28 January, 2010

Search Warrants

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.


  1. Don.

    Consider yourselves fortunate over there where your Police Force require a search warrant, ours don't.

    They searched an opposition politicians home and seized among other things his computer and hard drive, kept him in a police cell for more than 7 hours, all without a warrant.

    Are your police force not politicised? Come and live in Jersey for a while, you might just discover that things are pretty good where you are.

  2. The young lady is aligned with those you oppose politically, so you could have ignored this issue. Thank you for standing up for proper procedure, no matter whose ox is being gored.

    The loudmouth egomaniac Yanchie has often used the following quote by Malcolm X. That doesn't make is less true:

    "You're not to be so blind with patriotism that you can't face reality. Wrong is wrong, no matter who does it or says it." It applies equally to patriotism and party loyalty.

    Thank you again, Don.

  3. Is this our Ken Starr moment, our Operation Tempura moment? Is this a case of intimidation by the investigators and abuse of privilege? What is the status of the case against the former client of the two young female lawyers? Is that case falling apart and the investigator is now on witch hunt for dirt? Will any local lawyer feel comfortable representing that former client knowing that the investigator may come by looking for dirt?

    Operation Tempura cost the Government of the Cayman Islands millions of dollars with nothing to show as yet except one disbarred lawyer, humiliation of a sitting Judge followed by a 1.275 million dollar settlement to that Judge.

    The Audit report on the expenditure on Operation Tempura shows that no one in the Cayman Islands wanted to challenge the mighty London Metropolitan Police on the expenses. Probably out of fear of being accused of obstruction and in turn being investigated.




    An independent member of the Cayman Legislative Assembly brought a motion to the sue the Governor and the UK Government

    Unfortunately Don, you appeared to be on the wrong side of this matter

  4. Don, first of all I am not aware of this story, but it's not difficult to figure who you're referring to. You've expressed very strong views though I can't say I agree with you with most of the points raised. Are you suggesting that a JP should not do what he can do because it's a young professional? Surely not. Are you assuming that the Bishop was not provided with information sufficient to him to grant a warrant? The law also provides that if the police acted without a warrant at all, any relevant evidence found would be admissible. Maybe the law's as ass and your concerns if agreed by others may start a movement to permit only judicial officers to issue search warrants. Privy Council in Williams stated that the police must satisfy the issuing authority that he has reasonable grounds for suspicion and then the authority must be satisfied on oath before the warrant is issued. If your point was that a JP ought not to have the authority to issue search warrants, that's a different story. You know that is why people don't like us - different rules for us and them. Please keep me posted in this matter.

  5. What I think I am saying is that the police were wrong to go to a Bishop, or any other non-legally qualified judicial officer such as a lay Justice of the Peace, with such a sensitive application. They would have been better off going to John Benjamin or Courtney Abel, one of the two sitting Magistrates, with the application. This action alone discredits their application in my eyes, without knowing anything at all about the facts.

  6. Mr. Mitchell, your thesis is elitist. Because the subject of the investigation is a Lawyer, the investigation is "sensitive" and the police should have gone to one of the two additional Magistrates, BOTH of whom have active private practices? Do you think that either of them would not immeadiately naturally think that "this could be my office..." and that would inadvertantly impact their judgement?
    Why is it fair to you that Lawyers get special treatment while other citizens get JP issued Warrants? Where were you with your objections and concerns when the police served similar Warrants on Lawyer Rogers offices?
    You are wrong to make the comments you made. You are free to make comments, but the substance of your comments challenge the integrity of the Venerable Bishop and the Royal Anguilla Police Force. you are in effect suggestion either collaborative professional recklessness/incompetance, or corruption.
    I think you should re read your comments, and then, dispassionately apologize to both parties.

  7. Don didn't challenge the integrity of the Bishop. He said the Bishop had insufficient training in the law.

    He did challenge the integrity of the RAPF. I believe he has conclusively shown in previous blogs that they are severely lacking in that area. They confirmed that in the present matter by choosing not to seek the warrant from someone who might have questioned them more thoroughly.

