Jamaican Bar Association v Attorney General of Jamaica & DPP et Al

• Jurisdiction: Jamaica
• Judge: FORTE, P. , PANTON, J.A. , McCALLA, J.A.
• Judgment Date: 14 December 2007
• Neutral Citation: JM 2007 CA 68
• Judgment citation (vLex): [2007] 12 JJC 1406
• Date: 14 December 2007
• Court: Court of Appeal (Jamaica)

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE PANTON, J.A THE HON. MRS. JUSTICE McCALLA, J.A.(Ag.)

ON APPEAL FROM

CLAIM NO. HCV-207/03

BETWEEN

THE JAMAICAN BAR ASSOCIATION

1 ^ST APPELLANT

AND

THE ATTORNEY GENERAL

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

CLAIM NO. HCV-238/03

BETWEEN

ERNEST SMITH & COMPANY (a firm)

1 ^ST APPELLANT

AND

ERNEST A. SMITH

2 ^ND APPELLANT

AND

NESTA-CLAIRE SMITH

3 ^RD APPELLANT

AND

PEARLINE BAILEY

4 ^TH APPELLANT

AND

MARSHA SMITH

5 ^TH APPELLANT

AND

THE ATTORNEY GENERAL OF JAMAICA

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

AND

DEPUTY SUPERINTENDENT OF POLICE KARL PLUMMER

3 ^RD RESPONDENT

CLAIM NO. HCV 213/03

BETWEEN

HUGH THOMPSON

1 ^ST APPELLANT

AND

GIFFORD THOMPSON & BRIGHT

2 ^ND APPELLANT

AND

THE ATTORNEY GENERAL OF JAMAICA

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

R.N.A. Henriques, Q.C., Dennis Morrison, Q.C., David Batts and Ransford Braham, instructed by Livingston, Alexander and levy for the Jamaican Bar Association

Frank Phipps, Q.C. and Ms. Carolyn Reid, instructed by Ms. Suzette Wolfe of Crafton Miller and Co. for Ernest Smith and Co. and Ernest Smith

Mrs. Jacqueline Samuels-Brown and Ms. Deborah Martin, instructed by Crafton Miller and Co. for Nesta-Claire Smith, Pearline Bailey and Marsha Smith

Mrs. Pamela Benka-Coker, Q.C, instructed by Bert Samuels for Hugh Thompson & Gifford Thompson and Bright

Michael Hylton, Q.C, Mrs. Nicole Foster-Pusey and Garfield Haisley for the Attorney-General and Deputy Superintendent of Police Karl Plummer

David Fraser, Mrs. Caroline Williamson-Hay and Mrs. Ann-Marie Lawrence-Granger, for the Director of Public Prosecutions

CONSTITUTIONAL LAW - Protection of property - Privacy of property

CONSTITUTIONAL LAW - Attorney's office - Warrants authorizing police to enter, search and seize materials

FORTE, P. PANTON, J.A.

1 The circumstances of this case are unprecedented in the history of our country. In January, 2003, the offices of several attorneys-at-law were searched by the police, who seizd several clients' files although there was no allegation that any of the attorneys or their members of staff had committed any criminal offences, or that there had been any wrongdoing by anyone on those premises. The attorneys-at-law who were affected by this action were joined by the Jamaican Bar Association in another unprecedented move, that is, the filing of suits against the state challenging its authority to behave in this manner. The consolidated suits were heard by the Constitutional Court (Wolfe, C.J., Karl Harrison and Hibbert, JJ.) which upheld the action of the state. This appeal seeks to overturn the decision of the Constitutional Court.

2 The police acted under the authority of three warrants dated 24 ^th January, 2003, signed by His Honour Mr. Martin Gayle, Resident Magistrate for the Corporate Area. The warrants were issued under section 23 (3) of the Mutual Assistance (Criminal Matters) Act (hereinafter referred to as "The Act") and addressed to Deputy Superintendent of Police, Karl Plummer who supervised the searches. The law offices specified in the warrants were those of Ernest A. Smith at 85 East St., Kingston, Ernest A. Smith and Marsha Smith at Main Street, Browns Town, Saint Ann, and Gifford Thompson and Bright located at 122 – 126 Tower St., Kingston. The warrants were similar in wording. Each recited, somewhat clumsily, that it appeared to the Resident Magistrate, upon the hearing of an information on oath laid by Deputy Superintendent Plummer, that:

"there was reasonable cause to suspect that -

• 1. Any document or article pertaining directly or indirectly to any or all of the Respondents herein or to Bay Vista Villages and Lot 45 Breadnut Drive, Bengal, St. Ann.

• 2. Any document or article otherwise relevant to criminal proceedings and/or investigations being pursued against the respondents herein by the Canadian Government.

are located at the following premises:

The Law Offices of....."

