Asot Michael Josette Michael Teresa-Anne Michael v The Attorney General the Commissioner of Police the Magistrate for District A

• Jurisdiction: Antigua and Barbuda
• Judge: Robertson J.
• Judgment Date: 21 May 2021
• Judgment citation (vLex): [2021] ECSC J0521-2
• Court: High Court (Antigua)
• Date: 21 May 2021
• Docket Number: CLAIM NO. ANUHCV2019/0632/ANUHCV2020/199

[2021] ECSC J0521-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. ANUHCV2019/0632/ANUHCV2020/199

In the Matter of applications by the Claimants for administrative orders

And in the Matter of applications by the Claimants for leave to apply for a judicial review and (1) an order of certiorari quashing (a) the First Defendant's acceptance of a request for mutual legal assistance from Her Majesty's Government of the United Kingdom, (b) the Warrant for the search of safety deposit box 128 at The Bank of Nova Scotia, Market and High Street, St. John's Antigua, issued on 30 ^th October 2019 by the Third Defendant; and (2) an order of prohibition, prohibiting the First and Second Defendants from transmitting information to Her Majesty's Government and the National Crime Agency of the United Kingdom in relation to the Claimants.

And in the Matter of Section 18 of Antigua and Barbuda Constitution Order Cap. 23

And in the Matter of an application for relief and redress under Section 18 of Antigua and Barbuda Constitution Order Cap. 23 in relation to the infringement of the rights of the Claimants under section 3(a) and (c), 10 and 15 of the Antigua and Barbuda Constitution Order Cap.23

Between:

Asot Michael Josette Michael Teresa-Anne Michael

Claimants

and

The Attorney General the Commissioner of Police the Magistrate for District A

Defendants

APPEARANCES:

Claire Montgomery Q.C. appearing with Hugh Marshall Jr. for the Claimants

Gilbert Peterson S.C. appearing with Carla Brookes-Harris for the Defendants

1 Robertson J. Introduction. Applications for the determination of this court have been filed by the claimant and the defendant. The claimant has, by application filed on 11 ^th March 2020, sought the inspection/copying of specific documents disclosed by the defendant in the defendant's list of documents filed on 10 ^th February 2020. The claimant has also sought that unless the defendants make available the documents sought that the defence in the matter or alternatively any defence filed by the defendants stand struck out.

2 Specifically, the claimants have applied to the court seeking, among other things, an order that:

• a. Unless the defendants make available for inspection and copying within seven (7) days, the documents listed in Schedule 1 Part 1 of the defendants' list of documents filed on 10 ^th February 2020 and identified as items 1, 2, 3, 4, 5, 6, 7, 9, 10, 13 and 17, the defendants be prohibited from filing any defence in the matter or alternatively any defence filed by the defendants should be struck out. The items identified are more particularly detailed hereunder:

  • i. Letter dated 28 ^th August 2018 from Crown Prosecution Service to the Honourable Attorney General;

  • ii. Two letters dated 27 ^th October, 2018 from the Home Office, Glodi Malundama to the Attorney General;

  • iii. Letter dated 10 ^th September, 2019 from Crown Prosecution Service to the Honourable Attorney General;

  • iv. Letter dated 24 ^th October, 2019 to Lt Col Edward Croft, Director of Office of National Drug and Money Laundering Control Policy [hereinafter called ONDCP] from the Honourable Attorney General;

  • v. Search Warrant dated 30 ^th October, 2019;

  • vi. Letter dated 8 ^th November 2019 from Commissioner of Police to Attorney General;

  • vii. Claim No. ANUHCV2019/0729 Director of ONDCP v Caribbean Union Bank and affidavit in support filed on 14 ^th November, 2019;

  • viii. Claim No. ANUCV2019/0629 Director of ONDCP v Global Bank of Commerce and Affidavit in Support filed on 14 ^th November, 2019;

  • ix. Letter dated 5 ^th December, 2019 from the Director of ONDCP to the Honourable Attorney General;

  • x. Letter dated 11 ^th December, 2019 from the Director of ONDCP to the Honourable Attorney General.

• b. The claimants also sought that the defendants make available for inspection and copying the items identified in the letter of the first defendant to Mr. Richard Thomas dated 10 ^thDecember 2019 and listed as item 15 in the defendants' list of documents Schedule 1 Part 1. Namely,

  • i. The witness statement of Debra M. Williams,

  • ii. Certificate of Authenticity of business records,

  • iii. Records from ECAB,

  • iv. Items DMW1 through to DMW 15.

• c. The defendants make available for inspection the items identified in the witness statement of Erita Griffith dated 3 ^rd December 2019 and identified as item 11 in the defendants' list of documents in Schedule 1 Part 1, namely:

  • i. Certificate of Authenticity of Business Records;

  • ii. Records produced by Global Bank of Commerce and exhibited to the Witness Statement of Erita Griffith including exhibits A and B.

