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Former premier failed to show discrimination, court told

Ewart Brown (Photograph by Akil Simmons)

A senior lawyer has claimed complaints of discrimination launched by former premier Ewart Brown related to a criminal investigation should be struck out.

Sean Dunleavy, who is representing the Deputy Governor in the case, argued that the claims were “reverse engineered” to make them appear to be constitutional.

“It is a claim that is working overtime to appear to be a claim about discrimination on the basis of political opinion,” he said.

“Subjected to the slightest scrutiny, that claim falls apart.”

He argued that Dr Brown could have applied for a judicial review, but such an application would be likely to fail as the claims could be addressed during a criminal trial.

Dr Brown, who was premier between 2006 and 2010, has launched a civil action against the Director of Public Prosecutions, the Attorney-General and the Deputy Governor, claiming that the inquiry was unconstitutional.

Dr Brown had claimed that his 2009 decision to bring four Uighurs to Bermuda from the US prison camp at Guantánamo Bay soured his relationship with Sir Richard Gozney, then the Governor, and prompted a police inquiry — an investigation that the Governor had shown “a personal” interest in.

From that point on, Dr Brown, who is represented by King’s Counsels Delroy Duncan and Jerome Lynch, said he felt “targeted” because of his political views.

However, Mr Dunleavy rebutted allegations of discrimination, claiming that Dr Brown had failed to provide any evidence to support them.

He also argued against claims that the inquiry was rendered unconstitutional because of the involvement of his clients.

As the case continued yesterday, Mr Dunleavy said the creation of the Strategic Oversight Group — a committee of high-ranking officials including the DPP and Deputy Governor set up in 2014 — was unprecedented because such an investigation had never been carried out in Bermuda before.

“At that time Bermuda was a jurisdiction that was having to rise to the occasion,” he said. “Bermuda had not been faced with this type of case before or these kinds of allegations before and found itself falling short in how it responds.”

Mr Dunleavy said there was no evidence that the investigation was based on political opinion and that it was on the applicant to prove their case.

He added that Dr Brown would need to set out how the SOG subjected the applicant to a “disability or a restriction” to prove discrimination but had not done so.

“We have been shown no evidence to say, other than the abstract claims of separation of powers, that there was any actual disability or restriction here,” he said. “It’s all theoretical.

“Our position is that they have simply not made out a prima facie case for discrimination, and we say that is because they are trying to take a claim that is not a discrimination claim and shoehorn it in.”

Mr Dunleavy said the complainant appeared to want to argue against the decision to initiate proceedings against Dr Brown, but such claims were not constitutional and should be handled by a judicial review.

“That is the underlying claim under all the claims, that the DPP or the Commissioner of Police surrendered their independent discretion to political pressure,” he said.

Mr Dunleavy said that Dr Brown could have called for a judicial review in April 2019, when he was informed of the SOG’s existence and composition, but action was not taken until after the DPP decided to prosecute.

“They are saying they are not challenging the decision to prosecute, in which case there was no reason to wait until the decision to prosecute,” he said.

Mr Dunleavy added: “Why would you let an investigation continue if you feel that way about an investigation? Why would you let it play out?”

The hearing, which is being held before Acting Puisne Judge Martin Forde, continues.

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