Each warrant recited, further, that whereas it appeared to the Resident Magistrate that the seizure of the abovementioned articles would assist in the investigation of five stated offences currently under investigation in Canada in respect of the Respondents herein, he was authorizing and commanding the Deputy Superintendent "forthwith and with proper assistance and with such force as may be necessary to enter the said premises at any time of the day or night and there diligently to search for the said articles as aforesaid and if any such articles shall be found to seize and take such articles with you". Although the warrants refer to "the respondents herein", it is noted that no "respondents" were named in the said warrants.

3 At the time of the searches, one Robert Thomas Bidwell, a Canadian citizen residing in Jamaica, was in custody awaiting the conduct of an extradition hearing in relation to himself at the Corporate Area Resident Magistrate's Court. Mr. Ernest Smith and Mr. Hugh Thompson, attorneys-at-law, and appellants herein, had been retained personally to appear for Mr. Bidwell. The latter had been arrested in late 2002, and the extradition hearing had been scheduled for February 25, 2003. Mr. Ernest Smith was then chairman of the Board of the Strata Corporation in respect of Bay Vista Village and his law firm Ernest A. Smith and Company was the legal advisor to the strata corporation. Mr. Bidwell was intricately involved with and undoubtedly linked to the acquisition of this property, its development, and the subsequent transfers of units therein. The police, on January 27, 2003, seized from Mr. Smith's Brown's Town office all files relating to Bay Vista Village. The following day, the police searched Mr. Smith's office at 85 East St., Kingston, and in the presence of Miss Marsha Smith, one of the appellants herein, examined the contents of the file containing Mr. Bidwell's instructions to Mr. Smith in respect of the pending extradition proceedings. Deputy Superintendent Plummer was sufficiently gracious and thoughtful not to remove this file from the office. He said: "...I took the decision not to take this file as it is a matter before the court and the file would be needed." (page 93 para. 57 of the record of appeal). On the said January 28, 2003, the police seized, read and removed several files relating to Mr. Bidwell and Bay Vista Village from the office of Mr. Hugh Thompson. The search party, which apparently included at least one member of the Royal Canadian Mounted Police, brushed aside all objections by the attorneys who contended that the searches breached legal professional privilege.

4 These searches had their genesis in the receipt of a letter of request from Canada to the Director of Public Prosecutions (DPP) who then gave authority to the Deputy Superintendent of Police to make application to the Resident Magistrate for warrants to effect the wishes of the Canadian authorities. This entire process has come under attack from the attorneys-at-law directly involved as well as legal practitioners in general, through the Jamaican Bar Association. Hence the claims that were filed by the appellants and adjudicated on by the Constitutional Court.

5 The appellants sought from the Constitutional Court a raft of declarations, orders of certiorari and mandamus, and an injunction. In keeping with the consolidation of the suits, it is appropriate to summarize the reliefs that were sought, and denied.

6 The appellants sought declarations that:

• (1) The warrants breached sections 13, 18, 19 and 20 of the Constitution;

• (2) The warrants prejudiced the right of citizens to legal professional privilege, contrary to common law, and sections 19, 21 and 23 of the Mutual Assistance (Criminal Matters) Act;

• (3) the taking and reading of clients' documents breached sections 18, 19 and 20 of the Constitution;

• (4) the Director of Public Prosecutions as the Central Authority pursuant to the Mutual Assistance (Criminal Matters) Act is in breach of the Constitution;

• (5) section 23 of the Mutual Assistance (Criminal Matters) Act is inapplicable to documents and articles in possession of attorneys which are protected by legal professional privilege;

• (6) the warrants were null and void for failure to disclose the names of the respondents and for lacking in specifics as to documents and articles to be seized; and

• (7) the Mutual Assistance (Criminal Matters) Act is in breach of the Constitution so far as it purports to authorize the issue of warrants to search attorneys' offices.

7 All appellants sought orders of certiorari to remove into the Supreme Court and quash the warrants issued by the Resident Magistrate. In addition, they, with the exception of the Jamaican Bar Association, sought orders of mandamus for the release and return of all documents, files and articles seized during the search. Further, the appellants in claim no. 238/03 (The Smiths and Pearline Bailey) sought an injunction to prevent the respondents from using the documents seized, and to restrain the Resident Magistrate from authorizing or issuing any other search warrant to search their offices.

8 The Constitutional Court had before it affidavits sworn to by, or on behalf of, the appellants. The affidavits were contentious only in so far as the details of certain aspects of the searches were concerned. Those contentious areas are not such as would prevent a proper determination of the issues before this Court. Miss Hilary Phillips, Q.C, President of the Jamaican Bar Association, deponed that the Association was incorporated on...