Mahesh Sannapareddy v Commissioner of Bermuda Police Service

• Jurisdiction: Bermuda
• Judgment Date: 06 February 2017
• Neutral Citation: [2017] SC Bda 12 Civ
• Date: 06 February 2017
• Docket Number: CIVIL JURISDICTION 2016 No: 284
• Court: Supreme Court (Bermuda)

[2017] SC (Bda) 12 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2016 No: 284

In the Matter of an Application for Judicial Review

And in the Matter of a Claim for Damages for Unlawful Arrest and Trespass

Between:

Mahesh Sannapareddy

Applicant

and

The Commissioner of the Bermuda Police Service

Respondent

Lord Peter Goldsmith QC of counsel and Mr Delroy Duncan, Trott & Duncan Limited, for the Applicant

Ms Anesta Weekes QC of counsel and Mr Dantae Williams, Marshall Diel & Myers Limited, for the Respondent

Judicial review-alternative remedies-abuse of process- whether risk of prejudice to pending criminal investigation is a bar to seeking judicial review of investigative actions of the Police application to strike-out or stay proceedings and/or to set aside leave-lawfulness of arrest-Police and Criminal Evidence Act 2006 section 23(6)-whether exercise of unqualified summary arrest power is arguably subject to implied restraints

REASONS FOR RULING ON APPLICATION TO SET ASIDE LEAVE/STRIKE-OUT APPLICATION

(in Chambers)

Background

1 The Applicant applied for judicial review of the Respondent's decision to arrest him without a warrant on May 19, 2016, by Notice of Application dated July 26, 2016. The main grounds of the application and the basis on which I decided to grant leave to seek judicial review on the papers on August 4, 2016 are best described by reproducing a few paragraphs from my Ruling of that date:

‘ Statutory basis for the impugned decision

4. In broad-brush terms, the Applicant complains that there was no sufficient basis for his arrest and that the subsequent search and seizure was accordingly also unlawful. His attorneys sent a letter before action dated June 16, 2016 to the Attorney-General's Chambers, who responded (by letter dated June 30, 2016) that the arrest was (a) on suspicion of ‘corrupt practices, conspiracy to defraud and money laundering’, and (b) was lawful based on section 23(6) of the Police and Criminal Evidence Act 2006 (‘PACE’). That subsection provides:

“(6) Where a police officer has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to have committed the offence.’

5. The Applicant concedes that on its face this provision appears to justify the arrest. However, in his Skeleton argument, Mr Duncan submits:

“4. Leave to apply for judicial review should be granted if, on the material available, the Court thinks that there is an arguable case for the granting the relief sought by the Applicant without going into the matter in depth; or that the case is fit for further investigation at an inter partes hearing….The threshold for leave is not a high one, and it is submitted that the Applicant's case satisfies both conditions…

10. It is the Applicant's contention that section 23(6) of PACE must be interpreted so as to fetter the discretion of police officers to proceed to summary arrest; the decision not to seek an arrest warrant from a magistrate's court under section 3 of the Criminal Jurisdiction Act and Procedure Act 2015 (‘CJPA’) must be reasonable in accordance with the scheme of PACE, the Constitution of Bermuda, the ECHR, and the common law.”

Merits of case for leave

6. Section 23(6) of PACE is derived from section 24(6) of the UK Police and Criminal Evidence Act 1984 (UK PACE) as originally enacted. On a cursory review of the Bermudian statutory scheme, however, it is far from clear that the limits placed on the power of arrest under PACE are completely aligned with those under the corresponding English provisions now in force which spell out the grounds on which the summary arrest power may be exercised (section 24(5), UK PACE). However the Applicant's case, based on construing provisions which have not seemingly been judicially considered before as a matter of Bermudian law, does in my judgment clearly raise issues which are fit for further investigation at an inter partes hearing: Middleton v Director of Public Prosecutions [2006] Bda L.R. 79 (at paragraph 3(b)). As Ground CJ further stated in the same case:

“5. The requirement for leave is a filter and the threshold for granting leave is not a high one: leave should be granted if on the material then available the court considers, without going into the matter in depth, that there is an arguable.”’

