Medlands (Ptc) Ltd v Commissioner of the Bermuda Police Service

• Jurisdiction: Bermuda
• Judge: Justice Narinder Hargun,Chief Justice Narinder Hargun
• Judgment Date: 26 March 2020
• Neutral Citation: [2020] SC Bda 20 Civ
• Date: 26 March 2020
• Docket Number: CIVIL JURISDICTION 2020: No. 37,CIVIL JURISDICTION
• Court: Supreme Court (Bermuda)

[2020] SC (Bda) 20 Civ

In The Supreme Court of Bermuda

Before:

Hon. Chief Justice Narinder Hargun

CIVIL JURISDICTION

2020: No. 37

In the Matter of a Judicial Review

Between:

(1) Medlands (PTC) Limited

(as Trustee of the A. Eugene Brockman Charitable Trust)

(2) Spanish Steps Holdings Limited

(3) Point Investments Limited

Applicants

and

(1) Commissioner of the Bermuda Police Service

Defendant

and

Evatt Tamine St. John's Trust Company (PVT) Limited

Interested Parties

Appearances:

Mr. Hodge Malek QC, Jeffrey Elkinson and Benjamin Adamson, Conyers Dill & Pearman Limited, for the Applicants

Mr. Aidan Caisey QC and Shakira J. Dill-Francois, Deputy Solicitor General, Attorney-General's Chambers, for the Defendant

Mr. David Brownbill QC, Jerome Lynch QC and Paul Harshaw, Canterbury Law Limited, for Evatt Tamine

Judicial review; whether protocol to preserve privilege should be set aside; scope of legal professional privilege; right to a copy of the seized material under section 21 (4) of PACE

1 These proceedings arise out of a US Department of Justice (“ DOJ”) Mutual Legal Assistance request (the “ DOJ Request”) made on 27 April 2018 under the Treaty between the Government of the United States and the Government of Bermuda relating to Mutual Legal Assistance in Criminal Matters signed on 22 January, 2009 (the “ Treaty”). The Treaty and the Criminal Justice (International Co-operation) (Bermuda) Act 1994 provide for this assistance to be given.

2 The Treaty obliges the Government of Bermuda to provide assistance in response to a valid request and requires the Government of Bermuda to use its best efforts to keep requests and their contents confidential, if such confidentiality is requested, as was the case here, by the Requesting Party (Article 5 (5)).

3 Upon the instructions of the Attorney General's Chambers, the Bermuda Police Service (the “ BPS” or the “ Defendant”) applied for and obtained search warrants pursuant to section 39 of the Proceeds of Crime Act 1997 (“ POCA”) and evidence (the “ Materials”) was seized from the residence and storage unit of Evatt Tamine, a barrister. The BPS recognised that the material may contain legal professional privilege (“ LPP”) material and proposed a protocol to remove such material.

4 There was lengthy dialogue between the BPS, the Applicants and the Interested Parties as to the appropriate terms of a protocol. This resulted in lengthy correspondence between the parties. On 5 September 2019, the BPS proposed a third version of the protocol (the “ Protocol”) which was further modified by letter of 10 December 2019. In these proceedings the Applicants seek to challenge the lawfulness of the Protocol. It is now nearing two years since the DOJ Request was received by the Bermuda authorities.

5 In paragraph 25 of the Originating Motion dated 20 January 2020, the Applicants contend that the Protocol is ultra vires the BPS's statutory powers under the Police and Criminal Evidence Act 2006 (“ PACE”) and/or POCA and/or irrational because the Protocol is plainly inappropriate, defeats the objective of a proper review of LPP material, fails to protect the Applicants' fundamental rights to LPP, and is contrary to the statutory protections in PACE and/or POCA in that:

• 1. It is not a workable Protocol, including for the reason that it does not set out an appropriate process for identifying material that falls outside the scope of the Warrant.

• 2. It permits Mr Tamine to have access to the Applicants' confidential and or LPP material and/or to take and retain copies of the same, which he has no right to read or take copies of.

• 3. The Applicants have legitimate concerns about Mr Tamine's bona fides in participating in the proposed review and/or it is likely that Mr Tamine will subvert the review by delaying the review process and/or wrongly identifying material.

• 4. The Protocol may result in the Applicants' LPP and/or confidential material being provided by Mr Tamine to third parties, contrary to the Applicants' fundamental rights to LPP and rights of confidentiality.

• 5. The involvement of Mr Tamine will likely cause huge and unreasonable delays, since the huge volume of material seized cannot likely be reviewed by one person in any reasonable time-frame.

6 The Originating Motion also seeks information and documents requested in the Applicants' letters of 13 and 16 January 2020 and 18 February 2020. However, during the hearing of this matter Counsel for the Applicants advised the Court that he no longer pursued this application.

