Legal wrangling over powers to stay Ewart Brown prosecution
A lawyer representing former premier Ewart Brown in an abuse-of-process case expressed “considerable concern” about submissions from the Crown, which he argued disregarded sections of the Bermuda Constitution.
Ryan Hawthorne was making representations on behalf of Dr Brown in his application to dismiss a case, both under the Bermuda Constitution and at common law, involving longstanding corruption charges against the former Progressive Labour Party leader.
The case, in its second day, is being presided over by Martin Forde, King’s Counsel, via Zoom over three days.
Dr Brown has been accused of 13 counts of corruption, including five related to agreements with US medical facility Lahey Clinic between 2001 and 2010.
The remaining eight charges relate to allegations of corruptly obtaining donations between 2007 and 2010.
The sections of the constitution in question deal with the fundamental right and freedom of the individual to the protection of the law and, in the case of the alleged foregoing of certain provisions, an individual’s right to apply to the Supreme Court for redress.
Mr Hawthorne, who practises all aspects of litigation including constitutional challenges, referred to the skeleton argument of the Director of Public Prosecutions which, he said, appeared to attempt to “limit what the powers are to challenge the DPP”.
He said the argument suggested that “the constitution therefore does not directly imbue the Supreme Court judge with the power to terminate a prosecution”.
Adley Duncan, the Deputy Director of Public Prosecutions, on behalf of the Crown, said the abuse-of-process application before the court was not the appropriate course of action to achieve the outcome sought by the applicant.
Submissions will be made in the next hearing to ascertain whether there was a procedural error by way of the omission of a constitutional motion — and whether, in the case that there was, it could be remedied.
Mr Justice Forde gave some indication that the case would be able to go ahead regardless, while Jerome Lynch, KC, for Dr Brown, said he would make a case that there was no such error.
Mr Hawthorne said: “The effect of the proposition in the DPP’s skeleton argument is that the court should disregard section 1(a) of the constitution, should disregard, section 6 of the constitution, should disregard the redress clause of the constitution and that the remedies available to the individual are limited to the common law.
“The basis of the application before you is the constitution. What seems to have happened in previous cases, is the common law jurisdiction is referred to and, almost in passing, there is reference to a breach of section 6 but then the remedies available … revert to the common law.
“The starting point should be, has the constitution been breached? If it has, then the second point is, is there adequate means of redress elsewhere?”
He said that, in accordance with a previous Privy Council ruling, protection of the law also mandated the court look for a “timely and efficacious remedy”.
“Where there is not adequate means of redress elsewhere, the court has an obligation to provide a remedy based on the right to the protection of law and the redress provision,” he argued.
Mr Hawthorne invited Mr Justice Forde to “not be so constrained as the DPP would have you be” and consider the obligation to give a wide interpretation to the constitution.
Section 6 of the constitution states that if an individual is charged with a criminal offence, the case shall be afforded “a fair hearing within a reasonable time by an independent and impartial court established by law”.
Mr Duncan made initial submissions focusing on what he said was the omission by the applicant of a constitutional motion. He said: “The rules of the Supreme Court, rule 1.14.1 in particular, require constitutional motions to be made by way of originating summons.
“I know my friends are aware of how a constitutional application is supposed to be made.
“There is no constitutional motion before you. What is before you is a common law application to stay this indictment against the defendant on the grounds of abuse of process.
“There is, properly speaking, no constitutional motion before you alleging a breach of the reasonable time requirements, there is no constitutional motion before you alleging a breach of protection of the law.
“These are potentially matters that may be relevant to determining the actual application before you, which is a common law application to stay an indictment for abuse of process.”
Section 1: Whereas every person in Bermuda is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely: life, liberty, security of the person and the protection of the law
Section 15 (1): If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress
Section 15 (2): The Supreme Court shall have original jurisdiction — (a) to hear and determine any application made by any person in pursuance of subsection (1) of this section
He said Mr Hawthorne’s reference to section 15 of the constitution referred to a general suite of powers that may be open to a court, in which a termination may be won if a breach is made good.
He said because a stay was such an extreme remedy, the law was in place to impose “guardrails on itself that limit the exercisability of that remedy”.
“This is not a direct imbuement of power under the constitution to stop a prosecution,” he said. He added that the power “derives under common law”.
“Even if this court were to find there was a breach on the basis of delay, based on the language of the constitution itself, and on the decided cases, this does not inexorably mean that a stay is the result.
“There could be a declaration vindicating a breach as found, there could be a mitigation of sentence, there can be directions, there can be concessions …
“The stay is not available where there are adequate means of redress, even under the section-15 formulation which, in any event, we say doesn’t apply here.”
Mr Justice Forde asked Jerome Lynch, KC, who is also representing Dr Brown, whether he considered the lack of an originating summons a deficiency — and, if so, whether it could be cured.
Mr Lynch said he regarded the argument as “misguided”.
He added: “Even if we are wrong, and I have every confidence that you will conclude once we deal with this tomorrow that we are not, the realities are if there was merit in this argument, which has not been addressed at all, it would be wholly wrong for your lordship to disregard the submissions simply because of some procedural error … we are not in that place; there is no procedural error.”
The case continues.
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