, J. "identifying material", and the restrictions imposed upon the Applicant terms of bail, were unlawful. "18. The Respondents therefore accept that in the circumstances section 25 of the Police Law was contravened, and that, as the Applicant's custody was unlawful, there was no legal basis for taking identifying material from him. They accept that it must be returned, and in fact, have delivered all identifying material to the Applicant's attorneys, as requested in the draft order. "19. All parties [to Cause 528] therefore agree that the Applicant's arrest on 24th September 2008 was unlawful." I read paragraph 20 as amended: Judgment -- Cresswell, J. "20. Against this background, the Court is invited to make the declarations and grant the prerogative orders set out in the agreed draft order. The declarations are not by consent, but both the Applicant and the Respondents to Cause 528 to 2008 accept that the arrest of the Applicant was unlawful and the Respondents do not oppose the making of the declarations." The declarations and orders referred to are in these terms: "It is declared that: (a) the decision to arrest the Applicant taken by inter alia the First Respondent on or about the 22nd of September 2008 (the Decision) (b) The execution of the Decision on 24th Judgment -- Cresswell, J. September 2008 by the Second Respondent (the Arrest) together with (c) all actions consequent on the Arrest (the Consequent Actions) including the Applicant's detention, bail and bail conditions, the seizure of his government-owned mobile telephone, and the taking of identifying photographs, fingerprints, and DNA samples (the Identifying Material) were unlawful. And it is ordered that: (1) Orders of certiorari shall issue in respect of the Decision, the Arrest and the Consequent Actions. (2) The Decision, the Arrest and the Consequent Actions be set aside." And by consent it is ordered that: (3) the Identifying Material and any copies thereof, together with any results, samples or reports made or obtained in connection with it shall be delivered up to the Applicant by delivery to Campbells Attorneys-at-Law, fourth floor, Scotia Centre, Albert Panton Street, George Town, Grand Cayman forthwith." The Court was also invited by paragraph 21 of the Note to give the following directions: "(a) That there shall be an inquiry as to damages in Cause 58 of 2008. (b) The inquiries as to damages in Causes 464 and 528 should be consolidated, and the new headings for the action be as set out in Paragraph 5 of the agreed order." I make the declarations, grant the orders and give the directions set out above. In addition, the Respondents have agreed to provide a full indemnity in respect of the Applicant's costs of these proceedings to date, i.e. up to and including this hearing and the costs associated with it, and to make a contribution to his legal costs in Canada. How did it come about that Mr. Bridger and Mr. Coy purported to arrest the Applicant when it is now accepted that misconduct in public office is not an arrestable offence in the Cayman Islands without a warrant? No written explanation of how it came about that the Applicant was arrested (when misconduct in public office is not an arrestable offence in the Cayman Islands without a warrant) was to be found in the papers before the Court yesterday. Given the extreme seriousness of the consequences of the arrest so far as the Applicant was concerned, and the numerous failures set out in the judgment of the 29th of October, it might have been thought that this fundamental question would have been addressed in the correspondence. Mr. Schofield, on behalf of the Respondents to Cause 528, told the Court on instructions yesterday that at the time of the arrest Mr. Bridger believed, on the basis of written advice from Mr. Polaine (1) that on the facts there was a prima facie case of misconduct in public office, and (2) that this offence was an arrestable offence within this jurisdiction. It is now accepted that the advice in relation to (2) was wrong. Yesterday I asked Mr. Schofield whether the Respondents to Cause 528 accepted two propositions as follows: (a) It is elementary that a police officer before arresting any citizen should satisfy himself that the suspected offence is an arrestable offence; and (b) A police officer unfamiliar with the law of the Cayman Islands should, before arresting any citizen of the Cayman Islands, take advice from a lawyer qualified in the law of the Cayman Islands as to whether the suspected offence is an arrestable offence under the law of the Cayman Islands. Mr. Schofield took instructions and said that he was subject to a conflict of interest and that the Respondents needed to receive "their own advice". The