March 20, 2018 ruling
Investigation into deceased lawyer revealed
A lawyer was under investigation by fraud squad detectives at the time of his death, according to a court ruling made public this week.
The Supreme Court judgment revealed that the man was being investigated by the Organised and Economic Crime Department of the Bermuda Police Service and that detectives retained electronic devices taken from his home in the belief that they “contained evidence of criminal effects”.
The lawyer is not identified by Acting Puisne Judge Shade Subair Williams, who said in the written judgment: “All publications in relation to this matter, including entries in the cause book, shall be performed in preservation of such anonymity.”
The judgment, dated March 20, appeared on the Supreme Court website and was available for the public to read and download yesterday.
It related to legal proceedings brought against the police by the law firm where the attorney worked.
The law firm objected to the fact that after an inquiry into the lawyer’s death was closed, the police held on to a mobile phone and two laptops that had been seized from his home by officers. The phone and one of the laptops were the property of the law firm; the other laptop belonged to the lawyer.
The law firm argued that the data stored on the electronic items contained information subject to legal professional privilege and should be returned.
But the head of the OECD, who attended the deceased’s home as on-call senior officer when the items were first taken, told the law firm the police had the right to retain the items because he believed they “contained evidence of criminal effects”.
The officer said in an affidavit filed with the court: “In the usual course of events, CID [Criminal Investigation Department] would have returned the phone and any other items taken from [the deceased]’s home over the following days or weeks.
“As I have explained, my primary function is as head of the OECD. For reasons which I cannot go into, the OECD had been conducting an investigation into [the deceased]’s activities.
“The activities were said to be unrelated to his capacity as a practising lawyer.”
The officer added: “I believed and believe that the phone likely contains information relevant to this investigation. I am advised that I do not need to provide reasons for my belief.
“In order to assist the court, I can explain that among the papers found on [the deceased’s] desk were various documents relevant to the OECD inquiry.”
The senior officer said that section 22 of the Police and Criminal Evidence Act gave the police the power to retain anything that had previously been seized.
He added: “While the retention was not necessary to investigate the cause of [the deceased’s] death, it was and is necessary as part of the ongoing OECD investigation referred to above.”
The officer said detectives were unable to access encrypted data on the lawyer’s mobile phone, and it needed to be sent to an Israeli company called Cellebrite, which specialises in cellular phone access.
“We instructed [lawyer] Jeffrey Elkinson to negotiate with Delroy Duncan [counsel for the law firm] and they agree that the phone would be sent to Cellebrite to produce a copy of the phone data on a readable hard drive,” the head of the OECD said.
“The agreement was that neither the phone nor the hard drive — nor any of the other materials, such as the laptops — would, however, be made available to the police. Accordingly, the hard drive, the laptops and the phone are by agreement in Mr Elkinson’s possession where they remain on the basis that they will not be released without agreement or court order.”
The court made an order last year for the appointment of an independent lawyer to review the seized material, and to identify and isolate all information covered by legal professional privilege.
Mrs Justice Williams’s latest ruling sets out the procedural terms for how the independent counsel, Rebecca Chalkley, of Red Lion Chambers in London, should carry out that review.
The judge said: “I find that the Commissioner of Police, having no duty to obtain a warrant in respect of the [initial] seizure, has no duty to disclose any information to the court or to any other person in respect of the investigation in question.
“It then follows that the court cannot properly or lawfully impose a timeline or other form of limitation or restriction on the scope of this ongoing police investigation.”
She added: “The parties should make reasonable attempts to agree on a specified time frame for the return to the first applicant of any returnable data or information subject to legal professional privilege or which qualifies as excluded material.”
The law firm was represented by Jerome Lynch QC and the police by Ben Adamson.
• For the full judgment, click on the PDF link under “Related Media”. It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.
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