• d. Insofar as those not included under paragraph 3, the items identified in the letter of the first defendant to Mr. Richard Thomas, dated 5 ^th December 2019 and listed as item 12 in the defendants list of documents filed on 10 ^th February 2020 in Schedule 1 Part 1, namely:

  • i. The witness statement of Erita Griffith;

  • ii. Records produced by Global Bank of Commerce and exhibited to the Witness Statement of Erita Griffith

  • iii. Certificate of Authenticity of Business Records;

  • iv. Letter from Global Bank of Commerce with the Schedule of Documents provided.

• e. The defendants make available for inspection and copying the items identified in the witness statement of Debra M. Williams items DMW1 through to DMW15 in the said witness statement identified in the defendants' list of documents filed on 10 ^th February 2020 as item 14 in Schedule 1 Part 1;

• f. The Defendants make available for inspection and copying the additional items identified in the defendants' list of documents filed on 10 ^th February 2020 in Schedule 1 Part 1. Namely,

  • i. Item 16; The letter of 11 ^th December 2019 by the First Defendant to Richard Thomas, the enclosures referred to therein;

  • ii. Item 18: The letter of the first defendant of 11 ^th December 2019 addressed to Claire Tripcony, the enclosure referred to therein;

  • iii. Item 19: The Letter of 12 ^th December 2019 from the first defendant to Claire Tripcony, the enclosure referred to therein.

• g. The defendants make available for inspection and copying the items identified in the witness statement of Vinema Jarvis, items VMJ1 through to VMJ8, in the said witness statement identified in the defendants' list of documents filed on 10 ^th February 2020 as items 10 in Schedule 1 Part 1.

2 The application of the claimants is grounded in:

• a. The operation of CPR 26.4, 28.5(1), 28.5(4), 28.11 and 28.13.

• b. The defendants having refused, neglected or otherwise failed to make available for inspection documents disclosed.

• c. The defendants having failed to comply with a filed Notice to Inspect documents disclosed.

• d. The fact that through the disclosure of 10 ^th February 2020 the claimants were made aware of documents which are relevant and potentially important to the claim.

3 Subsequent to the claimant filing its application, the defendant filed on 2 ^nd June 2020, an application seeking that the defendants, pursuant to CPR 28.14, be permitted to not disclose documents listed in the list of documents filed on 10 ^th February 2020. The grounds for this application are that:

• a. The disclosure would damage public interest; and

• b. The Attorney–General has a right or duty to withhold disclosure of the documents.

4 In supporting its application the defendants noted that:

• a. The ordinary rules of disclosure which include the inspection and copying do not readily apply to judicial review proceedings as the rules would in civil proceedings.

• b. The claimants have not shown that the disclosure is necessary for the just disposal of the proceedings.

• c. Given the stage of proceedings the identification and/or information regarding the nature of the documents is sufficient.

• d. The documents were part of a Letter of Request under the provisions of the Mutual Legal Assistance in Criminal Matters Act 1993, as amended. Thus, the communication between the requesting foreign State and the Receiving Agent ought to be confidential.

• e. The documents sought under the Act are with respect to an ongoing investigation by the requesting foreign State and ought to be kept confidential.

• f. Permitting the inspection of the document will not be in public interest:

  • i. The State of Antigua and Barbuda has an obligation under the Act to guard the contents of the documents and to treat matters confidentially.

  • ii. The individuals who seek inspection, that is the claimants, are subjects of the investigation.

  • iii. The public has an interest in the unimpeded investigation of criminal offences.

Background

5 The claimants sought and obtained permission to file these Judicial Review proceedings seeking certain administrative orders, by virtue of the first defendant having acted on a Letter of Request issued under the provisions of the Mutual Legal Assistance in Criminal Matters Act, 1993, as amended, [hereinafter called “the Act”]. The claimants claim can be summarized thus, that: (i) the defendants' acceptance of, and assistance provided in respect of the request or requests for mutual legal assistance from the British authorities in respect of the claimants, was unlawful; that (ii) the search warrant was unlawfully issued by the third defendant; (iii) that the search warrant was not lawfully executed by the second defendant; and (iv) any transmission of information by the first defendant to the British authorities (including agencies) and the retention and transmission of the items seized were unlawful.

6 Specifically,

• a. The first defendant's decision, as Central Authority to comply with a request by the Crown Prosecution Service [hereinafter “CPS”] of the United Kingdom was unlawful and violated the constitutional rights of the claimants.

• b. The third defendant acted unlawfully in the issuance of a search warrant under the Magistrate's Code of Procedure Act Cap 255...