    The whole thing stinks. A police inspector with any common sense isn't likely to raid the office of a political candidate, shortly before an election, without checking first with the Commissioner. The Commissioner knows a lot about criminal law. I suspect it was on his instructions that the warrent was sought from the Bishop instead of someone more knowledgeable in the law.

  8. You ought not to mislead readers since some may think the police acted improperly. The Magistrate's Code of Procedure Act confers these powers on a Justice of the Peace. The law has no other requirement in terms of the police approaching a Magistrate rather than a JP when it's a young lawyer (professional) with a spotless record who's a candidate in the election. Spotless record down the line may be important if charges are brought and the spotless lady is convicted. During the trial stage, good character evidence can be led. That cannot be criteria for not going to a JP. Your approach doesn't seem to support a corruption free Anguilla, but one where the law applies only to the plebs. God Save the Queen and Anguilla.

  9. I am beginning to feel bad about my search warrant blog. I have learned that the police first attempted to obtain the search warrant from each of the two Magistrates. They both recued [excused] themselves, perhaps on the basis of conflict of interest or personal friendship. The police only went to the Bishop afterwards, as the best choice of the lay magistrates. Now, I may have put a spoke in their investigation! My blog was it now seems, mistakenly based on the assumption that they had deliberately skipped approaching either of the legally qualified magistrates.

  10. The police don't tell us f... all. Notice that in today's police report in The Anguillian, when they had the opportunity to discuss their "raid" of Cora's office, as it's being called, they chose to remain silent as usual, AND ALLOW US TO SPECULATE. That is what you did and you aren't obligated to apologise for doing so.

    They do mention in their purposely-vague summary of law enforcement events of the week something about a "default warrant." This is a term I don't recall ever hearing before. I don't know what it means. It is not used on my home planet. It must be a Britishism. Is this related to L'Affaire Cora?

    I fail to see how what you wrote could put a spoke in their investigation. I must be missing something. If you were wrong, if you were misinformed or uninformed, what you wrote seems more irrelevant than damaging.

    There is a great deal of mystery surrounding the status of the charges against Joe Brice. There are widespread allegations of pressure being brought upon the A-G to drop the charges because this mess allegedly implicates high-ups in the United Front administration. I am not aware that either the police or the UF has responded to these allegations. This has encouraged people, including you and me, to use what little we know to explain what we don't know. That is how we are governed in Anguilla. That is not your fault or mine.

    It is even alleged that this explains why, or is one of the reasons why, Bourne resigned. Other sources claim he was allowed to resign, to prevent his being fired. Which implies "fired for cause". I suspect his incompetence was the real problem, not the ethics of working here.

    Who are the Justices of the Peace in Anguilla? I know of Mary Richardson, formerly with the Companies Registry, and now I learn of the "venerable" Bishop. Some think fairly highly of her. But of course she is not a criminal law expert. Who else is on the list, and do any of them know beans about the law of search and seizure?

  11. That being said, why are the police seeking out a bishop to serve a search warrant? Better yet, why is said bishop put in such a position in the first place? Confidant/client privilege applies in medical, religious and legal circumstances where law allows such. The last thing you want is a church leader serving warrants, show prudence the next time you visit your physician with post-nasal drip, and run from your lawyer. ;) - Scotty

  12. What's wrong with church leaders signing warrants? We are upholding a fine tradition extending back to the Spanish Inquisition.

    I do feel, however, that in the case of death warrants, the executioner function should be contracted out.

  13. Ah, Anguilla. When you good folks sort out concepts like "probable cause," "due process of law" and "separation of church and state," call me.

  14. Don, in Dominica the Commissioner of Police signs search warrants. Dont you think that is the greatest conflict of interest that can be had? I agree with you that only judicial officers should be seised with such a task but...well here we are...

  15. Dominica is governed by the rule of law. Guaranteed by the Constitution. Unless the Constitution itself permits the Commissioner of Police to issue search warrants, I would guarantee that such a search warrant is unconstitutional. I don't care which statute permits it. It is basic law.


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