The arrest and detention of Auditor General Larry Dennis by Police investigating the leak of a dossier on the Bermuda Housing Corporation (BHC) scandal was criticised by a lawyer yesterday.

Saul Froomkin QC — representing this newspaper group in fighting attempts to halt further revelations from the dossier — also attacked decisions reportedly made during the BHC probe by former acting DPP Kulandra Ratneser.

“There’s public disquiet,” he told the Court of Appeal, arguing that the media has a right to inform the public about allegations of iniquity such as those allegedly outlined in the leaked documents.

Chief Justice Richard Ground ruled on Monday that the right of the public to know about the probe into serious allegations about public figures including Premier Ewart Brown outweighed concern that the file was a confidential Police document.

Police Commissioner George Jackson and Attorney General Philip Perinchief launched the action against the Island’s media outlets after ZBM and the Mid-Ocean News published extracts from the documents on May 23 and June 1 respectively.

The leaked dossier — said to run to thousands of pages — reportedly revealed that Dr. Brown, former Premier Jennifer Smith, former Ministers Renée Webb and Arthur Hodgson and construction boss Zane DeSilva were investigated by Police looking into allegations of corruption at the BHC.

The Commissioner and Attorney General asked for a ban on the so-far unpublished sections being reported, although the contents of these were not outlined during the hearing.

Less than 24 hours after Mr. Justice Ground ruled against this, the pair took their fight to the Court of Appeal. The panel of three judges — President Justice Edward Zacca, Sir Austin Ward and Gerald Nazareth — heard arguments Tuesday and yesterday.

Delroy Duncan, acting for the Attorney General and Police Commissioner, asked the panel to find that the Chief Justice did not weigh the balance correctly between confidentiality and press freedom of expression. He argued that the ban on further publication should be granted on grounds including that the documents are confidential and breach of confidence was committed in this case.

Mr. Froomkin has argued that the media has a common-law right to breach confidence in the interests of exposing iniquity — in addition to its constitutional right to freedom of expression.

However, Mr. Duncan pointed out that none of the figures named in the Mid-Ocean News report were prosecuted on the decision of Mr. Ratneser. Mr. Duncan submitted that this was important to his argument that the “iniquity” argument is not strong enough in this case to be relied upon by the media. Mr. Duncan said the necessary “high degree of misbehaviour” was not present to justify further publication from the file.

Countering these submissions, Mr. Froomkin referred to the Mid-Ocean News report, telling the judges: “You will see from the publication which is before you the iniquities include corruption, misfeasance in office, conspiracy to defraud. If those aren’t serious matters, I don’t know what would be.”

As The Royal Gazette has previously reported, Police arrested two men, who are believed to have had links to the Progressive Labour Party, last Thursday night in connection with the leaked BHC files. They spent two nights in custody before being released without charge on Saturday. Auditor General Larry Dennis — the independent overseer of the Government’s fiscal conduct — was this week detained for 24 hours before being released without charge by detectives investigating the leak.

Stressing what he claimed was strong public interest in the saga, Mr. Froomkin said: “I wonder if Your Lordship’s can take notice of what’s been published in the newspapers this last couple of days. There’s public disquiet.”

He later added: “We find the Auditor General being arrested and held 24 hours. We find people — apparently whistleblowers — being held 48 hours... what effort, if any, is being made to look into the iniquities alleged? The people weren’t even interrogated, statements weren’t even taken from them, because the then-Acting Director of Public Prosecutions said ‘you can’t speak, you can’t interview anyone unless you have reasonable grounds to suspect whether they’ve committed an offence’. That’s nonsense. Absolute total rubbish.”

Mr. Froomkin was making an apparent reference to a section of the Mid-Ocean News report that said Detective Inspector Robin Sherwood told then-Police Commissioner Jonathan Smith in December 2003 he believed there were sufficient grounds to speak with Dr. Brown under caution, but did not believe there were sufficient grounds to arrest him if he declined such an invitation.

According to the Mid-Ocean News, Mr. Ratneser is said to have written a letter to Mr. Smith in April 2004 confirming this view, and saying he could “see no criminal offence disclosed or suspected” in connection to Dr. Brown and as a result Police had “no authority in law to ask Dr. Brown to answer any questions at this stage”.

Mr. Duncan said that in his view, Mr. Froomkin’s “mini-outburst” highlighted that the acting DPP made a decision on whether crimes had been committed and the media would be seeking to “go behind” his right to do so in publishing more leaked material.

However, Sir Austin Ward pointed out that the fact Mr. Ratneser made a decision did not mean people could not look at it in the context of their own legal knowledge and express a contrary view.

Of the Mid-Ocean News report, he said: “One can go through that, as Mr. Froomkin suggests, and say ‘I find here misfeasance, corruption, I know the criminal code and here I find the section of the criminal code, and the DPP has given his opinion.”

This, said Mr. Justice Ward, “far from killing discussion”, would actually prompt it.

He also told Mr. Duncan that he felt the argument that the media was seeking to circumvent the DPP’s authority created more problems than it solved.

The Appeals justices will rule at 10 a.m. on Monday. In the interim, they have ordered that Bermuda’s broadcasting organisations and the Bermuda Sun should not report further material from the dossier until the appeal concludes. The Mid-Ocean News and The Royal Gazette have agreed to extend a previous undertaking made not to do so.