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Former premier’s legal action ‘vexatious, frivolous and flawed’

Ewart Brown (Photograph by Akil Simmons)

Complaints of discrimination launched by former premier Ewart Brown related to a criminal investigation are an abuse of process, according to a lawyer representing the Director of Public Prosecutions.

Elizabeth Christopher, counsel for the DPP, told the Supreme Court that the legal action was vexatious, frivolous and “flawed from the beginning”, arguing it should have been struck out.

“It’s not arguable. At all,” she said. “There has to be an arguable case. You still have to look at some merits of what is being suggested.”

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

The former premier has sought declarations from the Supreme Court that the activities of the Strategic Oversight Group — a committee of high-ranking officials including the DPP and Deputy Governor set up in 2014 — were unconstitutional and unlawful as it breached his constitutional and common law rights.

Dr Brown said he felt “targeted” because of his political views after he decided to bring four Uighurs to Bermuda from the US prison camp at Guantánamo Bay in 2009.

However, the Deputy Governor, the Attorney-General and the Director of Public Prosecutions called for the matter to be struck out.

As the hearing continued yesterday, Ms Christopher said that the complaints were not actually constitutional in nature, so the matter should be handled as a preliminary issue in the criminal courts.

“This matter should go back to the Supreme Court’s criminal jurisdiction,” she said.

She said that such a case should only be heard by the civil court if there was no other means of redress but alternatives were clearly laid out in the law.

Ms Christopher compared the constitutional argument to a game of Jenga, stating: “The tower has collapsed. It cannot support itself. It doesn’t make sense.”

She said a “massive” amount of time had already been spent considering a matter that should be heard in another court.

“The problem is it doesn’t really fit,” she said. “They will run into other issues in the same way they are running into issues with the constitutional provision, but that’s no reason why they shouldn’t go to those other remedies.”

Ms Christopher added that the SOG was wound up long before any charges were filed against Dr Brown.

“That group wound up with no prosecution and, from what we understand, no indication that there ought to be prosecution,” she said.

She said that the DPP was constitutionally obliged to work with the police in the public interest, but the police remained in charge of the investigation process.

“We say there was no issue in the way the DPP acted then in participating with the SOG,“ Ms Christopher said.

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

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