Court today has been handed a document by Mr. Schofield setting out Mr. Bridger's response in the following terms: "Question "It is elementary that a police officer before arresting any citizen should satisfy himself that the suspected offence is an arrestable offence. A police officer unfamiliar with the law of the Cayman Islands should before arresting any citizen of the Cayman Islands take advice from a lawyer qualified in the law of the Cayman Islands as to whether the suspected offence is an arrestable offence under the laws of the Cayman Islands." "Response "From the moment Mr. Bridger arrived on Island and took over the Inquiry, he has continually deferred to the Attorney General on the matter of obtaining independent legal advice. "In the first instance this was provided by Andre Mon Desir, an individual who is familiar with local laws. "Following Mr. Mon Desir's departure, efforts were made to resource further Independent Counsel within the Cayman Islands. In the event, Whether it was right and proper to pursue the matter, and Whether it was an arrestable offence in the Cayman Islands. "This advice was shared with Assistant Commissioner Yates and with the Strategic Oversight Group. "The advice and request for advice was not shared with the Attorney General. "Mr. Bridger always wanted a local Counsel but one could not be identified. The Strategic Oversight Group indicated that a local Counsel could not be found. "Mr. Bridger did not become Independent Counsel from the Cayman Islands was not forthcoming and the services of Mr. Martin Polaine [were] obtained in writing by the Strategic Oversight Group and Mr. Bridger. They submitted Mr. Polaine's CV to the Attorney General who indicated in writing that he had no objection to this course. "At every stage legal clarification was obtained by Mr. Bridger before taking any action. "Mr. Bridger specifically sought legal advice from Mr. Polaine on: Whether Misconduct in Public Office was an offence in the Cayman Islands aware that there was an alternative view as to whether the offence of Misconduct in a Public Office was arrestable in the Cayman Islands until the Attorney Generals advice of 12th November 2008. Therefore at the time of the arrest through and beyond the 1st judicial review proceedings Mr. Bridger genuinely believed on legal advice the offence was arrestable." The final paragraph was subsequently amended to read: "Mr. Bridger did become aware that there was an alternative view as to whether the offence of Misconduct in a Public Office was arrestable in the Cayman Islands, but this was not the view of his legal advisers at the time and he did not accept this view until the Attorney General's advice of 12th November 2008. Therefore at the time of the arrest through and beyond the 1st judicial review proceedings Mr. Bridger genuinely believed on legal advice the offence was arrestable." It would be inappropriate for me to comment further at this stage on the matters recorded above in view of the issues yet to be resolved in relation to the inquiries as to damages. I was informed by the Note that the parties have entered into serious without prejudice discussions conducted by the Attorney personally in order to attempt to settle the financial aspects of this matter. Nothing in this judgment is intended to discourage an early settlement. On the contrary, it is most regrettable that no settlement has yet been achieved despite a statement in the note to the effect "it is hoped that figures may be agreed, at least in principle, before Christmas". Tuesday, December 23, 2008 (c.a.r.) The parties have placed before the Court proposed directions leading to the inquiry as to damages being listed on the first open date on or after 20 April 2009 with an estimate of three days. I am of the opinion that the outstanding issues as to the quantum of damages need to be resolved as soon as practicable for the reasons set out below. I will at the end of this judgment discuss with the parties a far tighter timetable. The extraordinary failures on the part of Mr. Bridger and his advisers, reflected in the judgment of the 29th of October and this judgment, inevitably caused very serious damage and distress to the Applicant and his family. The Applicant has suffered from unlawful conduct by the police in relation to both his arrest and the applications for the search warrants. The chronology set out above shows most regrettable delay on the part of the RCIPS in admitting that the arrest was unlawful. As damages remain to be assessed, it would be inappropriate for me to comment further at this stage as the Applicant's position -- save to Tuesday, December 23, 2008 (c.a.r.) point out that the Applicant is a serving judge sitting in these