Sandra Catron v The Queen, Louis Ebanks JP, Commissioner of Police - Ruling

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN Cause No. 31 of 2012 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PURSUANT TO GCR O.53 R.3 BETWEEN: SANDRA CATRON APPLICANT AND (1) THE QUEEN (2) LOUIS M. EBANKS, JP (3) THE COMMISSIONER OF POLICE RESPONDENTS Appearances: Ms. Sandra Catron, the Applicant, In Person Ms. Suzanne Bothwell of the Attorney General’s Chambers for the Commissioner of Police, the Defendant Before: Hon. Justice Henderson Heard: May 20 & 21, 2013 Oral Ruling: May 21, 2013 RULING 1. Acting under the authority of a search warrant, Police Officers searched the home, office and vehicle of the applicant, Sandra Catron ("Ms. Catron") on July 27, 2012. On this judicial review application Ms. Catron challenges the lawfulness of the decision to issue the search warrant and requests the return of the items seized; damages, including aggravated damages, for trespass to land and goods; and damages for unlawful arrest and false imprisonment. Ms. Catron, who represented herself throughout the proceeding, has also made a number of complaints about the manner in which the warrant was executed and the way in which she was dealt with after the search had been completed. As I indicated during the hearing, these latter complaints are outside the purview of a judicial review application. 2. The decision under review is the decision of Mr. Louis Ebanks, Justice of the Peace, to issue the search warrant on July 27, 2012. The warrant was issued on the basis of an Information and Complaint in the following form: "The information and complaint of Senior Detective Constable Neblett - of the RCIPS in the Islands of Grand Cayman [sic], made on oath before me, LOUIS M. EBANKS one of Her Majesty's Justices of the Peace in and for the Cayman Islands this 27th day of JULY, , in the year of our Lord two thousand and TWELVE who saith that the following goods [sic] to wit:- Cellphones, laptops and other documents or any document or device suspected to be associated with the commission of this offence and any vehicle owned, rented, leased, reduced [sic] in the control of Sandra Catron or any vehicle to which she has access has been used in connection with the offence of Misuse of ICT and has by some person or persons unknown within 2 months last past been illegally used in the Cayman Islands, and that he hath probable cause to suspect and doth suspect and believe that the said items or any document or device suspected to be associated with the commission of this offence is concealed on the premises of Sandra Catron situated at 125-2 Rackley Blvd, Newlands, Grand Cayman and therefore he the said [left blank] Prayeth that Justice may be done. Officer’s Signature: "A. Neblett SDC 101" Sworn to before me this 27 day of, July 2012 "L. M. Ebanks" Louis M. Ebanks Justice of the Peace Justice of the Peace Cayman Islands The warrant itself is in this form: Magistrates Court [sic] Cayman Islands THE CRIMINAL PROCEDURE CODE. (LAW 14 OF 1975) (2005 REVISION) SCHEDULE II (SECTION 26) To SDC Neblett and other officers of the RCIPS WHEREAS I/the Court am/is satisfied by information on oath that there is reasonable suspicion of the commission of the offence of Misuse of ICT and it has been made to appear to me that the production of the following articles (s) are essential to the enquiry into the said offence of: Misuse of ICT Cellphones, Laptop and Documents suspected to be associated with the commission of this offence, as also, any vehicle owned, rented, leased, reduced [sic] into the control of Sandra Catron, or any vehicle to which she has access to [sic]. THIS IS TO AUTHORISE and require you to enter upon and search the premises of Sandra Catron situated at 125-2 Rackley Blvd, Newlands and if discovered to take possession of the said article(s) and produce the same forthwith before a Court; returning this warrant with an endorsement certifying the manner of its execution. Given under my hand (and the seal of the Court) [sic] this 27 day of July 2012 ..........."L. M. Ebanks"............ MAGISTRATE/JUSTICE OF THE PEACE Louis M. Ebanks Justice of the Peace Cayman Islands 3. The Justice of the Peace has sworn an admirably frank affidavit in which he says: 3. On the morning of July 27th 2012 Officer Neblett of the Royal Cayman Islands Police Service came to me at #78 Thomas Russell Avenue to my place of business known as L&T Tyre Shop. 4. He provided me with a search warrant and asked for my signature which I provided. The warrant was already typed up in full and I merely provided my signature/stamp. 