7 Mr Tamine also seeks to review the decision of the Commissioner of Police not to provide to Mr Tamine a copy of all material seized as a result of the searches carried out by the BPS at Mr Tamine's premises. Mr Tamine contends that this decision by the Defendant is inconsistent with the rights granted to Mr Tamine (and the duties imposed on the Defendant) pursuant to section 21 of PACE. At the commencement of the hearing I gave leave to Mr Tamine to proceed with his application for judicial review.

Background

8 Mr Tamine was (until September 2018) a director of St John's Trust Company (PVT) Limited (“ SJTC”) and of Spanish Steps Holdings Ltd (the Second Applicant or “ Spanish Steps”) and Point Investments Ltd (the Second Applicant or “ Point Investments”). Spanish Steps and Point Investments are companies held as part of the A. Eugene Brockman Charitable Trust (“ the Brockman Trust”), of which Mr Brockman is a beneficiary.

9 Until 19 December 2019, SJTC acted as trustee of the Brockman Trust. SJTC is wholly owned by Cabarita (PTC) Limited, of which Mr Tamine is the sole member and director. On 19 December 2019 the First Applicant (“ Medlands”) was appointed, in confidential proceedings, by Order of Subair Williams J as the trustee of the Brockman Trust. Mr James Gilbert is the sole member of Medlands and was, until shortly before the hearing, its sole director.

10 As a result of searches carried out by the BPS at Mr Tamine's home at 2 Hidden Lane, Pembroke HM06 and also at Mr Tamine's storage facility at Island Self Storage, 3 Mills Creek Road, Pembroke HM06, in September and October 2018, a number of electronic devices and hardcopy documents were seized by the BPS (the “ Seized Material”). According to the affidavit of Michael Padula, a US attorney acting for Mr Tamine, the Seized Material comprised the following:

• 1. Various items of computer equipment belonging to Mr Tamine and his family, used by them personally and containing music, videos, photographs and other personal and private files (including the client files of Ms. Sophie Tod, who is a barrister and married to Mr Tamine). These items cover at least 95% of the total data files in question.

• 2. Various items of computer equipment used by Mr Tamine in the course of his employment with Mr Brockman (including matters concerning SJTC and the Brockman Trust structure). All of this equipment, according to Mr Padula, belongs to Mr Tamine. Among these, the key items are those relating to what is referred to as the “encrypted server”. This contains the data sought in the investigations: the encrypted emails passing between Mr Brockman and Mr Tamine which apparently do not concern operational matters in regard to SJTC and the Brockman Trust structure.

11 The affidavit of Detective Superintendent Nicholas Pedro confirms that all of the Seized Material is currently in the possession of the BPS, but has not been reviewed pending the finalisation of the Protocol which has been under discussion between the Deputy Solicitor General, Counsel for Mr Tamine and Counsel for SJTC. The purpose of the Protocol was to provide an avenue in which all of the privileged material could be removed before forwarding the evidence to the US authorities. Additionally, it was decided that since this process was due to take place, any irrelevant material could be removed at this time.

12 The final version of the Protocol is contained in the letters from the Attorney General's Chambers dated 5 September 2019 and 10 December 2019 and it provides:

• 1. For the purposes of ensuring that no LPP Material is disclosed to the investigating team, all copied material will be forwarded to an independent professional reviewer, retained by the BPS, to ensure that all LPP Material is removed.

• 2. Given Mr Tamine's familiarity with the Seized Material he will, in the presence of the independent reviewer, remove all irrelevant, confidential and LPP Material. This is intended to be a sifting exercise and is not binding upon the reviewer in any way. Irrelevant material is defined as material that is personal to Mr Tamine and his wife Sophie Tod. Confidential material is considered to be any material which is not material associated with SJTC.

• 3. The decision of the reviewer in relation to LPP is final and the Protocol does not contemplate the parties making any further submissions to the reviewer or an application to the court in relation to this issue.

Position of the parties

13 The Applicants contend that the Protocol is ultra vires the BPS's statutory powers under POCA and/or PACE and/or is Wednesbury irrational, because:

• 1. The Protocol interferes with the Applicants' fundamental rights to LPP because it permits Mr Tamine to have access to the Brockman Trust's and/or the Applicants' LPP Material, to review it and/or to take and retain copies of the same, which he has no right to read or take copies of.

• 2. The Protocol provides for no process for identifying material falling outside the scope of the two warrants issued by the Court.

• 3. There is a risk that Mr Tamine may not participate in the review process in good faith.

• 4. The involvement of Mr Tamine will likely cause unreasonably long delays, since it is not likely to be possible for one person to review the huge volume of Seized Material in any reasonable time-frame.

14 The BPS contends...