A lawyer argued that a former premier had fallen short in attempting to prove he had been discriminated against through a criminal investigation.

Elizabeth Christopher, the counsel for the Director of Public Prosecutions, said that while Ewart Brown had made “bold assertions”, there was little to back a constitutional discrimination claim.

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 because they 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.

Ms Christopher argued that the dispute should be handled as a criminal matter or through judicial review and that the constitutional argument was an abuse of process.

As the hearing continued yesterday, she said that the constitution protects against “direct” discrimination. However, in order to prove direct discrimination, Dr Brown would need to show he was treated differently than someone else in similar circumstances.

In this case, she said Dr Brown had failed to provide an example of a suitable comparator.

“It is not up to us to come up with a comparator for them,” she said.

Ms Christopher added that discrimination could be allowed with proper justification, and in this case any difference in treatment sparked by the creation of the SOG was to safeguard Dr Brown’s rights.

“In this instance, we have a former premier whose party is now in opposition who is being investigated, and the question is should we treat him differently,” she said.

“The answer is yes, but only to the extent identified in our ‘small c’ constitution.

“And they were to protect him and the ethics of the investigation when the party in power had a motive to manipulate it.”

Ms Christopher said that while Dr Brown complained about a deteriorating relationship with Richard Gozney, the Governor, and about Sir Chris Bryant, Britain’s undersecretary of state for foreign affairs “wagging his finger” at him, those claims were not enough to prove discrimination.

She noted that when the SOG was formed, Mr Gozney was no longer the Governor.

Ms Christopher also said that the Attorney-General when the SOG was created, Mark Pettingill, had subsequently represented many of Dr Brown’s patients in a lawsuit relating to the police raid on his clinic.

She said there was nothing to suggest any DPP was improperly involved in the investigation and there was nothing improper about the DPP providing legal assistance about complex investigations.

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

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