5. Officer Neblett did not provide any details whatsoever regarding the warrant; which is a customary practice. 6. Since that time I have not received any endorsement or details of if/when the warrant was executed. 7. On August 22nd 2012 Ms. Sandra Catron contacted me via telephone and inquired what evidence I would have been provided in order to sign the search warrant. I replied “absolutely none” and further indicated to her that the police never provide me with any evidence when having a warrant signed. 4. The Officer who signed the search warrant, Detective Constable Adrian Neblett, has sworn an affidavit in which he provides his recollection of the application for the warrant. He says that he provided a verbal “explanation” for the “reason for the warrant” to Mr. Ebanks, who “gave me the impression that he was listening to what I was telling him and that he understood the basis upon which I was seeking the warrant.” He observes that Mr. Ebanks pointed out a typographical error in the Information and Complaint and corrected it. Detective Constable Neblett asserts that the proceedings “were not out of the ordinary”; in essence, he was following what he considered to be the customary practice. Applicable Law 5. The requirements are set out in sections 26 and 28 of the Criminal Procedure Code (2011 Revision) in these terms: "26. Where a court of a Justice of the Peace is satisfied by information on oath that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any building, ship, vehicle, box, receptacle or place, such court or Justice of the Peace may, by warrant (called a search warrant), authorize a police officer or other person therein named to search the building, ship, vehicle, box, receptacle or place (which shall be named or described in the warrant) for any such thing and, if anything searched for is found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law. 28. (1) Every search warrant shall be in the form set out in Schedule 2 and under the hand of the person issuing the same and, when issued by a court, shall bear the seal of such court. (2) Every search warrant shall remain in force until it is executed or until it is cancelled by the person or court issuing the same. (3) A search warrant may be directed to one or more persons and may be executed by all or any one or more of them. (4) A search warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed. (5) A search warrant may be executed at any place in the Islands." 6. In seeking to uphold the impugned decision, Counsel to the respondents cited a number of decisions including Regina v. Douglas [1980 – 83] CILR 119; King v. Regina [1968] 2 All E.R. 610; Attorney General of Jamaica v. Williams et al [1998] A.C. 351 (P.C.); R. v. Inland Revenue Commission [1980] A.C. 952, 998; and Gibbs v. Rae [1998] A.C. 786 (P.C.). From these authorities I distill the following criteria for the issuance of a search warrant: 1) A Justice of the Peace who is asked to issue a search warrant is engaged in a judicial function; 2) information presented to him must be on oath; 3) that information must satisfy him that there is "reasonable suspicion" that a specified offence has been committed or that something necessary to the conduct of an investigation into a specified offence is to be found in a building, ship, vehicle, etc.; 4) the reasonable suspicion test is a relatively low threshold which does not rise to the level of proof beyond a reasonable doubt or proof on the balance of probabilities; 5) the information on oath must be sufficient to raise in the mind of a reasonable and objective observer a suspicion that the named suspect has committed the specified offence and that an object or document to be found at the named location would be relevant evidence of it; 6) to discharge his responsibility, the Justice of the Peace must have a clear understanding of the essential elements of the offence identified in the application; 7) it must also appear that the officer applying for the warrant has (subjectively) a reasonable suspicion that the offence has been committed or that the sought-after items are necessary to the conduct of his investigation; 8) since the Justice of the Peace is engaged in a judicial function, he should keep a written record of what is presented to him and make that record available upon a judicial review of his decision; 9) it is of particular importance that the Justice of the Peace keep a record of any evidence given to him orally (which evidence must be given under oath). Decision