2 The Applicant filed his Notice of Originating Application on August 5, 2016 and it was issued returnable for August 18, 2016. On the morning of August 18, 2016, the Respondent filed a Summons seeking to strike out or stay the Applicant's Notice (‘the Strike-out Summons’). The original Summons on the Court file and the Summons included in the Hearing Bundle are both unissued, but counsel agreed at the January 24, 2017 hearing that the Strike-out Summons had been formally issued. In any event, I gave directions for the hearing of the Strike-out Summons on August 18, 2016 over the objections of the Applicant's counsel, who contended it was wholly unmeritorious.

3 It is true that it rarely occurs that a judicial review application is struck out before the substantive hearing or stayed. To my mind, however, judicially reviewing ongoing criminal investigations was unusual. It was easy to envisage that subsequent criminal proceedings might potentially be prejudiced in ways best known to the Respondent. Accordingly, I declined to strike out the Strike-out Summons summarily.

4 On September 20, 2016 the Respondent filed a Summons which was issued on October 4, 2016 seeking to set aside the grant of leave (‘the Set Aside Summons).

5 The Strike-out Summons and the Set Aside Summons were both heard on January 24, 2017 when I dismissed both Summonses with costs. I now give reasons for that decision.

The Respondent's case

The evidential case

6 The Strike-out Summons was supported by the First Affidavit of Paul Wright sworn on August 18, 2016. The key averment was that the Applicant's arrest formed part of a large scale fraud and corruption inquiry commenced in 2012 and that defending the judicial review application would involve disclosing sensitive material which could prejudice the investigation. The investigation was described as ‘ nearing completion and …consequently in a critical phase’. It was further deposed that it was believed that the real purpose of the judicial review application was to obtain sensitive information about the inquiry. As such it was an abuse of process and should be struck-out.

7 The Set Aside Summons was supported by the Second Affidavit of Paul Wright. This explained that the failure to interview the Applicant following his arrest was out of respect for his right to have his lawyer present. It also expressed the concern, based on public pronouncements made by Dr Ewart Brown in support of the Applicant's case that a judicial review hearing would prejudice the ongoing investigation. The case for setting aside the grant of leave was finally supported by the following averments:

‘ 10. It is believed that the Applicant's claim for judicial review is premature due to the fact that there is an ongoing investigation into the Applicant and the Applicant remains on police bail.

11. Further, it is believed that the Applicant's claim for judicial review, whilst in the midst of an ongoing investigation into the Applicant, is fundamentally misconceived.’

8 The Strike-out Summons was accordingly based on the premise that the judicial review application was brought for an ulterior motive and the Set Aside Summons was based on the closely connected premise that it was, in effect, impermissible to judicially review actions taken by the Police in a pending criminal investigation. In effect, the Respondent contended:

• (a) there was no genuine basis for challenging the legality of the search; and

• (b) pending Police investigations were immune from judicial review.

9 These Affidavits were sworn in response to the Applicant's First Affidavit in which he described prior conduct which he regarded as harassment by the Respondent prompting him to make a formal complaint to the local Police Complaints Authority in 2014. More to the point, the Applicant complained that the search was not necessary as he would have cooperated with the Police in any event and that it has caused him considerable personal and professional embarrassment.

10 The Wright Affidavits did not seek to justify the legality of the search as such, being sworn by a Deputy Commissioner who had no direct involvement in the fraud and corruption inquiry. They implicitly presupposed the existence of some overarching legal principle protecting active criminal investigations from judicial scrutiny. However, this evidential gap was belatedly filled by the First Affidavit of Ian Tomkins, which firstly asserted that reasonable grounds for arresting the Applicant without a warrant existed based on, inter alia interviews with former Bermuda Healthcare staff, and secondly explained why the Applicant was not interviewed after his arrest (because his lawyer was not available).

11 However, perhaps because the subtleties of what in my experience is a novel basis on which the legality of an arrest was being challenged were missed, First Tomkins contains no (or no coherent) explanation of why it was considered necessary to carry out the arrest at all. The assertion that ‘ BPS took great care and attention when considering the decision to arrest the Applicant and search his home’ (paragraph 7) offers no insight into why, assuming that lawful grounds to make an arrest and carry out a search without a warrant prima facie existed, it was considered necessary to deploy those powers at all.

12 For example, there was no suggestion that the arresting officers did find or expected to find evidence which might have been destroyed if the officers had requested him to...