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Body set up to protect those being investigated, court told

Former premier Ewart Brown (File photograph)

A body set up to oversee an inquiry into Ewart Brown was created to protect the rights of those under investigation, including the former premier, according to the counsel for the Director of Public Prosecution.

Elizabeth Christopher, for the DPP, told the Supreme Court that the Strategic Oversight Group was created to audit and monitor the investigation and did not make investigative decisions.

Ms Christopher said part of the responsibility of the body was to safeguard the rights of those who were being investigated by a joint investigation and prosecution team created to look into allegations.

“Scary would be the absence of the like of the SOG when you have someone of Dr Brown’s magnitude or profile being investigated,” she said.

She added that while the Deputy Governor of the day, Ginny Ferson, was involved with the SOG, there was nothing in the records to suggest that she had overstepped the responsibilities of her office.

“There’s not one scrap of paper that shows any malevolence by any of the members,” Ms Christopher said.

Dr Brown’s legal team has argued that the SOG breached laws around the abuse of power through the inclusion of Ms Ferson and Rory Field, the Director of Public Prosecutions at the time, as members.

The former premier has sought declarations from the Supreme Court that the activities of the joint investigation and prosecution team were 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”.

However, Ms Christopher said the “unincorporated association” which also included the then Commissioner of Police, was focused on the processes of the investigation and its time line rather than the decision making process.

“This is not a decision-making body in the context of an investigation or the investigative direction,” she said. “It’s an auditing process to make sure there are best practices.”

Ms Christopher said one of the group’s responsibilities was to ensure that the rights of those under investigation were protected and create a “buffer” between the Government and those under investigation.

She cited several documents showing communications between the members of the SOG related to what was branded as “Operation Chestnut” and argued that they showed each of the members acting properly according to their roles.

“There is nothing to show that anyone went outside their remit,” Ms Christopher said. “There’s nothing to suggest that someone interfered in someone else’s line.”

Ms Christopher said that while Dr Brown said he believed the Foreign and Commonwealth Office had animosity towards him for his 2009 decision to bring four Uighurs to Bermuda from the US prison camp at Guantánamo Bay, she said there was no evidence to back up the assertion.

Counsel for Dr Brown argued earlier this week that the existence of the SOG was kept secret from the public.

Mr Duncan said that the DPP must have administrative and executive independence and the Bermuda Constitution prevented the Governor’s office from being too involved in the criminal justice process.

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

Mr Duncan also alleged that the Deputy Governor had shown an insistence on an investigation into Dr Brown and was involved in recommendations for a “proprietorial angle” in several e-mails to the DPP.

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

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