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Former premier claims investigation unconstitutional

Former premier Ewart Brown (Photograph by Akil Simmons)

The legal team for Ewart Brown has claimed that an investigation into the former premier broke constitutional law.

The team suggests that a 2014 Strategic Oversight Group investigating Dr Brown breached laws around the abuse of power when the Director of Public Prosecutions at the time, Rory Field, and Ginny Ferson, then the Deputy Governor of Bermuda, joined the group.

Dr Brown has sought declarations from the Supreme Court that the activities of the joint investigation and prosecution team was unconstitutional and unlawful as it breached his constitutional and common law rights.

He further sought declarations that the Deputy Governor’s involvement in the investigation was unconstitutional

Delroy Duncan, KC, a lawyer representing Dr Brown, told the Supreme Court that their inclusions were an overextension of their powers and reflected the presence of a “secret society holding clandestine meetings”.

Mr Duncan added: “This case should send chills down the spine of every Bermudian who believes in policing in a democratic society in a fair and just manner.

“I don’t use these words in hyperbole, but because there is no precedent in common law for something like this to happen.”

The SOG that investigated Dr Brown from 2014 to 2020, which included representatives from the Bermuda Police Service, was not known by Dr Brown or any other members of the public, the court was told.

Mr Duncan said that, because the DPP has the power to potentially revoke a person’s liberty, it must have administrative and executive independence.

Laws were built into the constitution to prevent institutions, such as the prosecutions department or Governor’s Office, from being too involved in the criminal justice process.

But Mr Duncan argued that the DPP director’s involvement in this group breached those very constitutional rules.

He added that the then Deputy Governor’s insistence on an investigation into his client, as well as his involvement in the SOG and recommendations for a “prosecutorial angle” in several e-mails to the DPP, had also crossed a line.

Mr Duncan said: “It really must be the most flagrant breach and, with respect, most offensive breach of the constitution.”

He added: “Why is a Director of Public Prosecutions involved in a group involving political actors?

“What you have is the DPP not indirectly influencing how an investigation is conducted. That’s got to be a [constitutional] compromise.

“After a while it just boggles the mind of what they are doing.”

Mr Duncan argued that the Deputy Governor should not have been linked to any sort of policing exercises because they are out of his remit.

He added: “There is a sense of grievance that a state actor on the level of the Deputy Governor can get away with this.”

Jerome Lynch, KC, also for Dr Brown, said that Michael DeSilva, the Commissioner of Police at the time, brought the DPP and Deputy Governor on board whenever it was deemed necessary.

But he argued that, despite this, they still stayed on board for much longer than necessary.

Mr Lynch also claimed that no one within the group spoke out against the inclusion of the DPP and Deputy Governor, making everyone equally culpable.

Counsel representing the DPP, the Commissioner of Police and the Deputy Governor are contesting the application and are due to address the court.

The case is being held before Acting Puisne Judge Martin Forde and will continue.

• UPDATE: This story has been updated to take out reference to the US Department of Justice and the UK Ministry of Justice being part of the SOG, which was incorrect.

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