An unusual case

I would like to share with you an unusual case in Jamaica (Numbers 96, 102, and 108 of 2003, consolidated) that was brought against the Attorney General, the Director of Public Prosecutions and the Deputy Superintendent of Police by several lawyers, with regard to the search of their offices, in January 2003. The Jamaica Bar Association joined in the suit on behalf of the attorneys.{{more}}

The searches were initiated on the receipt of a letter of request from the Canadian Government to the Director of Public Prosecutions, who gave the Deputy of Superintendent of Police authority to carry out the search. Thereafter, warrants were issued under section 23 (3) of the Mutual Assistance (Criminal Matters Act) to search the offices of the attorneys to seize client files. In the face of this occurrence, 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 lawyers, whose offices were searched, brought suits that were consolidated and heard before the Constitutional Court. The Court ruled in favour of the state. The consolidated matter was thereafter brought before the Jamaican Court of Appeal for a determination. Panton, J.A., who wrote the judgment, declared that the circumstances of the case were unprecedented in the history of that country.

According to Panton, J.A., the warrant recited somewhat clumsily that the seizure of the articles would assist in the investigation of five stated offences currently under investigation in respect of certain respondents. The warrants issued by a Jamaican magistrate did not mention the names of any of the respondents whose files were sought. The warrants sought to have proper assistance “with such force that may be necessary to enter the premises by day or night to obtain the files.” The search party, including one member of the Royal Canadian Mounted Police, disregarded all objections by the attorneys, who contended that the searches breached legal professional privilege.

The appellants sought to remove the matters into Court to have the warrants issued by the resident magistrate quashed. They also sought to have the articles that were seized returned. An injunction was also sought to prevent the respondents from using the documents seized and to restrain the resident magistrate from authorizing or issuing any other search warrants to search their offices.

The Constitutional Court adopted a four-pronged approach to examine the constitutionality of the section of the Mutual Assistance (Criminal Matters Act) pursuant to which the search warrants were issued and the documents seized, the validity of the warrants, the legal professional privileges and the Director of Public Prosecutions as the central figure in authorizing the search (P. 12)

The Appeal Court focused on the above considerations in its deliberations. The appeals were allowed and the court declared and ordered that the act under which the warrants were issued was constitutional, but that the warrants were unlawful; the Director of Public Prosecutions as the central figure was in keeping with the constitution, but the searches and seizures ordered were in breach of the constitution of Jamaica; the searches and seizures were in breach of the legal professional privilege. The court thereby gave orders to quash the warrants and to return the documents seized. It also ordered that the respondents be restrained from making any use of the documents seized.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com