28 January, 2010
What is the proper response of a Justice of the Peace in
Anguilla who is asked to issue a search warrant? We all heard recently about a search warrant executed by the police. The warrant had been issued by a Justice of the Peace, or JP. The JP in question is no ordinary one. He is the Rt Rev Errol Brooks OBE Bishop of the Diocese of the Northeastern Caribbean and Aruba. The warrant had been sought by the police to search the offices of a young attorney. They said she had appeared in court representing a person charged with fraud. She is no ordinary young attorney. She is one with a spotless record. More to the point, she is a candidate in the upcoming general elections. These are all issues that cried out for the application in question to be treated with strict regard to the law governing the issuing of search warrants.
The issuing of a warrant to search someone’s home or office is not a task lightly to be executed. It is not a mere administrative task, to be routinely performed. The issuing of a search warrant is a quasi-judicial function, to be performed based on the evidence presented to the Magistrate or other judicial officer. Such a warrant includes power to enter the premises, by force, and breaking doors, if necessary, and to search the same for files, correspondence, computers, cellular telephones, flash drives, fixed and external hard drives, and to seize such items and bring them in due course before the Magistrate. Such an application in relation to any professional such as a certified accountant, a physician or a lawyer, becomes a particularly sensitive matter. The private and confidential affairs of possibly hundreds of innocent clients will be exposed to unauthorized eyes, and no one knows what use will be made of the information. Such a step is clearly open to abuse.
The real reason why the police are not permitted to search a home or office without a warrant is to interpose the protection of a judicial decision between the citizen and the police. All jurisdictions with the rule of law put constraints on the powers of police investigators. They may not invade a home or office unless they obtain a search warrant, save where the officer is in ‘hot pursuit’. It is a basic line of defence of the citizen against arbitrary search and seizure that such a warrant be first obtained. Otherwise, we should all be subject to home invasion by the armed wing of the State on the slightest suspicion.
As every first year law student learns, such a quasi-judicial function is to be performed only on the judicial officer being satisfied that the prescribed circumstances exist. Our liberty depends on the independent scrutiny of the judiciary to protect the citizen against the excesses which would inevitably flow from allowing an executive officer to decide for himself whether the conditions under which he is permitted to enter upon private property have been met. That is why an application for a search warrant must be accompanied by an affidavit setting out the evidence available and the grounds for the officer’s belief that further evidence is likely to be obtained as a result of the search. Only a trained lawyer, familiar with the laws of evidence and the intricacies of criminal procedure, is likely to be able properly to perform this serious function. No lay JP, even one as eminent as a Bishop, is qualified to issue such a warrant. Such a warrant would only be granted by a qualified Magistrate if he or she was first satisfied that there was adequate evidence and grounds for suspicion. This basic protection of the citizen must not be permitted to be trampled by the unnecessary use of a lay JP to avoid the investigator having to go before a qualified Magistrate and to satisfy him that the test has been met.
So, the question becomes, how is a non-legal Justice of the Peace in Anguilla properly supposed to react when a police officer comes to him or her, in the middle of a political campaign, just before general elections, when there are two qualified acting Magistrates who could easily have been approached, and the lay JP is requested to issue a search warrant to search a professional person’s office and/or home, especially when that person is a candidate for election to the House of Assembly?
In my submission, the only proper thing for him to respond is, “There are two qualified Magistrates in
Anguilla at this time. You are asking me to do something that is going to have very serious consequences for the reputation and future career of a young professional. There will be serious implications for the political campaign of this candidate for election to the House of Assembly. You must be crazy if you think I am going to just sign and issue the Warrant without knowing what I am doing. Leave my office immediately!”
For the future guidance of all non-lawyer JPs in
Anguilla, that would be the only proper reaction to such a request.