¶ [7] Counsel to the respondents has conceded that no evidence under oath was presented to the Justice of the Peace. On this ground alone, Ms. Catron is entitled to an Order setting aside the decision under review and quashing the search warrant.

¶ [8] Mr. Ebanks gave evidence under oath during the hearing before me. It was clear from his evidence that he had no sufficient understanding of the alleged offence, which is described in unhelpfully brief terms in the Information and Complaint as "misuse of ICT". Without such an understanding, it is not possible for him to make a considered decision on the question of whether a warrant should issue. He has failed to take into consideration a matter of fundamental importance - the legal elements of the alleged offence – and for that reason his decision is manifestly unreasonable.

¶ [9] Moreover, the evidence before me does not show that a reasonable and objective observer would, after considering it, have a reasonable suspicion that the alleged offence had been committed. The Information and Complaint contains nothing more than a bare assertion by Detective Constable Neblett that he believes that an offence has been committed and that the sought-after items are relevant evidence of that. Whatever grounds for suspicion Detective Constable Neblett may have had were presented orally (and not under oath) to the Justice of the Peace. No written record was kept. In these circumstances, I conclude that it was manifestly unreasonable for the Justice of the Peace to have determined that, viewed objectively, the evidence presented to him gave rise to a reasonable suspicion. For this reason also the warrant must be set aside.

¶ [10] Ms. Catron took some objections to the form of the warrant.

¶ [11] The warrant is addressed "to SDC Neblett and other officers of the RCIPS." Ms. Catron argues that every officer taking part in the search must be named in the warrant. Similar wording ("To Insp. Rankine and other officers of the Cayman Islands Police Force") was used in the search warrant which was the subject of Douglas, supra. Chief Justice Summerfield held that the warrant was invalid as it amounted to an authorization to any and all officers on the Police Force to participate in the search. This was a ruling given following a No Case to Answer submission in the course of a trial.

¶ [12] The Chief Justice's ruling rested upon his reading of King, supra, a decision of the Privy Council. In King, the search warrant was addressed "To any lawful constable of the parish of Kingston". Thus, the person who was the subject of the search could not ascertain from the face of the warrant which officer was charged with its due execution. The legislative provision under consideration authorized the issuance of a warrant to any constable named in it. The judgment of Lord Hodson in the Privy Council says simply (at p. 613) that "the warrant is defective ... because the terms of the section were not complied with since no constable was 'named' in the warrant."

¶ [13] It seems to me that the principle of importance is that a named officer is to be responsible for executing the search according to law. He will usually be assisted, for various practical reasons, by other officers whose identities may not have been ascertained when the warrant is obtained. The decision in King establishes the salutary rule that a warrant which names no one is bad; it does not stand for the broader proposition that every single officer who participates must be named. I must respectfully disagree with our former Chief Justice’s ruling in Douglas. I am satisfied that a search warrant which names an officer as responsible for its due execution need not also name each one of those who are assigned to assist him. In my view, the words “and other officers of the Cayman Islands Police Force” are mere surplusage once the responsible officer has been named. I would not set aside the warrant on this ground.

¶ [14] The search warrant purports to emanate from the “Magistrates Court” of the Cayman Islands; the proper term is now the Summary Court. The warrant purports to be given under the “seal of the Court” but there is no seal upon it and Mr. Ebanks does not have a seal. These are matters of form and were addressed in argument only in passing. I prefer to leave them for decision in a case where their effect has been fully argued. The Attorney General may wish to consider whether an amendment to the form of search warrant found in Schedule 2 to the Criminal Procedure Code is needed.

¶ [15] For these reasons the decision of Mr. Ebanks to issue the search warrant is set aside and the warrant is quashed. Anything seized under the authority of this search warrant is to be returned forthwith. Ms. Catron is at liberty to set down a hearing on the question of damages.

¶ [16] The original application for leave to apply for judicial review asserted that Ms. Catron is seeking damages for unlawful arrest and false imprisonment in addition to damages flowing from the issuance of the search warrant. However, a review of any decision to arrest Miss Catron engages different legal issues and, in any event, such a decision has not been the subject of any direct challenge on this judicial review. Accordingly, I decline to make any findings concerning Ms. Catron's arrest. Henderson, J. Judge of the Grand Court