October 30, 2020

The Editor Speaks: Will the dark and terrible secrets of Tempura be disclosed?

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Colin WilsonwebUp until now even the decision is secret! Evans is angry!!

With lawyers from the governor’s office trying to keep a lid over the decision by the Freedom of Information (FOI) Commissioner, Jennifer Dilbert, to release the controversial report relating to the costly internal police probe, Operation Tempura, they had their chance at the end of last week.

After two days of almost entirely closed door hearings before visiting UK judge, Lord Justice Sir Alan Moses, we are still waiting to hear his verdict that we understand was also delivered in closed session.

The government and the Foreign and Commonwealth Office have gone to almost over the top efforts to suppress any information to the public that has had to pay and is still paying the bill relating to the Tempura fiasco mainly on the grounds that the content is defamatory.

John Evans, the ex reporter for Cayman Net News, and at the very centre of Tempura, has been vociferous in trying to get the documents released. However, although he was one of the persons who had initially sought help from the FOI he withdrew his participation because he felt he was being excluded and ignored by Dilbert. He has felt the Complaint Commissioner’s conduct during the whole matter of Judicial Review against her decision to release the report has been inadequate and weak.

On April 11th 2013 Evans wrote this letter to Lord Justice Moses that we have been given permission to publish by Evans. It states Evans’ position on the whole matter.

To The Honourable Lord Justice Moses

Dear Lord Justice Moses

CAUSE NO: G0003 of 2013

IN THE GRAND COURT OF THE CAYMAN ISLANDS

On 8 February 2013 you issued directions in the above matter (copy attached) that included the instruction that I be treated as a person directly affected.

In accordance with those directions Walkers, acting for the Governor of the Cayman Islands, served me with a copy of all the currently available documents relating to the pending Judicial Review.

I then contacted the Information Commissioner (ICO) seeking advice about my future role in the matter. In reply Broadhurst LLC, who act for the ICO, indicated that they had no interest in my continuing involvement in the proceedings. The initial response also stated that their client had no desire to deal with me directly in future. Considering that we had worked closely on this matter for the previous four to five months that was a rather unexpected, and I felt extremely disrespectful, reaction.

When this was queried a further response indicated that if I wished to continue to be a party then I should employ my own legal advisors but no indication was made as to how this might be funded. Similarly I had queried funding for my costs in attending the Judicial Review, again no indication was given that this might (or might not) be available. Neither decision has been explained despite the fact that the ICO was aware of my situation in the UK – I am retired on Pension Guarantee Credits with no resources to fund either legal advice or travel to the Cayman Islands.

It had been my assumption that the ICO, who have used my source material in compiling the decision that is now being challenged and had distributed this source material without first obtaining my permission, would simply regard me as a witness and a full participant in their representations to the Judicial Review.

However, there are areas where we disagree and I regard the ICO’s appeal decision as weak, and inadequate for the purpose of securing the release of the requested documents. I also believe that my appeal was hi-jacked by the ICO for their own purposes in that rather than seeking release of the requested documents they have used the process to test the legality of certain sections of the Cayman Islands Freedom of Information Laws, the object of securing the release of the documents having become a secondary consideration.

Faced with a situation where I felt both my interests and those of the Freedom of Information process were not being addressed by the ICO I gave Broadhurst LLC a deadline by which they were required to respond to my request to be included as a full participant in the Judicial Review process. That deadline passed without a reply. I then notified the Governor’s Office that both the original FOI request and the appeal against their decision to refuse to release the documents were withdrawn because of my deliberate, and I believe unlawful, exclusion from the Judicial Review process by the ICO. At that time I also reminded all concerned that at no time had I waived my rights under both copyright and confidentiality or privilege restricting unauthorised copying, distribution or any other use of any material supplied to the ICO and that I was invoking those rights. In other words the future use of any material of which I was the author was prohibited without specific, and previously agreed, authorisation. This condition being pursuant to both the Copyright, Designs and Patents Act 1988 and the Cayman Islands Civil Service rules (Civil Service Code of Conduct paragraph 5(h)). The latter prohibits any public servant from releasing material supplied in confidence to any third party, including the Court, without prior agreement.

Despite this I understand that the ICO is still intending to proceed with a response to the Governor’s application made before you on 8 February 2012.

Just to complicate matters an attempt to file the document entitled ‘Acknowledgment of Service of Originating Summons’ with the Grand Court in George Town, Grand Cayman has been only partially successful. When this acknowledgment was filed on my behalf the document was accepted by the Court but apparently will not be added to the records for Cause G0003 of 2013.

I am not a lawyer and my knowledge of court procedures at this level is limited but it does seem that something is going seriously wrong here.

How can the originator of material that is now being presented as evidence in a Judicial Review be excluded from that process by one, or both, of the parties involved?

How can the wishes of that same person be ignored when they invoke clearly defined legal rights?

And finally, how can anyone ignore the clear instruction in your 8 February 2013 directions that the person who began this whole process was a party to the on-going litigation?

I seek both clarification and guidance here.

The appeal decision by the ICO to order the release of the requested documents (ICO Hearing 24-00612 dated 22 November 2012) relies heavily on alleged conflicts between the Cayman Islands Freedom of Information Law and the terms of both the Bill of Rights and the Cayman Islands Constitution Order 2009 but this is legislation that the ICO and/or her legal advisors seem to have scant respect for.

The Bill of Rights specifies that I have the right to expect –

Lawful Administrative Action

This right upholds the rule of law. It means that in your dealings with government, you have a constitutional right to be treated fairly. This right extends to any decision government makes in relation you. If you are not satisfied with a decision that government made, you can ask government to provide a written explanation of its decision.

So far all I have been told is to go and get myself legal representation. No explanation has been made why I am being excluded from participation in the Judicial Review.

I believe that under the terms of the Bill of Rights, which are pivotal to the ICO’s arguments, this all represents unfair treatment.

Part 1 of the 2009 Constitution goes even further, stating –

Lawful administrative action

19.—(1) All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.

(2) Every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act.

Duty of public officials

24. It is unlawful for a public official to make a decision or to act in a way that is incompatible with the Bill of Rights unless the public official is required or authorised to do so by primary legislation, in which case the legislation shall be declared incompatible with the Bill of Rights and the nature of that incompatibility shall be specified.

I am not aware of any legislation preventing me from being included in the Judicial Review process. In fact exactly the opposite seems to be the case, which would appear to make the decision of the ICO to exclude me unlawful.

Although I cannot speak on their behalf or claim in any way to represent their interests it also seems strange to me that neither Martin Polaine, the original author of the complaint referred to in this FOI request, or Martin Bridger, the retired police officer who pursued it, have been asked to provide input to this process. According to Mr Bridger the Governor even tried to prevent him seeing a copy of the investigation report but Benjamin Aina QC, who conducted the investigation and wrote the report, intervened. Again we are getting into areas that seem to run contrary to the terms of both the Bill of Rights and the Cayman Islands Constitution Order 2009.

Ultimately, under Order 53 r.9(1) it appears that I can simply turn up at the Grand Court and present myself at the hearing but obviously that option imposes severe financial penalties that might result in personal bankruptcy if the incurred credit card charges for the trip were not repaid.

I have attempted to pursue this matter through the Office of the Complaints Commissioner in the Cayman Islands but their hands are legally tied until after the Judicial Review is concluded. At that point they will be able to re-consider my concerns.

In the meantime I would respectfully request your consideration of the above.

Yours faithfully,

John Evans.

John Evans main beef is this:

Evans: “My great objection is that when this went to Judicial Review I was instantly out of the process but all my material was used.”

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