courts and it is unsatisfactory that at the same time there should be unresolved litigation between the Applicant and the Respondents. In addition, the extraordinarily failures referred to above will have had a wider impact. A strong independent judiciary is central to the future of the Cayman Islands. It is also of importance that the police should act fairly and competently in relation to all citizens. An important step in repairing the damage to the Applicant and his family and to the wider interests of these Islands requires an early determination of all outstanding issues in these causes. If there is no settlement, to leave the determination of the outstanding issues to April or thereafter is in my opinion unacceptable. I add a footnote to my judgment of the 29th of October. At page 110 of that judgment the following appears under the heading "Admitted or partly admitted failures to put material facts and matters before the Respondent and/or admitted misrepresentations Judgment -- Cresswell, J. of material facts and matters and/or admitted errors." "2. Paragraph 3 of the Information set out the material circumstances of the allegations. At sub-paragraph (1) it was stated: • HENDERSON informed EVANS that the letters possibly constitute a criminal offence of contempt. However, the letters have been examined by independent legal council (sic) and "do not relate to any 'live' proceedings" and therefore, are not capable of amounting to contempt no matter how offensive they may appear. "The 'independent counsel' (I was told) was Mr. Mon Desir. "Mr. Purnell accepted that sub-paragraph (l) as a proposition of law was inaccurate "because of the questionable existence of the form of contempt known as scandalising the Court". I add the following. If such advice as alleged was given it failed to have any regard to among other matters (a) section 27(1) of the Grand Court Law (2008 Revision). (b) the decision of the Privy Council in Ahnee v. Director of Public Prosecutions [1999] 2 AC 294 supra. and (c) what is set out in Arlidge, Eady & Smith on Contempt 3rd Edition 2005 paragraphs 5-204 to 5-274." The transcript for the 17th of October records the following: "THE COURT: ... Who was the independent legal counsel referred to at page five of the information on oath? MR. BARRIE: My Lord, my understanding is it was a Mr. Andre Mon Desir.... my understanding is that he held that position from late 2007 until about August 2008 when Mr. Polaine took over that role.... my instructions are that in fact he was special counsel to the investigating team, but he may have had a dual role...." On the 30th of October, Murray & Westerborg, Attorneys-at-Law, wrote to the editor of the Cayman Net News, with a copy to me which I did not receive, a copy to Mr. Ramon Alberga QC, a copy to Mr. Christopher Russell, and a copy to Mr. Nicholas Purnell QC, in these matters which formed the basis of the Grand Court matter Cause No. 464 of 2008." terms: "We are instructed by the above named Mr. Andre Mon Desir, Esq. "In light of various reports which have appeared in your newspaper in which Mr. Mon Desir has been named, we have been instructed to issue the following for the purpose of clarification. "Mr. Mon Desir acted as special independent counsel appointed to assist the investigating team in relation to Operation Tempura from November 27th [2007] until May 17th 2008 at which time his appointment formally came to an end. From that date, May 17th 2008, Mr. Mon Desir ceased to be involved with the team and its investigations. Mr. Mon Desir has not advised on nor been involved with the If what I was told in October was incorrect, I should have been so informed at the time, in the interests of fairness to Mr. Mon Desir, in the interests of accuracy and in the interests of ensuring that all material matters were placed before the Court. Yesterday Mr. Schofield told me that the independent counsel was not Mr. Mon Desir but Mr. Polaine. The qualifications of the person alleged to have given the advice in question were highly material to the issues raised in the first judicial review hearing. Had the Court been informed that the relevant advice was from Mr. Polaine, the Applicant's submissions would have been to a different effect and the relevant part of the judgment would probably have been to a different effect. I express my profound disquiet that the Court was misled as to material information as above in relation to Cause 464. Judgment -- Cresswell, J. I direct that a copy of this judgment be sent to Mr. Mon Desir so that he may understand how it was that page 102 of my judgment appeared as set out above. The Honourable Sir Peter Cresswell Acting Judge of the Grand Court Tuesday, December 23, 2008 (c.a.r.)